The Restart...

After a couple of years on hiatus while I have been pulling together material for the day job, I am now looking to restart the Legal Spaceman Blog. Expect a mixture of shorter comments from me on issues of law and policy relating to space activity and I will also be using the blog to showcase interesting work from my Space Law students, exposing them to the wider space law community. Space activity is developing at a frantic pace and I will try, in the blog to provide analysis of the key touchstone issues as well as signposting some key material from a range of sources. It is exciting to be communicating with the Space Law/Policy community directly and hopefully contributing to the key debates....

Neil Armstrong: Apollo and Beyond

Introduction: The passing of an icon

It should be noted at the outset that this discussion has only a peripheral connection to 'Space Law'. It was impossible, however, to let the death of a true space pioneer go by without writing my own tribute. In this age of instant interaction and 24 news cycles, the passing of someone as iconic and significant as Neil Armstrong was always going to generate blogs and tweets and all manner of comment. This blog, however, hopefully benefits from a little distance from the range of emotions felt upon hearing the news of the death of Armstrong. It is not intended to be a potted biography of Armstrong, for that you should consult James Hansen's definitive book, the official NASA citation or (perhaps most accessibly) space reporter Reg Turnill's obituary in The Guardian newspaper. Instead, this post hopes to use the life of Armstrong as a prism through which to look at the future of space travel interspersed with some personal reflections on the life of the first man on the moon. 

May 1 1968: Neil Armstrong ejects from the Lunar Landing Research Vehicle

The Thoughtful Hero

In his wonderful book "Carrying the Fire, An Astronaut's Journeys" Michael Collins gave a brief discussion of the key characters in the Astronaut Office and provided a unique insight into his colleague, the first man who would walk on the moon;

"(He) makes decisions slowly and well. As (Frank) Borman gulps decisions, Armstrong savours them - rolling them around on his tongue like a fine wine and swallowing at the very last moment (He had 20 seconds of fuel remaining when he landed on the moon). Neil is a classy guy, and I can't offhand think of a better choice to land on the moon" (Collins, 2001, 60)

It was that thoughtfulness and sureness of decision making that saved Armstrong's life on at least two occasions in space. Collins alluded to the calmness that he employed in trying to find an appropriate landing site for the LM as it was running out of fuel. Even before then, Armstrong, as commander of Gemini 8, was faced with a thruster error that had caused the craft to start to roll. He tried to correct the roll using the orbital manoeuvring thrusters and worked his way through the systems until deciding the only way to save the craft was to activate the thrusters reserved for re-entry.

In both of these cases, Armstrong remained the consummate engineer, assessing the systems for the optimal solution, unmoved by extraneous considerations. Indeed, his (public) reaction to moon landing centred more around a satisfaction of achieving all of the mission objectives rather than any desire to occupy a privileged position in the history of humanity (see Hansen, 2005, 361-373). In a world ever more obsessed with ephemeral celebrity gossip and the craving for material gratification, Armstrong was the perfect custodian of a legacy that would have driven lesser men to insanity.

 Artist illustration of CST-100 Craft developed by Boeing (Boeing Image) Image sourced from www.sen.com 

"One Giant Leap" - Looking to the future

Armstrong never flew in Space following his historic few weeks in July 1969 but that did not mark the end of his contribution to human spaceflight. He served on the Cortwright Panel that investigated the malfunction on Apollo 13 and then in 1986, following the loss of the Space Shuttle Challenger, he was asked to serve as Vice Chair on the Rogers Commission (for a fascinating discussion on this inquiry see Part 2 of Richard P. Feynman's What Do You Care What Other People Think?).

More recently in 2010, in a rare public appearance, he was highly critical of the Obama Space Plan and doubted that the private sector could fill the gap left by the reduction of NASA's budget. There has been an undoubted upsurge in private sector activity over the last 12 months and there is no doubt that Armstrong would have looked on with satisfaction at the apparent success of the Mars Curiosity mission. But it is Human Spaceflight Capability which captures the spirits and imagination in a way that is tangible. Armstrong bemoaned its loss and there is a resonance with his concerns about the lack of impressive projects which stir the soul and boost the profile of all forms of space exploration.

The Chinese National Space Agency (CNSA) is currently the closest to having an active lunar exploration program, setting an ambitious goal of returning a man to the moon by 2025. This deadline is looking increasingly unrealistic and no other national or international space agency is close to that. Indeed, a human mission to Mars is, currently looking like the stuff of science fiction. Yet, while optimism for an achievable human spaceflight comparable to the Apollo must be limited, Armstrong's misgivings over private space entrepreneurs may be misplaced. At present, companies such as Planetary Resources seem to represent the best hope of re-establishing an active, human spaceflight exploration programme. What Armstrong realised, as the figurehead of Apollo, was that for humanity to return to the moon or venture even further afield, the resources of a rich industrialised nation are needed.

 Neil Armstrong on the moon (reflected in the visor of Buzz Aldrin)

Tranquility Base

Armstrong died on 25th August 2012, a few weeks after his 82nd birthday his death, the Armstrong family issued a statement that concluded:

"For those who may ask what they can do to honor Neil, we have a simple request. Honor his example of service, accomplishment and modesty, and the next time you walk outside on a clear night and see the moon smiling down at you, think of Neil Armstrong and give him a wink."

Scientists, fellow astronauts and political leaders, including President Barack Obama all voiced their tributes. The death of Neil Armstrong robs humanity of a direct link to one of the defining events in human history. Arthur C. Clarke postulated that in 1000 years, Apollo might be the only thing that is remembered about our society. If that is the case, then the name of Neil Armstrong will be central to the telling of that story.

Neil Alden Armstrong b. 5 August 1930; d. 25 August 2012

Legal Regulation in The New Space Race

Space X Dragon docked with the ISS on 25 May 2012. Picture taken by Andre Kuipers, Dutch Astronaut on the ISS

Credit: ESA/NASA - Photo Sourced from Space.com

Much has happened in the field of space exploration over the last two months: the successful completion of Space X's impressive Dragon mission to the ISS, the Chinese Mission to the Tiangong-1 module heralding the first docking in space by China and the landing of the X-37B USAF OTV. Taken apart, these missions represent significant milestones for those involved. When examined holistically, however, against the wider discussions regarding the future of space exploration these events provide a picture of a new paradigm in space exploration. This emerging order will require the legal community to respond and, at the moment, there are key questions that remain unresolved. This discussion will seek to highlight some of those issues and identify of some of the legal questions that they raise. 

Space X: Regulating the Commercial Revolution

It is axiomatic to suggest that the early years of Space exploration were driven by the political and strategic imperatives of the Cold War. Coupled with this, the cost of developing the emergent technology required a focus and expenditure of resources beyond all but the two biggest superpowers. In the USA, NASA was formed by virtue of the Space Act 1958 and given responsibility for research and development of the national civilian space programme and given a stellar budget to fund the Apollo moon landings. The end of the cold war, a realignment of policy from the Obama administration and the retirement of the Space Shuttle have led NASA, for the first time since 1961, to be without human spaceflight capability (HSC). Almost in parallel to this saw the growth of a muscular private sector, eying the success of the Arianne operation pioneered in by the ESA, spearheaded by Elon Musk and the Space X company.

The almost flawless performance of the Dragon mission has led to much conjecture about private companies filling the gap in HSC left by the retirement of the shuttle. One of the key steps in this has been the signing of a memorandum of understand (MOU) between NASA and the Federal Aviation Authority (FAA). The MOU can be found here and the NASA press release is here. The effect of this MOU (discussed in detail in this article in Space Safety Magazine) is that the two agencies will each have a distinct role; the FAA will license commercial spaceflight launches, re-entries and will focus on safety of the general public. Participants will fly "at their own risk" unless NASA are in anyway involved with an operation. In those cases, the NASA requirements in respect of crew safety standards for human spaceflight will have to be observed. As nearly all of the contracts "out to tender" for HSC involve transfer of astronauts and cargo to the ISS, this effectively grants NASA a de facto oversight role in respect of crew safety standards.

For Space Lawyers the development of this inter-agency approach will be monitored with interest, whether an MOU is sufficient or whether more legally binding agreements are required (and are practicable) will become apparent only when the contracts are actually fulfilled. Despite the financial cost of human spaceflight still being comparatively high, as discussed in the Wall Street Journal, the success of the Space X mission means that NASA may find its role diminishing (if not reduced) from active participant in human spaceflight to that of a regulator. This agreement may not represent the optimal method of governance but it certainly provides the first steps towards a broader legal framework governing human spaceflight.


The China Syndrome

In a notable series of articles in The Space Review, Mary Lynne Dittmar talks about the national security implications of NASA not having HSC. Such a feeling of uncertainty can only have been amplified by the launch and successful docking of the Chinese Shenzhou 9 mission with the Tiangong-1 orbiting module.

Shenzhou 9 mission launches 16th June 2012

Credit: China Manned Space Engineering Office - Photo Sourced from Space.com

The Chinese National Space Agency (CNSA) is engaged upon a program that is reminiscent of the Project Gemini program. The Shenzhou missions have focused upon developing the Chinese capabilities required for not only long duration flight and the management of a space station, but also the technical requirements for a trip to the moon. Fears of Chinese ambitions in respect of colonisation of the moon may be mere speculation at the moment, but the Space Lawyer needs to be mindful of the current legal vortex should any nation undertake an aggressive moon colonisation programme. 

The treaties that exist within the current UN framework, specifically The Outer Space Treaty and more specifically the Moon Treaty have not been tested in any meaningful international context. The Moon Treaty itself remains unratified and, whilst in academic circles it is a theoretical starting point, as with the activities of Planetary Resources, there is only a skeleton outline as to how any binding legal framework will operate. Therefore, whilst much has been written, there appears little desire on the part of China, the only country with an active, developmental (as opposed to the static Soyuz program) manned space program to engage in such discussions at the present time. 

The Military Dimension

There are clear difficulties in regulating space programs such as the Chinese which, although civilian, is clearly regarded as having a close, if not symbiotic, relationship with the military. The final aspect that this discussion seeks to look it are the two high profile, overly military projects (at opposite ends of the operational scale). The successful, and highly public, launch of the National Reconnaissance Office payload L-38 by the United Launch Alliance (ULA) occurred shortly after the landing of the X-37B Orbital Test Vehicle at Vandenburg AFB on 16th June 2012 

 

Video of the X-37B Landing at Vandenberg AFB 16/06/2012

Clearly one does not need to stretch the imagination too far to believe that the timing of these two events were more than merely coincidental with the Chinese mission. Only the most utopian would believe that nations who have this capability will forgo the opportunity to afford themselves perceived or actual strategic and national security advantages. The danger posed to the international community is clear; unchecked the militarisation of space will quickly develop into a competitive race to deploy measure and counter measure that will be every bit as expensive and dangerous as the arms race of the cold war era. From a legal standpoint, Article III of the OST states that the exploration and use of outer space, including the moon and other celestial bodies, must be in accordance with international law and in the interest of maintaining international peace and security, promoting international co-operation and understanding. The first paragraph of Article IV of the OST goes on to speak specifically about the militarisation of space and is worth considering in full;

States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear  weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.  

This treaty provision clearly prohibits the use of weapons platforms with nuclear weapons or other WMD being positioned in Earth orbit. Unfortunately, the treaty is silent on the definition as to what may constitute weapons of mass destruction (and there is considerable academic conjecture as to what weapons may be covered by this term). There is also no mention of conventional weapons and or anti satellite weapons (ASATS). The Space Preservation Treaty (SPT), proposed in 2001 sought to augment this aspect of the OST by prohibiting all space based weapons, a ban on ASATS and the establishment of an outer space peacekeeping agency to monitor and enforce the ban on space-based weapons. It has not received any signatories and as such must be considered moribund. Whilst the SPT may be desirable, it appears highly unlikely, given the strategic advantage that the military can enjoy from using orbital resources, that any of the major space-faring nations would enter into such a treaty at this stage.

Concluding Thoughts

As with everyone who has an interest in the exploration of space, this is a truly exciting time for space lawyers. There are countless other issues in relation to space law that need considering, the above discussion has attempted to capture a small selection. For issues relating to Space Debris and Space Tourism see this article by Professor Frans von der Dunk and for another perspective see the excellent blog of Professor Tanja Masson-Zwaan. The issues raised by the recent activity in Earth orbit means that a new legal system is emerging and coalescing but still has much that is unclear and in need of codification. Given that China are making significant strides in their space program, there is a clear impetus for the US to re-establish its HSC. The legal framework that surrounds this development will need to be carefully drawn. History has shown that when economics and pragmatism start to interact with human spaceflight, the results can be fatal. The legal framework will have to ensure that, while the regulation encourages innovation and creativity, the inherent dangers are not forgotten. This is not an easy balance.

The difficulties of developing an appropriate legal framework for civilian commercial spaceflight are clear. Lawyers will find, however, that the regulation of military resources is a good deal harder given that consensus will inevitably yield to national interests. Additionally, even if a framework is agreed upon, there is the issue of enforcement and sanctions to consider. Diplomatic pressure? International opprobrium? Trade Sanctions? Military action? These options range from the impotent to the impractical. Considered against this backdrop, the creation of a viable, legal framework is only the start of the discussion. The adventure and creative spirit that is fuelling the current race to explore space needs to be matched by assiduous and considered discussion of the legal ramifications.

Gold Rush through a Legal Minefield:

Assessing the Legal framework of the Planetary Resources project

A video summary of the Planetary Resources Project 

A joint post by Dr. Christopher J. Newman and Adam Manning LLM, Civil Litigation Lawyer

Legislating for the Future

Anyone who has seen the news lately can hardly have missed the high profile announcement by the Planetary Resources group. This collection of extremely wealthy and high profile entrepreneurs unveiled an audacious plan to mine asteroids so that access to the extraordinary resources to be found in space can start to be utilized. Such activity would not take place in a legal void and there are two main international treaties that deal with this situation; the Outer Space Treaty and the Moon Treaty. In brief, the Outer Space Treaty states that no government can claim ownership of part of outer space (that is the Moon and other celestial resources). Celestial resources (as we call them now) are considered to be the “common heritage of mankind”.

A number of questions arise from this, the most important of which is this: how do these treaties apply to corporations? This could be an important point due to the potentially enormous amount of resources at stake.  If asteroid mining realizes anything like its true worth, the wealth involved could be staggering.  The legal concept of ownership could then come under intense scrutiny as a result. This post will therefore seek to examine some of these issues and map out the current legal position.

Commercialization & Regulation

In a broad sense any company which seeks to utilize the resources above the Karman line is involved in commercial space activity. There are a number of private companies which have been involved in commercializing access to space for a number of years (constructors such as Boeing, Lockheed-Martin and Space X through to space tourism ventures backed by Richard Branson’s Virgin Galactic). But the proposal by Planetary Resources is the first (significantly) funded venture which seeks to utilize the mineral resources of other celestial bodies. (Interestingly, this is not a new idea, having been postulated by John S. Lewis in his book "Mining the Sky" and mentioned by former astronaut Tom Jones in his memoir. Interestingly it appears that both Lewis and Jones are advisers to the new venture (see The Sentient Developments blogpost here).

Like any terrestrial venture, there are broad 'environmental' and ethical concerns that need to be addressed; such as whether there should be any requirement for the company to minimize the damage to the asteroid and the 'environment' of outer space. This may sound overly 'fluffy' and restrictive, but one only needs to contemplate the environmental damage caused by the mining of the industrial revolution: a sound regulatory system now may prevent unforeseen damage in the future. There is also the issue of bringing large quantities of 'alien' raw materials into what is a closed eco-system. Should there be limits on the amount of material imported and should there be some checks to ensure these materials do not contain potentially new lethal 'space pathogens'. It could be argued that a pre-emptive regulatory framework is necessary to ensure responsible and safe management of these new fields of endeavour. The counter argument is, of course, any regulation could be counter-productive and actual limit the exploration and exploitation of resources based around current knowledge and social trends.

'The Common Heritage of all Mankind': The Outer Space Treaty

In essence the legal framework is somewhat archaic, having originated in the midst of the Cold War. The foundation of Space Law is generally acknowledged to be The Outer Space Treaty of 1967 and provides the basic legal framework for the exploration (and exploitation) of space. The fundamental basis of the treaty (enunciated in Art I) is that the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind. Art. III states outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. Therefore, at first sight, this would not appear to preclude exploration and exploitation by private companies.

It has been suggested in a recently on Space.com that the principle of the common heritage of mankind means that profit-making activity (which would seem to include, at least in theory, the current plan to exploit near Earth asteroids) ought to be under a moratorium until an internationally backed regime can be put in place to restrain exploitation. This restraint on commercial activity is thought necessary to avoid over exploitation and so that usage takes into account the requirements of nation states that are not able to directly exploit space resources.  Other scenarios in which the common heritage principle is important include the pristine wilderness of Antarctica and the ocean floor; the point being that these are precious, natural and, despite their great extent, limited areas that need protection from over use.

But is this really necessary with regard to space resources? Do the effectively limitless resources of space need to be protected from over exploitation?  Putting aside issues of space archaeology (for example ensuring that the Apollo 11 landing site is preserved for future generations) it has been asserted that the OST can be interpreted in such a way as to prevent an individual, government or company claiming title to an asteroid and the precious metals it contains. It is our contention that this principle must not prevent individuals or corporations from exploiting the abundant resources to be found beyond Earth.

It is possible to argue that the development of new energy and natural resources would be for the benefit of mankind and just because a group of individuals are making money out of the venture this does not negate that benefit. Think of the work undertaken by drug companies. No one could argue that development of wonder drugs does not benefit all mankind. They, however, are clearly seeking to make money. Additionally, it is clear that Planetary Resources are not seeking to claim ownership of the asteroids (just as a prospector does not seek to be head of state for a country in which she or he mines). 

Whilst this may sound promising, Article IX of the OST provides that "States" shall avoid harmful contamination of space and celestial bodies. Although Planetary Resources are not state actors, according to Art. VI of the OST "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." The treaty is deliberately vague as to what extent the authorization and supervision needs to be, nor is there any indication as to liability is imposed on governments who fail to impose a regulatory framework.  This has been implemented by legislation in nation states. For example in the U.K. this requirement has been enacted by the Outer Space Act 1986.

The Moon Treaty – An illusory legal Paradigm 

Whilst it was Lunar rather than Asteroidal bodies which were in the contemplation of the UN, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, or the Moon Treaty sought to make matters of space law jurisdiction subject to international law and international jurisdiction. The treaty provided that 'the Moon and its natural resources are the common heritage of mankind and that an international regime should be established to govern the exploitation of such resources when such exploitation is about to become feasible.'

The treaty has the potential to directly interfere with the activities of Planetary Resources as the provisions apply not only to the moon but also to other celestial bodies (of which asteroids large enough to sustain mining activities may well be part of). The Moon Treaty prohibits the altering of the environment of celestial bodies and requires states take measures to prevent accidental contaminations. Fundamentally, Art 11(5) requires all resource allocation and arrangements for extraction of these resources to be subject to oversight by an intergovernmental organization. 

This seems to clearly impact upon Planetary Resources proposed activity. There is, however, a significant caveat to this. The Moon Treaty remains un-ratified by any major government that has an active space programme (USA, Russia, China, India, EU, Japan - none of these states have ratified the Moon Treaty). Therefore it is, in essence a failed treaty and should the exploitation of near earth asteroids become a reality, this would need to be redrafted and renegotiated. While the Moon Treaty represents a snapshot of the current state of recognized international law, in all likelihood, the treaty will go through a significant mutation before being acceptable to spacefaring nations.

Back to the Future: Exploration for Commerce

The activities of Planetary Resources are rooted heavily in current science and appear to have significant financial backing. This venture should provide the ideal opportunity for the international community to address the issue of legal regulation in a proactive fashion rather than reactively responding to some form of disaster or malpractice. In reality, however, it is likely that the de facto situation will eclipse the de jure position. There has long been the notion that if you can get to the Moon or an asteroid and claim part of it to the exclusion of others, that is likely to be good grounds for ownership. 

A legal regime must reflect the practicalities of the situation. Perhaps the Outer Space Treaty and its notion of the common ownership and restraint of exploitation merely reflects the contemporary practical position – that without the access to space required to exploit its resources, a legal regime of no real ownership and no commercial exploitation seems both feasible and desirable.  Maybe with real access, actual property rights will start becoming much more defensible and thereby valuable. 

It must also be borne in mind that the proposals from Planetary Resources are from a highly respected group of scientists and leaders.  They are not, we hope, the robber baron capitalists the framers of the Outer Space Treaty and some academics seem to imply.  When we think of this type of approach let us remember the Treaty of Tordesillas, in which much of the New World of the late fifteenth century was divided between Spain and Portugal.  For an instant, this reflected a prevailing approach to exploitation and ownership of a new world of possibilities, based as it was on concordance between the two superpowers of the day.  It was an attempt, we might think, to ensure some order over a whole new geography that had come into existence after the voyage of Columbus. The Treaty soon fell into disuse though especially as the imperial powers of Spain and Portugal fell into decline and the other European powers sought to colonize the Americas.  It did not stop them exploiting the new world’s fabulous riches.

We might think of the approach of the Outer Space Treaty in the same way as something that has now faded in usefulness and no longer reflects the true values of our times.  Another example might be the Moon Treaty, which was deemed an extension of the Outer Space Treaty.  This was only ratified by a small number of nation states, none of which are directly associated with exercising striking acts of space exploration and its power and effect must be very limited.

It will be of the greatest interest to space lawyers to see how the plans of Planetary Resources progress and whether the Outer Space Treaty, particularly in the interpretation of the common heritage principle, has any practical effect on their exciting and audacious proposals.

Adam Manning LL.M. is a practicing civil litigation Solicitor with a keen interest in Space Law, especially the practical application of the Outer Space Act 1986.

Dr Christopher J. Newman is Senior Lecturer in Law and Module Leader for Space Law at the University of Sunderland and is "The Legal Spaceman"