Moon Express regulatory approval prompts questions about space law

An artist’s depiction of Moon Express’ MX-1 spacecraft on the surface of the Moon. Image Credit: Moon Express

Pioneering space endeavors often run far ahead of the international laws and regulations that serve as legal frameworks to guide humanity’s exploration of space. Two recent cases have brought the question of who has the right to travel to, and in some cases, exploit space-based resources.

Planetary Resources, a Redmond, Washington-based company has its eyes set on the untold mineral riches found in our solar system’s asteroids. U.S. President Barack Obama signed the U.S. Commercial Space Launch Competitiveness Act (H.R. 2262) into law late last year (2015). Under this law, those companies that reach the various celestial bodies that are being eyed as potential destinations to mine are able to engage in commercial exploration and exploitation of non-biological space resources.

As the Space Race of the 1960s continued, the United Nations’ Committee on the Peaceful Use of Outer Space met many times to draft the Outer Space Treaty. It was signed by the U.S., United Kingdom, and Soviet Union on Jan. 27, 1967. Since then, over a hundred countries have signed and ratified the treaty. Image Credit: United Nations

“This is the single greatest recognition of property rights in history,” said Eric Anderson, Co-Founder and Co-Chairman, Planetary Resources, Inc. via a release. “This legislation establishes the same supportive framework that created the great economies of history, and will encourage the sustained development of space.”

While Planetary Resources is targeting potential destinations far outside Earth’s gravitational sphere of influence, another NewSpace firm has a location much closer in mind. However, Moon Express still had to navigate the prerequisite red tape before they could attempt lunar orbit insertion.

Last week, Moon Express’ MX-1E spacecraft was cleared by the Federal Aviation Administration (FAA) – a branch of the U.S. Department of Transportation – for a commercial landing on the Moon in late 2017. This approval is required by the 1967 Outer Space Treaty, signed by the U.S. and more than a hundred other countries, which outlines the basic principles of international space law, determining elementary rules regarding the use and exploration of space by governments and other entities.

In addition to being the basis of international space law, the treaty was designed to bar states that sign the treaty from putting weapons of mass destruction into space, be it in Earth orbit or on the surface of the Moon. It also requires, in Article I, the exploration of space be done to benefit all countries and shall be free for exploration and use by all states and specifies rules regulating space exploration activities.

Article III constitutes the exploration and use of space should be in accordance with international laws in the interest of maintaining international peace and security and promoting international co-operation and understanding. 

However, the most relevant for current private space exploration discussions is Article VI, which states every activity of a non-governmental entity in space requires authorization and continuing supervision by the appropriate country.

In accordance with this article, the FAA, representing the U.S. government in regulating U.S. commercial space transportation issues, gives approvals to U.S.-based companies for space missions. Moreover, the agency ensures a possible launch of a spacecraft into space does not jeopardize public health and safety, safety of property, U.S. national security or foreign policy interests, or international obligations of the United States. The FAA is obligated to make these payload determinations by the Commercial Space Launch Act (51 U.S. Code § 50904).

This legislation imposes payload determination on the Secretary of Transportation in order to establish whether all required licenses, authorizations, and permits required for a spacecraft have been obtained. Therefore, if a payload operator like Moon Express or Planetary Resources were to launch its spacecraft without approval, it would violate domestic as well as international law.

“Launching a payload without the approval violates international, national and every rocket agreement that operator felt it was appropriate,” Hank Price of the FAA, told SpaceFlight Insider. “Every launch license is done under consultation with the Department of State.”

While the 1960s-era treaty is vague in much of its wording, it does provide a legal framework. New legislation is and will continue to be built around it. However, as space exploration advances and more private companies strive to do business in space, the question of who owns and can use particular areas of space or its resources is continually returning.

Tagged: Federal Aviation Administration Lunar Moon Express The Range

Tomasz Nowakowski

Tomasz Nowakowski is the owner of Astro Watch, one of the premier astronomy and science-related blogs on the internet. Nowakowski reached out to SpaceFlight Insider in an effort to have the two space-related websites collaborate. Nowakowski's generous offer was gratefully received with the two organizations now working to better relay important developments as they pertain to space exploration.