The University of the Pacific Law Review Volume 50 Article 10 Issue 3 Symposium -- Judge Posner and Contract Law 1-1-2019 Astro-Not? How Current Space Treaties Could Fall Short of Protecting Future Space Tourists Megan McCauley Follow this and additional works at: https://scholarlycommons.pacific.edu/uoplawreview Part of the Law Commons Recommended Citation Megan McCauley, Astro-Not? How Current Space Treaties Could Fall Short of Protecting Future Space Tourists, 50 U. Pac. L. Rev. 453 (2019). Available at: https://scholarlycommons.pacific.edu/uoplawreview/vol50/iss3/10 This Comments is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusion in The nivU ersity of the Pacific Law Review by an authorized editor of Scholarly Commons. For more information, please contact [email protected]. Astro-Not? How Current Space Treaties Could Fall Short of Protecting Future Space Tourists Megan McCauley* TABLE OF CONTENTS I. INTRODUCTION ........................................................................................... 454 II. EMERGENCE OF THE COMMERCIAL SPACE TOURISM INDUSTRY ............... 458 A. What is Space Tourism?................................................................... 459 B. The Privatization of Spaceflight: The New Space Race................... 459 III. EXISTING BODY OF INTERNATIONAL SPACE LAW AND ITS LIMITATIONS . 461 A. The Outer Space Treaty of 1967 ...................................................... 463 B. The Rescue Agreement of 1968 ........................................................ 464 IV. TREATY INTERPRETATION AND THE VIENNA CONVENTION ..................... 465 A. Interpretive Methodologies .............................................................. 466 B. Is a Space Tourist an “Astronaut” Under the Outer Space Treaty? ............................................................................................. 467 1. Historical Context and Purpose of the Outer Space Treaty ...... 468 2. Astronauts as Trained Professionals ......................................... 469 C. Are Space Tourists “Personnel of Spacecraft” Under the Rescue Agreement? ...................................................................................... 472 1. Purpose of the Rescue Agreement and Ordinary Meaning of “Personnel” in 1968 .................................................................. 472 2. Avoiding Absurdity ..................................................................... 474 D. Ordinary Meaning in Light of Lex Posterior and Lex Specialis ...... 475 1. Lex Posterior: Does the Rescue Agreement Supersede the Outer Space Treaty’s Rescue and Return Provisions? .............. 475 2. Lex Specialis: Does the Rescue Agreement Invalidate the * J.D. Candidate, University of the Pacific, McGeorge School of Law, to be conferred May 2019; B.A. History, Boston University, 2014. I would like to extend my profound thanks to Distinguished Professor of Law John Sprankling for introducing me to this fascinating area of the law and for his immeasurable input and guidance on the substance of this Comment. I would also like to thank everyone on the editorial staff and the Board of Editors who helped me edit this article. Most of all, I would like to thank Chris Benton for his unwavering love and support. 453 2019 / Astro-Not? How Current Space Treaties Could Fall Short of Protecting Future Space Tourists Narrower Duty to Rescue Only “Astronauts” Under the Outer Space Treaty? .................................................................. 477 V. CRAFTING A NEW REGIME FOR COMMERCIAL SPACE TOURISM ............... 478 A. Substance of the Proposed Solutions: Where Should We Go from Here?................................................................................................ 479 B. Proposed Mechanism for a Short-Term Solution: UN General Assembly Resolution Supported by National Legislation ................ 482 1. A Soft Law Approach: UN General Assembly Resolution ......... 483 2. Using National Law and the Drawbacks of Doing So ............... 484 C. Proposed Mechanism for a Medium-Term Solution: Multilateral Agreement on Treaty Interpretation ................................................ 485 D. Proposed Mechanism for a Long-Term Solution: UN Convention for Manned Spaceflight .................................................................... 486 VI. CONCLUSION .............................................................................................. 487 “You don’t have to be Arthur Dent and wait for our blue rock to go bust before you hitch a ride on a rocket into space. [A]ll you need to go into space is a little bit of money, coupled with patience, and trust in Silicon Valley to pull through with its grand plans for space tourism. Checked all those boxes? Strap on your seat belt and start dreaming about zero-G.”1 I. INTRODUCTION The year is 2025, and a spacecraft full of starry-eyed tourists takes off from the Kennedy Space Center in Florida.2 The spacecraft is operated by the United States company SpaceX and carries one pilot, two crewmembers, and two civilian passengers.3 Its mission is to make an 800,000-mile round-trip journey 1. Arun Venkatraman, GQ’s Guide to Becoming a Space Tourist, GQ INDIA (Aug. 8, 2017), https://www.gqindia.com/content/gqs-guide-to-becoming-a-space-tourist/ (on file with The University of the Pacific Law Review). 2. See generally Mika McKinnon, Will We Have Space Tourism in Our Lifetime?, THE PORTALIST (Dec. 9, 2016), https://theportalist.com/will-we-have-space-tourism-in-our-lifetime (on file with The University of the Pacific Law Review) (discussing the timeliness of the space tourism industry, along with its biggest obstacles). 3. See generally Angela Chen, SpaceX Plans to Send Two People Around the Moon, THE VERGE (Feb. 27, 2015), https://www.theverge.com/2017/2/27/14754404/spacex-moon-mission-2018-elon-musk-announces- private-citizen-passengers (on file with The University of the Pacific Law Review) (explaining that SpaceX has already sold advance tickets for a flight around the moon to two civilian passengers). 454 The University of the Pacific Law Review / Vol. 50 around the Moon.4 One day into their five-day trek, the ship loses all power, and its communications systems become irreparably disabled.5 Life support systems will only sustain those on board for two days.6 The next day, a Chinese spacecraft approaches the paralyzed ship.7 China is a party to the Agreement on the Rescue of Astronauts, and the Return of Astronauts and the Return of Objects Launched into Outer Space (“Rescue Agreement”), which obligates signatories to both rescue and return distressed “personnel of spacecraft” they discover in outer space.8 China is also a party to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (“Outer Space Treaty”), which imposes similar rescue and return obligations for distressed “astronauts” found in outer space.9 The Chinese vessel does not have enough oxygen to accommodate an additional five individuals and is forced to make a difficult choice.10 After deciding the civilian tourists were neither “personnel” nor “astronauts,” the Chinese crew claims that the Rescue Agreement and the Outer Space Treaty do not impose any obligation to rescue the tourists in the situation at hand.11 Based on this understanding of their legal obligations, the crew of the Chinese 4. Tariq Malik, As SpaceX Unveils Space Tourist Moon Flight, NASA Reacts, SPACE (Feb. 28, 2017), https://www.space.com/35850-spacex-private-moon-flight-nasa-reaction.html (on file with The University of the Pacific Law Review). 5. See Marooned (1969): Plot, IMDB (last visited Mar. 12, 2018), https://www.imdb.com/title/tt0064639 /plotsummary?ref_=tt_stry_pl#synopsis (on file with The University of the Pacific Law Review) (summarizing the plot of the 1969 film “Marooned,” which depicted a similar situation where crew of a spacecraft experience engine failure, with only enough oxygen to last for two days). 6. See id. (summarizing the plot of the 1969 film “Marooned,” which depicted a similar situation where crew of a spacecraft experience engine failure, with only enough oxygen to last for two days). 7. See id. (depicting the situation of a Russian spacecraft attempting to rescue those on board the stranded ship). 8. UNITED NATIONS COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE, STATUS OF INTERNATIONAL AGREEMENTS RELATING TO ACTIVITIES IN OUTER SPACE AS AT 1 JANUARY 2018, 5, available at http://www.unoosa.org/documents/pdf/spacelaw/treatystatus/AC105_C2_2018_CRP03E.pdf (last visited Jan. 24, 2019) (on file with The University of the Pacific Law Review) [hereinafter COPUOS, STATUS OF INTERNATIONAL AGREEMENTS]; Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, art. 2, Dec. 3, 1968, 19 U.S.T. 7570, T.I.A.S. No. 6599 [hereinafter Rescue Agreement]. 9. COPUOS, STATUS OF INTERNATIONAL AGREEMENTS, supra note 8, at 5; Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, art. 5, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty]. 10. See Chen, supra note 3 (explaining that only two tourists would be able to join crew on a SpaceX flight around the Moon, suggesting there will be minimal space in a tourist spacecraft). 11. See Yanal Abul Failat, Space Tourism: