Space lawyer: Before humans step into commercial spaceflight, laws need giant leap

If commercial space carriers' 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.

"For a commercial vendor, bringing cargo to the International Space Station is relatively simple if it's correctly arranged and includes the involvement of the partners in the ISS venture, if appropriate," von der Dunk said. "However, the next step already looms."

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' "informed consent" 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 "informed consent" regime that basically waives liability towards such passengers, he said. "But if NASA is going to let SpaceX fly its astronauts, is it going to accept such informed consent?" von der Dunk asked. "That's doubtful."

As long as "informed consent" 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 "informed consent" 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 "informed consent" 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 Curaçao, he said.

"While moving from cargo to manned ISS services may seem a small step for business, it requires a major leap for the space lawyers," von der Dunk said.