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Creating the Final Frontier

November 21, 2018

CREATING THE FINAL FRONTIER: NAVIGATING PROPERTY RIGHTS AMONG THE STARS

By: Karthik Raman, Volume 103 Staff Member

Introduction

It has been more than fifty years since the beginning of the Space Race. The Soviet Union was fresh from victoriously launching the first person into space, and President John F. Kennedy famously declared that America would make it to the moon within ten years. The Space Race, fought between the only two entities in the world that had the resources to send people to space, was a major front in the height of the Cold War. Out of this competition, however, also grew a culture of international cooperation, and a unique opportunity for nations to join together for the betterment of the world.

More than half a century later, though, the discussion regarding the governance of space is on the cusp of major change.[1] Private entities are amassing enough wealth to create space-worthy crafts of their own.[2] The once far-off notions of extraterrestrial resource extraction and space tourism are now potentially viable within the next decade. There is even serious talk of sending colonists to Mars.[3]

Given these newfound resources and scientific developments, space is no longer solely the province of governments. As such, the laws that govern space are ripe for change.

II. The Current Legal Landscape Governing Extraterrestrial Space

Currently, space is mostly governed by international law.[4] There are five international agreements that nations must adhere to: the Outer Space Treaty,[5] the Liability Convention,[6] the Moon Agreement,[7] the Rescue Agreement,[8] and the Registration Convention.[9] In 2015, though, President Barack Obama signed the U.S. Commercial Space Launch Competitiveness Act (“CSLCA”) into law.[10] This domestic law has engendered much discussion on potential tensions between private rights and traditional extraterrestrial governance.

A. International Law: The Outer Space Treaty, The Moon Agreement, The Rescue Agreement, Liability Agreement, Registration Convention

Current space law is governed primarily by international treaties. The Outer Space Treaty is the foundational document for extraterrestrial governance.[11] Primarily drafted with the U.S. and the Soviet Union in mind, the document stressed the idea that space should be de-militarized, and that endeavors in space should be undertaken to benefit all of humankind, as opposed to one specific country.[12] After the establishment of the Outer Space Treaty, most of the other treaties were drafted by the same signatories to help with the governance of space.[13]

The Moon Agreement, however, can be distinguished from the other treaties. It defers to the Outer Space Treaty, but it introduces provisions regarding environmental protections and non-appropriation, among others.[14] The most important addition for this discussion is the non-appropriation clause, which states that the moon and its resources “shall [not] become property of any State, . . . national organization or non-governmental entity or of any natural person.”[15] While the agreement clearly had states and governments in mind, it is interesting that it included “nongovernmental entities” in its language, so many years before anyone seriously contemplated the idea of private space travel. The treaty does not spell out any special rights or responsibilities for non-governmental entities, but the fact that they were included suggests that the authors of the treaty may have envisioned that private entities would have to adhere to the treaty in the same manner as governments.

Scholars debate how influential the Moon Agreement is, so it is unclear how much stock one should put into its statements.[16] The most controversial of the international treaties, it was only signed by a few of the signatories of the Outer Space Treaty.[17] There is continued controversy as to whether the treaty applies to all nations, or just the original signatories.[18]

B. The U.S. Commercial Space Launch Competitiveness Act

Despite the fact that space is primarily governed by international treaties, there are also domestic policies in the U.S. that mandate how the country will approach space domestically.[19] The biggest recent development was when President Obama enacted CSLCA into law.[20] The CSLCA provided government protections to private entities interested in commercial ventures in space.[21] While maintaining that neither governments nor private entities could own asteroids, for example, the law states that resources harvested from those asteroids have property rights attached to them.[22]

This law signals a shift in how the U.S. has approached ventures into space. First, it acknowledges that governments are no longer the only ones with resources to make ventures into space. Second (and more importantly), the act protects commercial interests in an area that until recently had been considered off-limits for any purpose other than scientific exploration.

The CSLCA has engendered a number of concerns among those that analyze the trends of space law. Many foresee tension between private mining interests and the traditional goals of space travel.[23] Whereas the Outer Space Treaty focused on goals of peace and the betterment of all of humankind,[24] privatized extraterrestrial property rights would have commercial and business focuses. Other jurisdictional issues also come to light. Would businesses have the same obligations as states in relation to the Rescue Agreement or the Registration Convention? Would the U.S. have to assume the liability for these companies? With the exception of vague language that declares that entities must act consistently with the U.S.’s international and domestic legal obligations, there is no guidance on how to settle this question.[25]

III. Potential Consequences of CSLCA

Unsurprisingly, different scholars have different views about where space governance goes from here. Some believe that the CSLCA essentially nullified the U.S.’s obligations under the Outer Space Treaty.[26] Others use the premise of the act to pose the argument that the current treaties are archaic, and need to be redrafted for current times.[27]

A. Ambiguities in How Current Treaties Would Apply

Whether the CSLCA represents a departure from traditional space law is currently uncertain. The act contains language that states that all provisions are subject to the U.S.’s legal obligations, including its international obligations.[28]However, it is unclear how this provision would be implemented. For instance, does the Rescue Agreement apply to private entities? The signatories of the treaty were nations, and the agreement was to essentially return stranded astronauts to their nations of origin. Assumedly, if a U.S. citizen was rescued, they would be returned to the U.S. per the agreement. However, what if a private company was in a position to save a native of another territory? Would they have the same obligation that the U.S. would? Or, since the company was not a signatory of the agreement, would this mean that they could ignore the plight of the astronaut?

Similarly, the Liability Agreement was drafted and signed by states, and maintains that states establish national registries and report to the U.N. central registry the objects that they launch into space.[29] Clearly, when reading the treaty, there was no thought as to the applicability to private entities. Would a U.S. citizen’s object count as something that the U.S. sent to space?[30] Or would companies have to keep registries in the same manner that states do?

B. Is the CSLCA in Line With the Goals of the Outer Space Treaty?

An argument could also be made both ways with regard to whether commercialization would serve the Outer Space Treaty’s goal of maintaining peace and advancing the interests of humankind.[31] On one hand, the privatization of space could have positive effects in the realm of scientific research and technological innovation. CSLCA contains provisions that encourage private collaboration on research initiatives.[32] Indeed, it is believed by some that agencies such as NASA do not have the ability to keep a monopoly on all matters related to space.[33] Encouraging private commercial enterprises in space could help with scientific research that helps us with the conventional goals of space exploration.[34]Companies also cannot wage war in international territory, so the presence of commercial enterprises would not endanger the idea that space endeavors are supposed to maintain peace.

On the other hand, companies’ main incentive to reach outer space would be to make a profit, and not necessarily to spur scientific discovery. While miners are not allowed to own asteroids, one can imagine scenarios where companies would attempt to manipulate the rules to ensure that they obtain all the resources they could, while preventing others from doing the same. Commercial enterprises also, by definition, foster more competition than cooperation.

CONCLUSION

The CSLCA was only passed three years ago, so it is still unclear how this act will affect the governance of space. It is clear, though, that with private entities amassing more wealth and better technology, current space law will need to be updated to address extraterrestrial private rights. While the CSLCA provides an interesting attempt on introducing private property rights while conforming to current international laws, it does not provide enough guidance to ensure that it is possible to utilize the act and remain compliant with international treaties. Either the treaties will need to be updated, or the CSLCA will need to be amended to provide that further guidance to private companies.

  1. Kyle Jacobsen, From Interstate to Interstellar Commerce: Incorporating the Private Sector into Aerospace Law, 87 Temp. L. Rev. 159 (2014).
  2. Id.
  3. See, e.g., Thomas E. Simmons, Deploying the Common Law to Quai-Marxist Property on Mars, 51 Gonz. L. Rev. 25 (2015) (discussing the implications of different property systems in the context of Martian settlements). ↑
  4. Thomas R. Irwin, Space Rocks: A Proposal to Govern the Development of Outer Space and Its Resources, 76 Ohio State L. J. 217, 221 (2015).
  5. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].
  6. Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereinafter Liability Convention].
  7. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 5, 1979, 1363 U.N.T.S. 3 [hereinafter Moon Agreement].
  8. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119 [hereinafter Rescue Agreement].
  9. Convention on Registration of Objects Launched into Outer Space, opened for signature Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 [hereinafter Registration Convention].
  10. U.S. Commercial Space Launch Competitiveness Act, PL 114-90, 129 Stat 704 (2015) [hereinafter CSLCA]. ↑
  11. Irwin, supra note 4, at 222. The biggest legacy of the Outer Space Treaty established that space would be governed in the same manner as international waters.
  12. Id.
  13. Id. The Liability Agreement established that the state launching the extraterrestrial endeavor would be wholly liable for all damage relating to that endeavor. Liability Agreement, supra note 6. The Rescue Agreement bound the signatories to rescue stranded astronauts and to return them safely to the country of their origin. Rescue Agreement, supra note 8. The Registration Convention established an international registry of objects launched into outer space by nations, to be maintained by the Secretary General of the United Nations. Registration Convention, supra note 9.
  14. Id.
  15. Moon Agreement, supra note 7.
  16. Irwin, supra note 1.
  17. Id. The U.S. was not a signatory of the agreement.
  18. Id.
  19. Eric C. Bennett, To Infinity And Beyond: The Future Legal Regime Governing Near-Earth Asteroid Mining, 48 Tex. Envtl. L. J. 81 (2018). NASA, as an administrative agency, has administrative regulations, such as NEPA, to govern its conduct.
  20. Id.
  21. U.S. Commercial Space Launch Competitiveness Act, PL 114-90, 129 Stat 704 (2015).
  22. Id.
  23. See, e.g. Bennett, supra note 19 (discussing the current legal regime with regard to environmental protections, and stating that different regulations will be necessary for the future of space development); Simmons, supra note 3 (discussing the need to establish property rights to facilitate the colonization of Mars); Michael Viets, Piracy in an Ocean of Stars: Proposing a Term to Identify the Practice of Unauthorized Control of Nations’ Space Objects, 54 Stan. J. Int’l. L. 159 (2018) (discussing the need to create the term “space piracy” into international space law, and arguing that the current regime is inadequate to address theft in space in light of the changing scope of space travel).
  24. Outer Space Treaty, supra note 5 (“Recognizing the common interest of all mankind in furthering the exploration and use of outer space for peaceful purposes”).
  25. See CSLCA, supra note 10, at 708 (vaguely stating that actions under the provision must “meet United States obligations under international treaties”).
  26. Amanda M. Leon, Mining for Meaning: An Examination of the Legality of Property Rights in Space Resources, 104 Va. L. Rev. 497, 510 (2018).
  27. See Irwin, supra note 4, at 221.
  28. See CSLCA, supra note 10, at 708.
  29. Liability Convention, supra note 6.
  30. The U.S. government would likely be opposed to this reading, given that the nation who registers the object is considered wholly liable for the object that is sent into space. Id. Essentially, this reading would allow companies to pass on their liability to the U.S. government.
  31. Irwin, supra note 4.
  32. CSLCA, supra note 10, at 715.
  33. See, e.g., Greg Klerkx, Lost in Space: The Fall of NASA and the Dream of a New Space Age (Vintage Books ed. 2005) (describing NASA as a politically-driven, cluttered bureaucracy and envisioning a need for commercial space ventures to push forward innovation in space).
  34. Some people think that it could be environmentally beneficial to outsource mining to outer space. See Bennett, supra note 19. However, certain analysts believe that the environment would still be harmed even if the mining occurs off-world. Id. at 93-95.
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