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Interplanetary Contamination: the Ultimate Challenge for Environmental and Constitutional Lawyers? JOURNAL OF SPACE LAW VOLUME 31, NUMBER 1 Summer 2005 JOURNAL OF SPACE LAw UNIVERSITY OF MISSISSIPPI SCHOOL OF LAw A JOURNAL DEVOTED TO SPACE LAW AND THE LEGAL PROBLEMS ARISING OUT OF HUMAN ACTIVITIES IN OUTER SPACE. VOLUME 31 SUMMER 2005 NUMBER 1 Editor-in-Chief Professor Joanne Irene Gabrynowicz Executive Editor Jacqueline Etil Serrao. J.D., LL.M. Articles Editors Business Manager P.J. Blount Lori Moorman H. Barber Boone David P. Curtis Senior StaffAssistant Stephen W. Dummer Julie Baker Jonathan Hinson Miranda Linton Luke Miller Keishunna Randall Jamie Rutland Katrina Sandifer Marc J. Smith Thomas Taff Founder, Dr. Stephen Gorove (1917-2001) All correspondence with reference to this publication should be directed to the Journal of Space Law, P.O. Box 1848, University of Mississippi School of Law, University, Mississippi 38677; [email protected]; tel: +1.662.915.6857, or fax: +1.662.915.6921. Journal of Space Law. The subscription rate for 2005 is $100 U.S. for U.S. domestic/individual; $120 U.S. for U.S. domestic/organization; $105 U.S. for non-U.S.lindividual; $125 U.S. for non-U.S.lorganization. Single issues may be ordered at $70 per issue. For non-U.S. airmail, add $20 U.S. Please see subscription page at the back of this Volume. Copyright © Journal of Space Law 2005. Suggested abbreviation: J. SPACE L. ISSN: 0095-7577 JOURNAL OF SPACE LAw UNIVERSITY OF MISSISSIPPI SCHOOL OF LAw A JOURNAL DEVOTED TO SPACE LAW AND THE LEGAL PROBLEMS ARISING OUT OF HUMAN ACTIVITIES IN OUTER SPACE. VOLUME 31 SUMMER 2005 NUMBER 1 CONTENTS Foreword ............................................... Joanne Irene Gabrynowicz iii Call for Papers ................................................................................. vi Articles Space Travel Law (and Politics): The Evolution of the Commercial Space Launch Amendments Act of 2004 ............................................... Timothy Robert Hughes 1 Esta Rosenberg "Eyes" On Freedom- A View of the Law Governing Military Use of Satellite Reconnaissance in U.S. Homeland Defense ..................................... Christopher M. Petras 81 Interplanetary Contamination: The Ultimate Challenge for Environmental and Constitutional Lawyers? ................................ George S. Robinson 117 Legal Aspects of Reusable Launch Vehicles .................................................. Varlin J. Vissep6 165 Commentary The Evolutionary Stages ofthe Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) ........................ Sergio Marchisio 219 Bibliography: Case Developments and Recent Publications Space Law and Relevant Publications .............. Keishunna Randall 243 Jamie Rutland Articles............................................................................................. 243 Comments/N otes ............................................................................. 244 Books ............................................................................................... 245 United States' Pending Legislation ............................................... 245 Agreements ..................................................................................... 245 ii FOREWORD FORCES OF CHANGE IN SPACE LAW Joanne Irene Gabrynowicz This issue of the JOURNAL OF SPACE LAw provides a snap­ shot of the forces of change currently in play in space law. They are observable at both the national and international level and are occurring in the civil, commercial, military, and intelligence uses of space. The more important changes are intersecting be­ tween and among these sectors and are addressed by this issue's authors. Important changes at the international level are identified in this issue's commentary, The Evolutionary Stages of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space, by Professor Sergio Marchisio, the Sub­ committee's current Chairperson. He describes the changes in the Subcommittee's role over time since its inception. Professor Marchisio identifies three stages of the Subcommittee's func­ tion. He sees it evolving from a law-making stage, to a Princi­ ples making stage, to an assessment stage based on the rights and obligations of the treaties in force. Significantly, Prof. Marchlsio concludes that the role of the Legal Subcommittee is certainly not over as it continues to form the most suitable envi­ ronment to promote the assessment of space law and the devel­ opment of new norms. Dr. Varlin J. Vissepo, in Legal Aspects of Reusable Launch Vehicles, addresses the changing processes of implementing a State's international obligations at the national level. He com­ pares the national launch liability regimes of various States and identifies another emerging force of change: the new launch technologies that are at the intersection between aviation law and space law. Mr. Vissepo analyzes this intersection in legal terms and makes some recommendations about the proper in­ ternational regime that ought to apply to the new generation of launch vehicles. iii In Space Travel Law (and Politics): The Evolution of the Commercial Space Launch Amendments Act of 2004, Timothy Hughes and Esta Rosenberg describe how the U.S. took the next evolutionary step with its 21-year old national launch statute to include the new vehicles emerging from the private sector. Mr. Hughes and Ms. Rosenberg were directly and significantly in­ volved in the Act's lawmaking process, he as Committee Counsel in the U.S. House of Representatives and she as Senior Attorney in the Federal Aviation Administration's Office of Commercial Space Transportation. Together, they offer a first hand account of how the U.S. met its international legal obligations, served its national interests and how political philosophies played out in the legislative process. This seminal article is certain to become an authoritative reference piece for space law legislators and scholars around the world. Dr. George Robinson writes about the interface between a specific international obligation-avoiding adverse changes in the Earth environment by introducing extraterrestrial matter­ and relevant U.S. Constitutional requirements in Interplanetary Contamination: The Ultimate Challenge for Environmental and Constitutional Lawyers? He analyzes the domestic quarantine authority previously used by the U.S. in past lunar missions. Dr. Robinson concludes that the quarantine authority, and the process by which it is executed, has to change for the Vision for Space Exploration. To meet the Vision's requirements, U.S. Constitutional due process standards, and international treaty obligations, future quarantine authority must be more trans­ parent, comprehensive and mission specific. In "Eyes" On Freedom-A View of the Law Governing Mili­ tary Use of Satellite Reconnaissance in U.S. Homeland Defense, Lt. Col. Christopher M. Petras presents an overview of the legal regime related to the U.S. Defense Department's use of satellite surveillance and offers a changing view of satellite use in a time of terrorist activities. Lt. Col. Petras analyzes some of the stat­ utes and regulations that are intended to maintain a divide be­ tween military and civil activities in the U.S. He concludes that the purposes of some of these laws are misunderstood and that some steps have been taken to enhance civil-military integra- iv tion for homeland security planning and operations. He con­ cludes further that more needs to be done to clarify the provi­ sions delineating the legal boundaries of interaction between the military, elements of the intelligence community, and fed­ eral, state, and local law enforcement agencies. Finally, third-year law students Keishunna Randall and Jamie Rutland round out this issue of the JOURNAL OF SPACE LAw by gathering the space law that has changed since the last issue and organizing it into a bibliography containing case law and relevant publications. v CALL FOR PAPERS JOURNAL OF SPACE LAw UNIVERSITY OF MISSISSIPPI SCHOOL OF LAw A JOURNAL DEVOTED TO SPACE LAW AND THE LEGAL PROBLEMS ARISING OUT OF HUMAN ACTIVITIES IN OUTER SPACE. Volume 31, Issue 2 The National Remote Sensing and Space Law Center of the University of Mississippi School of Law is delighted to announce that it will publish Volume 31, issue 2 ofthe JOURNAL OF SPACE LAW in the second half of 2005. Authors are invited to submit manuscripts, and accompany­ ing abstracts, for review and possible publication in the JOURNAL OF SPACE LAW. Submission of manuscripts and abstracts via email is preferred. Papers addressing all aspects of international and national space law are welcome. Additionally, papers that address the interface between aviation and space law are also welcome. Please email manuscripts and accompanying abstracts in Microsoft Word or WordPerfect to: [email protected] Or, alternatively, a hardcopy of the manuscript and ab­ stract, along with a computer diskette containing them in Mi­ crosoft Word or WordPerfect format may be sent to: JOURNAL OF SPACE LAw P.O. Box 1848 University, MS 38677 1-662-915-6857 (office) 1-662-915-6921 (fax) To be considered for the next issue, submissions should be received on or before October 3, 2005. The JOURNAL OF SPACE LAW will continue to accept and review submissions on an on­ going basis. VI SPACE TRAVEL LAW (AND POLITICS): THE EVOLUTION OF THE COMMERCIAL SPACE LAUNCH AMENDMENTS ACT OF 2004 Timothy Robert Hughes' Esta Rosenberg" "A friend of mine once sent me a postcard with a picture of the entire planet Earth taken from space. On the back it said,
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