John D. Rummel East Carolina University and the McGill University Institute of Air and Space Law One Small Step for a Man, One Giant Leap for My Real Estate Broker: Taking the Next Steps in Space Governance

An Observation: Oliver Wendell Holmes, Jr. * “The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law” No “universal law” is likely to be found in this paper, but there is no question that the subjects of governance and property rights need to be connected with the universe around us We need to address critical issues in the future of humanity as it moves beyond Earth’s boundaries into outer space *The Path of the Law, 1897

The Current Situation: Proposed Deep Space Commerce The ability to use space resources to “live off the land” was a feature of science fiction long before it was taken up for serious study by any space agency (e.g., for L-4/5 colonies, etc.) More recently, interest has been evidenced by a variety of private entities which intend to gather resources in space and sell them—either in space or to markets on Earth With names like “Planetary Resources,” “Deep Space Industries,” “Moon Express,” and “Shackleton Energy,” among others Precise timelines and planned customer base for these endeavors are not tightly specified

The Current Situation: Mars One Mars One plans to use space resources, although their use of in situ resources appears compatible with the Moon Agreement There is no plan for national appropriation of portions of Mars There are clear concerns about funding and the real availability of systems (such as Extra-Vehicular Activity (EVA) suits, entry, descent, and landing vehicles, and reliable life-support equipment) Mars One has stated that they intend to follow COSPAR guidelines regarding the biological contamination of Mars by human crewmembers As a lead-in to possible legal questions, a successfully launched Mars One mission could pose many interesting challenges In particular, questions about the timing of OST follow-ons would be moot

Current Status of Treaties and the Law The Moon Agreement attempts to forge a pathway to the commercial exploitation of outer space resources by specifically noting that states parties to the agreement will undertake to establish an international regime “to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible” The limited acceptance of that Agreement and concerns about that international regime have resulted in the Outer Space Treaty (OST) remaining the de facto governance document regarding the protection and use of outer space environments Outer space is “free for exploration and use by all States without discrimination of any kind” (Article I), but it is also “not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means” (Article II)

Current Status of Treaties and the Law The OST also states that, “the activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty” (Article VI) States Parties, then, have the responsibility of policing their citizens and their conduct under the OST with no claim of sovereignty or other right that would enable them to tax the commercial actions might be undertaken therein—especially if their citizens are operating as part of a corporation chartered in a third State altogether

Current Status of Treaties and the Law Under Article IX of the treaty, “States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose” With the exception of biologic and organic contamination as defined by COSPAR, there is no international consensus on “harmful contamination” “Adverse changes” in the environment of the Earth could be defined to include the physical effects of dropping an asteroid in the wrong place Without further elaboration, the OST could be seen as a net-negative for enabling future commercial activity and regulation in outer space

Current Status of the Regulatory Environment The current regulatory environment with respect to the exploration, use, and protection of outer space environments is confused and may be contradictory The US Federal Aviation Administration has written Bigelow Aerospace stating that they intended to “leverage the FAA’s existing launch licensing authority to encourage private sector investments in space systems by ensuring that commercial activities can be conducted on a non-interference basis” A specific statement in that letter was that “the [U.S.] national regulatory framework, in its present form, is ill-equipped to enable the U.S. government to fulfill its obligations” under the OST Very few of the signatories to the OST actually have an overarching regulatory framework that fully incorporates the provisions of the OST, resulting in an incomplete patchwork of State regulations that permits a wide variety of implementations of the OST, and thus allows inconsistent adherence to the OST as a whole.

Pathways Forward The OST has both a solid foundation of positive provisions as well as a widespread acceptance as the basis of the law governing outer space As such, the OST can form the basis for a suitable licensing and enforcement regimes for the protection and use of outer space environments A comprehensive regulatory regime for the protection of planetary environments will, of necessity, also identify environments not subject to protection and allow for their use for commercial development or for other purposes In practice, the same regime could offer a licensing solution that would yield revenues that could provide for “the benefit and in the interests of all countries”

Pathways Forward If the OST is to be used as the basis of an effective instrument for governance, it would have be supplemented by at least one additional agreement among the parties currently signatory to the OST to provide: A capability for identifying important extraterrestrial environments and monitoring their preservation and/or development A planning process for the sustainable use of extraterrestrial resources, including those which are unique environments/opportunities for scientific study Mechanisms for continuing technical and scientific cooperation among the states parties A capability to sponsor research on extraterrestrial environments and provide for the training of future experts

Pathways Forward New provisions beyond the OST (cont.): A strong program of public education and awareness A mechanism for public participation in assessing the environmental impacts of development projects and planetary surface exploration A mechanism to foster the free exchange of publicly available information Expertise in the valuation of commercial activities in space to understand the balance between risk, investment, and potential profitability A straightforward and open licensure process for the use of outer space environments, to include steps to be taken to establish private property rights in outer space

Pathways Forward Provisions beyond the OST (cont.): An appropriate tribunal to adjudicate disputes among the parties Legal expertise and an enforcement arm (including internal affairs checks and balances) The ability to call on States Parties for assistance in enforcing the provisions of licensure The capability to use licensure fees to provide for the maintenance of the enforcement regime The capability to use licensure fees to provide for any “common heritage of mankind” provision that may be seen as desirable by the establishing convention

Source: Planetary Resources

Summary and Conclusions Both States and Non-State Parties are developing significant new capabilities in space exploration and use These are governed by the 1967 OST, but enforcement is not specified there, and different launching venues may differ greatly in their implementation of the Treaty provisions Currently, no entity under the OST is charged with promoting either protection or use of outer space environments It is necessary to clarify, complement, and buttress the legal regime currently regulating the exploration of the Moon and other celestial bodies Individual States Parties cannot regulate those activities individually, and a future consensus on an approach and mechanisms is required to embody the principles of the OST