SPACE IS GETTING CROWDED: THE LAWS GOVERNING THE NEW COMMERCIAL SPACE RACE.

Date01 January 2021
AuthorRobin, Joshua
  1. Introduction 94 II. International Legal Framework 96 A. Outer Space Treaty 97 B. Rescue Agreement 99 C. Liability Convention 100 1. General Framework 100 2. Problems Establishing Liability 101 3. Intentional Destruction and Liability 105 D. Registration Convention 106 E. Moon Agreement 107 1. General Framework 107 2. Problems and Concerns with the Moon Agreement 108 F. International Telecommunication Union 109 III. United States Framework 111 A. The Advent of Commercial Space Travel in the United States 111 B. Addressing Liability, or Rather Not Addressing It 112 C. Most Recent Laws 113 1. CSLCA Grants Property Rights in Space 114 2. Liability Insurance Under the CSLCA 115 IV. Conclusion 116 I. Introduction

    Following the fall of Nazi Germany, the United States of America (USA) and the United Soviet Socialist Republics (USSR) recruited former Nazi rocket scientists through clandestine missions. (1) Their original goals were to take Nazi weapons and use them for the allies. (2) When the first V-2 rocket hit London, lead scientist Wernher von Braun opined that his rocket worked perfectly, but it had simply landed on the wrong planet (3). The United States recruited Von Braun to work on their own space program. (4) However, the Americans were beaten to space when, on October 4, 1957, the Soviet Union launched Sputnik 1 into low earth orbit. (5) The Soviet Union fired the starting gun, launching the space race. Sputnik 1 stayed in orbit around the Earth for about three months, with constant monitoring by earthbound radio operators. (6) Finally, on January 4, 1958, Sputnik 1 burned up while reentering Earth's atmosphere. (7)

    Every year since 1957, Earth's sky has been filling up with space junk, ranging from astronauts' misplaced tools to derelict satellites in graveyard orbits. (8) After Sputnik's launch, North American Aerospace Defense Command (NORAD) began compiling a database of all known rocket launches and objects reaching orbit. (9). As of 2017, the National Aeronautics and Space Administration (NASA) was tracking more than 500,000 pieces of debris in Earth's orbit. (10) Each piece of debris can travel up to 17,500 miles per hour, fast enough for even a tiny piece of debris to damage a satellite or spacecraft. (11)

    In 1978, American astrophysicist Donald J. Kessler, first raised the issue of space junk accumulating in Earth's atmosphere with no reliable way to retrieve the debris. (12) He surmised that this accumulation could lead to higher and higher rates of collisions between objects, creating even more debris, and ultimately restricting the United States spacecraft, satellites, or other space bound objects from being launched. (13) This was named Kessler Syndrome. (14)

    In 1991, Mr. Kessler published "Collisional Cascading: The Limits of Population Growth in Low Earth Orbit." (15) Using previous studies by the United States Air Force about the creation of debris, he observed that most objects in the sky at the time were 1 kilogram (2.2 pounds) or heavier. (16) This type of impact would create further debris weighing 1 kilogram or more travelling at 17,500 miles per hour. (17) If the creation of these pieces is greater than their orbital decay (18), this could lead to situation where existing pieces of debris are more likely to cause even more debris to accumulate in the atmosphere more quickly than they can be destroyed. (19) This could create a field of unusable space around our planet, where no satellites, stations, or other vehicles could orbit without fear of disastrous collisions. (20) This could impact the everyday life of most of the world by reducing or eliminating current satellite communications, including satellite tv, internet, and GPS.

    In the early days of space exploration, only governments and their direct agents had the ability to launch objects into space. (21) Today, however, more private companies are attempting to enter the space arena. (22) SpaceX began developing what it calls a satellite internet constellation in 2015. (23) On October 15, 2019, the United State Federal Communications Commission (FCC) submitted filings to the International Telecommunications Union on behalf of SpaceX to request approval for an additional 30,000 satellites in addition to its existing 12,000 approved satellites. (24) This singular satellite constellation would be five times more than the number of satellites ever launched. (25) However, SpaceX is not the only company looking to use space for commercial purposes. OneWeb, a company headquartered in London but with offices in the United States, petitioned the FCC for approval of a constellation with over 6,000 satellites. (26) The FCC granted Amazon approval to move forward with their "Project Kuiper", a constellation of 3,236 satellites in Low-Earth Orbit. (27) Additionally, operating under an apparent code name "GW," China has requested for nearly 13,000 satellites from the International Telecommunications Union to create a similar internet satellite constellation. (28)

    This increased privatization of space puts pressure on existing governments to regulate this new market with old tools that may not be equipped to handle these new challenges. Additionally, private actors entering the space race represent a threat to everyone on Earth if not properly regulated and controlled, including the issue of space debris and its possible liability requirements. This comment looks at the existing international and domestic legal framework for commercial space exploration and attempts to recommend solutions to the legal challenges ahead.

  2. International Legal Framework

    Space is incredibly vast. It would be impossible for any single country to claim ownership of or to possess everything in our solar system, let alone all of space. To that effect, the United Nations has accepted five documents regarding the joint use of space by all countries, informally known as: The Outer Space Treaty, the Rescue Agreement, the Liability Convention, the Registration Convention, and the Moon Agreement. (29) The initial treaty laid a foundation, to which subsequent agreements and conventions have expanded on the concepts in the initial treaty. (30)

    Unfortunately, none of these documents are very specific, but were created to foster an association of cooperation among all nations. (31) However, the current core issue regarding international laws of space is whether space is governed by the concept of "res communis'' or "res nullis." (32) The current international framework of space law is governed by "res communis", or a desire that space should be declared a common heritage of mankind to be shared by everyone. (33) Because of the large amount of capital to reach space and the vast amount of resources available in space, there seems to be a push towards "res nullis" by private parties in space to claim this wealth. (34)

    1. Outer Space Treaty

      At the height of the space race, there were only two global powers with the ability to launch objects into space, the United States and the Soviet Union. However, the United States, the Soviet Union, and the United Kingdom anticipated that more countries would eventually make their way up to space. They opened a treaty for signatures to other nations that would eventually become the backbone for international space law, the "Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies." (35) This treaty is nicknamed the "Outer Space Treaty" (OST) and was signed and enacted in 1967. (36) It has 89 signatory nations and is based on the idea of "res communis;" (37) that space belongs to everyone and everyone has a duty to do no harm to the celestial bodies of our solar system and other people in space. (38)

      The OST is relatively short at just 17 articles long. (39) For comparison, the Convention of the Law of the Sea - a set of rules governing the use of the world's oceans - is over three hundred articles long. (40) Despite its short length, the OST attempts to lay the groundwork for space exploration by any country on Earth. (41) However, because of its brevity, it leaves much for interpretation. (42) While the treaty is relatively short, the entire treaty is outside the scope of this comment, which will focus only on a few of the OST's articles relating to the current commercialization of space.

      Articles one and two of the Outer Space Treaty exclude space and celestial bodies from ownership claims by sovereign nations. (43) Article one states that the exploration and use of outer space shall be accessible for the benefit and in the interests of all countries. (44) Additionally, outer space and the moon shall be free for exploration and use by all states without discrimination. (45) Article two states that outer space, including the moon, is not subject to national appropriation by claims of sovereignty, means of use or occupation, or by any other means. (46) A reading of these articles would seem to exempt asteroids, comets, planets, or moons from ownership rights by countries. (47) However, the treaty does not define the above celestial bodies and what those designations include. (48) The wording of those articles is left intentionally vague so as to cast a wide net to potentially dissuade any possible ownership rights. (49)

      Articles six and seven of the OST establish that every party to the treaty shall bear responsibility for their national activities in space, whether the activities are carried on by governmental agencies or non-governmental entities. (50) Parties to the treaty are required to supervise the activities of their particular non-government organizations in space. (51) Additionally, each state which is party to the treaty is liable for any damage they cause to another state that is also a party to the treaty. (52) This damage may include debris, satellites, or other items that may fall to Earth and damage the area of a country that...

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