One Small Step for a Man, One Giant Leap for
My Real Estate Broker:
Taking the Next Steps in Space Governance
John D. Rummel
East Carolina University and the
McGill University Institute of Air and Space Law
An Observation: Oliver Wendell Holmes, Jr.*
•
“The remoter and more general aspects of the law are those
which give it universal interest. It is through them that you not
only become a great master in your calling, but connect your
subject with the universe and catch an echo of the infinite, a
glimpse of its unfathomable process, a hint of the universal law”
•
No “universal law” is likely to be found in this paper, but there is
no question that the subjects of governance and property rights
need to be connected with the universe around us
•
We need to address critical issues in the future of humanity as it
moves beyond Earth’s boundaries into outer space
*The Path of the Law, 1897
The Current Situation:
Proposed Deep Space Commerce
•
The ability to use space resources to “live off the land” was a
feature of science fiction long before it was taken up for serious
study by any space agency (e.g., for L-4/5 colonies, etc.)
•
More recently, interest has been evidenced by a variety of
private entities which intend to gather resources in space and
sell them—either in space or to markets on Earth
• With names like “Planetary Resources,” “Deep Space Industries,”
“Moon Express,” and “Shackleton Energy,” among others
•
Precise timelines and planned customer base for these
endeavors are not tightly specified
The Current Situation:
Mars One
•
Mars One plans to use space resources, although their use of in
situ resources appears compatible with the Moon Agreement
• There is no plan for national appropriation of portions of Mars
• There are clear concerns about funding and the real availability of systems
(such as Extra-Vehicular Activity (EVA) suits, entry, descent, and landing
vehicles, and reliable life-support equipment)
•
Mars One has stated that they intend to follow COSPAR
guidelines regarding the biological contamination of Mars by
human crewmembers
•
As a lead-in to possible legal questions, a successfully launched
Mars One mission could pose many interesting challenges
• In particular, questions about the timing of OST follow-ons would be moot
Current Status of Treaties and the Law
•
The Moon Agreement attempts to forge a pathway to the
commercial exploitation of outer space resources by specifically
noting that states parties to the agreement will undertake to
establish an international regime “to govern the exploitation of
the natural resources of the Moon as such exploitation is about
to become feasible”
•
The limited acceptance of that Agreement and concerns about
that international regime have resulted in the Outer Space Treaty
(OST) remaining the de facto governance document regarding
the protection and use of outer space environments
• Outer space is “free for exploration and use by all States without
discrimination of any kind” (Article I), but it is also “not subject to national
appropriation by claim of sovereignty, by means of use or occupation, or
by any other means” (Article II)
Current Status of Treaties and the Law
•
The OST also states that, “the activities of non-governmental
entities in outer space, including the Moon and other celestial
bodies, shall require authorization and continuing supervision by
the appropriate State Party to the Treaty” (Article VI)
• States Parties, then, have the responsibility of policing their citizens and
their conduct under the OST with no claim of sovereignty or other right that
would enable them to tax the commercial actions might be undertaken
therein—especially if their citizens are operating as part of a corporation
chartered in a third State altogether
Current Status of Treaties and the Law
•
Under Article IX of the treaty, “States Parties to the Treaty shall
pursue studies of outer space, including the Moon and other
celestial bodies, and conduct exploration of them so as to avoid
their harmful contamination and also adverse changes in the
environment of the Earth resulting from the introduction of
extraterrestrial matter and, where necessary, shall adopt
appropriate measures for this purpose”
• With the exception of biologic and organic contamination as defined by
COSPAR, there is no international consensus on “harmful contamination”
• “Adverse changes” in the environment of the Earth could be defined to
include the physical effects of dropping an asteroid in the wrong place
• Without further elaboration, the OST could be seen as a net-negative for
enabling future commercial activity and regulation in outer space
Current Status of the Regulatory
Environment
•
The current regulatory environment with respect to the
exploration, use, and protection of outer space environments is
confused and may be contradictory
• The US Federal Aviation Administration has written Bigelow Aerospace stating that
they intended to “leverage the FAA’s existing launch licensing authority to
encourage private sector investments in space systems by ensuring that
commercial activities can be conducted on a non-interference basis”
• A specific statement in that letter was that “the [U.S.] national regulatory
framework, in its present form, is ill-equipped to enable the U.S. government to
fulfill its obligations” under the OST
•
Very few of the signatories to the OST actually have an overarching
regulatory framework that fully incorporates the provisions of the OST,
resulting in an incomplete patchwork of State regulations that permits
a wide variety of implementations of the OST, and thus allows
inconsistent adherence to the OST as a whole.
Pathways Forward
•
The OST has both a solid foundation of positive provisions as
well as a widespread acceptance as the basis of the law
governing outer space
•
As such, the OST can form the basis for a suitable licensing and
enforcement regimes for the protection and use of outer space
environments
• A comprehensive regulatory regime for the protection of planetary
environments will, of necessity, also identify environments not subject to
protection and allow for their use for commercial development or for other
purposes
• In practice, the same regime could offer a licensing solution that would
yield revenues that could provide for “the benefit and in the interests of all
countries”
Pathways Forward
•
If the OST is to be used as the basis of an effective instrument for
governance, it would have be supplemented by at least one additional
agreement among the parties currently signatory to the OST to provide:
• A capability for identifying important extraterrestrial environments and
monitoring their preservation and/or development
• A planning process for the sustainable use of extraterrestrial resources,
including those which are unique environments/opportunities for
scientific study
• Mechanisms for continuing technical and scientific cooperation among
the states parties
• A capability to sponsor research on extraterrestrial environments and
provide for the training of future experts
Pathways Forward
• New provisions beyond the OST (cont.):
• A strong program of public education and awareness
• A mechanism for public participation in assessing the environmental
impacts of development projects and planetary surface exploration
• A mechanism to foster the free exchange of publicly available
information
• Expertise in the valuation of commercial activities in space to
understand the balance between risk, investment, and potential
profitability
• A straightforward and open licensure process for the use of outer
space environments, to include steps to be taken to establish private
property rights in outer space
Pathways Forward
• Provisions beyond the OST (cont.):
• An appropriate tribunal to adjudicate disputes among the parties
• Legal expertise and an enforcement arm (including internal
affairs checks and balances)
• The ability to call on States Parties for assistance in enforcing
the provisions of licensure
• The capability to use licensure fees to provide for the
maintenance of the enforcement regime
• The capability to use licensure fees to provide for any “common
heritage of mankind” provision that may be seen as desirable by
the establishing convention
Source: Planetary Resources
Summary and Conclusions
•
Both States and Non-State Parties are developing significant
new capabilities in space exploration and use
•
These are governed by the 1967 OST, but enforcement is
not specified there, and different launching venues may
differ greatly in their implementation of the Treaty provisions
• Currently, no entity under the OST is charged with promoting either
protection or use of outer space environments
• It is necessary to clarify, complement, and buttress the legal regime
currently regulating the exploration of the Moon and other celestial
bodies
• Individual States Parties cannot regulate those activities individually,
and a future consensus on an approach and mechanisms is required
to embody the principles of the OST