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Journal of Space Law JOURNAL OF SPACE LAW VOLUME 39, NUMBER 2 2014 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 39 2014 NUMBER 2 Editor-in-Chief Jacqueline Etil Serrao, J.D., LL.M. Editing Staff Business Manager Michael Dodge, J.D., LL.M. Michelle Aten, Ph.D. Aaron Herrington, J.D. Gerald J. Shields, J.D., LL.M Founder, Dr. Stephen Gorove (1917-2001) Editor-in-Chief, Joanne Irene Gabrynowicz (2001-2013) Editor-in-Chief Emerita, Joanne Irene Gabrynowicz (2013 - ) All correspondence with reference to this publication should be directed to the JOURNAL OF SPACE LAW, University of Mississippi School of Law, 481 Coliseum Drive, University, Mississippi 38677; [email protected]; tel: +1.662.915.6857, or fax: +1.662.915.6921. JOURNAL OF SPACE LAW. The subscription rate for 2014 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 2014. 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 39 2014 NUMBER 2 CONTENTS Call for Papers ......................................................................................... iii Articles Aeroassisted Maneuvers: Potential Air And Space Law Challenges ... Robert A. Bettinger, Jonathan T. Black 217 Adjudicating Space Debris as an International Environmental Nuisance ..................... Barry Kellman 227 Asteroid Legal Regime: Time for a Change? ................. Paul B. Larsen 275 Apples and Oranges: Why Aircraft Protocols Don’t Work in Space ......................................... Louis Francis Rosa 327 Reforming Regulation of Basic and Small Business Research and Education in Space Technologies under ITAR (International Traffic in Arms Regulations) and EAR (Export Administration Regulations) ................................ Jeremy Straub, Joseph J. Vacek 351 Military Uses of Outer Space: Legal Limitations, Contemporary Perspectives ................ Isavella Maria Vasilogeorgi 379 Student Note New Habits and Hard Law: Putting Old Soft Law “Sanctions” and the Space Debris Epidemic out to Pasture ..........................................................George T. Lyons III 453 i Bibliography: Aviation and Space Law: Relevant Publications .................. P.J. Blount 481 Aviation Law ............................................................................. 481 Primary Sources ............................................................... 481 Cases ................................................................ 481 Secondary Sources ............................................................ 483 Space Law .................................................................................. 491 Primary Sources ............................................................... 491 Cases ................................................................ 491 Secondary Sources ............................................................ 492 ii 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 40, Issues 1 & 2 The LL.M. program in Air and Space Law at the University of Mississippi School of Law is delighted to announce that it will publish double-issue Volume 40, Issues 1 & 2 of the JOURNAL OF SPACE LAW in late 2015/early 2016. Authors are invited to submit manuscripts, and accompanying 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 abstract, along with a computer diskette containing them in Microsoft 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) The JOURNAL OF SPACE LAW will continue to accept and review submissions on an on-going basis. iii AEROASSISTED MANEUVERS: POTENTIAL AIR AND SPACE LAW CHALLENGES Robert A. Bettinger* and Jonathan T. Black** ABSTRACT Diverging from the current paradigm that spacecraft exclu- sively operate within the vacuum of outer space, current engineer- ing efforts are seeking to create spacecraft that can exploit the aerodynamic forces of the upper atmosphere in order to implement a trans-atmospheric, aeroassisted maneuver. By transcending both the airspace and outer space environments, aeroassisted ma- neuver represent a source of potential air and space law challeng- es arising due to current ambiguities surrounding atmospheric delimitation debate as well as the question of airspace sovereignty limits vis-à-vis space law. I. INTRODUCTION Spacecraft can be divided functionally into two categories: (1) Vehicles that operate exclusively in the vacuum environment of space; and (2) vehicles that are hybrid in nature and capable of re- entering the Earth’s atmosphere following the completion of a giv- en on-orbit mission. While the former category is referred to as * Dr. Robert A. Bettinger serves as a Captain in the U.S. Air Force and is the Team Lead for Kinetic Effects Analysis in the Counterspace Analysis Squadron, National Air and Space Intelligence Center. Prior to his current assignment, Dr. Bettinger attained his doctorate through the Aeronautics and Astronautics Department at the Air Force Institute of Technology (AFIT), Wright-Patterson Air Force Base, Ohio. ** Dr. Jonathan Black is an Associate Professor of Aerospace Engineering at Virginia Tech (VT), a member of the Center for Space Science and Engineering Research (Space@VT), and the Associate Director of Research for Aerospace Systems of the Ted and Karyn Hume Center for National Security and Technology. Prior to joining VT, Dr. Black served as a faculty member in the Aeronautics and Astronautics department at the Air Force Institute of Technology (AFIT), Wright-Patterson Air Force Base, Ohio. 217 218 JOURNAL OF SPACE LAW [VOL. 39:2 satellites, the latter are identified trans-atmospheric vehicles, or TAVs. Since the 1970s, TAVs have been limited to boost-glider designs, such as the Space Shuttle and X-37B Orbital Test Vehicle (OTV), which achieve orbit as either a secondary or tertiary stage on a rocket-propelled spacelift system. Following re-entry, the TAV then utilizes aerodynamic lift to perform a gliding maneuver in order to land. Seeking to evolve the boost-glider design concept, the early 21st century has witnessed an emergence of both na- tional and corporate efforts to create a hypersonic spaceplane ca- pable of taking off and landing horizontally on a conventional runway.1 Designed as a single-stage-to-orbit vehicle, the space- plane is able to attain a level of mission “availability and flexibil- ity of use” hitherto limited by the mass budget, launch window, and launch site location restrictions inherent in existing rocket booster systems.2 Whether designed as a boost-glider or spaceplane, TAVs offer the capability of utilizing the upper atmosphere as an alternative maneuver environment rather than an interface solely for the purpose of re-entry at the mission end-of-life for manned and un- manned spacecraft. Traditionally, orbital states and orbit geome- try are modified via various maneuvers performed in vacuo which, depending on both the initial mission altitude and desired orbital change, have the propensity of becoming prohibitively expensive in terms of propellant expenditure. Alternatively, atmospheric re- entry can be employed as a means of operational maneuver whereby the aerodynamic drag of the upper atmosphere is exploit- ed by a TAV to create a trans-atmospheric, aeroassisted maneu- ver. Such maneuvers have been analytically demonstrated to achieve a desired orbital change for less propellant than required by a vacuum-only maneuver, thus extending the spacecraft mis- sion life. II. TYPES OF AEROASSISTED MANEUVERS Overall, trans-atmospheric maneuvers can be implemented in three fundamental mission contexts: (1) Orbit modification; (2) 1 Carl Q. Christol, The Aerospace Plane: Its Legal and Political Future, 9 SPACE POL’Y 35, 36 (1993). 2 Pierre Betin, Reflections on the Spaceplane, 7 SPACE POL’Y 137, 138 (1991). 2014] AEROASSISTED MANEUVERS 219 orbital transfer from High Earth Orbit (HEO) to Low Earth Orbit (LEO); and (3) interplanetary exploration. The first mission con- text occurs primarily in LEO and is comprised of three distinct maneuvers options, each of which are synergetic in execution since they utilize both atmospheric forces, in the form of aerodynamic drag and lift, and propulsive forces. The first type, known as ‘aer- obang’ maneuvers, consists of a trans-atmospheric flight trajectory augmented by continuous thrusting at maximum throttle so as to limit the duration of atmospheric flight, thereby reducing heat effects produced during re-entry. Similarly, the second type of maneuver,
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