TO INFINITY AND BEYOND? THE HISTORY OF SPACE TRAVEL AND THE LEGAL IMPLICATIONS OF PRIVATIZED SPACE FLIGHT THROUGH THE LENS OF SPACEX.
TABLE OF CONTENTS I. Introduction 152 A. Space Travel Through History 152 B. Elon Musk and the Future of Space Travel 154 II. Current Legislation 158 III. Issues 163 A. Habitization 163 B. Colonization 166 C. Liability 169 D. Jurisdiction 173 IV. New and Proposed Legislation 176 V. Conclusion 179
A. Space Travel Through History
On October 4, 1957, a satellite weighing approximately 185 pounds and no more than two-feet in diameter was the first object to be successfully launched into space. (1) This satellite named Sputnik traveled at about 8,000 meters per second, taking ninety-eight minutes to successfully orbit the earth. (2) Ninety-two days later it re-entered earth's atmosphere and burned. (3) Sputnik's initial launch signaled a change in scientific development and introduced the world to our first journey into the final frontier.
The Soviet Union's successful launch of Sputnik not only encouraged the science community, but instilled fear in Americans during the midst of the Cold War. TIME magazine noted that the "chilling beeps" emitted from Sputnik signified a "remarkable scientific achievement" and served as evidence of the Soviet Union's prowess in the Cold War. (4) America's fear of falling behind the USSR's achievement served to advance scientific research in the United States, which lead to the development of our nation's space exploration program. (5) And thus, the beginnings of the space race ensued. (6)
Immediately following the successful launch of Sputnik, the U.S. Department of Defense approved funding for a new satellite program. (7) In January 1958, the United States successfully launched Explorer 1 from Cape Canaveral, Florida. Explorer 1 was the first satellite launched by the United States. Once Explorer was in orbit, the existence of Van Allen Belts were discovered, setting the United States apart in the field of space exploration. (8) In October 1958, the National Aeronautics and Space Administration (NASA) was created to continue the exploration of space for "the benefit of all mankind." (9)
In 1961, while President John F. Kennedy was in office, tensions between the United States and the Soviet Union heightened, and the space race was in full swing. In a message to Congress, Kennedy gave NASA the ultimate challenge: "I believe that this nation should commit itself to achieving the goal, before this decade is out, of landing a man on the moon and returning him safely to Earth." (10) To all of America's joy, NASA fulfilled Kennedy's dream on July 16, 1969 when Apollo 11 sent Neil Armstrong, Buzz Aldrin, and Michael Collins into space. (11) The Apollo lunar module Eagle, manned by Armstrong and Aldrin, landed in the Sea of Tranquility on the moon's surface. (12) Neil Armstrong exited Eagle and became the first person to set foot on a celestial body, proclaiming the now infamous words: "That's one small step for man, one giant leap for mankind." (13)
B. Elon Musk and the Future of Space Travel
Since the launch of Apollo 11, a dozen men have walked on the lunar surface, a feat that, before 1957, many considered impossible. (14) Mankind has continued to push the boundaries of space exploration, reaching 248,655 miles above earth's surface, and sending unmanned probes beyond our own solar system and into interstellar space. (15) As we continue to learn more about our own solar system, we also continue to push the boundaries of what we once thought impossible and attempt to reach new horizons in outer space.
While the scientific community continues to learn more about our solar system, one man in particular has dreams of pushing the boundaries of space travel farther than anyone else. Elon Musk is a South African born entrepreneur known for founding X.com (now known as PayPal) and Tesla Motors, for which he currently serves as CEO. (16) Musk is famously known for pushing the boundaries of technology with Tesla, creating a full range of all-electric vehicles. (17) Musk's passion for clean energy has inspired his next project--SpaceX.
Founded in 2002 by Elon Musk, SpaceX was developed with the intent to "revolutionize space technology, with the ultimate goal of enabling people to live on other planets." (18) The company currently has three orbital class rockets, all of which have completed sanctioned missions into space. (19) In 2010, SpaceX became the first and only private company to return a spacecraft from orbit. (20) In 2012 using an unmanned spacecraft, the company successfully delivered cargo to the International Space Station - "a challenging feat previously accomplished only by governments." (21) Since 2012, the spacecraft Dragon, (22) completed regular resupply missions for NASA. (23) In 2017, Musk and SpaceX accomplished a massive feat of space sustainability. (24)
Generally, a spacecraft accomplishes a single mission and any remaining materials are then used for scrap. For each new mission, a new rocket must be constructed, which can cost public and private companies millions of dollars. (25) Since 2011, SpaceX has worked towards making partially reusable rockets. (26) To carry out this effort SpaceX engineers land all rockets upon return to orbit with the hopes of using pieces of previously flown rockets to reduce the manufacturing costs for new missions. (27) In March 2017, SpaceX successfully completed a mission using a recycled Falcon 9 rocket. (28) The entirety of the rocket was not used, as certain chambers detach from the main body upon takeoff. (29) The first stage of the Falcon 9 - where the launch fuel and main engines are kept - detaches from the cargo-carrying rocket once in orbit, and is guided back down to earth where it makes a controlled landing. (30) Using a recycled first stage chamber, the company is able to save money while producing rapid turnaround for upcoming missions. (31)
Musk hopes that by mastering rocket reusability, SpaceX will soon be able to have complete craft reusability. (32)
SpaceX's ultimate mission extends far beyond rocket reusability. Its goal is to land a new spaceship, code name BFR, on Mars' surface by 2022. (33) The BFR will become the first commercial flight to Mars, carrying not only crew and cargo, but paying passengers. (34) To get there, Musk plans to begin construction of the new ship by the second quarter of 2018. (35) According to Musk's presentation at the International Astronautical Congress meeting in Adelaide, Australia in September of 2017, the construction of the first BFR is already in its early stages. (36) Musk claimed that, as of September, the construction facility was being built and tooling for the BFR has been ordered. (37) Musk is confident that the construction of the BFR will be complete within five years, or shortly thereafter. (38) By 2022, Musk hopes for a successful Mars rendezvous. (39) The goal of 2022 is crucial to Musk's plan because of planetary synchronicity, which for Earth and Mars, occurs roughly every two years with the Hohmann transfer orbit, which is the limited launch window enabling Earth launched spacecrafts to reach Mars. (40) The transfer allows for a spaceship launch from Earth to meet Mars at the same time when the ship is at its furthest orbital point. (41) By the following synchronicity in 2024, Musk plans to fly four additional BFRs to Mars' surface. (42) These ships would include two for cargo purposes, and two with crew to begin construction of a Martian propellant depot and permanent base. (43) The propellant depot would allow for rocket reuse, allowing for a return to Earth for additional supplies and passengers. (44)
When the Martian surface is ready for Musk's intended colonization, the BFR will have forty individual travel cabins, holding a maximum of five to six individuals. (45) Musk anticipates no more than two to three people per cabin, placing approximately 100 private citizens on the Martian surface by the late 2020s. (46) Based on the projected trajectory, payload, (47) and fuel capacity, Musk believes the journey will take no more than three to six months, (48) allowing for the development of space tourism and the creation of an interplanetary species. (49)
To create a habitable Martian surface, Musk has another bold plan. Musk's plan for the Mars colony is not to simply create a massive station capable of supporting human life; rather Musk hopes to restructure the Martian atmosphere to create a habitable environment for humans. (00) The colony will initially be composed of "transparent dome" constructions regulating the internal environment in order to provide oxygen and other elements necessary for colonists to live without the use of space suits. (51) Eventually, as Musk believes, we can restructure Mars to be more of an Earth-like planet, (02) He claims that the fastest way to create a habitable environment on Mars is to "warm it up" by periodically "drop[ing] thermonuclear weapons over the poles" of Mars. (53) These bombs would burn up some of the chemical composition of the atmosphere, creating a temperature-controlled environment with proper elemental compositions similar to those in the Earth's atmosphere. (04) Alternatively, the "slow way" of creating a habitable planet would be to release greenhouse gases, like those on Earth, to warm up the planet and create a sustainable atmosphere. (55)
As our universe continued to expand, both literally and figuratively, from the early days of Sputnik, not only have we ushered in a new era of scientific research and development, but also found increased international cooperation and the development of new legislation for continued cosmic peace. However, with Musk's plan for Martian colonization to begin in 2022, we first must ask whether his plan is legally feasible and then begin to fill the gaps in our current legislation and our anticipated future as a multi-planet species. This comment attempts to address some of the legal questions that are posed under Musk's plan for Martian colonization. However, it may raise more questions than it answers. These questions, though, are of vital consideration when attempting to establish a more defined legal regime for our future as a space-faring people.
II. CURRENT LEGISLATION
In 1967, ten years after the shocking launch of Sputnik I, the United States, the Soviet Union, and the United Kingdom signed a document drafted by the Legal Subcommittee of the United Nations. (56) The document titled "Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies," is more commonly referred to as the Outer Space Treaty of 1967. (57) The Outer Space Treaty has served as the "foundational instrument" of international space law and "established a series of broad principles that have been elaborated upon and implemented in subsequent international treaties and national laws." (58) The treaty states that it was "[i]nspired by the great prospects opening up before mankind as a result of man's entry into outer space." (09)
The drafting and signing of this document signaled the birth of space law. (60) Established with the intent "to regulate relations between States," space law "determine[s] their rights and duties resulting from all activities directed towards outer space and within it - and to do so in the interest of mankind as awhile, to offer protection to life, terrestrial and non-terrestrial, wherever it may exist." (61) The first three articles of the Treaty lay out the general provisions of space law, declaring that outer space "shall be the province of all mankind," (62) outer space cannot be appropriated by any nation, (63) and the exploration and use of space must be done in compliance with international law "in the interest of maintaining international peace and security and promoting international co-operation [sic] and understanding." (64)
And at the height of the Cold War, the treaty was written with the purpose of establishing a legal regime to maintain peace in outer space, a task it has successfully accomplished since the day of its drafting. (60) The treaty was, in part, the result of the
"polarized will of the United States and the Soviet Union." (66) There was a general fear of militarizing space and increasing the tensions of the Cold War, which the Treaty hoped to prevent. (67) Article IV of the Treaty does so by stating that no nuclear weapons or other weapons of mass destruction can be placed into orbit or installed in the surface of a celestial body. (68) President Lyndon B. Johnson applauded the Outer Space Treaty stating: "We are taking the first step toward keeping space free forever from the implement of war. We have never succeeded in freeing our planet from the implement of war. But if we cannot achieve this goal here on this earth, we can at least keep the virus from spreading." (69)
Since its inception, individuals have attempted to understand space law within a larger framework of international law." (70) Oftentimes, space law is compared with the Antarctic Treaty of 1959 because of its similar underlying goals to advance peace and international scientific achievement. (71) That comparison, while showing the similar nature of the two documents, quickly indicated a "number of disparities":
[t]o name but two, the Antarctic Treaty features a system of inspection that could not possibly be applied in outer space; moreover, there is as yet no internationally recognized boundary of outer space, unlike the clearly specified boundaries of Antarctica. But the two objects of comparison also have some elements in common, one of them being the wish to waive certain national needs and requirements for the sake of achieving the widest possible freedom of scientific investigation and cooperation toward that end. A further analogy lies in the fact that all claims aimed at establishing rights of sovereignty in Antarctica have been frozen and all acts and activities for asserting such rights during the time the Convention is in force have been banned. (72)
Despite the differences, the two treaties set forth similar ideals. (73) This is unsurprising considering that the scientific development that took place in outer space and Antarctica, especially regarding research and exploration, was advanced through the same organization. (74) Proposed in 1952, the International Geophysical Year (IGY) "intended to allow scientists from around the world to take part in a series of coordinated observations of various geophysical phenomena." (75) IGY officially commenced in July 1957, ending in December 1958, with the involvement of sixty-seven countries. (76) Despite the tensions of the Cold War and the inherent competitive nature of the Space Race, (77) IGY activities were executed with extreme care "to ensure that [they] would remain nonnationalistic, apolitical, and geared toward a scientific agenda." (78) IGY activities in the Antarctic advanced our understanding of glaciers, "improved meteorological prediction," and gave us a better understanding of "seismological phenomena;" while developments in technology and rocketry "made the exploration of space a real possibility," leading to the first successful launch and orbit of an artificial satellite. (79)
The Outer Space Treaty is not the only law governing activities in outer space. Following the drafting of the Outer Space Treaty, four other documents were drafted. (80) Together these are commonly referred to as the "five United Nations treaties on outer space." (81) In addition to the Outer Space Treaty, the five treaties include: (i) Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space
("Rescue Agreement"); (82) (ii) Convention on International Liability for Damage Caused by Space Objects ("Liability Convention"); (83) (iii) Convention on Registration of Objects Launched into Outer Space ("Registration Convention"); (84) and (iv) Agreement Governing the Activities of States on the Moon and Other Celestial Bodies ("Moon Agreement"). (85) Drafted between 1967 and 1984, these five treaties have shaped the legal landscape in outer space. (86) The treaties cover a number of issues including:
the non-appropriation of outer space by any one country, arms control, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, the prevention of harmful interference with space activities and the environment, the notification and registration of space activities, scientific investigation and the exploitation of natural resources in outer space and the settlement of disputes. (8) Each of the treaties stresses the notion that outer space, the activities carried out in outer space and whatever benefits might be accrued from outer space should be devoted to enhancing the well-being of all countries and humankind, with an emphasis on promoting international cooperation. (88)
Despite the advancements made in space law with the drafting of the Outer Space Treaty and subsequent agreements, treaties, and resolutions, few additions have been made to space law since our first launches into the final frontier. (89) Our current legal regime fails in outer space to consider a number of potential issues that are becoming more and more likely with the growth of privatized space travel.
Commercial space flight is just one of the potential sources for discovering legal issues that our current law is unable to address. These issues will not be limited to expeditions like those of SpaceX, but will also arise from less extreme suborbital spaceflights. (90) As a growing number of issues with space travel will begin to come to light, it is important to begin thinking of the changes to current space law that will help alleviate some of these issues. "Space companies, legislatures and courts will need to address questions of liability in the event of accidents, the enforceability of liability waivers, insurance requirements, and the sufficiency of informed consent for passengers." (91) These issues are only a few of the challenges that privatized space travel will raise. However, with a plan like that of Elon Musk, the issues will not only come from space flight, but also from the potential of making a permanent residence in space and establishing man-kind as an interplanetary species.
Musk's habitazation plan is, arguably, in direct conflict with the Outer Space Treaty. Article IV of the Treaty states, "... Parties to the Treaty undertake not to place in orbit around the Earth any object carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station weapons in outer space in any other manner." (92) Musk's plan to periodically detonate explosives in the Martian atmosphere to create an atmosphere habitable for humankind would be impossible under the Treaty. There is one exception to rule in Article IV. (93) The exception states, "the use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited." (94) Unless Musk can somehow claim that the explosives fall under the Article IV, paragraph 2 exception, his thermonuclear plan will fail. Article IV, however, is not the only regulation around which Musk must navigate.
The Outer Space Treaty does not only prevent nuclear weapons from entering into space, but prevents contamination of planetary environments and eco-systems. (95) The Treaty explicitly states that parties conducting exploration or research on celestial bodies should do so "to avoid their harmful contamination." (96) The prohibition of introducing contaminants in outer space, called planetary protection, is now "an agreed international practice that is defined by the United Nations, promulgated by the Committee on Space Research (COSPAR), and practiced by space-faring agencies such as NASA, the European Space Agency... and others." (97) COSPAR has set guidelines for proper cleaning and decontamination of spacecrafts; however, under current space law, these mandatory rules apply only to federal agencies. (98) Private space exploration companies such as SpaceX are bound by different, less stringent guidelines. (99) Despite differing regulations for federal agencies and private companies, private entities are still required to abide by the laws laid out in the Outer Space Treaty. (100) Therefore, SpaceX remains obligated to treat the Martian environment with the utmost care.
Musk's plan is also in conflict with the Moon Agreement. According to the Moon Agreement, (101) which "also appl[ies] to other celestial bodies within the solar system," (102) nations exploring the Moon or other celestial bodies, "shall take measure to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise." (103) This provision restates concepts set forth in Article IX of the Outer Space Treaty, ensuring that the introduction of earth microbes to other planets is limited, causing minimal contamination to a planet's ecosystem. Furthermore, the Moon Agreement also restates provisions in Article II of the Treaty, stating "parties shall not place into orbit around or other trajectory to or around the moon, objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the moon." (104) This restatement attempts to ensure that the weaponization of outer space is prevented, both for the interest of peace and to prevent damage in outer space.
Creating a habitable environment on Mars raises a number of legal inquires. Introducing nuclear weapons to outer space and using them to alter the environment of a planet's stable ecosystem is in direct conflict with the Outer Space Treaty. (105) However, because plans for the Martian colony are arguably for peaceful and exploratory purposes, Musk may be able to execute his plan by circumventing this restriction. With this is mind, would the detonation of thermonuclear bombs be permitted due to the impact on the Martian environment and alteration of the atmosphere? Despite the leniency in regulations regarding decontamination for private companies, SpaceX would still be under the obligation to prevent the introduction of microbes on Mars, but to what extent would decontamination be required, knowing that, by introducing humans to a sustainable colony, we would inherently be introducing Earth microbes to the Martian surface? But before Musk can change the atmospheric composition of Mars, it is imperative to address the question of what property rights would Musk have when creating a Martian colony and whether he is legally able to begin construction on the Martian surface.
Should Musk's plan to get mankind to Mars be successful, the colonization of Mars raises a number of legal issues that are in direct conflict our current Space Law. According to Article II of the Outer Space Treaty, "Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." (106) Proponents of space colonization have interpreted Article II in various ways, hoping to either stretch or reduce the language of the Treaty to fit their prospective goals.
Wayne N. White, attorney and author on space law, theorizes, "[i]t is possible for property to exist in the absence of sovereignty." (107) White suggests that the creation of property rights in outer space is necessary. (108) He believes that the "institution of real property is the most efficient method of allocating the scare resource of location value." (109) White suggests that Article II of the Outer Space Treaty "prohibits territorial sovereignty but does not prohibit private appropriation." (110) White claims that in order to create these property rights in outer space, the acquisition of property must be done by a private entity such as SpaceX. (111) But with no claims of sovereignty, there will be no one to recognize or enforce the theoretical property rights asserted by private companies.
White interprets Article II of the Outer Space Treaty narrowly; claiming the clause only applies to government entities, rather than private companies. (112) What he fails to consider, is Article VI, which states that the country that authorizes a private launch is responsible and liable for all actions of the launch party. (113) Additionally, the use of the phrase "by any other means" in Article II can easily be interpreted to include private appropriation, making White's narrow interpretation flawed. (114) Not only does White fail to consider Article VI, he also disregards Article I which clearly states, "there shall be free access to all areas of celestial bodies." (115) Should a private company or individual try to establish real property rights on another planet, others would not be required to recognize those rights and could try to assert the same claims over the land.
White is not the only person to theorize that property rights can exist in space, regardless of the current language of the Treaty. Others advocate a unilateral reinterpretation of Article II in its most literal sense. Under this reading, "national appropriation" would apply only to national appropriation by sovereign government, allowing "other entities like private companies and non-governmental organizations to appropriate territory." (116) However, this interpretation of Article II is problematic for other reasons. According to the Vienna Convention on the Law of Treaties: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (117) A reinterpretation of Article II to limit the language to its most literal definitions would, therefore, be a complete disregard of well-established international law.
Article II, however, is not the only debated article that may allow for the establishment of property rights. N.M. Matte, who was a professor of Air and Space Law at the University of Montreal, wrote in 1969 regarding the assertion of property rights in space. (118) His interpretation of property rights in outer space did not rely on Article II, but rather focused on an alternative interpretation of Article VIII. (119) According to Article VIII of the Treaty:
A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object... while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed on or construction on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body.... (120)
Matte asserts that when movables are attached to the surface of any celestial body, they become immovables by destination. (121) This classification as immovables "grants the state to which they belong a right to the 'soil' of celestial bodies, or at least a right to the surface. Thus... we arrive at an ownership, in truth a sovereignty, by technical and industrial occupation, without giving it a name." (122) However, Matte fails to address how far this ownership applies. (123)
Furthermore, Article XII of the Treaty asserts that "All stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity." (124) Article XII inherently suggests that some recognition of property rights and state sovereignty, at least of the physical structures, stopping on the soil on which they stand, exist in outer space. (125)
It can be argued that the plan to colonize Mars aligns perfectly with Article I of the Treaty. Rather than claiming the Martian colony as part of the United States, Musk could claim that the colony belongs to all mankind in order to create a multi-planet species. To align with Article I, the colony would need to be "free for exploration and use by all States without discrimination of any kind... " (126) The colony would also be required to allow for use for scientific research and international cooperation in such research. (127) However, even if Musk can navigate around the issues of property rights and claim the use of the colony for and belonging to any individual, there is still the question of jurisdiction. Therefore, in order to truly allow mankind to become a multi-planetary species, new legislation must be drafted allowing for individuals to assert property rights in space and ensure that those property rights will be recognized.
Based on the language in Article VI of the Outer Space Treaty, the United States would bear the responsibility of ensuring SpaceX conforms to the provisions listed within the Treaty. (128) The United States would be required to authorize and supervise the SpaceX mission throughout the course of its launch and colony construction. (129) Should the SpaceX mission go awry, the United States would be liable for any damages caused "to another State party to the Treaty or to its natural or juridical persons by such object or to its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies." (130) Based on Musk's projections of placing at least 100 people on the Martian surface within the early stages of constructing a permanent colony, should accident occur, the United States, as the government authorizing and supervising the SpaceX mission, could potentially be liable for at least 100 actions for damages.
The United States, however, anticipated the potential for damages involving space flight participants and passed the Commercial Space Launch Act of 1984. The act, "as amended at 51 U.S.C. [section][section] 50901-50923, authorizes the Department of
Transportation, and thus the Federal Aviation Administration (FAA), to oversee, license, and regulate commercial launch and reentry activities, and the operation of launch and reentry sites as carried out by U.S. citizens or within the United States." (131) The FAA, therefore, is directed "to exercise this responsibility consistent with public health and safety, safety of property, and the national security and foreign policy interests of the United States." (132) Before any spacecraft can enter into orbit, the craft must obtain approval from the FAA. (133)
According to 51 U.S.C.A. [section] 50904, all commercial launches are required to receive a license or permit for any launch within the United States. (134) Before a permit is granted, the FAA requires that the launch company comply with those rules in the Code of Federal Regulations, Title 14 - Aeronautics and Space, Chapter III - Commercial Space Transportation, Federal Aviation Administration, Department of Transportation. (135) Chapter III covers all necessary requirements ranging from payload approval, craft inspections and safety, crew qualifications. (136) In 2016, the FAA granted a "favorable payload determination" to a private corporation for the first time, giving the corporation explicit permission to land on the moon. (13)' Every payload determination is conducted on a case-by-case basis, meaning SpaceX would be required to have every individual payload approved before launch. (138) The payload approval is needed in addition to receiving a license permitting specific activities once in outer space. (139) Under the current regulations, "any person with rights in the payload or any part of the payload, or any person who has placed property onboard the payload for launch, reentry, or payload services" is required to sign an Agreement for Waiver of Claims and Assumption of Responsibility for Permitted Activities. (140)
As a result, the United States requires any "Space Flight Participant" to sign a waiver of claims and assumption of liability. (141) The waiver limits the liability of the United States and any contractors or subcontractors for any injuries sustained by space flight participants. (142) Pursuant to the regulations listed in Title 14 of the Code of Federal Regulations, all space flight participants are required to submit a signed waiver before the FAA grants permits or licenses for commercialized space flight. (143)
In 2012, issues regarding the current regulations became apparent. When SpaceX launched Dragon to deliver cargo to the International Space Station, the payload also included "a number of student experiments as part of NASA's Student Spaceflight Experiments Program (SSEP)." (144) NASA contracted with a company "to carry the student experiments by installing an experimental locker onboard the International Space Station." (140) Under the current FAA definitions, the locker company and each individual student whose experiment was included in the launch became a "customer" of NASA because of their participation and rights in the payload. (146) Therefore, every party who was a customer, as well as the FAA and SpaceX, was required to sign an Agreement for Waiver of Claims. (147) This regulation, therefore, has been, and will continue to be, particularly burdensome for SpaceX. Prior to the Dragon launch to the ISS, to ensure full compliance with Title 14, SpaceX requested partial waiver from the FAA of [section] 440.17 requiring the signatures of every customer to the payload. (148) Since October 2012, the FAA has only granted three partial waivers. (149) Waiving the requirement is not only costly and time consuming for the FAA, but also for the parties requesting waiver. (100)
In addition to the Outer Space Treaty, the United Nations also established the Liability Convention. (151) According to the Liability Convention, "a launching State shall be absolutely liable to pay compensation for damage caused by its space object..." (152) While the bulk of the Liability Convention focuses on remedying damage caused to Earth or other parties' property, Article III discusses liability for damage caused to persons or property while in outer space. (153) If injury is caused to a person or person's property while in outer space, they may only seek damages from the launch party if there is fault, either of the launch party or by a person for which the launch party is responsible. (154) It is important to note however, that Article VII reduces the liability of the launch state, by excluding liability where injury to a national of the launching state occurs. (155) Therefore, if injury to a United States citizen or the citizen's property occurs while in outer space, the United States would not be liable for damages. The Liability Convention, however, only anticipated injury caused by governmental or government contracted space objects. Yet, if the launch state is responsible for the activities carried out in space by government and non-government agencies, (156) the question remains whether passengers would have any claim for damages for injury caused by participation in a privatized space flight. Additionally, what liability can be waived by a commercial space company such as SpaceX? For example, should Elon Musk's plans for construction of a Martian colony fail or should a devastating accident occur to the first Martian settlers, would SpaceX be able to waive all liability for any injury, including death? In an entirely uncharted landscape, both physical and legal, what types of damages could a plaintiff seek? Furthermore, should SpaceX go through the proper licensing and waiver steps, would the undetermined question of liability dissuade the United States from even authorizing such a lofty venture?
Article VI of the Outer Space Treaty states that "State Parties to the Treaty shall bear international responsibility for national activities in outer space... whether such activities are carried on by governmental or by non-governmental agencies." (157) The Treaty goes on to state in Article VIII that "A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body." (158) In understanding jurisdiction in space, "maritime laws provide a good example of the type of legal system we could expect.... Like international waters, nobody can own Mars, so instead each ship needs to follow the rules of the country whose flag it flies under." (159) It would seem, then, that the United States would have jurisdiction over the SpaceX passenger rocket and over the colony once it was established. The Treaty, however, only contemplates jurisdiction over the personnel of the craft or established base. (160) Personnel would include any of those persons employed by SpaceX or "participating in the operation of that space object from the time of its launching or any state thereafter until its descent." (161) A passenger would be any rider who paid ticket fare for transportation. (162) According to the current language of the Treaty, the concept of space tourism was never considered. (163) Therefore, while in transit, jurisdiction over the individuals who are on board strictly as passengers still needs to be determined.
With a projected ticket fare upwards of $200,000, Musk knows that "not everyone would want to go...." (164) To make the trip more affordable for those who are interested, Musk plans for a form of indentured servitude, or "sponsorship." (160) Musk's sponsorship plan would allow for "the point where almost anyone... could buy a ticket and move to Mars--and given that Mars would have a labor shortage for a time, jobs would not be in short supply." (166) Therefore, if the passengers became personnel through sponsorship, the United States would certainly have jurisdiction over those individuals for the time they are employed by SpaceX, but jurisdiction over those individuals outside of the SpaceX sponsorship or employment remains an issue.
Article VIII of the Treaty also allows the launching state to retain jurisdiction over any object registered from that country, including those "objects landed or constructed on a celestial body, and of their component parts..." meaning the United States would have jurisdiction over the colony construction. (167) Because the United States would have jurisdiction over the base construction, jurisdiction could reasonably be extended to those within the base. One interesting issue this poses is the status of foreign nationals during their possible extended stay on Mars. Strangely, under current law, this would probably mean that any foreign nationals would need a visa in order to remain within the jurisdiction of the United States while living in the colony. Any foreign national would be required to obtain a visa in order to live within the jurisdiction of the United States for an extended period of time. (168) If these individuals chose to participate in the SpaceX sponsorship program, they would be required to apply for an immigrant visa under the sponsorship of their employer, SpaceX. (169) The sponsor would be required to file a petition with U.S. Citizenship and Immigration Services. (170) Upon approval of the employer's petition, the individual could then begin applying for an employment based immigrant visa. (171) However, should a foreign national reach the SpaceX colony without proper immigration documents, what issues would result?
According to the Rescue Agreement, contracting parties are under the obligation to return astronauts and space objects to the launching party. (1,2) The Rescue Agreement comes into play if an astronaut, while on descent to earth, lands outside of his launch party's jurisdiction. (173) While the Rescue Agreement does not contemplate an accidental landing on any other planet or celestial body, should a foreign national reach the SpaceX colony, under what obligation would the United States be required to return him to his home country? Alternatively, if it were discovered that a foreign national was living in the SpaceX colony, would there be an obligation to deport him?
Although the United States would have jurisdiction over the immediate base construction, jurisdiction would be questionable upon expansion of the colony. Should Elon Musk's plan to terraform Mars, in order to create a habitable and sustainable environment, be successful, the need to remain within the confines of the base constructions would diminish. This means that should a person not employed by SpaceX be able to exit the physical base they may no longer be under the United States' jurisdiction, according to the current language of the Treaty.
Additional questions of jurisdiction may come about the longer the colony remains viable. Currently, Article VIII of the Treaty only considers structures built on the surface for a temporary period of time. (1,4) The entirety of the Treaty only contemplates inter-planetary travel and residence for exploratory or research purposes. (175) This means that jurisdiction is limited only to the time it takes for the research purposes and "ceases to exist when the activity is halted - as, for example, when a space object is abandoned or returned to Earth." (1,6) Jurisdiction could then exist from the time construction of the colony begins, but when the colony becomes fully functional for permanent habitation purposes, does jurisdiction continue indefinitely for as long as there are residents?
IV. NEW AND PROPOSED LEGISLATION
When SpaceX completed its contracted resupply mission to the International Space Center, a flaw in our current liability waiver regulation was discovered. (177) Rather than obtaining the signatures over every party involved in the payload, SpaceX requested a partial waiver of the [section] 440.17 requirements. (1,8) As a result of this burden, in 2015 the FAA moved to amend the waiver requirement for contracting parties. (1,9) Rather than needing signatures for waiver from all parties involved, "first-tier customers would flow down the reciprocal waiver requirements to their customers." (180) This would mean that parties contracting directly with SpaceX would be required to sign the waiver, but secondary parties to the contract would waive liability through their agreement with the contracting party. While the amendment may not be revolutionary in the broader scope of space law, since becoming effective in 2016, (181) it has eased the process for commercial space travel.
In June 2017, a bipartisan bill was introduced in the House of Representatives. (182) The bill called American Space Commerce Free Enterprise Act of 2017 is intended to amend title 51 of the United States Code regarding National and Commercial Space Programs. (183) The purpose of the bill is to:
Create a single authority for U.S. authorization and supervision of nongovernmental space activities located at the Department of Commerce Office of Space Commerce; establish a transparent certification process in the least burdensome manner possible; provide greater certainty to assure nongovernmental space activities conform to the United States' Outer Space Treaty obligations; address concerns that certified activities may pose a safety risk to existing federal governmental space systems; [and] enhance national security by ensuring insight into operation and capacities by creating a competitive environment that discourages off shoring. (184)
Therefore, should this bill be enacted, the certification process currently handled by the FAA, would be streamlined to Office of Space Commerce. (185) The current purpose of the Office of Space Commerce is to serve as "the principal unit for space commerce policy activities within the Department of Commerce. Its mission is to foster the conditions for the economic growth and technological advancement of the U.S. commercial space industry." (186) The bill would clarify many of the questions regarding authorization and certification of privatized space commerce. (18)' More importantly, co-sponsors of the bill have actively attempted to align the bill with the obligations of the Outer Space Treaty as closely as possible. (188)
While the drafters of the American Space Commerce Free Enterprise Act choose to continue adherence to the Outer Space Treaty, many believe that the United States should consider withdrawing. Economist Sam Dinkin believes that by withdrawing from, or at the least amending, the Outer Space Treaty, space property rights can be established, leading to an economic boom with the United States on the forefront. (189) Dinkin states, "if bilateral agreements and the Outer Space Treaty do not provide an adequate regulatory environment for commercialization and colonization, then perhaps the treaty should be amended or the US should withdraw." (190) Dinkin suggests that withdrawing from the Outer Space Treaty, will allow the United States to acknowledge property rights on the Martian surface, and until we do so, "space will look a lot more like Antarctica than Alaska." (191) Dinkin fails to consider the subsequent treaties that have shaped Space Law, as well as the international implications the United States would face. Although all signing parties have the right to withdraw from the Outer Space Treaty, how would the international community receive the withdrawal of the United States, one of the original signing parties, from the treaty?
Norman Neureiter, science and technology advisor to the Secretary of State, once said, "the Outer Space Treaty and three [sic] related UN conventions... serve as the bedrock of international space law. This was an example of multilateral diplomacy at its best; the international rules that were created afford a measure of transparency and accountability for space activities, without constraining national programs." (192) Withdrawal from the Outer Space Treaty, as suggested by Dinkin, would therefore, "shatter the bedrock of international space law." (193) Although it has been suggested that the United States could withdraw and replace the Outer Space Treaty with new legislation that could '"establish and enforce a private property scheme for space-related economic activities,' no other space launching state would recognize such a 'scheme,' and few reputable private enterprises would wish to take the risk of doing business in such a lawless environment." (194) However, Neureiter also acknowledges that the Outer Space Treaty was "developed during an era when nearly all space activities were carried out by governments," and suggests that "perhaps it is time to begin thinking about whether it will be adequate for the coming era of space commercialization." (195)
Most recently President Trump directed his own initiative to the Pentagon, in order to establish a sixth military branch to ensure American dominance in space. (196) Although details regarding President Trump's "Space Force" are limited, realistically, any militarization of space would be in direct conflict with our current agreement with the Outer Space Treaty. The proposed branch of government would mean that no longer would U.S. Air Force oversee any space-based endeavors, but instead the proposed "Space Force" would have domain over the upper atmosphere. (19)' Since entering office, President Trump has signed three Space Policy Directives, including an initiative to establish new procedures monitoring satellites in low-earth orbit. (198) President Trump's hope for establishing a space force is to reclaim "America's heritage as the world's greatest space-faring nation." (199)
Space travel has advanced dramatically from the early days of Sputnik.
With Elon Musk's plan for SpaceX to colonize Mars, a greater number of legal concerns are raised than existed at the time of the drafting of the Outer Space Treaty. Our current legislation, as well as our current proposed bills and amendments, still leave many questions regarding privatized space travel unanswered. Any proposed legislation for establishing property rights in space must take into account our role in the world stage. The Outer Space Treaty, Vienna Convention, and international treaties dictate how property rights in space may be established in addition to determining, among other issues, liability in the event of accidents and citizenship in outer space. While our current legislation leaves SpaceX unlikely to complete its intended mission, our future legislation can one day allow us to become a multi-planetary species. However, it is clear that the underdeveloped area of space law is not enough in its current state to determine our legal status among the stars.
Stephanie D. Veech (*)
(*) Juris Doctor Candidate 2019, Loyola University New Orleans College of Law; Master of Business Administration Candidate 2019, Loyola University New Orleans College of Business; Bachelor of Arts in History 2015, Rhodes College. I'd like to thank Professor Arthur Crais for encouraging me to take a crazy idea and develop it into research, and Professor Nikolaos Davrados for encouraging me to take this research further than I thought was possible. I'd also like to thank the entirety of the Loyola Maritime Law Journal, particularly the current board members and the 2017-2018 board members. Finally, I'd like to thank my family and friends for their never ending support in this endeavor and Professor Elizabeth Young, from the Rhodes College Department of Physics, for showing me the stars.
(1) NASA, History, SPUTNIK AND THE DAWN OF THE SPACE AGE, https://history.nasa.gov/sputnik (last visited Sept. 17, 2018). 2 Id.
(3) EUS, Satellite One, FLIGHT, http://sputnik.tass.com/sputnik_one/ (last visited November 8, 2018).
(4) Lily Rothman, Read TIME'S Original Report on the Sputnik 1 Launch, TIME Magazine (Oct. 3, 2017), http://time.com/4958422/sputnik-1957-report.
(7) NASA, SPUTNIK AND THE DAWN OF THE SPACE AGE, supra note 1.
(8) Dr. James Van Allen of the University of Iowa, designed the satellite instrumentation of Explorer 1. When Explorer reached orbit, the cosmic ray equipment indicated a lower cosmic ray count than had been expected. Van Allen theorized that the count was affected by the existence of charged particles trapped in space by earth's magnetic field. This belt of charged particles was confirmed with the launch of Explorer III, and was considered one of the greatest discoveries of the International Geophysical Year. NASA, History, EXPLORER-I AND JUPITER-C: THE FIRST UNITED STATES SATELLITE AND SPACE LAUNCH VEHICLE, https://history.nasa.gov/sputnik/expinfo.html (last visited Sept. 17, 2018).
(9) NASA, SPUTNIK AND THE DAWN OF THE SPACE AGE, supra note 1; National Aeronautics and Space Act of 1958, Pub. L. No. 85-568, 72 Stat. 426.
(10) NASA, A PRESIDENT ISSUES NASA'S FIRST HISTORIC CHALLENGE, https://www.nasa.gov/vision/space/features/jfk_speech (last visited Sept. 17, 2018).
(11) NASA, Apollo 11, JULY 20, 1969: ONE GIANT LEAP FOR MANKIND, https://www.nasa.gov/mission_pages/apollo/apolloll (last visited Sept. 17, 2018).
(15) Elizabeth Howell, Voyager 1: Earth's Farthest Spacecraft, Space.com (Feb. 28, 2018), https://www.space.com/17688-voyager-l.html.
(16) Biography.com, Elon Musk Biography, https://www.biography.com/people/elon-musk-20837159 (last visited Sept. 17, 2018).
(17) See Tesla, About, ABOUT TESLA, https://www.tesla.com/about (last visited Sept. 17, 2018).
(18) SpaceX, About SpaceX, COMPANY, http://www.spacex.com/about (last visited Sept. 17, 2018).
(21) SpaceX, Dragon, http://www.spacex.com/dragon (last visited Sept. 17, 2018).
(22) "Dragon is a free-flying spacecraft designed to deliver both cargo and people to orbiting destinations." Dragon is not a rocket, but is launched from the Falcon 9 rocket before reaching orbit and detaching. Upon removal from Falcon 9, Dragon is guided to its destination in orbit, while Falcon 9 is guided back to Earth for landing. SpaceX, Dragon, supra note 21; SpaceX, Falcon 9, http://www.spacex.com/falcon9 (last visited Sept. 17, 2018).
(23) SpaceX, Falcon9, http://www.spacex.com/falcon9 (last visited Sept. 17. 2018).
(24) SpaceX, About, MAKING HISTORY, http://www.spacex.com/about (last visited Sept. 17, 2018).
(25) Loren Grush, SpaceX Makes Aerospace History with Successful Launch and Landing of a Used Rocket, The Verge (Mar. 30, 2017, 7:06 pm) https://www.theverge.com/2017/3/30/15117096/spacex-launch-reusable-rocket-success-falcon-9-landing.
(28) "Falcon 9 is a two-stage rocket designed and manufactured by SpaceX for the reliable and safe transport of satellites... into orbit." SpaceX, Falcon9, supra note 23; Grush, supra note 25.
(29) Grush, supra note 25.
(32) SpaceX, Reusability: The Key to Making Human Life Multi-Planetary (June 10, 2015) http://www.spacex.com/news/2013/03/31/reusability-key-making-human-life-multi-planetary.
(33) SpaceX, Making Life Multiplanetary, YouTUBE (Sept. 28, 2017), https://www.youtube.com/watch?time_continue=2353&v=S5V7R_selXc.
(38) SpaceX, Making Life Multiplanetary, YouTUBE (Sept. 28, 2017), https://www.youtube.com/watch?time_continue=2353&v=S5V7R_selXc.
(40) See David Doody, Basics of Space Flight, Jet Propulsion Laboratory [section] ch. 4 (David Doody & Diane Fisher eds., Feb. 2017), https://spaceodyssey.dmns.org/media/57432/hohmann_transfer_orbits.pdf.
(42) SpaceX, Making Life Multiplanetary, YouTUBE (Sept. 28, 2017), https://www.youtube.com/watch?time_continue=2353&v=S5V7R_selXc.
(47) 14 C.F.R. [section] 401.5 (2018) ("Payload means an object that a person undertakes to place in outer space by means of a launch vehicle, including components of the vehicle specifically designed or adapted for that object").
(48) Missions to Mars usually take about eight months to travel to the surface. Mars Planning Frequently Asked Questions, NASA, https://www.nasa.gov/offices/marsplanning/faqs/.
(49) SpaceX, Making Life Multiplanetary, YouTUBE (Sep. 28, 2017), https://www.youtube.com/watch?time_continue=2353&v=S5V7R_selXc.
(50) The Late Show with Stephen Colbert, Elon Musk Might Be A SuperVillain, YouTUBE (Sep. 10, 2015), https://www.youtube.com/watch?v=gV6hP9wpMW8.
(54) Jonathan O'Callaghan, Elon Musk Says We Could Terraform Mars By Dropping Thermonuclear Bombs On It, IFLScience! (Sept. 10, 2015 8:38 pm), http://www.iflscience.com/space/elon-musk-says-we-could-terraform-mars-dropping-thermonuclear-bombs-it/.
(56) Matthew J. Kleiman. Space Law 101: An Introduction to Space Law, AMERICAN BAR ASSOCIATION YOUNG LAWYERS DIVISION, https://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/space_law_101_an jntroduction_to_space_law.html (last visited Sep. 25, 2018).
(59) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies annex, Jan. 27, 1967, 21 U.N.T.S. 2222 (XXI) [hereinafter Outer Space Treaty].
(61) I.H.PH. DIEDERIKS-VERSCHOOR AND V. KOPAL. AN INTRODUCTION TO SPACE LAW 7 (2008) (quoting M. LACHS, 'The International Law of Outer Space,' 113 Recueil des Cours, 33 (1964-III)).
(62) See generally, Outer Space Treaty, supra note 59, art. 1.
(65) Kleiman, supra note 56.
(66) NICOLAS MATEESCO MATTE, AEROSPACE LAW 288 (1969).
(67) See generally. Outer Space Treaty, supra note 59, annex.
(69) MATTE, supra note 66, at 289. (70) DlEDERlKS-VERSCHOOR, supra note 61, at 5.
(71) See generally The Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71.
(72) DIEDERIKSA-VERSCHOOR, supra note 61, at 5.
(73) See Outer Space Treaty, supra note 59, art. 4; see The Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71.
(74) The International Geophysical Year, NAT'L. ACAD. OF Sci., (2005), http://www.nas.edu/history/igy/.
(77) See generally supra Section I. Introduction.
(78) The International Geophysical Year, NAT'L. ACAD, OF SCI., (2005), http://www.nas.edu/history/igy/.
(80) See generally, UNITED NATIONS OFFICE FOR OUTER SPACE AFFAIRS, Space Law Treaties and Principles (2018), http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html.
(82) See 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, 672 U.N.T.S. 119 [hereinafter Rescue Agreement].
(83) See Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereinafter Liability Convention].
(84) See Convention on Registration of Objects Launched into Outer Space, Jan. 14, 1975, 28 U.S.T. 695, 102.3 U.N.T.S. 15 [hereinafter Registration Convention].
(85) See Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. Dec. 18, 1979, 1363 U.N.T.S. 3 [hereinafter Moon Agreement].
(86) United Nations Office for Outer Space Affairs, Space Law Treaties and Principles, (2018)
(89) "[T]he U.N. General Assembly has adopted several resolutions that are generally followed by the international community on a non-binding basis. These include the 1982 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, the 1986 Principles Relating to Remote Sensing of Earth from Outer Space, the 1992 Principles Relevant to the Use of Nuclear Power Sources in Outer Space, and the 1996 Declaration on International Cooperation in the Exploration and Use of Outer Space for the benefit and in the Interest of All States. Taking into Particular Account the Needs of Developing Countries." Kleiman, supra note 56.
(90) Suborbital space flights are those where a spacecraft launches, reaches the upper atmosphere and then returns to earth. These flights are only in space for a few minutes and never reach earth orbit.
(91) Kleiman, supra note 56.
(92) Outer Space Treaty, supra note 59, at art. 4.
(97) NatT Aeronautics and Space Admin. Office of Planetary Protection, (updated: Sept. 22, 2018) https://planetaryprotection.nasa.gov/intpolicy.
(98) Seeker, How Do We Keep Our Bacteria From Contaminating the Galaxy?, YOUTUBK (Mar. 28, 2018), https://www.youtube.com/watch?v=tNRlcwl-D5w. (99) Id.
(101) The 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies is considered one of the five major treaties on International Space Law. However, the Moon Agreement has not been ratified by any of the major space powers, and is, therefore, considered dormant. Application of the legal framework of the Moon Agreement in this section and any subsequent sections is intended strictly to reinforce concepts and arguments already stated in accordance with the Outer Space Treaty.
(102) Moon Agreement, supra note 85, at art. 1.
(103) Id. at 7.
(104) Id. at 3.
(105) Outer Space Treaty, supra note 59, at art. 4, 9.
(106) Id. at art. 2.
(107) THOMAS GANGALE, THE DEVELOPMENT OF OUTER SPACE: SOVEREIGNTY AND PROPERTY RIGHTS IN INTERNATIONAL SPACE LAW 33 (2009).
(108) Wayne White Jr., Real Property Rights in Outer Space (1997), http://spacefuture.com/archive/real_property_rights_in_outer_space.shtml.
(113) Outer Space Treaty, supra note 59, at art. 6.
(114) Id. at art. 2.
(116) Id. at art. 1.
(116) GANGALE, supra note 107 at 38.
(117) UNITED NATIONS: TREATY COLLECTION, Vienna Convention on the Law of Treaties. https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf.
(118) See generally, MATTE, supra note 66.
(119) Mat 313.
(120) Outer Space Treaty, supra note 59, at art. 8.
(121) Under Civil Code of Quebec 903, "movables which are permanently physically attached or joined to an immovable without losing their individuality and without being incorporated with the immovable are immovables for as long as they remain there." This definition of immovables by destination differs from the Louisiana Civil Code definition of immovables by declaration. Under the Louisiana Civil Code, only owners of immovable property may declare an object immovable. The CCQ does not distinguish who may declare an immovable by destination, only what may be declared. MATTE, supra note 66, at 313.
(124) Outer Space Treaty, supra note 59, at art. 12.
(125) See Id.
(126) Id. at art. 1.
(128) Id. at art. 6.
(129) Outer Space Treaty, supra note 59 at art. 6. (130) Id. at art. 7.
(131) FEDERAL REGISTER, Reciprocal Waivers of Claims for Licensed or Permitted Launch and Reentry Activities, 80 Fed. Reg. 8 (Dep't of Transportation Jan. 13, 2015), https://www.federalregister.gov/documents/2015/01/13/2015-00252/reciprocal-waivers-of-claims-for-licensed-or-permitted-launch-and-reentry-activities.
(133) 51 U.S.C. [section] 50904 (2015).
(135) 14 C.F.R. [section] 400.2
(137) Maddie Stone, Is Elon Musk's Crazy Mars Plan Even Legal?, Gizmodo (Sept.29. 2016, 4:40 PM), https://gizmodo.com/is-elon-musks-crazy-mars-plan-even-legal-1787233691.
(140) Reciprocal Waivers of Claims for Licensed or Permitted Launch and Reentry Activities, 80 Fed. Reg. 8 (Dep't of Transportation Jan. 13, 2015) (citing 14 C.F.R. 440.3), https://www.federalregister.gov/documents/2015/01/13/2015-00252/reciproeal-waivers-of-claims-for-licensed-or-permitted-launch-and-reentry-activities.
(141) 14 C.F.R. Pt. 440, App. E (2012).
(143) 51 U.S.C. [section] 50904 (2015).
(144) Reciprocal Waivers of Claims for Licensed or Permitted Launch and Reentry Activities, 80 Fed. Reg. 8 (Dep't of Transportation Jan. 13, 2015), https://www.federalregister.gov/documents/2015/01/13/2015-00252/reciprocal-waivers-of-claims-for-licensed-or-permitted-launch-and-reentry-activities.
(148) Reciprocal Waivers of Claims for Licensed or Permitted Launch and Reentry Activities, 80 Fed. Reg. 8 (Dep't of Transportation Jan. 13, 2015), https://www.fedcralregister.gov/documents/2015/01/13/2015-00252/reciprocal-waivers-of-claims-for-licensed-or-permitted-launch-and-reentry-activities.
(151) Liability Convention, supra note 83.
(152) Id. at art. 2.
(153) See generally id. at art. 3.
(155) Liability Convention, supra note 83, at art. 7.
(156) Outer Space Treaty, supra note 59.
(159) Sarah Fecht, Do Earth Laws Apply to Mars Colonists?, POPULAR SCIENCE (Sept. 24, 2016), https://www.popsci.eom/who-would-rule-colony-on-mars#page-2
(160) Outer Space Treaty, supra note 59, at art. 8.
(161) Liability Convention, supra note 83, at art. 7.
(162) Passenger, U.S. LEGAL, https://www.definitions.uslegal.eom/p/passenger/(last visited Sept. 26, 2018).
(163) See generally Outer Space Treaty, supra note 59.
(164) Evan Dashevsky, Welcome to SpaceX City: The Ultimate Startup, PCMAG.COM, (Aug. 4, 2017, 8:00 AM), https://www.pcmag.com/article/355323/welcome-to-spacex-city-the-ultimatc-startup.
(167) Outer Space Treaty, supra note 59, at art. 8.
(168) U.S. Visa. TRAVEL.STATE.GOV, https://travel.state.gov/content/dam/visas/PDF-other/VisaFlyerJ31B2JVIarch_2015.pdf (last visited Sept. 26, 2018).
(169) Immigrant Visa Process, TRAVEL.STATE.GOV, https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/petition/submit-a-petition.html (last visited Sept. 26, 2018).
(172) See Rescue Agreement, supra note 82.
(174) Outer Space Treaty, supra note 59, at art. 8.
(175) See generally, Id.
(176) White, supra note 108.
(177) See supra Section III. c. Liability.
(178) See generally supra Section III.c.
(179) Reciprocal Waivers of Claims for Licensed or Permitted Launch and Reentry Activities, 80 Fed. Reg. 1590 (proposed Jan. 13, 2015).
(181) Reciprocal Waivers of Claims for Licensed or Permitted Launch and Reentry Activities. 80 Fed. Reg. 55115 (effective October 17. 2016).
(182) H.R. 2809, 115th Cong. (2017).
(184) See Press Release, Smith Introduces American Space Commerce Free Enterprise Act of 2017 (June 7, 2017), https://science.house.gov/news/press-releases/smith-introduces-american-space-commerce-free-enterprise-act-2017.
(185) H.R. 2809
(186) Office of Space Commerce, https://www.space.commerce.gov/about/mission (last visited Sept. 27, 2018).
(187) H.R. 2809; Smith Introduces American Space Commerce Free Enterprise Act of 2017, supra note 183.
(188) Smith Introduces American Space Commerce Free Enterprise Act of 2017. supra note 183.
(189) Sam Dinkin, Property right and space commercialization, THE SPACE REVIEW (May 10, 2004), http://www.thespacereview.com/article/141/l.
(192) GANGALE, supra note 107.
(193) Id. at 51.
(194) Id. at 51-2.
(195) Id. at 52.
(196) William Harwood, Trump directs Pentagon to create military Space Force, CBS News (June 18, 2018), https://www.cbsnews.com/news/trump-space-force-pentagon-create-military-space-force-national-space-council-meeting-2018-06-18/.
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