Special Solari Report: Issues and Framework of US Law Concerning Outer Space – An Update
By Matthew R Hale Attorney at Law
Published November 2020
[Editors Note: This is an update from the previous Solari Space Law article published in October 2015.]
Space Law is based on the laws of Earth. Human beings have been making the law on our planet for thousands of years and in many ways, Space Law can find many parallels in various Earth based laws. The prior Solari article on Space Law can be found here:
Issues and Framework of US Law Concerning Outer Space https://library.solari.com/solari-special-report-issues-and-framework-of-united-states-law-concerning-outer-space/
Shortly after that article was published, the United States passed a law that for the first time in world history, allowed for the commercialization of space minerals and space objects.
The main body of governing law regarding the use of Space is the Outer Space Treaty of 1967. Under this treaty, ratified by the United States and others, all of space was the free domain of humanity. It forbade a country from taking a property right in outer space including “celestial bodies” “by claim of sovereignty, by means of use or occupation, or by any other means.” See the Solari Space Law Article above.1
There’s Gold in Them There Asteroids!
Sputnik was the first satellite launched by a sovereign government to orbit the planet. It was a small, basketball sized satellite that sent a beep signal as it passed over the Earth.2 At the time it was launched, a modern smart phone has more computing power than all of the computers on Earth had combined. Since then, thousands and thousands of satellites have been launched into orbit by many governments. Today’s technology has allowed for small satellites to have huge computing power. Now, private companies, universities, and governments around the world have satellites floating in space.
Those satellites all need fuel to stay in orbit. Currently, the ability to grab a satellite and refuel it is very limited. So, as the satellites run out of fuel, they use their remaining fuel to move out to a deeper orbit to spend the rest of their existence floating through space. Without fuel, the satellites do not work. Thus there is a great opportunity in servicing and refueling satellites. Where would the fuel come from?
It turns out that asteroids contain all sorts of mineral resources and best of all, water.3 On top of that, space is filled with an unlimited supply of solar power. Fuel and building materials can then be found within the thousands of Near Earth Objects floating in deep space around our planet.4
The problem was the fact that there was no legal certainty as to whether or not any country let alone any private commercial enterprise could obtain and utilize the vast resources available in the asteroids and celestial bodies floating in near Earth orbit.5
US Congress Sends Space Law to New Heights
When Columbus sailed the ocean blue in 1492, he was able to plant and flag and declare the land that he found himself on as a colony of Spain. Other countries followed, planting their flags and colonizing the lands as part of the territory of the colonizing country. At one point, the sun never set on the British empire. The countries with colonies were able to exploit vast amounts of wealth from those territories, often making their governing families extravagant wealth. The Outer Space Treaty, however, seemed to stand in the way, and was an attempt at stopping the colonization of space in the way that it had been done on Earth in the past.
Enter Deep Space Industries 6 7 and other private companies that started to lobby for the ability to mine near Earth objects and keep the spoils.8 In November 2015, the United States Congress passed the US Commercialization and Space Launch Competitiveness Act. 51 USC 10101.9 Tucked in a paragraph near the end of the last page of the act is section 53030, which states: “A United states citizen engaged in commercial recovery on an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligation of the United States.”10
The US added the following disclaimer in Section 403: “It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.”11
It is difficult to understand how this jives with the Outer Space Treaty, which strictly forbids ownership or colonization of celestial bodies. But, hey, this is space by the just do it method!
Also in November of 2015, US Code Title 51, Chapter 507 renamed the Office of Space Commercialization to the Office of Space Commerce”, under the Department of Commerce.12 According to its mission statement: “The Office of Space Commerce” is the principal unit for space commerce policy activities within the Department of Commerce. Its mission is to foster the conditions for the economic growth and technological advancement of the U.S. commercial space industry.”13 It focuses on satellite navigation (GPS), commercial remote sensing, space transportation, and entrepreneurial activities.14
Other Countries Not to be Outdone!
The US Commercialization and Space Launch Competitiveness Act has set off an international legal race, for countries trying to attract commercial space investors. Other countries are now racing to pass even more favorable laws in the hopes of attracting commercial space companies and investment.
Luxembourg: Little Country Big Space Law15
In 2017, Luxembourg because the second country in the world to pass a Space Commercialization Law. Luxembourg has been a powerhouse in outer space, as it is a prime host nation for satellites.16 While Luxembourg’s law varies slightly from the US version, it too allows for the private use of mined materials from asteroids and other space objects.17 Luxembourg is known as a tax haven, and has operated as a tax haven for companies operating satellites under the Luxembourg flag. Countries that are current tax havens are likely to become space tax law havens.
United Arab Emirates Passes a Space Law
In February of 2020, the UAE passed a law also dealing with the commercialization of space.18 Again, the law is similar to that of the US and Luxembourg, allowing for commercial space activities to be launched under the UAE.19 The UAE law regulates space tourism and mining.20
Enter the U.S. Space Force
On December 19, 2019, the U.S. Space Force became an official branch of the United State Military.21 Its motto is semper supra “always above.” its notable that the Space Force will will have “command and control of all DOD satellites”, as well as control over Earth based installations that monitor outer space.22 Essentially, Space Force is now in charge of all things space related.
In June of 2020, The United States Space Force published the Space Capstone Publication wherein it explained Space Force’s role, doctrine, and purpose moving forward.23 It states:
“[T]he United States Space Force has three Cornerstone Responsibilities: Preserve Freedom of Action, Enable Joint Lethality and Effectiveness, and Provide Independent Options. These responsibilities are fed by the five Core Competencies of Space Security, Combat Power Projection, Space Mobility and Logistics, Information Mobility, and Space Domain Awareness. In turn, these Service competencies requires specialization in the space-power disciplines of Orbital Warfare, Space Electromagnetic Warfare, Space Battle Management, Space Access Sustainment, Military Intelligence, Cyber Operations, and Engineering/Acquisitions.”24
The United States sees outer space as a place for armed conflict, either because of conflict on the ground or because of conflict in space. It should not be surprising that this would be viewed as a major threat to the rest of the world, as military control of space would mean that any country on the ground would be vulnerable.
Executive Order on Encouraging International Support for Recovery and Use of Space Resources
To further the push into space, President Trump issued an executive order on April 6, 2020, to encourage the United States and “commercial partners” to put humans back on the Moon for long-term exploration.25 The executive order states, “Successful long-term exploration and scientific discovery of the Moon, Mars, and other celestial bodies will require partnership with commercial entities to recover and use resources, including water and certain minerals, in outer space.” This frankly sounds like the US taxpayers funding the research and development costs for the “commercial partners” to make profits on the resources mined in space.
The executive order goes on to state:
American should have the right to engage in commercial exploration, recovery, and use of resources in outer space, consisted with applicable law. Outer space is a legally and physical unique domain of human activities, and the United States does not view it as a global commons. Accordingly, it shall be the policy of the United States to encourage international support for the public and private recovery and use of resources in outer space, consistent with applicable law.
The key term is “global commons.” Global commons are usually defined in international law as those parts of the planet that fall outside national jurisdictions and to which all nations have access.xxvi International law has generally identified Outer Space as a global commons. By stating that the United States does not view outer space as a “global commons” is a departure from notion that outer space belongs to all mankind.
The United States Artemis Accords, “An Attempt at a New Space Treaty?”
In addition to the Executive Order, NASA has engaged in the Artemis program to land human beings on the moon by 2024.27 The Artemis Accords as it is known is an international effort to a long term presence on the moon, the mining of moon resources, and using the Moon as a launching point to Mars. The Accords are intended to be a series of bilateral agreements among countries to venture to the moon and beyond.28 The Accords are a US centric answer to space treaties and agreements previously negotiated through the United Nations.
A New Space NATO?
On October 13, 2020, seven countries sign the Artemis Accords along with the United States.29 The countries include: Australia, Canada, Japan, Luxembourg, Italy, the United Arab Emirates, and the United Kingdom.30 The agreed accords are seven pages long entitled: The Artemis Accords “Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes.31 The signature parties agree to render mutual aid, share scientific data, and provides an agreement the for parties for the use and extraction of space (including Moon) resources. Furthermore, the signatories to the agreement commit to dealing with the mitigation of space debris. The document repeatedly references The Outer Space Treaty, but makes the following statement, “The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty.”32 The treaty does not address any controlling agreement for the individual laws of the individual countries. For example, Luxembourg and the United Arab Emirates have each passed their own space commercialization laws.
Its notable that Germany, France and India are not signatories.33 Further, Russia has refused to sign stating that the agreements are too US centric. It will be interesting to see how future agreements play out and which countries, if any, ultimately decide to sign on to the accords. Finally, the Artemis Accords seem to be an attempt for open sharing of information in space and its difficult to ascertain how much secrecy will actually exist in space exploration activities. The ultimate goal of the accords is for a manned mission to the moon.
China Announces Plans to go to the Moon
In 2019, China landed a robotic space craft on the far side of the moon.34 It is becoming clear that a space race is starting to take shape between various countries at odds with each other. China has been sending various orbiters and missions to the moon.35 By 2024, China intends to send a mission to the Moon to collect samples and return them to the Earth.36 It is no accident that this timeline is very similar to the timelines of the Artemis project to send astronauts back to the Moon by 2024.
China has announced plans to establish an Earth-moon economic zone by 2050.37 The competition between countries to establish a presence on the Moon is on, and it will be interesting to see how this all plays out.
Conclusion: Is all of this leading to inevitable conflict?
There is little doubt that there is going to be a conflict over whether a nation, country, or group of countries can essentially make a sovereign claim to a space object. Control over space is as important as control over the sea lanes, and the conflict lines are being drawn between countries over who will have ownership and control of space.
The Artemis Accords are written in parallel with United States Space Law allowing private companies to mine and extract resources from space. Although the Accords contain language that they intend to follow the Space Treaty, its interesting to note the fact that the accords make clear that commercial space activity and resource mining is allowed.
Russia has been warning of a potential Spare Arms race for several years.38 And is now pushing for a treaty to prevent weapons being placed in outer space.39 Meanwhile, the United States has recently accused Russia of testing an anti-satellite weapons based in space.40 Russia has denied that the test was for a space based weapon. Meanwhile, Space Force has created a unit dedicated to orbital warfare.41 In January of 2019, the Defense Intelligence Agency published a paper entitled, “Challenges to Security in Space.”42 The paper argues that Russia and China are developing space weapons, while at the same time attempting to negotiate for the banning of certain weapons in space.43 Indeed, with countries looking to invest huge amounts of money and resources into space, it follows that those nations would also want to protect and secure those investments. One can imagine a direct conflict arising on the Moon between mining claims of different nations.
The last question is which countries will begin to pass space commercialization laws like the United States, Luxembourg and the United Arab Emirates. Will countries begin to compete as tax havens to space projects? Will individual countries race to pass laws in order to attract the most commercial investment into space? And, how will these laws eventually interplay between the United Nations treaties and the Artemis Accords centered around the United States.
Finally, watch for a slew of announcements between now and the end of the year. Developments in the space race are going to be speeding up.
Related Solari Report Wrap Ups
1 Space Law Treaties and Principals United Nations Office For Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html
2 Sputnik Launched, History.com https://www.history.com/this-day-in-history/sputnik-launched
3 Tons of Water in Asteroids Could Fuel Satellites, Space Exploration, Nola Taylor Red, September 29, 2019 https://www.space.com/water-rich-asteroids-space-exploration-fuel.html
4 National Space Society, Mining Near-Earth Asteroids, Dr. Daniel D. Durda https://space.nss.org/mining-near-earth-asteroids-durda/
5 Law360.com, Legal Uncertainty May Keep Space Exploration Grounded, Daniel Wilson, September 7, 2016 https://www.law360.com/articles/835962/legal-uncertainty-may-keep-space-exploration-grounded
6 Deep Space Industries promotional video https://www.youtube.com/watch?v=XNJ9NhMNRP4
7 How the asteroid-mining bubble burst “A short history of the space industry’s failed (for now) gold rush” by Atossa Araxia Abrahamian, technologyreview.com https://www.technologyreview.com/2019/06/26/134510/asteroid-mining-bubble-burst-history/
8 Geek Wire, Bradford Space Group buys Deep Space Industries, shifting focus from asteroid mining to propulsion, by Alan Boyle, January 2, 2019, https://www.geekwire.com/2019/bradford-buys-deep-space-industries-shifting-focus-asteroid-mining-green-propulsion/ Deep Space Industries sold to Bradford and has since shifted its asteroid mining dreams.
10 51 USC Section 10101 see https://www.govinfo.gov/content/pkg/USCODE-2015-title51/pdf/USCODE-2015-title51-subtitleI-chap101-sec10101.pdf
12 Office of Space Commercialization https://www.space.commerce.gov/law/office-of-space-commercialization/
13 Office of Space Commercialization Mission Statement https://www.space.commerce.gov/about/mission/
15 A description of Luxembourg’s Space Law and Policy https://space-agency.public.lu/en/space-resources.html
17 Luxembourg becomes first European country to pass space mining law, by Cecilia Jamasmie, July 13, 2017, http://www.mining.com/luxembourg-becomes-first-european-country-pass-space-mining-law/
20 UAE eyes new frontiers with law to regulate space tourism, mining, November 24, 2019 https://gulfnews.com/business/tourism/uae-eyes-new-frontiers-with-law-to-regulate-space-tourism-mining-1.68048271
23 The entire document is available at https://www.spaceforce.mil/Portals/1/Space%20Capstone%20Publication_10%20Aug%202020.pdf
24 Id. at p. xiii.
26 https://www.un.org/en/development/desa/policy/untaskteam_undf/thinkpieces/24_thinkpiece_global_governance.pdf see page 5-6 on explanation of global commons.
32 Id. at p. 4.