Jurisdiction in Space Is a Hard Problem

The planned Moon Express probe, just approved for launch.

The Federal Aviation Administration has just granted permission (pdf) to Moon Express to send its first lander to the Lunar in 2018. It’s a big move: the first time a privately owned company has established concrete plans to send a commercial mission beyond Earth’s immediate vicinity, and it will most likely be the first attempt to commercially exploit land that is not on Earth.

But there are a huge number of questions raised by this venture. The current guiding provisions for space activity is the 1967 Outer Space Treaty, which requires national governments to monitor and take responsibility for commercial ventures in space. But within the US government, it still isn’t at all clear how a company would seek permission to operate away from Earth. Why was the FAA responsible for granting permission to exploit Lunar resources, versus another agency like NASA or the State Department, or the Department of Commerce? All of these agencies consulted on an ad hoc basis with each other to figure out what to do; there is no legal or regulatory framework for these sorts of missions. There probably will be in the near future, but the government is lagging behind the private sector.

Last year, President Obama signed the U.S. Commercial Space Launch Competitiveness Act, which provides a means for companies to begin economic activities in space. An eye-popping provision in that act was the declaration that asteroids and other small bodies in the solar system are approved for commercial exploitation — companies can mine and sell materials from those bodies, though they are still prohibited from outright claiming them. That is because under the OST, no one can actually own any of the land in space — whether it’s a moon, an asteroid, a comet, or a speck of dust. And it remains unclear whether the U.S.’s law authorizing commercial activities on the Moon and asteroids is a violation of that treaty.

On Earth, mining law can sometimes be complicated: in many (but not all) countries, the national government in question owns either the land or the minerals being exploited, and receives a royalty fee in exchange for the company’s operations. Since no one can own land in space (right now), there’s no obvious mechanism by which a company can legally gain access to the resources of a stellar body — despite the USCSLCA. While the U.S. has decided to sort-of replicate parts of its mining laws in space, there is no sense yet whether that will be considered internationally legitimate (imagine China with a similar law, for example).

So while the governing frameworks for how companies might operate in space remain murky at best, and while the big kid on the block (ahem, America) sort-of blunders around before there are regulations in place, a more immediate issue pops up its head: what about crime?

Crime in space has no immediate jurisdiction. While the OST requires national governments to be responsible for the behavior of companies in space, how would that work? It’s an easy question when it’s a small startup located inside a single country, like Moon Express. But what about a conglomerate like Sea Launch, with unclear ownership lines across multiple national lines? That company has been mired in legal disputes for years — if a company like that violated some provision of the OST, how would it be punished?

Let’s say a Lunar exploitation company commits a non-violent crime, like biological contamination of the Lunar surface (the OST requires that governments “avoid harmful contamination of space and celestial bodies”). Who would be able to verify that such a crime took place? When NASA prepares a probe for launch, it is built inside a clean room to make sure no biological or other contaminants are on the spacecraft. Commercial ventures often are not so careful: you can launch a CubeSat into orbit without it being sterilized if it’s a kit and on a commercial rocket. Do companies going to the Moon and beyond have to certify that their spacecraft are sterile?

The U.S. government does not have assets in or on the Moon that could investigate (nor does anyone else), and there are no plans to finance such a capability any time soon. A tax on space companies might fund such activities, but such a project is a political and economic non-starter for many years regardless. Who would possibly verify that all robots are clean, and that they won’t violate international law by leaving behind a tardigrade or some pathogens?

Matters become complicated when there are people involved and not just remotely operated robots. Much of the speculation right now relies on variously extending aviation laws, whereby nations are responsible for the behavior of their citizens. But planes must eventually land somewhere, which makes the people in question at least findable and at risk of extradition should a government want to place them on trial.

Spaceships, however, do not land, at least not in the usual sense of the term, especially since laws on Earth can be very different depending on what patch of dirt your passport is from. Think about something as basic as libel, where laws vary tremendously between governments. If a space travel violates a libel law in space, what sort of legal framework could govern the response? There are no easy answers for these questions.

None of this means we should abandon attempts to make space commercially profitable. But there does need to be a concerted effort, globally, to establish how laws and regulations can actually work. There are huge holes in the regulatory and legal frameworks about how any commercial activity beyond Earth’s immediate vicinity, but development of those programs is proceeding at a breakneck pace. It is imperative for governments to establish how they will actually enforce the laws on the books now, and draft appropriate laws for the future, before we find out that we have lost the pristine environment around us.

Joshua Foust is a writer and analyst who studies foreign policy.