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«LEGAL AND ETHICAL FRAMEWORK FOR ASTRONAUTS IN SPACE SOJOURNS Proceedings 29 October 2004 House of UNESCO 125, avenue de Suffren, Paris 7e Legal and ...»

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In respect of liability towards third parties, the states concerned -essentially those states which have a launching capacity- usually require that a launching authority take a minimum insurance to cover amounts that such Launching State or launching authority may legally be required to pay as a compensation for damage suffered by third parties arising out of launch operations as well as, in

Legal and ethical framework for astronauts in space sojourns

some cases, in-orbit operations. The minimum amount of insurance required varies from one country to the other. The insurance coverage available on the specialised insurance market ranges from 100 to 500m$. Practically, this means that the first 100-500m$ worth of damage will be covered by insurance and any compensation to be paid to a third party in excess of this amount is covered by the Launching State.

In respect of coverage of astronauts themselves, the issue is twofold:

- Bodily injury suffered by astronauts,

- Damage/bodily injury caused by astronauts. This part is ruled as described above, i.e. damage to other participants of the space mission by the ISS IGA and damage to third parties by the 1972 Liability Convention.

Bodily injury suffered by astronauts can be and is frequently covered by insurance. What ISB have seen or placed up to now, essentially covers those injuries that the astronaut may suffer as a result of the space mission. The coverage usually starts from the moment the astronaut enters the space vessels in the perspective the launch and runs until the time when the astronaut has left the vessel, either because of launch abort or failure, or after return on earth when the mission is fulfilled. The coverage provides compensation for injury, loss of limb, loss of sight, permanent partial or total disablement, all of which is nothing pleasant to mention in the presence of our distinguished astronauts present here today, but which form a portion of the compensation they would receive in case of an accident.

One could say that, as of today, with man in space being essentially a fact of governmental or intergovernmental bodies, the allocation of liabilities as framed by the existing international instruments is rather well established.

But today, the increasing number of private attempts to fly man to space – and the recent remarkable success of one of them- opens significant perspectives unsuspected only 10 years ago.

Until the first flight of a tourist in space, any manned space flight was a matter for government organizations, and it has remained so until now, except for two notable exceptions: the flights of MM. Tito and Shuttleworth. With private entities becoming successful, man in space using nongovernmental facilities and privately developed vessels is becoming much more than a remote possibility, it is a highly probable very close future.

The question is easily raised: is space tourism going to totally turn the issue of man in space upside down? Insofar as liability and insurance is concerned, there is no doubt that space tourism will have an impact.

Whether this leads to a major change in terms of liabilities and insurance is impossible to predict, but one thing is certain: a similar change from public to private has a precedent in the history of space. Reference here is made to launch services: only a half-century ago -in the early days of space- launching any unmanned satellite was a matter for governmental agencies. Today, it has now become a business of its own with privately capitalised ventures. This has given birth to all sorts of connected space businesses, one of which being space insurance. It is very likely that if space tourism develops as a similar business there will be an similar evolution for manned flights.

In respect of liabilities and insurance, the advent of space tourism raises at least the following

questions:

–  –  –

- Are there new risks that space tourists run that professional astronauts didn’t, or do tourists endanger third parties more than professional astronauts?

- In what legal frame are the issues of third party liability and liability towards other participants in the space mission going to be handled?

- Can the risk taken by space tourists be covered? And by whom: states or private insurance?

Yes, there are new risks for tourists that professional astronauts didn’t run. Not risk of bodily injury, but risk of financial losses. It most likely however that such risks will be coverable by insurance and actually, some have already been.

For previous space tourists, coverage providing compensations for bodily injury or death resulting from the mission have already been placed and implemented, that is nothing any different from what is done for professional astronauts.

Insurances can indeed be found which are very specific to tourists and in particular to cover events which lead to the cancellation of the mission. After all, a space tourist is merely a customer who pays a significant amount of money for a travel service and, as such, he is exposed to losses of his expenses engaged in the venture. So there can be insurance for various cases which cover expenses committed to the space journey, e.g. if the candidate is disqualified by the medical committee (whether he breaks a leg or is otherwise declared unfit); or the candidate dies before the mission.





And there’s more interesting: Political risk. Insurance could cover the case where for some political reason the licence to fly is denied after the candidate has committed to payment of the mission. Whether space tourism emerges as a business or not, space remains a strategic area for all space nations: there is no reason to think that tourism would not be subject to political risk as are other areas in space business.

Those are all issues, which relate to the risk run by the space tourist, essentially of a financial nature, in addition to the more traditional risk of bodily injury or death.

The other issue is that of risk run by others, due to space tourism and in particular the legal frame in which such risk will be handled.

Regarding the liability towards participants of a same space mission toward the International Space Station, we understand that “Visiting Crews” are not part of the ISS IGA. The cross waiver of liability arising out of the IGA covers “Expeditions crew”, i.e. those professional astronauts who remain for long periods of time on board the ISS, and who are the very purpose of the ISS. What is the legal statute of a tourist? What is the legal statute of a tourist visiting the ISS and what is the legal statute of a space tourist not visiting the ISS? What legal instruments rule the allocations of liabilities? The ISS IGA may have to be revisited for tourist missions to the ISS. Moreover, the liability regime for tourists not involved at all in any ISS missions may have to be invented. Does the 1967 Treaty On Exploration And Use Of Outer Space Including The Moon And Other Celestial Bodies apply to non-governmental, private manned space ventures?

Does the 1968 Agreement On Rescue of Astronauts also apply? And how? The 1968 Agreement on Rescue of Astronauts provides that “expenses incurred in fulfilling obligations to recover and return a space object shall be borne by the Launching State”: how are Launching States going to legally implement that obligation when dealing with private space tourism venture? And how much are they willing to do so? As we mentioned before, there are precedents in respect of this

–  –  –

transfer from governmental to private business, so the way is pretty much paved. But there is certainly room for detailed legal improvement.

Regarding Third Party Liability, i.e. possible damages caused by tourist astronauts to parties not involved in any way in the mission, the 1972 Convention should apply but that will require that insurance requirements be agreed between the Launching State and the private venture under its authority. The next question will be: will the insurance market be able to expand so as to cover liabilities arising out of space tourism ?

Conclusion Currently the astronaut liability regime is pretty well established and so is the insurance that goes with it. It is a fact, a happy one, that there is little experience of having to claim under such insurance policies.

With the current regimes in place, whether a damage is caused by an astronaut, or as the mere result of an instrument failure isn’t the issue.

With space tourism becoming the next frontier, there is most likely to be some work ahead for lawyers specialised in space law and space liability in order to make the current frame operational for this challenge that is coming up. We cannot predict what the governments policies will be in that respect, but we can guarantee that there is enough creativity in the space insurance market to provide insurance coverage where insurance is needed. The current space insurance market is a rather recent one, as compared to marine or automobile or even aviation insurance markets. It really emerged in the seventies and expanded in the eighties. But it is coming to some level of maturity. For now, it essentially addresses the financial losses of investors in space businesses such as satellite telephony or direct television broadcasting and that represents the core of this business. Nonetheless is has always been receptive to non-telecomm applications: earth observation since long represents a notable part of this business and this is growing in proportion to the earth observation’s share in space applications. The insurance markets are already open to manned space in its current status. There is no doubt that creativity will enable proper welcoming of insurance for tourist astronauts.

–  –  –

Here we discuss the ethical issues raised by the consideration of liability and insurance for astronauts in space sojourns. The very length of the theme shows that the scope is limited. In particular, we shall consider only situations involving astronauts, that is, a very tiny part of space activities today. The following situations seem to be relevant: the International Space Station, space tourism, projects to colonize celestial bodies, long space travel to Mars and beyond… Allow me to try and feed the debate on these issues in two ways: firstly, by trying to imagine the consequences of setting up an insurance system for manned space flights; secondly, by attempting to show that the issue of the status of outer space, its use and its exploration, are reflected in the issue of the insurance and liability system.

Imagining an insurance system: some considerations from economic analysis As Guillaume de Dinechin just reminded us, relationships between the partners of the International Space Station are currently ruled by a non-liability agreement, regarding damage caused by partners to other partners in the Station or to the Station itself. Partners in the Station are committed not to claim reparation from each other whatever happens. Let us try now to figure out what would happen if a system of insurance and liability were put in place.

One must first note that this might have radical consequences for the Station itself, and maybe for other space programmes. The non-liability agreement is indeed a condition sine qua non of the very existence of the programme. For no partner would be willing to take part in the project unless it had the financial means to cover the total destruction of the station, would the partner have to bear responsibility for this event. If there were no agreement, none of the partners could accept taking part in the project: the risk would simply be too high. From this point of view, the setting up of a liability and insurance system would be lethal to this programme, and probably to any similar programme.

At the same time, this situation reflects the fact that the Station does not in itself produce direct benefits that would outweigh the risks. In other words, from an economic analysis point of view,

–  –  –

the Station is to be considered as a public good, as are for instance schools, armies and highways.

The very existence of the non-liability agreement proves that the partners in the Station consider that the Station produces an indirect benefit - certainly a public benefit and maybe even a benefit for mankind as a whole. But we still need to know what kind of benefit we are talking about. It is indeed still unclear whether the scientific spin-off of the station justifies the investment. It is arguable that other justifications should also be taken into account: the spirit of Icarus - of which Jacques Arnould spoke this morning -; the geopolitical demand to maintain presence in outer space; or the demonstration and stimulation of industrial and technological capacities of the partners. I will talk again later about this characterization of the station as a public good as can be seen in the area of damages, liability and insurance.

Let us now imagine that, for a space activity involving astronauts, the necessity for a non-liability agreement is lifted. This could originate from lower costs, a rise in the financial capacity of the partners, a diminution of the risk that would allow the development of an insurance market, or the generation of new sources of income for instance by space tourism. In any case, if the difficulties pertaining to the Space Station are overcome, it means that the cost/benefit ratio of the enterprise has improved. In other words, if the condition of non-liability can be lifted, it means that the actors still have an interest in participating in the activity, even though they are not protected by the agreement. Hence, we can imagine that, in this situation, manned space activities would develop. Once again, we are not trying here to be more specific and state whether these activities fall under the category of space tourism, exploitation of lunar natural resources, or military or communication applications. But one can imagine, I repeat, that from the moment that the cost/benefit ratio of manned space activities improves, more activities will be developed.

In such conditions, it also seems logical to imagine that insurance activities would develop at the same time, in particular as regards injury to astronauts and damage caused to participants by other participants. Here I would like to raise another difficulty that the economic analysis shows.



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