The Wild, Wild West Of Space Law
Quarantined indoors, people around the world huddled over computer screens, posted photos of their children in astronaut outfits, and chimed in with messages of support on the YouTube live stream chat box—from Brazil and Malaysia, Poland and Vietnam. They were watching the first human-occupied rocket blast off from the US since the retirement of the Space Shuttle, NASA’s long-running spacecraft system—and the historic launch into orbit of the first-ever private spacecraft carrying astronauts inside.
Billed as the world’s “most powerful rocket,” SpaceX’s Falcon Heavy is powered by nine engine cores that are collectively capable of lifting over 60,000 kilograms into orbit. And, on that sunny day in late May, in a small bulge near the rocket’s seventy-metre tip, two NASA astronauts sat inside the Crew Dragon capsule. SpaceX—short for Space Exploration Technologies Corporation, founded in 2002 by tech billionaire Elon Musk—had launched rockets many times: to deliver cargo to the International Space Station (ISS), to lob satellites into orbit, and once to put a car into orbit. But never with humans aboard.
The launch was a partnership with NASA, the US space agency. NASA has always used contractors and is now working with corporations like Boeing to prepare for the next moon landing: the Artemis Program, planned for 2024. But this was a first—NASA astronauts flying into orbit atop a rocket designed, built, and controlled by a private company.
Musk, of PayPal and Tesla fame, built out his space company in under twenty years. As the story goes, Musk dreamt of sending something to Mars and making humans an interplanetary species, but he had no rockets. After unsuccessfully seeking to purchase decommissioned intercontinental ballistic missiles from the Russians in 2011, Musk decided he could build his own rockets more cheaply, which he did. A steady stream of ever-bigger rockets and occasional failures followed. A great leap forward came in 2012, when SpaceX began ferrying cargo to the ISS under contract from NASA, guaranteeing the company a steady stream of funding.
SpaceX may be the most successful of the private companies angling for a piece of the action and money to be made in space, but it’s not the only one. A trio of billionaire entrepreneurs have dominated the news for their private space programs: Jeff Bezos’s Blue Origin and Richard Branson’s Virgin Galactic are in the fray as well. All three have ambitious space dreams for their companies and, they say, for humanity, such as establishing extraterrestrial colonies and making space flight as common as commercial jet travel.
Space travel is complicated, dangerous, and expensive—each Space Shuttle launch cost $450 million (all figures US). Long the exclusive domain of governments, it’s now expanded, very slightly, to include a handful of billionaire business executives—all men—many of them from the tech world. The first private space tourists were millionaires Dennis Tito, in 2001, and Charles Simonyi, who shelled out $60 million to travel to the ISS twice, in 2007 and 2009.
Joining them in their celestial ambitions are a cluster of space startups. They include Toronto-based Kepler Communications, which seeks to one day provide internet in outer space, and Waterloo-based SkyWatch, which provides earthbound customers access to satellite observation data.
Private space activity is here to stay. Morgan Stanley estimates the value of the space economy to be $350 billion, currently; it is set to increase to $1 trillion by 2040. Both Canada and the United States have made space commerce part of their nation’s space plans. The private-sector involvement promises to drive down the cost of launches and make space activity more accessible to corporations as well as to countries without their own launch capabilities. No longer will space activity be the sole domain of a handful of national governments.
But, in the pivot from public to private, questions linger in the atmosphere: Who controls space? Who sets the rules for its use? And who regulates a corporation’s activities when it’s blasting off to the moon, anyway?
Who controls the air over a country? In 1944, with the Second World War still raging, representatives from fifty-four countries flew to Chicago to decide that question. The resulting document, the Convention on International Civil Aviation, declared that “every state has complete and exclusive sovereignty over airspace above its territory.” A plane flying over the United States is subject to American law, a helicopter over Russia to Russian law. But, where airspace ends and outer space begins, another set of laws comes into play.
The oldest of these space laws is the Outer Space Treaty. In 1958, a year after the USSR launched Sputnik I, the world’s first artificial satellite, the UN formed the ad hoc Committee on the Peaceful Uses of Outer Space. Nine years later, the Principles Governing the Activities of States in the Exploration and Use of Outer Space, or Outer Space Treaty (OST) for short, entered into force.
The language of the seventeen-article document was forward-looking and hopeful. Exploring space would be for the benefit of humankind, carried out in the spirit of cooperation and mutual understanding. The document also reflected Cold War anxieties about nuclear conflict between the world’s two superpowers: the treaty prohibited the use of weapons of mass destruction in outer space. No country could appropriate outer space through occupation or by claiming sovereignty, while the moon and other celestial bodies could be used exclusively for peaceful purposes. Astronauts would be envoys of humanity, and countries would be liable for damage to other countries’ spacecraft. Since 1967, some 110 nations have signed onto the treaty, with its sometimes vague promises of peace and cooperation, including China, the United States, and Canada.
Where outer space—and space law—begins depends on who you ask. “There’s an open debate about where it starts,” explains Ram Jakhu, acting director of McGill University’s Institute of Air and Space Law, “but there’s international agreement that sovereignty extends upward. One accepted amount is 100 kilometres.” This division is known as the Kármán Line, named for the Hungarian mathematician who first proposed the boundary between Earth’s atmosphere and the space around it. Crucially for today’s private space activities, article 6 of the OST states that member states are responsible for all space activity carried out under their auspices, whether by government or nongovernment entities. Thus, every SpaceX launch is subject to authorization and supervision under US law.
A great deal has happened in the fifty years since the OST was passed. In 1967, the US had yet to land on the moon, and only three countries had launched rockets into space. Today, nine countries, including India and Israel, plus the all the countries of the European Space Agency, have launch capability. There are currently some 2,600 satellites encircling the Earth. Space mining may have been science fiction in 1967, but private companies and national governments are now sketching plans for the extraction and return of resources from the moon and asteroids. NASA calls it a “lunar gold rush” and notes that the moon is rich in water, helium, and rare earth minerals that are essential for making computers and smartphones.
The UN hasn’t, of course, been sitting on the sidelines that entire time. On the heels of the OST came other UN space treaties, such as the 1968 agreement ensuring the rescue and return of astronauts and space objects, and a 1972 treaty addressing responsibility for damage caused in outer space.
The UN Committee on Peaceful Uses of Outer Space (COPUOS) meets regularly, in Vienna, to discuss international challenges in space. Last year, COPUOS adopted Guidelines for the Long-term Sustainability of Outer Space Activities. These include: safety of space operations; international cooperation, capacity-building, and awareness; and scientific and technical research and development.
But the legal spacescape is also shaped by the behaviours of individual national governments and, increasingly, by the corporations whose ambitions and capabilities rival many national space agencies. Some experts urge caution.
One is Lucianne Walkowicz, an astronomer at the Adler Planetarium, in Chicago. “In the void of a really robust moral and legal framework, private actors continue to behave in ways that benefit themselves,” Walkowicz says. For example, an Israeli aerospace company may have contaminated the moon with tardigrades, a hardy life form known for surviving in extreme environments, during a lunar landing gone awry last year. “Private companies are toddlers, testing the boundaries, seeing what people will and won’t put up with.”
Residents of Western Europe woke up one morning last spring to see a train of stars moving across the western sky—or, more prosaically, dozens of tiny new satellites. They were part of SpaceX’s new Starlink system, a planned network of up to 40,000 small satellites in low orbit that the company says will provide affordable internet to underserved regions of the globe, which include large parts of Africa and South and Southeast Asia, as well as portions of Central and South America and some Caribbean countries.
The microsatellites, however, did more than just beam internet signals: their shiny bodies reflected a lot of sunlight back to Earth. In fact, the satellites were much brighter than Starlink or astronomers expected, and their starry trails interfered with astronomers’ observations of the night sky—and not just in the skies above Florida, where Starlink satellites were launched, but throughout the world.
SpaceX didn’t break any laws when its satellites appeared in the night sky last year, 550 kilometres above the Earth’s surface. The company secured approval from the US Federal Communications Commission, which licenses satellites, and it followed procedures set by aerospace legislation passed by the US Congress in 2015 and 2018. Under article 6 of the OST, it’s up to individual countries to regulate private space activity under their authority. But many astronomers were upset by the white tread marks left on the sky and worried what it would mean for the future of astronomy, particularly for astronomical observations that involve long exposures. (The longer the exposure, the more likely that streaky satellite marks would be left on the resulting image, possibly blocking views of faint, distant stars.)
When not studying the ethics of Mars exploration or helping in the search for extraterrestrial life, Adler Planetarium’s Walkowicz finds creative ways to illustrate difficult astronomy concepts—they once cycled from Chicago to St. Louis to demonstrate the scale of the universe. Walkowicz has been working on the new Vera C. Rubin Observatory, a top-of-the-line US-led facility under construction in Chile, which they expect to be an “incredibly useful resource for astrophysics” in the coming years. Once it opens its eyes, the observatory’s telescope will survey the entire sky every few nights. Light trails left behind by Starlink’s thousands of planned satellites will almost certainly wreck some of those observations. Walkowicz is also not convinced that the benefits of SpaceX’s project will outweigh the risks of the artificial constellation. They think the cost for countries to access the internet service Starlink plans to provide may be too high and that it will mostly serve populations that already have internet access. It’s “tech colonialism,” Walkowicz says.
Responding to concerns from astronomers like Walkowicz, SpaceX announced that it would work with the astronomy community to darken its satellites and make them less reflective. It’s since experimented with changes in subsequent launches, such as painting the satellites black or adding sun visors to block light from being reflected back to Earth. There will soon be more giant clusters of thousands of small satellites in orbit, however: Amazon has one such system in the works, called Project Kuiper, that promises broadband for the world.
In response, last April, two US senators asked the federal government to reconsider its long-held position that satellites are exempt from environmental-impact review, pointing to outer space as a shared resource and the source of new discoveries. They are bucking a trend: the United States is the world’s most active spacefaring country, and recent policy shifts have made private activity in space easier, not harder. The 2015 Space Act increased support for private space activities and introduced a “finders keepers” rule for private companies that may one day, for example, wish to exploit a mineral-rich asteroid. Through careful wording, these policies managed to avoid direct violation of the OST: private companies, not the government, would be allowed to claim, extract, and sell space resources, and thus the United States would not be claiming any extraterrestrial territory. On its heels came the Space Commerce Free Enterprise Bill, in 2018, which streamlined US government regulation of private companies in space into the Office of Space Commerce. The United States has also been more assertive in taking measures to shape space law outside of international discussions at the United Nations by negotiating its own bilateral agreements with countries on its next moon mission.
Michelle Hanlon, co-director of the University of Mississippi’s Center for Air and Space Law, thinks both the 2015 and 2018 US laws take baby steps in the right direction by recognizing and regulating private activity. “The Outer Space Treaty is vague. There are a lot of gaps in it. . . . Personally, I’m a futurist. We want to be out there mining, and [if] a company isn’t able to obtain return on investment, then it’s never gonna happen,” she says. “Governments don’t have an appetite to invest that kind of money needed to access vast resources, so we need to rely on private companies.”
Hanlon is quick to point out that these kinds of regulations will ensure space does not become a Wild West. New space legislation may incentivize private activity, but it also introduces a framework for regulating it. The 2015 law, for example, charges several US agencies—the Department of Transportation, the Government Accountability Office of Science and Technology Policy, NASA, and the Department of Defense—with oversight, assessment, and reporting on private activity.
Other countries, like Luxembourg, have also moved to incentivize and regulate private space activity, with the goal of becoming centres for the space-resources economy. The small European country was second only to the United States in announcing a 2017 space law that protects the right of private companies to extract resources in outer space, such as mining on the moon. This relies on an interpretation of the OST, shared by the United States, that private activity on the moon, such as mining for rare minerals, does not represent a national territorial claim. According to the Luxembourg Space Agency, “The law does not have an objective . . . of paving the way for any national appropriation of outer space, including the Moon and other celestial bodies themselves.” Last year, the United Arab Emirates joined Luxembourg and the United States in passing its own space law, which seeks to regulate and support its private sector and make the oil-rich Gulf state among the “world’s leading nations in space sciences before 2021.”
Supporting private space activity is part of Canada’s space plan too. The word commercial appears ten times in the twenty-two-page “A New Space Strategy for Canada,” announced last year by Canada’s minister of innovation, science, and economic development, Navdeep Bains. The strategy recognizes space commercialization as a driver of economic growth and job creation and urges Canada to create a “modern regulatory framework” for overseeing private space activity. (Supporting space startups like Skywatch and Kepler is part of that strategy.) Bains announced that the new space strategy would “ensure Canadians and Canadian businesses benefit from the growing opportunities in the space economy.”
NASA hopes to land the first American woman and the next American man on the moon by 2024, and in preparation for putting boots back on the moon, NASA has developed its Artemis Accords, a set of bilateral agreements between the United States and other countries involved in the mission. Gabriel Swiney is an attorney with the US State Department; during a recent webinar hosted by the McGill Institute for Law and Space, he called the accords “baby steps beyond the Outer Space Treaty.”
If the European Space Agency and the United States, for example, cooperate on the construction of lunar habitats, the accords would guide that activity. Canada has already signed on to the Lunar Gateway, a planned orbiting space station around the moon, which is part of the Artemis Program and thus would be a party to the accords.
Viva Dadwal, a former trade-policy adviser turned lawyer, sees similarities between the Artemis Accords and other trends in international commerce and relations. In New York, she works with bilateral investment treaties, which proliferated in the 1990s to regulate the treatment of foreign investment in host states. “It is often easier to build consensus around a smaller group of like-minded countries than a larger group of countries with diverse and competing interests,” she explains. “Rather than waiting for 193 countries to agree on the manner in which to regulate space activities, the United States can pave the way by directly engaging with other spacefaring nations and allowing others to follow.”
Among the topics the accords tackle: avoiding conflict on the moon’s surface; transparency; respecting heritage sites, such as the locations of the Apollo landings; and space-resource extraction—mining. The accords, NASA writes on its website, “reinforce that space resource extraction and utilization can and will be conducted under the auspices of the Outer Space Treaty.”