AuthorClewley, Phoebe T.
  1. Introduction

    In an age of increasing optimism surrounding outer space settlement and resource extraction, the romantic pursuit of celestial colonization has become progressively more popular in the private sector. (1) The current legal framework for the exploration and use of outer space was developed amidst the backdrop of the Cold War when the international Outer Space Treaty--which declared the Moon and other celestial bodies "the province for all mankind"--was signed and ratified. (2) As a product of its time, the Outer Space Treaty primarily addressed issues relevant to its era, including concerns over nuclear proliferation, at the dawn of the space age. (3) Over the last decade, however, the landscape for space exploration has changed dramatically. (4) The emergence of private actors such as Elon Musk, Jeff Bezos, and Richard Branson joining the race means that outer space exploration no longer exists purely in the governmental domain. (5)

    Amid competitive aspirations to be the first to reach the stars, the original space race emerged between the United States and the Soviet Union. (6) In an effort to regulate each other's activities in space, the countries created a set of governing rules in the Outer Space Treaty, which has since been signed and ratified globally by every country with a presence in space. (7) Over the last decade, a new space race has gained momentum; one whose actors are private companies, and whose activities are fueled by competition for customers and revenue instead of by the desire to be the first nation in space. (8) This new age of space exploration comes after decades of seemingly harmonious international collaboration. (9) However, as conflicts between private sector activities and the current governing legal framework arise, the structure will inevitably have to change, and the durability of the international fabric of the system will be tested. (10)

    This Note will explore the potential legal ramifications that arise when the privatization of space exploration and exploitation collides with the outdated framework of governing treaties. By exploring the history of the space race and the manifestation of the legal framework through adoption of international treaties, this Note demonstrates the core principles crucial to the treaties through the first several decades of the space age. By analyzing specific language in the Outer Space Treaty, and examining potential issues posed by commercial space activity, this Note emphasizes that, while deliberately vague in nature, the language of the Treaty does not, and will not, support the outer space activities undertaken by private actors. In conclusion, this Note emphasizes the recent shift from governmental space exploration to private sector involvement, highlighting the urgency for an amended legal framework to reflect the changing landscape.

  2. History

    1. Overview of the Outer Space Legal Framework

      The legal framework governing outer space exploration started to take shape shortly after the space race began in the late 1950s. (11) In 1957, the Soviet Union launched the first artificial satellite into Earth's orbit, officially signaling to the rest of the world that the space race had commenced. (12) The satellite launch, which could have been viewed as a clear violation of international air law, instead sparked international aspirations, effectively establishing that rules governing outer space would differ from those governing aircraft activities. (13) In a strategic effort to secure the United States' rights in outer space as well, President Eisenhower accepted the Soviet Union's right to launch a satellite in orbit over United States territory. (14) Less than two years later, the United Nations General Assembly established the Committee on the Peaceful Uses of Outer Space ("COPUOS") for the purpose of fostering international outer space discussion. (15)

      The Committee, which meets annually to discuss issues raised by the General Assembly, has been instrumental in the birth and negotiation of international space treaties. (16) As one of the largest United Nations Committees, COPUOS is comprised of seventy-one member States tasked with preserving international cooperation and peaceful uses of outer space. (17) COPUOS consists of two subsidiary bodies--the Scientific and Technical Subcommittee, and the Legal Subcommittee--whose primary concerns revolve around the complex issues that arise as a product of the development of space technology. (18) Since its inception, COPUOS has been instrumental in the development of five international treaties and four principles that form the basis of outer space law. (19)

      The brief history of outer space law can be categorized into three phases. (20) The first phase, spanning the 1960s and 1970s, marked the era of binding international space treaties; five treaties were enacted during this period. (21) The Outer Space Treaty, which provides the general basis for international space law, was signed and ratified in 1967. (22) The three treaties that followed were adopted in an effort to expand on certain provisions of the Outer Space Treaty, while the fifth was ratified to address exploitation of the Moon. (23)

      The second, third, and fourth treaties addressed issues related to State liability, space object registration, and astronaut assistance in the event of an emergency. (24) The fifth and final treaty to open for signature in 1979 was the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies ("Moon Agreement") which, like the Outer Space Treaty, provides a general framework for the peaceful use of the Moon and other celestial bodies. (25) Additionally, the Moon Agreement describes the resources of the Moon as common property to mankind and establishes that international regimens should govern the exploitation of any such resources. (26) While all four of the first treaties have been widely ratified across the globe, the Moon Agreement remains sparsely accepted due to controversy surrounding its implications on future national space programs. (27)

      The second phase of outer space law, spanning the 1980s and 1990s, is defined by the adoption of nonbinding principles which expand on more specific areas of space law. (28) Of particular significance is the 1996 Benefits Declaration which elaborates on the international nature of space exploration. (29) Highlighting the importance of outer space activities for the benefit of all participating nations, the Benefits Declaration emphasizes the underlying theme of international collaboration in outer space. (30) Although not binding on any State party, a crucial, and respected, element to all four of the nonbinding principles is the adherence to nondiscrimination by any individual State. (31)

      The third, and most recent, phase of international space law emerged in the 2000s and encompasses current trends in space activity. (32) Addressing issues such as orbital debris, nuclear power sources, and clarification on the definition of a "launching state," these nonbinding resolutions and guidelines focus on the technical areas of space law. (33) Although not binding on State parties, these resolutions provide valuable guidance for space exploration. (34) However, unlike the five treaties, these resolutions often contain clauses allowing the space flight operator to act within his or her discretion when deciding whether to deviate from general rules and guidelines. (35)

    2. The Outer Space Treaty

      Among the binding treaties born out of international collaboration, the Outer Space Treaty is often considered the Constitution for outer space. (36) The Treaty focuses on the common global interest in space exploration and reaffirms a contribution to international collaboration in space. (37) Of the seventeen articles in the Outer Space Treaty, a select few have garnered significant attention and debate. (38) Specifically, Articles I, II, and VI, which are widely considered to be vague in nature, have been the focus of differing interpretations. (39)

      Article I sets forth the general encompassing principle that outer space exploration should benefit international interests free from discrimination of any kind. (40) Furthermore, Article I establishes freedom of access to all celestial bodies for purposes of space exploration and scientific exploitation in accordance with international law. (41) Article II promotes the international undercurrent of the treaty and has sparked controversy with a prohibition against national jurisdictional claims. (42) While Articles I and II have fomented debate over the correct interpretation of their language, Article VI is perhaps the most controversial portion of the treaty with respect to modern space exploration. (43) In sum, Article VI of the Outer Space Treaty confers international liability to State parties' national activities in outer space. (44) Furthermore, Article VI acknowledges non-governmental entities and declares that any outer space activities of such entities will require authorization and continuing supervision by the appropriate State party. (45) While the text of the Outer Space Treaty provides no further explanation for the terms 'authorization' and 'continuing supervision,' many have tried to clarify its applicability to non-governmental actors. (46) In an age of privatized space exploration, Articles I, II, and VI of the Outer Space Treaty have drawn significant attention and debate in relation to their applicability to commercial space activity. (47)

    3. Constitutional Treatment of International Treaties

      Article VI of the United States Constitution asserts the effect of a signed international Treaty on the United States as the "supreme Law of the Land." (48) Specifically, the language of the Article establishes a ratified treaty as having the same legal effect as a signed federal statute. (49) However, not all ratified treaties have immediate binding effect. (50) The...

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