Aegis Beyond Earth:A Review of the legal Ramifications of Commercial Space Travel

by

Glenn Alpaugh

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Aegis Beyond EarthGlenn Alpaugh

The twentieth century bore witness to fantastic accomplishments in space technology and

exploration. Mankind has reached out boldly and inquisitively to worlds within its solar system,

using robotic probes in an effort to gain new knowledge of the universe. The footprint of man

lies embedded on the barren soil of the Moon - baring witness to a determination to venture

beyond Earth - while satellite networks orbit our world, weaving an informational tapestry of

global communication and remote sensing. These accomplishments have served to bring the

wonder of space travel to an American public enamored with its mystique, as plans to construct

commercial space ports will soon allow the average individual to make a journey once reserved

for those heroic, chosen few who dared venture into the void.

As this new adventure becomes a reality available to the public, an examination of the

potential legal issues involved with the development and operation of a commercial civilian

space program in the United States is necessary. Such issues as spacecraft certification and

registration requirements, the legalities involved in carrying passengers aboard a commercial

spacecraft, legal requirements regarding passenger health and safety, as well as the ramifications

involved in the implementation of federal anti-terrorism safeguards for commercial civilian

passenger spacecraft must be examined. Additionally, the subjects of jurisdictional responsibility

and legal liability in the event of emergency or catastrophic failure must be examined.

It now appears that the space transportation industry is a reality. The winning of the Ansari

X Prize illustrated to the world that private enterprise could fund, design, build, and fly a sub-

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orbital spacecraft (Wikipedia 2006, Npg.). On the coattails of this great accomplishment comes

news that billionaire Richard Branson has partnered with the contest winners and will build a

225-million dollar commercial space port in New Mexico to serve as a base of operations for five

spacecraft made in the image of SpaceShipOne – the X Prize winner (Klotz 2006, 1). Having

collected over 10-million dollars in deposits from aspiring passengers wanting to take the three

and a half hour voyage, it would seem that Branson is indeed on his way to launching his space

transport line – Virgin Galactic (Klotz). The rush is on however, as two other firms – UP

Aerospace and StarChaser Industries - have also set up shop in New Mexico with plans of

maintaining a presence at the new spaceport (Klotz). With proof of concept completed and

production gearing up, government bureaucracy must surely not be far behind.

Certification and registration requirements are a necessary bureaucratic evil for commercial

passenger spacecraft. There are lessons to be learned from past experiences in developing similar

command structure and media for other venues. One can look to the birth and maturation of the

Federal Aviation Administration (FAA) for parallels in industry oversight.

Originally created as the Federal Aviation Agency in 1958 as a result of passage of the

Federal Aviation Act, this early version of the FAA was given broad new authority to regulate

civil aviation and provide for the safe and efficient utilization of the nation’s airspace (Wells,

Wensveen 2004, 106). As the air transportation industry literally took off with the advent of jet

aircraft, air traffic increased over the next several years, and the skies became more crowded -

and dangerous. In 1967, the FAA was reorganized and placed under authority of the new

Department of Transportation (DOT) which was created to provide unity and direction to a

coordinated national transportation system (Wells, Wensveen).

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As one of ten transportation-based organizations managed by the Department of

Transportation, the FAA’s responsibilities include air traffic control, aircraft and aviator

certification, airport aid and certification, environmental protection, civil aviation security, and

engineering and development, while playing a key role in international aviation matters such as

civil aviation assistance, training, establishing worldwide safety and security standards, product

import and export, and foreign-manufactured part certification (Wells, Wensveen). In the event

of accidents involving airline or general aviation aircraft, the Federal Aviation Administration

also works in conjunction with the National Transportation Safety Board to determine required

actions through root cause analysis (Wells, Wensveen). It is apparent that many of these

responsibilities resonate to some degree with the private space industry – particularly in the

commercial transport aspect.

In the early 1980s, the Reagan Administration recognized the need for a consolidated and

simplified regulatory office for the commercial space industry – one that would be sympathetic

toward the industry’s growth and simplify the hurdles facing the potential space entrepreneur

(Goldman 1996, 209). The Office of Commercial Space Transportation (OCST) was created as a

result of this requirement, and may become to American commercial space transport industry

what the FAA is to the air transport industry of the United States. The commonality of regulatory

requirements within the FAA and OCST speaks a good argument for growing the structure of the

OCST in the mold of its aviation predecessor. Just as the FAA has grown over the decades from

its early stage of ensuring pilot and aircraft certification - to eventual overseer of the

requirements of commercial air transport, so too can the OCST grow from its origins as a

bureaucratic vehicle for fast-tracking private space industry development - to an oversight

champion for space transport. Both regulatory organizations are under direction of the

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Department of Transportation, which is an additional similarity and could prove to be an asset in

the event that the space office is transitioned into an agency with the same oversight

responsibilities as the FAA. If the OCST is not capable of making the transition successfully, it

will be necessary to create a new regulatory agency.

The FAA can trace its roots back to the Air Commerce Act of 1927 and earlier, less robust

versions of itself – such as the Civil Aeronautics Authority (created in 1938), the Civil

Aeronautics Administration (1940), and the Civil Aeronautics Board (also 1940) (Wells

Wensveen 1994, 106). It may be that President Reagan’s OCST will not stand the test of time,

but be superseded by a more comprehensive agency better capable of addressing the regulatory

requirements of space transport, just as those earlier air transport offices bowed to the superiority

of the FAA.

Indeed, it would seem that the FAA, under sanction of the Department of Transportation

and pursuant to the CSLA Act of 2004, has taken the first step in establishing the framework for

space flight requirements for crew and space flight participants, by issuing recommendations for

crew qualifications, training, and notification (DOT 2005, 1). These proposed requirements are

designed to provide an acceptable level of safety to the general public, and to notify spacecraft

passengers and crew of the risks associated with launch and reentry (DOT). By issuing its

recommendations report, the FAA has made a legitimate case for establishing itself as an

authority on the certification and regulatory requirements of commercial space travel at its

virtual inception – perhaps the most critical time of an industry’s existence. Drawing upon nearly

eight decades of lessons learned in the aerospace industry and a solid understanding of the

demands of space travel, the authors of the FAA’s report may have created a template for

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establishing regulatory command media that may well carry the commercial space industry into

the twenty-second century.

Another major issue in regard to space transport is that of the legalities involved in carrying

passengers aboard spacecraft. The Russian Space Agency has broken the ice in regard to this

commercial capability by making arrangements with Space Adventures, an American adventure

travel firm, to provide tourist trips aboard a three-person TMA Soyuz spacecraft to the

International Space Station (ISS), with an ultimate goal of establishing a dedicated commercial

flight to the ISS (David 2003, Npg.). The current 20 million-dollar price tag for such a voyage is

prohibitive for most adventurers desiring the experience, and one would think that contributor-

nations to the ISS would pursue a share of those revenues to help offset expenses – a situation

that could easily end up generating new space law in the World Court.

The use of space transport for sub-orbital global travel would also provide an opportunity

to create new space law, as issues such as passenger liability waivers and safety rules are

addressed. Unlike the simple safety overview presented by aircraft flight attendants to passengers

before takeoff, commercial space travel could invoke an entirely new level of notifications and

precautions. Sudden loss of cabin pressure in an aircraft is dangerous, but more easily handled

than if occurring aboard a passenger craft in the vacuum of space. The FAA report on space

tourism rules recommends that space faring tourists be given pre-flight training to handle

emergency situations such as loss of cabin pressure (BBC News 2006, 1). The tragic deaths of

the three cosmonaut crewmembers aboard Soyuz 11 during reentry bear witness to the

unforgiving nature of atmospheric loss during space travel (McDougall 1997, 430). Additionally,

the conventional launch vehicles used in space launches pose significant risk to passengers if

adopted as the standard conveyance for commercial travel. Liquid, hypergolic and solid fuels

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used in this technology could pose the substantial hazard of catastrophic failure – especially if

one takes into account the increased number of launches that would occur as this mode of

transport becomes more common (Lee 2000, 19). The aforementioned FAA report on space

tourism rules further states that companies should provide space traveling passengers with safety

advice, including the number of flights their spacecraft has made, as well as any problems

experienced by the craft (BBC News 2006, 2).

One can look to the Commercial Space Launch Act (CSLA) for addressing commercial

transport liability issues. Although it does not address the subject in its current form, the CSLA

has been amended in order to provide direction and succor for liability issues in the past

(Goldman, 199). The precedent of amending the CSLA having thus been set, appropriate

language could be developed to address the additional requirements of passenger transport along

the same vein as previously implemented for launch contracts. Although not a thorough defense

against lawsuits, such modifications could go a long way in establishing a viable and affordable

avenue for limiting the liability of passenger carrying spacecraft. The DOT, as umbrella agency

of so many government regulatory offices, could have ultimate oversight authority in setting

insurance amounts for the various types of liability associated with passenger carriers – this too

has a precedent in the CSLA amendments (Goldman, 199).

The war on terror adds an additional layer of responsibility required in the development of

commercial space transport – that of security regulations. In a bid to ensure minimum safety

standards, the FAA has established anti-terrorist criteria for space tourism that offers suggestions

aimed at preventing terrorists from destroying a spacecraft or using it as a weapon (BBC News

2006, 1). In what may amount to stepping on the bureaucratic toes of the OCST, the FAA, in its

report, is attempting to regulate the commercial space industry in a bid to ensure minimum safety

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standards (BBC News). Tracking its own airline safety procedures, the FAA has suggested that

space tourism companies check the U.S. Homeland Security Department’s global “no-fly” list in

order to help exclude potential terrorists (BBC News). Additionally, it is stated in the report that

“New technologies carry new risks. Nonetheless, Congress recognizes that private industry has

begun to develop commercial launch vehicles capable of carrying human beings into space, and

greater private investment in these efforts will stimulate the nation’s commercial space

transportation industry as a whole.” (BBC News). Interestingly, this would seem to echo the

sentiment expressed by President Ronald Reagan when speaking of his decision to privatize

expendable launch vehicles in his 1984 state of the union address (Goldman, 196). In further

reminiscence to Reagan’s address, the report states that “The public interest is served by creating

a clear legal, regulatory, and safety regime for commercial human spaceflight,” (BBC News). It

appears that the 1980s message of Reagan’s New Federalism rings as true today as it did two

decades ago, when his administration first put forth the idea of unifying and simplifying the

bureaucratic hodgepodge of federal agencies that did more to impede the commercial space

industry than it did to support it.

Perhaps the most globally significant issue regarding the young but developing commercial

space transportation industry is that of jurisdictional responsibility and legal liability in the event

of emergency or catastrophic failure. If one is to examine past cases involving the destruction of

unmanned spacecraft of one nation within the territorial borders of another, it becomes apparent

that much work is needed to put in place an effective process to resolve such issues – particularly

in regard to liability judgment enforcement.

In 1978, Cosmos 954, a Soviet maritime surveillance satellite powered by a tiny nuclear

reactor entered a decaying orbit and subsequently crashed into the surface of the Earth, scattering

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radioactive waste over thousands of miles of Canadian territory (CBC 2005, Npg.). The

Canadian invocation of Article II of the Convention of International Liability for Damage

Caused by Space Objects in an attempt to recover expenses from the Soviet government for

cleanup of the radioactive material spilled by the crash (CBC). Although a correct application of

the Convention’s article since the Soviet Union was a signatory, the lack of an enforcement

provision severely limited the ability of the Canadian government to make good on its claim. The

Soviet Union eventually paid less than half of the 15-million dollar cleanup expense incurred by

Canada (CBC).

The inequity of the final settlement of the Cosmos 954 incident demonstrates an inability of

such treaties to truly address the needs of a world on the verge of implementing commercial

space transportation services. The contentiousness of such cases as the Cosmos 954 incident will

only be relieved by implementing a comprehensive, global agreement that is above all else –

binding. Such an agreement might be a byproduct of creating a global space agency, or the result

of a cooperative agreement among various national space agencies. In the event of the former,

binding enforcement might be applied in a manner similar to that of the World Trade

Organization (WTO), which wields great power over its member nations and enforces trade

arbitration decisions by imposing strict and structured compliance, compensation, or retaliation

measures that must be followed by member nations if they are to remain part of the organization

and enjoy the many benefits of WTO membership (Chang 2004, 2). If the agreement came about

as a result of a cooperative agreement between space agencies, such sanctions as limiting access

to the International Space Station (ISS) or other shared space assets such as remote sensing

technology could provide leverage to prompt compliance to compensatory, or other, rulings

made by the organization.

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In the first half of the twentieth century, the rise and fall of Nazism in Europe bore the fruit

of breakthroughs in rocketry and jet propulsion technology as spoils of war to the victors of that

destructive global conflict. As the century progressed, advancements in these new sciences

brought forth the technological triumphs of the first manned spacecraft missions, as American

and Soviet superpowers jockeyed for propaganda victories in a Cold War - pitting the political

philosophies of Capitalism and Communism against each other in yet another struggle for global

supremacy. Despite a propensity for isolationism in scientific research brought about as a result

of the Cold War, the race to outer space continued unabated as satellite technology, manned and

robotic exploration, and the achievement of humans reaching the Moon and returning safely to

Earth generated a passion for the ability to travel into space.

As the move to commercial space travel rapidly approaches reality, the legalities of this

new capability are in need of comprehensive review. The registry and certification of

commercial spacecraft is mandated in order to protect those who would traverse the perilous

corridors of space in safety. Care must also be taken to ensure that provision is made to protect

both spacecraft and passengers from the possibility of terrorist acts in accordance with the

provisions implemented by the government of the United States in its war on terror. In the event

of emergency or catastrophic failure, jurisdictional responsibility must be determined in order

provide the apparatus and protocol for investigation, determination of liability, and enforcement

of sanctions if promulgated as a result of such an occurrence. In defining these legal

requirements, mankind may continue its advance into space with the knowledge that the aegis of

civilization – the rule of law – goes with it.

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