Leiden Law Blog

Human spaceflight: from Yuri, to André, to ‘Tom, Dick & Harry’?

Human spaceflight: from Yuri, to André, to ‘Tom, Dick & Harry’?

On 12 April we will celebrate the 51st anniversary of Yuri Gagarin’s flight into space.  On that date in 1961, at just 27 years old, Gagarin became the first human to leave our planet, making one full orbit around the Earth in his Vostok 1. In his own words: “Circling the Earth in my orbital spaceship I marveled at the beauty of our planet. People of the world, let us safeguard and enhance this beauty - not destroy it”.

On 21 December 2011, ESA astronaut André Kuipers from the Netherlands joined the ranks of some 500 individuals who travelled to space. On his second trip, he went to live and work for more than six months along with five other astronauts on board the International Space Station (ISS), which has been permanently inhabited for more than ten years at about 400 km altitude.

From 2013 or 2014 onwards, well-to-do individuals with 100,000-200,000 USD to spare will be able to book a flight lasting a couple of hours to experience that life-changing feeling of weightlessness for a few minutes and observe the earth from outer space. Richard Branson’s Virgin Galactic is developing a sub-orbital vehicle (i.e. not attaining orbital velocity but ‘merely’ hopping up and down), and the Dutch company Space Expedition Curacao (SXC) plans to fly another suborbital vehicle, the X-Cor Lynx, from Curacao for similar ventures. It counts KLM among its partners, and launched an international campaign with a newspaper, Metro Race for Space, which offers a free flight to one of its readers.

Human spaceflight started 51 years ago mainly as a military undertaking of the two Super-Powers and evolved over time into a civil state-operated space program. Today it is fast ‘democratizing’ with the advent of private human spaceflight. This poses a number of legal issues that need to be addressed, such as:

  • Can the initial and unique state-based liability system for space activities cope with the exponential increase of spaceflights by private citizens, or do we need an operator-based second and third party liability system?
  • Do these activities, taking place in that grey zone between ‘air’ and ‘space’, put the question of the definition and delimitation of air space and outer space back on the table, after having been discussed in vain for more than 40 years at the UN?
  • Should private space adventurers be called ‘astronauts’, a term used in the UN Treaties regulating the use of outer space and granting certain rights and obligations to these ‘envoys of mankind’, or are they ‘simply’ high-risk adventure tourists?
  • Is a ‘light-touch’ regulatory approach as adopted by the USA necessary to allow this new industry to ‘take off’, or is the Lindbergh mentality of the early days of aviation no longer feasible today, and is stricter regulation (including certification, licensing, etc.) required, as Europe tends to advocate?

Whatever the outcome of these questions, on 13 April the International Institute of Air and Space Law will celebrate Yuri’s adventure in a smashing Yuri’s night party at LVC in Leiden!

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