SpaceX’s Polaris Dawn: A Space Race or Legal Chase?

Prisha Kakliya

Edited by Casey McKee, Sahith Mocharla, and Judge Baskin

On September 10, 2024, SpaceX, a privately held aerospace company, launched Polaris Dawn on their Falcon 9 rocket into low Earth orbit at NASA’s Kennedy Space Center in Merritt Island, Florida. Polaris Dawn was the first commercialized spacewalk operated on behalf of billionaire entrepreneur Jared Isaacmen, the first of his three proposed missions in collaboration with Elon Musk. Along with Isaacmen, the crew, consisting of astronauts Kidd Poteet, Sarah Gillis, and Anna Menon, spent roughly five days in orbit to test their new extravehicular suits (EVAs). More importantly, however, the mission has raised salient legal questions regarding SpaceX’s compliance with Article VI of the Outer Space Treaty (OST), particularly concerning the roles and responsibilities of private entities in space exploration.

The Outer Space Treaty emerged in the 1960s amid the Space Race, following Cosmonaut Alexei Leonov’s historic 1965 spacewalk aboard the USSR’s Voskhod 2. The United Nations negotiated and established the treaty in response to growing concerns over the potential militarization of space, particularly the use of nuclear weapons [1]. The USSR aimed to maintain its lead in space exploration, preceding 470 government-sponsored spacewalks that have taken place since then. SpaceX’s Polaris Dawn mission, however, stands out as the first privately funded endeavor of its kind, achieving one of the most difficult maneuvers in space exploration [2]. As a private company, SpaceX does not benefit from the same sovereign oversight as state-backed programs, placing it under stricter regulatory scrutiny. The Falcon 9 rocket has flown higher than any other Dragon mission to date–an impressive peak height of 458 miles—200 miles higher than the International Space Station. Notably, the ship reached an altitude of 870 miles, the furthest by any piloted spacecraft since the Apollo moon program 60 years prior [3]. After cresting, the spacecraft lowered, and Jared Isaacmen and Sarah Gillis stepped out while Anna Menon and Scott Poteet monitored the safety tethers inside. Isaacmen and Gillis performed a range of motions, testing the EVA’s mobility and practicality. SpaceX emphasized the necessity of this as they foresee a base on the Moon and a city of Mars. According to Isaacmen, “There’s going to be an armada of Starships arriving on Mars at some point in the future, and those people are going to have to be able to get out of it and walk around and do important things”  [4].

As the first commercialized spacewalk, Polaris Dawn raised legal issues surrounding the role of private companies in space exploration. The Outer Space Treaty imposes obligations mostly on states to curtail their national activities in space; Article VI is the only article that mentions any state obligation towards non-governmental organizations. As one of its signatories, the United States is legally bound to its requirements.

In full:

“States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. 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. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization” [7].

As the Article provided no further information on how states should provide “authorization and continuing supervision,” and what constitutes the “activities of non-governmental entities,” operating in space, states have developed their own laws. Initially, three academic interpretations were put forward [8]: 

1. Nationality-based approach: “National activities" refer to activities conducted by entities of a particular nationality

2. Launching state approach: Others interpret it as activities conducted by the “launching state,” which could include multiple states involved in a space launch.

3. Territorial approach: A third interpretation focuses on activities conducted from a state's territory or facilities.

   
   

However, in decades since the OST’s adoption, the territorial approach, along with quasi-territorial and personal jurisdiction, have remained dominant approaches in national space legislation. This dominance is a result of state practice—how states have structured their space laws—and opinio juris, the belief that international law obligates them to adopt these measures [9]. Quasi-territorial jurisdiction extends to activities undertaken by entities closely linked to the state, such as ships, aircraft, and mobile platforms, and likely includes nationally registered space objects. Personal jurisdiction encompasses space activities conducted by a state's citizens or legal persons established, registered, or based within its territory, regardless of where those activities occur [10]. This prevailing jurisdictional approach aligns with the recommendations of United Nations General Assembly (UNGA) Resolution 68/74, which advises states to exercise national jurisdiction over space activities conducted from their territory or control, as well as activities undertaken by their citizens and affiliated legal entities elsewhere [11].

Therefore, even though SpaceX is not owned by the U.S. government and has international investors, its incorporation in California subjects its operations to U.S. regulatory oversight. In the U.S, the Federal Aviation Administration (FAA) is responsible for overseeing space activities conducted by private entities in the United States. The FAA authorizes missions, regulates aspects of launch and reentry phases, issues launch licenses, and ensures compliance with rocket and environmental safety standards [12]. For instance, the FAA grounded SpaceX’s Falcon 9 rockets following a booster failure on August 28, 2024. The launch had already been delayed several days due to technical issues and weather concerns [13].

Yet regulatory oversight becomes more complicated. The FAA currently operates under a learning period moratorium that limits its ability to enforce occupant safety regulations for human spaceflight. In an email to Al Jazeera, the FAA contested, “Under federal law, the FAA is prohibited from issuing regulations for commercial human spaceflight occupant safety” [14]. The moratorium, enacted by Congress in the Commercial Space Launch Amendments Act of 2004 (P.L. 108-492), has been extended till January 1, 2028, in order to encourage the development of the private sector without heavy regulatory oversight [15]. As it stands now, SpaceX has taken responsibility for ensuring their crew safety, relying on internal safety measures rather than direct regulatory oversight from NASA or the FAA. However, for the Polaris Dawn mission, SpaceX launched the Crew Dragon spacecraft using the Falcon 9 rocket, which the FAA has licensed following reviews of uncrewed test flights to ensure public safety, while NASA has certified the Crew Dragon’s design, including a loss-of-crew probability not exceeding 1 in 276 [16]

Ultimately, the extent to which private agencies like SpaceX are to be “authorized and continually supervised,” remains somewhat vague. While they must be regulated by the FAA, the moratorium complicates the extent of it. This raises the question of whether SpaceX violates Article VI of the OST. As mentioned, the treaty lacks a clear definition of these terms, and for Polaris Dawn, the FAA certified the rocket and spacecraft but provided potentially minimal regulatory oversight. 

The absence of this strict regulatory oversight has prompted debate among several scholars. For instance, Tommaso Sgobba, the Executive Director of the International Association for the Advancement of Space Safety (IAASS), argues that the mission was a violation of Article VI due to the lack of explicit authorization and supervision by the U.S. government.  Sgobba states, “The large part of the Polaris Dawn mission is not currently subjugated to authorization and continuous supervision of any U.S. government space agency” [17]. He advocates for, instead, the establishment of an independent space safety institute to provide third-party reviews for space companies to ensure compliance with international obligations.

Contrastingly, Ram Jakhu, former director at McGill University’s Institute of Air and Space Law, takes a different stance.  While acknowledging the ambiguity of Article VI, Jakhu argues that the treaty’s vagueness does not diminish its relevance. Instead, it emphasizes the responsibility of states to interpret and apply its provisions prudently. He notes, “There exist no internationally binding regulations that provide a precise definition of this term and no international technical standards and procedures for effectively implementing this obligation” [18]. 

Some scholars reference other broader principles of the OST to argue that the mission does not violate the treaty. Dr. Tanja Masson-Zwaan, a professor of international air and space law at Leiden University, contends that Polaris Dawn, in fact, aligns with the principles outlined in Article I of the OST which advocates for the exploration and use of outer space for the benefit of all countries, or the “free-use” of space. She asserts, “It’s sufficiently broad to accommodate new activities, and the principles should hold to preserve use and exploration for peaceful purposes” [19]. Masson-Zwaan maintains that the treaty's broad framework can accommodate new activities and should be leveraged to promote peaceful exploration. 

In a conversation with TULJ, Dr. Mark Sundahl, director of the Global Space Law Center, emphasized the necessity of balancing self-regulation and government oversight. “There’s a lot of industry self-regulation going on, the creation of best practices and guidelines, industry standards. But there also has to be some degree of at least a minimal degree of governmental oversight so that we’re at least in compliance with our international obligations under Article VI of the OST,” he explained. Sundahl noted that while there are regulations covering launch, reentry, remote sensing, telecommunications, and orbital slot usage, “nothing [exists] about all the other activity that is about to take place in space,” particularly in orbital and deep-space operations. Sundahl also addressed the scope of “national activities” under Article VI, clarifying that private missions like Polaris Dawn fall squarely within its purview. He stated, “The deal struck by the U.S. and Soviet Union was that private activities like Polaris Dawn would be allowed in space, but those activities would have to be authorized and supervised.” Therefore, Dr. Sundahl supports a balanced approach, advocating for continued industry self-regulation complemented by minimal government oversight to ensure compliance with international obligations under the OST.

In light of differing perspectives, the Polaris Dawn mission raises a broader discussion regarding the potential need for legal reform in space exploration. The FAA’s current moratorium on occupant safety regulations is set to expire in 2028, presenting an opportunity for lawmakers and international bodies to reassess and update existing space laws to better address the complexities of private space missions. As the role of private companies continues to expand, adapting legal frameworks to ensure safe and responsible space exploration is important in preserving the integrity of international space law.

Future reforms could codify a more explicit framework for state responsibility over private actors in space, ensuring that the principle of “authorization and continuing supervision” under Article VI is operationalized rather than symbolic. Such measures could include the establishment of a third-party independent international oversight agency or mandatory disclosures of safety and mission data. These would align with the preventative logic of existing treaties governing frontiers such as the Antarctic Treaty, a “remarkably effective” treaty signed by the twelve nations that had been active in Antarctica during the International Geophysical Year in 1957-58 [20]. In its fourteen articles, the countries consult on the uses of a whole continent, with an overarching commitment that it should not become a scene or object of international feud. Without similar safeguards, private ventures like Polaris Dawn risk emphasizing economic ambition over legal accountability. A reformed regime that integrates both state and corporate obligations would thus preserve the Outer Space Treaty’s foundational principle that outer space remains the “province of all humankind,” not the jurisdiction of a few powerful actors.

The first commercialized spacewalk, the Polaris Dawn mission, has drawn attention to whether current legal frameworks, such as Article VI of the OST, sufficiently address the responsibilities and oversight of private space activities. On one hand, missions like these risk extending state authority into a domain historically governed by collective stewardship, thereby blurring the boundary between national interest and universal benefit. On the other, they demonstrate the growing capability of private actors to advance space exploration. Whether Polaris Dawn violated Article VI, may remain contested, but it is evident that current legal regulations governing space exploration and activity should be refined as to mitigate international disputes. 

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[1]Kate Howells, What is the Outer Space Treaty? The Planetary Society (2024), https://www.planetary.org/articles/what-is-the-outer-space-treaty. 

[2]Pallab Ghosh, Polaris Dawn: Billionaire takes off for first private spacewalk BBC News (2024), https://www.bbc.com/news/articles/c4gd9g9zzelo.  

[3]William Harwood, First non-government spacewalk goes off without a hitch for Polaris Dawn Crew Spaceflight Now (2024), https://spaceflightnow.com/2024/09/12/first-non-government-spacewalk-goes-off-without-a-hitch-for-polaris-dawn-crew/.  

[4] William Harwood, SpaceX’s Polaris Dawn Crew conducts first all-civilian spacewalk CBS News (2024),https://www.cbsnews.com/news/polaris-dawn-crew-gears-up-for-first-commercial-non-government-spacewalk/. 

[5] Science & Research, Polaris Program (2024), https://polarisprogram.com/science-research/.

[6]Chris Casey, How does space travel affect the eyes? CU Anschutz Newsroom (2025), https://news.cuanschutz.edu/news-stories/how-does-space-travel-affect-our-eyes. 

[7] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Oct. 10, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html. 

[8] Frans G. von der Dunk, Scoping National Space Law: The True Meaning of ‘National Activities in Outer Space’ of Article VI of the Outer Space Treaty, in P.J. Blount, Tanja Masson-Zwaan, Rafael Moro-Aguilar & Kai-Uwe Schrogl (eds.), Proceedings of the International Institute of Space Law 2019, 227–237 (2020), https://digitalcommons.unl.edu/spacelaw/116/. 

[9] see [8]. 

[10] see [8]. 

[11] G.A. Res. 68/74, Recommendations on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space, U.N. Doc. A/RES/68/74 (Dec. 11, 2013), https://www.unoosa.org/pdf/gares/A_RES_68_074E.pdf. 

[12] George Nield, D. Brooke Owens & John Sloan, The Origin and Practice of U.S. Commercial Human Space Flight Regulations, Int'l Astronautical Cong., Glasgow, Scot., Oct. 2008, at 1, https://www.faa.gov/sites/faa.gov/files/space/additional_information/international_affairs/THE_ORIGIN_AND_PRACTICE_OF_U.S._COMMERCIAL_HUMAN_SPACE_FLIGHT_REGULATIONS_IAC_Glasgow_Oct_2008.pdf. 

[13] Geoff Brumfiel, FAA grounds spacex ahead of Historic Polaris Dawn Commercial spacewalk NPR (2024), https://www.npr.org/2024/08/28/g-s1-19934/faa-spacex-falcon9-grounded-polaris-dawn.  

[14] Colin Baker, SpaceX Polaris Dawn Spacewalk: Is the US Breaking a 50-Year-Old Space Law?, Al Jazeera, https://www.aljazeera.com/features/2024/9/12/polaris-dawn-spacewalk-is-the-us-breaking-a-50-year-old-space-law. 

[15] Rachel Lindbergh, Commercial Human Spaceflight Safety Regulations (2025), https://www.congress.gov/crs-product/IF12508. 

[16]  Dave Mosher, NASA calculated how risky SpaceX's first launch of humans could be, and the astronauts flying the space mission say they're 'really comfortable' with those odds BUSINESS INSIDER (2020), https://www.businessinsider.com/nasa-spacex-crew-dragon-loss-crew-mission-failure-chances-probability-2020-5 

[17] see [14].

[18] see [14].

[19]  see [14].

[20] British Antarctic Survey, The Antarctic Treaty Explained, BRITISH ANTARCTIC SURVEY (n.d.), https://www.bas.ac.uk/about/antarctica/the-antarctic-treaty/the-antarctic-treaty-explained/.