Space Law: Expanding To Cover the Moon, the Stars and Beyond
11.1.2023
As humans race to explore the cosmos, the law has some catching up to do. While treaties provide guidance, a lot of legal issues in space exploration remain unaddressed and untested.
A recent Continuing Legal Education course, hosted by the New York State Bar Association, discussed developments in space law and how they might apply to future travel and commercialization of assets in outer space, especially as private companies like SpaceX launch missions.
Alexandra Dolce, senior legal consultant in the Procurement Department of the New York City Housing Authority, was the speaker. She recently earned an LL.M in Space Law from the University of Mississippi and is a fellow at For All Moonkind’s Institute on Space Law and Ethics.
Dolce explained that between 1967 and 1984, the United Nations enacted five treaties on space to emphasize cooperation and collaboration among nations. Notably, the Moon Agreement of 1984 says that nations should share the moon – and other celestial bodies – with “due regard” to the benefit of all nations.
“’Due regard’ means be nice, but what does that mean?” said Dolce. “Especially when you’re dealing with commercialization of space and trying to procure space resources, what does ‘due regard’ mean? It’s a major contention, and that’s one of the reasons I believe a lot of signatories have left the Moon Agreement, because they don’t want to deal with the concept of ‘due regard,’ nor do they want to deal with that expansive nature of including other planets until norms are established.”
In many cases, there are no norms. Consider the following scenarios, for instance:
- If an accident happens in space, who is liable?
- How should insurance for space workers be determined? Who pays?
- If there are not enough resources for people in space, who decides the distribution?
- If a worker from the United States kills a worker from Poland in space, what is the criminal jurisdiction? Was it a crime?
- Does a space tourist legally qualify as an astronaut?
- Should alternative fuel options be required for launches to cut down on noise and pollution?
Other U.N. principles and documents emphasize the need to protect the environment in space and the use of satellites for broadcasting.
Remote sensing, in which satellites collect data about the earth, is also an issue. Remote sensing can be used to track weather, conduct espionage, measure growth in cities and more. U.N. principles encourage nations to share the information gained from remote sensing with other countries – especially if data finds a problem in a country without remote sensing capabilities.
However, Dolce emphasized that U.N. principles are “soft law” – it acts as a guide for space exploration, but it is not enforceable. “If it’s done on a regular basis, it becomes custom,” she said. “And once it becomes custom, it becomes law.”
Plus, the few existing laws contradict these treaties. In the United States, the Commercial Space Launch Act of 1984 allows private citizens to keep and sell space resources – like water on the Moon – obtained through exploration. Luxembourg and the United Arab Emirates enacted similar laws in the last few years. “If you get it, you can transport it, it’s yours,” said Dolce. “You can do whatever you want with it. The concept of ‘let’s all work together; if you find something that’s helpful to mankind, share it’ is currently out of the window right now.”
The Commercial Space Launch Act was enacted partially because it is cheaper for private companies to do space launches. SpaceX’s Falcon Heavy Missions can cost under $100 million while NASA’s Space Launch System will cost $2 billion per launch for similar missions.
“That’s where the conflict is arising right now,” said Dolce. “A lot of people say that the five initial treaties are basically expired. They’re no longer relevant because of commercial activity that’s taking place in space right now or that is intended to take place in space in the future.”
The CLE was sponsored by the International Section and is available on demand.
