A Legal Analysis of the Loopholes in the OST with reference to Space Tourism
By: Harishta Tyagi, SVKM’s Pravin Gandhi College of Law
Edited by The Editorial Board of SAIL and Nupur Burman
With the numerous advances by private capitalist ventures, outer space is no longer the exclusive realm of government agencies. This has resulted in the genesis of a new “space race” where billionaires are competing amongst each other as well as against the governments of the world. The ultimate motive here is the monopolisation of profits rather than an assertion of supremacy or dominance. This advent of commercialisation of space has expanded outer space activities with the introduction of an economically lucrative arena- Space tourism. Space tourism essentially refers to private space flight activities offering customers to experience space travel, directly or indirectly. Many private players are endeavouring to take up the task of making holidays in space possible and viable. SpaceX, Axiom, Virgin Galactic, and Blue Origin have been the most successful so far. It can be argued that outer space is now more congested, competitive, and contested than ever before.
Such rapid advancements coupled with technological backing are not without any consequences. This ambitious approach has been a contributing factor in resource exploitation and orbital pollution caused by the debris of the ever-increasing defunct space vehicles. To exemplify the graveness of the situation, we can consider the KesslerSyndrome thesis, according to which, space debris would pose more of a threat to security than space military activities in the near future. Some have also voiced their concerns about security tensions and environmental contamination. This raises the need to hold the private companies accountable and regulate their activities. Unfortunately, the current laws are functionally insufficient and imbued with loopholes.
The Outer Space Treaty: Inconsistencies and Loopholes
Outer Space Treaty, enforced in 1967, is one of the most comprehensive, and eventually the backbone of the international space laws. The treaty has 111 parties and 23 signatories. By laying down guidelines for the regulation of the behaviour of nations in space, it has ensured peaceful and safe space exploration. However, it is outdated with regard to the current private colonization of space. Not only does it not have any explicit proscription against the jeopardising commercial acts, but even the consideration of such acts remains largely unmentioned. This is mainly because when the treaty was negotiated, this kind of private progress was not anticipated.
Provisions of the OST have been plagued by vagueness and ambiguity. Since the original treaty was written, definitions of “space weapon,” “defensive” or “peaceful” use of outer space, and “astronaut” have all changed over time. Addressing this ambiguity is essential because the existing body of international treaties defines legal obligations owed to people based on their status as “astronauts” or “personnel”. States Parties are required by Article V to “render . . . [astronauts] all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas.” According to this clause, parties owe a duty of care to “astronauts.” Since the treaty does not specifically define the term “astronaut,” it is obscure whether it is correct to interpret it to include space tourists. Furthermore, in Article VIII of the Outer Space Treaty, which deals with jurisdiction and control over space objects, the term “personnel” is used rather than “astronaut.” If space tourists do not meet the criteria of “astronauts” or “personnel”, rescuers are only obligated to save the crew and pilots, not the passengers. This exposes space tourists to distinctive vulnerabilities when embarking on an already perilous journey. These dangers are heightened by the fact that space tourists will acquire only rudimentary training and will thus be less qualified to cope with emergencies on spaceflights than the government-sponsored astronauts who have gone before them.
In order to encourage investment, a few states, including Luxembourg and the United States, have enacted laws that profess to provide their own interpretation of property rights over space resources. Others, however, contend that this action violates the principle that space belongs to humanity. On this point of ‘appropriation’, before the 1967 Space Treaty, the moon and celestial bodies were res nullius and thus subject to appropriation under customary international law; outer space, stricto sensu, was res extra commercium, and thus the principles of non-appropriation and free access were valid both before and after the Treaty came into force on December 10, 1967. However, The potential of high profits from space resource extraction will almost certainly compel private companies and individuals to put pressure on states to recognise and protect private in situ property rights, which is not strictly forbidden by Article II of the Outer Space Treaty. As evidenced by increasing government openness to private commercial space activities, states are likely to yield to pressure and permit private companies or private entities under State control to exercise rights of ownership. One example is the issue of liability for potential space-related damages. The issue of responsibility is addressed in Article VI of the Outer Space Treaty. As per its provisions, bound states are liable not only for governmental but also non-governmental activities. This liability has been further defined in the 1972 Liability Convention. Complete state liability, on the other hand, is not suited to the private space economy. Conversely, if private companies can simply pass off risks, it could cause significant harm to the respective states. A more feasible alternative would be to alter the current risk distribution. As a result, national regulations will become increasingly important in the future. While some countries, such as Russia and the United Kingdom, have already transferred liability to operating companies, others, such as China and Germany, have not.
These gaps in such a cardinal legislation call for its amendment, if not a complete repeal. The issue at hand is too important to be neglected. There is a need for an efficient and transparent global governance system for space. Space laws must be reflective and accommodative of the constantly evolving nature of the space industry, and must address its potential threats. Nevertheless, the current scenario where these companies conveniently exploit the domestic laws due to inconsistencies in the international ones is unacceptable. The UN would certainly play a major role in turning over the situation but change can’t be brought without mutual understanding and cooperation of the major global powers to prevent space from becoming an unregulated commercial hub. Such considerations and commitments are needed from the side of the companies too. Public-private model is one way to go about it. What is clear is that a sound legal environment is needed also for further growth of the private space sector and for the maintenance of not just outer space, but also global peace.