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Abstract

Broadly speaking, "space tourism" denotes any commercial activity that offers customers direct or indirect experience with space travel.1 Such activities have many different designs, ranging from long-term stays in orbital facilities to short-term orbital or suborbital flights, and even parabolic flights in an aircraft exposing passengers to short periods of weightlessness.2 Flights into outer space by private individuals are finding increased attention in the public. While there are not yet chartered flights, occasional orbital flights with "space tourists" have taken place. So far, five "space tourists" have been taken to the International Space Station ("ISS"), all of whom were charged large sums of money for the experience. The fifth "tourist," Charles Simonyi, recently flew to the ISS in April 2007.3 However, interest seems to be shifting to providing "cheaper flights" which are not aimed at the ISS but remain "suborbital" so that they are affordable for a somewhat broader public. Yet, even with such short-term flights, a space tourist has different options. One option, modelled after SpaceShipOne,4 uses an aircraft to lift a space cabin to a certain altitude. The cabin then separates from the aircraft and continues its suborbital flight to higher altitudes. There are two possibilities for return when this method is used: (a) the space vehicle returns to where it started from, or (b) it returns to a different location on Earth ("space transportation"). A second option, which is modelled on the "Delta Clipper Experimental," 5 uses a rocket with a space capsule on top which is launched, and then the capsule separates from the rocket at a certain altitude. As a result, the passengers of the space capsule are exposed to Zero-G gravity and both vehicles return to Earth independent from each other. It is expected that Blue Origin's "New Shepard" will use this method.6 "Space tourism" activities may thus include the use of an aircraft and/or spacecraft. Depending on where such activities actually take place, either air law or space law, or even both, may apply. The two legal regimes have historically evolved independently from each other and accordingly show some major differences. A variety of legal issues regarding the conduct of space tourism activities arise as a result. This Article focuses on some of the most problematic issues of relevance such as the delimitation of airspace and outer space, authorization to conduct space tourism, registration of the aircraft or spacecraft, liability to passengers and third parties, and the status of passengers. Regarding air law, there are comprehensive regulations for passenger transportation in both international and national law. International space law, however, does not yet contain detailed regulations of passenger transport. In terms of national space laws, the United States was the first country to include specific reference to "space flight participants" in its national space law. Even if these U.S. regulatory activities are only of national character, however, they may indicate a tendency toward the regulation of space tourism activities on both the international and the national level. In this respect, it is interesting to note that on January 26, 2007, the Swedish government announced an agreement with Virgin Galactic concerning mid-summer and mid-winter flights of Virgin's "SpaceShipTwo" from Sweden's spaceport in Kiruna.7 Their Memorandum of Understanding calls for Swedish authorities to prepare a regulatory regime modelled on that of the U.S. Federal Aviation Administration ("FAA").8 Accordingly, a closer look at the respective recent U.S. regulatory initiatives seems most interesting.9 When examining these legal aspects, the question naturally arises whether existing laws are sufficient for future space tourism activities, or whether new international legal instruments or an amendment to an existing law or legal structure will become necessary.

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