Each week, In Theory takes on a big idea in the news and explores it from a range of perspectives. This week we’re talking about space exploration.
Joanne Gabrynowicz is an internationally recognized space law expert and editor-in-chief emerita of the Journal of Space Law.
The idea of a company exploring for commercial reasons is nothing new. While exploration has always been conducted to satisfy human curiosity, it has almost always had an economic rationale as well.
Think of the Hudson’s Bay Company in Canada, Jamestown in Virginia, the East India Company in India or the Norwegian whaling expeditions in the Antarctic. These all were done for commerce as well as adventure. Even the Lewis and Clark Expedition — arguably the greatest officially authorized expedition in North American history — was carried out to obtain both scientific and commercial information.
What is new about commercial space exploration is the global context in which the planned exploration will occur, and how the world’s various legal systems will regulate it. Historical explorations were carried out in a world in which most of its inhabitants were unaware that many of the other inhabitants existed. When groups did encounter one another, the most common result was that surprise, avarice, fear or some combination of the three led to conquest, and then profit.
However, today’s space exploration occurs in a time when humanity is well aware that we share the planet. The volatility of one stock market reverberates in exchanges around the world; diseases travel with their hosts on international flights; climate change is restructuring the coastlines of continents that are home to rich and poor nations alike. Law, both national and international, has to factor in these new conditions.
To put this in perspective for space exploration, compare the explorations conducted by Christopher Columbus for Spain with those conducted by the Apollo 11 crew for the United States. Under the law of 1492, Columbus had only to plant a flag in the “new” land — and hold on to it — to make his country’s territorial claim valid. Almost 500 years later, Neil Armstrong also planted a flag — on the moon. However, because the 1967 Outer Space Treaty prohibits national appropriation by claim of sovereignty, a legally recognized territorial claim was not possible. The law had changed, and the flag planting became an act of national achievement, not a territorial claim.
Although it’s clear that nations cannot legally make claims in space, it is a more complicated question as to what, if any, claims nongovernmental entities can make. Questions remain as to who may own space resources and what role governments should have in regulating and promoting these activities. In the past, the legitimacy of the claims made in explorations required national law to authorize them: charters from a king or queen; orders from a government-merchant partnership corporation; or action by Congress. Today the question is: How is modern law going to sanction space exploration by nongovernmental entities?
At the international level, the right of a nation to fashion a legitimate interface between national and international law must be respected. A balance must also be struck between protecting the property rights — real and intellectual — of entities investing in expensive, high-risk celestial resource exploration and the interests of the international community in the exploitation of a legal commons. The same Earth-bound issues that arise regarding resources from a legal commons will also have to be addressed regarding space resources.
At the national level, governments must have relevant, effective regulation to ensure that they meet their international legal obligations and to provide a degree of stability and predictability for commercial companies and their investors.
Currently, the U.S. Commercial Space Launch Competitiveness Act addresses a wide variety of commercial space activities: space transportation, remote sensing, on-orbit activities and asteroid mining. Within these categories are a myriad of subjects. It does not include a licensing regime or appointing a regulatory agency for celestial resource exploration. Instead, it directs that a series of political documents be produced (reports, studies, reviews, plans, evaluations and assessments) to develop a regulatory environment for resource exploration and related activities.
It’s a risky move. As Rep. Jim Bridenstine (R-Okla.), a member of the House Science, Space and Technology Committee and the Armed Services Committee, noted last month: “The absence of appropriate regulation will result in de facto regulation by increasing costs and thwarting access.” As incomplete as it currently is, the United States is the only nation with laws that address celestial resource exploration. For better or for worse, it has the potential to serve as a model for other nations and the development of international law on the subject. Intentionally choosing appropriate rules rather than accepting de facto regulation ensures that the law will serve celestial resource exploration — the newest phase in human exploration.
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