This article provides an overview of the legal issues related to the maritime recovery of reusable rockets, which is an emerging practice in the commercial space industry. It summarizes the current state of the space economy, the sources of space law in the U.S., and the regulations affecting the waters and the vessels involved in the recovery operations.
The space economy
The space economy is growing rapidly, driven by the increase in low earth orbit (LEO) satellites, which may be used for geo-positioning and broadband. Globally, commercial space activity has been rising every year, with a record 190 commercial space launches in 2023, according to the Satellite Industry Association. At the end of 2023, there were over 9,600 active satellites in orbit, up 361% over the past five years. Indeed, Morgan Stanley estimates that the roughly $350 billion global space industry could increase to $1 trillion by 2040.
Recoverable rockets
One of the factors that contributes to the economic efficiency of space activities is the development of reusable rockets, which may be recovered and reused for multiple launches. In order to be reusable, a rocket must be recoverable. Land based spaceports are becoming increasingly congested with launch activity, and it is a scientific feat to predict and plan for and achieve the return of a rocket at a land-based launch site. In any event, this is increasingly difficult with heavy payloads, which is increasing the demand for rocket recovery at sea. In sea-based recoveries, companies often employ autonomous or remotely-piloted vessels to recover the parts.
Legal implications
The maritime recovery of space vehicles raises several legal questions, such as what laws and regulations apply to such an action, and who has the authority to enforce them. The vessels used and the waters where recovery operations take place may be subject to distinct legal regimes, whose application has not been tested for the maritime recovery of a rocket.
Developing a space law framework
As the case study below will demonstrate, laws and regulations applicable to the recovery of objects at sea is not well-settled. In fact, the topic of "space law" in general is an ever-evolving set of international and domestic sources. One key challenge to 'space law' is that outer space is considered an international territory and therefore belongs to no one.
The starting point of 'outer space' as an international territory bears many similarities to admiralty laws. Similar to outer space, the high seas are considered international territory and therefore admiralty law provides a model for how nations can cooperate and manage activities in these international spaces. By examining the frameworks and principles of admiralty law, policymakers and legal scholars can gain valuable insights into how to develop a robust legal regime for outer space, ensuring that it remains a safe and cooperative environment for all nations and private entities involved in space activities.
Applicability of admiralty law
The United Nations Convention on the Law of the Sea (UNCLOS) includes detailed provisions on navigation, environmental protection, and resource management. Certain principles of admiralty law are already mirrored in space law, such as vessel jurisdiction, accidents and recovery.
In maritime law, vessels are subject to the jurisdiction of the country whose flag they fly. This principle is reflected in space law, where space objects are under the jurisdiction and control of the state that registers them. Similarly, Admiralty law has well-established principles for dealing with accidents at sea, including issues of liability and salvage. Space law treaties, like the Liability Convention of 1972, borrow from these principles to address liability for damage caused by space objects. The duty to render assistance to those in distress at sea is a key component of maritime law. Similarly, the Outer Space Treaty includes provisions for the rescue of astronauts, reflecting the humanitarian principles found in admiralty law. In sum, Admiralty law provides a model for how nations can cooperate and manage activities in these international spaces, since, "[b]oth the high seas and space are considered res communis and, as such, they belong to no one."1
In the section below, we provide a case study of the relatively unchartered territory of space law in its application to recovery of rockets at sea.
Case study: the U.S.
International law
While many states, including the U.S. are signatories to a host of international space law treaties, such as the Outer Space Treaty of 1967, which bans the stationing of weapons of mass destruction in outer space, prohibits military activities on celestial bodies, and details legally binding rules governing the peaceful exploration and use of space. However, international treaties do not explicitly address the maritime recovery of space vehicles. This is most likely true because such a feat was not envisioned at the time of signature.
Domestic law
The U.S. has many sources of domestic law that affect space activities, including providing the Department of Transportation with authority to license space launches and re-entries, and promote safety standards. Additional U.S. agencies that regulate space activities include The National Aeronautics and Space Administration (NASA), the Federal Communications Commission (FCC), the Department of Commerce (DOC), the Department of State (DOS), the Department of Defense (DOD) and the Department of Homeland Security (DHS), through the U.S. Coast Guard (USCG). U.S. Customs and Boarder Protection (CBP) is also implicated because it regulates coastwise trade.
Coastal regulation
During its initiation as a research activity by state governments, regulators did not envision the recovery of space vehicles at sea. Accordingly, we turn to existing regulation of ports, waterways and the safety of the Marine Transportation System. Using these sources, we examine the role of the USCG and other actors in regulating territorial and non-territorial waters.
Under U.S. law, the USCG has authority over safeguarding the Marine Transportation System, and the authority to protect U.S. ports and waterways. Pursuant to the Parts and Waterways Safety Act, the USCG has promulgated regulations establishing safety zones which are enforced by the Captain of the Port. The USCG will issue a notice to mariners about upcoming launches and the location of the safety zone.
Legal complications arising from the application of coastal laws to recoveries at sea
Considering the recovery of reusable rockets under this Act, we are faced with issues of noncompliance, authority coastwise compliance. For example, it is not uncommon for vessels to ignore the safety zone and USCG's authority (or lack thereof) beyond U.S. territorial seas.
Other legal issues are implicated by the Jones Act, which applies to the transport of merchandise entirely within territorial waters, even if the vessel does not stop or anchor at any other coastwise point. However, the transportation of merchandise from within the U.S. territorial waters to the high seas (i.e., beyond the three nautical mile belt) and back to the initial point of embarkation is not subject to the Jones Act.
The applicability of these regulations on recovery of space vehicles is relatively untested, although recently, CBP issued a ruling holding that a non-Jones Act compliant vessel was able to recover a reusable rocket booster outside of the U.S. territorial waters, and this did not run afoul of U.S. law.
Legal complications arising from the use of autonomous vessels
The vessels that are used to recover the reusable rockets may also pose legal challenges, especially if they are autonomous or remotely piloted. The American Bureau of Shipping ("ABS") defines autonomous vessels based on "the function of the system (not the vessel)" and varying degrees of independence in the decision making from human control."
Presently, only interim guidelines exist for the regulation of autonomous vessels, promulgated by the International Maritime Organization (IMO) through its work on Maritime Autonomous Surface Ships (MASS). The IMO has identified priority issues for resolution such as clarifying the meaning of the terms "master" and "crew" in international agreements. The IMO is aiming to develop and adopt a non-mandatory goal-based MASS Code to take effect in 2025. This will form the basis of mandatory Code, which is expected to take effect in 2028. Currently, companies employing autonomous vessels for recovery of space items are generally operating in temporary safety zones established by the USCG.
This article is intended to provide a brief overview of the legal issues related to the maritime recovery of reusable rockets and is not intended to be exhaustive or conclusive. Further research and analysis may be required to address specific questions or scenarios that may arise in this emerging field of law.
Footnote
1. Elizabeth A. Pucciarelli, THE CASE FOR A FEDERAL COMMON LAW OF SPACE, 33N.Y.L. Sch. L. Rev.509 (1988).
This article is presented for informational purposes only and is not intended to constitute legal advice.