Saturday 23 June 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.