Space Exploration Requires a New Space Rulebook

As far as we know, Mars is the only planet in the entire universe solely populated by robots. And, if all goes well, that population will increase by a little over 5%, as NASA’s InSight lander, which launched this past Saturday, touches down on Mars in late November. In addition to all the technical difficulties that need to be surmounted in getting safely to Mars, there are actually a number of legal concerns as well.

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The intersection between law and space travel dates back to the height of the Cold War when the vast majority of countries, unable to agree on much else, composed the first of five space treaties, the Outer Space Treaty (OST). Signed just two years before the moon landing, the stakeholders had a growing realization that the distant future would include human exploration well beyond Earth’s orbit, to the moon and even beyond.

Still, the treaties were grounded in the realities of the day: Facing Armageddon from the two irreconcilable superpowers of the time, it was inconceivable to the drafters that the major players in space exploration would eventually be billionaires and private corporations, not powerful nation states. This blind spot left open the possibility that today’s private actors might be less accountable to these treaties.

Indicative of just how far we are from those heady days: Saturday’s launch used ULA’s Atlas V, a private rocket that employs both American and Russian know how, and is in direct competition with Elon Musk’s SpaceX firm. Both companies, unabashedly profit-seeking, even disclose their stratospheric prices online: ULA’s rocket is a pricey $109 million compared to SpaceX’s $62 million for the comparable Falcon 9.

While arguably Saturday’s launch and November’s landing are the most technically challenging, the legal concerns really start to pile up only once the lander touches down. For example, accepted norms dictate that the lander cannot contaminate Mars with terrestrial organisms. Unchecked, an invading Earth species could cause environmental havoc to the Martian ecosystem. The OST likewise dictates that Israel be correspondingly careful and avoid any Earthly organisms from tagging along on an eventual SpaceIL mission, an unmanned lander originally designed for the Lunar XPRIZE competition.

Getting to the Moon and to Mars are only some of the many private endeavors by private enterprises. On one extreme, there are companies already considering mining asteroids for untold quadrillions of dollars of abundant and rare minerals. These entrants are encouraged by asteroid mining laws in countries as different as the United States and Luxembourg. The vagaries of OST interpretation may even allow the US to claim ownership to minerals drilled out of the Martian crust on the InSight mission.

Closer to home, human tourism to the edge of space is just starting to take off. Here too, there are a number of legal uncertainties. Promising a ride where few men (or women) have gone before, companies like Virgin Galactic will be at the frontier of novel legal considerations. Determining what laws apply where, to whom and when, will depend on legal determinations relating to just where Earth ends and space starts, as well as properly defining the tourist crafts as either planes or spaceships or some hybrid of the two; different laws apply to different types of ships, depending on exactly where they are located above the Earth.

While Mars, mining, and space tourism may still be the province of the 1%, there are opportunities even for the regular rich to achieve what was once only achievable by large countries: launching satellites. CubeSats are small satellites, typically 10X10x10 cm, that can be built and launched for the cost of a Tesla Roadster. Hundreds are already hurtling around the Earth, and thousands more will be thrust into orbit in the coming years.

Here too, however, there are numerous legal concerns ranging from ownership of specific orbital slots and the rights to radio spectrum for communication to the more disconcerting tort laws that will come into play when the probable failure of the cheaply built CubeSats damage the significantly more expensive commercial and national satellites.

Fortunately, there are some groups working on robots to clean up dangerous space debris. Perhaps when they are done, they can further boost the Martian population and clean up our mess there as well.

Dov Greenbaum is a Director at the Zvi Meitar Institute for Legal Implications of Emerging Technologies, at Israeli academic institute IDC Herzliya.