If commercial space carriers鈥� shuttling of supplies to the ISS, as with Dragon, evolves into the ferrying of astronauts and other human passengers into space, then a new set of legal issues will emerge, said Frans von der Dunk, professor at the University of Nebraska-Lincoln College of Law and an international leader in the field of space law.
鈥淔or a commercial vendor, bringing cargo to the International Space Station is relatively simple if it鈥檚 correctly arranged and includes the involvement of the partners in the ISS venture, if appropriate,鈥� von der Dunk said. 鈥淗owever, the next step already looms.鈥�
That phase involves human cargo, he said. In our post-Space Shuttle world, only Russia currently has the capability to bring humans to the station and back, which likely will bring rapid rise to commercial space companies with plans to transport astronauts to the ISS.
Von der Dunk said that practice would raise a whole new set of legal concerns, including the legal status of the craft, crew and passengers; issues of third-party liability; and the limit of validity in a courtroom of operators鈥� 鈥渋nformed consent鈥� protection.
Currently under FAA regulations, commercial space operators are allowed to operate without properly certified craft and as long as their passengers fly under a simple 鈥渋nformed consent鈥� regime that basically waives liability towards such passengers, he said. 鈥淏ut if NASA is going to let SpaceX fly its astronauts, is it going to accept such informed consent?鈥� von der Dunk asked. 鈥淭hat鈥檚 doubtful.鈥�
As long as 鈥渋nformed consent鈥� is not defined in greater detail, he said, it will raise legal concerns regarding technology transfer under International Traffic in Arms Regulations (ITARs), which control the export and import of defense-related articles and services. This could be relevant if, for example, a non-U.S. passenger is instructed to comply with informed consent on the technological safety features and history of the commercial craft.
Questions also persist about how the current 鈥渋nformed consent鈥� legal framework would hold up in court against actions such as gross negligence or willful misconduct, he said. Von der Dunk said determining, in much greater detail, what 鈥渋nformed consent鈥� means in space cases will be essential to answering many of the issues.
Finally, von der Dunk called for substantial international consultations on the activity, owing to the enterprises around the globe that are readying commercial space initiatives. He noted that Virgin Galactic has plans to launch similar flights from variousother places on Earth such as Sweden, Space Adventures from Singapore and the United Arab Emirates, and XCOR is teaming up with SXC to fly from Cura莽ao, he said.
鈥淲hile moving from cargo to manned ISS services may seem a small step for business, it requires a major leap for the space lawyers,鈥� von der Dunk said.
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