Guest contributor Jesse Londin stops by to write about the history of space law. Can you put a flag on the moon? Can you buy real estate on Venus? And what happens when your radioactive satellite falls on Canada?
Where humans go, law follows.
For the first 200 thousand years of modern human life, space was untouchable but irresistible. Imaginative earthlings invented claims and alleged rights to the moon, planets and pretty much every imaginable part of space. To paraphrase Jay-Z, who was gonna stop them?
But inhabitants of our home planet needed actual laws relating to space like fish needed bicycles.
That changed about a half century ago.
Naturally, the major goal of the epic, off-planet exploits of the Cold War was to launch a cool new area of law. Well, not exactly. But in 1957 when the Soviet Union’s beach ball-sized Sputnik 1, the world’s first artificial satellite, signaled down to an awestruck planet, one of the messages we got from the orbiting bird’s beep beep beep’s might just as well have been: make space law!
And we did. As the space race took off, nations gathered at the UN to negotiate international rules to govern activities in space. The space law age was born when more than half the nations of the third rock — including all members of the ever-expanding but still rarified clubhouse of launching powers – signed on to a set of legal do’s and dont’s enshrined in an illustrious document dubbed the Magna Carta or constitution of space: the Outer Space Treaty of 1967.
The treaty made space a global commons, a place where everybody was free to go. It established that “the exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind” and “space and celestial bodies are free for exploration and use by all nations.”
And the treaty came in peace. New-fangled 1950’s satellite technology demonstrated for the first time that the terrifying possibility of nuclear Armageddon from orbit was not sci-fi. While certain legal issues regarding space militarization and aggression remain unsettled, our mild-mannered Outer Space Treaty indeed banned weapons of mass destruction in space and specified that the Moon and other celestial bodies be used exclusively for peaceful purposes.
Under the treaty no part of space may be national territory. Flags on the moon? No worries, although ultraviolet radiation does fade color. But whether planted by American astronauts or sent via robotic missions by Russia, the EU, India and China, national flags decorating the lunar surface are about swagger, not sovereignty. No nation has claimed or may claim the Sea of Tranquility or any other celestial territory.
Three more major UN treaties, along with various declarations, establish important rules and principles in connection with astronauts and spacecraft, including issues of safety, liability, registration and more.
Nations tried for a fourth Outer Space Treaty spinoff – but the Moon Treaty of 1979, which called for the creation of a new international regime, was largely dissed. As black-letter law it remains a bit of a black hole as lawyers and policymakers continue to debate the little-loved lunar treaty’s status and significance.
Space law rocketed on from there. Since the OST makes nations responsible for their domestic space business, around the world countries have opened space agencies and created national space law regimes, some countries faster than others.
While big space players like Japan and France waited until 2008, American space law actually pre-dates the Outer Space Treaty. Almost as quickly as Sputnik zoomed overhead, Congress passed the measure which created NASA and the civil space program in 1958. And you know an area of law is officially hardcore when it gets its own title in the US Code. This happened to space law in 2010 with the enactment of Title 51: National and Commercial Space Programs. Happy graduation, space law!
Individual US states have also jumped into the space lawmaking arena. In order to attract space tourism and commerce, space-savvy states create liability caps and tax breaks for private launch companies. In 2007, Virginia became the first state to pass its own space legislation; Florida, New Mexico and Texas followed. And it helps to boost space if your state is home to a cool spaceport. So far FAA has licensed commercial spaceports in California, Florida, Virginia, Alaska, Oklahoma and New Mexico and expects to green light dozens more.
Sure, the first space explorers were government employees. They left flags and footprints for history, took rocks and regolith for science. But that was so last century. The civil space race has morphed into the 21st century “new space” era, fired up by private space transportation ventures, significantly lower launch and payload costs, and commercial ideas to leverage space into trillion dollar industries. Today, space attracts billionaire investors like Higgs Bosons attract particle physicists.
Highlights of “new space” so far? In 2001, just four decades after cosmonaut Yuri Gagarin rocketed to history as the first human in orbit, Dennis Tito bought a $20 million dollar excursion to orbit as the first self-funded space tourist. In 2004 SpaceShipOne snagged the coveted X Prize for the first private suborbital crewed spaceflight. And while NASA’s retired space shuttles vogue in museums, this spring Elon Musk’s SpaceX changed the space transportation game for good when it fired up its Falcon rocket and launched Dragon, the first commercially developed spacecraft to birth with the International Space Station.
And the space Olympic Games continue. These days Richard Branson’s Virgin Galactic signs up celebrities and space adventure-lovers for suborbital rides. Wannabe vacationauts look forward to rocketing off to space hotels perhaps based on Bigelow Aerospace’s now orbiting inflatable habitats prototypes. And one day you won’t have to be a spectacularly badass rover with a big following on Twitter, like NASA’s Rover Gaga, to cruise around on Mars. While some companies compete in the Google Lunar X Prize $30 million race to the moon, MarsOne hopes to take civilization to the Red Planet and B612 Foundation shoots for the first privately funded deep space mission.
To get to space you typically need a rocket. And to launch one, you’ll need a license or permit from a national space entity. Meet the FAA’s Office of Commercial Space Transportation, the folks on a dual mission to protect safety while promoting commercial space transportation. FAA space regulators continue to work with industry to promulgate regulations for new private launch vehicles. And more rules addressing spaceflight licensing, liability and safety are in the works as space tourism markets grow.
One thing is certain: there’s no shortage of unchartered commercial space law territory. If courts are not gearing up to hear space disputes involving liability, insurance, informed consent, waivers and whatever else comes up, they should be.
So far the most popular off-planet destination is the International Space Station, the cozy, livable craft zipping around in low earth orbit, owned by the US, Russia, Europe, Japan and Canada and visited by a few hundred lucky people from more than a dozen countries. The ISS was made for space science, not private space travel, but Space Adventures has booked flights to the station for seven rich space tourists on Russian Soyuz rockets to the station, including the first female space tourist, Anousheh Ansari. One orbit-happy customer, a former Microsoft exec couldn’t resist a second trip. The ISS is really just a laboratory for space law research. Well it seems that way. The partners agreed on rules based on nations retaining jurisdiction over their own modules. The agreements covers legally problematic things people do everywhere, like invent stuff, cause accidents and commit crimes. But there’s no court in space. Yet.
If far-reaching investors like James Cameron have their way, the next big space thing is mining. Companies like Planetary Resources and Moon Express want to mine asteroids for platinum and other bling, and the moon for celestial booty like helium3. Clearly these startups formed just to illustrate deficiencies in space property law. Well not exactly. But whenever a company announces a plan to claim or use space territory and resources for profit, the question pops up: is that legal?
Space mining and property law begins — and some say ends — with the Outer Space Treaty’s non-appropriation rule. Many private space development enthusiasts and commercial investors see this fundamental principle as a big legal buzzkill. Of course some space business advocates argue for enough leeway in the rule’s interpretation to drive a robotic prospector right through. Individuals and private space ventures have yet to make any space property claims stick, in part because the treaty as understood by most lawyers forbids appropriation of space by companies and individuals as well as nations. But also because no company has touched down, or even planted a radio beacon, on a celestial body. Yet.
If like Gregory Nemitz you think you own an asteroid on which the US has rudely landed a spacecraft, you can try to collect a parking fee from NASA. But expect a federal court to dismiss your case as without legal merit. Oh well.
On the bright side, humans do regularly buy extraterrestrial property. Or they imagine they do. No company ever went broke underestimating the desire of consumers everywhere to spend real money on paper festooned with the obviously official proclamation, “Lunar Deed.” These documents, if properly preserved, may be worth the paper they’re photoshopped on. And with any remaining funds, clever buyers can look for a used bridge on eBay.
Nevermind future markets; space has meant big business all along. This year marked the 50th anniversary of AT&T’s Telstar 1 introducing the world to live TV shows via satellite. Modern life depends on commercial satellites – for communication, entertainment, GPS, weather, remote sensing, information and more. Most everyday space law really involves earthly contracts, agreements, lawsuits and insurance involving satellite business. The International Telecommunications Union assigns spectrum and geostationary orbits. Commercial launch services companies build and launch the rockets that deliver satellites to orbit. Insurance providers cover satellite business risk. And let’s not mention the military’s use of satellites…shhh.
Of course, space accidents happen. Launch mishaps, satellite crashes, deorbiting objects. The treaties hold nations responsible for their own space objects, including their debris. Just hanging out in Earth orbit is dangerous since due to velocity even a speck of paint dust can do damage. One issue is liability – figuring out who owns which pieces of flying or falling space junk. It’s not on YouTube but a French satellite got smashed by debris from what eventually proved to be a French rocket. Oops. Here on the ground no one on has been head-butted by a diving space object, although stuff falls every day. Most falling junk is small, not asteroid-sized, and incinerates in the atmosphere. But not always. Russia paid up after a dispute and lots of cleanup when radioactive pieces from its Cosmos 954 hit Canada. Meanwhile, the world keeps working on the vexing legal, policy and technical challenges of orbiting space junk.
It looks like we’re going to need more space law.
Residents of Earth appear to be the only space traveling inhabitants in the solar system. And law itself is, of course, a local construct we may one day find ourselves explaining to intergalactic neighbors — who hopefully do not resemble evil Sith Lords. For now, if you think you can avoid the burdens life under a legal system by going to space, think again.
Space law ain’t rocket science. But wherever rockets and spaceships take humans, law goes too.