In September, two civilians took part in the world’s first commercial spacewalk. The trip – which featured four crew in total – was funded by American entrepreneur Jared Isaacman, who became the first non-professional astronaut to walk in space. With the voyage seen as helping to usher in a new era of stellar tourism, commentators have called for greater regulation to ensure space and its visitors are protected.

‘The commodification of space in terms of the private sector, in terms of private tourism, is […] something that we don’t know the consequences of,’ says Lauren Banham, Program Director of Legal Pact for the Future, which works to make environmental and human rights enforceable in courts globally. 

Space has so far been governed by international treaties, established in the 1960s and designed to mitigate against conflict as countries such as Russia and the US began exploring space. ‘It was more about keeping space from becoming a battlefield,’ says Souichirou Kozuka, Member of the IBA Space Law Committee’s Advisory Board and a professor of law at Gakushuin University, Tokyo. ‘[The treaties] regulate only the interstate relationship, so are not directly applicable to private activities.’ 

A study from Grand View Research suggests that the global space tourism market will be worth over $10bn by 2030, presenting a revenue opportunity for those companies engaged in this area and their native countries. Blount adds that new legislation is being created in support of this.

The US, for example, passed the Commercial Space Launch Competitiveness Act in 2015, which stipulates safety requirements around space flights and covers the potential liability involved. ‘The way that [the Act] was built was to help the industry, not necessarily the spaceflight participant,’ says Blount. The legislation says that, if an individual travels to space in this way, there’s danger involved and in the worst-case scenario, the company won’t be liable for a fatality.  

Luxembourg has also created a legal framework for space, which encompasses two laws – one on the exploitation and use of space resources and another, general law on space ‘activities’. Generic in its application, the framework could be used to encompass commercial space activities, says Błażej Gładysz-Lehmann, who works with space operators in his role as counsel in the Corporate Law, Mergers and Acquisitions Practice of Arendt & Medernach in Luxembourg. ‘Obviously there is no perfect legislation, but the Luxembourg legislation is very well suited for space activities because, on one hand, it provides for a regulatory, authorisation and supervision framework. On the other hand, it doesn’t go too much into the details, allowing development of various space activities.’

But instead of being focused on profit, frameworks should, Kozuka believes, emphasise the safety of individuals partaking in space tourism and the sustainability and protection of the space environment. 

This is a significant issue, says Banham. Her view is that, as it stands, the applicable law doesn’t do enough to protect the space environment. Her organisation advocates for the implementation of an ‘ecocide law’ to remedy this – to make it illegal to perform an act with the knowledge that it could damage the environment. Applying this notion beyond the Earth’s environment to space could provide extra protection, Banham says.

‘Space debris is a big problem,’ highlights Blount. Over 35,000 tracked objects are already in space, according to the UN University Institute for Environment and Human Security, with only around 25 per cent of these still functioning. The technology to remove debris isn’t yet available, however. ‘If space is polluted and unusable, then an industry can’t exist,’ says Blount.

Banham believes that so far, there’s been a lack of interest in implementing conventions that would preserve space’s delicate ecosystems. For example, the multilateral Moon Agreement – which prohibits states from threatening hostile action on the Moon and other celestial bodies and was adopted by the UN General Assembly in 1979 – has only been signed or ratified by 22 countries. 

Some private companies are taking action in this area, however, by setting out how their environmental, social and governance (ESG) policies help to mitigate potential risks connected to spaceflight, or by joining the European Space Agency’s Zero Debris Charter, which boasts 110 signatories – including both private entities and countries – so far.

Blount predicts a focus on commercial disputes as companies navigate how to interact with each other as they compete in the space flight business. With that in mind, lawyers increasingly need to be able to understand the impact of technology on the law, he says.

For Gładysz-Lehmann, there should also be a sense of global harmonisation as each country establishes its own laws for the private sector. ‘This is an extremely international business,’ he says. ‘There are very few space operators that are really working within [only] one country and jurisdiction. What we definitely need to facilitate the development of the space industry would be harmonisation of requirements so that we have, more or less, the same requirements independently [of] whether your activity takes place in Europe, in the US, etc,’ he says. It would be important for commercial lawyers to become up-to-speed with these requirements as the commercial space flight sector continues to develop.
 

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