Who Makes the Rules for Outer Space?

At the height of the Cold War, even as they raced to reach the moon, the United States and the Soviet Union sat down to peaceably negotiate a treaty for outer space. The big issues at the time were the stuff of a real-world game of Risk—war and colonization. But there was another sticking point. “The United States said commercial entities are going to be doing stuff in outer space and so we have to allow for that to happen,” says Christopher Johnson, a lawyer who works for the nonprofit Secure World Foundation. “And the Soviets said, ‘No we don’t want any commercial activity happening in outer space. It must be forbidden.’ ”

Eventually, they found a middle ground. Yes, capitalism could extend its reach to the heavens above—but only if a government was directly and absolutely responsible for any damage or misbehavior a private company got up to there.

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A Saturn V rocket launches with its Skylab 1 payload on May 14, 1973, six years after the Outer Space Treaty was signed.

That compromise was enshrined in 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. For brevity’s sake, it’s usually just called the Outer Space Treaty, and it’s the primary body of law determining what can and cannot be done in Earth orbit, space, on the moon, other planets, and on asteroids.

But while the rules of empire are pretty neatly spelled out in the treaty—no nukes, no planting a flag and claiming anything in space as your country’s territory—the rules of commerce aren’t quite as clear-cut. Now, almost 50 years later, with a private space race underway in the United States, lawyers and politicians are starting to really hash out what it means for a government to be responsible for a corporation and what the fair use of space should look like. With President Barack Obama’s signing of the U.S. Commercial Space Law and Competitiveness Act, it’s a discussion that’s likely to grow more heated.

Basics of Space Law

A fundamental tenet of space law—the concept of governments being responsible for the work of non-governmental actors—has few, if any, precedents. There are places on Earth that are governed by laws similar to those that govern space—the sea, for instance. But no country is inherently responsible for whatever its citizens do when they’re out in international waters, says Joanne Gabrynowicz, professor of space law at the University of Mississippi and editor-in-chief of the Journal of Space Law. If that were the case, every pirate would technically be a privateer—their buckles swashed with official state approval.

But you don’t need anything as exotic as the specter of space privateering to see why government responsibility can be a problem. As it currently stands, two private companies operating in space couldn’t even sue each other without the prior approval of their governments, says Michael Listner, an attorney and the principal of Space Law and Policy Solutions, a legal think tank.

Currently, this is an issue that primarily affects the U.S. There are lots of countries with commercial, but not necessarily private, operations in space—Russia, China, Canada, Japan. Commercial entities launch rockets and manage satellites all the time. But in most of those cases, “commercial” basically means “revenue generating,” not “private enterprise,” Gabrynowicz says. Some of the corporations operating in space are government-owned, while others are technically private but operate with levels of government control and government money that would be unfamiliar to Americans, says Fabio Tronchetti, associate professor of law at China’s Harbin Institute of Technology.

Government Minders

The U.S. has the largest and most important private sector operating in space, from launching people and supplies for NASA to more speculative companies dedicated to space tourism and asteroid mining. Many of those companies would prefer there be less government involvement in their business. For instance, Bigelow Aerospace is a company that designs and builds inflatable pods that humans can live in in orbit—one of their pods will be attached to the International Space Station next year—or on a surface like the moon.

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A rendering of Bigelow's BEAM pod attached to the International Space Station

For many years, Bigelow had to treat its products, legally, as though it were dealing in arms, wrangling with export controls meant to prevent guns, bombs, and valuable military secrets from being sold to the wrong people, stolen, or accidentally exposed. Even the most innocuous, non-weaponizable parts of their system fell under these controls. At one point, the company was forced to have two government officials watching two guards who were protecting a coffee-table-shaped kickstand for their pod. When the company had technical interchange meetings with partners in Moscow, it had to pay to bring along government minders. “If you dropped an alien in the room and said ‘point to the free country,’ they would have pointed to the Russians because we had two government monitors monitoring our every word,” says Mike Gold, Bigelow’s director of operations and business growth. “We spent hundreds of thousands of dollars on that. I would joke that KGB would spy on you, but at least they had the courtesy to do it for free.”

That problem was solved by changes to U.S. export control rules in 2013, but cutting back on regulations still remains a popular mantra in the industry. Among several features of the U.S. Commercial Space Law and Competitiveness Act is the extension of a moratorium on regulation for human spaceflight safety requirements. The bill also leaves open a regulatory hole, wherein the Federal Aviation Administration licenses and monitors launches and re-entries, but there is no federal authority in charge of activities that happen in orbit.

NASA Deputy Administrator Tours Bigelow Aerospace
Full-scale mockups of Bigelow's pods

Gabrynowicz thinks this is problematic because the U.S. government also has a risk-sharing regime with these companies where it indemnifies them beyond their insurance coverage. The bill extends that, as well. So, she says, the government is responsible for the companies by authority of international law, the government will pay for any particularly large financial damages incurred by the companies, and the government is reducing or not establishing regulations on those companies. To Gabrynowicz, that looks like a moral hazard.

Privatizing the Space Race

The Outer Space Treaty of 1967 did a good job of keeping the space race between the U.S. and the Soviet Union from devolving into something out of a James Bond movie. But it didn’t do a very good job of planning for future races to claim resources found in space.

Article II of the treaty is just 30 words long. It says, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Today, space lawyers are spending an awful lot of time debating what, exactly, that means.

The debate has been spurred by the handful of companies that have announced an interest in mining asteroids or the moon for minerals and other resources. None of these plans are likely to become reality in the next 20 years. In fact, it’s still debatable whether mining an asteroid is technically feasible or would make financial sense at all. But the companies interested in this business plan—including Planetary Resources and Deep Space Industries—want some kind of assurance that, if they do succeed, they will get to profit off what they dig up. That’s a reasonable request…but it’s assurance that the Outer Space Treaty can’t unequivocally offer.

“There’s a spurious argument that, well, the State can’t appropriate, but I can!” Johnson says. “But that’s easily refuted. Property exists as a relationship between citizen and sovereign. You only get property rights based on the State.” We buy and sell property with the help of legal contracts. Those contracts are only real in so much as a state exists to enforce them. At best, say Johnson, Listner, Gabrynowicz, and Tronchetti, you can say that the Outer Space Treaty neither affirms nor denies the right of a private company to mine an asteroid, keep what it mines, and sell those resources for profit. Lawyers, Listner says, are split pretty evenly on whether that means you can do it or you can’t.

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A rendering of Deep Space Industries' harvester craft towing an asteroid.

Which is where the U.S. Commercial Space Law Competitiveness Act comes in, again. One of the most important things the bill does is say, explicitly, that U.S. companies can own and sell resources they mine. But the new law could become a problem, space lawyers say. Essentially, it’s the U.S. trying to unilaterally settle an open question. “It’s really an ideological and intellectual battle,” Listner says.

Even more troubling, from the perspective of Gabrynowicz and Tronchetti is the fact that the Space Resource and Utilization Act doesn’t set up any system for licensing those mining activities. Given that the Outer Space Treaty obliges countries to maintain control over companies operating in space, that could be seen as the U.S. refusing to follow international law, Gabrynowicz says.

Uncharted Territory

Space lawyers can point out many other potential problems with the U.S. Commercial Space Law and Competitiveness Act, but the repercussions depend on what other countries decide to do. Historically, ever since the Outer Space Treaty was signed, countries have worked out their differences off the books, in bilateral negotiations. That happened in 1978, when a Soviet Kosmos satellite, powered by an onboard nuclear reactor, crashed in western Canada. That country initially billed the Soviet Union more than $6 million to cover the costs of cleanup and containment. Ultimately, the two countries came to an agreement where the Soviets paid half that amount and never formally had to acknowledge liability. “More recently, you had a piece of Chinese debris that crashed into a Russian satellite,” Tronchetti says. “Essentially, they just let that go.”

So what happens if the United States decides companies can own minerals mined on an asteroid and another country, China say, decides they can’t? “That’s the problem, isn’t it?” Tronchetti says. “Nobody knows. But we should think about international consequences.”

Gabrynowicz, for instance, worries that making unilateral decisions about space law could affect efforts to negotiate the rules that manage disputed places here on Earth, like the Arctic, where Russia, the U.S., and other countries are currently jockeying for access to oil and other resources.

In theory, a new treaty would solve all of these problems. But nobody thinks it would work. The Outer Space Treaty succeeded, Johnson says, because there were really only two parties at the table back then—the U.S. and the Soviet Union. “They just said, ‘Let’s come up with compromise text and then take it to the rest of the world and tell them we’ve agreed. We’re the most important people doing anything in space and everyone else will just go along,’ ” he says.

Needless to say, that’s not how things work today. Even just a few years after the passage of the Outer Space Treaty, in 1979, an expanded document known as the Moon Treaty failed to draw any interest from the U.S. or the Soviets. That treaty would have clarified some of the issues the Outer Space Treaty left vague, including banning commercial sale and use of extraterrestrial resources. Only 16 countries are part of the treaty—none of them a major spacefaring nation.

The geopolitical climate isn’t amenable to a new space treaty, Johnson says. There are too many stakeholders now and their goals don’t align enough. “The era of treaty making has really been over since the 1980s,” Johnson says. Now, the future of space is in the hands of the diplomats and lawyers who will hash out bespoke compromises in backrooms and boardrooms all over the world.