Law Commons^™

Touring Outer Space: The Past, Present, And Future Of Space Tourism, Alex S. Li

Cleveland State Law Review

For the space tourism industry, 2021 represented a giant leap forward: three different privately-developed commercial spacecrafts made their tourism debut. With space tourism launching to new heights, several legal issues surrounding this sector can no longer be ignored. The emerging industry is also raising new policy considerations. This Article fills this void by examining the pressing legal and policy issues that surround space tourism’s coming-of-age.

The Article begins by looking at space tourism’s past. It chronicles the companies, the missions, and the passengers that have formed the industry’s foundation so far. The Article then shifts to space tourism’s present. It …

The Artemis Theory Of Warfare, Mark J. Sundahl

Law Faculty Articles and Essays

Outer space, long the province of peaceful competition and international cooperation, is being rapidly militarized. We stand today at a rare inflection point in history that deserves careful thought as humanity moves forward. In short, we face the following choice: we can either protect and build on the special nature of space norms and customs to preserve space as a “laboratory of peace,” or we can militarize space as the new “highest ground” under largely the same rules that govern terrestrial warfare. The sad reality is that our history, being inextricably linked to warfare, predicts that the dream of a …

“Due Regard” For Commercial Space Must Start With Historic Preservation, Michelle Hanlon

Global Business Law Review

Today we rely on the concept of "due regard" to protect our assets – and heritage – in space. Ensconced in Article IX of the Outer Space Treaty "due regard" has no legal definition. Nor has its breadth or scope been rigorously tested in court or in any public diplomatic dispute. And so, we blithely promise each other to conduct all activities in space "with due regard to the corresponding interests of others." Meaning we pursue our activities with the fervent hope that no one will interfere, whether accidentally or intentionally. This is an untenable state of affairs. It is …

Returning To The Moon: Legal Challenges As Humanity Begins To Settle The Solar System – Full Transcript, Mark J. Sundahl

Global Business Law Review

On March 6, 2020, leading space lawyers gathered in the Moot Court Room of Cleveland-Marshall College of Law at Cleveland State University to discuss and debate the legal challenges and opportunities arising from the growing number of lunar missions in the planning stages in early 2020, in particular NASA’s Artemis Program which will for the first time establish a permanent human habitation on our moon through cooperation between NASA and its international partners (both public and private). The day-long symposium on Returning to the Moon: Legal Challenges as Humanity Begins to Settle the Solar System was organized by the Global …

Set The Controls For The Heart Of The Moon: Is Existing Law Sufficient To Enable Resource Extraction On The Moon?, Mark J. Sundahl, Jeffrey A. Murphy

Law Faculty Articles and Essays

This Article argues that despite the existence of some open questions regarding fine points in the law and the unlikelihood of a new treaty regulating lunar activity, investors (of whatever type, whether public or private) should not be deterred due to any concern about the state of the law. The current regulatory process to launch a vehicle and operate a payload may be “clunky” in places, but it is not unduly burdensome. While there is plenty of debate about regulatory reform, it is a debate about how to improve the existing system—not necessarily to fix it. In other words, existing …

The Cold Vacuum Of Arms Control In Outer Space: Can Existing Law Make Some Anti-Satellite Weapons Illegal?, Jeffrey A. Murphy

Cleveland State Law Review

The current space law paradigm came into existence when two major national powers were vying for supremacy after a catastrophic world war. The nuclear age had dawned. The United Nations drafted and ratified the Outer Space Treaty under these conditions with limited foresight to the specific nature of future space activities. As more nations and private actors enter the space arena, the nature of the weapons used in space has changed, and the number of targets and opportunities for collateral damage has greatly increased.

This Note looks at the weapons aimed at space and the laws that try to govern …

Business, Legal, And Policy Issues In Relation To Increased Private Space Activity, Mark J. Sundahl

Law Faculty Articles and Essays

Throughout the history of human activity in outer space, the role of private companies has steadily grown, and, in some cases, companies have even replaced government agencies as the primary actors in space. As private space activity has grown and diversified, the laws and regulations that govern private actors have been forced to evolve in reaction to the new realities of the industry. On the international level, the treaties concluded in the 1960s and 1970s continue to be in force today. However, these treaties only govern state activity in space. The rules regulating private industry are necessarily domestic in nature, …

The Hague Working Group On Space Resources: Creating The Legal Building Blocks For A New Industry, Mark J. Sundahl, Chelsey Davis

Law Faculty Articles and Essays

Given the inherently international (or more accurately, extranational) nature of asteroid mining, an international discussion has also arisen at the United Nations and other fora. In order to prepare the way for the future regulation of space resource extraction, The Hague Space Resources Governance Working Group (Working Group) was created to develop so-called "building blocks" for use in the construction of a future legal framework governing mining activities. This "legal framework" may take the form of a treaty, but it is more likely to be a soft form of international law, such as a U.N. resolution, or a model domestic …

Report Of The 59th Colloquium On The Law Of Outer Space: Guadalajara, Mexico, 2016, Mark J. Sundahl, Kumar Abhijeet, P.J. Blount, Luis Fernando Castillo Argañarás, Christopher Johnson, R. Moro-Aguilar, Alexander Soucek, Olga Stelmakh-Drescher

Law Faculty Contributions to Books

The 2016 session opened with a keynote lecture by incoming IISL President, Kai Uwe-Schrogl, on the topic of space law and diplomacy.

The IISL is a kind of academic and quasi-diplomatic clearing house for the development of notions and ideas in space law.

The Cape Town Convention And The Law Of Outer Space: Five Scenarios, Mark J. Sundahl

Law Faculty Articles and Essays

The adoption of the Space Assets Protocol to the Cape Town Convention marked a new era in the evolution of the law of outer space by providing the first space treaty regarding private international law. This Protocol was not created in a legal vacuum, but was drafted against the background of the existing United Nations space treaties that were drafted in the 1960s and 1970s. Although the existing UN treaties address public international law and therefore cover subject matter that is quite distinct from the private law issues addressed by the Space Assets Protocol, there are still points at which …

Standards, Standards Everywhere: Assessing Current Initiatives For Human Spaceflight Standards And Their Potential Effect On Future Regulations, Mark J. Sundahl

Law Faculty Contributions to Books

One of the critical questions facing the human spaceflight industry is how its activities will be regulated during the infancy of the industry. It is generally agreed that regulation is necessary to address safety risks to crew, passengers and third parties. However, there is also a concern that government agencies may over-regulate the industry in a manner that could create unnecessary administrative burdens and interfere with technological innovation. In fact, the growth of regulation over the human space industry has been quite slow. Although the United States enacted the Human Space Flight Requirements for Crew and Space Flight Participants in …

The New Orient Express: Current Trends And Regulations In Space Tourism And The Need For Commercial Hypersonic Point To Point Travel, Patrick Zurita

Global Business Law Review

This paper aims to answer the question of what the new privatized space regime will not only look like, but also if and how it will expand. In answering the question an examination of who will most be affected by space tourism and a subsequent space travel industry is required. Additionally, a cursory look at the history of airline regulation both domestically and abroad is needed to understand the future of private space flight. Next, an overview of past and current space and hypersonic technologies is required to attempt any projection of future advances. Finally, this paper sets out to …

How The Rescue And Return Agreement Can Protect (And Harm) The Interest Of A Creditor Under The Cape Town Convention, Mark J. Sundahl

Law Faculty Contributions to Books

This volume contains the proceedings of the 55th Colloquium on the Law of Outer Space held in Naples, Italy in October 2012, including the 27th IAA-IISL Scientific-Legal Roundtable, as well as the papers presented at the IISL-ECSL Space Law Symposium held on the occasion of the 51st session of the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space in Vienna, Austria in March 2012, and of the 7th Eilene M. Galloway Symposium on Critical Issues In Space Law, held in Washington D.C., United States in December 2012. It also contains the report and best written …

Nasa's Commercial Crew Transportation System Requirements And The Faa Human Spaceflight Regulations: A Study In Contrasts?, Mark J. Sundahl

Law Faculty Contributions to Books

On December 10, 2010, NASA issued the second version of the technical requirements that will be imposed on private companies that provide orbital crew transportation services to NASA. These Commercial Crew Transportation System Requirements for NASA Low Earth Orbit Missions impose a multitude of operational and design requirements that, among other things, extend many existing NASA technical requirements to private service providers. The sheer volume of these requirements is daunting – being composed of a collection of approximately 80 existing NASA guidelines on various areas from crew health and safety to power systems, wiring, and orbital debris mitigation. This approach …

Expansion Of Private Activity In Space And Its Impact On The Development Of The International Law Of Outer Space, Mark J. Sundahl

Law Faculty Contributions to Books

Private companies are playing an ever-larger role in the use of outer space and their presence in space will continue to expand in the coming years. For example, increased private activity in space will likely be encouraged by the new U.S. space policy proposed by the Obama administration which would require the U.S. government to rely on private companies for the delivery of crew, cargo, and satellites into space. This paper examines the effect that this increased private activity will have on the future development of the international law of outer space. One question that emerges from increased private activity …

Space Tourism And Export Controls: A Prayer For Relief, Mark J. Sundahl

Law Faculty Articles and Essays

The recent emergence of the commercial human spaceflight industry is a transformative moment in the history of mankind. Multiple space tourism companies are planning to send private passengers on suborbital flights in the coming years, private spaceports are being built around the world, and at least one company, Bigelow Aerospace, is planning to build private space stations. Moreover, the new U.S. Space Policy recently announced by the Obama administration promises to accelerate the development of the spaceflight industry by relying on private companies to meet governmental needs, such as ferrying goods and people to the International Space Station.

This article …

Bigelow Aerospace's Commodity Jurisdiction Request Under Itar And Its Impact On The Future Of Private Spaceflight, Mark J. Sundahl

Law Faculty Contributions to Books

On April 22, 2009, Bigelow Aerospace announced that the United States Directorate of Defense Trade Controls (DDTC) had responded favorably to Bigelow's commodity jurisdiction request to ease its regulatory burden under the International Traffic in Arms Regulations (ITAR). Prior to this decision by the DDTC, the presence of foreign nationals on a Bigelow space station would have been treated as an "export" of space technology under IT AR - thus requiring a license from the DDTC in addition to other burdens. Bigelow Aerospace's successful commodity jurisdiction request has removed these obstacles and, as a result, has breathed new life into …

Rarely Tried, And . . . Rarely Successful: Theoretically Impossible Price Predation Among The Airlines, Christopher L. Sagers

Law Faculty Articles and Essays

Two large bodies of literature bearing on the competitive health of the deregulated airlines are in sharp conflict: (1) the volumes of judicial and academic output to the effect that the phenomenon of predatory pricing is, as a practical matter, impossible; and (2) the similarly massive body of industry-specific theory and empirical evidence that predation not only occurs in airline markets, but has been a key tool to preserve market power held by the surviving legacy carriers. This article seeks to establish from the latter that the former is a poor basis for policy, especially if there is nothing really …

The Duty To Rescue Space Tourists And Return Private Spacecraft, Mark J. Sundahl

Law Faculty Articles and Essays

International space law has long imposed a duty to rescue astronauts and return errant spacecraft to the launching state. However, the existing space law treaties contain a number of gaps and interpretational problems that, among other things, call into question whether the duty to rescue and return applies to space tourists and spacecraft owned by private companies. These issues are of critical importance to the survival of the new space tourism industry, which is made up of a growing number of companies - such as Virgin Galactic, Rocketplane, and Blue Origin - that intend to launch their maiden flights in …

Germs On A Plane: Legal Protections Afforded To International Air Travelers And Governments In The Event Of A Suspected Or Actual Contagious Passenger And Proposals To Strengthen Them, Alexandra R. Harrington

Journal of Law and Health

This article calls for the creation of an international public health do-not-fly list akin to those used by Interpol and the United States government as a stop-gap measure to ensure that passengers who have been diagnosed with infectious diseases or have been exposed to infectious diseases are unable to travel until it is established that it is medically safe for them to do so. This article has also called for amendments to the IHR and the Vienna Conventions to clarify the rights and obligations of travelers and states in the event of a suspected or established case of infectious disease …

Thomas Jefferson, We Have A Problem: The Unconstitutionality Nature Of The U.S.'S Aerospace Export Control Regime As Supposed By Bernstein V. U.S. Department Of Justice , Mike N. Gold

Cleveland State Law Review

All men are created equal, except aerospace workers. This was not how the Declaration of Independence was written, but it is how the U.S. government is currently enforcing its aerospace-related export control restrictions. Specifically, under the auspices of the International Traffic in Arms Regulations (“ITAR”)1 those in the aerospace workforce have unwittingly surrendered their First Amendment rights to free speech. This article will describe how the Ninth Circuit case of Bernstein v. U.S. Department of Justice2 clearly demonstrates the unconstitutional nature of the ITAR and will recommend reforms that would bring America's export control regime back into line with the …

Rescuing Space Tourists: A Humanitarian Duty And Business Need, Mark J. Sundahl

Law Faculty Contributions to Books

This paper explores the controversial topic of the duty to rescue under existing space law treaties and makes the case for an expansive interpretation of the treaties that would require states to rescue space tourists. This being said, space companies are advised not to rely on state action to rescue tourists in distress, but are instead urged to make their own arrangements to help ensure the safety of their customers and, in turn, limit their exposure to liability. To assist companies in this task, this paper sets forth the essential components of a rescue policy that should be adopted by …

Information Warfare: The Legal Aspects Of Using Satellites And Jamming Technologies In Propaganda Battles, Mark J. Sundahl

Law Faculty Contributions to Books

This paper examines the right of states to broadcast propaganda by satellite in times of war. In exploring this issue, the author addresses the hypothetical question of whether a state may use DBS technology to broadcast a commercial news program, such as CNN, into an enemy state in wartime as part of a larger campaign to win the support of the civilian population. The author begins by establishing that that the consent of a receiving state is required prior to such broadcasts, whether in peacetime or in times of war. This requirement of "prior consent" is the only restriction of …

Unidentified Orbital Debris: The Case For A Market-Share Liability Regime, Mark J. Sundahl

Law Faculty Articles and Essays

As the volume of debris in the planet's orbit continues to grow, the risks and costs associated with orbital collisions are taking their toll on the space industry. The United Nations Convention on International Liability for Damage Caused by Space Objects seeks to address this modern day tragedy of the commons, yet it applies only to large, identifiable pieces of orbital debris. As most debris consists of small fragments, the source of which cannot be identified, the U.N. Convention is limited in its effect.

This Note addresses the problem of assigning liability for harm caused by unidentified orbital debris. It …