It has been 65 years since Yuri Gagarin became the first human to travel into space. By April 2026, 781 people have done so. As commercial space travel moves closer to reality, partner Peter Neenan, associate Olivia Shaw, and senior paralegal Kenza Sieber consider the risks for civilian passengers and the legal framework that may apply if a passenger is injured or killed during a spaceflight.
What is space tourism?
Air travel was once rare and exceptional. It is now ordinary, relatively affordable, and heavily regulated. Space travel may be at an earlier stage of the same journey. Private companies are increasingly seeking to offer civilians the opportunity to experience weightlessness, see Earth from above and, in future, stay in orbit.
‘Space tourism’ generally refers to commercial activities that allow private individuals to travel to, or experience, outer space for recreational or non-professional purposes. Those individuals are commonly described as space tourists or spaceflight participants. The legal difficulty is that these passengers are not trained astronauts but consumers taking part in a high-risk activity. That makes it important to understand what legal rights may exist if something goes wrong.
Space tourism can take different forms. These include sub-orbital flights, orbital flights, point-to-point rocket transport through space, and longer orbital stays, for example in a space hotel or on a space station. The legal analysis may differ depending on the type of flight, the vehicle used, the altitude reached, the place of launch and landing, and whether the journey is properly characterised as air carriage, spaceflight, or a mixture of both.
A central issue is where airspace ends and outer space begins. There is no universally agreed international boundary. The most commonly cited reference point is the Kármán line, around 100 km above sea level, although the area between approximately 80 km and 110 km remains legally controversial. Under a ‘spatialist’ approach, the applicable law depends on where the vehicle is: below the boundary, air law applies; above it, space law applies. Australia has adopted a broadly spatialist approach by using 100 km as the boundary for domestic space legislation.
A different view is the ‘functionalist’ approach. Under that approach, the nature and purpose of the activity matter more than the vehicle’s precise location. The United States has traditionally supported this approach, arguing that a fixed legal boundary is unnecessary unless a practical problem requires one.
Modern space tourism makes this distinction difficult. Some vehicles combine aviation and spaceflight features. Virgin Galactic’s SpaceShipTwo system, for example, uses a carrier aircraft before the spacecraft separates and continues towards space. In such hybrid operations, there may be arguments about whether air law, space law, or both should apply at different stages of the journey.
This article focuses on commercial flights reaching outer space, particularly flights above approximately 100 km and flights capable of orbital activity. Recent examples include Blue Origin’s NS-31 sub-orbital flight on 14 April 2025, which carried six women on an approximately 11-minute flight, and Blue Origin’s NS-36 mission on 8 October 2025, which carried six civilian passengers known as the ‘Space Nomads’.
The market is also looking beyond short sub-orbital flights. Orbital Assembly has proposed orbital accommodation for leisure, commercial, and industrial use, including concepts for a space hotel. If such projects become operational, passengers may spend extended periods in orbit, raising further questions about safety standards, insurance, contractual risk allocation, and liability for injury or death.
What are the risks of space travel?
Space travel is inherently risky. Since human space exploration began, 18 people have died on flights that crossed, or were intended to cross, the Kármán line at some point, regardless of their altitude at the time. The main risks include launch failure, explosion, mechanical malfunction, radiation exposure, collision with debris, psychological stress, re-entry failure, and crash landing. For civilian passengers with limited training, the possibility of serious injury or death cannot be treated as merely theoretical.
Past accidents demonstrate the seriousness of those risks. In 2003, the Space Shuttle Columbia disintegrated during re-entry, killing all seven NASA astronauts on board. In 1971, the three Soviet cosmonauts aboard Soyuz 11 died during re-entry and remain the only people to have died in outer space, above the Kármán line. These examples involved professional pilots or astronauts, but they illustrate the kinds of catastrophic failures that could also affect commercial passengers.
Liability framework for death and injury in space travel
International space law was not drafted with private space tourism in mind. The main treaties were created during the Cold War, when space activity was largely state-led and focused on furthering the interests of nations, not individual experiences. As a result, they focus principally on the responsibility of states and liability between states, rather than direct compensation claims by civilian passengers against commercial operators.
The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1967, commonly known as the Outer Space Treaty, provides that states bear international responsibility for national activities in outer space, including activities carried out by private companies. States must also authorise and supervise those activities. The Convention on International Liability for Damage Caused by Space Objects 1972, commonly known as the Liability Convention, creates a state-to-state liability regime for damage caused by space objects to third parties. Therefore, it does not give an injured passenger a direct claim against a private operator.
That does not mean private operators are immune from liability. International space law sets the responsibilities of states at the international level, but it leaves states to regulate private operators through domestic law, licensing, insurance requirements, and contract and tort law. The passenger’s practical rights therefore depend heavily on the national legal framework governing the flight.
In the United Kingdom, the Outer Space Act 1986 regulates certain outer space activities carried out by UK nationals and UK-connected entities. It was enacted to help the UK comply with its obligations under the UN space treaties, including the Outer Space Treaty and the Liability Convention.
The Space Industry Act 2018 created a more detailed framework for commercial spaceflight from the UK, including launch activities, sub-orbital spaceflights and spaceports. It is supplemented by the Space Industry Regulations 2021. Together, these instruments deal with licensing, safety, insurance, indemnities, and liability.
Section 34 of the Space Industry Act 2018 creates a form of strict liability where injury or damage is caused in the UK, in UK territorial waters, or to aircraft in flight, by a craft or space object used for spaceflight activities, by anything falling from it, or by a person in it. In simple terms, an uninvolved third party on the ground would not need to prove negligence to recover damages.
However, that protection does not extend to spaceflight participants in the same way. Section 34(3)(a) excludes injury or damage suffered by prescribed individuals taking part in, or otherwise engaged in connection with, the spaceflight activity. Regulation 218 of the Space Industry Regulations 2021 also makes clear that passengers who have given informed consent to the risks of the mission are treated differently from uninvolved third parties. The practical result is that an injured space tourist may not benefit from the strict liability protection available to third parties. Instead, the passenger may need to rely on negligence, contract, insurance arrangements, or any specific rights preserved despite waivers.
The UK Air Accidents Investigation Branch also has an important role. Under the Spaceflight Activities (Investigation of Spaceflight Accidents) Regulations 2021, the AAIB has been designated as the Space Accident Investigation Authority responsible for investigating spaceflight accidents falling within the scope of the regulations. Its function is to identify the circumstances and causes of an accident and make safety recommendations with a view to preventing future occurrences rather than to determine fault or civil liability.
Nevertheless, its factual findings and conclusions may be highly relevant to subsequent civil proceedings, including when assessing how an accident occurred, its probable causes, and whether any operational, technical, or regulatory safety failures may provide a basis for a negligence claim. Despite their primary function being safety rather than blame, in Stewarts’ case of Rogers v Hoyle [2014], the Court of Appeal confirmed that air accident reports are admissible in civil proceedings, ensuring that courts have access to this “authoritative, independent, prompt and detailed” analysis.
Does the Montreal Convention (MC) apply to injury or death during space flight?
If a passenger cannot rely on strict liability under space legislation, the next question is whether aviation law might assist. This is important because the Convention for the Unification of Certain Rules for International Carriage by Air 1999, usually known as the Montreal Convention 1999, gives passengers a more favourable liability regime in cases of death or bodily injury during international carriage by air.
The Montreal Convention 1999 applies to international carriage of passengers, baggage, or cargo performed by aircraft. For passenger injury or death, Article 17 makes the carrier liable where the accident causing the injury or death occurred on board the aircraft or during embarking or disembarking. Article 21 provides a two-tier liability system. Up to the first tier, liability is effectively strict. Above that level, the carrier may avoid liability only by proving that the damage was not due to its negligent or wrongful act or omission or was solely due to the negligent or wrongful act or omission of a third party.
For passengers, this is attractive because it avoids the need to prove operator fault at least up to the first liability tier. The difficulty is that the convention is part of air law, not space law. It applies to carriage by aircraft (see Article 1(1) – Scope). A spacecraft operating in outer space is unlikely to be an aircraft in the legal sense of the definition contained within ICAO Chicago Convention 1944 Annex 7 Chapter 1 (Definitions) because, once in space, it does not derive support from the reactions of the air. There may, however, be borderline cases: for example, hybrid vehicles, carrier aircraft stages, or sub-orbital flights that spend significant time within the atmosphere. In those cases, technical evidence about the vehicle and the flight profile may be needed.
Conclusion
At present, the law does not give space tourists the same clear passenger-protection regime that applies to conventional international air travel. International space law is aimed mainly at states. UK space legislation creates a licensing and insurance framework, but it distinguishes between uninvolved third parties and spaceflight participants. Aviation law, particularly the Montreal Convention 1999, may provide a useful comparison, but it will not automatically apply to true spaceflight.
A clearer passenger liability regime would therefore be desirable. One option would be a dedicated framework for commercial human spaceflight, drawing on the Montreal Convention model but adapted to the risks of space travel. Such a regime could combine strict liability up to a defined level, compulsory insurance, limited defences for operators, and a public compensation or indemnity mechanism for exceptional losses. This would protect passengers while giving operators and insurers the certainty needed for the industry to develop responsibly.
