Pioneers in space, work for lawyers
The conquest of outer space may soon move to the next level. Private entities have the funds, know-how and drive that most States nowadays seem to lack. Additional regulation is needed to complement the UN space treaties concluded in the cold war era.
In recent months several companies planning to explore and exploit outer space were ‘launched’:
- In March, the Swiss announced plans for CleanSpace One to clean up space by ‘capturing’ spent satellites.
- In April, Planetary Resources was launched in the USA, to visit asteroids with small robots and exploit resources such as water and platinum.
- In the Netherlands, Mars One announced in May that it aims to send the first 4 humans on a one way trip (!) to Mars by 2023, raising funds through a ‘big brother’ scenario.
- Also in May, a major milestone was the first ‘rendez-vous’ of a private rocket with the International Space Station by SpaceX, providing renewed human spaceflight capability to the USA after the Space Shuttle was retired in 2011.
These developments illustrate a paradigm shift in the space scene, and present new challenges for lawmakers.
Cold war space treaties
Where until now the main actors in space were states, currently more private companies are entering the space race. The initial rules laid down in the UN outer space treaties concluded in the 60s and 70s must be brought to the next level. Those treaties should be seen in their geopolitical post-war context; they stem from the desire to preserve outer space as the ‘province of all mankind’ and the rules are state-centered. A unique state-based responsibility and liability system resulted, obliging states to authorize and supervise activities of private entities and holding the ‘launching state’, not the private actor (as e.g. in aviation), liable for damages, without any limit.
Enter the pioneers…
With the current state of the global economy, states have come to realize that private funding, as well as the daredevil mentality and insight that often characterizes visionaries, is vital for the next steps in space exploration. This transition from state activity to private activity is not unique to space – similar shifts took place in aviation for instance.
…And the space lawyers
The UN space treaties should not be ‘thrown in the bin’, as is sometimes suggested, but the rules it lays down need to be implemented, clarified and supplemented. One way of doing that is through national law. Indeed, the adoption of national space legislation is on the rise, also in the Netherlands. Such ‘space acts’ introduce licensing systems for states to exercise supervision and control over private space activity. They also contain insurance and recourse provisions, accompanied by a cap on liability to encourage private investment while protecting the state from undue risk.
Other questions flowing from the examples mentioned above include:
- Are defunct satellites still ‘space objects’ to which liability attaches and which may not be moved without approval?
- Are asteroids ‘celestial bodies’ which cannot be owned, moved or destroyed, and may their natural resources be extracted and sold?
- What are the legal parameters for human settlement on other planets, and is it ethical to allow humans to go on a one way mission?
- How should interaction between private and public actors be regulated, so that states can fulfill their international treaty obligations and safeguard public safety while private enterprise can operate in a safe, clear and predictable legal environment?
For the latter, a good example is the agreement signed on 18 June between NASA and the FAA on commercial space travel of government and non-government astronauts to and from low-Earth orbit and the ISS.
The US Constitution does not apply in outer space. The USA, like 100 other countries, has ratified the 1967 Outer Space Treaty and this Treaty provides in Article II that 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. This also applies to private entities by virtue of Article VI of the Treaty. Public as well as private property rights over (parts of space) are impossible under current law. This does not mean that for instance lunar minerals may not be mined, but this will have to be done with authorization and supervision of the government and in accordance future international regulation if and when it emerges.
For USA based private entities in space, the constitution should prevail and the USA should be the governing body. The military of the USA should protect the individual according to the constitution. Therefore, private property rights, liberty, life, and the pursuit of happiness. It is now necessary to define how private property is obtained and maintained off earth. Perhaps something like the land rush era, with rules for stacking claims and improving the property over a period of time. This is a new situation because no one including earth governments currently have domain (unlike during the land rush era). This is new law. I hope it is done well based on property rights, the individuals rights, an freedom(liberty).
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