Academic journal article Journal of Corporation Law

The Final Frontier and a Guano Islands Act for the Twenty-First Century: Reaching for the Stars without Reaching for the Stars

Academic journal article Journal of Corporation Law

The Final Frontier and a Guano Islands Act for the Twenty-First Century: Reaching for the Stars without Reaching for the Stars

Article excerpt

I.   Introduction
II.  Background
       A. The Guano Islands Act
       B. Deep-Sea Mining
       C. Brief History of the Space Treaties
       D. Proposals for the Future Development of Space Law
III. Analysis
       A. The Guano Islands Act Solution
           1. A New Type of Territory with a Different Sovereignty
           2. Dealing With Conflicting Claims Under the Guano Islands
               Act
       B. The Deep-Sea Mining Solution
           1. Competing Interests Make Appropriation of Resources
               Difficult
           2. The U.S. Deep Seabed Hard Mineral Resources Act Failed
               to Solve Issues of Sovereignty
       C. Analysis of the Space Treaties
           1. Current Space Treaties did not Envision Exploration and
               Appropriation by Private Parties
           2. Treaty Limits on Appropriation were Intended to Prevent
               Conflicting Claims and Hostilities by Nation States
       D. Proposals for the Future Development of Space Law
           1. Proposals for an International Regime
           2. Proposals for Unilateral Action
IV.  Recommendation
       A. The New Proposal
       B. International Proposals are Not Readily Implementable
       C. The New Proposal Provides Legal Certainty and Incentivizes
           Investment
V.  Conclusion

I. INTRODUCTION

The Obama Administration recently approved a dramatic shift in the way the U.S. government sends personnel and cargo into space. (1) Rather than developing post-space shuttle systems owned by the government, the administration is planning to pay private contractors to transport government personnel and cargo on private launch systems. (2) This new direction should relieve the problem of government "crowd out," which has made it difficult for space entrepreneurs in the private sector to compete with NASA. (3) With NASA out of the way, private companies may finally have an incentive to design and build commercial spacecraft, which can transport not only government personnel but also corporate employees. (4) The Obama Administration has also recognized the increasing importance of space law and space policy by approving the recodification and collection of existing space laws. (5) "For the past 83 years, the United States Code has been limited to 50 titles, but now a new title has been added: Title 51, United States Code, 'National and Commercial Space Programs.'" (6)

We are on the verge of a new age of exploration and industrialization in outer space. Already, on December 8, 2010, SpaceX, a space startup company, designed, built, and flew an unmanned cargo-ferrying version of their manned space capsule. (7) In the process, SpaceX became the first private company to "recover a spacecraft reentering from Earth orbit," "a feat previously performed by only six nations or government agencies: the United States, Russia, China, Japan, India, and the European Space Agency." (8) SpaceX is currently preparing to launch its unmanned cargo capsule on the first commercial resupply mission to International Space Station (ISS), which will also be the first American resupply mission since the Space Shuttle's retirement. (9) SpaceX has contracted for at least 12 resupply missions to ISS worth $1.6 billion, and NASA has the option to extend the contract. (10)

Previously, in 2004, SpaceshipOne won the X-prize (11) for private spaceflight and was the first private ship to reach space. (12) Richard Branson's Virgin Galactic is currently testing its larger commercial passenger version, SpaceshipTwo, and has recently opened its first spaceport in New Mexico. (13) Unlike more traditional space launch systems which use rockets to blast cargo directly to orbit, SpaceshipOne is first flown to significant altitude by jet aircraft and then launched, resulting in significant fuel savings. (14) While Virgin Galactic is still working toward its first commercial suborbital spaceflights, its design partners have already begun working on an orbital variant. …

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