About 100 years ago, when countries began considering the whole cosmos legal territory, the rules seemed simple. In 1919, an international law provision extended state air rights vertically, all the way to outer space, and that sufficed for a while.
Today, international space law is much more developed. But it’s preoccupied with state actors, so rules mostly address national governments. Commercial space enterprise and its regulation are not at all sorted, and companies may start exploiting cosmic resources that belong to all before a global agreement is reached.
What’s more, the line between state and private space interests could become fine. For example, the US space agency NASA announced on May 1 that it’s seeking information from American commercial space transportation companies for travel to the lunar surface in 2018 and the decade to come.
On April 27, the US Senate Subcommittee on Space, Science and Competitiveness held a hearing attended by space company chiefs, including Robert Bigelow, founder of Bigelow Aerospace, maker of space habitations. He urged lawmakers to limit regulation so as to speed up commercialization and colonization. Meanwhile, Texas senator Ted Cruz, chairman of the subcommittee on space, advised attendees that “America must expand commerce and ultimately settlement into space. And we must do it first.”
Back to the future
When the Soviet Union launched the satellite Sputnik I into low Earth orbit in 1957, it crossed US air territory, violating the 1919 law, but Americans accepted the transgression, intending to commit similar violations soon enough. So began the Space Race and global hustle to codify a law worth following.
A decade later, the founding principles of space law, still elaborated upon today, were created. The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (aka the Outer Space Treaty) is a heartening read for any citizen of the Planet Earth.
It provides that space is open to all states and may be used and explored solely for the benefit and interest of all humanity. It’s not subject to national appropriation. Also nice—no weapons of mass destruction are permitted in space. The Moon and other celestial bodies must be used exclusively for peaceful purposes, and nations are to avoid harmful contamination of the cosmic environment.
Under the accord, each state is responsible for national activities in outer space, whether carried on by governmental or non-governmental entities. States retain jurisdiction and control over their space objects and personnel on them, and are liable for damages they cause. Each must supervise and authorize anyone acting in outer space.
Controversy in the cosmos
Commercial space activity is easy to regulate in theory, based on the 1967 treaty. Each state is responsible for its people and anything it places in space, which arguably extends to any corporations it authorizes to operate there. Sounds simple enough. But remember 1919 and the extension of air rights; it’s not going to be simple and laws may be broken before suitable agreements are reached.
Humans traditionally move around in pursuit of profit, which drives much exploration. Yet space belongs to all, according to 1967 international law, and its exploitation for private gain isn’t sanctioned even if the likelihood that’s going to happen is widely recognized.
There have been many attempts to reach agreement on cosmic resources, among them, the 1979 Moon Agreement. It is international law and reiterates that space is common property, attempting to further address exploitation of natural resources, the environment, and scientific exploration in recognition of future commercialization efforts. But it was rejected by some nations, including the US, as too restrictive. Unlike the 1967 treaty, the small group of signatories struggled long and hard (pdf) over terms that ultimately read like benign reminders to keep the common good in mind.
Not a party to the 1979 treaty, the US may pull a Sputnik of sorts and just go for it, sanctioning space exploitation in violation of that international agreement. In 2015, US president Barack Obama signed the Commercial Space Launch Competitiveness Act, which allows Americans to own and sell space resources, including minerals and water. How the law is implemented will determine whether American companies end up violating international accords, and many details have yet to be addressed. The US can argue that its law doesn’t violate the definition of “use” of space in the 1967 treaty and others will argue otherwise. These matters aren’t finally decided for now.
Alexander Soucek, head of legal services at the 22-nation European Space Agency, says the act is at the very least “very controversial.” It may even be an outright violation of the 1967 Outer Space Treaty’s prohibition on national appropriation. In any case, it sets precedent and perhaps encourages other countries to go rogue.
Of course, companies banking on making money in the multiverse someday are pleased by these developments. One of them is Planetary Resources, an asteroid mining concern whose motto is, “Our vision is to expand the economy into space.” Co-founder, Eric Anderson told Tech World News that US plans to allow citizens to exploit space is “the single greatest recognition of property rights in history.”
He must have just spaced on those other agreements granting humanity the Moon and all celestial bodies.