- I. Introduction
- II. The Rapid Commercialization of Space
- III. The Legal Framework of Space
- IV. The Expectation of “Responsibility” and Other International Obligations Under the Outer Space Treaty
- V. U.S. National Regulation in a Landscape Governed by International Law
- VI. Conclusion
While the space race of the 1960s was fought between entire nations entrenched in a unique form of war, the space race of today is fought by billionaires vying for another title and news headline. Today, becoming an astronaut is no longer a child’s pipe dream but a reality for more and more civilians who can afford it or are famous enough to warrant a seat. On July 20, 2021, Blue Origin launched the first paying customer into space on New Shepard. More high-profile, “honorary guests” have since been invited and flown to space, including Michael Strahan, Laura Shepard Churchley, and Star Trek’s William Shatner. However, SpaceX has taken a different approach. On September 15, 2021, SpaceX launched “Inspiration4”—a groundbreaking flight not because of who was on it but because of who was not. The Inspiration4 was “the first crewed orbital mission with no professional astronauts on board.” The civilian crew orbited Earth for three days while fundraising for St. Jude Children’s Research Hospital and launched “a new era for human spaceflight and exploration.” As a result of these cutting-edge missions, the current U.S. commercial space industry has earned international recognition; but, this nongovernmental activity has far-reaching implications for the U.S. government—leading to a space race for its own regulation.
Under current international space law, States are responsible for both governmental and nongovernmental space activity. Further, States are obligated to provide authorization and continuing supervision of nongovernmental space activity. While international law establishes these obligations, treaties are not clear as to the regulations required to fulfill them. Additionally, with a burgeoning commercial space industry, the United States is left to fill in the gaps with national regulation. This poses a two-fold question concerning the current national regulation for space activity: (1) does it fulfill our international obligations; and (2) does it best minimize governmental responsibility for nongovernmental space activity? This Note posits that the current national regulations do not fulfill international obligations to have continuous supervision over nongovernmental activity because of the glaring lack of regulation for off-world activity. However, national regulations do successfully minimize the government’s responsibility for the activity. To give private space companies direction and meet the United States’ international obligations, the immediate passing of national regulations of private, off-world activities is the short-term solution to a long-term problem.
Part II of this Note examines the commercialization of the space industry and how incentives and national regulation have shaped it into what it is today. Part III evaluates the current international space laws, consisting of five treaties, with a focus on the Outer Space Treaty (OST) and the Liability Convention. Part IV delves into the interpretation of two key terms in the OST that provide insight into the requirements for commercial space regulation. Finally, Part V discusses how the current national regulations fulfill the State’s international obligations while also advising where the United States has fallen short. This Note concludes by cautioning the United States against placing a heavy reliance on national regulations in an industry governed by international law.
II. The Rapid Commercialization of Space
The presence of nongovernmental entities in space is not a new phenomenon; the National Aeronautics and Space Administration (NASA) has employed private companies to aid in its missions since it was founded in 1958. The 1980s experienced a push for the commercialization of space with President Ronald Reagan’s endorsement of the 1984 Commercial Space Launch Act. However, after the crash of the Space Shuttle Challenger in 1986, focus shifted away from the private industry.
In 1991, the end of the Cold War triggered a re-energization of the commercial space industry. As budgets grew tighter, NASA began cooperating with private companies again, allowing them to develop their own concepts without strict oversight. Although the early 2000s saw yet another tragedy, the crash of the Space Shuttle Columbia, President George W. Bush met this loss with a “new era of discovery.” His vision was to send humans back to the Moon, and even further: to Mars. However, at the time, NASA was not entirely free to begin this pursuit because it had to regularly resupply life essentials to the International Space Station (ISS). NASA, once again, turned to commercial companies to fulfill this role—promising them entry into the ISS cargo market—and in return, NASA could focus on exploration of deep space. This shift in focus set the stage for the commercial landscape in the United States today.
A. The Current Commercial Landscape of the Space Industry
NASA’s new focus on deep space has led to significant federal cutbacks, namely the retirement of its shuttle fleet in 2011. Following the fleet decommission, NASA awarded contracts to four private space companies—Sierra Nevada Corp., Boeing Co., Blue Origin LLC, and SpaceX. The next year, SpaceX launched “the first official commercial flight to the International Space Station.” Since this first cargo mission in 2012, SpaceX has made over twenty cargo-resupplying trips to the ISS. Further, SpaceX has been able to use the same technology previously used to transport cargo, to transport humans. In 2020, SpaceX was the first private company to take humans to and from the ISS. Since that groundbreaking trip, SpaceX has successfully completed three crew-rotation missions and four total flights with astronauts.
Similarly, nongovernmental activities are becoming available to private space companies. For example, one of the activities “on the rise” is space tourism—previously discussed in the introduction—in which private companies are taking civilians on short trips into outer space. Blue Origin has already launched three successful, human, suborbital missions—with its inaugural mission flying the first paying customer on a suborbital spacecraft. Additionally, SpaceX has used the technology it developed for rotating ISS astronauts to complete the first, human orbital mission crewed by only civilians with Inspiration4. In an effort to normalize space flight even further, SpaceX’s website compares traditional and space-flight times for long-distance trips between major cities—showing the convenience that space travel could bring.
These short flights into space will soon have several possible destinations. Blue Origin and Sierra Space have announced plans to develop a commercial space station that will become operational in the second half of this decade. Deeper space missions, to mine the Moon and asteroids, are also in development. The lunar-mining company, Moon Express, was granted permission by the U.S. government in 2016 to travel beyond the ISS and land on the Moon. As for asteroid mining, the bubble seemed to burst in 2019 when the two companies at the forefront of the industry—Planetary Resources and Deep Space Industries—were unable to raise their needed funds and were subsequently acquired. However, other countries, such as Luxemburg and China, have begun leading the way in re-energizing this promising industry.
B. The Incentives to Continue the Commercialization of Space
This rapid increase in commercial space missions and entities is a result of several economic and government initiatives working together to create a burgeoning new industry. These government initiatives include the Department of Transportation’s (DOT) Office of Commercial Space Transportation and NASA’s Office of Commercial Programs, which both have the purpose of promoting the commercialization of space. Additionally, the U.S. government has created economic incentives for developing commercial space launch vehicles. Under NASA’s statutory authority, contracts with landmark payments for various technological improvements to advance space launch vehicles have been handed out. Yet, while NASA’s spending has grown since 1958, its overall budget as a percentage of total U.S. spending has shrunk. This has left it up to private investment in space-related activities to fill in the gaps and—signaling public faith in the industry—it has continued to grow.
This private investment has been motivated by economic incentives to capitalize on industries valued at billions of dollars currently and in the future. For some industries, like space tourism, the economic potential has already been demonstrated. In fact, the first customer carried by a suborbital spacecraft paid $28 million for his seat—a figure that surprised even Blue Origin officials. As for yet unproven ventures, large estimations in profit have still been given. For example, the Moon’s estimated helium-3 reserves could create ten times as much energy as all of the Earth’s recoverable coal, oil, and gas resources combined. Further, asteroids are rich in rare earth elements, such as platinum, iridium, osmium, rhodium, and ruthenium, which are all used in the development of electronics. Experts estimate that the value of a single asteroid could be somewhere in the range of trillions of dollars. For perspective, a study within NASA estimated that it would only cost $2.6 billion to bring an asteroid back into our orbit. Most recently, U.S. Chamber of Commerce economists estimated that the entire space industry will be worth $1.5 trillion by 2040.
C. The National Regulation for the Commercialization of Space
With such abundant incentives for private companies to continue traveling into space, the U.S. government has implemented national regulations to oversee the launch and re-entry of these private space vehicles. The Commercial Space Launch Act is the federal law that facilitates and regulates private launch and re-entry within the United States. The Act was intended to promote investment in space operations and solidify the country’s favorable stance on private space development. The Act, allows the DOT—and later, delegated to the Federal Aviation Administration’s (FAA) Office of Commercial Space Transportation—to authorize and supervise the launch and re-entry of space vehicles and their respective sites, when carried out within the United States or by a U.S. citizen. In accordance with Congress’ purpose, the Act also directs the FAA to promote and encourage commercial space launches and reentries, “including those involving space flight participants.”
Consequently, the launch or re-entry of a space vehicle cannot occur within the United States or by a U.S. citizen without a license. When granting a launch license, there are four separate procedures: the policy review, safety review, environmental review, and payload review. The policy review evaluates both the national security and foreign policy consequences of the proposed launch. This review considers the potential risks to U.S. foreign-policy interests and national security as well as international obligations borne by the United States. The safety review evaluates the equipment and launch facilities of the proposed launch as well as any potential third-party risk. This review considers relevant safety factors including an applicant’s expertise in conducting the launch. Since the Act’s passing, Congress has added the environmental review, which requires the FAA to evaluate the environmental impacts of the proposed launch. Finally, for license holders planning to launch a payload—an object placed in space—there is a payload review to ensure it complies with federal law requirements as well. Once these are all passed, a license for launch or re-entry is issued. However, space law is primarily dictated by international law, so national regulation must be evaluated within the context of current space treaties.
III. The Legal Framework of Space
There are five treaties that provide the framework of space law: (1) the Outer Space Treaty (1967); (2) the Rescue Agreement (1968); (3) the Liability Convention (1972); (4) the Registration Convention (1976); and (5) the Moon Agreement (1984). However, this Note will primarily focus on the Outer Space Treaty and the Liability Convention.
A. The Outer Space Treaty
The Outer Space Treaty is commonly referred to as the “constitution for outer space,” because it was the first treaty to establish a binding international agreement for the laws of space and, by nature, is the foundation for all subsequent international space law. The OST has obtained broad acceptance, ratified by 111 States—including both Russia and the United States as original signatories. This has made the OST customary international law and, therefore, binding law on all government bodies, even non-party States. As such, the OST provides the general guidelines for conducting activities in space.
To begin, the OST preamble lays out several of the treaty’s ideals, including: the “common interest of all mankind,” “peaceful purposes,” and “broad international co-operation.” Overall, the rationale behind the OST was to lay out a general set of principles to keep the peace in space. However, for the purposes of this Note, only Articles VI and VII will be discussed because they provide the most insight into State liability and responsibility for space-related pursuits.
More specifically, Article VI of the OST focuses on the notion of responsibility. This article provides that States have “international responsibility for national activities in outer space . . . and for assuring . . . [these] activities are carried out in conformity with the provisions” of the treaty. This two-prong responsibility, borne by the States, was created to address national activities by both governmental agencies and nongovernmental entities. However, Article VI provides some special treatment for activities carried out by nongovernmental entities—requiring “authorization and continuing supervision by the appropriate State.”
By contrast, Article VII of the OST focuses on liability. This article requires each State “that launches or procures the launching of an object into outer space” and each State “from whose territory or facility an object is launched” to be held internationally liable for damages caused by the object or its component parts. The types of damages covered by the OST include those to another State or its persons—regardless of whether the damage occurs “on the Earth, in air space or in outer space.”
B. The Liability Convention
As mentioned previously, the OST provides the foundation for international space law, that is built upon by the later treaties. Article VII of the OST creates State liability for damages caused by launched objects, and the Liability Convention expands on this liability. Article II of the Liability Convention provides that when a space object causes damage “on the surface of the earth or to aircraft flight,” the launching State is “absolutely liable.” However, for “damage being caused elsewhere,” the launching State is only liable if the State, or its persons, are at fault. When there are two or more States involved in causing the damage, the States are jointly and severally liable, with either absolute or fault-based liability depending on where the damage occurred, in accordance with Articles II and III. When damages are incurred, either by the State or its persons, the affected State “may present to a launching State a claim for compensation for such damage.”
IV. The Expectation of “Responsibility” and Other International Obligations Under the Outer Space Treaty
International treaties provide the legal framework for the laws of space and outline the obligations borne by the States. Under the OST and Liability Convention, States retain both “responsibility” and “liability” for their actions in space. Further, the OST places responsibility on States for nongovernmental activity in space, requiring that there be “authorization and continuing supervision.”
However, the correct interpretation of these treaty terms is not always apparent. The OST discusses “responsibility” and “liability” in two separate articles, but it is unclear what difference—if any—the two terms articulate about the obligations borne by the State. As for the caveat in the OST for nongovernmental space activity, the requirement for “authorization and continuing supervision” suggests the general idea that States have a higher obligation for that activity, but it does not detail the extent to which national regulations must go to fulfill it.
As discussed previously, there is a two-prong responsibility borne by the States: (1) responsibility for space activities; and (2) responsibility for ensuring that these activities are conducted in accordance with the provisions of the OST. This part will focus on determining the obligations of the first “responsibility.” First, various treaty interpretation rules, both internationally, through the Vienna Convention, and domestically, through courts and Congress, will be outlined. Once the rules are established, they will be used to interpret the two ambiguous terms highlighted from Article VI of the OST—“responsibility” and “authorization and continuing supervision.” This part will conclude by giving possible definitions for each treaty term to predict the international responsibility borne by the U.S. government for nongovernmental space activity.
A. Treaty Interpretation Rules
The OST provides the foundation for international space law; consequently, the interpretation of its terms is essential in determining the international obligations borne by the United States. However, determining these obligations is not always clear, and questions of OST interpretation are critically important as the space industry becomes more saturated with commercial players. For these murky questions, the use of treaty interpretation rules can assist with unearthing unambiguous answers.
Fortunately, there are international treaty interpretation rules, namely those found in the Vienna Convention, that have been used to interpret the OST. However, the United States has not yet ratified the Vienna Convention, and it is unclear which provisions have reached customary law status. Still, considering the Vienna Convention interpretational rules is beneficial, as U.S. judges often have a deep respect for them, and thus employ them, even in U.S. courts. However, a well-rounded treaty interpretation analysis will also consider domestic interpretation rules here in the United States.
1. The Vienna Convention
The Vienna Convention provides rules for interpreting international treaties in Articles 31–33. Article 31 establishes the general rule that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning . . . in their context.” However, rather than examining legislative history,—traditionally done in the United States—“context” has a much more restrictive scope under the Vienna Convention. Instead, the Vienna Convention rejects preparatory material and shifts the focus to the entire treaty document, including the preamble, annexes, and any consequential material. Consequential material includes any agreement or instrument related to the treaty that was made with the conclusion of the treaty. Along with context, any subsequent agreement regarding the interpretation of the treaty, any successive practice in the application of the treaty, and any other relevant rules of international law can be considered.
Article 32 allows for the consideration of supplementary material when, after interpretation through Article 31, the meaning is still “ambiguous or obscure,” or when the result is “absurd or unreasonable.” This supplementary material includes “preparatory work of the treaty and the circumstances of its conclusion.”
Finally, for treaties like the OST that have “been authenticated in two or more languages,” Article 33 stipulates that “the text is equally authoritative in each language.”
2. Domestic Interpretive Rules
Unlike the “rigid hierarchy” given to outside materials in the Vienna Convention, U.S. courts are more willing to look beyond the four corners of a treaty and consider supplementary materials to determine the meaning of terms. The general rule for the domestic interpretation of international treaties is to ascertain “the meaning intended by the parties in the light of all relevant factors.” This includes considering preparatory materials created by the United States even though they would probably not be considered for questions of interpretation by international bodies. In addition to preparatory materials, U.S. courts give notable deference to the interpretation given by the departments of government closely involved with their negotiation and enforcement.
B. Interpreting Article VI’s Ambiguous Terms
Article VI of the OST is the only article that discusses State obligations for space activity conducted by “non-governmental entities.” As space continues to rapidly commercialize, especially in the United States, the interpretation of this Article becomes increasingly important. The ambiguous terms “responsibility” and “authorization and continuing supervision” have been selected for interpretation because they provide the most insight into the obligations borne by the United States for its commercial space activity. Below is the relevant text of Article VI, followed by the application of the treaty interpretation rules to the two ambiguous terms.
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.
Under Article 31 of the Vienna Convention, treaty terms must first “be read in light of the ordinary meaning” they would have “within the four corners of the document”—similar to the emphasis U.S. courts place on ordinary meaning when interpreting ambiguous terms. To determine the ordinary meaning of the term “responsibility,” Webster’s New Collegiate Dictionary, 1969 (Webster’s) and Black’s Law Dictionary, 1968 (Black’s) can provide some clarity. Beginning with Webster’s more general dictionary definition, “responsibility” is defined as legal accountability. Similarly, “responsible” has been defined as being “liable to legal review or in case of fault to penalties.” Both of these definitions provide a meaning that carries with it an obligation within the law. Put simply, “responsibility” requires accountability and “responsible” goes a step further by requiring liability for penalties if found at fault. In the context of Article VI, this would give States “legal accountability” for the activities conducted by private space companies and States would be liable for any penalties due to the private space companies’ fault.
Although both of Webster’s definitions contain legal implications, the legal focus of Black’s Law Dictionary provides a more specialized meaning to the term. Black’s defines “responsibility” as “[t]he obligation to answer for an act done, and to repair any injury it may have caused.” This definition provides more nuance because it requires “repair” rather than a simple penalty. As opposed to only monetary relief, repair invokes the notion of placing the injured party in the state they would have been in had there been no incident in the first place. In other words, the State would be obligated to restore a party injured by a private space company to their preexisting situation, rather than only providing monetary relief.
These definitions seem to equate responsibility and liability—yet the drafters specifically chose to use the former. In fact, Article VI is the only article in the OST that uses the term “responsibility.” In the following article, the OST instead uses the term “liable” when discussing damages. Further, the treaty that expands on Article VII, the Liability Convention, was drafted without a single use of the term “responsibility,” and contains only variations of “liability.” This suggests an intentional acknowledgment of the terms’ different meanings and connotations. However, these two principles may be far less independent from each other within the context of the OST. In fact, “both the French and Spanish languages—both authentic languages as far as the Outer Space Treaty is concerned—have only one term for the two notions.” Under Article 33 of the Vienna Convention, both are equally as authoritative as the English version.
Still, while there seems to be some overlap, a look at international customary law for damages incurred by a breach of State responsibility versus State liability can shed some light on where the two notions begin to diverge. State responsibility has been defined as responsibility for “international wrongful acts” that affect another State. According to customary international law, there are three ways in which a breach of an international obligation that incurs State responsibility can be repaired. First, restitutio in integrum requires the undoing of the wrong and restoring the State to its preexisting condition. This type of damage closely mirrors the definition found in Black’s where a repair is required. Second, compensation can be given if the first option is “impossible” or “senseless.” This damage parallels the definition found in Webster’s that a penalty is required if at fault. Third, breaches may be repaired through satisfaction—including giving official apologies. This final option is most appropriate when there has been no material damage done. Now, turning to State liability under customary international law, the uniform element found for liability is its relationship with the concept of damages. “Whereas [S]tate responsibility theoretically can be redeemed in three different ways, (international) liability knows only one kind of redemption: payment of compensation for the damage.” Again, this hearkens back to the ordinary meaning arrived at earlier in this section after examining Webster’s and Black’s dictionary definitions.
This broader obligation for State responsibility in Article VI is also supported by the preparatory materials accompanying the OST. Meeting reports from the Committee on the Peaceful Uses of Outer Space show that there was extensive discussion and opposition to adding the final sentence of Article VI, which gives “responsibility” to international organizations and the States that are members of them. This mimics the nature of responsibility that States have for their nongovernmental space activity, where the State is still responsible for activity it is not directly involved with. The last line, ultimately agreed on and included, gives the States responsibility for international organizations conducting activity in space. This debate and careful wording of the final sentence shows the gravity of the term “responsibility” as well as their comfort with placing it on the States for activities not directly under their control.
When discussing the purpose behind Article VI, a representative from Bulgaria raised the concern that, realistically, States had to “assume primary responsibility for the treaty’s application” because at the time there were no other ways to guarantee compliance with the OST. When speaking directly to responsibility for nongovernmental activities, it was deemed necessary to hold States accountable because those types of activities “were likely to be guided by selfish considerations rather than by the idea of international co-operation, and that, of course, would not be conducive to a happy development of space law.” Still, as a Czechoslovakian representative later cautioned at the close of one of the committee meetings, the definition of international responsibility with respect to Article VI is an urgent question not yet fully settled.
2. Authorization and Continuing Supervision
Starting again with the ordinary meaning, as required by the Vienna Convention and encouraged by U.S. courts, the terms “authorization,” “continuing,” and “supervision” will first be defined. Webster’s dictionary defines “authorize” as “to establish by authority” or “sanction,” while Black’s defines “authorize” as “to give . . . authority to act.” Viewed as one, these two definitions show that “authorization” first gives a State power, which then allows them to sanction or permit the nongovernmental activity. Shifting focus to the third term, Webster’s defines “supervise” as to “oversee,” and Black’s defines “supervise” as “[t]o have general oversight over . . . or to inspect.” Together, these definitions require a State to continue to oversee and inspect the nongovernmental activity once it has been authorized. However, the modifier “continuing” must also be defined. Webster’s dictionary defines “continuing” as “constant,” while Black’s defines “continuing” as “not terminated by a single act or fact.” Inserting this into context with “supervision,” the requirement for the U.S. government to supervise these nongovernmental space missions must be constant and cannot be terminated by a single action.
“[A]uthorization and continuing supervision” obligate a State to permit all private space activity and to oversee and inspect the activity constantly, once approved. This supervision cannot be terminated by a single act, so it must last from the preparatory stages of a private space activity through its final decommissioning or completion. This comprehensive duty is further supported by the concerns voiced by a representative of Bulgaria. At the time, “no other guarantees of compliance with the rules of space law could be demanded” except from the States. Because States were the only parties that could ensure compliance with the OST, Article VI’s wording would have to ensure that a State was involved in the entire process of conducting any nongovernmental activity in space. Further, this comprehensive duty would allow States to impose ethical practices and international cooperation that would promote the “happy development of space law” hoped for by the committee. Considering all these factors, “authorization and continued supervision” puts an obligation on States to not only ensure nongovernmental activities conform to the requirements of the OST but also guarantee that the activities uphold the OST’s lofty ideals.
C. Disputes over Treaty Interpretation
Although Section II.B concludes with a clear definition of both “responsibility” and “authorization and continuing supervision,” these definitions are merely one possible interpretation. As illustrated earlier in the discussion, international and domestic rules for treaty interpretation differ, which can lead to disagreements regarding a country’s or an international organization’s interpretation of the OST. In fact, terms in OST’s Article VI—the only article that discusses nongovernmental activity—will most likely become increasingly disputed and debated as the commercial sector of the space industry continues to flourish and the States with these burgeoning companies desperately search for guidance on what role they should play. Unfortunately, there is no clear path to resolve these future disputes over ambiguous terms.
Practically speaking, disputes over treaty interpretation are typically resolved by consultations or negotiations. However, if such methods prove unsuccessful, parties to the dispute may employ more formal settlement procedures. The OST is silent on handling disputes regarding differing interpretations, but the Vienna Convention does suggest referral to the International Court of Justice (ICJ) for disputes not resolved within a year of notification. Yet, the resolution of a dispute where the United States is a party, with a body governed by a convention not ratified by the United States, may present further issues. Therefore, the difficulty is not only determining which interpretive rules to use but also how to resolve interpretive disputes when they arise.
Still, how can States hope to fulfill their second responsibility—ensuring that commercial space activity is conducted in accordance with the OST—if the OST cannot even be soundly interpreted? Instead of shooting into the dark with interpretation attempts, legal debates may seek answers outside of the framework of the OST. Perhaps national and international laws can provide parties with more adequate solutions.
V. U.S. National Regulation in a Landscape Governed by International Law
As discussed above in Part IV, the treaties provide a legal framework----and they do just that----leaving many holes and gaps that must be filled in around them. While either international or national laws can be passed to clarify and supplement the treaties’ framework, this Note will focus only on the current national laws in place. However, this national regulation must still fulfill the United States’ international obligations. As discussed previously, there is a two-prong responsibility borne by the States: (1) responsibility for space activities; and (2) responsibility for ensuring that these activities are conducted in accordance with the provisions of the OST.
The previous part focused on determining the first “responsibility” and provided an interpretation for what the responsibility for commercial space activity and the responsibility to authorize and continuously supervise commercial space activity might require. Responsibility for this activity was determined to be broader than mere liability, and if damages or incidents required more than monetary restitution, the United States would be required to repair the situation in other ways. Responsibility to authorize and continuously supervise was determined to require the United States to first have the power to regulate commercial space activity, and then to create a system that oversaw and inspected the missions for its entire lifetime, not just until authorization was given.
This part will now turn to the second responsibility examined within the context of the national regulations that the United States has passed to fill in the gaps left by the treaties’ legal framework. This part will begin by determining if the current national regulations fulfill its international obligations to ensure commercial space activity is conducted in accordance with the provisions of the OST. It will then move on to suggest ways in which national regulations can better fulfill this obligation. Finally, this part will conclude by cautioning against the United States placing a heavy reliance on its own national regulations rather than making deliberate efforts to create international regulations that cements these efforts.
A. Current National Regulations to Fulfill International Obligations
“Practically speaking, the U.S. government is aware of every American space asset launched” because all launches must be licensed through the FAA. When granting a launch license there are four separate procedures: the policy review, safety review, environmental review, and payload review. The multiple-review process allows the United States to ensure compliance with the OST and encourage its ideals. The safety and payload reviews allow the government to “authorize” and “supervise” commercial space missions because they inspect and oversee the actual mission. The policy and environmental reviews allow the government to encourage the OST’s ideals by maintaining international cooperation and relationships through policy review, as well as the OST ideal that space is “for the benefit of all peoples” with the environmental review, which ensures that Earth will not be greatly damaged in the process.
Therefore, the current licensing review process most likely reaches the bar set by the “supervision” requirement in the OST. Additionally, after the reviews are passed, the actual license granted provides the United States with the power and obligation to authorize all commercial space activity, which most likely reaches the bar set by the “authorization” requirement in the OST. Further, the addition of the environmental review to the process, and the goals of the policy review, most likely meet the principles set out by the other provisions of the OST, namely the preamble’s overarching ideals for conduct in outer space. Overall, the four-part review process to obtain a license through the FAA meets the secondary responsibility to ensure commercial space activity is authorized and supervised in accordance with the provisions of the OST.
The United States has also mitigated the “responsibility” they bear for this nongovernmental activity within the licensing process by requiring licensees to be almost entirely financially responsible for third-party damages. The licensee is required to have third-party liability insurance that covers the maximum probable loss for the launch or re-entry as well as insurance that covers any governmental liability, such as damage to government property. For launch operators, federal law requires several cross-waivers of liability between its contractors, suppliers, and customers, and the customers’ contractors and suppliers. As a result, the companies and individuals involved in the manufacturing, operating, or purchasing of services for the launch are prevented from suing one another for negligence or gross negligence in the event of an accident. Through this cross-waiver regime, licensee liability insurance requirements, and the requirement to take on financial responsibility, the U.S. national regulations for launch and re-entry address and minimize the State’s responsibility. However, there are still gaps in federal law.
B. How the United States Can Better Address Its International Obligations
National regulation for off-world activity is greatly needed as plans for more manned missions, asteroid mining, a commercial space station, and revisits to the moon become reality.
As mentioned in Section IV.B.2, there is a requirement of not just mere supervision but continuous supervision in the OST, and so far, it has been left unsatisfied. While there is extensive regulation from the FAA for obtaining launch and re-entry licenses, there is a gap as large as space itself when it comes to off-world activity.
The closest the United States has come to national regulation regarding commercial activities while in space is the Commercial Space Launch Competitiveness Act (CSLCA) of 2015. However, the main takeaway from this Act is that it grants property rights to a U.S. citizen—including a U.S. company—that recovers an asteroid or other space resource. Still, the Act does not provide any clear insight into how companies are to obtain these resources; the Act contains only a catchall provision that it must be done “in accordance with applicable law and international obligations.” Increasingly larger portions of nongovernmental activities that the United States is responsible for, are occurring between launch and re-entry, and national regulation must begin to address it.
As discussed at length in Part III, there are already several international treaties that place obligations on the United States; and, while the current national regulation has done well to meet them, the United States could still greatly benefit from additional regulations at the national level. Foremost, nongovernmental space activity still carries great governmental implications. “No nation is more militarily reliant on space assets than the United States. Interference with those assets is, and will remain, a national security concern.” Everyday activities conducted by commercial companies can interfere with these governmental space assets. An accident between space objects can damage others, either directly or through debris, causing cascading collisions and unusable orbits. Further, the technology used to launch objects and vehicles into space resembles an intercontinental ballistic missile.
Another consideration is the need to provide steady footing and reliable expectations to a new industry. If the commercial space industry is going to continue to attract investors to fund these new projects and technologies, the United States must provide investors with some degree of legal certainty. Although it will take time to reach the point where the commercial space sector is more mainstream than science fiction, much of the technological groundwork has already been established and the current national regulation, even with the addition of CSLCA, still presents great uncertainty.
In response, Congress must quickly implement a transparent and stable legal regime for nongovernmental, off-world activities or else commercial space companies will continue to question whether the “activities [they] plan will be blocked or limited . . . at the last minute,” leaving both businesses and investors out of “significant . . . time and money.” As one scholar noted, “The principal reason that space ‘is not being developed is the uncertainty of the legal regime.’”
C. Issues Faced When Employing National Regulations in an International Law Landscape
National regulation is the current answer to the country’s gaps in a legal regime for off-world nongovernmental activity, namely because there is a plethora of issues with implementing new amendments to current international treaties and to creating an entirely new one. Article XV of the OST allows any State Party to the treaty to propose an amendment which is then passed through a majority vote. Currently, the OST has been ratified by 111 States, meaning that fifty-six States would have to agree to a proposed amendment. At the time of its creation, only sixty-four States signed the Treaty on January 27, 1967—more than half of the States that are party to the treaty now. It may be argued that if sixty-four States could agree to an entire treaty, fifty-six States could agree on an amendment; however, there was a severe power imbalance at the time of the OST’s passing. When drafting the OST, the only States of consequence were the United States and the USSR, as they were the only two States with a serious space presence. They were the only States to submit a draft of the treaty, and the only three locations opened for signature were Washington, London, and Moscow. Further, the OST’s status as the “Magna Carta of Space” may provide further mental blocks to amending such a foundational treaty.
The other option is to draft and sign a completely new international treaty, but attempts in the past have not been very successful. The most recent of the five space treaties, the Moon Agreement, has not reached the same status as the other four and has been met with hesitation. The Moon Agreement has yet to be signed by the United States and is far from reaching customary international law status. The United States has attempted to spearhead new international law with the Artemis Accords. However, this international agreement has not gained much traction either, with only about a dozen countries having signed on so far. Unfortunately, it seems that the necessity for broad international law has not reached the level of urgency required for the majority of space-faring States to commit to a binding agreement.
While this Note strongly encourages passing federal laws that will fill in the gaps left by the current treaties’ legal framework, this Author does not purport to imply that it is a long-term solution for an industry that has long-term goals and plans. Even if the United States perfected its national regulations for nongovernmental space activity, other countries may interpret their obligations differently and have more relaxed regulations, leading to a type of forum shopping in which companies will outsource their launches and landings. Keep in mind, that under the OST and Liability Conventions, the United States would still be responsible and liable for out-of-State activities. Or, as previously discussed, there is always the possibility that the States come together and either pass an amendment to one of the international treaties or draft and sign an entirely new one that leaves U.S. national regulations’ null and void. Therefore, national regulation always carries with it the risk of becoming irrelevant, either through a new addition to international law that disagrees with the national regulation or another country passing more favorable national regulation, creating an opportunity for forum shopping. In either situation, the United States is left scrambling to repair its policies and adjust to a new “business as usual.”
Instead, this Note recommends that the United States quickly pass national regulations that address commercial space activity—while the company is in space—as a short-term solution to an immediate concern. However, these national regulations should be drafted in a way that they can provide an example, or at least a launching-off point, for other countries with less developed private space industries to develop and pass their own national regulations. This agreement between national regulations across key, space-faring States may be the best option for eventually developing and instituting new international law to address the commercial space industry, which in this Author’s opinion, is the only viable, long-term solution for the problems presented by this industry.
“It is indisputable that ‘reservoirs of great wealth sit untapped in space.’” Private space companies are aware of this and are making great investments of their time and money in hopes of one day tapping into these resources. Through international treaties, including the OST and Liability Convention, the United States is both responsible and liable for the space activities of these private companies. While the international treaties currently in place provide a framework for States on space law; they are neither extensive nor clear enough to provide the kind of regulation that the United States and its private space companies require.
To fill these gaps, the United States has passed comprehensive federal laws that regulate the launch and re-entry of vehicles along with their launching and re-entry landing sites. However, this progress does not amount to a steady legal regime for the activity that occurs between launch and landing. This presents potential, national-security risks, because the United States is heavily dependent on its space assets, as are other countries that could possibly be affected by a U.S. commercial space mission gone wrong. Further, this lack of certainty inhibits investors, growing companies, new projects, and the industry overall. Ultimately, “[t]he principal reason that space is not being developed ‘is the uncertainty of the legal regime.’”
To quickly address the lack of a legal regime for off-world activity, the United States needs to implement further national regulation. This is necessary not only to encourage commercial space industry growth but also to fulfill the United States’ responsibility to have “continuing supervision” over their activity. Nevertheless, this is not a long-term solution. The United States may face issues with outsourcing or new international laws that make national regulation ineffectual or moot. Yet, at the present moment, the need for a clear legal regime for off-world activity is greater than the risks. This step may even prove beneficial for setting an example, or at least general guidelines, for other space-faring States as they draft their own national regulations, and it could even lead to an international consensus. Still, we are left with the knowledge that while determining the international and national law that will govern space is not rocket science—it doesn’t seem much easier to figure out.
Maddie Davis, The Space Race: Soviets and Americans Race to the Stars, Miller Ctr., https://millercenter.org/the-presidency/educational-resources/space-race [https://perma.cc/A5XK-WVCD] (last visited Jan. 22, 2023).
Blue Origin’s First Astronaut Spaceflight Breaks Four Guinness World Record Titles, Blue Origin (Oct. 1, 2021), https://www.blueorigin.com/news/first-astronaut-crew-receive-guinness-world-records [https://perma.cc/J9KJ-2J8V].
Jackie Wattles, 2021: The Year of Space Tourism, CNN Bus. (Jan. 3, 2022, 4:25 PM), https://www.cnn.com/2022/01/01/tech/space-business-year-in-review-scn/index.html [https://perma.cc/VXG7-QLTS].
Id. (emphasis added).
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, art. VI, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty or OST] (“States Parties to the Treaty shall bear international responsibility for national activities in outer space . . . whether such activities are carried on by governmental agencies or by non-governmental entities . . . .” (emphasis added)).
Id. (“The activities of non-governmental entities in outer space . . . shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”).
Infra Part IV.
Brianna Rauenzahn et al., Regulating Commercial Space Activity, Regul. Rev. (June 6, 2020), https://www.theregreview.org/2020/06/06/saturday-seminar-regulating-commercial-space-activity/ [https://perma.cc/ZTL6-UNPE] (“But existing space law has not kept up with the growth in the private sector, and the United States lacks a comprehensive regulatory regime. In anticipation of a growing commercial space industry, some experts and scholars call for more robust regulation.”).
Infra Section V.A.
Infra Section V.B.
Rebecca Hackler & Rebecca Wright, Commercial Orbital Transportation Services: A New Era of Space Flight 2 (2014) (“Throughout the Mercury, Gemini, Apollo, and Space Shuttle programs, the space agency hired contractors to develop launch vehicles and spacecraft.”).
Presidential Statement on Signing the Commercial Space Launch Act, 2 Pub. Papers 1688 (Oct. 30, 1984) (“One of the important objectives of my administration has been, and will continue to be, the encouragement of the private sector in commercial space endeavors.”).
See Hackler & Wright, supra note 13, at 3–4 (stating that following the crash, President Reagan banned commercial payloads on shuttles; and, that after a series of Congressional hearings on a private space station, NASA saw the private effort “as a direct threat to its own space station program”); Presidential Statement on the Building of a Fourth Shuttle Orbiter and the Future of the Space Program, 2 Pub. Papers 1111–12 (Aug. 15, 1986) (“NASA and the four shuttles should be dedicated to payloads important to national security and foreign policy.”).
Hackler & Wright, supra note 13, at 5.
Id. (detailing a NASA Associate Administrator for Space Access and Technology stating, “[w]e are partners with industry and not their managers”).
Remarks at the National Aeronautics and Space Administration, 40 Weekly Comp. Pres. Doc. 66, 68 (Jan. 14, 2004) (“The legacy of Columbia must carry on—for the benefit of our children and yours.” (internal quotations omitted)).
Id. at 67.
Hackler & Wright, supra note 13, at 8.
Hope M. Babcock, The Public Trust Doctrine, Outer Space, and the Global Commons: Time to Call Home ET, 69 Syracuse L. Rev. 191, 198 (2019).
Kevin MacWhorter, Sustainable Mining: Incentivizing Asteroid Mining in the Name of Environmentalism, 40 Wm. & Mary Env’t L. & Pol’y Rev. 645, 650 (2016) (“NASA awarded . . . contracts worth a combined total of $269.3 million to transport cargo and crew to and from the International Space Station.”). Since the original contract award, more companies have followed suit, including “Orbital Sciences.” Id.
First Official Commercial Cargo Flight Heading to International Space Station, CNN (Oct. 8, 2012, 2:11 PM), https://www.cnn.com/2012/10/07/us/spacex-launch/index.html [https://perma.cc/L78L-EMYC]. In 2012, SpaceX launched Dragon to deliver cargo to and from the ISS. Missions, SpaceX, https://www.spacex.com/mission/ [https://perma.cc/87Q8-6C4Q] (last visited Mar. 29, 2022).
Space Station, SpaceX, https://www.spacex.com/human-spaceflight/iss/ [https://perma.cc/8V3K-4MD3] (last visited Feb. 6, 2022); Danielle Sempsrott, SpaceX’s 22nd Cargo Resupply Mission Underway as Dragon Journeys to Station, NASA Blogs (June 3, 2021), https://blogs.nasa.gov/spacex/2021/06/03/spacexs-22nd-cargo-resupply-mission-underway-as-dragon-journeys-to-station/ [https://perma.cc/BNS8-PJLV].
Missions, supra note 24.
Danielle Sempsrott, NASA, SpaceX Continue Planning for Next Crew Rotation Missions to International Space Station, NASA Blogs (Sept. 7, 2021), https://blogs.nasa.gov/spacex/2021/09/07/nasa-spacex-continue-planning-for-next-crew-rotation-missions-to-international-space-station/ [https://perma.cc/8KYF-CWRF].
Babcock, supra note 22, at 203.
Blue Origin’s First Astronaut Spaceflight Breaks Four Guinness World Record Titles, supra note 2; Blue Origin Completes Third Human Spaceflight, Blue Origin (Dec. 11, 2021), https://www.blueorigin.com/news/new-shepard-ns-19-mission-updates [https://perma.cc/9L2F-D6A9].
Stein & Dutfield, supra note 4.
Earth Orbit, SpaceX, https://www.spacex.com/human-spaceflight/earth/index.html [https://perma.cc/EP7L-MQ8Y] (last visited Feb. 6, 2022). For example, a commercial airline flight from Los Angeles to New York City takes approximately five-and-a-half hours, but on SpaceX’s Starship, the flight would only take half an hour. Id.
Blue Origin and Sierra Space Developing Commercial Space Station, Blue Origin (Oct. 25, 2021), https://www.blueorigin.com/news/orbital-reef-commercial-space-station [https://perma.cc/8KN6-KLZR].
Amanda M. Leon, Mining for Meaning: An Examination of the Legality of Property Rights in Space Resources, 104 Va. L. Rev. 497, 507 (2018); Moon Express, https://moonexpress.com [https://perma.cc/ZM83-5MRZ] (last visited Feb. 12, 2022).
Atossa Araxia Abrahamian, How the Asteroid-Mining Bubble Burst, MIT Tech. Rev. (June 26, 2019), https://www.technologyreview.com/2019/06/26/134510/asteroid-mining-bubble-burst-history/ [https://perma.cc/7YK7-VLDM].
Robin Fall & David Rovella, Space Mining is Here, Led by This Tiny Country, Bloomberg (Dec. 15, 2021, 12:42 PM), https://www.bloomberg.com/news/articles/2021-12-15/space-mining-has-arrived-and-its-biggest-booster-is-luxembourg [https://perma.cc/EBP8-FRFD]; Ariel Cohen, China’s Space Mining Industry is Prepping for Launch–But What About the US?, Forbes (Oct. 26, 2021, 11:40 AM), https://www.forbes.com/sites/arielcohen/2021/10/26/chinas-space-mining-industry-is-prepping-for-launch--but-what-about-the-us/?sh=7271be052ae0 [https://perma.cc/MBK4-M7VQ].
Hackler & Wright, supra note 13, at 3. DOT’s “Office of Commercial Space Transportation” similarly has a dual purpose to encourage the private sector while also regulating commercial launches. Id. NASA’s “Office of Commercial Programs,” similarly, has a dual purpose to encourage the private sector while also finding private sector uses for technology developed by NASA. Id.
Matthew Schaefer, The Contours of Permissionless Innovation in the Outer Space Domain, 39 U. Pa. J. Int’l L. 103, 121 (2017).
Id. at 121–22.
Babcock, supra note 22, at 198.
Davin Widgerow, Boldly Going Where No Realtor Has Gone Before: The Law of Outer Space and a Proposal for a New Interplanetary Property Law System, 28 Wis. Int’l L.J. 490, 499 (2011).
Kenneth Chang, What Will it Cost to Fly on New Shepard?, N.Y. Times (Oct. 13, 2021), https://www.nytimes.com/2021/07/20/science/cost-to-fly-blue-origin-bezos.html [https://perma.cc/M3AY-798V].
Widgerow, supra note 42.
Babcock, supra note 22, at 200.
Id. at 200–01.
Id. at 200; Leon, supra note 34, at 505; MacWhorter, supra note 23, at 652.
Babcock, supra note 22, at 198. When this figure was used by the Keck Institute for Space Studies’ Asteroid Retrieval Mission study and was reported to the Space Subcommittee in the U.S. House of Representatives, Dr. Luis Friedman felt it was conservative, and stated, “Based on my 40+ years of experience, . . . I believe that the cost estimate for this project will be less than two billion dollars.” Next Steps in Human Exploration to Mars and Beyond: Hearing Before the H. Subcomm. on Space, H. Comm. on Science, Space, and Tech., 113th Cong. 23–24 (2013) (statement of Dr. Friedman, Co-Lead, Keck Institute for Space Studies Asteroid Retrieval Mission Study and Executive Director Emeritus, The Planetary Society).
Brian Higginbotham, The Space Economy: An Industry Takes Off, U.S. Chamber Com. (Oct. 11, 2018), https://www.uschamber.com/technology/the-space-economy-industry-takes [https://perma.cc/RYL9-WNYY].
Commercial Space Transportation, FAA, https://www.faa.gov/regulations_policies/faa_regulations/commercial_space/ [https://perma.cc/CHV4-9PKJ] (last updated May 18, 2021).
S. Rep. No. 98-656, at 1–2 (1984) (“Legislation is important also for its role in developing a favorable investment climate. For private sector investors who are interested . . . a legislative commitment could be a critical element in any decision by the private sector to undertake such a venture.”).
Commercial Space Transportation, supra note 50. Under the Commercial Space Launch Act, a U.S. citizen is defined as:
(A) an individual who is a citizen of the United States;
(B) an entity organized or existing under the laws of the United States or a State; or
(C) an entity organized or existing under the laws of a foreign country if the controlling interest (as defined by the Secretary of Transportation) is held by an individual or entity described in subclause (A) or (B) of this clause.
51 U.S.C. § 50902(1).
Commercial Space Transportation, supra note 50. The Commercial Space Launch Act defines “space flight participant” as “an individual, who is not crew or a government astronaut, carried within a launch vehicle or reentry vehicle.” 51 U.S.C. § 50902(20).
51 U.S.C. § 50904. See generally Vehicle Operator Licenses, Fed. Aviation Admin., https://www.faa.gov/space/licenses/operator_licenses_permits/ [https://perma.cc/4H6A-9J45] (last updated Dec. 23, 2022) (providing checklists for operators planning to obtain licenses and permits for a commercial space vehicle).
Schaefer, supra note 38, at 119–20.
Id. at 119; Anthony R. Filiato, The Commercial Space Launch Act: America’s Response to the Moon Treaty?, 10 Fordham Int’l L.J. 763, 775 (1987); see also Commercial Space Transportation Licensing Regulations, 64 Fed. Reg. 19586, 19600–01 (Apr. 21, 1999) (codified as 14 C.F.R. §§ 415.21–.27) (changing “mission review” to “policy review”).
14 C.F.R. § 415.21 (2022).
Id.; Schaefer, supra note 38, at 119; see 14 C.F.R. §§ 415.31–.43, 415.101–.135 (2022).
Filiato, supra note 56; see 14 C.F.R. § 415.37 (evaluating flight readiness).
14 C.F.R. § 415.201.
Brian Abrams, First Contact: Establishing Jurisdiction over Activities in Outer Space, 42 Ga. J. Int’l & Comp. L. 797, 800–01 (2014).
Outer Space Treaty, supra note 7.
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 19 U.S.T. 7570 [hereinafter Rescue Agreement].
Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 861 U.N.T.S. 187 [hereinafter Liability Convention].
Convention on Registration of Objects Launched into Outer Space, Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 [hereinafter Registration Convention].
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, 1363 U.N.S.T. 3 [hereinafter Moon Agreement].
The Rescue Agreement provides “further concrete expression” to the duty to render “all possible assistance to astronauts[,] . . . the prompt and safe return of astronauts, and the return of objects launched into outer space,” given in the Outer Space Treaty. Rescue Agreement, supra note 65, at pmbl. The Registration Agreement provides that the Secretary-General of the United Nations should maintain a register of space objects. Registration Convention, supra note 67, arts. III–IV. Where “space object” is defined to include “component parts of a space object as well as its launch vehicle and parts thereof.” Id. art. I. The Moon Agreement seeks to “define and develop” the provisions of the previous four treaties, as they concern the Moon and other celestial bodies–the primary goal being to promote equality and State cooperation in their exploration and use. Moon Agreement, supra note 68, at pmbl. However, only eighteen countries—the United States not being one—have ratified the Moon Agreement. Status and Application of the Five United Nations Treaties on Outer Space, Comm. on the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm. on Its Sixtieth Session, U.N. Doc. A/AC.105/C.2/2021/CRP.10 (2021) [hereinafter UN Space Treaty Status] (available at https://www.unoosa.org/res/oosadoc/data/documents/2021/aac_105c_22021crp/aac_105c_22021crp_10_0_html/AC105_C2_2021_CRP10E.pdf [https://perma.cc/RVR4-PZ4F]). This lack of broad acceptance means it is only binding to those States who are party to the agreement, which does not include the United States. Babcock, supra note 22, at 207, 212.
Stanley B. Rosenfield, Where Air Space Ends and Outer Space Begins, 7 J. Space L. 137, 144 (1979). The Outer Space Treaty has also been referred to as the “Magna Carta” of outer space. Leon, supra note 34, at 514.
UN Space Treaty Status, supra note 69.
Babcock, supra note 22, at 206–07 (“[T]his wide acceptance has given it the character of binding international law even on those countries who have not ratified it.” (quoting Ezra J. Reinstein, Owning Outer Space, 20 Nw. J. Int’l L. & Bus. 59, 66 (1999))); see also Vienna Convention on the Law of Treaties art. 38, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention] (“Nothing . . . precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.”).
Rosenfield, supra note 70.
Outer Space Treaty, supra note 7, at Annex. (“Recognizing the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes . . . [d]esiring to contribute to broad international co-operation in the scientific as well as the legal aspects of the exploration . . . [h]ave agreed on the following.”).
Babcock, supra note 22, at 211. The preamble of the OST mentions “peace” and “peaceful” four different times. Outer Space Treaty, supra note 7, at Annex.
See generally Outer Space Treaty, supra note 7.
Id. art. VI.
Id. (“States Parties to the Treaty shall bear international responsibility for national activities in outer space . . . whether such activities are carried on by governmental agencies or by non-governmental entities.”).
Id. art. VII.
Liability Convention, supra note 66, art. II.
Id. art. III.
Id. art. IV.
Id. art. VIII.
Outer Space Treaty, supra note 7, arts. VI–VII (discussing State responsibility in Article VI and State liability in Article VII); Liability Convention, supra note 66, arts. II–III (discussing absolute liability for damages caused on the surface of the Earth or in airspace in Article II and fault-based liability for damages caused elsewhere in Article III).
Outer Space Treaty, supra note 7.
See supra notes 77–78 and accompanying text.
Leon, supra note 34, at 520.
Id. (“For example, some academic interpretations of the OST simply apply the principles set forth in the Vienna Convention in order to determine the status of property rights under the Treaty.”).
Cong. Rsch. Serv. for U.S. S. Comm. on Foreign Rel., 106th Cong., Treaties & Other Int’l Agreements: The Role of the U.S. 20–21 (Comm. Print 2001) [hereinafter CRS Treaty Report] (discussing the inability to agree on acceptable conditions between the Department of State and the Senate Foreign Relations Committee, despite the latter’s recommendation to consent to ratification of the Vienna Convention). Vienna Convention on the Law of Treaties, U.S. Dep’t of State, https://2009-2017.state.gov/s/l/treaty/faqs/70139.htm [https://perma.cc/RNA3-4SLS] (last visited Feb. 3, 2023) (“The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties.”).
Leon, supra note 34, at 520–21; CRS Treaty Report, supra note 91, at 44–45 (discussing the Department of State’s position on the status of the Vienna Convention and statements made by President Nixon and former Secretary of State William P. Rogers regarding the Convention) (“For example, the Statute of the International Court of Justice directs the Court, when deciding disputes, to apply international law gleaned from a variety of sources beginning with international conventions.”).
Leon, supra note 34, at 520.
Vienna Convention, supra note 72, arts. 31–33 (containing Article 31, titled “General Rule of Interpretation;” Article 32, titled “Supplementary Means of Interpretation;” and Article 33, titled “Interpretation of Treaties Authenticated in Two or More Languages”).
Id. art. 31.
CRS Treaty Report, supra note 91, at 163 (“[T]he convention stresses ‘the dominant position of the text itself in the interpretative process, whereas U.S. courts are more apt to permit supplementary means of interpretation if necessary.’”).
Vienna Convention, supra note 72, art. 31.
Id. art. 32.
Id. art. 33.
Leon, supra note 34, at 522.
CRS Treaty Report, supra note 91, at 164.
Leon, supra note 34, at 522.
Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (“While courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.”).
See Outer Space Treaty, supra note 7.
Id. art. VI (where only the final sentence discussing international organizations has been omitted) (emphasis added).
Vienna Convention, supra note 72, art. 31; Leon, supra note 34, at 527.
Responsibility, Webster’s Seventh New Collegiate Dictionary (7th ed. 1969).
Responsible, Webster’s Seventh New Collegiate Dictionary (7th ed. 1969).
Responsibility, Black’s Law Dictionary (4th ed. 1968).
Where “Penalty” has been defined as “[t]he sum of money which the obligor of a bond undertakes to pay in the event of his omitting to perform or carry out the terms imposed upon him by the conditions of the bond,” Penalty, Black’s Law Dictionary (4th ed. 1968), and “Repair” has been defined as “to restore to a sound or good state after . . . injury,” Repair, Black’s Law Dictionary (4th ed. 1968).
Webster’s definition of “responsible” even uses the word "liable. Responsible, supra note 111.
See Outer Space Treaty, supra note 7.
Id. art. VII.
See Liability Convention, supra note 66; see also Convention on International Liability for Damage Cause by Space Objects, UN Office for Outer Space Affs., https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introliability-convention.html [https://perma.cc/2YT7-AH8Q] (last visited Mar. 31, 2023) (explaining that the Liability Convention elaborated on Article VII of the OST).
Frans G. von der Dunk, Liability Versus Responsibility in Space Law: Misconception or Misconstruction?, 1991 Int’l Inst. of Space L. of Int’l Astronautical Fed’n 363, 363 (“‘Responsibility’ and ‘liability’ are two important terms in international law pointing to two fundamental principles; space law does not differ in this respect. . . . On closer look, however, the two principles seem far less completely and clearly independent from and unrelated to each other than suggested . . . .”).
Id. (where the terms used for the OST are “responsabilité” in the French translation and “responsabilidad” in the Spanish translation).
Vienna Convention, supra note 72, art. 33.
von der Dunk, supra note 118 (internal quotation marks omitted).
Id. at 364.
Id. The first option may be “impossible” if it is irreparable, such as the deaths of the State’s citizens, or it could be “senseless,” such as the nationalization of foreign assets. Id.
Outer Space Treaty, supra note 7 (“When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.”); U.N. GAOR, 5th Sess., 70th mtg. at 3, U.N. Doc. A/AC.105/C.2/SR.70 (Oct. 21, 1966) (statement of Mr. Morozov, representative of Union of Soviet Socialists Republics (USSR)) (“His delegation was also unable to accept any addition to article VI of its draft treaty, concerning the responsibility of international organizations.”); Id. at 12 (statement of Mr. Blix, representative of Sweden) (“An adequate solution had not yet been found to a rather theoretical problem, namely the responsibility which international organizations themselves would bear for compliance with the provisions of the treaty.”).
Outer Space Treaty, supra note 7.
Id. (“[R]esponsibility . . . shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.”) (emphasis added).
U.N. GAOR, 5th Sess., 61st mtg. at 4, U.N. Doc. A/AC.105/C.2/SR.61 (Oct. 20, 1966) (statement of Mr. Anguelov, representative of Bulgaria).
U.N. GAOR, 5th Sess., 62nd mtg. at 12, U.N. Doc. A/AC.105/C.2/SR.62 (Oct. 24, 1966) (statement of Mr. Cernik, representative of Czechoslovakia) (“As to the content of the treaty, the Soviet draft mentioned certain questions . . . in particular . . . the definition of international responsibility in connexion [sic] with the activities of States or of international organizations in outer space. The majority of representatives had stressed the urgency of settling those questions as soon as possible.”).
Authorize, Webster’s Seventh New Collegiate Dictionary (7th ed. 1969).
Authorize, Black’s Law Dictionary (4th ed. 1968).
Supervise, Webster’s Seventh New Collegiate Dictionary (7th ed. 1969).
Supervise, Black’s Law Dictionary (4th ed. 1968).
Continuing, Webster’s Seventh New Collegiate Dictionary (7th ed. 1969).
Continuing, Black’s Law Dictionary (4th ed. 1968).
Outer Space Treaty, supra note 7, art. VI.
U.N. GAOR, 5th Sess., 61st mtg., supra note 132 (“The rules must also be established on a realistic basis, it being accepted that States must assume primary responsibility for the treaty’s application.”).
Id. at 2–4.
See supra Part IV.A.
See Outer Space Treaty, supra note 7.
See CRS Treaty Report, supra note 91, at 157 (“If a dispute arises between [S]tates concerning a treaty’s implementation, it may be possible for the parties involved to consult and negotiate a mutually acceptable solution.”).
Id. (“If negotiation does not resolve the dispute, the parties may resort to more formal remedies such as conciliation, arbitration and judicial settlement.”).
Leon, supra note 34, at 523. Article III does, however, provide that outer space activity should be conducted “in accordance with international law.” Outer Space Treaty, supra note 7, art. III.
Vienna Convention, supra note 72, art. 66.
Outer Space Treaty, supra note 7.
Leon, supra note 34, at 523–24 (“Ultimately, perhaps this difficulty and debate in even determining how to interpret the OST simply goes to show that the real legal debate . . . will not be resolved within the framework of the OST.”).
See Rauenzahn et al., supra note 10 (“But existing space law has not kept up with the growth in the private sector, and the United States lacks a comprehensive regulatory regime. In anticipation of a growing commercial space industry, some experts and scholars call for more robust regulation.”).
See supra notes 77–78 and accompanying text.
Schaefer, supra note 38, at 117. See generally Vehicle Operator Licenses, supra note 54 (website provides checklists for operators planning to obtain licenses and permits for a commercial space vehicle).
See supra Section II.C for a discussion of the U.S. regulatory requirements.
Schaefer, supra note 38, at 118–19; Filiato, supra 56 (the safety review evaluates the equipment and launch facilities of the proposed launch); see Outer Space Treaty, supra note 7, art. VI (requiring the United States to supervise and authorize nongovernmental activities in outer space); supra Section II.C (discussing how the Commercial Space Launch Act directs the DOT to authorize and supervise nongovernmental operators). See also supra notes 58–61 and accompanying text, for a discussion of the payload review, a federal requirement for license holders planning to launch a payload—an object placed in space.
Outer Space Treaty, supra note 7, at annex. See supra notes 54–61, and accompanying text, for a discussion of the policy and environmental review requirements. See also Environmental, FAA, https://www.faa.gov/space/environmental [https://perma.cc/KJG2-XKDP] (last visited Mar. 31, 2023) (discussing the environmental review process and goals, including the mitigation of potential damage).
Schaefer, supra note 38, at 120.
Id.; see also 51 U.S.C. §§ 50914–15 (listing the requirements for financial responsibility and liability insurance along with the stipulation that the U.S. government will pay claims that exceed the licensee’s financial responsibility and liability insurance).
Schaefer, supra note 38, at 120; 51 U.S.C. § 50914(b).
Schaefer, supra note 38, at 120.
See supra Section II.B.
See generally Space Law, Spacepolicyonline.com, (Dec. 17, 2022), https://spacepolicyonline.com/topics/space-law/ [https://perma.cc/RGJ9-7SKJ] (outlining the current domestic and international space law in place along with brief descriptions of each).
51 U.S.C. § 51301 (giving the term United States Citizen the same definition as found in § 50902).
Id. §§ 51302–03. See generally Space Law, supra note 163 (where the only off-world highlight of the Act is the addition of property rights).
51 U.S.C. § 51303.
See supra Section II.A (including projects such as a commercial space station, moon and asteroid mining, and space tourism).
Schaefer, supra note 38, at 158.
Id. at 157–58.
Id. See generally W.J. Hennigan, Astronauts Take Shelter Aboard ISS After Russian Anti-Satellite Test, U.S. Says, Time (Nov. 15, 2021, 4:15 PM), https://time.com/6117840/astronauts-shelter-iss-russia-test/ [https://perma.cc/65GF-UREC] (reporting on the Russian missile test that destroyed an old satellite and created a cloud of debris that caused the astronauts on the ISS to shelter in place for about two hours).
Schaefer, supra note 38, at 158.
Leon, supra note 34, at 503.
Id. at 507–08 (speaking of the SREU Act). Where the SREU Act is Title IV of the CPLCA. U.S. Commercial Space Launch Competitiveness Act of 2015, H.R. 2262, 114th Cong. (2015).
Schaefer, supra note 38, at 160.
Babcock, supra note 22, at 206.
Outer Space Treaty, supra note 7, art. XV.
U.N. Space Treaty Status, supra note 69.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, U.S. Dep’t of State, https://2009-2017.state.gov/t/isn/5181.htm [https://perma.cc/58XY-4PPC] (last visited Feb. 12, 2022).
Ezra J. Reinstein, Owning Outer Space, 20 Nw. J. Int’l L. & Bus. 59, 62–63, 66 (1999).
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, supra note 179. In the context of the Cold War, “the OST represents a diplomatic stopgap hurriedly prepared before the first landing on the moon could ignite a new theater of Cold War conflict.” David Johnson, Comment, Limits on the Giant Leap for Mankind: Legal Ambiguities of Extraterrestrial Resource Extraction, 26 Am. U. Int’l L. Rev. 1477, 1508 (2011). “When viewed as a response to this perilous era, the OST begins to look much more like a nuclear arms treaty and an attempt to ease Cold War tensions . . . .” Leon, supra note 34, at 532.
Leon, supra note 34, at 514.
Only eighteen countries, the United States not being one, have ratified the Moon Agreement. U.N. Space Treaty Status, supra note 69; cf. Reinstein, supra note 180, at 66 (indicating that the OST’s wide acceptance gives it binding international status). This lack of broad acceptance means it is only binding on those States who are party to the agreement. Babcock, supra note 22, at 207.
“The Artemis Accords will describe a shared vision for principles, grounded in the Outer Space Treaty of 1967, to create a safe and transparent environment which facilitates exploration, science, and commercial activities for all of humanity to enjoy.” Principles for a Safe, Peaceful, and Prosperous Future, NASA, https://www.nasa.gov/specials/artemis-accords/index.html [https://perma.cc/5UPL-82JT] (last visited Jan. 29, 2022).
Id. (“More than a dozen countries have signed the Artemis Accords.”).
Schaefer, supra note 38, at 127.
Under the OST Article VII, any “State . . . that launches or procures the launching of an object into outer space, . . . and . . . State[s] . . . from whose territory or facility an object is launched, is internationally liable for damage[s] . . . .” Outer Space Treaty, supra note 7, art. VII. In other words, any State that meets the definition of “launching State” given in Article I of the Liability Convention can be held liable for damages. Liability Convention, supra note 66, art. I.
Babcock, supra note 22, at 199.
Id. at 206.
Outer Space Treaty, supra note 7 (emphasis added).