Who owns space?

By Doug Beazley Winter 2016

A new global commons is open for business. But the law is unclear.

Who owns space?

 

When Canadian-American tech mogul Elon Musk stood before an International Astronautical Congress audience in Mexico in September to roll out a wildly ambitious plan to start ferrying human settlers to Mars over the next decade or so, online comment boards instantly lit up with armchair engineers arguing over whether the plan could actually work.

The tiny international community of specialists in space law, on the other hand, zeroed in on a different question – whether what Musk was planning would be legal.

Sounds academic, right? It’s not – not any more. Fifty years after the United Nations General Assembly adopted the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space – better known as the ‘Outer Space Treaty’ – private enterprise has started pushing forward into the vacuum left by the slow collapse of government-sponsored manned space exploration following the end of the Cold War. Musk’s grand vision notwithstanding, private enterprise’s interest in space is commercial, not scientific: There are vast sums of money to be made up there – from mining, power generation and tourism, for starters – and no shortage of entrepreneurs looking to plant their flag in extraterrestrial soil.

The only thing holding them back (apart from money, the limits of current technology … and gravity) is the law.

“You’re looking at the development of something new – an orbital economy,” says Indra Hornsby, former chair of the Canadian Bar Association’s air and space law panel, currently chair of the Commercial Spaceflight Federation’s SmallSat/NewSpace Sector Committee. She’s also general counsel for Spaceflight Industries, a Seattle-based company that sells mission management and access to launch services to private and public sector actors looking to get a payload into space.

“The UN treaty was a great foundation, but it was conceived at a time when nobody imagined this work being done by anyone but government actors. Nobody saw private enterprise coming. Now the technology has advanced to the point where you’re seeing credible plans coming forward and capital following them. Now we have to build a legal structure to accommodate them.”

Space law was born the day the space race itself began, with the launch of Sputnik in 1957. Before then, the few people who had given any thought to the legal status of outer space assumed it would amount to an extension of the laws governing sovereign airspace. But since U.S. President Dwight Eisenhower knew the United States would be the next nation in orbit, he wasn’t interested in setting an awkward precedent by accusing the Russians of violating American airspace. Space law emerged from geopolitical calculation.

“The interesting thing about space law,” says Patrick H. Floyd, in-house counsel for the Coulson Group aviation firm on Vancouver Island, “is how little of it is based on litigation. It’s usually either treaty-based or contract-based.”

Space law’s Cold War character became more firmly entrenched when the Outer Space Treaty came into force in 1967.
The OST is the foundational document of space law, a delicate compromise negotiated between nations at a time when two nuclear superpowers were competing fiercely for prestige, security and scientific supremacy in outer space.

The OST is an intentionally broad document that focuses on limiting the space ambitions of sovereign nations – not private companies. Its primary aim was to prevent the Cold War, with its proxy colonial conflicts and doctrine of Mutual Assured Destruction, from spilling into the final frontier.

The race for space

The OST’s bedrock principle is that space and celestial bodies (planets, moons, asteroids, comets) don’t – and can’t – belong to any nation. Article 1 of the OST states: “The exploration of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries … and shall be the province of all mankind.” Article 2 doubles down on the anti-colonial-exploitation theme with these words: “… outer space, including the moon and other celestial objects, is not subject to national appropriation by claim of sovereignty, by means or use of occupation, or by any other means.” The OST expressly forbids the placement of weapons of mass destruction in outer space or on any celestial body. Astronauts, according to article 5, are to be regarded by nations as “envoys of mankind.”

The second plank of space law is the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. Better known as the “Moon Treaty,” this document deals with state activities on the moon’s surface and shares with the OST a focus on preventing nations from claiming all or part of the moon as sovereign territory. “The moon and its natural resources,” it reads, “are the common heritage of mankind … not subject to national appropriation.”

As treaties go, the Moon Treaty wasn’t politically successful. Only 16 states ratified it and, as of the beginning of 2015, only four had signed it; the major space powers – the U.S., Russia and China – were not among them.

A handful of more specific treaties round out the space law canon: agreements on the return of astronauts and spacecraft to their home countries, an accord to resolve questions of financial liability in the event of a piece of space hardware crashing into something valuable, a convention requiring that states submit lists of objects launched into space to the UN. But it’s the OST and, to a lesser extent, the Moon Treaty that established what many experts see as the overarching ethic of space law: Once you get to zero-G, capitalism no longer works in the conventional way.

In other words, if Elon Musk should go to Mars, picking up a couple of Mars rocks along the way to sell on the collector’s market back on Earth, he probably would be breaking international law.

“Or rather, the state that allows (him) to do it, that gives (him) permission – it’s violating international law,” says Ram Jakhu, director of McGill University’s Institute of Air and Space Law and one of the world’s top experts in the field. Jakhu comes from the traditionalist school; he believes the OST established that private enterprise cannot have a free hand in outer space. Space is a commons, in other words – and “province of all mankind” means what it seems to mean.

“There are two lines of opinion here,” he says. “The first holds that (private capital) is simply the way the world has always worked, the way new technologies are developed and exploited.

“The other viewpoint – my viewpoint – is that there is no reason to repeat the mistakes of the past, the destruction sown by the colonial experience. We don’t have to approach space as if this were still the 15th century.”

Capitalism’s final frontier

In the five decades since the OST’s passage, however, the context has changed radically. The Reagan administration arguably kicked off the era of private sector spaceflight with the passage of the Commercial Space Launch Act of 1984, which delegated the United States’ responsibility under the OST to oversee and license private spaceflight to the Department of Transportation. President George W. Bush brought in the U.S. Commercial Space Launch Amendments Act in 2004, setting up a regulatory framework for manned commercial spaceflight and providing a legal climate in which the notional space tourism industry could grow.

But even as the Moon Treaty itself was being drafted, the U.S. and Russia were winding down their ambitions for manned space exploration – refocusing their efforts on low-earth orbital operations such as the construction of the International Space Station (ISS) – and the private sector satellite business was ramping up. That business took in revenues of about US $203-billion in 2014 alone and now provides communications services that support almost every aspect of the global economy.

Meanwhile, technological advances have upended the cost-benefit calculations that once made manned spaceflight a game that only superpowers could afford. Musk’s company, SpaceX, became the first private firm to see one of its spacecraft dock with the International Space Station in 2012; the company won a $1.6-billion NASA contract in 2008 to conduct cargo runs to the ISS. Amazon founder Jeff Bezos’ company Blue Origin achieved a key step in the development of fully reusable spacecraft late last year when its New Shepard rocket nailed a vertical landing after a successful suborbital flight. SpaceX reclaimed its bragging rights just weeks later when it sent a Falcon 9 rocket into full orbit – delivering a payload of 11 private-sector satellites along the way – before safely landing the rocket’s first stage at Cape Canaveral.

All of these private sector efforts share one goal: getting the cost of reaching orbit down to something affordable enough to open space to commercial exploitation.

And the rewards available to the first capitalists to establish a foothold in commercial space are – potentially – astounding. Industry experts have projected big numbers for private space operations by 2050: US$1-5-billion per year from space tourism (suborbital flights and, eventually, orbital trips to zero-G space hotels), $100-billion from solar satellites beaming clean power down to earth, $10-billion from orbital labs building next-generation computer chips and biotech, $354-billion from mining the moon and $10-billion from mining the asteroid belt.

Right now, you’d be forgiven for calling those numbers pie-in-the-sky; after all, we only recently started building rockets that can land. But the figures attached to lunar and asteroid mining point to how an orbital economy could accelerate exponentially, once it gets started.

Take the moon. It’s an orbiting trove of mineral and chemical deposits left over from the formation of the solar system: iron ore, rare earths, precious metals, the helium-3 that might one day power fusion reactors to produce nuclear energy without radioactive waste, and – most important of all – water ice. Run a current through liquid water and you split it into hydrogen and oxygen – hydrogen for rocket fuel, oxygen to make the fuel burn and to keep astronauts alive.

Right now, spaceflight is expensive because of what it costs just to get there. An Atlas V rocket burns through about US$27,063 just pushing a single kilogram
of payload into orbit. If a spacecraft could refuel after reaching space, from materials culled from the moon or asteroids, it would dramatically cut the cost of staying up there longer. If orbital construction projects could build the “dumb” parts of structures – those not requiring sophisticated electronics – out of metals mined off-earth, they could begin building bigger, for less. Space operations could push out farther, to where asteroids containing vast deposits of rare metals slowly orbit the sun. One space mining startup predicted in 2012 that a 30-metre-long asteroid could yield anywhere from $25-billion to $50-billion in platinum. (That’s at current prices, of course – dumping that much platinum on the market would depress the price.)

All of which is increasing pressure on governments to allow private space firms to slip the surly bonds of international law and fly free – or at least to make sure they’re not the last ones in line.

“The OST is outdated,” says Michael Listner, a member of the New Hampshire bar and principal at Space Law and Policy Solutions, which provides guidance on space law and policy issues to space startups. “But it’s like a teddy bear – some people just don’t want to let go of it.

“I don’t think the industry is going to see the trillions of dollars in investment it’s going to need unless investors know in advance they can own the resources. As the technology becomes more practical, more economical, the laws are going to have to change. Otherwise, we’re going to get to a point where actors simply disregard space law.”

Some argue we’re already past that point. In November 2015, the administration of U.S. President Barack Obama passed The Spurring Private Aerospace Competitiveness and Entrepreneurship Act, better known as the Space Act. The law explicitly gives U.S. citizens permission “to engage in the commercial exploration and exploitation of 'space resources'” (the Act excludes anything living from the definition of space resources – more on that later). The Act states – in what amounts to an attempt by Washington to fly through a loophole in the OST – that “the United States does not (by this Act) assert sovereignty, or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.”

The OST notwithstanding, space law doesn’t entirely eradicate the concepts of ownership and sovereignty from space. Anything launched into space is considered the property of the nation or private actor who launched it. The ISS is the world in miniature, its governing multilateral agreement giving the nations owning its individual modules a degree of sovereignty over them. But there’s a vast difference – legally and politically – between tools and territory … even if the territory in question is just a mile-wide hunk of rock drifting through the void.

“The (Space Act),” wrote University of Kent senior lecturer in international commercial law Gbenga Oduntan, “is nothing but a classic rendition of the ‘he who dares wins’ philosophy of the Wild West.

“The very first provision of the (OST), to which the U.S. is a signatory, is that such exploration and use (of celestial resources) shall be carried out for the benefit and in the interests of all countries. This, therefore, prevents the sale of space-based minerals for profit.”

Both Oduntan and Jakhu point to the risk of a business-friendly property regime in outer space leading to wholesale destruction of a key part of the OST’s concept of space as the “province of all mankind”: knowledge. We’re only now starting to learn something about the origins of planets and life itself through studying some of the oldest objects in the solar system. The discovery of water on Mars and more distant bodies holds out the tantalizing prospect of someday finding extraterrestrial life in our own backyard –
a prospect that could be lost forever to some reckless space mining operation or careless act of cross-contamination.

“We have rules for decontaminating space probes before and after sending them out, so we understand that there’s at least a possibility we could be encountering some form of life out there,” says Jakhu. “We have no way of knowing what we could be destroying.”

Regulating a global commons

Still, the absence of property law in space is no guarantee against the kind of predatory exploitation Jakhu and others dread, as any quick reading of North American history will tell you. Could commercial exploitation of space be reconciled with space law’s ethic of res communis (community property) over res nullis (first-come-first-served)? The consensus among academics seems to be “yes” – assuming you’re willing to accept a far more limited definition of “property” than the one that prevails on Earth.

In a paper published by the Wisconsin International Law Journal in 2011, environmental lawyer Davin Widgerow argued that an extraterrestrial property law system based on American common law property principles could open outer space to the kind of rapid commercial and technological development the private sector can offer, while still respecting the OST’s concept of a shared commons.

Since fee simple absolute ownership – complete ownership “until the end of time” – is out of the question, he writes, a body empowered by the UN to represent humanity’s ownership interest in space could grant lower levels of property interest to private firms for exploitation.
A fee simple defeasible model would allow such a body to grant a proprietary interest in, say, a section of the moon’s surface – one that would revert back to the owner (in this case, the human race, represented by the UN body) once a certain condition was met, or once a certain time period had elapsed. Space property also could be leased to a private company for use – granting the company possession for the duration of the lease – or merely licensed for use, which would give the company the right to use the resources without actually possessing anything under the law.

A paper by Jijo George Cherian and Job Abraham of the National University of Advanced Legal Studies in Kerala, India, proposes two more principles they say a space property system would have to observe to respect the OST:

First, the right to exploit a space resource should be based both on first possession and use; no squatting allowed. In other words, if company X reached an asteroid before company Y, but Y managed to set up a mining operation before X did, then Y’s claim to the asteroid would prevail.

Second, property rights in space shouldn’t accrue by reason of possession. If company Y ceased to possess the asset, or stopped exploiting it for some reason, it would lose its claim. And because property rights couldn’t accrue in space, they couldn’t be sold, either. So don’t expect to see RE/MAX set up on Mars in the foreseeable future.

Jakhu argues that such proposals still go too far in stretching the OST’s concept of common space – and that the private sector can make money in outer space without owning or renting anything.

“You could set up a regime where the work of exploitation is outsourced by an international body to private companies,
as independent contractors,” he says. “The companies would be granted profits based on the work they do. Are they interested in leaseholds or in making money?”

What worries Jakhu and other space law academics most is the prospect of a “land rush” in space – a state of lawlessness he sees being opened up by the Space Act and pressure from private firms, one that could lead to dangerous geopolitical confrontations.

“I’d be worried about a chaotic situation in space leading to political turmoil on earth,” he says. Near-earth space is already crowded with fast-moving debris from defunct satellites and past launches, debris that poses a mortal threat to manned spacecraft and the orbital communications network upon which the world’s economy depends. Imagine the fallout, he says, from state actors engaging in anti-satellite operations to secure commercial advantage.

“We’ve seen a number of countries preparing for war in space in recent years, which poses a major risk to space security.”

Floyd, who is also chair of the CBA’s air and space law section, points to the collision between China and international law over its aggressive territorial claims in the South China Sea as a preview of what could happen to the delicate postwar balance in space law. “The U.S., Europe, even Russia – the big boys tend to play well with each other,” he says. “It’s the new players like the Chinese who are trying to elbow their way to a place at the table.

“The truth is that whatever happens next in space law is going to be reactive in nature. There will come a crisis, a threshold moment, and the international community will panic. Then it’ll be dealt with at a political level – through treaties.”

Photography BRANDON HILL

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