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‘Let the awe and mystery of a journey unlike any other begin” is a tagline to Stanley Kubrick’s 1968 science fiction classic “2001: A Space Odyssey.” A compelling drama about a voyage into the future, the countdown to uncharted territory is reality today. Nearly 40 years since the film’s release, society is now on the ultimate non-fiction trip to outer space. Some investors, coined “astropreneurs,” are betting on space tourism as the next big thing. This interest in the private race to space took off in 2004 with the X PRIZE Foundation 1 awarding its first $10 million cash-prize to the Mojave Aerospace Ventures team, led by aerospace veteran Burt Rutan and financed by Microsoft co-founder and billionaire entrepreneur Paul Allen. It was after their 2004 flight of SpaceShipOne, the first privately funded rocket to reach space that set in motion the revolution in private spaceflight. It was also in 2004 that the National Aeronautics and Space Administration inaugurated its Centennial Challenges, with Congress appropriating a $12 million contest budget, seeking inventors to brainstorm new technologies for a possible return to the moon. Since February 2006, NASA’s self-described mission statement has been to pioneer the future in space exploration, scientific discovery, and aeronautics research. Technological prowess is expected to soon make space tourism, which had its beginnings with Space Adventures in 2001 handling a pair of $20 million trips to the International Space Station (ISS), 2 as well as outer space floating hotels — or orbital accommodations — an affordable adventure. Space elevators are in research and development. Surgeries are already conducted while floating in zero gravity. A space diving suit is currently under development. Aircraft are being manufactured for everyday travel as taxis. A Personal Spaceflight Federation has been newly formed. And, even the American Bar Association has The Forum on Air & Space Law. The ISS Agreement provides that NASA shall be the lead agency in coordinating the member states contributions to and activities on the space station, and that each nation shall have jurisdiction over its own module(s). It additionally provides for the protection of intellectual property and procedures for criminal prosecution. New Mexico is building a $225 million, 27-mile “purpose-built” commercial Spaceport America site, to be completed by 2010. It will serve as the world headquarters and primary operating base for Richard Branson’s Virgin Galactic passenger-carrying suborbital spaceliner. A $20,000 deposit reserves a $200,000 seat. At present, it boasts $25 million in customer deposits, 3 with more than 82,000 expressions of interest. With approximately 100 accredited space agents, or registered travel agents, worldwide from around 82 agencies in 17 counties booking customers all over the world, Virgin Galactic will soon be ready for takeoff. Recognizing that private human space flight is a fledgling industry, in February 2007 the Federal Aviation Administration issued regulations, 4 as mandated by Congress in the Commercial Space Launch Amendments Act of 2004, establishing requirements for the personal safety and informed consent of space flight participants (passengers) taking a private human space flight, 5 verification of launch vehicle performance in an operational environment, and the proper qualification and training of flight crew 6 for licensed activities. At a recent Space Technology and Applications International Forum, discussion ensued on the concern that humans are destined to become a multi-planetary species. Given the advance of space exploration, differences in gravity and radiation exposure, the human species is expected to evolve into something different. In true futuristic form, it was questioned whether a child born on the Moon or Mars would be considered a homo sapien able to live on Earth, or a new form of species possibly tagged homo sapiens astro. Technologies are further converging in the area of space travel. The National Security Space Office of the Pentagon is taking advantage of the collaborative nature of the Internet by partnering with the Space Frontier Foundation to conduct its study on the potential applications for space-based solar power. Nanosensor chips, made of either carbon nanotubes or nanowires, and weighing only a couple of grams, traveled this year into space aboard the Naval Academy’s Midstar-1 satellite to measure various gases that may seep into a spacecraft, contaminating the air supply, threatening the health of crew members, and effective functioning of sophisticated instrumentation. NASA’s main areas of nanotechnology research are in nanomaterials, nanoelectronics, and biomolecular nanotechnology. The ISS is one of the largest and most complex international technological projects in history, 7 expected to support research activities in materials and combustion science; biology; biotechnology: protein crystal growth and cell science in microgravity, among other things. Additionally, bioastronautics, a relatively new specialty area of bioengineering research, encompasses numerous aspects of biological, behavioral and medical concern governing humans and other living organisms in a space flight environment; and includes design of payloads, space habitats and life support systems. It spans the study and support of life in space. Space Law Space law can be described as an area of national and international law governing activities in outer space. While there is no clear definition of where space begins, an accepted definition is the lowest altitude that permits a vehicle to orbit the Earth without entering the Earth’s atmosphere. That altitude is approximately 100 km (62 miles). Below that altitude, air law with all its sovereignty ramifications applies. 8 However, space law is most often associated with the rules, principles and standards of international law appearing in five international treaties created by the 1959 U.N. Committee on the Peaceful Uses of Outer Space (COPUOS), each ratified and signed by respective member states, 9 and five sets of principles, having the legal status of General Assembly resolutions, governing outer space under the auspices of the United Nations Organization. But it also includes international agreements, treaties, conventions, rules and regulations of international organizations, national laws, rules and regulations, executive and administrative orders and judicial decisions. Two COPUOS subcommittees — the scientific and technical subcommittee and the legal subcommittee — have been the primary forum for discussion and negotiation of international agreements relating to outer space. Other international treaties may involve communications, remote sensing and space debris. The legal foundation in the United States for a commercial presence in satellite remote sensing was laid out in presidential directives and in the Land Remote Sensing Commercialization Act of 1984. 10 More recent legislation improves the legal and competitive environment for remote sensing in the private sector. 11 As of January 2006, 98 member states have ratified, and 27 others signed the U.N.-sponsored Outer Space Treaty. Article I set forth that: “The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific involvement, and shall be the province of all mankind . . . [with] free access to all areas of all celestial bodies . . . guaranteeing freedom of scientific research . . . banning nuclear weapons and weapons of mass destruction . . . requiring signatories to regard astronauts as envoys of mankind in outer space.” Emerging and converging space-based technologies are pushing societal boundaries outside the earth’s surface. In the next few decades, astropreneurs and adventuresome tourists may establish a space-based economy, even though the Moon Agreement stipulates that no part of the moon (or other celestial bodies in the solar system) shall become property of any state, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. And, according to the Liability Convention, member states that launch or procure the launch of an object into outer space are internationally liable for damages suffered due to an errant space launch, its faulty satellite, or its component parts. Still, how will private space travel impact the airways, hospitality industry, daily travel, medical profession, insurance and real estate investments? What types of liability might a consumer confront and contracts need to be in place for a trip to the outer orbital galaxies? With the commercialization of space, who will have jurisdiction over a common-property piece of the sky? Who will govern extraterrestrial colonies? Several entities already are in the extraterrestrial real estate business — the Lunar Embassy, the Lunar Registry, Buyuranus.com, the Universal Lunarian Society, Space Pioneers, and the Martian Consulate — who even sell deeds to parcels on lunar craters, Mars and Venus. However, the legal problem most frequently encountered in international space cooperation is the U.S. government approval process for Memoranda of Understanding required for each cooperative project. 12 Additionally, agreement over granting of immunity from liability required by NASA has been a primary stumbling block. And, although space law and its alleged issues may sound like science fiction, many real-life lawyers work in the field already, and their numbers are growing. Conclusion Personal spaceflight has launched a new age of exploration and the embarkation of a new industry. Five states — California, Oklahoma, Florida, Virginia and Alaska — already hold government licenses for commercial spaceports. Even Jeff Bezos, the Amazon.com founder, has entered the space race with his Blue Origin venture. The air is a public highway and the airspace is part of the public domain. Opening space to travelers willing to pay for the experience presents a new source of technical innovation. But some observers say that if the space industry “is to develop as it should, there must be a body of law that supports its growth.” 13 As a result of a more interconnected world, law is becoming increasingly international and globalized, with clients requiring legal advice on complex cross-border commercial transactions, an understanding of international standards and global obligations, together with political and economic relationships. And, while the future of space law is still in its infancy, private spaceflight is rapidly changing and developing travel. “Most of our laws and regulations governing space activity were written to make it easier for government to function in space. Now we need to make it easier for the private sector to undertake space development,” some say. 14 As with any new thing, the legal profession will be confronted with challenges beyond the realm of today’s laws, statues and treaties — even trivial and bogus claims of celestial bodies ownership or out-of-this-world commerce. Sonia E. Miller is principal of S.E. Miller Law Firm and president of the Converging Technologies Bar Association. She can be reached at [email protected]. 1. www.xprize.org (Last visited Sept. 13, 2007) 2. Nations participating in the ISS 1998 agreement are the governments of Canada, member states of the European Space Agency, Japan, Russian Federation, and the United States concerning cooperation on the civil international space station, ftp://ftp.hq.nasa.gov/pub/pao/reports/1998/IGA.html (last visited Sept. 14, 2007). 3. www.virgingalactic.com (Last visited Sept. 13, 2007) 4. Federal Register/Vol. 71, No. 241, Dec. 15, 2006, Department of Transportation, Federal Aviation Administration, 14 CFR Parts 401, 415, 431, 435, 440 and 460 [Docket 2120-A157] Human Space Flight Requirements for Crew and Space Flight Participants. Final Rule. 5. 49 U.S.C. 70105(b)(5) 6. 49 U.S.C. 70105(b)(4) 7. Institutional Arrangements for Space Station Research, Space Studies Board, Aeronautics and Space Engineering Board, National Research Council. Washington, D.C.: National Academy Press (1999). 8. Graham, John F. Chapter 30: Space Law (1995) http://www.space.edu/projects/book/chapter30.html (last visited Sept. 13, 2007). 9. The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, the 1973 convention on International Liability for Damage Caused by Space Objects, the 1975 Convention on Registration of Objects Launched Into Outer Space, and the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. 10. Public Law 98-365 11. Land Remote Sensing Policy Act of 1992 and the Commercial Space Act of 1998. 12. U.S.-European-Japanese Workshop on Space Cooperation Summary Report. Washington, D.C.: National Academy Press (1999). 13. Reynolds, Glenn H. and Robert P. Merges, “Outer Space: Problems of Law and Policy,” 2nd Ed. Colorado: Westview Press (1997). 14. L. Roberts (1996) “Space Business Incentives: It’s Time to Act,” Ad Astra, Vol. 8, No. 2, pp. 38-39.

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