23 Nov A Response to Frans G von der Dunk by Steven Freeland
I would like to thank Professor von der Dunk – who is a close friend and highly respected colleague – for taking the time to provide his thoughtful responses to my article ‘Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism’, published recently in the Melbourne Journal of International Law. Professor von der Dunk and I have worked in collaboration on several research projects and he is a very highly regarded scholar in matters relating to the international, and national, regulation of the use and exploration of outer space. I look forward to reading the article in Space Policy to which he refers.
In relation to the comments he has made, I make the following brief responses (using his numbering):
1. I agree with Professor von der Dunk that, in particular, the ‘Common Heritage of Mankind’ categorization attributed in the Moon Agreement to the natural resources of the Moon (and other celestial bodies) has given rise to considerable debate and disagreement as to its meaning and (possible) application to the use and exploration of outer space. Nonetheless, the concept plainly does exist within the corpus of space law, though whether it has been particularly helpful or not remains another matter. The reference was made in the article to further emphasise the unique legal categorization of outer space in terms of a res communis ‘common’ asset, as opposed to traditional international law (and terrestrial) notions associated with territory.
2. I agree with Professor von der Dunk that the term ‘space tourism’ may be(come) too simplistic to aptly cover the multitude of different ways (and purposes) in and for which human space flight may take place in the future. My use of the term was not intended to be definitive of every such instance of human travel – rather it was used more generally to apply to those commercial human space flight ‘experiences’ that are proposed in the short-medium term. Indeed, I suggest that, as different forms and purposes of human space travel emerge, it may become necessary to develop another form of law – ‘aerospace law’ perhaps? – to deal with specific circumstances.
3. The argument as to whether the Rescue Agreement – which refers to astronauts in its title but to ‘personnel of a spacecraft’ in its substantive articles – gives rise to differing obligations towards (and rights of) astronauts vis-à-vis other space ‘travelers’, has been extensively discussed in the scholarship. I agree with Professor von der Dunk that other international regimes (eg Maritime Law) and rules will give rights to ‘non-astronauts’ (whatever that term may precisely mean), but I also do believe that the preambular words in the Rescue Agreement that I refer to, seen also in the broader humanity context of international space law, would give rise to particular rights for such persons under that treaty as well.
Once again, I thank Professor von der Dunk for his comments and look forward to many future discussions with him (preferably over a bottle of French wine) on these and other matters relating to the use and exploration of outer space.