The Privatization of Space Exploration

by SHILOH MILLER

Shiloh Miller is a first year at the University of Chicago considering majoring in Astrophysics or HIPS. Her academic interests include history, astronomy, and writing. When not working at Hallowed Grounds, you can find her rock climbing, reading Neil Gaiman books, or playing Frisbee on the quad.

In the 1960s, head-to-head in the Space Race and facing the prospect of nuclear war, the United States and the Soviet Union drafted what would eventually become the backbone of international space law. Produced in collaboration with the United Nations, the Outer Space Treaty (OST) declares space “the province of all mankind,” saying that space exploration “shall be carried out for the benefit and in the interests of all countries”.1 The fundamental ideas enshrined in the OST—peace, collaboration, anti-nationalism— were reiterated in four subsequent treaties, collectively becoming the core five pillars of space law.

These core five treaties were all written more than 40 years ago.2 None of their authors foresaw a world in which space exploration was spearheaded by anything other than the government. But over the past fifty years, the competitive and patriotic spirit surrounding space exploration has given way to a more entrepreneurial and commercial one, characterized by the rise of private space companies like Blue Origin and SpaceX. Government actors like NASA have begun sharing space—literally—with private space exploration companies. As space exploration transitions from the realm of the government to that of the private sector, we are entering uncharted territory both physically and legally. Much of the existing legislation surrounding space, including the OST, was written to be applicable to nations and not corporations. Private space exploration has its benefits, but letting it expand without providing a legal framework is not safe or sustainable. The value that private exploration provides—greatly reduced cost for launches, innovation through competition, rapid progress—can best be harnessed when the nuances of legal ownership, property, and liability are clearly established and enforced.

The “core five” treaties, one of which the United States never signed, are treaties, not legislation. They require that countries pass their own laws to enforce them. Additionally, they all operate under the assumption of government-led exploration. Even the treaties that admit the possibility of commercial use of space delay directly addressing it; one agreement says that if lunar resource mining becomes possible, an “international

regime must be established to govern how those resources are obtained and used”. 2 With NASA already contracting four companies to begin lunar mining by 2024, as well as space enthusiasts Jeff Bezos and Elon Musk expressing interest in asteroid mining, this may need to be established sooner rather than later.3 Space tourism, orbital hotels, and private space stations are all additional ideas proposed by companies that would operate within no existing legal framework, and private companies are liable to take advantage of the fact that the field of commercial space law is in its infancy.

Why? Businesses are businesses. Government-run space exploration, funded by taxpayers, often concerns itself with missions that benefit “national security, basic science, and national pride,” i.e. ideas that the citizens of the spacefaring country can get behind.4 Companies, on the other hand, don’t exist to please every citizen: they exist to make a profit. Market pressures, the desire to please shareholders, and the need to make a good return on investment mean that speed, efficiency, and cost naturally become priorities for companies.5 Though these priorities may go hand in hand with risk, having a profit motive is not inherently a bad thing. However, the potential benefits of this system—namely its reward of speed, growth, and innovation—can easily turn into downfalls when dealing with high-risk, low-regulation activities like private citizens’ space travel.

Many commercial-minded space enthusiasts don’t believe that this is an issue. In fact, a Harvard Business Review article published last year suggested deliberately loosening safety regulations in order to spur on the increase of private sector activities in space: “policymakers should consider allowing private space tourists and settlers to voluntarily take on more risk than states would tolerate for government-employed astronauts. In the long run, ensuring high safety levels will be essential to convince larger numbers of people to travel or live in space, but in the early years of exploration, too great an aversion to risk will stop progress before it starts”.4 But what happens when brushing off risks leads to one or many deaths? Destruction of technology and loss of human life should not be taken as the cost of entry for a spacefaring society. For example, murky liability issues arose when a SpaceX rocket exploded on the ground in 2016.6 Imagine just how more complicated it would have been if it was a crewed mission.

As space tourism leaves the realm of science fiction and becomes our reality, ensuring safety will be paramount. In yet another gap in space law, government astronauts and private space tourists do not fall under the same legal guidelines. Government astronauts are required to go through rigorous physical training, examinations, and regular health checks to ensure their mental and physical well-being is maintained during their stint in space. Private companies sending space tourists, on the other hand, aren’t required to physically screen or prepare their spacefarers.7 Additionally, privately manufactured spacecraft don’t need to be reviewed for safety by a third party. This is due to the private space industry lobbying for a 2004 U.S. Congress moratorium on safety regulations.8

These hosts of legal concerns aren’t just theoretical. There are ways in which private corporations have already exploited the unregulated nature of space travel. One requirement of space law is that private companies apply to the government for licenses to launch and maintain satellites. The satellites are then registered with the government and the United Nations. This practice has been decreasing in recent years, despite corporations continuing to launch satellites at similar rates.9 Even the very definition of where airspace ends and outer space begins is unclear. Business’s rapid try, fail, and try again method may work well when prototyping new technology or developing ideas, but it has much more serious consequences when human life is brought into the mix. A lack of incentive to make their projects safe or sustainable, coupled with existing legislation full of holes and gray areas, makes it clear that legally regulating the private sector is the only way to ensure that their goals are executed safely.

This is an urgent goal. Currently, a completely privately run mission to other planets is still unrealistic without government help. The past few decades are littered with the failed plans of wealthy space enthusiasts—for example, the Space Island Project’s space station designed to host 20,000 people, entrepreneur Bas Lansdorp’s Martian colonization mission called Mars One, or Golden Spike’s roundtrip lunar expeditions.10 But while companies may be dependent on the government for now, this is not guaranteed to continue. Many companies are using the government as a mere stepping stone, “selling to NASA with the hopes of eventually creating and expanding into a larger private market”.4 To put it plainly, “[p]rivate space companies will likely continue to push forward independently of public demands”.11

There is no doubt that the public and private sectors can mutually benefit from collaboration on space activities. NASA gets to execute missions faster and at a much lower cost, and companies can get the money they need to sustain their business while gaining legitimacy in the public eye by associating with a dependably popular sect of the government.12 But this era of coexistence is coming to an end as companies begin to extricate themselves from their entanglement with the government. As the commercial space industry expands in size, scope, and influence, it is critical that its actions are heavily regulated through law. Space is where we need our ethics to be at our most rigorous. Whatever standards we set for ourselves now will go on to become precedent. Some have said that the OST’s ideas of space being humankind’s “common heritage” are just “statements of general goals and should be seen as mere moral or philosophical obligations” rather than legal ones.9 But what are laws if not our highest moral and philosophical intentions cast into an enforceable format? This new age of public and private space exploration is an opportunity to bring the very best of our world—the scientific merit of government missions, the innovation of private enterprise, the just and guiding goals of legislation—up to the stars and into the future.

References

1. Outer Space Treaty. United Nations General Assembly, 1967, https://outerspacetreaty.org/.

2. International Space Law. Space Foundation. https://www.spacefoundation.org/space_brief/international-space-law/

3. Gilbert, Alex. “Mining in Space Is Coming.” Milken Institute Review, 26 April 2021, https://www.milkenreview.org/articles/mining-inspace-is-coming.

4. Weinzierl, Matthew, and Mehak Sarang. “The Commercial Space Age Is Here.” Harvard Business Review, 12 Feb. 2021. hbr.org, https:// hbr.org/2021/02/the-commercial-space-age-is-here.

5. Sharma, Maanas. “The Privatized Frontier: The Ethical Implications and Role of Private Companies in Space Exploration.” The Space Reviews, SpaceNews, 7 Sep. 2021, https://www.thespacereview.com/article/4238/1.

6. Pasztor, Andy. “SpaceX Leads Probe Into Falcon 9 Rocket Explosion.” WSJ, The Wall Street Journal, 8 Sept. 2016, http://www.wsj.com/ articles/spacex-leads-probe-into-falcon-9-rocket-explosion-1473376404.

7. Dillon, Brandon. “Profitable Risk: The Dangers of Consumer Spaceflight and Space Tourism.” Viterbi Conversations in Ethics, USC, 12 Dec. 2020, https://vce.usc.edu/volume-4-issue-2/profitable-risk-the-dangers-of-consumer-spaceflight-and-space-tourism/.

8. Pultarova, Tereza. “Independent body proposed to ensure commercial spaceflight safety,” Space News, 26 April 2019, https://spacenews. com/independent-body-proposed-to-ensure-commercial-spaceflight-safety/.

9. Oduntan, Gbenga. “Aspects of the International Legal Regime Concerning Privatization and Commercialization of Space Activities.” Georgetown Journal of International Affairs, vol. 17, no. 1, 2016, pp. 79–90. JSTOR, http://www.jstor.org/stable/26396156.

10. Genta, Giancarlo. “Private Space Exploration: A New Way for Starting a Spacefaring Society?” Acta Astronautica, vol. 104, no. 2, Nov. 2014, pp. 480–86. ScienceDirect, https://doi.org/10.1016/j.actaastro.2014.04.008.

11. Pethokoukis, James, and John Konicki. “Do Americans Care About Space?” The New Atlantis, Spring 2022, https://www.thenewatlantis. com/publications/do-americans-care-about-space.

12. Howell, Elizabeth. “SpaceX: Facts about Elon Musk’s Private Spaceflight Company.” Space.Com, Future US Inc, 27 Apr. 2022, https:// www.space.com/18853-spacex.html.