Is the US breaking international law in space?

Falcon 9 launched Polaris Dawn to low-Earth orbit on Tuesday, September 10 from Launch Complex 39A at NASA’s Kennedy Space Center in Florida sending four civilian astronauts on a five-day mission to a distance further from Earth than any crewed voyage since the Apollo programme in 1972. During their multi-day mission to orbit, the crew reached 1,408.1 km – the highest Earth orbit ever flown since the Apollo program, performing the first-ever extravehicular activity (EVA) from Dragon wearing SpaceX-developed EVA suits making them the first private civilians embarking on a spacewalk. Mission Commander Jared Isaacman previously flew to space as commander of Inspiration4, but this was the first human spaceflight for Mission Pilot Kidd Poteet, Mission Specialist Sarah Gillis, and Mission Specialist and Medical Officer Anna Menon(1). After weeks of delays due to technical checks and weather, its astronauts were launched beyond the sky. The crew of Polaris Dawn vented the air from their capsule and open the door into the wide emptiness of outer space. Two of them floated out into it, tethered by umbilical cords. The Polaris Dawn crew combined their expertise, knowledge, and passion for spaceflight to further human space exploration. To prepare for this, they spent almost two days exchanging the gasses in the cabin and within their bodies to prevent decompression sickness as they transition to their spacesuits. On September 13th, Gillis and the Polaris Program released the video titled "Harmony of Resilience" on X (formerly Twitter). When Sarah Gillis performed ‘Rey’s Theme’, a piece John Williams composed for Star Wars: The Force Awakens, her concert hall was a space capsule orbiting hundreds of miles above Earth. The performance, transmitted to Earth through the Starlink satellite, brought together talents from around the world, symbolizing unity and hope, highlighting the resilience and potential of children everywhere.

Polaris Dawn crew have also conducted 36 research studies and experiments from 31 partner institutions designed to advance both human health on Earth and during long-duration spaceflight, and tested Starlink laser-based communications in space. After the short demonstration, they closed the door of the capsule, and prepared to return to Earth – where a debate over the legality of the mission itself is dividing space analysts.

Until now, only government space programmes have commandeered spacewalks. SpaceX is now the only private company that delivers humans to live and work in space, and NASA, the space agency of the United States, relies on it.

Polaris Dawn is not a NASA mission, and it is not regulated by the US government. So, when its astronauts exit their capsule and ‘walk’ in space, it will mark a massive first for the private industry that is starting to dominate realms beyond Earth. And this raises a question: Is the US breaking a law regarding space operations?

In 1967, deep in both the Cold War and the space race, the Soviet Union, the US and other world powers negotiated and signed the UN treaty known as the Outer Space Treaty (OST).

It grew from agreements over sovereignty in Antarctica (3), and it is best remembered for committing the nations involved to keeping their powerful nuclear weapons on Earth, not hovering out in space. But the OST included another promise: that the exploration and use of outer space would, as long as its signatories agreed, be for the benefit of all humanity, and open to all nations. Space, the drafters professed, would be a place to explore and learn from, not conquer.

The treaty also specified a role for private companies in space. Article VI reads, “The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.” In effect, the OST declared that home countries would be responsible for space activity from their soil, and would also be liable for them, should any accidents occur.

That is because the Soviet Union wanted only states to be involved in space activities, and the Americans wanted private companies. Today, private companies are no longer just the parts suppliers for national space agencies, they are the explorers. Virgin Galactic and Blue Origin launch spaceflights for tourists. RocketLab, once a small startup, is planning a private science mission to the clouds of Venus. SpaceX is racing to land humans on Mars.

Does the US government still ‘supervise’ them? The straight answer is no, it doesn’t. Under federal law, the FAA is prohibited from issuing regulations for commercial human spaceflight occupant safety. The response does not come as a surprise. It is longstanding US policy. For 20 years, the US Congress has limited its aviation regulator’s oversight, placing a moratorium on making rules for private human space endeavours. The moratorium has been extended multiple times and will now expire in 2025. Instead, the FAA only certifies the rocket and the spacecraft, ensuring, mostly, that they are safe for those back on Earth. The FAA has no regulatory oversight for the activities of the Polaris Dawn mission.

The humans on board sign their informed consent (4). When they spacewalk, only SpaceX will look after them. NASA too has no involvement in the Polaris Dawn mission. The mission’s Falcon 9 rocket launched from the Kennedy Space Center launchpad, which Elon Musk leases.

Through the history of spacefaring, spacewalks have bridged the narrow gap between human necessity and human frailty. When the Soviet Union and the US raced to space in the early 1960s both countries wanted their astronauts to leave their capsules because spacewalks are essential: they have retrieved photo film from the Apollo missions near the moon, repaired Skylab, fixed the multibillion-dollar Hubble Space Telescope, and built the International Space Station. When it comes to the outsides of spacecraft, robots have never been able to do what humans can. Within just a few months in 1965, both did. In March, Soviet astronaut Alexei Leonov, and in June, American astronaut Ed White, both floated, tethered above the Earth. But both faced immediate crises: Leonov’s suit expanded so much he had trouble re-entering his craft, and White’s door almost didn’t close after he did. An American astronaut who followed a year later nearly overheated.

Exposed in orbit, temperatures on surfaces are either very hot or very cold. Micrometeorites and space junk fly at speeds faster than bullets. Radiation penetrates the body more easily. Fabrics that are meant to hold back the fatal, freezing vacuum are inflexible and bulky. A space-sick astronaut could vomit, blocking their view or clogging their air. Just a decade ago, an Italian astronaut’s suit sprung a leak, and the small volume of water that collected in his helmet nearly drowned him before he could safely re-enter the International Space Station. Tanja Masson-Zwaan (2) is amongst the experts that say that the US is in no danger of violating the OST arguing that when it comes to governments’ supervision of space activities, as obligated by the treaty, there exist no internationally binding regulations that provide precise definition of this term and no international technical standards and procedure for effectively implementing this obligation. It is a question that deserves more attention in the coming years, but that each state has discretion to define the term. This ambiguity does not make the treaty outdated. Rather, in the new space race, he said, both powerful and emerging countries can and should rely on it, to make sure private companies do not go out of control in space. Professor Michelle Hanlon, co-director of the air and space law programme at the University of Mississippi School of Law, argues that OST is not a code of law, but rather an agreement aimed at maintaining peace in space (3). With the increase in space activities conducted by private companies, the law could evolve to adapt to new challenges, such as asteroid mining or future missions to the Moon. Following this path, private companies may soon try to stake claim to objects in space for mining or construction. This could be allowed, within the sharing “use” principle in Article I of the treaty, similar to the rules at sea, or for the use of radio frequencies worldwide. But most importantly, these activities must be licensed by the state back at home. It means the US government must take into consideration that it, too, should not do the things it does not like other countries doing. That’s why state parties will still continue to comply with OST provisions. The legal instrument is sufficiently broad to accommodate new activities, and the principles should hold to preserve use and exploration for peaceful purposes. Even private actors agree the treaty must be kept and they can work with it. According to those space experts arguing in favour of the US, SpaceX’s bold mission falls within Article I of the OST, which allows “free use” of space. Although, a bit of harmonisation is also in the interest of industry, who may operate from more than one country and they don’t want different rules to apply in the USA or in Luxembourg, for example(4).

Legal experts such as Tomasso Sgobba (5), who has decades of experience regulating space missions in Europe, disagrees. He argues that although SpaceX has some of the best safety experts in its ranks and have certainly assessed all of this mission’s risks, the lack of an independent oversight may have left somewhere an open issue which has not been identified.

There are fire risks, and decompression sickness risks, in addition to the micrometeorites that may sling towards the crew undetected. He and Dr. Masson-Zwaan speculated that the European Space Agency or NASA may not have said yes to this kind of mission without a full redesign of the SpaceX Dragon capsule being used for Polaris Dawn.

Sgobba envisions an international, independent space safety institute that would provide third-party reviews for space companies. He believes that article VI does not leave much room to interpretation and that is crystal clear that the large part of the Polaris Dawn mission is not currently subjected to authorisation and continuous supervision of any US government agency.

BIBLIOGRAPHY
1) It is the first time two SpaceX employees, Mission Specialist Sarah Gillis, and Mission Specialist

and Medical Officer Anna Menon, will be part of a human spaceflight crew, providing valuable

insight to future missions on the road to making life multiplanetary.

2) Tanja Masson-Zwaan, PhD, Asst. Professor, Int. Inst. of Air and Space Law, Leiden University

https://www.linkedin.com/posts/tanjamasson_heres-the-clip-of-my-spacelaw-interview-activity-

7242166575087194114-a0Tx

3) ON THE LEGAL FRAMEWORK OF ORBITING SPACE STATIONS AND THE PRIVATISATION

OF SPACE LAW, IAN ELLY SSALI KIGGUNDU (2024), pp.

4) Ibid,

5) Tomasso Sgobba, Executive Director of the International Association for the Advancement of

Space Safety based in the Netherlands