International Space Law in Transformation: Some Observations

As we enter the twenty-first century, the space law framework created during the Cold War era of the mid-twentieth century is under some strain. It appears likely that the most important new issues facing space law will bear little resemblance to the questions that received the most attention during the previous century. Quite a few new issues will rear their heads over the coming decade or two, but here are four that seem of particular importance: space tourism, space militarization in a non-Cold War context, space environmental issues relating to Mars, and the legal character of space elevators. I will thus discuss each of these in turn, followed by some observations on related topics of interest. I. SPACE TOURISM The very term "space tourism" invited giggles just a few years ago. Space was the domain of high-status government employees such as astronauts and the occasional junketing Congressman, not a place for pleasure jaunts by the citizenry. But now that is changing. Thanks to the innovative work of the X-Prize Foundation, quite a few private entities have gotten into the space business, and the prospects for future space tourism look bright.1 Burt Rutan's SpaceShipOm flew two successive crewed flights and won the ten million dollar prize, but it was only one of several competitors. As Max Boot noted in the LJ)S Angeles Timer. Where SpaceShipOne is leading, plenty are eager to follow. Richard Branson announced that Virgin Atlantic would license Rutan's design to take tourists into space in 2007. Several other private firms are also building suborbital spacecraft. Still others are working to collect a potential $50million prize for the first private manned vehicle to orbit the Earth. The promoter of the orbital award, hotel tycoon Robert Bigelow, is also working to loft his own space station, which would be available to rent. Who knows? Maybe we will finally achieve what the movie "2001: A Space Odyssey" took for granted when it was released in 1968: regular passenger flights to the moon. All of that might have sounded like pie in the sky a few weeks ago. Not anymore.2 No, not anymore. Though we have seen false starts in the commercial space area before, space tourism is looking like an idea whose time has come. Space proponents hope and expect that the growth of space tourism, starting with suborbital flights and eventually extending to orbital stays and perhaps even lunar excursions, will produce sufficient traffic (and attention to cost lowering) to produce dramatic improvements in access to space. Costs to orbit currently run in the thousands of dollars per pound, but could conceivably be slashed to the dozens per pound. For those who, like me, see the expansion of human settlement throughout the solar system and beyond as an inevitable (and essential) part of humanity's future, this is a welcome development.3 But it is not a development without legal complications. Within the American domestic sphere, space tourism has already created some dispute. The pre-2004 version of the Commercial Space Launch Act of 19844 did not address space tourism directly. As I write this, new legislation aimed at encouraging space tourism has passed into law.5 The Federal Aviation Administration's regulatory philosophy to date has revolved around protecting third parties from the risks of, for example, falling spacecraft. Risks voluntarily assumed by passengers receive far less attention. The new legislation would codify this sensible approach into law.6 Beyond these questions of American domestic law-though those are likely to be echoed in the legal systems of other countries that pursue space tourism's revenues and technological stimulus-are some questions of international law raised by space tourism and the more general changes it foreshadows. The 1967 Outer Space Treaty,7 and the overall body of space law that developed in its wake,8 poses no barrier to space tourism. …