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The UK Perspective on Informed Consent in Commercial Space Travel

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The UK Perspective on Informed Consent in Commercial Space Travel The UK Perspective on Informed Consent in Commercial Space Travel * Alex SIMMONDS LLB The Space Industry Act 2018 imposes requirements that operators of spaceflight activities obtain informed consent from individuals taking part in spaceflight activities. The Act contains no further guidance on this matter other than an indication that regulations will determine the ultimate scope of this provision. Is the definition of ‘informed consent’ within the spaceflight context to be synonymous with ‘informed consent’ in the English Medical Law context? If so, these contrasting regimes are likely to be incompatible in terms of their goal and purpose. Moreover, the United States regime, if roughly copied or imported wholesale would likewise be at odds with the position in English Medical Law. Furthermore, the present law on warnings in the context of Occupiers Liability and the rules relating to participation in dangerous sporting activities may serve to negate consent in any case, regardless of how well-intentioned or balanced the ultimate regime may prove to be. The logical position for the UK regulator (or legislator) would be to create a fresh regime of informed consent for commercial spaceflight purposes which falls categorically outside the medical law context. Keywords: Law, Space, Spaceflight, Tourism, Consent 1 INTRODUCTION March 15 2018 marked the launch of the UK Space Industry Act 2018. The UK could ‘reach for the stars … by enabling commercial markets for small-satellite launch and sub-orbital flight from UK spaceports’.1 There are already concrete plans for such innovation. ‘Spacehub Sutherland’ in Scotland could be among the UK’s first spaceports having received funding from the Highlands and Islands Enterprise (HIE) and the UK Space Agency2 with the likely involvement of Lockheed Martin and Orbex3 The UK’s competitive edge in this field should also not be taken lightly. A unique selling point for Northern Scotland is that it * Lecturer in Law, Coventry University, Barrister of the Inner Temple. [email protected]. 1 HC Deb 15 Jan. 2018, Vol 634, Column 651. 2 The Highlands and Islands Enterprise, UK Space Port, Spacehub Sutherland, https://www.hie.co.uk/ our-region/regional-projects/space-hub-sutherland/ (accessed 14 July 2020). 3 Press release from UK Government, Lockheed Martin and Orbex to launch UK into new space agehttps:// www.gov.uk/government/news/lockheed-martin-and-orbex-to-launch-uk-into-new-space- age (accessed 14 July 2020). Simmonds LLB, Alex. ‘The UK Perspective on Informed Consent in Commercial Space Travel’. Air & Space Law 45, no. 4&5 (2020): 367–390. © 2020 Kluwer Law International BV, The Netherlands 368 AIR AND SPACE LAW reportedly offers access to ‘polar and sun-synchronous orbits’4 which is potentially promising for the launch of Earth Orbiting satellites.5 Moreover, within Europe only France presently has access to its own launch facilities with Portugal harbour- ing ambitions to establish a space-port in the Azores following the establishment of it’s own space program.6 There are also recent plans for a spaceport to be established in Cornwall by 2021.7 Spanning 72 sections and twelve schedules, the Space Industry Act 20188 represents a giant leap for the UK into the unknown in matters legal. Section 34, ‘Liability of operator for injury or damage etc’ imposes a regime of strict liability for operators of space activities in respect of damages recoverable as a result of injury or damage caused by spaceflight activities (including ‘any person in such a craft’) but specifically excludes ‘injury or damage sustained by an individual of a prescribed description taking part in or otherwise engaged in connection with, the spaceflight activities’. It is very likely that ‘Space Tourists’ will come within this definition. Section 17 – entitled ‘informed consent’, reads: (1) The holder of an operator licence (the ‘licensee’) must not allow an individual to take part, in a prescribed role or capacity, in spaceflight activities carried out by the licensee unless the individual— (a) has signified his or her consent to accept the risks involved in those activities, and (b) fulfils prescribed criteria with respect to age and mental capacity. And, further, that: (2) Consent to accept the risks involved in spaceflight activities must be signified by signing a document (a ‘consent form’) that gives details of the risk assessment carried out for those activities under section 9. (3) Regulations may make— (a) provision about the form and content of consent forms; (b) provision about information to be given to indivi- duals before they sign consent forms; (c) provision imposing evidential and procedural requirements with regard to the signification of consent. Drawing on what has been labelled the ‘North American doctrine’9 of Informed Consent, this amounts to a provision that a waiver of sorts is to be signed by any 4 Lesley Jane Smith & Ruairidh J. M. Leishman, Up, up and Away: An Update on the UK’s Latest Plans for Space Activities, 44(1) Air & Space L. 1–26 (2019). 5 Ibid.,at5. 6 Ibid., at 10, see also Magda Cocco & Helena Correia Mendonça, The Portuguese Space Act: An Innovative Framework for Space Activities, 45(2) Air & Space L. 157–200 (2020). 7 Website of Spaceport Cornwall, https://spaceportcornwall.com (accessed 6 Nov. 2019). 8 The Space Industry Act 2018 c. 5. 9 Montgomery v. Lanarkshire Health Board (Scotland) [2015] UKSC 11, para. 50. CONSENT IN COMMERCIAL SPACE TRAVEL 369 potential space tourist prior to undertaking a flight for pleasure. This article seeks to examine the parameters of ‘informed consent’ in addition to rules on warnings, disclaimers and notices as they arise in English Law and envisage how they may apply to such individuals in these circumstances. 1.1 INTERNATIONAL SPACE LAW The regulation of human spaceflight was considered at least as far back as 1932 by Vladimir Mandl, who surmized that existing legal frameworks built around aviation would not be suitable for any trans-atmospheric travel involving the use of rocket technology.10 Following the launch of Sputnik 1 in 1957, UN General Assembly Resolution 1348 of 1958 was called into existence on the ‘Question of the Peaceful Use of Outer space’.11 This was followed by Resolution 1472 in December 1959, this time on ‘International co-operation inthePeacefulusesofOuterSpace’12 which gave birth to the ‘Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space’.13 These developments ultimately led to the 1967 Outer Space Treaty.14 Then came the 1968 ‘Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space’15 (The ‘Rescue Agreement’), which provided for emergency assistance to be granted by states to stricken astronauts . There was also a requirement placed on states to recover and return any space object – or, indeed, any detached parts of such a space object – belonging to another state having fallen within their territory. Following this, the 1972 ‘Convention on International Liability for Damage Caused by Space Objects’16 (the ‘Liability Convention’) prescribed that ‘… A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight’.17 Then came the 1975 Convention on ‘Registration of Objects Launched into Outer Space’18 requiring all states party to establish a system of registration for all objects launched or procured for launch by that state. The last – and, in terms 10 Peter Jankowitsch, The Background and History of Space Law,inHandbook of Space Law 1 (Frans Von Der Dunk & Fabio Tronchetti eds, Edward Elgar 2015). 11 UNGA Res 1348 (XIII) (13 Dec. 1958). 12 UNGA Res 1472 (XIV) (12 Dec. 1959). 13 UNGA Res 1962 (XVIII) (13 Dec. 1963). 14 Treaty on Principles Governing the Activities of States in Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (adopted 27 Jan. 1967, entered into force 10 Oct. 1967) 610 UNTS 205 (Outer Space Treaty). 15 UNGA Res 2345 (XXII) (22 Apr. 1968). 16 UNGA Res 2777 (XXVI) (29 Mar. 1972). 17 Ibid., Art. 2. 18 UNGA Res 3235 (XXIX) (14 Jan. 1975). 370 AIR AND SPACE LAW of its overall impact and prominence, least (with only eleven signatories to date, not including the UK)19 – Treaty came in 1979 – the ‘Agreement Governing the Activities of States on the Moon and Other Celestial Bodies’.20 In addition to the 1963 Declaration,21 many other principles have been adopted by the UN General Assembly, such as the ‘Broadcasting Principles,’22 the ‘Remote Sensing Principles,’23 the ‘Nuclear Power Sources Principles’24 and the ‘Benefits Declaration’.25 Article VII Outer Space Treaty provides that ‘each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space’. Article II of the Liability Convention states that ‘a launching state shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight’. Under Article I(ii) a ‘launching state’ is classified as ‘A state from whose territory or facility a space object is launched’. On one reading this makes states liable for launches and activities undertaken by commercial operators acting under license. However, Article VII excludes liability for damage caused by space objects of a launching state to nationals of the launching state and foreign nationals in the vicinity of the launch or landing of the space object and/or in connection with its operation. There is, therefore, a gaping void in the fabric of international space law pertaining to the liability of space operators in respect of damage and/or injury being caused to nationals of the launching state.
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