Into the Final Frontier: The Expanse of Space Commercialization.

• Author: Mitchell, Rachel
• Position: NOTE

"Space, the final frontier. These are the voyages of the starship Enterprise. Its continuing mission: to explore strange new worlds; to seek out new life and new civilizations; to boldly go where no man has gone before." (1)

1. INTRODUCTION

   Space has captivated humankind since before telescopes were invented. (2) Danish astronomer Tycho Brahe founded an observatory and meticulously tracked the movement of planets without telescopic aid in the late 1500s; (3) his calculations proved accurate to one arc minute. (4) Fascination with the cosmos has also driven modern pop culture to create classics such as Star Trek and Star Wars and the more recent Interstellar and The Martian. Once imaginary, space voyages are now nearing reality. Innovative companies such as Space Exploration Technologies Corp. ("SpaceX") seek to put man on Mars and beyond. (5) Launches into space have been ongoing since the first satellite launch in 1957; (6) however, only recently have space activities shifted from being primarily conducted by national governments to being dominated by the private sector. (7) Small victories in space commercialization have been achieved in some part through telecommunications and GPS satellites. But, as humankind approaches the technological tipping point to enable space mining and space tourism, commercial activities will rapidly expand.

   This Note explores the emerging commercialization of space and the legal questions that arise as companies seek to further exploit the space economy. Whether or not new laws passed in the United States and in Luxembourg that purport to give ownership rights to companies that harvest space materials comply with the Outer Space Treaty (8) is disputed. Furthermore, the international space regime may not be equipped to govern a new age in space. This Note advocates that space mining should be legalized but finds that space law in its current form is inadequate to effectively regulate space mining and other emerging space activities such as tourism.

2. LEGAL BACKGROUND

   Outer space activities are largely governed through the United Nations' international treaties, which are developed through the Committee on the Peaceful Uses of Outer Space ("COPUOS"). (9) In the United States, most treaties must be adopted into law through legislation. (10) Domestic law, both in the United States and in other nations, may also fill the gaps by further regulating space activities. Therefore, this Part is divided into two subparts: international treaties and U.S. domestic law.

   1. International Treaties

      There are five space law treaties currently in effect: (1) 1967's Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies ("Outer Space Treaty"); (2) 1968's Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space ("Rescue Agreement"); (3) 1972's Convention on International Liability for Damage Caused by Space Objects ("Liability Convention"); (4) 1976's Convention on Registration of Objects Launched into Outer Space ("Registration Convention"); and (5) 1984's Agreement Governing the Activities of States on the Moon and Other Celestial Bodies ("Moon Agreement"). (11) Additionally, there are five U. N. declarations and legal principles that build off these treaties. (12) The Outer Space Treaty is the most important instrument because it serves as the basis for the others and has provided a guideline for the development of regional and national space law. As of January 1, 2017, 105 nations have ratified the Outer Space Treaty, including all nations with major space-faring capabilities. (13) Finally, it is important to note the Antarctic Treaty, on which the Outer Space Treaty was largely based, because it has been used as one way of interpreting the language of the Outer Space Treaty. (14)

      1. Outer Space Treaty

         The Outer Space Treaty emerged during the Cold War. (15) During the Cold War, nuclear weapons were at the forefront of international concern, which, in the 1950s, caused the Soviet Union to demand that the United States remove nuclear warheads from its forward-operating bases as a precondition to any agreement on the use of space. (16) The United States declined. (17) As such, it is no surprise that when an agreement was reached, the Outer Space Treaty reflected the concerns of the era. The crux of the treaty promoted "cooperation" (18) and prevention of the militarization--especially, the nuclear proliferation--of space against the backdrop of the "Space Race." (19) The treaty was adopted by the Soviet Union, the United States, and the United Kingdom in January 1967, following the United Nations' Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space in 1963. (20)

         Article I of the Outer Space Treaty provides that exploration and scientific investigation of outer space, the Moon, and other celestial bodies "shall be carried out for the benefit and in the interests of all countries" and "be the province of all mankind." (21) Article II prevents any nation from claiming the Moon or any other space object as sovereign territory. (22) Article III emphasizes that state parties (nations who are parties to the treaty) should indulge in the exploration of space with an interest in "maintaining international peace and security and promoting international co-operation and understanding." (23) Article IV drives home the nuclear fears of the time with its ban on "nuclear weapons," "weapons of mass destruction," "military bases, installations and fortifications," and the "testing of any type of weapons" on any celestial body. (24) It also declares that "the moon and other celestial bodies shall be used by all...exclusively for peaceful purposes." (25) Article V bestows ambassadorial-like status upon all astronauts, declaring them the "envoys of mankind" and stipulating that all state parties are required to render assistance to any astronaut in distress whether they are located in space, on the territory, or on the high seas of Earth. (26)

         While the treaty was not focused on private space travel, it did foresee the need, at least in part, to address the future possibility with a specific reference to "non-governmental entities" in Article VI, which mandates that activities of both government and civilian personnel in space be authorized and supervised by their respective governments. (27) Article VII provides that any state parties involved in a launch are liable for damages caused by its launch to another party's property or personnel. (28) Ownership of artificial space objects is addressed in Article VIII, which permits state parties to retain control over their vehicles, crews, and objects while those objects are in space. (29) The Article is silent about the ownership of materials removed from space objects (such as minerals mined from asteroids). (30)

         Article IX further contemplates space exploration as a joint venture between nations; it strongly advocates for cooperation and mutual assistance and requires all exploration be done in a manner that preserves space and protects the Earth from extraterrestrial contamination "so as to avoid...adverse changes in the environment of the Earth." (31) Article X is a provision that allows state parties to request permission to observe the launches of other parties and allows parties to form agreements thereto. (32) Article XI states that every State Party shall, to the greatest extent possible, notify the United Nations and the public about the "nature, conduct, locations and results" of space activities. (33) Next, Article XII states that every State Party is entitled to inspect all space stations, equipment, and vehicles located on the Moon or other celestial bodies so long as the State Party gives reasonable notice and does not interfere with the safety or operations. (34)

         After the Outer Space Treaty, additional agreements expanded the basic principles of international space law.

      2. Other Treaties and Agreements

         The Outer Space Treaty is a broad overview of the developing ideas behind space law. The treaties that followed continued to expand its principles. The Rescue Agreement is largely an elaboration of Articles V and VIII of the Outer Space Treaty; the agreement mandates that state parties shall take all steps to rescue and assist astronauts in distress. (35) The Liability Convention proscribes fault-based and strict-liability rules to damage caused by a State Party's space objects to both the Earth's surface, property located thereon, and space objects owned by another nation. (36) The Registration Convention gave the United Nations the ability to create a publicly-available register in order to assist with identification of space objects. (37) Finally, the most controversial of the treaties is the Moon Agreement, which not only reaffirms the Outer Space Treaty in many ways but also attempts to address the long-term use of the Moon in more detail. (38)

      3. Moon Agreement

         The Moon Agreement, despite its name, applies to not only the Moon but also to "other celestial bodies." (39) Like the Outer Space Treaty, the Moon Agreement mandates that use of the moon is for "peaceful purposes" only. (40) It further bans the use of force, hostile acts, or the placement of nuclear weapons in orbit around the Moon or other celestial bodies. (41) Article 4 states that exploration of the moon is to be carried out for the benefit of all nations and should also promote higher standards of living and conditions of economic and social progress. (42) Article 5 requires parties to communicate and pass along information about moon activities as well as inform one another if multiple nations plan to use the same location. (43)

         The Moon Agreement also explicitly grants states the right to collect samples of celestial minerals and other substances for any scientific...