JOURNAL OF SPACE LAW VOLUME 35, NUMBER 1 Spring 2009 1 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 35 SPRING 2009 NUMBER 1 Editor-in-Chief Professor Joanne Irene Gabrynowicz, J.D. Executive Editor Jacqueline Etil Serrao, J.D., LL.M. Articles Editors Business Manager P.J. Blount Michelle Aten Jason A. Crook Michael S. Dodge Senior Staff Assistant Charley Foster Melissa Wilson Gretchen Harris Brad Laney Eric McAdamis Luke Neder 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 2009 is $100 U.S. for U.S. domestic/individual; $120 U.S. for U.S. domestic/organization; $105 U.S. for non-U.S./individual; $125 U.S. for non-U.S./organization. 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 2009. 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 35 SPRING 2009 NUMBER 1 CONTENTS Foreword ............................................... Joanne Irene Gabrynowicz iii Call for Papers ................................................................................. vi Articles The Andrew G. Haley Archive at the University of Mississippi School of Law, National Center for Remote Sensing, Air, and Space Law: An Introduction.................... Michael S. Dodge 1 Sovereignty and the Delimitation of Airspace: A Philosophical and Historical Survey Supported by the Resources of the Andrew G. Haley Archive .............................. Michael S. Dodge 5 The Openness Principle in Multilateral Agreements for Space Exploration.......................M. Jude Egan 37 James J. Hurtak Regulatory Challenges, Antitrust Hurdles, Intellectual Property Incentives, and the Collective Development of Aerospace Vehicle-Enabling Technologies and Standards: Creating an Industry Foundation ...................René Joseph Rey 75 The Duty to Rescue Space Tourists and Return Private Spacecraft ..............................Mark J. Sundahl 163 i 2 Toward Implementation of the Global Earth Observation System of Systems Data Sharing Principles .................................................Paul F. Uhlir 201 Robert S. Chen Joanne Irene Gabrynowicz Katleen Janssen Commentaries: Inspiration to Humankind from Space Law and Science and Experience in India ....................... Saligram Bhatt 291 When France Puts Its Own Stamp on the Space Law Landscape: Comments on Law No. 2008-518 of 3 June 2008 Relative to Space Operations ................................. Lucien Rapp 313 Bibliography: Aviation and Space Law: Relevant Publications ........... P.J. Blount 337 Aviation Legislation and Regulations ................................................. 337 Cases....................................................................................... 340 U.S. Administrative Decisions and Executive Orders ........ 346 Articles ................................................................................... 346 Books and Reports ................................................................. 350 Space International Documents ...................................................... 353 Legislation and Regulations ................................................. 353 Cases....................................................................................... 354 U.S. Administrative Decisions.............................................. 355 Articles ................................................................................... 355 Books and Reports ................................................................. 358 ii In Memoriam This volume is dedicated to the memory of Dr. Eilene M. Galloway 1906-2009 3 FOREWORD Joanne Irene Gabrynowicz1 This volume of the JOURNAL OF SPACE LAW includes a number of “firsts.” It contains one of the first published analyses of France’s first national space law. Prof. Lucien Rapp, in his article, When France Puts Its Own Stamp on the Space Law Landscape: Comments on Law No. 2008-518 of 3 June 2008 Relative to Space Operations, offers the reader an in-depth look at the law as well as the forces that led to it. France has been a leading spacefarer for decades but without a national space law. Prof. Rapp identifies marketing, privatization, and internation- alization as specific movements that made it clear to the French State that the law was missing critical elements necessary to address important French interests, not the least of which were liability and jurisdiction. Prof. Rapp explains the procedure and substance involved in the new legislation. Another first contained in this issue is the first published paper containing scholarship derived from the Andrew G. Haley Archive (Archive) at the University of Mississippi School of Law, National Center for Remote Sensing, Air, and Space Law (Cen- ter). The late Andrew G. Haley is widely considered to be the world’s first space law practitioner. When Haley died, his son donated a large component of Haley’s correspondence to the late Dr. Stephen Gorove, the founder of the JOURNAL OF SPACE LAW. These papers, along with those of Dr. Gorove, are now housed in the Center. Mr. Michael Dodge, assistant research counsel with the Center offers, Sovereignty and the Delimitation of Airspace: A Philosophical and Historical Survey Supported by the Re- sources of the Andrew G. Haley Archive. Mr. Dodge’s research 1 Joanne Irene Gabrynowicz is the Editor-in-Chief of the JOURNAL OF SPACE LAW. She is also a professor of space law and remote sensing law and the Director of the Na- tional Center for Remote Sensing, Air, and Space Law at the University of Mississippi School of Law. Prof. Gabrynowicz was the recipient of the 2001 Women in Aerospace Outstanding International Award and is a Director of the International Institute of Space Law and a member of the American Bar Association Forum on Air and Space Law. iii 4 was facilitated, in part, by his work of processing the Archive’s contents for cataloging and preservation. That work, and a de- scription of the Archive’s content is the subject of a companion article, The Andrew G. Haley Archive at the University of Mis- sissippi School of Law, National Center for Remote Sensing, Air, and Space Law: an Introduction. This was also authored by Mr. Dodge and was the subject of presentation made at the Third Eilene M. Galloway Symposium on Critical Issues in Space Law on December 11, 2008 in Washington, DC. Continuing the theme of “firsts” contained in this issue is the White Paper on the GEOSS Data Sharing Principles (White Paper). This is the collaborative, interdisciplinary product of a number of authors, who, as participants in the Group on Earth Observations (GEO), engaged in GEO Task DA-06-01 that speci- fied, “Invite experts to identify steps required to further the practical application of the agreed GEOSS data sharing princi- ples. This Task will be coordinated with the Capacity Building Committee to ensure data access for Capacity Building.”2 To assure a wide distribution of the paper, the authors have agreed to another first for the JOURNAL OF SPACE LAW, and that is to issue a Creative Commons license that will allow anyone else to also publish the paper, as long they give proper attribution. The White Paper is also in being published in CODATA Data Science Journal. First-time JOURNAL OF SPACE LAW authors Bhatt, Egan, Hurtak, Rey, and Sundahl provide a wide array of commentary and articles addressing important space law topics. In Inspira- tion to Humankind from Space Law and Science in India, Dr. Saligram Bhatt reminds the reader that, often philosophy is an important component of the law. Co-authors Dr. Matthew Jude Egan and Dr. James Hurtak propose and apply an “openness principle” to space exploration agreements in their article, The Openness Principle in Multilateral Agreements for Space Explo- ration. In his article, Regulatory Challenges, Antitrust Hurdles, Intellectual Property Incentives, and the Collective Development of Aerospace Vehicle-Enabling Technologies and Standards: 2 GEO 2007 Work Plan, Data Management Task DA-06-01, http://www. earthobservations.org/documents/dsp/DA-06-01.pdf (last visited May 11, 2009). iv Creating an Industry Foundation, Dr. René Joseph Rey exam- ines the commercial space transportation aspects of the “New Space” industry and the relationship between the industry’s need to produce systems that will have to function within an international regulatory framework and the requirement of the vehicles to possess the robust structures and subsystems neces- sary for safe, reliable operations. Prof. Mark J. Sundahl also addresses the relationship between space transportation and international regulation and specifically analyzes the duty to rescue tourists travelling on private spacecraft under the Vi- enna Convention on the Law of Treaties3 as well as Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celes- tial Bodies4 and the Agreement on the Rescue of