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 used to be a foreign policy maven. Now he helps organizations communicate strategically and build audiences.