The new space race

‘For the eyes of the world now look into space, to the moon and to the planets beyond, and we have vowed that we shall not see it governed by a hostile flag of conquest, but by a banner of freedom and peace.’

John F Kennedy

When President John F Kennedy stood before Rice University on 12 September 1962 and boldly declared that not only would the US be the first country to land on the moon, but they would do it before the end of the decade, he captured and captivated the imaginations of a generation.

While it would be nearly seven full years following that speech before Neil Armstrong would first set foot on the moon, the legacy of the moon landing would propel space travel from the realms of fiction to reality. It would also lay the foundation for the first space race between the US and USSR, an extension of the political point-scoring and chest-thumping that characterised the Cold War.

But despite it being less than 50 years since man first walked on the moon, there’s already a new space race underway. But this time, it’s not nation states footing the multibillion-dollar bills to send people and packages beyond the atmosphere – it’s private companies ushering in a new era for outer space.

Going commercial

Commercial activities in space aren’t anything new. In 1962, Telstar 1 was the first satellite to be launched as a commercial venture, by AT&T and Bell Telephone Laboratories. But the rise of billionaire-backed companies reaching for the stars since the dawn of the millennium has brought the issue back to the fore.

Elon Musk and SpaceX, Jeff Bezos and Blue Origin, as well as Richard Branson and Virgin Galactic, have put charismatic entrepreneurs with impressive bankrolls front and centre in pursuit of the skies.

‘What we have are entrepreneurs that are funding commercial space ventures and, because of the new procurement system instituted in the US, they have contracts that are guaranteed by NASA, which permits them to heavily invest in these technologies,’ says Dr Lesley Jane Smith, professor of international law at Leuphana University and a board member of the International Institute of Space Law.

‘The changes have effectively instituted a system where all of the relevant players are able to put in their bids – whether it’s for the Air Force or transport to the International Space Station – and you’re able to do that because of the delegated procurement system. Because of that, we’re seeing huge advances in the US, whereas it’s still taking years to get anything off the ground in Europe.’

At a time when funding for space activities remains low – particularly in the US – and with little political capital or will to change that, there was fertile ground for those willing to fill the void, though few would have predicted the speed of progression.

‘Companies like SpaceX have proven that private companies can build rockets, deliver payloads to the International Space Station and bring them back. Soon enough they’re going to be the first private company to take people and astronauts into space,’ explains Chris Lewicki, president and CEO of Planetary Resources.

‘What we’re seeing private companies do is innovate. They’re bringing commercial efficiencies to the table, like SpaceX reusing their rockets. These missions are costing about 20% of the figures from the cheapest government-funded competition.’

Lewicki knows what he’s talking about. While now heading his own commercial space venture, Planetary Resources – a company aiming to be the first to mine asteroids – Lewicki is himself a ten-year NASA veteran, who served as the flight director for the Agency’s Mars Exploration Rover missions.

With backing from the likes of Google co-founder Larry Page, and filmmaker James Cameron, as well as Chinese tech behemoth Tencent and a slew of top-tier venture capital funds, Planetary Resources is well equipped to deal with any hurdles between now and 2020, when the company aims to launch its first asteroid prospecting mission.

Left to Right: Eric Anderson, Richard Garriott, Chris Lewicki

But beyond the technical barriers that await, there are a host of potential legal issues, which prompted Lewicki to hire his first general counsel earlier this year. Brian Israel joined Planetary Resources in May, departing from the US Department of State, where he worked primarily on space law and the associated international legal frameworks.

‘Joining Planetary Resources, the incentive wasn’t solely around space, but the magnitude of technical and legal challenges evident. Certainly, a lot of the role would be typical for any general counsel working for a private company that is raising money, but there is of course an added regulatory layer that comes with being an operator of space vehicles,’ says Israel.

‘Part of what makes the job equally exciting and complex is that, as a company, we’re doing things which are unprecedented and completely new. That means a good portion of my role is trying to interpret the international legal framework for outer space – parts of which are now 50 years old – and apply it to what we’re trying to achieve now.’

Lunar legislation

Space law finds its origins in the late 1950s, when the US and USSR undertook bilateral discussions to agree upon a framework of systems and rules that would dictate how activities in outer space would be carried out. That led, in 1959, to the creation of the United Nations Committee on the Peaceful Uses of Outer Space, which drafted five key international treaties over the following 20 years, comprising much of what we now know as ‘space law’. Arguably, the most important of these was the 1967 Outer Space Treaty, which still governs much of what takes place in outer space today.

‘What made the Outer Space Treaty unique, and why it’s so relevant today, is that it laid down very general principles. It doesn’t attempt to regulate any activity specifically, or directly answer every legal question that will arise in connection with outer space. Instead, it gives parties the basic building blocks to work with,’ says Israel.

‘When the Outer Space Treaty was being developed, it was primarily done with international peace and security as its objectives, rather than regulating human spaceflight and exploration. It’s a relatively short and straightforward document, which is founded in principles that all of the negotiating states at the time could agree on,’ adds Chris Johnson, space law adviser at the Secure World Foundation.

In essence, the Outer Space Treaty grants rights for the exploration and use of outer space, provided they are ‘carried out for the benefit and in the interests of all countries and shall be the province of mankind’. The principles were designed to ensure that outer space remained a demilitarised zone – an essential caveat during the nuclear proliferation of the Cold War – while granting sovereignty of outer space to no single entity or nation.

‘The provisions of the treaty are very well respected and observed internationally, to the extent that its tenets and principles can be considered as reflecting customary international law,’ says Johnson.

But with commercial space activity happening on a scale previously unseen, how well the principles contained in the Outer Space Treaty and similar pieces of international law will hold up is the subject of debate.

‘When I was working for the US State Department, one of the things we were doing was looking over the horizon at the activities of the private sector, and working with other governments to establish how we would manage these activities within the overall legal framework,’ explains Israel.

‘There have been private space activities for many decades now and there are domestic and international laws which provide a regulatory framework for these. Then there’s new genres of space activity on the horizon, of which Planetary Resources is one, that will be doing things that haven’t been done yet – either by governments or private entities. That is going to raise a number of interesting legal policy and regulatory issues moving forward, which, thankfully, I find great fun!’

Licence to ride

In 2015, the value of the global space economy was $323bn USD, according to The Space Foundation. But while space is now big business, whether commercial operations would even be allowed wasn’t always a sure thing.

When the international legal framework was taking shape in the 1960s, then USSR favoured restricting outer space to government enterprises, whereas the US already had a cache of private enterprises ready to progress into space.

‘Article VI of the Outer Space Treaty expressly permits private activities in outer space, but makes the government legally responsible for the activities of their nationals in outer space. It effectively places an obligation on the governments to authorise and continually supervise their nationals’ activities in outer space, to ensure conformity of the Treaty,’ explains Israel.

Article VI was a compromise between US and USSR negotiators. But while the hurdle of permitting commercial space activity was cleared before it became a problem, other parts of the Outer Space Treaty still have potential to cause issues for commercial ventures.

While countries and companies alike are barred from making territorial claims in space – something that is universally agreed upon – the exploitation of resources does not find consensus, with states in disagreement about what is permitted under the terms of the Treaty.

‘In some quarters, there remains an interpretation of Article Two which is very restrictive in nature and would be a detriment to companies involved with activities involving celestial resource use’, says Johnson.

‘Taking a restrictive view on Article II, whereby celestial resource use was not permitted, the limits of human space travel become severely inhibited. That’s because all of the resources used would have to come from planet Earth, instead of being able to be derived from outer space. If a company like Planetary Resources for example was to land on an asteroid made up in large part of solid ice, all of the water there – be it for drinking, fuel or anything else – would not be able to be taken.’

Such an interpretation of Article II at present is seemingly at odds with Article I, which permits for the freedom to explore and use outer space by all. Both Israel and Johnson express concern that without coming to an interpretation that is harmonious for commercial activities, innovation and future developments in the sector could quickly come to a halt.

‘When you stifle innovation, particularly as it pertains to outer space, what you’re doing is detrimental to Article I, because it means that these plans and potentials and some of the more deep space missions just won’t be funded because they’re not viable,’ says Johnson.

‘One potential solution would be to set up a mining authority, like we have for deep sea exploration and the activities that take place down there. What you have there, is an example of how global standards and the international community can come together to come up with workable solutions for a shared commons,’ adds Smith.

‘Of course, you also have the added difficulty that outer space remains the domain of nation states – not private entities – and that those states individually bear the responsibility for what happens in outer space, which is a rather unique structure, legally speaking.’

The upshot is that the ability to engage with legislators and policymakers will be essential for the long-term viability of companies like Planetary Resources.

‘We’re seeing already that with a regulatory framework laid out for a very quickly growing and expanding sector, there’s a lot of opportunity for policy engagement. That’s equally true in other countries too, which are either enacting their first national space laws or overhauling them,’ says Israel.

Before Israel joined the company, Planetary Resources was heavily involved in lobbying the US Congress to support the Spurring Private Aerospace Competitiveness and Entrepreneurship Act – better known as the SPACE Act.

That piece of legislation explicitly granted permission to US entities to ‘engage in the commercial exploration and exploitation of “space resources”.’ But the international community remains divided over whether the SPACE Act runs contrary to the obligations imposed on the US under the Outer Space Treaty.

‘The Americans are a sovereign state and according to their international treaty commitments, it’s hard to say that their domestic law is compatible with international law,’ says Smith.

Lobbying, both at a domestic and international level, stands to become increasingly critical, particularly as the US is in the process of crafting a framework for supervising non-governmental space activities, while ensure conformity with the Outer Space Treaty.

‘It is incumbent on Congress to use the 50-year anniversary of the Outer Space Treaty to properly determine our actual international obligations, decide if specific articles in the Treaty are self-executing or not, and ensure that our domestic policy moving forward creates an environment that provides certainty for industry while protecting our national security,’ said Senator Ted Cruz, earlier this year.

‘The design and objectives in doing this must not only be to implement the government’s obligations, but to do so in a way that is not unduly burdensome on emerging space activities,’ adds Israel.

‘This is particularly relevant when the exact contours of how the activity will be carried out are not known, which makes it imperative that the regulators do not get too far ahead of the technology and make guesses about how it will be done, what is feasible, then lock in standards that are ultimately irrelevant and unworkable.’

Beyond the horizon

As a new era of activity in outer space beckons, for better or for worse, the ability for lawmakers to update either the agreements themselves, or how they are subsequently interpreted, stands to be a defining factor in the pace of progress.

‘It’s cheaper than ever to get to space, so as well as companies, you have schools, universities and hobbyists all launching their own small satellites into orbit. That’s going to continue to create a whole host of new legal challenges,’ says Smith.

Central to those concerns is an ongoing effort to regulate space debris – an increasingly pertinent issue for the growing commercial space industry. Space debris ranges in size from spent rocket stages and non-functional satellites, through to paint flakes and fragments eroded from orbit spacecraft.

‘With more and more satellites being put into orbit every day, we’re already coming to a point where the tipping point for space debris is coming, and coming very soon,’ says Johnson.

Space debris poses a risk to activity in outer space because it can damage existing satellites and spacecraft (including the International Space Station) and, in the future, could cause launches to become more difficult and costly – even making certain altitudes impossible to use.

‘We have to come up with the legal and technical mechanisms to capture space debris. It’s an issue that the community is well aware of, but isn’t moving as quickly as it should be to rectify the situation. Part of that is determining who is responsible for the debris – particularly if it’s difficult to determine ownership and, subsequently, liability,’ says Johnson.

Space debris represents just one issue that will need to be addressed if commercial space activity is to continue to advance in terms of accessibility and ambition. But what that will require, according to those we spoke with, is collective solutions and co-operation at an international level – which might call for some rethinking of existing legislation, though not necessarily a complete overhaul.

‘As we progress further into outer space and it becomes a domain which is increasingly within reach of everyone – not just the government, military or major corporates – there are going to be ecological concerns, infrastructural issues and sovereignty considerations that will test the political will of the players involved,’ says Smith.

‘Stabilising the regulatory frameworks and keeping them aligned in the domestic legislation of the various states will be critical – although that’s a task which is far easier said than done.’