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Space Law: International, National, Regulatory, and State

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Space Law: International, National, Regulatory, and State

Have you ever wondered which laws and rules govern space activity? This course will provide an overview of the different ways that international, national, and state authorities regulate space travel and exploration, basic terminology, and jurisdiction. It will also cover licensing procedures for commercial space travel.

Transcript

Giugi Carminati: Welcome to Space Law. My name is Dr. Giugi Carminati, and I have a Doctorate in Space Law, as well as an LLM in Space Cyber and Telecommunications Law. And I look forward to spending the next hour talking to you about how space law is regulated in the United States.

First, let's talk about the fact that space law is regulated on three levels, internationally, nationally, and at the state level. And we're gonna jump into the international regime.

Internationally, countries discuss issues pertaining to space law, and can rely on, and go to the UN Committee on Peaceful Uses of Outer Space, which is usually called COPUOS. It was created in 1958 as an ad hoc committee. There are 17 member states, two permanent subcommittees which is one is the scientific subcommittee, and the other one is the legal subcommittee. And there are observers to the subcommittees that can go and attend and watch. And the observers usually come from organizations that have interest in, or are involved in the particular area. So for example, there is an organization called the International Institute of Space Law. I used to be a member of it and I have attended COPUOS, their meeting, the legal subcommittee's meeting as a legal observer for the International Institute of Space Law.

There is also the United Nations Office of Outer Space Affairs, very elegantly called UNOOSA, which implements the COPUOS decisions. It assists developing countries, and it maintains the international register of objects launched into outer space. And we're gonna talk about what that means. Another organizations which is, frankly, one of the most powerful organizations on the planet, and I really mean that, is the International Telecommunication Union, ITU. The ITU is a UN agency, and here is why it's so powerful. It allocates radio spectrum, and it allocates orbits of telecommunication satellites. So which countries get which radio spectrums, and which countries get the orbits that they can put their telecommunication satellites into is governed by the ITU, which is why it is the most powerful organization on the planet. Because even this conversation, this CLE that you are listening to is in part thanks to whatever the ITU has done to allow satellite communications.

There are other organizations such as the International Astronautical Federation, which organizes the annual International Astronautical Congress. There's the International Institute of Space Law which I have touched upon. And that one concerns itself with law and space law. And then there's the International Academy of Astronautics, which is the IAA. And this organization is an interest organization in science pertaining to space law. Now, there are five major outer space treaties, and they're kind of old. But they are the governing rules and laws with respect to space law. And so they're critical for you to know and to understand.

So the five UN treaties are the Outer Space Treaty, the Rescue and Returns Treaty, the Liability Treaty, there's a treaty regarding registration, and then there's the Moon Treaty. And the reason that I am talking to you about them, and the reason that I put, if you see in the slides, articles five and eight of outer space comes after rescue and return, article seven of outer space comes after liability, and so on and so forth, is because the Outer Space Treaty really was very, very overarching. It was very comprehensive. And what happened is that countries went back later and said, look, we talk about risk and return in articles five and eight of the Outer Space Treaty, but we need to dig into these and create a little bit more specialist rules regarding that particular topic. And for example, liability is addressed in article seven of the Outer Space Treaty, but then countries came back and said, look, we need to come up with a Liability Convention that really delves into the topic of liability in more detail. And the reason I talk about it in this way is because of the concept of lex specialis, which is that the more specific rule, the more specific law, will trump the less specific rule, right? So if somebody is interpreting the Outer Space Treaty, and they wanna talk about liability, they can't just rely on article seven, because now there is a more specialized document that addresses liability in particular.

And so let's talk about what the Outer Space Treaty is about. So the Outer Space Treaty, that's actually its cute short name. The Outer Space Treaty is actually a treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies. That's a mouthful, right? It was entered into on October 10th of 1967, obviously, you know, ratification takes a while. 101 countries are parties and 26 have signed it, but have not ratified it. And it has become customary international law, because it is both used in practice, and it is opinio juris. In the sense that it is the legal opinion, the legal authority that people will refer to when they are trying to understand what they can and cannot do in outer space.

So article one of the Outer Space Treaty states that the exploration and use of outer space shall be carried out for the benefit and in the interest of all, and shall be the province of all mankind. And this is very important, because when countries, even nowadays, try to take over parts of space, or talk about possibly mining outer space, or establishing presence in outer space, the conversations, even though they don't cite it, but the conversations about who can do what, are actually conversations about the Outer space Treaty. Because the Outer Space Treaty says that, and the United States is a member to the Outer Space Treaty, that the Outer Space is the province of all mankind. So how can that be true if a certain country is now trying to take over parts of space, right? So this is where the tension is rising.

And more specifically, if you go to article two, outer space is not subject to national appropriation by claim of sovereignty by means of use or occupation, or by any other means. Okay. So if you've, you know, if you've followed along, there's some conversations about mining possibly, or about establishing basis. And so the issue is okay, but are you appropriating space when you're mining it? And if you are, you're not allowed to do it under the Outer Space Treaty, or you may have to go and get into another agreement, or another treaty to try to get around it, or redefine what it means to claim sovereignty. And so that's really what's happened, actually. Is that the idea that you claim sovereignty by mining is well, that's not really true. You're using, but you're not claiming sovereignty. You're just going up there to get resources. Which, I mean, it's a bit of a squirrely argument, but that's how people, but that's why people, our countries are trying so hard to, to have this conversation, is because of the Outer Space Treaty.

And then article three says that there's no vacuums in space, contrary to what scientists will have you believe. Actually, yes, there is, space is a complete vacuum, but the point is that legally there are no vacuums in space.Article three says that if there are no laws governing any particular dispute or issue, that basically international law, like general principles of international law will apply. So that there's never an area where parties can say, "Oh, there was no law governing this at all." All right.

Article four says that there can be no weapons of mass destruction in orbit or on celestial bodies. And that space must be used for peaceful purposes, except if military is being used for scientific purposes. So the military can be in space, but only for scientific purposes. This is the idea of we can not militarize space at any cost, at all costs, which makes sense. Especially if you think about 1967 in the middle of the cold war, these conversations are very important. There is fear that there will be nuclear weapons placed in space. So this is obviously very much a reaction, and consistent with that time period.

Article five states that astronauts are envoys of all mankind. The idea that to give them a quasi-diplomatic diplomatic status, that these are people who are researchers, or explorers and that they should not be used as soldiers, and that they should not be used as pawns or leverage for countries to leverage against each other.

Article six says that states are responsible for their national space activities. Okay, well that makes sense. But then that raises all sorts of questions. Are they responsible for private actors? Are they responsible for private actors licensed by the governments? And the answer? There's actually a lot of literature on this issue. And generally speaking, the answer is yes, but there might be exceptions, or maybe we can look at it a different way.

Article seven states that launching states are liable for damage caused by their space objects.

Articles eight says that if it's yours, it stays yours no matter where it goes. So you can't launch a rocket from the US, and then it lands, I don't know, in Australia, and say, "Oh well, it's Australia's problem now." No, it's still yours, the US. And similarly, and this is really the big issue, you launch it into space, it's up there, it hangs around for a while, maybe it turns into debris, and it smashes into somebody else's satellite. Guess what? It's still yours, US. You are responsible for the damages because you can't just say, "Well, now that it's in space, it's nobody's, right? "It's not ours anymore." It's yours forever and ever, regardless of where it goes, regardless of what happens to it.

Article 11 says that we need to give due regard to the environment. And interestingly though, the Outer Space Treaty has no definition of an astronaut. Just says they're envoys of all mankind, but it doesn't define them. Because it's hard to define them. At the time, you know, are they military? Are they not military? Those are conversations we probably don't wanna have. And so the question nowadays, our space flight participants, astronauts, and space flight participant is the term that is used for commercial, for passengers, for sorry, commercial passengers on commercial human space flights. All right.

So the next agreement we're gonna cover is the Rescue Agreement, which again, that's a cutey short name, the long proper name is Agreement on the Rescue of Astronauts, Return of Astronauts, and the Return of Object Launch into Outer Space. And this is dated December 3rd of 1968. There are 90 ratifications. So if you see there's already 11 fewer states that ratified, when I say the states, I mean countries, there's 11 fewer countries that have ratified this treaty, and 24 countries have signed onto it signature only. But there are two organizational members which are at ISA, and the European Organization for the Exploitation of Meteorological Satellites.

So articles two through four cover the rescue of spacecraft personnel.

Article five states that upon request, objects that no, people, sorry, people shall, and objects shall be returned to the launching authority, which shall upon request, furnish identifying data prior to their return. Right? And so why have that in there? Well, the point is that remember cold war. Okay? So let's say that astronauts and equipment, or just equipment fall from the USSR, fall into the United States, or the United States zone of influence. And the US says, "I don't wanna give it back to you. "I wanna look at your technology, I wanna, you know, "maybe analyze it, figure out what you guys are doing." And the USSR was like, "Ah, I don't want you doing that." Same in, you know, same, the other way, the US has a space technology, and what if it lands in the USSR zone of influence, and then the USSR says, "Oh, I think I'm gonna do some retro engineering." The idea is, I know they don't want you to do that either. So this was really what it was about. It was you have to return objects, and you have to return people to each other.

Article six states that the launching authority is the state responsible for launching, which is, you know, clear as mud, which is why we actually ended up with another convention. Understandably, because people were like, well, okay, but they're gonna be lots of countries involved in the launch. And that was totally true. And then it refers to personnel of spacecraft, although it does not define it. So does it include crew? Does it include the space flight participants, include astronauts, but it makes sense though, that it was this vague, because at the time it probably didn't feel vague, 'cause only governments sent people up to space, right? So if they're on the spacecraft, then they're personnel of the spacecraft, and they need to be returned.

The next treaty is the Liability Convention, which is the Convention on International Liability for Damage Caused by Space Objects. And it is dated September 1st of 1972. There are 82 ratifications which you see again, number goes down, every time we have a new treaty, the number goes down a little bit more. There are 25 signatories to this agreement, and there are three IGOs that have signed on to this treaty, which is ESA, EOMs, which I read out on the previous treaty, and the European Telecommunications Satellite Organization. So what does the Liability Convention say? Well, the Liability Convention says that damage is defined as loss of life, personal injury, or other impairment of health or loss of, or damage to property of states or with persons natural or juridical, or property of international intergovernmental organizations. So very broadly defined, right? And the Liability Convention also says that an attempted launch is just as good as a launch. And what do I mean by that? What I mean by that is that if their rocket goes up two inches, and then it flops over and damages something, you can't say, "Oh, well it didn't launch. "We were just trying to launch it." Yeah, well, you tried to launch it and it didn't work, and you damaged something. So you're responsible for it.

Similarly, let's say that you try to send up a rocket and you know, it doesn't even make it into space. It kind of just piddles, and makes it, creates a suborbital trajectory of some type, and ends up back on the planet earth, and damages, what if you send up another rocket and it doesn't quite make it, it goes into maybe a suborbital trajectory, and it hits another country? The launching country can't say, "Well, it wasn't a launch. "We were just trying to launch it, "but it never became a spacecraft, "because it didn't really make it to space." Or some sort of argument along those lines. Which it would have, technically, if it's suborbital, but you know what I mean. Like what if it just misses space? The idea is, well, it's too bad, it's a spacecraft, you were trying to get it into space. The point was to get into space. You have now caused damage. You are responsible for the damage. Okay. So I've used this term a couple of times now, launching state, right? So what is a launching state? Well, there are four different entities that can be a launching state. The launching state can be the state that launches a space object. Okay. Thanks. It can also be the state that procures the launching of a space object. Now it gets interesting, right? So let's say that a country goes to France and says, "Hey, we wanna use to get into space. That country that is asking for those services is a launching state. They can't just wash their hands of the fact that anything happens to them saying, "Oh, well, yeah, but France was launching our satellite." Yeah, too bad. France is responsible, but so are you requesting state. A state from whose territory a space object is launched. Well, why would, you know, you're thinking what? Well, because sometimes a country may launch from a different country because they're leasing their facilities. And that happens actually quite a bit. And so if you're leasing the facilities, the country that you are leasing from is also responsible for that launch. And then the state from whose facilities space object is launched, okay, you're gonna ask me, okay, but wasn't that kind of redundant? Well, no, 'cause there's actually some facilities that could be out in the water. And so if you're launching from the water, you could be in international waters, which is technically no state, but the facility still belongs to someone. So those are all the various ways that you can identify a launching state. So how does liability a portion, right? Like how do you figure out who's at fault? So on and so forth? Okay.

Well, article two gives you the first answer. If there is damage on earth, on the surface of the earth, then there is absolute liability, strict liability. We don't care about fault, we don't care about negligence. If it was yours, you're responsible. And if the launching state and the procuring state, and the territory state, and the facility state are four different states, then guess what? You have four pockets to go after. Nice and easy. But it is strictly liable. What if the damage is up in space though? Right? Remember that example I gave you where you have a rocket, you send it up there, it patterns around space for awhile, and then it smashes into a satellite? Well, that's damaged in space, right? And that's gonna be fault based. And full base liability is going to be, what did you do to control your spacecraft? What did you do to ensure that it wasn't in an orbit that was going to interfere with other satellites? Did you just abandon it there? Or were you having technical issues? Those are the questions that are going to be asked when there is an accident or damage up in space. Okay. So who can claim damages under the Liability Convention? Can I just go and say, "Hey, under the Liability Convention, "your rocket fell on my house. "Give me some money." Right? No. So the convention recognizes three potential claimants in any liability action concerning a space object. And these three are all countries, states, not individuals. Because the Liability Convention does not create a private right of action. Right? So the three potential claimants in any liability action are the state where the damage occurred, the state whose national suffered damage, if in another state, and or the state whose permanent residents suffered damage. So it is state to state only. So if a rocket falls on my house, I go to the US government and I say, "Hi, a rocket fell on my house. "Can you please go and get me compensated for this?" And they will go to whichever country it is that launched the rocket, the launching state, you know, one to four, as we've seen, or all four, and say, "Hey folks, your rocket fell on my citizen's house. "How about you pay us some money, "and then hopefully, they'll turn around "and give me the money for that."

The next convention is the Registration Convention. It was entered into in 1976. And you will see 56 ratifications. We are down to about half, just under half, just over half of the ratifications that the Outer Space Treaty received. And then there's four signatories. So countries that signed, but did not ratify the treaty. And then there's two IGOs, ESA, and OEMs. And article two state that the launching state registers space objects, and it has to notify the UN. Okay. So a launching state has to register their space object, and has to notify the UN. But they can register their space object in two different places. And they can pick which one. They can do it in their own national register. So the country can just say, "Hey, UN, we're compliant. "We have a registry, and our, "anything we launch is on this registry." Or in the international register, which is maintained by the UN office of outer space affairs. Remember OOSA. The registration information that has to be provided is included in the Registration Convention. And usually this has to be done several months ahead of the launch.

And finally, there's the Moon Agreement. It's the agreement governing the activities of states on the moon and other celestial bodies. It was entered into in 1979. And here's the thing though. It's actually called a failed treaty, because there's only 13 ratifications, and there's actually no space powers, well, except, you know, there's really no major space powers in the 13 ratifications. And then there's four countries, including France, which is a space power, and India, which is a space power, but those are signature only. And so it's considered a failed treaty. And the Moon Agreement was about what are we gonna do about the moon, who owns the moon? How can we, you know, explore the moon, but by then, people had gone to the moon.

And so there was no interest in having further discussions on how to divvy this up. And then there's a four, in addition to the conventions and treaties, which are binding, as long as you have ratified them, there are four outer space resolutions, and they're not binding, but they might be persuasive, right? Because they are resolutions by authoritative body of the UN regarding space law. So while it's not exactly a law, it's definitely an opinion that, and a source of authority that people will refer to if they want some guidance about what to argue, and what not to do, and so on and so forth.

The first one is the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting. The second one is called the Principles Relating to Remote Sensing of the Earth from Outer Space. The third one is called the Principles Relevant to the Use of Nuclear Power Sources in Outer Space. And then there's a Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries. And the titles are very self-explanatory about what topic they cover. All right.

So having talked about treaties, and which I've used the term interchangeably with conventions, but I mean treaties, as well as non-binding resolutions, there is an international presence in space, and it's been there for a very long time, and it's called the International Space Station. So how does that work? How is that governed?

The International Space Station is actually governed by the Space Station Intergovernmental Agreement usually referred to as IGA. There are 14 countries that are members of it, and these 14 countries are the USA, Canada, Japan, Russia, Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Spain, Sweden, and Switzerland. And if you notice, the European countries are actually a part of ESA, but NASA is the manager for the ISS. And if you wanna take a look at the IGA, here's the link on here, where you can go and read the IGA, if you want to. And in addition to the IGA, there are four memorandums of understanding, which is basically NASA, the United States entering into MOUs with each of the other space agencies. And so they have like a one-on-one agreement with each of the other space agencies involved in the ISS. And so you have the IGA, and then you have the MOU. And then you have implementing agreements which include criminal, and implementing agreement regarding criminal liability.

So actually there's always discussion, "What if a murder happens in space?" I'm like, "Well, that's not really exciting," 'cause there's an agreement that covers it, and it's really, really quite detailed. And you should see it. So basically if a citizen of one country murders the citizen of another country on the ISS, then the country of the murderer has a certain number of days within which they must take action. Or the country of the murderee, of the victim, is allowed to take over and basically take over the prosecution of the murderer so that there is accountability, no matter what. There's also implementing agreements regarding anti-harassment policies, personnel behavior, which has crew code of conduct. And there's also implementing agreements regarding the use of the Russian segments of the ISS. Because if you're not familiar with the ISS, there are segments that belong to different countries. And so each of them, you know, has a different rules governing how it's used, and how the other countries can use it. And because they actually, basically, if you go into a segment that belongs to another country, you're actually in that country's jurisdiction. So you're actually crossing borders, technically speaking. And if you have questions about who the other partners are, it would be the Canadian Space Agency, the Russian Space Agency, the Japanese Space Agency and the European Space Agency. Those are the four other partners that work together, and NASA is the manager of the ISS.

Okay, so what does the IGA cover? This inter-governmental agreement. Well, article five discusses jurisdiction and ownership, which is what I just touched upon when I was talking about different segments. Article nine talks about utilization rights. You know, how do we use labs, crew time communications, and power resources? And the reason is because actually interestingly, the ISS kind of works on a barter system. Like, I'll let you use this much lab time in exchange for this much crew time. And I will let you use this communication ability in exchange for this other thing. So that's why there's all these utilization rights. They're very important, because that's what you're bartering with. There's a requirement of cross waiver of the parties, which makes sense, right? Because you don't want them to be suing each other every two minutes about stuff that goes wrong in space. That's article 16. And there are some exceptions. So there is no waiver to your IP rights for anything that is developed in on the ISF, which makes sense. There is no cross waiver for willful conduct, pretty standard, no cross waiver for partners' sub claims. So for example, the US can sue its own subcontractors, and there is no waiver for bodily injury or death. Also makes sense.

Articles 19 and 21 go into much detail about intellectual property rights, and how those are divvied up. And then article 22 discusses criminal jurisdiction. And that's why there's an implementing agreement, which is relates to conduct so on and so forth. So that is regulation of space at the international level. And now we're gonna get into the nitty gritty of regulation of space at the national United States level. How do the United States regulate commercial space flight? And the reason I'm talking about commercial space flight is because international space flight rules govern governmental, right? 'Cause the states are talking to each other, that's who their counter parties are. But in the US, how is the US gonna govern private actors going into space? So first let's talk a little bit about the US legal framework, right? The United States Constitution gives Congress jurisdiction over the interstate travel. We know that. Space law is interstate travel. That's just the way it is. And so what happened is that Congress delegated the authority to govern this type of interstate travel to the Department of Transportation. And the Department of Transportation is governed by the Commercial Space Launch Act, and the Commercial Space Launch Amendment Act, which is 51 USC 509 ad sec. And so the DOD turned around and was like, okay, well, we need an agency to actually figure out, you know, how is this gonna get implemented? How are the laws going to get implemented? Right? 'Cause we have this USC, the United States Code, but you know, how do you really implement it in a day to day activities? And that's why they turned to the Federal Aviation Administration, which has jurisdiction over launch, re-entry, and launch sites. And it issued regulations under 14 CFR 400 to 1199 regulating space law. And I have sat down and read through all of them. So in case you know you got nothing to do on a plane, that's what you could be doing. All right.

So I wanna give you a brief history of space laws in the United States. So in the 1980s, there was this great aspiration of commercial space flight. And so in 1984, it was kind of early, right? Nothing really is happening, but whatever, it got issued, it got enacted. The Commercial Space Launch Act is enacted, and it develops licensing requirements, it promotes the commercial space sector, and it delegates, as I said, power to regulate to Department of Transportation.

And then in 1988, there's Commercial Space Launch Act amendments, which provide talk about indemnifications and risk sharing. And in the National Aeronautics and Space Act Amendment, a Congress says, Congress declares that the general welfare of the United States requires NASA seek and encourage to the maximum extent possible the fullest commercial use of space. So definitely commercial space was in everybody's minds. It's not something new. It's something that the US government has actively tried to promote for a long time. Fast forward to the two thousands. Commercial space becomes a practical reality. We have commercial space operators that are saying, "We are going to send people up into space privately." Cool.

So in 2004, the Commercial Space Launch Act Amendments, sorry, the Commercial Space Launch Amendments Act is passed, which actually talks about commercial human space flight. And that is a big change. And then it's re-codified as 51 USC chapter 509, which is how we ended up with the USC code. Now there are varying points of view. And I think the next slide talks about that in a good way, because it summarizes what people, the various thought processes behind how do we encourage commercial space flight, and how do we wanna do it? Right?

These are statements by the House of Representatives upon enactment of the CSLAA: "Because this industry is at the stage when it is the "preserve of visionaries, and daredevils and adventurers, "these are people who will fly at their own risk "to try out new technology. "These are people who do not expect, "and should not expect to be protected by the government. "Such protection would only stifle innovation." And this idea was that, look, you guys wanna do something that's cutting edge. You wanna go out there and change the world, and do space and space is hard, and it's dangerous. You don't get to come and ask us to regulate it. It's up to you guys to be adventurers, and figure out what works and doesn't work. And the point being also that projection stifles innovation, because the whole point is to allow the commercial human space flight market to come up with new ideas and new solutions and new technology. And if you impose the regulations that have existed up until that point, then you're forcing technology into what's been done already, and not allowing it to figure out what can happen. What can be done.

The other side of the equation, which has largely lost, I mean, this side of the debate has largely lost, is that the standard in the bill amounts of the codification of tombstone mentality don't regulate until there are fatalities. We should not legislate a tombstone mentality for safety oversight of this news-based tourism industry. The fact is, there was this concern that there was gonna be a lot of accidents and a lot of deaths, and it was going to be catastrophic. It hasn't been catastrophic. There has been accidents. There has been loss of life, not enough, you know, understating that, but it's also been pretty successful in the sense that, we are seeing commercial human space flight really happening. And we were seeing a commercial space flight provider providing human transportation to the government for astronauts to get to the ISS. And that's completely revolutionary.

So as I said, if you were noticing, I said the FAA has jurisdiction over launch, launch sites and reentry. The FAA does not yet have jurisdiction over on-orbit activities. Which is very interesting and becomes very important further down the line, when we start talking about what are the repercussions of that lack of jurisdiction for on-orbit activities? So in the United States, if you decide, you're listening to the CLE, and you're like, I'm gonna go launch a rocket. Cool. That's great. You should tell me about it. I'd love to know about it, but also you have to go get a launch license. And a launch license has to be obtained by any person conducting a launch operation, or operating a launch site within the United States. Okay. That makes sense. Any United States citizen or entity operating under United States jurisdiction conducting a launch or operating a launch site outside of the United States. Oh, okay. So if you're under US jurisdiction, but you're elsewhere, you have to get a US launch license, all right. Or a foreign entity in which a United States citizen has a controlling interest, if that entity wishes to operate in an area that is international and not under United States jurisdiction through some government agreement. All right.

So if you have a US person who is a majority interest holder in your rocket activities, then you have to come get a launch license from the US government, just letting you know. So where are there no regulations? And this is what I was referring to kind of obliquely about the fact that there are no regulations. There are not a lot of safety regulations, and there are not a lot of standards that are being imposed on commercial human space flight operators, right? But that is on purpose. In fact, there's what they call a regulatory moratorium, which gets extended every time it comes up for renewal, where the FAA, where the federal government through the FAA has stated there was a moratorium on the FAA trying to regulate the safety of the people onboard. There are safety requirements for the people on earth and the public, right? For the people onboard, 'cause we wanna let the operators do what they're doing. So there's no medical standards for space flight participants as a matter of law.

There are no training standards for space flight participants as a matter of law. And the idea is that you are flying at your own peril. And there is a flight crew medical standards and space flight participant medical acceptance guidelines for commercial space flight, which was issued by the FAA Center of Excellence Media, UTMB, and you can find those. And these are guidelines that are being set out by aerospace medical professionals, which are definitely authoritative, but they're not binding. And this is the crux of what it comes down to, right? The points of view. Space flight participants, wishing to ride on board a launch vehicle have chosen to undertake a risky venture of their own accord. As such, they do not merit the financial security provided by the promise of government indemnification, and moreover space flight participants are not subject to any substantive regulation. And why am I talking about governmental indemnification? Because there is no governmental indemnification for space flight participants. That's the way it is.

So how do you get a license from the FAA? There's six steps. You have to go through a pre-application consultation, policy review, safety review, insurance review, environmental review, and then there are post-licensing requirements.

So what do these look like? Well, a prospective applicant must consult with the FAA before submitting an application to discuss the application process, and possible issues relevant to the FAA's licensing or permitting decision. Which really means you pick up the phone and you talk. Then you go into step two. And I actually broke it up into 2A and 2B. This is the policy review. The applicant tells the FAA the model type and configuration of their usable launch vehicle, it IDs the vehicle systems, including the structural thermal, pneumatic, propulsion, electrical aviation, and guidance systems, as well as the propellants. It has to identify any foreign ownership, and has to explain the launch and re-entry flight profile, including the sites, the trajectory, and the sequence of planned events or maneuvers during the mission. And then there's policy review to be, which is what the FAA tells others. So the FAA goes ahead and talks to the Department of Defense and says, look, this is what they wanna do. Do you see any US national security issues? Then it goes to the Department of State and says, do you see any foreign policy interests, or international obligations being affected by this, by this proposed mission? And then it goes to other federal agencies for other issues. And actually, the one that usually comes up here is EPA for an environmental review. Then there's a safety review, and it's a safety review for the public, right?

So step 3A is that there has to be a safety organization, right? In the sense of the organization of the company that is asking to launch. Who is where, and does what, when? You need to submit a communication plan, who says what to who, and how fast, you need to have a safety official, write the book stops with that person, who is the person in charge of go, no go decisions, and making ultimate decisions about public safety? And then you have to show that there is an acceptable risk to the public. And there is an actual number, which is the acceptable risk to the public. And that acceptable risk is measured in terms of the expected average number of casualties. And the acceptable ever number of casualties for the public at large is 0.00003. And the FAA will only issue a license if the danger to any one individual is less than one time sent to to the negative six. And then there is, you can ask to have a waiver to that safety requirement. And as Space X actually had to obtain a waiver to the safety requirement, because the way it was being calculated was a little bit different, and the point when the FAA got, when SpaceX got the waiver, is that the FAA was counting the risk, was adding up the risk of launch, the risk of re-entry, and the risk of an aborted re-entry all into one safety calculation. And SpaceX argued successfully, "Hey, you can't count both successful reentry "and aborted re-entry together, "because it's either or, "you can't have both happen at the same time." And so the FAA granted them a waiver. And so the SpaceX actually got waivers. But the waiver, the standard for them granting the waiver is if granting the waiver does not jeopardize public health and safety or safety of property, does not jeopardize national security and foreign policy interest of the United States, and is in the public interest. For purposes of looking at the licensing process in step 3B, part of the looking at the waiver process is understanding what is, you know, how do you define each particular portion of the mission, which is why I mentioned the SpaceX example. 'Cause you wanna talk about, you know, what is a re-entry, how do you re-enter vehicle, and what is a re-entry vehicle? And that's really when it comes down to it, because right, you can't, the re-entry vehicle is a vehicle designed to return from earth orbit or outer space to earth, substantially intact. Okay. And then re-entry is the purposeful return or attempt to return a re-entry vehicle and its payload, if any, from orbit or from outer space. And so when you're calculating risks, you really wanna understand when does launch begin and end, when does re-entry begin and end, what is re-entry, and what is a re-entry vehicle?

So as I mentioned, SpaceX was able to obtain waivers with respect to the safety review, and ended up taking two waivers in particular. The first one I've already touched upon, and that was that Falcon 9 launch, had a 19 times sent to the negative six risk. Dragon re-entry had a seven times sent to, the negative six risk to the public, and the failed Dragon re-entry attempt had a 21 times sent to to the negative six. And the combined risk was 47 times sent to the negative six, which is higher than the acceptable threshold, but below if each of them is taken separately. And so SpaceX was successfully able to argue that, and the waiver was granted. And then SpaceX was able to obtain the second waiver, because the regulations normally do not allow autonomous reentries, but the Dragon is a very, very special capsule. It can conduct a ground health check, and it can conduct a self health check. And if either is failed, it will abort re-entry. And what is really special about the SpaceX capsule I've listed it here, is that it automatically reduces itself to the lowest energy level if it has an off nominal burn. It has the ability to autonomously guide itself to the same predetermined landing site located more than 780 kilometers from the coastline. It monitors its safety critical systems in real time. It has 100% margin on both power and propelling budgets. It has space grade inertial measurement unit, and it has a space grade flight computer, and it has redundant drove parachutes, and dual redundant main parachutes, right?

So SpaceX presented all this information to the FAA, and the FAA said, "Cool, waiver is granted." And here I'm gonna take a very small lecture detour and explain, this is a great illustration of why the FAA moratorium makes sense. Because the FAA implemented rules, and even those rules immediately had to obtain waivers, because they didn't quite fit the technology. And they did not take into account what could be done by commercial space entities, if they wanted to have re-tried, especially with this autonomous re-entry technology. And so if you want an example, you know, SpaceX has been able to do this very safely, and they have done so while requesting waivers to rules that the FAA had implemented even under the guise of basically not having safety requirements. All right, that was my soap box.

Step four is insurance. Now, insurance is kind of an interesting aspect of this. Basically, the United States is under a risk sharing regime. And under the risk sharing regime, it says that an entity that wants to send rockets into space, or people into space has to insure itself up-to its maximum probable loss, which is the calculation of what is the maximum probable loss that will incur, you know, maximum liability exposure. And or if it can't do that, it has to obtain insurance currently available on the market at a reasonable cost. And current FAA licenses have MPLs ranging from 20,000 to approximately $200,000, and the available insurance more than covers it. So that has not been an issue. And then the US government will actually cover above that. And we'll talk a little bit about that, but basically, the reason it's a risk sharing regime is because above the maximum probable loss, the US government takes over covering the risk. And then above that, there's a third traunch that starts in the, you know, several billion dollars. And that's where it goes back to the operator, right? So the government says, look, we'll cover you from where your insurance ends until that billion dollar bill. And I think we're at 2 billion now, cap, but then above that, you're back on your own. And when I talk about the moratorium, it's a moratorium on requirements for occupants' safety on suits, live support, capsule design, launch profiles, and recovery procedures. And it was extended 10 years to 2025.

So we're coming up on it, and it'll probably get extended again, but it's not unlimited. So if there's an accident or a close call, the FAA is allowed to end the moratorium. And so far that has not happened. There has not been an accident that has caused the FAA to consider ending the moratorium. Step five of the licensing process is an environmental review. And that means that the launch has to comply with the National Environmental Policy Act, NEPA. It has to comply with the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act. And it has to comply with the FAA's procedures for considering environmental impacts. The NEPA review is actually usually called the environmental assessment. And then NAPE, there will either be a finding of no significant impact, or there will have to be an environmental impact statement, which is basically saying how the entity is going to minimize the impact on the environment of its activities. And then step six is post-licensing requirements. You have to comply with all laws and regulations, you have to compliance with terms of the license, right? You can't say you're gonna do one thing, and then do another one. You have an ongoing duty to update the FAA on any changes or corrections, and the punishment for failure to abide by these license and compartments is the license regulation. All right.

So let's talk about, I'm gonna jump into a little bit more of regulating commercial space in the United States. I talked a little bit about the risk sharing regime, which I told you the licensee has to get insurance up to the NPL. There's government and an invocation, several billion dollars, so 3.3, 6 billion in 2021 dollars. And then the licensee has to cover the rest. And this was extended in '20 to 2025. And it was funny, because both Republican and Democrats got this wrong. Some said that the risk sharing, well, people will lose jobs, if it's not extended, which is false. There's no loss of job resulting from it. But then a Democrat house member said risk sharing was an interim measure until the industry can handle itself, which is also false. It's been the standard, and I predict it's probably gonna remain the standard. Federal law also requires assumption agreements, basically mandatory waivers, and no fold reciprocal agreements. It requires that the ed space flight participant in the crew waive their claims against the government and the contractors. And recently, recently I'm saying probably a few years ago, the SFP, the Space Flight Participant now also has to waive claims against operators, subcontractors, and vendors. The US law, 51 USC 50905, we've talked about the FAA regulatory process, right? Okay.

But there's other aspects to commercial space flight. And this is what I'm covering here in 51 USC 50905. There is such a thing called the informed consent process. And under the informed consent process, the space flight participant has to receive in writing an explanation of the risks of launch and re-entry, including the safety record of the launch or reentry vehicle type. The informed consent process has to inform the space flight participant that the United States Government has not certified the launch vehicle as safe for carrying cruiser SFPs, and the space flight participant has provided written informed consent to participate in the launch and re-entry. The FAA then took that 51 USC 50905, and came up with six topics of conversation, which are listed in 14 CFR 460.45. And so the six topics of conversation that have to be included in the informed consent process are the hazards associated with suborbital flights generally, the lack of safety certification by the US government. So the US govern is licensing, but it's not certifying as safe, right? 'Cause there's no safety regulation for the people on board. The safety record of launch and re-entry vehicles generally, the safety record of the CHSS operator's particular vehicle, and the availability of additional information if the SFP desires it, and the opportunity for the SFP to ask additional questions. Great. But then something interesting happened. States started regulating space flight. Okay.

So we just finished covering the space flight informed consent process. And you would think that's the end of the line, but it's not. The reason it's not the end of the line is because there are eight states that took it upon themselves to pass laws regarding space flight activities. And while they did not attempt to regulate space flight, because indeed they cannot regulate space flight, what they did is that they attempted to immunize or protect the space flight, the commercial human space flight operators. And in one way, was to welcome the industry, and welcome the operators and try to make themselves a more attractive jurisdiction for those activities.

So these states are, I refer to them as the space friendly states, and I refer to the statutes that they pass as the space activity statutes. And the reason I do that is because when I drafted my work, when I wrote my masters and my doctorate, there was no terminology to refer to them. So I made one up. So the eight states that are particularly space friendly states that pass these statutes are listed here: Arizona, California, Colorado, Florida, New Mexico, Oklahoma, Texas, and Virginia, and all of them except for Arizona, but all of the others, the way the statute works, is that the operator is given a paragraph.

And here it is in the next slide, a warning statement that it provides to its commercial human space flight participants, right to its private astronauts. And when it does that, it basically covers itself with the mantle of this statute that is meant to immunize it from a certain degree of liability, and for certain injuries that may happen as a result of space flight activities. Okay? It's like this is their ticket to being able to claim coverage by this statute. So commercial human space flight operators are protected for committing certain acts under each of their respective statutes in the particular states, right? So Arizona is a completely different creature. And so it doesn't really like the, the structure doesn't really apply. So I put N/A there. But basically we're gonna talk about the other states.

California through Oklahoma, it's very interesting, it's very muddy, because in California, for example, they would be immunized for committing negligence. But they would not be immunized for committing acts of gross negligence and willful and wanton conduct, which is actually standard down the line. Even where it's N/A, it's just because willful and wanton is not used as a term. The point though, is that obviously, most states, all states will not allow you to protect yourself for willful and wanton conduct. That's fine. Where it gets kind of muddy is the fact that even despite the existence of these statutes, entities may remain liable for their own negligence, which doesn't make sense, but is true. So for example, in Colorado, Florida and New Mexico, CHS operators were probably not protected for committing acts of negligence, which has always begged the question for me, then why enter into the statute? And obviously, the reason is the statute was entered into when it was introduced into legislation for the purpose of protecting the entities. And then there was negotiation and pressure and rewriting, and a lack of taking into consideration case law, and the way case law has affected case law regarding immunization, and case law regarding statutes that attempt to immunize operators has been interpreted in a particular state, that's certainly the case in New Mexico, and how that interacts with the statute, right? And then in all the states, except Texas, an operator is not protected. So it's not protected if there's a risk that he knew or should have known about. So all of this is just, you know, it's states trying to muddle through their various interests, political interests within their state, but at the same time, trying to immunize operators, that's what I'm trying to say.

Now, all of this changed in 2015. And everything I've told you is probably no longer true, except for Arizona and Texas. Because in 2015, the federal government imposed a cross waiver requirement under 51 USC 50914, which states that a space flight participant must now enter into a cross waiver with the operator. When that happened, there is a huge question of preemption, right? What is left of state statutes regarding this liability waiver, basically, this immunization, if the government now says space flight participants have to sign a cross waiver immunizing their operators. What's left? Well, that's the topic of an advanced space law lecture. And it's the topic of my doctoral thesis, which took five years to write. So I'm not gonna cover it in the last few minutes of the CLE, but here's the upshot. This is what it ends up, you know, what does it look like? This is what it looks like. I told you the FAA only has jurisdiction over launch, and re-entry, not on orbit activities, not before the launch, and not after re-entry. And what I haven't told you yet though, is that the space activity statute define their zone of influence in different ways. All of them, except for Arizona and Texas, define their zone of influence in the same way as the FAA. So there's a perfect overlay between the FAA jurisdiction and the application of these state statutes. And so I would say that there is complete preemption of those particular statutes.

But Arizona and Texas, you know, go big or go home, define their zone of influence as including areas that are beyond the FAA jurisdiction. So before the launch, after re-entry, and that means that because the FAA does not have jurisdiction over those particular periods in the mission, the state statute has arguably survived the preemption analysis. So this is what it would look like. For an orbital trajectory in prelaunch, you would have the Texas and Arizona, the space activity statute, you have liability waivers that the parties enter into aside from, you know, any federal requirement. And you would have state common law. During the launch, because you're covered by the FAA, you would have mandatory federal cross waivers. On orbit, you would be back to international law, state common law, and any optional waivers that the parties entered into. During re-entry, you're back under FAA guide. So mandatory federal cross waivers apply. And then after re-entry, so retrieval of your crew, and so on and so forth, you're back to Texas and Arizona, probably surviving the preemption analysis, individual liability waivers of the parties entered into, and state common law. For suborbital trajectory, it's a little bit difference, because there's no orbital trajectory period, right? You never actually make it into orbit, it's suborbital. And so you basically have Texas, Arizona space activity statutes, liability waivers, and state common law. You then launch, which means that you're under your mandatory federal cross-waiver, if something goes wrong. During re-entry, you're still under your federal mandatory cross waiver. And then post re-entry though, you fall back. If you happen to be an operator that got their launch, or was able to get Texas resident, or Arizona law to apply, you'd be back under the Texas or Arizona space activity statute, you would have your liability waiver you've entered into, and you would be back under state common law, which creates a really patchwork universe of space.

So all of this to tell you that despite my very structured and organized start to this lecture, the current state of commercial space flight liability regulation, regulation of liability exposure in the United States is very hazy. It's very muddy, it's patchwork. And you know, that's why I spent five years writing about it in my doctoral thesis. And that's why we still don't have a definite answer to the question of how exactly is commercial human space flight liability exposure regulated in this country.

And that concludes my CLE on space law in the United States. Thank you so much for your time. Thank you for spending this hour with me. And here's my email if you want to reach out and talk to me. And I hope you have a wonderful week, day, evening, weekend, holiday, whatever it is that you're heading into, as you decided to spend this hour with me. Thank you so much. Bye.

Presenter(s)

GCL
Giugi Carminati, LLM
Space lawyer, eDiscovery attorney, legal project manager, and former litigator
Livable Law

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