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The Ultimate High Ground—U.S. Intersector Cooperation in Outer Space C Journal of Air Law and Commerce Volume 81 | Issue 4 Article 2 2016 The Ultimate High Ground—U.S. Intersector Cooperation in Outer Space C. Brandon Halstead Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation C. Brandon Halstead, The Ultimate High Ground—U.S. Intersector Cooperation in Outer Space, 81 J. Air L. & Com. 595 (2016) https://scholar.smu.edu/jalc/vol81/iss4/2 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THE ULTIMATE HIGH GROUND—U.S. INTERSECTOR COOPERATION IN OUTER SPACE C. BRANDON HALSTEAD* I. INTRODUCTION PACE, THE FINAL FRONTIER.” Those words opened “Seach episode of the original 1960s’ television series Star Trek.1 In a seemingly relentless effort to dominate this final fron- tier, the second half of the 20th century was marked by a space race of United States and Soviet Union competition to attain superior space capabilities. Those few States2 able to achieve or- bit comprised an exclusive club, with the technology and fi- nances necessary to successfully launch, orbit, and recover space vehicles embodying State prestige and power. Yet as the campy science fiction films and television series of the 1950s and 1960s gave way to blockbuster space movies and television dramas from the 1970s onward, so too has science fiction and space ca- pabilities transformed from the silver screen to reality. Today, State exclusivity and competition in outer space have been re- placed by multinational consortiums and international coopera- tion in mankind’s continued global efforts to safely and peacefully operate in the area just beyond Earth’s atmosphere. While forays into space, or even the upper reaches of Earth’s at- mosphere, were formerly a sole State endeavor, technological ad- vancements and an increase in private party action has brought space within reach of private industry, local governments . , multinational consortiums . , and States that were not typically * Mr. Halstead recently retired from the U.S. Air Force as a Lieutenant Colonel, after twenty years of active military service, and is currently assigned as the U.S. Air Force Senior Legal Advisor, Royal Air Force Base Menwith Hill, United Kingdom. His responsibilities include providing counsel on all general and civil law issues, U.S. Criminal and Foreign Criminal Jurisdiction cases, claims, contracts, environmental, operations and international law concerns, and legal assistance to the base population. 1 See, e.g., Star Trek: The Man Trap (NBC television broadcast Sept. 8, 1966). 2 “States” in this context refers to countries or nation-states. 595 596 JOURNAL OF AIR LAW AND COMMERCE [81 “space powers” in the past. Formerly the domain of State flight capabilities, commercial enterprise now leads the way in develop[ing] . new launch and flight systems, often partnering with international conglomerates to create a truly multinational flight vehicle. [T]he growth of space commerce at the end of the 20th century and burgeoning corporate and multinational launch capabilities of the 21st century are making space more accessible.3 The Outer Space Treaty described this shared global interest as a “[d]esir[e] to contribute to broad international co[ ]operation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes.”4 As space technology has become more mainstream and more af- fordable, the number of spacefaring nations (which also in- cludes the multi-State partnership comprising the European Space Agency) has increased from the Soviet Union and United States in 1957 and 1958, to eleven different countries with suc- cessful satellite launches as of December 2012.5 Additionally, corporate interests and capabilities have also increased—at least six private U.S. businesses (above and beyond the traditional U.S. government contractors such as Boeing and Lockheed Mar- tin) pursued launch programs and space missions in the first decade of the new millennium.6 As these partnerships and tech- nology have continued to develop, U.S. law and policy has also evolved, thereby furthering this global collaborative effort to reach and utilize space. By examining the progression of U.S. law and policy, and providing a number of current examples of cooperative space efforts, this article offers insight into the merger of our governmental space program with industrial and international insights to safely and successfully operate in this “ultimate high ground.” 3 C. Brandon Halstead, Hybrid Hops On (and Over) the Horizon: The Future Has Arrived, and Requires a New Look at Air and Space Law, 34 ANNALS AIR & SPACE L. 775, 776–77, 779 (2009). 4 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies pmbl., Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty]. 5 See Q ‘n A: Which Countries Were First to Launch Satellites?,SPACE TODAY ONLINE, http://www.spacetoday.org/Questions/FirstSats.html [https://perma.cc/6JGP- JZ86]. 6 Stuart Fox, Six Private Companies That Could Launch Humans Into Space, SPACE .COM (June 4, 2010, 11:56 AM), http://www.space.com/8541-6-private-compa- nies-launch-humans-space.html [https://perma.cc/6FPQ-WGYF]. 2016] U.S. INTERSECTOR COOPERATION 597 II. DEVELOPMENT OF U.S. SPACE POLICY For more than fifty years, the United States has played a pre- dominant role “in the national security uses of outer space.”7 Many changes have taken place during that time “reflect[ing] new priorities and the nation’s evolving space policies and gui- dance.”8 As the twentieth century drew to a close and the twenty- first century dawned, some of the foremost major changes within the U.S. Department of Defense (DOD) space architec- ture have included “the global spread of space systems, technol- ogy, and information; the growth of commercial space activities; enhanced intersector [(i.e., inter-agency, public, and private sec- tor)] collaboration; and increased international cooperation.”9 Furthermore, governments face a diminishing role in the de- velopment of space programs as the global space industry has become increasingly commercialized and privatized.10 Faced with increased costs and a desire to share and spread the efforts of space utilization, the United States ultimately elected to stim- ulate private sector expansion and development of its govern- ment-founded technology in an attempt to “encourage to the maximum extent possible the fullest commercial use of space.”11 Starting in the 1980s and continuing through the 1990s, changes in law and policy enabled increased commercialization of space and signified the end of sole-State action in outer space.12 The U.S. Congress drafted legislation to enable this transfor- mation, starting with the Commercial Space Launch Act of 1984, which stood as the cornerstone of U.S. regulation of space transportation for years, and was later amended in 1988, supple- mented by the Commercial Space Act of 1998,13 and ultimately revised by the Commercial Space Launch Amendments Act of 7 OFFICE OF THE SEC’YOF DEF., U.S. DEP’TOF DEF., MEMORANDUM REGARDING DEPARTMENT OF DEFENSE SPACE POLICY 1 (1999) [hereinafter 1999 DOD MEMO]. 8 Id. 9 Id. 10 See Eilene Galloway, Space Law in the 21st Century, 26-2 J. SPACE L. 187, 190 (1998). 11 Richard M. Obermann & Ray A. Williamson, Implications of Previous Space Commercialization Experiences for the Reusable Launch Vehicle, 14 SPACE POL’Y 17, 17 (1998). 12 Id. at 17, 20–23. 13 See William A. Gaubatz, International Certification for Commercial Reusable Space Transportation, in PROCEEDINGS OF THE FORTY-SECOND COLLOQUIUM OF THE LAW OF OUTER SPACE 246, 250 (2000). 598 JOURNAL OF AIR LAW AND COMMERCE [81 2004.14 Additional incentives and protections for private indus- try space exploration were furthered with the passage of the U.S. Commercial Space Launch Competitiveness Act in late 2015.15 Key provisions of this latest legislation included the extension of government indemnification of third party damages from com- mercial launches, in addition to the extension of the “learning period” to determine appropriate safety regulations on commer- cial spacecraft.16 The U.S. Space Shuttle program and the pioneering efforts of National Aeronautics and Space Administration (NASA) in the 1980s and 1990s generated numerous advancements in orbital technology, as well as early partnerships with private industry, through the development of the first operational Reusable Launch Vehicle (RLV).17 This RLV program represented one of the early examples of government-corporate space leveraging, while these changes demonstrated the evolution of U.S. govern- ment efforts in space from being primarily defense-oriented in the 1960s and 1970s to being permissive governmental rules promoting commercial space activities.18 For example, one of the most important of these provisions permits launch compa- nies to use excess DOD property and infrastructure at launch ranges on the east and west coasts.19 Although it is not free, this expanded access and sharing of resources greatly reduces costs the companies would otherwise incur and helps make U.S. launch companies more competitive in the world market. Accordingly, the latest U.S. National Space Policy20 and DOD Space Policy21 continues to satisfy many governmental space- based needs through private industry capability, and has done so for almost four decades. By outlining these innovative policy parameters enabling such interagency partnerships, one can see 14 Commercial Space Launch Amendments Act of 2004, Pub. L. No. 108-492, 118 Stat. 3974 (2004). 15 U.S. Commercial Space Launch Competitiveness Act, Pub.
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