An international treaty laid out the basics of space law in 1967. But without a lot of case history to go on, lawyers today have looked to maritime law and Arctic exploration as they lay the groundwork for how space will be governed.
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In partnership with American Experience

Space Law: The Next Generation

This story was produced in partnership with PBS, American Experience, to coincide with “Chasing the Moon,” which reimagines the race to the moon for a new generation, upending much of the conventional mythology surrounding the effort.

Space Holds Allure for Businesses. But How Will Disputes Be Settled?

By CLYDE HABERMAN, Retro Report Columnist

Countless songs have been written about the moon as an enduring inspiration for young lovers and a silvery symbol of mystery. Best as we can tell, no one ever swayed to music about the moon as a source of niobium, yttrium and dysprosium. Not yet anyway. By the time the next century rolls around, who knows? Hunting for those rare-earth elements and other deposits might well qualify as a romantic endeavor for 22nd-century adventurers.

It is already in the sights of several young companies for whom Earth’s lone natural satellite is ripe for the commercial plucking. Take it from Robert D. Richards, the chief executive of one of those businesses, Moon Express. “If you think of the moon like the eighth continent,” he said, “we’re traveling across the ocean of space, and we’re going to reap the benefits of a whole new continent of energy and resources.”

But hang on—can Mr. Richards and other entrepreneurs actually lay claim to lunar bounty? What about that old song with an opening lyric assuring us that “the moon belongs to everyone,” and “the best things in life are free”?

It may surprise some people to learn that international compacts governing the exploration and exploitation of space have long made celestial bodies ready for the mercantile taking, whether by Moon Express or companies started by the likes of Elon Musk and Jeffrey P. Bezos. Retro Report, a series of video documentaries showing that major news stories on the past echo still, examines the development of space law over the last half-century and how it may need to evolve, with apologies to faithful Trekkies, for the next generation. This new video is co-produced with American Experience on PBS and presented by The New Yorker.

“Where there are people, there are going to be disputes,” said Steven A. Mirmina, a specialist in international air and space law at the National Aeronautics and Space Administration. “And where there are disputes, thankfully, they’re going to need more lawyers.”

The topic has added resonance right now, given the approaching 50th anniversary of that “giant leap for mankind,” the moment on July 20, 1969, when the American astronaut Neil Armstrong became the first human to set foot on the lunar surface (thereby confirming it wasn’t made of green cheese).

No one has been to the moon since 1972, and space research seems to have faded as a source of fascination for recent generations. Yet a spark of excitement remains. In March, the Trump administration said that it wished to send American astronauts back to the moon in five years, an ambitious timetable not regarded as realistic by more than a few experts.

Private companies are poised to make a giant leap of their own as modern equivalents of the prospectors who flocked to California in the mid-19th century Gold Rush. Like those Forty-Niners, the modern entrepreneurs are convinced there is treasure to be found in them thar heavens, people like Peter Diamandis. He is a co-founder of Planetary Resources, a small company near Seattle that seeks to mine the solar system’s asteroids. “We are on the verge,” Mr. Diamandis said, “of the greatest economic expansion in the history of humanity.”

There are conventions to be observed. A principal agreement is the 1967 Outer Space Treaty, ratified by scores of nations and burdened with the wordy formal title of Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. It forbids any nation to claim sovereignty over any part of the solar system, and bans weapons of mass destruction in space, with nuclear arms singled out for mention. It is one pact that President Trump, whose dislike of multilateral agreements is well established, has yet to propose that the United States turn its back on.

“What a lot of folks don’t know is that the treaty was actually a disarmament treaty,” Dr. Mirmina told Retro Report. That is true, up to a point. Conventional weapons were conspicuously not outlawed.

Another treaty provision requires nongovernmental entities, a category that presumably includes commercial firms, to have the government’s “authorization and continuing supervision” over their operations. That would appear to appreciably limit businesses’ ability to do as they wish, whether on the moon or deeper in space. But a more recent United States law, the Commercial Space Launch Competitiveness Act of 2015, adopted what looks like a more expansive view by explicitly permitting American companies to gather “space resources.”

A host of legal issues are thus raised, with none of them yet resolved in the courts, as they inevitably must be. On one hand, the 1967 treaty prohibits any national claim to outer space. On the other, the 2015 law gives its blessing to Americans who wish to fly off and harvest galactic resources. “There are some scholars,” Dr. Mirmina said, “who say that the U.S. is not complying with the treaty: If the U.S. can’t appropriate outer space, how can U.S. citizens thereby appropriate outer space?”

Bear in mind, too, that Americans are not the only ones with a stake in a new space race. China, Russia, Japan and Israel, to name a few countries, have their own interests in extraterrestrial exploration. No doubt they would insist on a say in any new international guidelines that may emerge in coming years.

You have to wonder if the next person to step onto the moon ought to be a new Neil Armstrong or a briefcase-toting expert in contract law.

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