A Response to Steven Freeland by Frans G von der Dunk

[Frans G von der Dunk holds the Harvey & Susan Perlman Alumni and Othmer Chair of Space Law at the University of Nebraska College of Law.]

The contribution of Professor Freeland to the important debate on the legal aspects of private manned spaceflights, as per his article ‘Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism’ is a thoughtful and enlightening exposé of some of the key legal issues involved in that debate, and I very much agree with the general thrust of the argument. Still, I would like to offer three critical observations for further consideration and debate as my current contribution to this debate.

Firstly, I am as yet unconvinced that the categorisation of outer space as a ‘common asset’ or ‘province of all mankind’ (p 93) ‘incorporat[es] within its regulation the concept of the “Common Heritage of Mankind”’. The key distinctions between the former and latter concepts, as correctly analysed elsewhere to lie in mandatory sharing of material benefits and mandatory sharing of technology, were precisely the reason why the Moon Agreement, heralding the Common Heritage of Mankind principle, was not ratified by many countries – Professor Freeland’s as well as my own fatherland excluded! – whereas the Outer Space Treaty, fundamentally defining all of outer space as the province of all mankind, was so widely accepted.

Secondly, a more fundamental problem arises in the definitional area (p 98). As I have argued elsewhere and will do so in more detail in a forthcoming article in Space Policy, I find the label of ‘space tourism’ a useful one only for the first two types of private spaceflight, orbital and suborbital space tourism. For a more profound analysis we should realise that the motivation for persons to be on board of a spacecraft would be a distinguishing criterion of doubtful value only. This awkwardness of the moniker of ‘space tourism’ consequently leads to the use, in the article, of the uneasy term ‘intercontinental rocket transport’ for the third relevant kind of private spaceflight discussed, where reference is even made to possible military use – should this still be ‘tourism’ (p 99)?

This is not merely a theoretical exercise, either. Today, high-adventure tourism law may provide the most sensible area to look at for guidance – in particular suborbital space tourism is not much more than sophisticated bungee jumping – but once suborbital transport would take off, transport law, in particular aviation law, would present the much more relevant analogies.

Precisely for purposes of air law, however, the motivation for someone to take a flight is basically irrelevant. On board businessmen, politicians, scientists, charity workers and tourists are all treated, legally speaking, exactly the same and for the legal status and regime of the flight it does not matter one bit whether the plane is filled with the one or the other. It should be noted finally that Virgin Galactic, the company generally considered closest to actually offering private flights into the edge of space, has already expressed its intention to use ‘space tourism’ essentially as a technology demonstrator for suborbital travel, where these forms of spaceflight become much more akin to aviation indeed – it expects the ‘real’ tourism, after an initial release of pent-up demand, to trickle down to a much lower level.

Finally, I respectfully disagree with the argument that space tourists should enjoy the same level of protection that ‘astronauts’ and ‘personnel of a spacecraft’ would enjoy especially under the Rescue Agreement (pp 103–4), for reasons of ‘sentiments of humanity’. We should realise, on the one hand, that under these obligations states have to go out of their way to assist astronauts in distress, and it does not seem appropriate to accord people essentially traveling into space for their own pleasure the same privileges. Not providing them with such privileges, on the other hand, does not deprive space tourists from any rights to assistance in case of need – general international obligations to assist humans in need, as they apply on earth, apply in outer space as well. After all, as Professor Freeland correctly states (p 118):

‘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’.