Environmental Law Blog Essay

Elon Musk’s ‘Starman’: Is it Really Legal for Billionaires to Launch Their Roadsters into Space?

On a sunny Tuesday in February, SpaceX, the privately held rocket company of billionaire Elon Musk, launched a 23-story tall rocket, known as the Falcon Heavy, into space.  Bolted into the second stage of the rocket was a luxurious, cherry red Tesla roadster.  If you somehow missed this news, it’s actually worth going back and watching the videos.  It’s no overstatement to say that it may be a watershed moment for humankind.  This is the first known instance of a private individual building the world’s most powerful operational rocket and launching his own private sports car into space.    Both the computer animated video of the launch and the genuine mission video are breathtaking.  In fact, one could mistake the actual mission video for the computer animation.  It was that perfect.

As an academic somewhat knowledgeable about outer space law, this “ridiculous” and “silly” publicity stunt is simultaneously amazing and infuriating to me.  I want to be incensed about this for so many reasons, including the intentional pollution of the outer space environment – but I just cannot find any legal prohibition of SpaceX’s actions.

Fact-checking some of the public accounts of what happened, SpaceX did not  really launch a roadster into space.  They launched what looked like a roadster.  The car itself had no engine, or none of the mechanical parts that make a car a car – it was largely a chassis with a steering wheel and a radio — and a mannequin named “Starman” wearing a spacesuit.  As the car rocketed through outer space, SpaceX reports that David Bowie’s “Life on Mars?” played on the car radio.  (For the record, sound does not travel in space.  Sound travels through vibrations of atoms and molecules in a medium, such as air or water.  If there is no air in space, then there is no sound in space.)

The Tesla roadster launch had no scientific value.  It didn’t collect measurements; it is not being used to calibrate instruments; in fact, the car is already too far away from Earth to track with telescopes.  The only arguable value (in Musk’s defense) was that this was the first test of SpaceX’s Falcon Heavy rocket.  For the first test of a new rocket, engineers routinely put ballast aboard the rocket in case it blows up on the pad or en route to outer space.  SpaceX needed to use a payload about the same size and weight of a payload that it might eventually launch in the future.

But were any laws violated?  As hard as I try, I can’t seem to find any.

The Outer Space Treaty of 1967 (the OST) is the foundational text to examine.  Its provisions are widely agreed upon by virtually all spacefaring countries, including the United States.  It was concluded in 1967, as the Cold War between the U.S. and the U.S.S.R. was heating up, and it was four years after President Kennedy’s famous challenge.  At that time, several hundred satellites and lunar probes had already been launched and the U.S. Gemini program had already begun practicing docking and spacewalks needed for a lunar landing.  Most UN members were not space-faring, and these countries wanted to preserve future options for exploring space.  The OST says that outer space is “free for exploration and use by all States . . ., on a basis of equality and in accordance with international law.”  SpaceX may not have been exploring outer space with this launch, but it is indeed using it.   As for whether it’s in accordance with international law, we need to continue the inquiry.

Article II of the OST states that outer space “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”  Musk does not claim to be appropriating space in any form, whatsoever.  His roadster is just zooming through space and will be perhaps for millions of years, which actually leads to a discussion of another potentially relevant article.

Article IX of the OST places a duty on States Parties to the Treaty to “conduct all their activities in outer space . . . with due regard to the corresponding interests of all other States Parties to the Treaty.”  Nothing about SpaceX’s Tesla zooming toward Mars into an orbit about 250 million kilometers from the sun seems to impact the interests of other spacefarers – after all, it is not a highly used or crowded orbital track, and, since there is no one else out there, it fails to infringe on anyone.   Article IX also requires that States conducting exploration of outer space and celestial bodies “avoid their harmful contamination.”  Were SpaceX going to crash into Europa, a moon of Jupiter which may have subsurface water (and thus, life), the evaluation would be different.  But, according to Musk himself, he expects that the Tesla might be “endlessly” orbiting the sun in space to be found by some “alien race millions of years in the future.”

Does Musk even need to comply with the Outer Space Treaty?  After all, he didn’t sign it.  This is a fallacious contention that sometimes pops up in international law circles.  We can have a long discussion of self-executing and non-self-executing treaties, but that’s beside the point: it suffices that Article VI of the Outer Space Treaty states explicitly that States Parties to the Treaty have a responsibility to assure that activities of their nationals “are carried out in conformity with the provisions set forth in the present Treaty.”  The United States fulfills this duty through national licensing regulations.

In this case, on February 2, 2018, the Federal Aviation Administration (FAA) issued a license to SpaceX authorizing the launch of the “modified Tesla Roadster” (which they referred to as a “mass simulator”) and required that SpaceX acquire up to $110 million of insurance for claims resulting from the flight of the Falcon Heavy and an extra $72 million if an accident occurred during pre-flight operations.  Musk himself knows that launching rockets is a dangerous business.  He was quoted as saying: “There’s . . . a real good chance that that vehicle does not make it to orbit,” and “I hope it makes it far enough away from the pad that it does not cause pad damage, I would consider even that a win, to be honest.”  The pad he is referencing is the historic NASA pad from which the Apollo lunar landings and numerous space shuttles were launched.

In the absence of controlling treaty language, international law scholars can discuss this issue in different ways.  One perspective is known as the doctrine of non liquet, or “it is not clear.”  For example, Article IX of the OST prohibits “harmful contamination.”  But, there’s no definition of “harmful” and thus, it is not clear what is meant by that term.  To my knowledge, it has never been invoked.  For example, when China blew up its own aging weather satellite in 2007 with an anti-satellite missile and created hundreds of thousands of pieces of space junk that will be in orbit for thousands of years, I am aware of no State putting forth a claim that China violated Article IX of the OST.  Thus, even if SpaceX’s “Starman” and Tesla were to be considered contamination of the environment of outer space, it may not constitute “harmful” contamination for Article IX purposes.  If no specific Treaty provision has been violated, one can inquire whether any other general principles of law might be implicated.  Recall that OST Article III states that activities in outer space have to be carried out “in accordance with international law.”  As “international law” includes International Environmental Law, some scholars would contend that certain international environmental law provisions would therefore be applicable to the Falcon Heavy launch.  One of those may be the general duty not to cause environmental damage beyond a state’s national jurisdiction.

Because Space Law is such an emerging field, with very little precedent for guidance, a court could also view this situation not as a non liquet, but rather as a lacuna, or a “gap” in the law.  That is, there is just no law out there to address this situation.  This is particularly common with new and emergent technologies (cryptocurrency or cyberspace for example).  In 1967, when the OST entered into force, the countries conducting the most space launches were the U.S. and the U.S.S.R – two national governments launching government missions.  The Treaty’s negotiators did not foresee billionaires launching their roadsters into space on their own privately built rockets.

So what is a lawyer to do when there is no law?  Some might look at the Lotus case from the Permanent Court of International Justice (1927).  The facts of that case (involving a dispute between Turkey and France) are not immediately relevant, but the holding of the case has been interpreted and boiled down to the Lotus principle: that which is not forbidden under international law is permitted.  Since SpaceX’s launch of its roadster does not seem to have violated any international law, then some would contend that under the Lotus principle, it would be permissible.  On the other hand, other international scholars point out that the Lotus principle is often grossly misused, and that there may be some acts not expressly prohibited that are nevertheless still contrary to international law.

Should SpaceX’s Starman launch be permitted under international law?  On the one hand, SpaceX seems to be a responsible actor which has done everything correctly.  First, they followed applicable national laws and licensing regulations as required under U.S. law.  They are conducting their use of space with due regard for others; not causing any harmful contamination; and do not seem to be violating any international laws.

But, what about the next billionaire?  What happens when the next hypothetical, cryptocurrency billionaire decides to launch his 23-story “Hello Kitty” rocket into orbit?  What if the rocket were a 23-story giant “Twinkie” that was visible in orbit around Earth as part of an evil, pharmaceutical conspiracy to cause Americans to eat more sugar-laden food, become more obese, and then require diabetes medications?  On the bright side, at least Starman will get a snack that will probably stay fresh for the remainder of his journey.  On the other hand, a 23-story Twinkie shot into space could violate the law against obtrusive advertising in space (51 U.S.C. § 50911).  Does the intent of the launch matter?  Although U.S. launch licensing regulations require a payload review (primarily for national security, environmental, and safety issues), there is no such “launching mens rea” examination found in international or domestic law.

To conclude: SpaceX’s launch of Starman, driving a cherry red, modified Tesla Roadster on the Falcon Heavy is incredibly cool, an amazing technological feat, and my hat is off to all of the people who made it possible.  And, failing international action to the contrary, there will be more launches like this by more people in the future.  On the one hand, the first Roadster (or even the first disco ball visible with the naked eye) shot into space could be viewed as a fun publicity stunt that reminds people to look up from their phones from time to time.  One of the best outcomes of the Starman launch is the increased public interest in space activities.  The launch caused a fire of passion to sweep across a public that had only a fleeting interest, if any, before.

However, would we feel differently when it is the tenth roadster, or the 100th disco ball?  If launching lots of pretty, shiny objects (or Twinkies) into space is what we collectively desire, then no further action is necessary.  On the other hand, perhaps certain activities should not be permitted, even if not expressly forbidden under the law.

This post was written in the author’s personal capacity as adjunct professor of Space Law at Georgetown University Law Center.