To Make A New Legal Framework in Space, We Have to Planet

To Make A New Legal Framework in Space, We Have to Planet

. 6 min read

In 2014, the National Aeronautics and Space Administration (NASA) announced plans to launch a spacecraft that would capture, relocate, and return samples from an asteroid. The mission raises enormous—even cosmic—legal questions. Who gets to claim extraterrestrial property? Who owns the terrain? Who gets to decide the answers to these questions? Although it was ultimately canceled due to cost, NASA’s asteroid relocation mission highlights the nebulous nature of legality in the final frontier. As humanity designs an equitable legal framework for our exploration of the cosmos, we must consider the history, interpretation, contemporary technological landscape, and future of space law.

Photo by Greg Rakozy / Unsplash

The Province of All Mankind

After the launch of Sputnik in 1957, the United Nations moved to establish the governing principles of international law in space. The end result was 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,” commonly referred to as the Outer Space Treaty (OST). The treaty has served as the basis for all legal considerations of space for 50 years, but it is far from a comprehensive document. A mere 2,200 words, the OST is more set of principles than technical manual. (The massive United Nations Convention on the Law of the Sea, on the other hand, outlines every aspect of international maritime law.) Chief among OST principles is the idea that exploration and use of outer space should be conducted for the benefit of all nations, as outer space is “the province of all mankind.” The OST also declares space free for exploration and use by all, but prohibits claims of sovereignty over any celestial body or the use of nuclear weapons in space.

By remaining flexible by design, the treaty has thus far successfully kept space a peaceful place open to all nations and not subject to Age of Exploration-style territory grabs. Its openness to interpretation proves difficult, though, when considering whether or not nations or companies can retain and profit from resources extracted from space. Henry Hertzfeld, a professor of space policy at George Washington University, calls the issue an “international open argument.”

Photo by Hamish Weir / Unsplash

Creative Interpretations

It was not always this way. In the absence of technology to actually extract or benefit from resources in outer space, individuals have issued meaningless—and therefore harmless—claims of property ownership in space for decades.

In the 1700s, King Frederick the Great of Prussia bequeathed ownership of the moon to a healer as a reward for the miraculous cures he offered. Martin Jurgen, a descendant of that healer, attempted to formally claim ownership of the entire moon over two hundred years later; scholars at the Institute of Air and Space Law formally denied the legitimacy of Jurgen’s attempt.

In 1948, Chicago native James Thomas Mangan claimed all of space as its own country, called Celestia, with him its “First Representative.” He filed a formal charter with his county’s recorder of deeds, which the state attorney general actually recognized in a 2,000-word opinion. Mangan applied for recognition by the United Nations, even flying the flag of Celestia in front of the UN headquarters in 1958 to a television audience of millions, but was ignored until his death in 1970.

And in 1996, NASA launched a space probe to observe an asteroid called 433 Eros. Taking advantage of the fact that the OST prohibits property claims by nation-states and not individuals, self-described “space activist” Greg Nemitz attempted to personally claim ownership of the asteroid. He issued NASA an invoice for a US$20 parking ticket on his property, which resulted in a federal lawsuit that was dismissed by a judge for “a lack of cognizable legal theory.”

While these examples are comical, they serve to illustrate the lack of an exhaustive legal framework to settle disputes and litigate property claims in space. New technologies mean that questions of rights and ownership matter more than ever before.

Technology Outpacing Law

Unfortunately, as legal challenges mount, space exploration is increasingly falling outside the purview of national governments who can set sensible standards. Public agencies like NASA are ceding responsibility to billionaire-funded private companies like SpaceX and Blue Origin. Over time, these companies are taking more and more responsibility for satellite launches, exploration, and space tourism. That said, these large companies do not pose a significant legal challenge to the OST: they still work for the government and are bound to comply with its free-use, anti-sovereignty, and anti-militarization guidelines.

The same cannot be said of other private endeavors. US Senator Ted Cruz has predicted that “the first trillionaire will be made in space,” with good reason. In recent years, several companies––including one called Planetary Resources that is funded by Google co-founder Larry Page––have set a goal of mining asteroids. The idea is not as far-fetched as it sounds. The potential value of mining for minerals that are rare on Earth but abundant in asteroids, like platinum, is more than enough to justify costs. Additionally, asteroids containing hydrogen and oxygen could become valuable sources of water and fuel for deep space exploration. And even beyond asteroids, private companies are pushing for robotic landers to mine the moon or establish extractive lunar bases.

These companies exist in a gray area of the OST, which does not contain explicit provisions for private companies or restrictions on resource extraction. Instead, it simply prohibits claims of national sovereignty over territory. International space law may need to evolve so that technology does not outpace it.

SpaceX Falcon 9 Rocket
Photo by SpaceX / Unsplash

What Should We Do?

The United States has unilaterally interpreted that the OST allows companies or nations to do what they wish with the resources they extract from space, so long as operations are peaceful and no territory is explicitly claimed. This idea is codified in the 2015 Commercial Space Launch Competitiveness Act, which allows companies to do whatever they want with materials they extract from a celestial body. Luxembourg passed a similar law to offer European space resource-extraction firms legal certainty. But several nations, including Russia, take issue with these laws; they argue that resources themselves are celestial bodies and are therefore subject to OST prohibitions.

As it stands, no entity exists to provide recourse in these disputes. While disagreements remain theoretical for now, what would happen if two rival companies, one American and one Russian, target the same asteroid for resource extraction or exploration? International maritime law provides a potential solution. The International Tribunal on the Law of the Sea (ITLOS), part of the previously mentioned body of UN law, provides a forum for nations to take up disputes with one another, in some cases offering opinions on the legitimacy of a country’s claims to the continental shelf.

The nearest equivalent for space law is the Permanent Court of Arbitration (PCA). The PCA is an international court with no relationship to the UN that represents a forum for a broad range of international disputes. With regards to space, it currently provides guidelines for issues between states over satellite communications. However, the PCA is better equipped to handle specific disputes than interpret an entire branch of international law. In a future of widespread private and public resource extraction and exploration of outer space, the UN may need to set up a body comparable to ITLOS to ensure consistent interpretation of the OST.

Additionally, some critics have argued that the OST is now too dated to resolve any outstanding questions of space travel. Many point to the fact that the treaty was written at a time when the only two entities that could reach space were the United States and Soviet Union; now, dozens of countries and companies routinely operate in space. Humanity, these critics argue, needs a new comprehensive treaty to address modern concerns.

However, this approach misses the point of the OST. The treaty was never intended to be an exhaustive framework. Subsequent treaties have dealt with specific concerns, from the liability of damage caused by spacecraft to the rescue of astronauts to the registration of space objects. Space officials, astronauts, and lawyers strongly oppose renegotiating the OST and favor a more targeted approach to new concerns as they arise. For example, the question of whether resources are classified as celestial bodies or not will likely require a new agreement. Matt Schaefer, a law professor at the University of Nebraska, has stated that “to try to make rules in advance [is] pretty impractical.” Instead, a dynamic approach resting on the principles of the OST could be more effective as a means to keep pace with evolving technology and solve issues as they arise. The “province of all mankind” ought to be protected from militarization or nationalization; but that is only possible if humanity comes to terms with an evolving technological and legal landscape.