‘Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?’ by Steven Freeland

[Steven Freeland is a Professor in International Law at the University of Western Sydney, Australia, Visiting Professor of International Law at the University of Copenhagen, a member of the Space Law Committee at the International Law Association, a member of the Directorate of Studies at the International Institute of Space Law and a Faculty Member of the London Institute of Space Policy and Law.]

I thank the moderators of Opinio Juris for the opportunity to participate in the Online Symposium and to discuss my article, entitled ‘Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?’

The recent confirmation by National Aeronautics and Space Administration scientists regarding the presence of substantial amounts of water on the Moon has further galvanised the aim of humankind to develop ever more ambitious plans for space travel. Central to this ongoing evolution is the development of technology capable of transporting large numbers of passengers into outer space as commercial space tourists. It is increasingly likely that, within the foreseeable future, space will no longer be the sole domain of professionally trained astronauts or the exceptionally wealthy.

However, the prospects for both suborbital and orbital private human access to space give rise to some challenging legal and ethical questions and call into question the adequacy of existing international law instruments that are directed towards the regulation of the use and exploration of outer space. It is clear that the existing international legal regimes covering air and space activities are not well suited to large-scale commercial access to space, largely because they were developed at a time when such activities were not a principal consideration in the mind of the drafters. The lack of legal clarity must be addressed as soon as possible, to provide for appropriate standards that will further encourage such activities.

Questions regarding the international regulation of space tourism are all the more complex given the fundamental principles and limitations that are found in the international legal regime that has already been established for outer space, in particular its categorisation as a ‘common asset’ — incorporating within its regulation the concept of the ‘Common Heritage of Mankind’ — raising broader ethical questions about space tourism activities.

The corpus of existing space law and legal principles — comprised of United Nations-sponsored multilateral treaties, UN General Assembly Resolutions, a wide range of national legislation, decisions by national courts, bilateral arrangements, and determinations by intergovernmental organisations — represents an important base from which to develop the legal tools to properly regulate the next stage of space activities. Yet this body of law is not sufficient even for present purposes, let alone for the coming decades. The advent of space tourism raises many unanswered legal questions. As more space tourism (and other) activities take place, appropriate dispute resolution procedures must be agreed upon in order to deal with conflicts that will inevitably arise, both at the public and private international law level. Detailed traffic management systems must be developed. Moreover, a comprehensive legal framework must be established at the international level to reflect the wishes of the wider (global) community and provide certainty.

At the same time, however, the broader philosophical and ethical aspects of human activities in outer space — indeed the place of human beings in the universe — demand that we continually reassess the ‘why’ and ‘what’ in relation to our ongoing exploration and use of outer space. Moreover, just as the exploration and use of outer space is impacted by terrestrial concerns — including economics, politics, social and fundamental human rights — it also serves as a model for our future activities on Earth. There are many lessons that we can learn from our (over-)exploitation of the Earth’s natural resources. Should we adopt an ‘efficiency’ approach to the exploitation of the resources of outer space, doing it as quickly as we can, irrespective of the longer-term consequences? Or, rather, should our future activities in outer space — and ultimately on Earth — be more considered and measured, taking into account the differing expectations and capabilities of the various countries on Earth?

All of these issues represent considerable challenges as to how international law, incorporating the international legal regulation of outer space, will be able to cope with future activities in space, including the advent of commercial space tourism. The way in which the law is developed and adapted to meet these challenges will be important not only for outer space itself, but also for future generations living on Earth.

Outer space belongs to all of us. Our use of it should reflect underlying notions of cooperation and shared benefit, which must remain as the cornerstones in this next phase of human achievement. International law has a crucial part to play in this regard.

The full article can be accessed here.