SNAPSHOT: THE PROCESS OF CHANGE IN INTERNATIONAL SPACE LAW POLITICS

Space law is well developed in many areas. However, one area has generally been ignored by the established international space law community. This specific issue is: to what extent does international space law prohibit or permit private for-profit (commercial) space tourism. Specifically, does international space law, as is, prohibit for-profit space joyrides, short stays in orbital hotels, longer stays in orbital or celestial hotels, and/or for-profit outer space settlements. These appear to be the proposed stages of outer space tourism. Space tourism advocates are proposing to “take off”, and initiate an industry within a few years. The proffered purpose of international law, in general, and international space law in particular, is to establish rules and norms around which actor expectations can converge. Yet, the very mention of this specific legal issue tends to border along the rim of unspeakable taboo, within the international space lawmaking machinery. This specific issue must be addressed today, between the various camps of space lawyers, to stave off future conflicts. 1. INTRODUCING: INTERNATIONAL SPACE LAW ON TOURISM To understand where the law stands on the specific issue of outer space tourism, we must first distinguish it from related issues. Then it becomes easy to see that there is no current rule of international law regarding outer space tourism. Instead, there is a lot of legal discourse and interpretation on various related points of international space law. Space law is a very intense and difficult subject to grasp. There are many diverse, interrelated complex subject areas. In addition, issues concerning commercial outer space tourism, or commercial outer space settlement, arise in the space law literature as integral parts of other legal issues. It is very common to see an article, book or presentation start out with the subject of space tourism, and end by linking a main argument to being resolved through general debates on private property rights, space commercialization, or something else. This is problematic, since there are many areas falling within the broad umbrella of space commercialization, privatization and private property rights. For example, satellite industries, space transportation systems, launch services, remote sensing, space stations, solar energy and exploitation of resources and space minerals. To a great extent, these industries have prompted specific lawmaking activities from within the international space law community. This has not happened with commercial space tourism or space settlement. Instead there is a body of discourse attempting to prove space tourism as a practical industry, along side a body of discourse arguing that international space law must be changed to encourage investment in these new industries. In unproved fields of outer space development, international space law is still vague. As such it is subject to varying interpretations, since no authoritative interpretation has been mandated by the UNCOPUOS. Regarding these proposed 54th International Astronautical Congress of the International Astronautical Federation, the International Academy of Astronautics, and the International Institute of Space Law 29 September 3 October 2003, Bremen, Germany IAC-03-IISL.2.08 Copyright © 2003 by the author(s). Published by the American Institute of Aeronautics and Astronautics, Inc., with permission. Released to IAF/IAA/AIAA to publish in all forms. 2 industries, there are no specific bodies of law. There are only piles of discourse. Yet, language tends to reflect political and legal situations and can indicate impending change. It also has the power to trigger change, or to maintain the status quo. This capacity to exercise power by the use of language depends on the actors, and on timing. We must view "action" as shaped by international structural eras. The current structural era might best be described as the Post Cold War era wherein the logic of capitalism is far less challenged. This structure shapes regimes, norms, and international lawmaking activity. 1.1 Is Tourism: An Emerging Regime? Space tourism seems to have begun. It's hard to tell this by looking at the discourse on international space law. Although numerous scholars make note of the various gaps between international space law and commercial realities, the specific legal issue of to what extent does international space law prohibit or permit private commercial (for-profit) space tourism, has not been formally addressed by the mainstream international space law community. In spite of this, the topic pops up more and more, and many are seriously determined to make space tourism a viable industry. The space tourism advocates are proposing to “take off”, and initiate an industry within a few years. Yet, the very mention of this specific legal issue tends to border along the rim of unspeakable taboo, within the international space lawmaking machinery. This specific issue must be addressed today to stave off future conflicts. Specifically, does international space law, as is, prohibit Phase I, Phase II and/or Phase III of space tourism. Travel in space used to be only for government astronauts. Some believe that stage one of space tourism has already started since others are beginning to go and to think about going into space just to see it. Ideology has been deployed, creating new public perceptions of space access as now open to everyone. On the ground theme parks, space camps, and zero gravity flights already exist and are popular. A space launch infrastructure and facilities exist and is constantly developing. The International Space Station has been a success. It has demonstrated that humans can live and work in a human space settlement. Spaces vehicles are in the process are being improved dramatically. Notwithstanding these accomplishments, many technological kinks will have to be worked before we can solely blame the law or lack thereof for inhibiting commercial space tourism. Still shouldn't the law precede any technological kickoff? 2. INTERNATIONAL LAW'S PURPOSE The above situation stands in direct contradiction to established perspectives on the very nature and purpose of international law. Yet, a pattern has been established wherein international space law seems to be created after space industries take a foothold not before. International space law, like international law, according to traditional theories, is supposed to create norms and rules so that international actors understand and comply with expectations and agreements. Herein, this is not the case. We see international space law playing catch-up to political moods. The result has been perpetual vagueness. The purpose of international space law, as Manfred Lachs informs, was to be classified as international law, "known to all of us as the system of law that has for centuries been regulating relations among States". In addition, Lachs states "the law of outer space can and should, make a notable contribution: by becoming a staunch guide to man in his journey through time and space; by securing that the great achievements of science and technology serve the cause of international