Pioneering space missions are often ahead of international law regulations and seem unbound by any legal frameworks that could outline guidelines for outer space activities. That was the case with recent asteroid mining plans as the rules for these new ventures are still in the process of constituting.
Now, when for the first time a private company has gained regulatory approval to send its payload beyond low-Earth orbit (LEO), a debate over legal issues recurs, stirring up question of who owns outer space.
Last week, Moon Express’ MX-1E spacecraft was cleared by the Federal Aviation Administration (FAA) – an agency of the U.S. Department of Transportation – for a commercial landing on the moon. This approval is required by the 1967 Outer Space Treaty, signed by the U.S. and over a hundred of other countries, which outlines the basic principles of international space law, determining elementary rules regarding the use and exploration of space by governments and other entities.
Although Article I of this treaty states that the exploration and use of outer space, including the moon and other celestial bodies, shall be the province of all mankind and free for exploration and use by all states, the resolution also specifies some rules regulating these activities. Article III constitutes that the exploration and use of space should be in accordance with international laws, in the interest of maintaining international peace and security and promoting international co-operation and understanding. However, the most relevant is the Article VI, which states that every activity of a non-governmental entity in space, requires authorization and continuing supervision by the appropriate country.
In accordance with the Article VI, FAA, representing the U.S. government in regulating commercial space transportation issues, gives approvals to spacecraft for space missions. Moreover, the agency investigates if a possible launch of a spacecraft into space does not jeopardize public health and safety, safety of property, U.S. national security or foreign policy interests, or international obligations of the United States. FAA is obligated to make these payload determinations by the Commercial Space Launch Act (51 U.S. Code § 50904).
This legislation imposes payload determination on the Secretary of Transportation in order to establish whether all required licenses, authorizations, and permits required for a spacecraft have been obtained. Therefore, if a payload operator like Moon Express would launch its spacecraft without the approval it would violate domestic and also international law.
“Launching a payload without the approval violates international, national and every rocket agreement that operator felt it was appropriate,” Hank Price of FAA, told SpaceFlight Insider.
In addition, FAA, before making final decision on launch approval, consults the particular case with the Department of State.
“Every launch license is done under consultation with the Department of State,” Price noted.
As the current international legislation regarding activities in space, dating back to 1960s, remains outdated and seems vague, it makes the question of who owns space, continually returning. It may seem that outer space as our common good, still uncharted and unassigned territory to any state or entity, should be explored without any permissions, licenses or approvals. However, setting binding rules, scrutinizing activities out there, beyond Earth’s orbit, is needed to ensure that space is used for peaceful purposes. A legislation adjusted to our technological progress pushing the boundaries of space exploration, could make the rules more acceptable by international community and help settle the dispute over rights and obligations in outer space.