The Fortieth Anniversary of the Apollo Moon Landing and the Future of Space Law

As we celbrate the 40th Anniversary of the Apollo 11 moon landing, it brings to mind that state of space programs and of space law.

Space law has long been the preserve of public international law, with the Outer Space Treaty, the Moon Treaty, and the International Space Station (ISS) Agreement. However, the rise of commercial space ventures is providing much added vitality (and legal complexity) to spaceflight.

In this post, I will focus on some of the issues related to “classic” government-led space programs. I will turn to commercial spaceflight at greater length in a later post.

The recent agenda of the UN Committee on the Peaceful Uses of Outer Space (.pdf) gives a good snapshot of the issues of concern to government space agencies. The agenda has items related to the use of nuclear power in space exploration, space debris (remember that Russian-U.S. satellite collision? And now the ISS is dodging space junk),  the delimitation of what is “outer space” (should “air law” apply in a given case or “space law”), the apportionment of geostationary orbits (think of it as prime real estate for communications satellites), and issues of financing and interests in mobile property (probably driven by the burgeoning commercial space industry). As the rise of the railways spurred legal innovation in the 19th century, air travel in the early to mid-20th century, and the Internet in the late 20th/ early 21st centuries, space law is a discipline that may well have significant growth, innovation, complexification, and maturation in the near future.

Here are a few issues arising out of the evolution of national space programs:

With the shuttle-fleet facing mothballing and NASA’s new Constellation program probably not beginning operations before 2015 at the earliest, the U.S. will face a gap of a few years. The likely result will be agreements with Russia in which U.S. astronauts will completely rely on Soyuz launches to access the ISS. For the first time, the U.S. will be completely reliant on outsourcing its manned launches.

Outside of this tight U.S/Russia optic though, the big story is the rise of China and possibly other countries in human spaceflight.  India, for example, has expressed an interest in having its own human-spaceflight capabilities. How will the spreading of crewed spaceflight technology affect the interests of those nations which, until then, had relied on U.S. or Russian launches?

The Earth orbit human spaceflight story is a precursor for the U.S’s return to, and other states striving for, the Moon. Back in the (original) space race, when one U.S. scientist was asked what will Americans find when they get to the moon, he quipped “Russians.” Fears of Russian dominance in space–their being the first to launch an orbiting satellite (Sputnik), first to launch a spacecraft (Luna 1) that left the Earth’s gravitational field, first to launch a person into space (Yuri Gagarin), etc–drove U.S. space policy in the 1950’s and 1960’s. (And the lack of a Soviet threat led to the foundering of the U.S. manned space program in the 1970’s.) At least some in the U.S. are hoping that fears of China landing on the Moon before the U.S. can return will drive new U.S. investment in crewed spaceflight. The U.S. has expressed an interest in moving as quickly as possible to a permanent station on the Moon. The multinational scientific bases in the Antarctic and the ISS agreements provide useful analogies for the issues that may arise in constructing the legal framework for such an undertaking. This may also cause a reassessment of the Moon Treaty and other agreements as to the utilization of the Moon and asteroids (this will be even more pronounced with the rise of commercial ventures that may seek to mine the Moon or near-Earth asteroids).

This will all set the stage for sending humas to Mars, possibly sometimes in the 2040’s. (Here’s what Apollo 11’s Buzz Aldrin recently wrote about going to Mars.) As that will be an engineering feat summing up the lessons of the Moon program, the ISS, and other aspects of human spaceflight, so too will the legal and policy frameworks be the culmination of nearly a century of spaceflight. The practical issues of sending a multinational crew of people, on a multinational spacecraft on a multiyear mission to another planet (which may or may not have alien microbial life) will push space law into places until now only theorized.

In another post I will turn to some of the issues of the commercialization of spaceflight.