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While the world celebrated the return of the Apollo 11 astronauts in 1969, the crew was in clear violation of international law. The lunar rocks aboard the command module Columbia breached Section II of the Outer Space Treaty, which bans the national appropriation of the moon “by means of use or occupation, or by any other means.” Through some political maneuvers, the United States retained the rocks without defining its actions in terms of the treaty. Because countries can evade international space law with legal craftiness, most ‘violations,’ including an auction of Soviet moon rocks in 1993, have long gone unchecked.

But today, as private companies begin to pursue resources in space, international space law is becoming increasingly pertinent. Moon rover landings, ISS astronaut transport, and space tourism are among the many goals of the commercial space industry for the next five years. Living in space and extracting valuable resources from asteroids also lie on the horizon.

Because the law lacks a comprehensive set of norms and rules for space interactions, there remain many legal questions for companies eager to reach the stars. If regulatory bodies continue to lack foresight in space policy, issues ranging from commercial property right disputes on the moon to legal questions on private habitats in space could lead to confrontations between the nations who, according to international law, bear the ultimate responsibility of space activity.

Space policy is a low priority for Congress, and it will likely remain unimportant to lawmakers for the foreseeable future. Regulatory neglect has resulted in an antiquated, slow permit process for U.S. firms, putting them at a disadvantage to companies in countries with more laid back regulation. Still, the effects of inadequate regulation are likely to intensify in the future. If the United States fails to tackle comprehensive space policy before a major civil, commercial, or international dispute occurs in space, legal fallout could be widespread.

The Present

Under the authority of the Federal Aviation Administration’s Office of Commercial Space Transportation (AST), the industry’s central regulatory code has struggled to keep pace with rapid technological innovation. In the 2016 fiscal year, AST received $17 million dollars in funding, or 0.1 percent of the FAA’s $16 billion dollar budget. Eric Stallmer, president of the Commercial Spaceflight Federation, told the HPR that a lack of funding is the “biggest challenge” to improving regulatory oversight of the commercial space industry. In the transcript of a July Senate hearing obtained by the HPR, SpaceX senior vice president Tim Hughes underlined this concern: “we want to make sure that the FAA has the right resources to carry out the launches and not to be an inhibitor in this business.”

AST’s funding woes form the basis of many of the commercial space industry’s policy concerns. For instance, a tight budget has pushed regulatory overhauls lower on the priority list. In a March letter obtained by the HPR, the CSF requested a $3 million increase in funding for AST from the Senate Appropriations Subcommittee on Transportation, Housing, and Urban Development. With these funds, the CSF aimed to streamline and modernize “outdated regulations” that inhibit approvals of launch and reentry applications.

Top commercial space advocates have built upon concerns for adequate regulatory funding. In a January letter to AST, obtained by the HPR, SpaceX president and COO Gwynne Shotwell and other industry leaders voiced concerns about the AST’s inadequate resources. They encouraged the office to “prioritize its limited resources as defined under existing authorities” rather than assuming wider responsibilities. The letter labeled some of the regulations “overly burdensome and outdated,” citing the laws on launch licenses and license safety as examples for their lack of requirements for autonomous flight safety systems. 

In addition to reforming regulatory policies, industry experts also believe policy implementation, in the form of launch and reentry licenses, should be overhauled. Stallmer stressed that the commercial space industry wants the FAA to be “responsive in a timely manner.”

In addition to speed, transparency of the permit process is a top concern. In the January letter to Nield, executives advocated for sharing of the “algorithm documentation” for the tools used by the FAA and the U.S. Air Force to calculate safety metrics that impact launch and reentry license approval.

The authors of the American Space Commerce Free Enterprise Act, which passed committee in June, share several of these concerns about the effectiveness of U.S. commercial space oversight. Rep. Derek Kilmer (D – Wash.), a cosponsor of the bill, told the HPR that the act aims to “provide a transparent authorization and supervision certification process for non-governmental activities.” The legislation would designate all non-launch/reentry space activities as regulatory responsibilities of the Office of Space Commerce within the Department of Commerce. The OSC’s new responsibilities would include implementing a streamlined remote-sensing permit process as well as establishing an oversight framework for “non-traditional” private space activities such as asteroid mining, moon landings, and space habitats. Its ultimate goal is ensuring that “as commercial space companies keep coming up with innovative activities in space, they have a transparent and predictable path to approval,” Kilmer explained.

However, HR.2809 leaves many challenges unsolved: AST funding woes, the antiquated nature of the launch and reentry regulations, and any policy measures for non-traditional space activities past a basic permit framework.

The Future

While the objectives and realities of commercial space policy are relatively well-defined in the short term, the future of the industry and its regulatory oversight remain nebulous. However, experts have already begun debate on future legal issues in space, particularly with respect to space law’s founding document, the Outer Space Treaty. The United Nations-approved treaty, enacted in 1967 and signed by 104 nations, designates space as a peaceful realm where activities are carried out “for the benefit and in the interests of all countries.”

Article II is one of the most important parts of the treaty in the eyes of the commercial space industry. It states that outer space “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Many have labeled the U.S. Commercial Space Launch Competitiveness Act of 2015 , which gives American companies property rights to any natural resources collected from celestial bodies, a violation of this clause.

One reason why this controversy stands unresolved is the debate over the phrase “national appropriation” in Article II. For instance, the American and Soviet governments have both brought moon rocks back to Earth, and Japan has even retrieved dust from an asteroid. “Nobody ever claimed that was … illegal for those nations to take those rock samples,” George Washington university space policy professor Henry Hertzfeld told the HPR.

While nations have been able to conduct these small-scale extractions without repercussions,  difficult legal quandaries appear with the case of extracting resources from a celestial body for commercial use. “Suppose an asteroid is ten meters across, and you pick up a big rock, and the asteroid is now eight meters across,” Martin Elvis, a senior astrophysicist at the Harvard-Smithsonian Center for Astrophysics, said in an interview with the HPR. “Is it okay to keep mining until it just doesn’t exist anymore?”

Hertzfeld pointed out that Article IX of the Treaty, which requires nations to consult one another about the possible harmful effects of their space operations beforehand, is presumably the legal mechanism to deal with such an issue. Still, he agreed that “somewhere along the way, some [policy] decisions will have to be made about that.”

Kilmer explained that commercial space is at an “inflection point,” and that its future trajectory hinges on whether the federal government engages the “tremendous opportunity” presented by the space economy. Basic research investments, sound regulatory frameworks, and adequate funding for NASA and other agencies are needed to capitalize on the opportunity, Kilmer said.

Because the future of space policy seems far-off, many of its complex issues are often brushed aside as abstract. However, each individual challenge must be tackled, and the vague authority of documents like the Outer Space Treaty must be refined into specific policies before unfortunate externalities occur. According to Hertzfeld, “we’ve been lucky a lot of things haven’t happened over the years.”

Image Credit: Pixabay / SpaceX-Imagery

Correction: A previous version of this article has been updated to correctly identify professor Henry Hertzfeld’s affiliation with George Washington university. 

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