Fictions of the Final Frontier: Why the United States Space Act of 2015 Is Illegal

• Jurisdiction: United States,Federal
• Citation: Vol. 33 No. 4
• Publication year: 2019
• topic: Aeronautics,Business of Law,Contracts,Intellectual Property

Fictions of the Final Frontier: Why the United States SPACE Act of 2015 Is Illegal

Kurt Taylor

FICTIONS OF THE FINAL FRONTIER: WHY THE UNITED STATES SPACE ACT OF 2015 IS ILLEGAL

Abstract

In 2015, the United States passed The Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015 (the "SPACE Act of 2015"), a domestic law creating private celestial property rights for any US citizen who can appropriate an outer space resource. This creation of a private property interest stands in stark opposition to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (the "Outer Space Treaty"), which entered into force in 1967. The Outer Space Treaty is accepted by all space-faring nations, and it contains a non-appropriation doctrine in Article II that bars states from claiming territorial ownership of celestial bodies and resources. There is a split among academics on how to interpret the Article II prohibition. Specifically, many are not sure whether the appropriation extends only to sovereigns (by a narrow interpretation), or if it covers private entities as well (by a broad interpretation).

This Comment argues that a broad interpretation of the Outer Space Treaty is proper, and that the SPACE Act of 2015 violates the Treaty's bar on appropriation. Taking into account methods of treaty interpretation and examining the historical context at the time the Treaty was drafted supports a broad interpretation. This Comment proposes that there is indeed much to be desired by allowing and supporting celestial development, but that a change in the international regulatory regime is necessary to allow the SPACE Act of 2015 to operate without violating the Outer Space Treaty.

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Introduction

A man in California has a vision to achieve what is out of reach for even the National Aeronautics and Space Administration (NASA). His idea seems crazy, but he says he can pull it off in less than six years.¹ The vision: to send humans to Mars.²

Elon Musk presented a concrete business plan for sending humans to Mars during a conference on September 22, 2017.³ Musk's company, SpaceX, is a private American aerospace organization that is the market leader in the United States space travel industry, and one of the most prominent private aerospace travel companies in the world.⁴ The dreams of Mr. Musk are not all that out of reach, given SpaceX's accomplishments and milestones. SpaceX is the first private company successfully to launch cargo rockets to the International Space Station,⁵ but Musk is not alone in these endeavors.

Another American company, Moon Express, is working to launch the first private lunar mission to the Moon with hopes, eventually, to mine it.⁶ Companies like SpaceX and Moon Express are not only proposing big ideas, there is big money behind them and they fully intend to put it to work.⁷ SpaceX is valued at around $21 billion,⁸ and Moon Express has raised over $45 million,⁹ demonstrating the seriousness and commitment that private companies are willing to put forth to advance human interaction with outer space to a new level.

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But what if they cannot? What if it is all for nothing? What if the very dreams that these billions of dollars stand for are completely illegal? A domestic U.S. law, The Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015 (SPACE Act of 2015), creates private celestial property rights for any U.S. citizen who can appropriate an outer space resource.¹⁰ This creation of a property right contradicts the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (Outer Space Treaty), which prohibits appropriation of celestial bodies and resources,¹¹ creating dissonance between domestic U.S. law and an international treaty to which the United States is a party.

On November 19, 2015, President Obama signed into law the SPACE Act of 2015.¹² Aimed at supporting outer space endeavors like those of SpaceX and Moon Express, the Act provides legal support for private ownership of outer space resources.¹³ Among other things, the Act provides that United States citizens have the right to appropriate property in outer space for commercial purposes, and to do so "free from harmful interference."¹⁴

Internationally, the Outer Space Treaty entered into force in 1967 and has wide acceptance by all space-faring states,¹⁵ with a total of 107 signatories.¹⁶ The Treaty is widely viewed as the principal international legal instrument governing outer space,¹⁷ and it entered into force on the heels of the 1957 Soviet Union launch of Sputnik-1, cognizant of the Cold War "Space Race" between the United States and the Soviet Union.¹⁸ Article II of the Treaty contains its

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non-appropriation doctrine concerning the use of celestial resources.¹⁹ The specific language in Article II refers to "national appropriation by a claim of sovereignty,"²⁰ and many scholars accept that the Article exists to bar nations from claiming territorial ownership of celestial bodies and resources.²¹ It is without question that drafters of the Outer Space Treaty only contemplated state actor interest in, and ability to actually fund and develop, space-faring technologies.

The state of international culture and technology is very different today than it was during the emergence of the Outer Space Treaty fifty years ago.²² Outer space is no longer the domain of exclusively state actors; a shift to private-sector development of space is underway.²³ It remains unsettled whether the non-appropriation doctrine in Article II of the Outer Space Treaty covers: (1) all entities, thus stunting the dreams of private aerospace companies before they even start, or (2) only state actors, allowing for wide private-sector development in outer space.

In recent years, academics have debated how to interpret Article II of the Outer Space Treaty. The broad interpretation argues that Article II governs all actors, private and state, thus prohibiting all forms of appropriation in outer space.²⁴ Scholars advocating for a narrow interpretation of the Outer Space Treaty argue that because Article II is silent as to private actors and only addresses sovereign actors, there is no prohibition of private appropriation of outer space resources.²⁵ However, an examination through the lens of the plain language of the text, taking into account the historical context at the time the treaty was drafted, the argument for a narrow interpretation raises further conflict. Sovereign recognition of ownership is essential to private ownership of something in outer space.²⁶ Private ownership of something cannot exist without

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first being granted by a sovereign,²⁷ therefore a narrow interpretation of Article II fails because it rests on the creation of an illegal property right over celestial resources by private entities.

This Comment argues for a broad interpretation of the Outer Space Treaty and urges a change in the international regulatory regime allowing the SPACE Act of 2015 to operate without violating international treaty law. Recognizing that property ownership flows from sovereign recognition and that private ownership of something requires a state to reinforce this recognition, the Treaty, through its language in Article II, should apply to all actors, state and private. A proper textual interpretation of the treaty shows that the drafters intended for the non-appropriation doctrine to cover all entities: private and state. Methods of treaty interpretation, its travaux préparatoires, and a historical analysis of global culture at the time of the treaty's drafting and ratification supports this stance. As written, the Outer Space Treaty prohibits both state and private exploitation and appropriation of outer space resources. By allowing private appropriation in outer space, the United States, through the SPACE Act of 2015, is committing a prohibited act of sovereignty within the scope of Article II of the Treaty, thus creating a conflict that may invalidate the U.S. law.

Resolving this dissonance requires a shift in international law or recognized property regimes of private appropriation of celestial resources without violating the Outer Space Treaty. A natural extension of any discussion of outer space appropriation is a discussion of specific international property regimes analogous to outer space, including the law of the high seas and Antarctica. That discussion is beyond the scope of this Comment. Further, this Comment does not address the legal status of states that have not signed the Outer Space Treaty, or citizens of states that have not signed the Treaty.

This Comment, in Part II, outlines the history and relevant text of both the Outer Space Treaty and the SPACE Act of 2015, examining both legislative history and the global context of their drafting. Part III defines and applies the three most widely-accepted methods of treaty interpretation to the Outer Space Treaty. Part IV compares the methods of treaty interpretation and demonstrates how they support the conclusion that a broad interpretation of the Outer Space Treaty is most proper. Part V addresses how a narrow interpretation of the Treaty conflicts with its text. The final section will propose that the SPACE Act of 2015, as currently written, is invalid as against the Outer Space Treaty, and will

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explore potential solutions that could resolve the dissonance between the Treaty and the Act.

I. Background

A. History and Text of the Outer Space Treaty

The origins of international space law are traceable to the 1957 creation of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS).²⁸ Primarily established in response to the Soviet Union's successful launch of Sputnik-1, the formation of the committee was unprecedented, as it created an entire new field of public international law: the law of outer space.²⁹ In what scholar Frans von...