While it may be hard to believe, we are living, now, in a future in which non-state actors are ready to capitalize on our ongoing desire for space exploration and rare materials.  What can we do about the regulation of commercialization of space?

After the launch of Sputnik by the Soviet Union in 1957, the United Nations organized the Committee on Peaceful Uses of Outer Space (COPOUS) in 1959.  COPOUS was charged with creating and maintaining the pacific uses of space and of being the international body to legislate space affairs.

In 1967, two years before Americans made the first moon landing, COPOUS passed the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies” (called the “Outer Space Treaty,” for short), which is the basis for most space legislation to date.

Since that time, the Committee has passed four other treaties, each of which reaffirmed the original treaty’s principle that “the activities carried out in outer space and whatever benefits might be accrued from outer space should be devoted to enhancing the well-being of all countries and humankind, with an emphasis on promoting international cooperation.”  

In essence, these five treaties, passed between 1967 and 1979, and all in force since 1984, cover a wide range of issues:  the non-appropriation of outer space by any one country, arms and weapons control; the freedom of exploration; liability for damage caused by space objects; ensuring the safety and rescue of astronauts and spacecraft; prevention of harmful interference with space activities and the environment; the notification and registration of space activities; scientific investigations; the exploitation of natural resources in outer space; and settlement of disputes.

Thus, there is a framework in place to enhance international cooperation, among nation states, for the peaceful exploration and use of space.  However, the youngest treaty was framed nearly 4 decades ago.  As we get ready to enter the third decade of the 21st century, ideas, technologies, and agents that were inconceivable in the 1970s are beginning to emerge, which suggests that new energy and foresight needs to be applied to emerging issues about the use and misuse of space.  

I will consider one of them here – commercialization – particularly in a time where non-state agents can access space with increasing economy.

Extra-terrestrial tourism: are we ready for this?

The five UN treaties – and the five associated declarations and principles – describe how nations should behave in Outer Space.  These days, however, there are more working parts than just nation states.  Companies such as SpacePort, SpaceX, and Virgin Galactic are attempting to launch extra-terrestrial tourism; some organizations are attempting to have solar power receptors in space that would transfer energy to earth; and, companies such as Deep Space, plan to mine asteroids within a few years.  

While it may be hard to believe, we are living, now, in a future that was only dimly perceived in the 1960’s and 1970s when the UN’s major treaties were conceived:  a future in which non-state actors are ready to capitalize on our ongoing desire for space exploration and rare materials.  

While most of us think of asteroids as lifeless, floating rock or planetary debris, a small, near-Earth asteroid, 3554 Amun, is only 2 kilometers meters wide but has been estimated to possess as much as $20 trillion worth of useful metals and materials.  It is only one of thousands of near-Earth asteroids.   That is enough money to tempt many state and non-state actors to consider making attempts to create and monopolize some sector of the space economy.  But are we ready for this?

In the five Outer Space Treaties, there are limited references to corporations.  In article 9 of the OST of 1967, it is stated that “parties” who are capable of landing or settling on a celestial body should avoid “harmful contamination,” a feat that has, to be generous, rarely been accomplished by many industries on Earth.  

Interestingly, in Article 2 of the 1967 OST, no nation can claim sovereignty on any celestial body.  Furthermore, in the “Benefits Declaration” of 1996, in which it is declared that the United Nations is “desirous” of ensuring that “exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind”. 

However, the five Outer Space Treaties and the five “Principles” are essentially agnostic when it comes to non-state actors, except to aver that the nation in which they may be housed “should” exert supervision over its activities, to ensure that its agents would comply with the prescriptions outlined.  Furthermore, it is uncertain that the UN has the jurisdiction to legislate – and enforce legislation – over non-state actors, including multi-national companies whose incorporation may occur in nations that are not signatories to the UN treaties.

The peaceful exploration of space and the potential conflicts that may arise with extra-terrestrial commercialization.

While the “final frontier” offers innumerable wonders and seemingly limitless opportunity, there are several issues that will need to be addressed to reconcile the peaceful exploration of space and the potential conflicts that may arise with extra-terrestrial commercialization.

The history of space exploration demonstrates both the promise and the difficult reality.  Consider, as an example, the charters issued by the English Crown to support voyages of exploration, to the New World and to Asia from about 1600 CE.  To entice explorers and investors, the Crown issued charters, however imprecise, that provided a monopoly to the East India and the Virginia companies.  This concept, better executed, is not an unreasonable first start for the UN, so as to provide definitive rules under which a signatory state, a non-signatory state, or a non-state actor may have, for example, the monopoly of the use and exploration of 3554 Amun for a defined period of years.  The charter can be to one or more of the actors noted above, alone or in combination.  

However, it is imperative that several more steps be considered as essential starting points.  

  1. First, the UN would continue to be the supra-national organization governing the uses of space.  
  2. Second, all UN member states – and any and all signatory states to the Outer Space Treaties – would individually, and collectively, be bound to uphold these and future treaties, which would be the means by which enforcement of behavior and use would occur.
  3. Third, the UN would be the supra-national legislative body that would create and oversee an executive body to organize and supervise the commercialization of space.  This executive body perhaps called the Space Trade Organization (STO) would be responsible to the UN and its member states.  The STO would set the bounds for regulation and for creating time-limited charters (for example, 50 years total to explore 3554 Amun and reap the benefits and rewards of that charter during that time), in a fashion similar to the current patent system.  The UN’s STO would auction the right or rights to specified commercial activities in certain sectors or specific celestial bodies in space, as has been done for the telecommunications spectrum above a certain minimum level of value.  Auctioning these rights would be the most efficient means to determine the states, companies, or combinations most interested in successful and safe use.  It would raise the revenue required for international regulation and be able to disperse excess revenues to countries that do not currently have the ability to pursue these activities but may wish to do so.  This fulfills the “Benefits Declaration” of 1996 as well as the principle of international cooperation outlined in Article 2 of the first OST, both of which were outlined above.
  4. Implicit in this system is the fourth step, that with monopoly use comes specific requirements for regulation to eliminate “harmful contamination” and other risks in space and on Earth.  Consider, for example, the mining of a rare earth metal on an asteroid, in which the mixture is 95% rare earth metal and 5% contaminant or some other “risk.”  The state or company that “owns” the rights will be responsible for all aspects of safe exploration and use and will be subject to a mandatory system of UN-led monitoring.  Failure to comply with all aspects of the charter would be subject to a staggered system of punishment, that range from fines to the inability to market the objects of commercialization, to forfeiture of one’s character and having it auctioned off to others in a blind-sealed bid system.  Note that, under the charter grant, it would be necessary that the license for use may be less than the contract for obligation, which might extend other several decades, or longer, depending upon the activity.  This would help address the longer-term effects of commercial use where risk trails benefit, as we have seen, for example, in the United States, and the ongoing need to protect the public health.With respect to the generation of undesirable contaminants or by-products, a variety of mechanisms are possible, ranging from a cap-and-trade system with diminishing or more restrictive outputs over time to a zero-tolerance policy, for example, with respect to activities already proscribed under the UN treaties (eg, nuclear weapons) to new ones, such as blasting an asteroid into portions that could threaten other commercial endeavors, spacecraft, or satellites, or even Earth itself.  Activities, or other noxious by-products, covered by a cap-and-trade mechanism could have their own secondary markets.  The charter would allow for ongoing additions of regulation during the life of the charter as both knowledge about and technology to eliminate, contaminations or risks continued to grow.
  5. Fifth, the characters themselves could be traded on the open market – which would include the regulatory aspects and obligations and the time-limited aspect of the original contract unless extended by the UN regulatory body – and would include, within the pricing mechanism, some assessment of the future liability.

The object of this first statement of principles is to create a supranational organization to help organize the safe exploration of the beneficial commercial opportunities of outer space.  At present, the United Nations has formulated a number of the first principles and legal framework for Space exploration to date.  It is my contention that, however imperfect COPOUS and the Outer Space Treaties may be at present, the United Nations are where the greatest degree of interest, knowledge, and expertise currently lie – outside any one country – and are the best option we have now to ensure the safest, most optimal development of space for the commercialization that is likely to occur over the next century.  The initial concepts I have outlined represent an early foundation – a very early, first draft – in thinking about this exciting “final frontier,” and how best to explore and exploit its potential for the benefit of the greatest portion of mankind.

Read more: We Choose To Go To The Moon: The Forgotten Frontier?

Read more: According To NASA, We May Not Be Alone In The Universe After All

Thomas Weil was a Yale Young Global Scholar in 2016.

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