Law Commons^™

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 …

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 …

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 …

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 …

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 …

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 …

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 …