Commercialization, law and governance in outer space

The launch of the satellite Sputnik in 1957 ignited a race between the world’s two great rival powers. The United States and the former Soviet Union, USSR each poured vast amounts of resources into the research and development of technologies for the exploration of outer space. Sputnik and the impressive achievements that followed throughout the space race, raised complicated questions about law and governance in the final frontier.

Today, the proliferation and success of private enterprises in the space industry has led to a fresh contest for the cosmos, what MSNBC contributor John Roach and many others have described as “the race to commercialize space.” Companies like SpaceX, Boeing and Orbital Sciences have won billions of dollars in government contracts to build space transport systems to replace the retired shuttle program. Meanwhile, Richard Branson’s Virgin Galactic is set to begin ferrying space tourists into suborbital flight by 2015.

Still, questions about the law and governance in space raised during the Cold War remain largely unanswered. There are technical questions in the balance, such as who will be held responsible when space debris destroys a satellite and where does airspace end and outer space begin.

Then there are the broader questions about ownership and property, such as whether individuals, companies, or governments can claim pieces of space or celestial bodies for themselves. In short, the question asked by many over the decades is, “Who owns outer space?” Wherever billions of dollars are invested, problems of law will inevitably emerge. Whatever the current state of international law for space, the only sure bet is that legal disputes are coming.

The Cold War and the province of all mankind

Before Sputnik, a few international law scholars had proposed earthly analogies for a legal framework for space. Perhaps space could be governed like national airspace and parceled out into sovereign areas. Maybe the best legal analogy for space was the deep sea.

However, the Soviet Union’s first satellite shifted this discussion from a theoretical debate into one mired in the politics of the Cold War. The United Nations acted as the forum for these early talks about governing space, and the result was a statement of principles commonly known as the 1967 Outer Space Treaty.

While the treaty established space as “free for exploration and use by all States,” it banned the placement of nuclear armament in space. The Outer Space Treaty also described space as the “province of all mankind,” though it failed to flesh out that definition. Most importantly, the treaty, to which the U.S. and Russia are parties, expressly prohibited the national appropriation of space or celestial bodies such as the moon.

A series of complementary treaties were adopted in the years after 1967 that helped build the principles stated in the Outer Space Treaty into a body of international laws. The last of these, known as the 1979 Moon Treaty, sought to establish a regulatory framework for the exploitation of resources in space and on bodies like the moon and near earth asteroids.

Equitable distribution vs. increased exploration

By the late 1970’s, a new group of nations had emerged from the ashes of old empires. Countries in Asia and Africa now joined the international community, and together demanded the Moon Treaty sharpen the empty words “province of all mankind” to create a clear regulatory regimen for the equitable distribution of space’s wealth and resources.

As a result, the Moon Treaty described the cosmos as the “common heritage of mankind,” a doctrine that the world’s space capable countries were unwilling to support. Because of this language, powerful space fairing countries like the U.S. and the Former Soviet Union opposed the treaty, and it failed the ratification process and ended the U.N.’s attempts to regulate outer space.

The Moon Treaty’s failure shifted the development of international space law from the negotiating rooms of the U.N. to the national policies of the most powerful nations. Today, as the commercial space race quickens, the debates about legal regimes for the cosmos are reemerging. The new question is how existing international laws might influence the exploration of space itself.

Space exploration requires heavy investment. For example, the contracts that NASA awarded to SpaceX and Orbital Sciences to provide transportation to resupply the International Space Station are valued at a combined $3.5 billion. For commercial ventures to flourish, they would need to be confident that the returns from their sizeable investments were legally theirs. Legal concepts of communal ownership like “the province of all mankind” question whether or not companies like SpaceX and Orbital Sciences can profit from space exploration.

The future of international space law

International law for outer space remains in limbo. While the U.N. treaties established the basis for governance in space, they have not established an enforceable body of law especially in the wake of the failure of the 1979 Moon Treaty. Meanwhile, private enterprises specializing in space technology have made impressive developments.

SpaceX, founded by Elon Musk (the entrepreneur behind PayPal and Tesla Motors) has successfully delivered payloads to the International Space Station, providing a viable replacement for the retired shuttle and the Russian Souyz capsule. But Musk’s company, which has won a 1.6 billion dollar contract from NASA, has a bigger plan.

“The key thing for me,” Musk stated in an interview with The Guardian, “is to transport large numbers of people and cargo to Mars. That’s the ultimate awesome thing.”

Other ventures hope to capture and mine asteroids in the not too distant future. Perhaps the best known of these startups is Planetary Resources, which has received funding from filmmaker James Cameron as well as Google’s Larry Paige and Eric Schmidt.

But according to Joanne Wheeler, who serves as the UK’s adviser to the U.N. Committee on the Peaceful Uses of Outer Space, it will not be possible “for Planetary Resources to say it owns all of an asteroid even if they are the first ones there.” Moreover, Wheeler admits that “Planetary Resources are in a rather grey zone;” there is “no legal certainty over whether they can [mine asteroids] or not.”

While the technology to send people to Mars or to capture and mine an asteroid continues to develop, ventures like SpaceX and Planetary Resources have already made the initial attempts to commercialize the cosmos. Every milestone they achieve will further expose the old, unanswered questions about law and governance in outer space.

By: Steven Robles

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