Legal Challenges Relating to the Commercial Use of Outer Space, with Specific Reference to Space Tourism

Since the launch of the first artificial satellite, Sputnik 1 in 1957, the outer space arena has evolved to include non-state entities, which are becoming serious participants in outer space activities themselves, including venturing into the space tourism market. Although space tourism is still in its infancy, it is estimated that the number of space tourists will substantially increase within the next few years. As space tourist activities increase, accidents will inevitably occur, which will give rise to legal questions relating to the duty of states to rescue space tourists in distress, and the liability for damages. This contribution points out that the current outer space treaty regime, which focuses on the use of outer space by states, is to a large extent outdated and that it cannot adequately deal with the unique legal challenges presented by the rapidly developing space tourism industry. This situation is exacerbated by the fact that the outer space legal framework is very fragmented – consisting of treaties, UN principles and guidelines, regional regulations and intergovernmental agreements, as well as national guidelines and legislation. In order to ensure that space tourism is indeed to the benefit of all mankind, it is imperative that clear international legal rules relating to space tourism be formulated, where standards are set for the authorisation and supervision of commercial space activities and the interests of states, passengers and private actors are balanced as far as possible. In view of the urgent need to address these legal questions and the consequent lack of time to negotiate a binding legal instrument, it is submitted that, as an interim measure, soft law guidelines should be developed in relation to space tourism in order to provide a framework for the eventual creation of a consolidated and binding legal instrument on all aspects relating to the use and exploration of outer space.

began to take private persons to the International Space Station (ISS) in 2001 6 a number of private space tourism companies have been established, especially in recent years. 7 In October 2004 a company, Scaled Composites, won the Ansari X Prize 8 with their space vehicle, SpaceShipOne, by flying past the altitude of 100 kilometres above the earth's surface twice within two weeks while being operated by a civilian pilot and carrying a payload equivalent to two other passengers. 9 Subsequently Sir Richard Branson's company, Virgin Galactic, announced its plans to take tourists on a 90 minute long journey, costing 200 000 US dollars, into suborbital space at three times the speed of sound with its spacecraft, SpaceShipTwo, launching from Spaceport America. 10 SpaceShipTwo performed a successful maiden flight in 2010 and a fleet of these space vehicles is currently under construction. 11 Space tourism operator, XCOR Aerospace, is developing a rocket-propelled winged vehicle, the Lynx, for passengers who wish to experience an "individualized" halfhour long sub-orbital flight by sitting alongside the pilot, and travelling to an altitude 6 To date, the following seven space tourists have travelled to the ISS on board the Russian Soyuz spacecraft: Dennis Tito (2001) 538-539. 7 Sundahl 2009 Journal of Space Law 163 fn 2 contends that "[s]pace tourism could be said to have truly begun in 1990 when Toyohiro Akiyama, a Japanese journalist who spent almost eight days on the Russian space station, Mir, became the first private person to go into space". 8 The X PRIZE Foundation awarded the largest prize in history, namely the 10 million US dollar Ansari X Prize (sponsored by the Ansari family) to Scaled Composites for building and launching a spacecraft carrying three people, which flew 100 km above the earth's surface twice within a period of two weeks. The Prize is modelled on the Orteig Prize that was awarded to Charles Lindbergh in 1927 for being the first person to fly uninterrupted from New York to Paris. According to the X PRIZE Foundation the spaceflight by Scaled Composites meant that "[s]paceflight was no longer the exclusive realm of government. With that single flight, and the winning of the $10 million Ansari X PRIZE, a new industry was born". See X PRIZE Foundation 2011 http://space.xprize.org/ansari-x-prize. of 100 kilometres. 12 Armadillo Aerospace has plans to develop a sub-orbital twoseater space vehicle called Hyperion. 13 A capsule-styled spacecraft is being developed by Blue Origin, a company owned by Amazon.com co-founder, Jeff Bezos. 14 Excalibur, a space tourism company based on the Isle of Man, plans to place tourists into orbit in the Soviet-made space capsule, Almaz, and to use the Almaz space station as a space hotel. 15 Other potential space tourism operators include Rocketplane, 16 which plans to offer sub-orbital flights launched out of Dubai, and SpaceX, owned by South African-born Elon Musk, which created a new type of rocket to deliver cargo on behalf of NASA to the International Space Station 17 and which also plans to take private persons into space. 18 The European aerospace company, EADS Astrium, has also announced its plans to provide space tourist flights for groups of four passengers to an altitude of 100 kilometres in a space vehicle named Spaceplane, which will take off and land from a runway. 19 In order to launch the envisaged commercial space vehicles, the first commercial spaceport, Spaceport America, 20 is currently under construction in New Mexico, while a number of further spaceports are planned in countries such as the United Arab or through space or to a celestial body for pleasure and recreation". 27 The possible space tourist activities include long-term stays in orbital facilities for research or entertainment purposes, short-term orbital or sub-orbital flights, and parabolic flights in aircraft where space tourists are exposed to weightless conditions. 28 In the instance of sub-orbital spaceflight, 29 orbital velocity is not achieved, as the space vehicle re-enters the earth's atmosphere after three to six minutes of microgravity has been achieved. The passengers thus experience a few minutes of weightlessness and the launch vehicle is re-used. The space vehicle is launched either horizontally or vertically and attains an altitude of around 100 kilometers. 30 With orbital spaceflight, 31 orbital velocity must be reached in order to allow the space vehicle to fly along the curvature of the earth without falling back to earth, making it much more energy intensive and thus also technically more difficult and more expensive than sub-orbital spaceflight. 32 Depending on the atmospheric factors, an orbital spacecraft can remain in space for from a few days up to a few years. 33 In the case of intercontinental rocket transport, the idea is to substantially shorten the travel time from one point of the earth to another by transiting through "private space travel" might be a better term, for the present at least, since this kind of space travel is still reserved for very few people and can thus not yet be regarded as a mass tourist operation where large groups of people are taken on space tours. Also see Masson-Zwaan 2008 Proceedings of the International Institute of Space Law 536 fn 2. 27 O'Brien 2004 Proceedings of the International Institute of Space Law 386 as quoted by Masson-Zwaan and Freeland 2010 Acta Astronautica 1599. 28 Hobe and Cloppenburg 2004 Proceedings of the International Institute of Space Law 377;Hobe 2007 Neb L Rev 439. 29 The term "sub-orbital spaceflight" is defined as "[s]paceflight where the spacecraft reaches outer space, but does not have sufficient energy to complete a full revolution around the Earth before    Melb J Int'l L 9. 33 Kleiman, Lamie and Carminati Laws of Spaceflight 51-52. outer space. 34 This form of transport will be specifically useful for the military, as well as for the transportation of persons and goods. There are, however, technical difficulties and safety risks associated with this form of transport. 35 Because of the technological and cost demands of the latter two forms of spaceflight, most personal spaceflights currently on offer will be sub-orbital. 36 Article I of the Outer Space Treaty requires that the exploration and use of outer space shall be carried out for the benefit and in the interest of all countries. Private human spaceflight may be regarded as a (mostly) recreational activity 37 and, due to the high cost involved, space tourism is currently mainly reserved for the wealthy space travel enthusiast, which makes its benefit for all of mankind unclear. 38 However, space tourism may have certain (long-term) social and economic advantages: 39 Space tourism will most probably eventually lead to more affordable access to space, which could be seen as beneficial for all mankind. 40  However, in order to ensure that space tourism activities indeed serve the benefit of all mankind, these activities must be undertaken in a legally regulated as well as an ethical manner. 43 It is self-evident that space tourism activities will significantly add to the pollution of both the earth and the outer space environment. 44 In this regard Masson-Zwaan and Freeland 45 point out that it has been claimed that space tourist vehicles will eventually become the world's primary source of carbon dioxide emissions. 46 An even more immediate problem is that of space debris. 47 No legally binding definition of space debris has, however, been formulated yet. 48 In addition, the space treaties pay very little attention to environmental issues, and the issue of space debris is not specifically addressed in the Outer Space Treaty (nor in any of the other space treaties), as these issues were not high on the agenda of the spacefaring nations at the time of the conclusion of the treaties. 49 At present, the mitigation of space debris is a matter of the voluntary compliance of states with the space debris mitigation guidelines 50 and national legal rules in this regard. In view of the increasing commercial use of outer space, including the planned space tourism ventures, it is imperative that this problem is addressed as a matter of urgency, as it could significantly hamper the future exploration and use of space. 41 Chatzipanagiotis 2011 Proceedings of the International Institute of Space Law 56. 42 Chatzipanagiotis 2011 Proceedings of the International Institute of Space Law 56. 43 For a further discussion of these ethical considerations see Freeland 2010 Melb J Int'l L 25-28. 44 Masson-Zwaan and Freeland 2010 Acta Astronautica 1606. 45 Masson-Zwaan and Freeland 2010 Acta Astronautica 1606. 46 In addition to the protection of the space environment from pollution, Masson-Zwaan and Freeland 2010 Acta Astronautica 1606 submit that legal regulation for the protection of so-called "heritage sites" in outer space will be needed. These areas would, for example, include the site of the first moon landing by people.

Delimiting outer space
The term "outer space" generally refers to the entire universe, in other words, any area beyond the earth's atmosphere. However, since spaceflight can be undertaken in only a very limited part of outer space, this general meaning is too broad for legal purposes. In a legal sense, "outer space" refers to that part of the universe where human activities are practically possible or feasible. 51 Some activities which are based on earth are, however, intrinsically linked to outer space activities and the question remains whether space law should also be applicable to these activities or not. 52 The delimitation of outer space essentially concerns the question of where air space ends and where outer space begins. The answer to this question is significant in order to determine which activities are indeed space activities under international space law, and which activities are governed by other legal regimes. In contrast to air space which falls under the territorial sovereignty of the underlying state, international law determines that outer space is not subject to the sovereignty of any particular state. 53 It may therefore be regarded in customary international law that states do not need the prior consent of other states in order to conduct activities in outer space. 54 A private entity therefore does not need prior permission from any sovereign state to conduct tourist activities in outer space. As will be discussed below, the only authorisation needed is that of the launching state, which 51 Neger and Walter "Space Law" 238. 52 Neger and Walter "Space Law" 238-239. According to the authors these activities include those which "can be considered as facilitating access to and the return from outer space, like all kinds of launching and return facilities (spaceports as well as spacecrafts)" and those activities which "regulate the operation and control of human conduct in outer space, like all activities concerning the functioning of satellites and other outer space systems (e.g. ISS)" (Neger and Walter "Space Law" 239 When a vehicle carrying space tourists is launched from earth (or in the air) and returns to earth, the journey will obviously involve both air and outer space. 61 The delimitation of air space and outer space thus has significant implications for the issue of liability for damages caused by space tourism activities, as such liability may be premised on different legal regimes, namely either air law or space law. 62 Consensus on the criteria to be used to identify the applicable legal regime is yet to be reached. Different theories have been developed in this regard. According to the spatialist approach the applicable legal regime will depend on the location of the spacecraft -thus, whether it is in air or outer space. 63 However, due to the prevailing uncertainty regarding the delimitation of outer space, this theory is not of much assistance. 64 The functional theory, in turn, focuses on the nature of the activity carried out. If the aerospace vehicle is designed for missions in orbit, space law will be applicable, as also when the vehicle travels through air space. 65 Even if the space vehicle does not reach orbit after it has been launched, space law would still apply, since the flight would be regarded as a space activity. 66 If the purpose of the activity is to connect two points on earth by flying through outer space, air law shall apply. 67 A third theory proposes the creation of a specific regime by agreement 60 Neger and Walter "Space Law" 241. South Africa's Space Affairs Act 84 of 1993 defines outer space as "the space above the surface of the earth from the height at which it is in practice possible to operate an object in an orbit around the earth". 61 Freeland 2010 Melb J Int'l L 11. 62 Hobe Sgrosso 69 finds the functional theory the most suitable to be applied to the different types of space transportation vehicles: A space shuttle, which "takes off like a rocket, orbits the Earth like a satellite and lands like an airplane", 70 carries out its function in outer space and must therefore be regarded as a space object governed by international space law with regard to its registration, liability for damage and the rescue and return of astronauts and space objects. 71 In contrast, supersonic space planes with the mission of transporting passengers from one point on earth to another by passing through outer space are not designed to be placed into orbit. Such a plane takes off like an airplane and might reach suborbital altitude for only a few seconds due to its technological needs. 72 Since these planes have the same function as aircraft, they will be subject to the domestic air law regulations of the states over whose territory they fly, as well as to the different international air law conventions. 73 In the case of multistage hybrid aerospace planes 74 (such as SpaceShipOne and The current 18 annexes to the Chicago Convention can be found at Australian Government: Department of Infrastructure and Regional Development 2013 http://www.infrastructure.gov.au/aviation/international/icao/annexes/. 82 Hobe 2007 Neb L Rev 443. Hobe and Cloppenburg 2004 Proceedings of the International Institute of Space Law 379 therefore argue that sub-orbital vehicles which use rocket propulsion for thrust cannot be regarded as aircraft. 83 The Convention for the Unification of certain Rules relating to international Carriage by Air (1999) (Montreal Convention) applies to "all international carriage of persons" by aircraft (see a 1(2)). In terms of the Convention carriage by aircraft will be international if "according to the agreement between the parties, the place of destination … [is] situated within the territories of two different states parties …" In this regard Hobe and Cloppenburg 2004 Proceedings of the International Institute of Space Law 379 submit as follows: "[I]n the case of an air launch, the Convention is applicable to the first part of the carriage, as the position where the separation takes place would constitute a 'place of destination', provided that this place of destination is located in a different State to make the carriage international." They further contend that should the separation take place over a territory not under the jurisdiction of a state party to the Montreal Convention (such as the high seas), the air carriage cannot be regarded as international and the Montreal Convention would thus not be applicable. In such an instance the liability regime will be determined by the relevant principles of private international law (Hobe and Cloppenburg 2004 Proceedings of the International Institute of Space Law 380). makes use of the reactions of the air and should thus be regarded as a space object 84 subject to outer space law. 85 Freeland, 86 however, submits that although this solution is pragmatic, it is still unsatisfactory since, in the event of an accident, the applicable legal regime will depend on fortuitous circumstances, namely the specific moment that the accident occurs. 87 What is also not clear from this approach is which legal regime will apply when the space vehicle returns to earth without any assistance from an aircraft.
Since there is no international agreement on the boundary between air space and outer space, it would be difficult to determine when outer space should apply and when air law should apply. It seems illogical, however, to apply two legal systems (both air law and outer space law) to the journey into space, while one legal system (either air law or outer space law) is applied to the journey returning to earth.
It seems that the two-staged approach, as explained here above, results in the application of both the spatial and functional approaches. It is agreed with the submission of Masson-Zwaan and Freeland 88 that the application of two legal systems during a single space tourism activity is "highly unsatisfactory and impractical". This is especially so because of the lack of international consensus on the border between air space and outer space. 89 Since the development of a comprehensive multilateral treaty to regulate the complete journey of the space tourist would take a significant period of time,  propose that, as an interim measure, space law should be applied to the entire sub- 84 There is currently uncertainty on the precise meaning of the term "space object". The Liability Convention rather vaguely defines a space object as including the "component parts of a space object as well as its launch vehicle and parts thereof". Hobe 2007 Neb L Rev 443-444 regards a space object as "any object that is launched or attempted to be launched into outer space". Also Dugard International Law 33 describes "soft law" as "imprecise standards, generated by declarations adopted by diplomatic conferences or resolutions of international organizations, that are intended to serve as guidelines to states in their conduct, but which lack the status of 'law'".
Klabbers Introduction to International Institutional Law 202 is of the opinion that the concept of soft law should be discarded mainly because it is premised on the jurisprudentially dubious notion that legal rules can be more or less binding, which is not really supported by international tribunals. Furthermore, the fact that soft law is often conceived of as informal standards-setting without any control makes it a convenient tool for the exercise of pure political power. 94 In the context of space debris mitigation see Welly 2010 Journal of Space Law 307; Tronchetti "Soft Law" 620. 95 Welly 2010 Journal of Space Law 307. 96 Tronchetti "Soft Law" 626. international law may develop, which may eventually lead to the conclusion of a treaty. 97 As with the spatial theory, different objections can also be raised against the application of the functional theory, as proposed by  Apart from the fact that states may find it difficult to agree on the particular purpose of the activity, the location of the vehicle cannot be merely ignored. In addition, as was also pointed out earlier, there is no international agreement on the boundary between air space and outer space yet. 99 In order to determine the function of the activity, it is still necessary to know where air space ends and outer space begins. It is thus clear that legal certainty regarding the applicable legal regime during a single space tourist journey cannot really be achieved until states agree on a boundary between air space and outer space. It is therefore agreed with Masson-Zwaan and Freeland, 100 that a single legal regime should be applied to the entire space tourism journey. It is submitted, however, that this legal regime should not be based on the application of either the spatial or the functional theory, as both of these theories are to a lesser or greater extent dependent on the existence of a fixed boundary between air space and outer space. It is rather submitted that for the sake of legal certainty, states should agree on a specific single legal system that will apply to the entire space tourism journey -thus, to and from outer space. However, until states have agreed on the creation of a specific regime by adapting the existing rules of air and space law to space tourism activities, 101 it is agreed with Masson-Zwaan and Freeland 102 that existing outer space law should in the interim be applied as supplemented by a code or guidelines in order to provide clarity and legal certainty on issues such as liability and the status of space tourists. As was pointed out earlier, such a code or guidelines would not be legally binding. Alternatively, the space treaties could be supplemented by binding protocols. However, due to the The legal status of space tourists Article V of the Outer Space Treaty 104 describes astronauts as "envoys of mankind" 105 and obliges states to provide astronauts with "all possible assistance in the event of accident, distress, or emergency landing on the territory of another State party or on the high seas". Should astronauts make such an emergency landing, they must be safely and promptly returned to the state of registry of the space vehicle. In contrast with this qualified duty of states, article V places a broader duty on astronauts by obliging them to provide "all possible assistance to each other" -thus, in any place and under any circumstances. 106 The Rescue Agreement of 1968, 107 which is based on sentiments of humanity, 108 develops and gives further concrete expression to the rescue provisions in the Outer Space Treaty 109 and specifically deals with the rendering of assistance to astronauts in the event of an accident, distress or emergency landing, the prompt and safe 103 In a discussion on the duty to rescue space tourists, Sundahl 2009 Journal of Space Law 199 suggests that a "protocol could be drafted in a manner that would allow it to enter into force upon the ratification by one or two countries, thus permitting the changes to go into effect within a short period of time". This however means that the protocol would be applicable to a limited number of states only.  . Yan points out that the description of astronauts as "envoys of mankind" may be regarded as being of symbolic value only, without any legal rights or duties attached to it. Conversely, it may be contended that since astronauts face the risks of entering an unknown world, they play an important role in the development of humankind. The fact that the obligation on states to render assistance to astronauts is placed directly after the phrase "envoys of mankind" rather seems to suggest, according to Yan, that the phrase has some legal value (Yan 2011  return of the astronauts and the return of objects launched into outer space. 110 It should be noted that the title and preamble of the Rescue Agreement refer to "astronauts", while the text of the Agreement employs the broader term "personnel of a spacecraft", which may, according to Yun,111 include astronauts, space engineers and scientists.
It is doubtful, however, that the terms "astronaut" and "space personnel" in the Rescue Agreement also include space tourists, since neither of these terms is  tourist falls within the definition of an astronaut for legal purposes, the following elements need to be considered: training, altitude and selection. 116

Training
It seems that, in a purely literal sense, space tourists cannot be regarded as astronauts or even personnel of a spacecraft, as they are not trained as specialists on a space mission and their main objective is one of personal pleasure, as opposed to contributing to the interest of mankind. 117 This is, however, not always as simple as it seems, since different categories of space tourists can be identified and most space tourism operators require their passengers to undergo (some) training. 118 The first space tourist, Dennis Tito, who visited the International Space Station (ISS) on board the Russian Soyuz spacecraft, was allowed to stay in the Russian space module only. He was regarded as a "guest cosmonaut" 119 by the Russians and an "amateur astronaut" by the Americans. 120 In contrast, the second space tourist on board the Soyuz, Mark Shuttleworth, agreed to certain common "rules of the road" applicable to commercial space tourists to the ISS, 121 and was therefore allowed to 116 Lyall and Larsen Space Law 131. Yan 2011 Proceedings of the International Institute of Space Law 193 refers to two elements only for a person to be qualified as an astronaut: professional training and operating a spacecraft. Based on these elements, the definition of an astronaut may be formulated in a narrow or a broad sense. The author explains as follows: "[S]ome scholars construe the term in a narrow sense: only those persons who pilot or operate a spacecraft are considered as astronauts. Therefore, persons like space engineers and scientists, are not astronauts. Others construed the term in a broad way. According to them, a person who is employed on a spacecraft on a mission and who is serving some purpose in aid of the voyage, such as an engineer and a scientist capable of carrying out scientific experiments and of knowing his and his colleagues' work in the event of a replacement, shall be considered an astronaut." However, others have doubted the correctness of this submission, due to the fact that personal space travel is undertaken mainly for the individual's pleasure and not to make a contribution to the public interest. 130 As with the terms astronaut and envoy of mankind, the term personnel has no specifically defined meaning in outer space law. 131 Hobe 132 refers in this regard to the different connotations that these terms bear: the term astronaut "has a more explorative or scientific meaning", while personnel "has a more functional meaning" and the phrase "envoy of mankind has a more humane meaning". It may therefore be argued that since space tourists do not perform functions relating to the operating of the space vehicle during their relatively short period in outer space, they cannot be considered as personnel of the spacecraft. The "profile of these passengers" is thus not in accordance with what the drafters of the Rescue Agreement intended. 133

Altitude
The element of altitude relates to the question of how high a person must travel in a space vehicle in order to be considered an astronaut. 134 This question is complicated by the fact that there is not yet international consensus on the boundary between air space and outer space. 135 It is also at present uncertain whether or not participants passengers and non-crew members were deemed 'personnel', it would still be uncertain whether privileges and immunities enjoyed by astronauts would be available for space tourists as it was 'not the intention of the treaty makers to cater for this group'". According to Yan 2011 Proceedings of the International Institute of Space Law 196 "[i]t is unreasonable to gather that the drafters intended to include space tourists in the category of personnel of spacecrafts in the Rescue Agreement". 131 Failat 2012 Irish Law Journal 125. 132 Hobe 2007 Neb L Rev 455. 133 Hobe 2007 Neb L Rev 456. 134 Lyall and Larsen Space Law 132-133. 135 As was pointed out above, at present the altitude of 100 km above sea level is widely regarded as the legal boundary between air space and outer space. However, the United States regards the altitude of 80 km above sea level as the edge of outer space. Consequently, a person travelling higher than 80 km, is awarded his/her so-called "astronaut wings". See in this regard in a commercial sub-orbital spaceflight, who experience only a few minutes of weightlessness, may be considered as astronauts. 136

Selection
In order to be included in the astronaut corps of, for example, the European Space Agency (ESA) or the crew of the ISS, certain selection criteria and processes need to be complied with. 137 In the case of the ESA, applicants inter alia have to show competence in relevant scientific principles, engineering or piloting skills, certain language skills, and emotional stability. In addition, medical records similar to those of pilots need to be provided during the selection process. 138 The selection criteria for ISS crew members are set out in the Multilateral Crew Operations Panel (MCOP) Agreement of 2001. 139 The Agreement divides crew members into "professional astronauts/cosmonauts" and "spaceflight participants" (including space tourists), which can be designated as "expedition (increment) crewmembers" and "visiting crewmembers". 140 Each ISS partner applies its own selection criteria for its astronaut corps, but the other crew members listed here above must comply with the requirements as set out in the MCOP Agreement. These criteria inter alia include behavioural suitability, linguistic ability and medical requirements. 141 Since space tourists visiting the ISS are regarded as spaceflight participants, they will have to comply with the criteria as set out in the MCOP Agreement. 142 It is, however, still unclear whether or not space tourism operators will have set selection criteria (except for medical screening in some instances) 143 which space tourists who wish to 136 Lyall  142 Freeland 2010 Melb J Int'l L 15 points out that "[t]he Agreement has not gone so far as to require these participants to sign a code of conduct -as is required for crew members of the ISS -but the inclusion of non-professional persons, such as tourists, on board space vehicles will necessitate acceptance by them of some minimum standard of care". undertake a shorter sub-orbital (or eventually longer orbital) spaceflights should comply with.
The above discussion of the elements relating to the definition of an astronaut clearly indicates that the current space law regime needs to be amended by a new treaty or at least supplemented by means of a protocol in order to provide clarity regarding the legal status of space tourists. 144 In formulating a legal framework for space tourism it has been suggested by some commentators that the International The IGA describes crew as "qualified personnel". 147 However, as was pointed out above, it is uncertain whether space tourists may be regarded as personnel on a space vehicle. Moreover, due to the limited training that a space tourist receives, it is highly doubtful if such a person has the same level of qualification as a professional crew member. 148 This is also evident from the MCOP Agreement, which determines that: Only professional astronauts/cosmonauts will be eligible to be assigned as crew commanders, pilots, flight engineers, station scientists or mission specialists in either expedition or visiting crews. Spaceflight participants will be eligible to be assigned as visiting scientists, commercial users, or tourists. Task assignments for spaceflight participants will not include ISS assembly, operations and maintenance activities. between crew members and passengers can be made by following air law, which determines in As was pointed out earlier, the MCOP Agreement reached between the ISS partners, sets out who are allowed on the Space Station and clearly distinguishes between different categories of crew members. These crew members are defined as follows: A professional astronaut or cosmonaut is an individual who has completed the official selection and has been qualified as such at the space agency of one of the ISS partners and is employed on the staff of the crew office of that agency. 150 Spaceflight participants are individuals (e.g. commercial, scientific and other programmes; crewmembers of non-partner space agencies, engineers, scientists, teachers, journalists, filmmakers or tourists) sponsored by one or more partner(s). Normally this is a temporary assignment that is covered under a short-term contract. 151 The above crew members may be designated as "expedition or increment crewmembers" who are the "main crew of the ISS" and "visiting crewmembers" who "travel to and from the ISS" and who are not expedition crew members, Failat 156 contends that the above Agreements relating to the ISS have "helped to develop soft law rules of a legally binding character, which appear to provide security and certainty in relation to passengers travelling to the ISS". It is submitted that this statement is not completely correct. As was pointed out earlier, soft law guidelines are not legally binding and may, at most, provide the premise on which customary international law may develop, which may lead to the conclusion of a treaty. Moreover, although these ISS Agreements may be instructive in eventually formulating the different categories of space travellers and their respective rights and duties, they do not provide legal certainty on whether or not the Rescue Agreement, as it currently reads, should also apply to space tourists. In fact, a reading of the different categories of space travelers in the MCOP Agreement shows a clear distinction between professional crew members (professional astronauts/cosmonauts) and spaceflight participants, who include space tourists.
This may thus imply that the Rescue Agreement, which specifically refers to "astronauts" and "space personnel", will not be applicable to space tourists.
Yan 157 points out that, for a number of reasons, non-spacefaring states especially may be unwilling to extend the provisions of the Rescue Agreement to space tourists. First, the obligation in the Rescue Agreement to provide "all possible assistance" to astronauts in distress is broader than the obligation in the Chicago Convention, which requires only that "practicable" assistance must be provided to passengers on an aircraft in distress. It is consequently debatable whether states will be willing to provide such greater assistance to space tourists, who travel to outer space for their personal interest and pleasure, like commercial aircraft passengers. 158 Second, states may contend that the obligation to return space tourists to the launching state is subject to their national laws concerning foreigners and that they are therefore not obliged to return space tourists unconditionally. 159 Third, although the Rescue Agreement determines that the expenses for recovering and returning a 156 Failat 2012 Irish Law Journal 127. 157 Yan 2011 Proceedings of the International Institute of Space Law 197. 158 Yan 2011 Proceedings of the International Institute of Space Law 197. 159 Yan 2011 Proceedings of the International Institute of Space Law 197. space object will be paid by the launching state, there is no similar provision relating to the expenses incurred when an astronaut is rescued and returned. Since astronauts are considered to be envoys of mankind, states are obliged to render assistance without any subsequent financial claim. 160 Hence, it is again doubtful that states will be willing to incur expenses to rescue and return space tourists, who cannot be regarded as envoys of mankind. Analogous to the suggestion that an international fund should be created to compensate victims who have suffered damages caused by unidentified space debris, 161 it might be contemplated to create a fund which is to be used for the rescue and return of space tourists in distress. It is unlikely, however, that states would be willing to contribute to such a fund, since space tourists are not considered to be astronauts who undertake space activities for the benefit of mankind.
It is submitted that the rationale behind the Rescue Agreement may motivate the extended application of the Agreement to space tourists, at least until a new convention or protocol on the commercial use of space has been drafted, that clearly clarifies the legal status of space tourists. Although it could be argued that the drafters of the Rescue Agreement had only astronauts in mind, 162 it should also be considered that the Agreement was "prompted by sentiments of humanity". 163 In view of this, it is inconceivable that in the case of an emergency only the astronauts would be rescued, without assisting the space tourists on board the space vehicle as well. 164 For this reason, a broad interpretation of the Rescue Agreement is necessary. Different arguments have been raised as to how the Rescue Agreement could be interpreted in order to provide space tourists with the protection offered by the Agreement. 160 Yan 2011 Proceedings of the International Institute of Space Law 197. 161 See Sgrosso International Space Law 136; Viikari Environmental Element in Space Law 183-184. 162 Yan 2011 Proceedings of the International Institute of Space Law 199. 163 Preamble of the Rescue Agreement. By employing the interpretational guidelines in the Vienna Convention, 165 Sundahl 166 reaches the conclusion that the duty to rescue in the outer space treaties should be interpreted broadly in order to include the rescue of space tourists. According to him the use of the term "personnel" in the text of the Rescue Agreement (as opposed to the term "astronaut") and the omission of the phrase "envoys of mankind" (as used in the Outer Space Treaty) broadens the scope of the duty to rescue, thereby including space tourists and commercial spaceflights. In terms of the lex posteriori rule this broader scope of the Rescue Agreement supersedes the narrower language of the Outer Space Treaty. 167 Yan,168 168 Yan 2011 Proceedings of the International Institute of  The article reads as follows: "There shall be taken into account, together with the context (a) any subsequent agreement between the parties regarding interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation". of its object and purpose. 170 As was pointed out earlier, the Rescue Agreement is based on a concern for human life. It is thus clear that the object and purpose of the treaty is to save the lives of people in distress while they are undertaking an outer space activity, irrespective of their status and their function on board the spacecraft.
If space tourists were to be left in distress without any attempt by states to rescue them it would constitute a grave infringement of their rights to human dignity and life.
In order to give effect to the teleological interpretation of the Rescue Agreement, states could be requested to submit declarations indicating that the protection offered by the Agreement is also applicable to space tourists. Alternatively, states could adopt a protocol in this regard. However, since the adoption and ratification of a protocol may take time, it is proposed that in view of the urgency of the matter an advisory opinion on the interpretation of the Rescue Agreement be sought from the International Court of Justice. Although it would not be binding on states, such an authoritative opinion would at least provide legal certainty on the status of space tourists. Depending on the subsequent state practice in this regard, the duty to rescue space tourists may eventually become an erga omnes obligation, binding also on non-states parties to the Rescue Agreement.

Liability
The challenges in applying both air law and outer space law to a single space tourism journey, as was discussed earlier, are especially evident in the context of liability. In contrast with air law, which has clear and tested rules on passenger, operator and third-party liability, the outer space legal rules relating to liability are state-orientated and have not yet been interpreted by the courts. Article VI of the Outer Space Treaty currently sets out the liability regime for outer space by determining that: States Parties to the Treaty shall bear international responsibility for national activities in space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, 172 and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.
The provision furthermore prescribes that: The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorisation and continuing supervision by the appropriate State Party to the Treaty.173 States thus bear responsibility for their own space activities, as well as for the activities carried out by non-governmental entities that launch space objects from their territories. In addition, the activities of non-governmental entities must be tourism, 178 it is not clear how states will implement their obligations under article VI in a uniform manner. 179 Some states, for example South Africa, 180 authorise private space activities by means of a statutory licensing system. In contrast, other states do not explicitly provide for a licensing system in their domestic space legislation and even a major space power, France, has for many years functioned well without such a system. 181 Supervision mechanisms may, for example, include periodical reviews or audits once a licence has been granted to a private operator. However, since the meaning of the term "continuous supervision" has not been clarified, the manner and frequency of supervision is currently also left to the discretion of states. 182 In addition, smaller countries that are not major space actors may lack the necessary expertise to properly evaluate the private space activities concerned. 183 As a result of the diverse manner in which states may implement the generally-framed obligations in article VI, Masson-Zwaan 184 stresses the need for the continuous global harmonisation of domestic space legislation through the UNCOPUOS, as well as on a regional level, for example, in Europe and in Africa. 185 The international liability of a launching state is provided for as follows in article VII of the Outer Space Treaty: Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the earth, in air space or outer space, including the Moon and celestial bodies. 186 The Outer Space Treaty thus makes provision for both the international responsibility and liability of states for outer space activities. There are, however, different scholarly opinions on how these terms should be used, and they are even sometimes used interchangeably. 187 In international law, state responsibility refers to a state's responsibility for an internationally wrongful act and arises upon a breach of an international obligation (an objective fault) in instances where such a breach is attributable to the state. 188 The domestic law elements for wrongfulness, namely subjective fault (culpa) and damage are thus not required for a state to incur international responsibility. 189 A state commits an internationally wrongful act when it uses or allows its territory to be used in a manner that causes harm to the territory of another state or the persons or the property of that state. 190 The remedies for an internationally wrongful act are restitution, satisfaction and non-repetition. 191 Liability, in turn, relates to the remedying of harm irrespective of whether it has been caused by a violation of an international rule or not. 192 The element of damage is thus an indispensable criterion for international liability. 193 According to Van der Dunk there is, however, a partial overlap between the terms "responsibility" and "liability", as an internationally wrongful act by one state can often cause damage to 186 Own emphasis. The Liability Convention provides for more detailed rules in instances where damage was caused by states as a result of their space activities. Article II of the Convention makes provision for absolute liability in the instance of damage caused by a space object "on the surface of the Earth or to aircraft in flight".
Article III of the Convention furthermore determines that: In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible. 196 The Liability Convention thus makes provision for a two-fold liability regime: in the instance where damage is caused by a space object on the earth or to an aircraft in flight, the state shall incur absolute objective liability, which is based not on fault but on risk. A number of states also already require private companies who have launch and operational certificates or permits to obtain the necessary insurance to cover their space objects and launch facilities, as well as third party and product liability. 220 Private companies engaging in space tourism will thus most probably also in future have to acquire the necessary insurance to indemnify them in instances of claims by states to recover the damages suffered by space tourists and third parties. 221 It is, that the legal representative of a deceased space tourist will be bound by a letter in which the space tourists gave his/her so-called informed consent to waive the right to claim damages.   Melb J Int'l L 17 fn 74, who points out that "there is no doubt that the development of the a significant body of domestic legislation represents one of the real 'growth areas' of space law". 218 Hobe and Cloppenburg 2004 Proceedings of the International Institute of Space Law 383. See further in this regard Freeland 2010 Melb J Int'l L 17 fn 75, who refers to relevant sections of the Australian Space Activities Act of 1998. Also see Walter "Privatisation and Commercialisation of Outer Space" 505. The South African Space Affairs Act determines in s 11 that a person can perform activities, including any launching from the territory of the Republic, only in terms of a licence issued by the South African Council for Space Affairs. In terms of s 1 (1)(a) such a licence may contain conditions regarding the liability of the licensee for damages and the security to be provided by the licensee for such damages. Subs (2) further sets out the conditions which may be contained in the licence. however, at this stage doubtful that the existing space insurance industry 222 will have the capacity or even the willingness to insure space tourism ventures, especially due to the high risks involved. 223 In view of the fact that individuals are already acquiring seats on commercial spaceflights, the urgent need for a new space tourism insurance model in order to assess the unique risks involved and to ensure the payment of compensation is self-evident. 224 From the above discussion it is clear that the current outer space legal regime does not adequately address the unique challenges relating to liability for damages suffered by space tourists. Liability issues are therefore increasingly regulated in national space legislation, which unfortunately exacerbates the international legal uncertainty in this regard. 225 It has therefore been suggested by some commentators that the relevant provisions of the air law treaties, in the form of the Warsaw, 226 Montreal 227 and Rome 228 Conventions, may be instructive in formulating uniform legal rules relating to liability arising from space tourism activities.
Specifically the provisions on carrier liability, passenger liability, limits to liability, and third party liability may provide a valuable framework for the creation of such a legal regime. 229 It should be noted, however, that due to the unique characteristics of and 222 Freeland 2010 Melb J Int'l L 20 points out that there is already a well-established space insurance industry that offers insurance cover for launch and in-orbit operations of both government and commercial satellites. 223 Freeland 2010 Melb J Int'l L 20. Also see Ronan-Heath 2011 Proceedings of the International Institute of Space Law 208, who points out that insurers are for a number of reasons currently unable to assess the risk and calculate appropriate premiums for the space tourism industry. It is beyond the scope of this article to discuss these specific air law provisions further. risks involved in space tourism, the air law model cannot merely be extended to space tourism, 230 but will have to be adapted in order to answer to the very specific needs of this new space travelling industry. 231

6
The way forward?
It should be clear from the above exposition that the current space treaties are to a large extent outdated and that they cannot adequately deal with the unique legal challenges presented by the rapidly developing space tourism industry. This is furthermore exacerbated by the fact that the outer space legal framework is very fragmented -consisting of treaties, UN principles and guidelines, regional regulations and intergovernmental agreements, as well as national guidelines and legislation.
In order to ensure that space tourism is indeed to the benefit of all mankind, it is imperative that clear international legal rules relating to space tourism are advanced. 234 Ideally, a legal instrument that will be binding on signatory states should be adopted to deal with the unique legal questions posed by space tourism.
However, in view of the urgent need to address these legal questions and the consequent lack of time to negotiate a binding legal instrument, it is submitted that as an interim measure soft law guidelines should be developed in relation to space tourism in order to provide a framework for the eventual creation of a consolidated and binding legal instrument on all aspects relating to the use and exploration of outer space. In this regard, the United Nations Convention on the Law of the Sea could serve as a valuable example. 235 In order to mediate the fragmented nature of the current outer space legal regime, states should be encouraged to formulate their national (and regional) space legislation in accordance with these soft law guidelines.
In the words of Colin B Picker, 236 "technology operates as an invisible hand on international law, guiding and shaping its development." However, it is clear that the current international outer space law regime is significantly underdeveloped in relation to outer space technology. It is therefore imperative that an international dialogue on space tourism is facilitated under the auspices of the UNCOPUOS to address the legal challenges as illuminated in this contribution.