Emerging Issues, Existing Law, and Pragmatic Solutions

Abstract

The Outer Space Treaty of 1967 is widely ratified by major space powers and emerging space faring nations, and has helped with over forty years of the peaceful use and exploration of outer space. Fundamental portions of it have passed into the realm of customary international law, and it has largely hindered the militarization of outer space. This foundational treaty has also been supplemented by additional treaties on the rescue of astronauts, on international liability, and on the registration of space objects. The UN committee where the treaty originated has also promulgated various principles and declarations that further refine the legal framework for the use of space.

However, aspects of the major space treaties may prove ill-suited for the next, more globalized and cooperative age of global space exploration. Vagaries over the extent and nature of the prohibition on appropriation and the treatment of celestial resources have engendered debate and confusion, and will continue to do so.

The role of commercial providers – not just as contractors but as industrial partners to national space agencies was not foreseen during the early years of space treaty drafting. The concept of a launching state has also become problematic due to commercialization. And now, the characterization of astronauts aboard commercial launch providers has now stretched U.S. national law and will eventually become problematic under the applicable international law. This paper will investigate the short-term issue of the treatment of astronauts in domestic U.S. law, and the long-term issue of the treatment of astronauts under the public international law of outer space.

Keywords: National Aeronautics and Space Administration, NASA, Commercial Crew, Federal Aviation Administration, FAA, Outer Space Treaty, SpaceX