The Entrepreneur’s Guide to Space Law

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Mattereum - Humanizing the Singularity

20 min readJul 5, 2018

NASA Goddard Space Flight Center photostream on Flickr

Humans are on the brink of becoming an interplanetary species. To enable this truly epic undertaking, we must shift from storytelling and scientific observation to constructing the legal frameworks within which we will explore, colonize and commercialize outer space. The development of space law over the past sixty years has been largely aimed at securing peace on Earth. Commercially-based space exploration gives us the opportunity to secure our place in the universe safe from extinction events and resource scarcity, so it is important that our legal structures support productive and peaceful uses of space; but we have only just begun to tackle the problems posed by the extension of our earthly laws to the heavens. Where have we been and where are we now in the domain of space law? What are the obstacles and uncertainties we must overcome to realize our presence in the stars?

Space oddity

On October 4, 1957, when the Soviets launched the first manmade object into outer space, the Sputnik 1 satellite, it marked a milestone achievement in human ingenuity. It also spurred the legal minds of the world to frame this new realm of possibility. Shortly after the Sputnik launch, the United Nations General Assembly created the ad hoc Committee on the Peaceful Uses of Outer Space (COPUOUS). Between 1957 and 1960, jurists from around the world gathered at two space law colloquia to determine how to reconcile this with terrestrial, international law. The proceedings revealed an inherent difficulty framing space in existing legal criteria, namely Roman law categorization of property. Is extraterrestrial space res communis, belonging to everyone; res nullius, belonging to no one; or res publicae, the sole domain of government? Stephen Grove, an international lawyer present at the first conference, pinpointed the historical context of the problem: Roman law distinguishes the air that we breathe (aer) and the skies above the land (coelum), with the first falling under res communis while the public and private property rights of the second were enforced towards a reasonable elevation. The idea of extending sovereignty to all space above a piece of land of course leads to absurdity at scale, but the notion will present itself later in the governance and allocation of geosynchronous satellite space. One jurist, M. Seara-Vasquez, challenged whether or not space could be defined as a res, or thing, at all. His thinking eventually lead to the conclusion that the best way to view the matter from a more objective point of view was to look at the earth “[as] not the center of the universe but an insignificant part of it.” It took about a decade of jurists wrapping their heads around this new domain for the United Nations General Assembly to produce something with staying power: the first international treaty for outer space.

Towards a Magna Carta of space

With the acceleration of the space race between the United States and Soviet Union, there was immense pressure to rein in the two superpowers and depoliticize and demilitarize the journey into the final frontier. As world leaders sought to focus space exploration on scientific advancement rather than political competition, many pointed to the Antarctic Treaty as the basis of drafting a new treaty, as it prohibited national sovereignty and encouraged scientific cooperation within a certain region. In 1967, after a decade of negotiations, COPUOUS introduced the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, usually abbreviated Outer Space Treaty (OST), which was promptly signed by the two superpowers, and remains to this day the basis of international space law.

Some of the principles of the treaty include:

Outer space activities shall be carried out for the benefit of all humankind and shall be free for exploration and use by all (Article I).
No national appropriation by claims of sovereignty can be made in outer space or of any celestial bodies by any State power (Article II).
Militarization efforts in Earth orbit, outer space, or on any celestial body are prohibited, to maintain peace and cooperation between States party to the treaty (Article IV).
States shall be responsible for the outer space activities of all governmental and non-governmental entities within their domain while continually authorizing and supervising their activities (Article VI).
Astronauts, as “envoys of mankind,” shall be rendered all assistance necessary regardless of State affiliation (Article V).
States are liable for any damages or contamination caused by their “space objects” (Article VII).

In the 60s and 70s, four additional treaties were created to expand upon certain articles of the OST.

The “Rescue Agreement” (1967) expands on Article V of the OST, detailing how States party to the treaty must cooperate in the rescue and return of any astronauts or space vehicles after unintended landings and emergencies.
The “Liability Convention” (1971) elaborates on the liabilities of parties in the event of a space object causing damages to another and the means of dispute resolution and compensation in accordance with international law.
The “Registration Convention” (1974) sets provisions for tracking the space objects of “launching States” in a UN registry. This is incredibly important for monitoring space debris.
The “Moon Agreement” (1979) elaborates on the property rights around the moon and other celestial bodies detailed in the OST. This treaty has not been signed by enough countries to come into effect, yet it highlights the ambiguity around space property rights in the context of international law.

COPUOUS also published these five sets of principles to augment existing treaties. General principles are often used in international law to keep existing treaties from becoming obsolete and can even precede the drafting and ratification of full-fledged treaties.

The “Declaration of Legal Principles” (1962) was the basis of the OST (similar to Article I) and its guiding principles, such as the cosmos being free for exploration and use.
The “Broadcasting Principles” (1982) deals with the management of signals broadcast by satellites. This includes provisions of noninterference, information exchange for all fields of research, and the betterment of developing countries.
The “Remote Sensing Principles” (1986) details the use of electromagnetic waves to aggregate data on the Earth’s natural resources and how this should be a cooperative endeavor to “promote the protection of mankind from natural disasters.”
The “Nuclear Power Sources Principles” (1992) sets the guidelines around the use of nuclear power sources and how to protect people in the event of fallout.
The “Benefits Declaration” (1996) further emphasizes the exploration of the cosmos for the benefit of all humankind, particularly the States party to the treaty. This preceded the formation of the International Space Station programme two years later.

Challenges for a legal regime in space

The space treaties have paved the way for entire industries around the exploration and commercialization of space and its celestial bodies, yet those very endeavors have been inhibited out of a desire to maintain peace between the nations. It is important to point out that all of the above legal instruments are non-binding treaties which emphasize conformity with international law. This is not to say that signatory States have a tenuous relationship with international law. On the world stage, consensus at such a scale does not shift too easily. A State that has signed an international treaty will face pressure and scrutiny from the other parties to the treaty if they show any signs of deviation. While these international treaties play a key role in securing outer space activities, the local laws of nation-states also affect the space-faring capabilities in their jurisdiction. What we have is a combination of international and local legal structures which are not wholly equipped to handle this accelerating space, and technology does not develop at the speed of regulation. So where do matters get tangled up in space law?

Commercial spaceflight

Commercial orbital and suborbital spaceflight is inevitable. Companies such as Virgin Galactic and Blue Origin are already gearing up to become the first operators in the new industry of space tourism. SpaceX even has plans to use their upcoming BFR rocket to conduct international flights in less than an hour. Tourist trips to the International Space Station and other space habitats will also become a reality. In the U.S., the Federal Aviation Administration (FAA) regulates non-governmental space operations under the Commercial Space Launch Amendments Act of 2004. With or without a crew, all space or high-altitude rockets require certain licenses and permits from the FAA’s Office of Commercial Space Transportation, which inspects launch facilities, rockets, and the vehicles they carry. These commercial spaceflight ventures will test existing space law and likely catalyze new regulation as the industry evolves. The FAA is currently drafting and proposing licensing procedures and safety regulations for the ongoing development and commercial use of private spacecraft. As with all areas of commerce, this new field will require companies, legislatures, and courts to address the liabilities of all parties in the event of disputes or accidents, enforceability of “cross-waivers of liability” (as in ISS operations), and consent of passengers. While commercial spaceflight may be able to draw on the existing corpus of law governing terrestrial flight for its legal framework, there will be new complexities to grapple with.

Militarization

Despite Article IV of the OST, which forbids weaponization and military efforts in space, there have been attempts in the past to realize a military presence in space. The underlying principles of the OST were drafted in order to detach the military pursuits which dominated the space race from the exploration and peaceful uses of this new frontier. In 1983, U.S. President Ronald Reagan announced the Strategic Defense Initiative, an attempt to place American military forces in outer space. Critics nicknamed the project “Star Wars,” suggesting that Reagan and members of his administration may have had some ideas while watching the thrilling tale of a galaxy far, far away. Given that the film trilogy had just recently concluded its plot involving spaceship armadas and planet killing death machines, one can only wonder if pop culture actually influenced a government administration to this degree. One of the core ideas was to implement a missile defense system which would use lasers, particle beams, and more missiles to counteract enemy missile strikes from land and from space. While terrestrial tests lead to some success, the program was shut down due to concerns that the SDI violated the anti-ballistic missile treaty of the Strategic Arms Limitation Talks as well as the Outer Space Treaty. The current U.S. President, Donald Trump, recently announced his intention to create a new branch of the military, dubbed the “Space Force,” to consolidate and expand U.S. military efforts in space. While it is only words at this point, we will have to wait and see if the Space Force follows the same fate as the SDI amidst existing treaties. The concern, of course, is that if a single country deviates from the OST for this reason, then the consequences could lead to an increasing probability of armed conflict in space. The States that choose to skirt the treaty for any reason would also detach themselves from other principles within the treaty.

Space debris

The accumulation of man-made space junk is an immense problem within our interplanetary pursuits. According to NASA Chief Scientist Nicholas Johnson, “The greatest risk to space missions comes from non-trackable debris.” There are over 500,000 orbital objects at least the size of a marble and 20,000 larger than a softball, all travelling up to 8 km/s. Even paint flecks can cause significant enough damage to merit repairs. The surveillance and tracking of this orbital space is a joint effort between the Department of Defense and NASA. Any damages to orbital objects will result in more and more debris. In 1996, a French satellite was damaged by debris from the explosion of a French rocket ten years earlier. In 2007, China conducted an anti-satellite test by firing a missile at a defunct weather satellite, creating 3,000 pieces of debris. In 2009, two satellites collided in orbit. If the amount of debris continues to increase at this rate, our orbital space may become too crowded with high-velocity junk for any safe or practical orbital operations, let alone exploration of the cosmos. Current space law is unclear on the subject of space debris. While the 1972 Liability Convention holds countries responsible for any damages between their spacecraft due to negligent action, liability for damage from debris presents a challenge as it is not always possible to identify the origin of smaller debris that are nevertheless destructive. Additionally, the legality of debris removal is tricky as it requires permission from its associated country before any action can be taken. The space industry currently lacks a law of salvage akin to maritime law which would help maintain a “cleaner” orbit.

Geostationary satellite space

Iberian Peninsula and North Africa at Night by NASA on Flickr

Geosynchronous Equatorial Orbit (GEO) is roughly 35,786 kilometres above the equator and is home to the solar system’s most valuable parking spots. Telecommunication satellites are launched and placed in geostationary orbit since the orbital speed matches the Earth’s rotation, allowing the satellites to cover a consistent area of the planet’s surface. Typical uses include TV broadcast, data links, weather monitoring, and satellite telephony. What makes this a crisis of sorts is the limited number of 1,800 orbital slots, since every satellite must remain 1,000 km apart to avoid any possibility of collisions and interference. The International Telecommunication Union regulates the use of these parking spots, allocating them to telecom operators on a first-come, first-served basis with exclusive rights to the space for the duration of the satellite’s operation (15 years usually). In 1976, eight countries along the Equator tried to claim ownership over the GEO space adjacent to their territories in the Bogotá Declaration. However, this never got any traction since none of those countries has significant clout. To get around this, the states of the Bogotá Declaration tried to claim the space as a natural resource (which would fall squarely within their domain under jus cogens) due to the unique geostationary relationship. This is an example of how the OST’s ambiguities around property rights can lead to confusion around the management of scarce resources.

Property rights

Perhaps one of the more debated aspects of space law is extraterrestrial property rights. While there is some international legal precedent in ownership of resources extracted or mined by private enterprise in space, actual claims of land ownership on the celestial bodies from which these resources originated is problematic.

Some lawyers believe that the Outer Space Treaty does not recognize property rights at all, as Article II states that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” While this seems to certainly rule out national property rights, private property of companies and individuals don’t get a clear pass with Article VI either, which states that nations are responsible for the activities of their agencies and their citizens and must ensure they are in compliance with the provisions of the treaty. This would include the ban on land claims. While Article VI paved the way for private enterprise in space, it did not provide much clarity on the economic development of this new realm.

In 1979, a new treaty was proposed by a handful of nations a dozen years after the signing of the OST with the aim of governing extraterrestrial economic activity: the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (or the “Moon Agreement”). One of the main principles of this treaty is that any resource which is outside national domain, i.e. all non-Earth resources, is of “the common heritage of mankind” and therefore not subject to claims of ownership. This is heavily inspired by the 1982 UN Convention on the Law of the Sea, which attempted to regulate seabed mining and other maritime activities in such a way that only those directly undertaking the efforts would profit from it. The Moon Agreement and UNCLOS have seen scant support from nation states, since their exclusion of private property rights essentially eliminates any incentive for large scale operations. As space law scholar Rand Simberg points out, the fact that the Moon Agreement exists at all would indicate that the OST does not prohibit private property in space, as there would have been no need for another treaty to specifically outlaw it.

There have been some notable attempts at claiming extraterrestrial property in the past. In 1980, an American entrepreneur named Dennis Hope started the Lunar Embassy Commission to sell lunar real estate. He has reportedly sold over three million acres of the Moon to numerous clients including former Presidents and Hollywood celebrities, citing that the OST does not ban private property. He claims to have filed a declaration of ownership with the United Nations, taking their lack of response as an affirmative. Despite the doubtful legality of the business, the Lunar Embassy is still selling extraterrestrial properties. You can even buy Pluto (in its entirety). The only case that has gone to court is Nemitz v. United States, in which Gregory W. Nemitz claimed to own the asteroid Eros after filing with a private property rights registry (lacking formal legal recognition) ran by the Archimedes Institute, a non-profit think tank for space policy research. The case was opened when he sent NASA a $20 parking fee after the landing of the NEAR Shoemaker probe in 2001.

Despite the host of spurious claims and arguable con artistry, the ambiguity around property rights has persisted since the Cold War. As space lawyer Ezra Reinstein states:

The Outer Space treaty is riddled with ambiguities. It is silent, outside of affirming freedom of “exploration and use,” as to what sort of rights parties can claim in celestial bodies. It is silent as to the circumstances under which these unspecified property rights might vest, that is, what a person must do to gain whatever property rights are available.

Some lawyers believe that this ambiguity was intentional at the time the treaty was framed in order keep the Cold War from getting hot. The Soviet Union wanted space enterprise to be the sole dominion of the state while the U.S. wanted to encourage private enterprise. Ultimately, in 1967 extraterrestrial property rights were not an immediate concern, but things have changed since then. While the examples above present some significant entanglements around the subject of property rights, perhaps the two largest areas to consider regarding our expansion in the cosmos are mining and settlement.

Asteroid mining is one of the new industries that opens up with our expansion into the cosmos. It is the method by which we could overcome the resource scarcity that has caused so much conflict on this pale blue dot. There are asteroids out in our solar system that have enough precious metals and rare earth elements to meet our needs for thousands — even millions — of years. Some asteroids also contain significant amounts of ice which could supply spacecraft crews and off-planet settlements with water, shield them from radiation, and be used to make rocket fuel. This abundance is one of the core drivers of making life interplanetary. Fortunately, the legal framework around mining operations in space seems to indicate that resource extraction is permitted. Laying claim to celestial bodies from whence said resources were extracted, however, is when things get dicey. In 2015, the U.S. Congress passed the U.S. Commercial Space Launch Competitiveness Act, paving the way for mining enterprises. One company that is actively pursuing this work is Planetary Resources, Inc. which is seeking not only to mine precious resources but to construct refueling stations throughout the solar system. This would appear positive for outer space industry and commerce, but what happens when we decide to make ourselves at home on another planet?

Settlement of outer space and celestial bodies is perhaps the most affected activity within the current corpus of space law and it begs the question: why? Why would the second article of our Magna Carta of space immediately ban any national appropriation of property and muddy the waters around the very notion of property in space? This was far from oversight. As soon as Sputnik 1 was launched, the jurists of the world immediately understood that the game had changed forever and set about establishing a legal regime which placed peace above all else. The reason for the national appropriation ban is that any enforcement of sovereignty claims would inevitably lead to the use of military force to defend such claims and the possibility of international conflict and monopolization. One way to deter imperialism is to deny sovereignty wherever possible in favor of a global — or rather universal — commons.

While it may very well be that the OST prohibits staking claims of ownership on celestial real estate, it hasn’t stopped some institutions from finding a workaround. The New York–based Space Settlement Institute has proposed the Space Settlement Prize Act, which would take a crosswise approach by allowing nations to recognize the ownership claims of private entities of other nations that meet certain criteria. This state acknowledgement would not include promise of physical defense. This would eliminate national appropriation from the equation entirely. Initially a citizen within this diaspora of settlements would still fall within their jurisdiction of his or her origin, but each settlement would be free of national sovereignty back on Earth. This is comparable to how the ISS does not fall under the jurisdiction of a singular nation-state but rather takes a composite approach held together by international treaty. Later, perhaps, settlements could seek U.N. recognition as non-Terran nation-states capable of granting their residents citizenship. Despite creating a loophole in Article II, the Space Settlement Prize Act may receive complaints on many sides of the debate. Diplomats would object to U.S. private property claims since it could risk international conflict in the future. Supporters of the Moon Agreement would not appreciate letting the market dominate outer space as it has Earth. It all comes down to incentives. Can we fund the large-scale infrastructure missions necessary to make life interplanetary by limiting the rewards to those who directly undertake these efforts?

Indeed, the notion of property in space is a complex and hazy issue with jurists providing all sorts of analyses of the current legal framework. But at the end of the day, strict property rights may not be necessary. Space law in its current form seems to be leaning towards the idea of the cosmos as a universal commons free from international strife and the inefficiencies of feudal land ownership.

However, as we proceed to populate the void with the only observable life in the universe, we will still need a means to clean up our mess on occasion.

Dispute resolution

Lady Justice by Judy van der Velden on Flickr

Disputes and differences are sure to arise as we bring our activities to other parts of our solar system and beyond. They are part and parcel of any field of cooperation and competition with value at stake. International law has adapted over the years to technologies which broaden the landscape of what is possible. The domain name system of the Internet, for example, is largely secured through international treaty. International law has developed methods to settle cross-border disputes, most of which are listed in Art. 33 of the Charter of the United Nations as well as Resolution 2625 of the UN General Assembly on “Principles of International Law Concerning Friendly Relations and Cooperations Amongst States in Accordance with the Charter.” These include “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” One of the key differences between international and national law is that international law does not benefit from automatic enforceability and cannot mandate binding resolution. Space law has produced many international legal instruments to handle disputes, yet as Prof. Böcksteigel states:

The major space law treaties, including the Liability Convention, do not provide a machinery for binding dispute settlement. Such binding dispute settlement is only found in very specific instruments for highly limited areas of space activities.

The Liability Convention, in a similar vein to the Convention on the Law of Treaties, can only require non-binding (non-adversarial) dispute resolution by conciliation. If negotiations between the parties do not resolve the dispute, a Claims Commission can be established which functions like an arbitration panel. The Commission’s decision, however, can only be binding if the parties agree on the outcome. Hence, no assurance of resolution. The only time a dispute under the Liability Convention has occurred was when a Russian satellite crash landed in Canadian territory, risking radioactive contamination. Both parties negotiated and reached an agreement rather easily. No muss, no fuss.

The dispute resolution mechanism for activities involving partners in the International Space Station is laid out in the “Space Station Agreement.” A cross-waiver of liability is used which requires all parties to waive all claims against each other as long as the claim concerns damages from “Protected Space Operations.” This is to maintain peace and stability amongst the nations participating in the project. Should any dispute rise regardless, negotiations are recommended. Art. 23 para. 3 of the agreement provides the final option if diplomacy is fruitless: “If an issue not resolved through consultations still needs to be resolved, the concerned Partners may submit that issue to an agreed form of dispute resolution such as conciliation, mediation, or arbitration.”

The settlement of disputes internal and external of an international organization tends to be resolved by arbitration. Essentially all states participating in global trade have signed the New York Convention, which recognizes the validity of arbitral awards for cross-border dispute settlement. The Convention for the Establishment of the European Space Agency contains provisions for dispute resolution between member states via arbitration if the ESA’s internal council cannot help the parties reach an understanding. The ESA’s external contracts also contain a mandatory arbitration clause which refers to the rules set forth by the International Chamber of Commerce in Paris.

It remains to be seen how dispute settlement will actually play out when we have a diasporic presence in the cosmos. While early disputes will no doubt be settled in terrestrial courts and tribunals, when we truly become multiplanetary this process could become altogether different. Will we always “phone home,” or will we design new legal–technical structures to facilitate the process?

Conclusion

Outer space is a medium of possibility. More specifically, it is an opportunity to set things right as a species. The very beginning of space law in the days of the Cold War is part of a larger narrative. While we put so much energy and resources into building rockets for deterrence, we could have been focused on building rockets for exploration and prosperity. The reality of extraterrestrial commerce and settlement is near on the horizon with the pace of technology. While the codified space law at hand may change drastically over the coming years, the international legal framework spearheaded by the United Nations has went to great lengths to ensure that peace is placed above all other things. The ongoing challenge will be to successfully integrate the technology and the possibilities it affords into a cohesive legal framework which will allow us to confidently embark on this epic journey.