As innovators shoot for the moon, how will we regulate commerce?

Sen. Ted Cruz (R-Texas) held a hearing recently of his Senate Commerce Committee’s space subcommittee to examine whether the Outer Space Treaty, which turns 50 this year, needs to be updated to accommodate the growing commercial space sector.

The consensus of two panels, one of legal experts and the other of business entrepreneurs, was that the treaty itself should not be changed. They believed that the the treaty’s language is flexible enough to be interpreted so that conflicts involving commercial space entities could be handled.

However, the Outer Space Treaty is mostly silent where private property rights are concerned.

Indeed, Article One of the treaty states, in part: “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.” The wording suggests that a company like Moon Express would have a hard time setting up a mining operation that would require excluding anyone else from its facility and surrounding environs.

{mosads}On the other hand, Article Seven states, “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies.” The wording suggests that a company like Moon Express could set up a mining facility, and any other party that damages it — say by encroaching on its area of operation —would be liable.

The witnesses at the hearing were in agreement that a simplified process in which a company or other private entity proposing to land something on the moon or some other celestial object and to begin commercial operations would get permission to do so under Article Six of the treaty. Article Six states, in part, “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.”

The problem is that before 2016 no non-government entity proposed to do anything on the moon or anywhere else in space besides launch satellites, which is covered by FAA regulations. However, as a contestant in the Google Lunar XPrize, Moon Express proposes to land a robot on the moon and perform certain tasks in pursuit of the prize. The mission will be just the first of several that will be part of the company’s lunar transportation and mining business. The United States government has no system to regulate such activity.

Moon Express was required to undergo an ad hoc review process that involved the FAA, the State Department and a number of other entities of the federal government. At the end of the process, the company acquired the first ever “Mission License” and has official permission to shoot for the moon. However, the process is a one-time deal and may not be repeated unless Congress enacts legislation to streamline and regularize applications for mission licenses.

So how should the government defend the rights of commercial entities in space, particularly on the moon, under Article Seven? Perhaps the federal government should look back to history, specifically the Homestead Act of 1862. 

The Homestead Act provided settlers with 160 acres of public land if they agreed to occupy and use it for five years. The idea was to encourage the settlement of the American West. Perhaps a Homestead Act for commercial space would be in order.

The idea is that when a company makes an application for a mission license for, say, mining ice from one of the lunar poles, the regulatory entity and the company could agree to how much area the commercial entity would be allowed to operate on for the operation to proceed successfully. The company would agree to maintain operations for at least a fixed period, five years or so, perhaps. In return, the United States government would agree to defend the company against harm by other entities, including national space agencies, under Article Seven.

The Space Homestead Act would not give a private corporation de jure property rights in its area of operation, but the effect, if one words the legislation cleverly enough, would be about the same. The door has already been cracked open a little bit, thanks to the 2015 Space Launch Competitiveness Act that allows private companies to retain ownership of what they extract from the moon or asteroids. The final questions are, will Congress be bold enough to pass such legislation, and will the government be prepared to handle objections from other parties of the Outer Space Treaty, particularly China?

Mark Whittington writes frequently about space and politics, and has just published a political study of space exploration titled “Why Is It So Hard to Go Back to the Moon?” He blogs at Curmudgeons Corner. 

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