Space, despite being a vacuum, is heating up. Last month CB Insights detailed 57 start-ups that are focused on the possibilities of space. From big-name launch providers such as SpaceX and Blue Origin, through to Cuberider, an Australian educational start-up, “SpaceTech” is certainly taking off.

This post highlights gives our thoughts on some the legal issues for these SpaceTech companies looking to tackle the final frontier.

Not quite the Wild West …

The first thing that SpaceTech companies should keep in mind is that space is not quite the Wild West.

There is a significant body of space law already in place, in the form of various treaties and principles developed under the auspices of the United Nations, and administrated by the UN’s Office for Outer Space Affairs.

Other international organisations also play a role in regulating space. For example, the International Telecommunications Union is responsible for allocating the limited number of geostationary orbit spectrums available for use by satellites.

… but there are some gaps

There are, however, some gaps in the extra-terrestrial legal regime – most notably with respect to private exploitation of space resources.

This issue is coming to the fore as companies, such as Planetary Resources and Deep Space Industries, develop the means to mine precious metals from asteroids. In anticipation of such activity, the United States passed the U.S. Commercial Space Launch Competitiveness Act. §51303 of this Act provides that:

“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource … shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.’’ (our emphasis)

The intent here is clear enough – but the problem lies in the italicised sentence. Under the Outer Space Treaty, which the United States is party to, the “national appropriation” of celestial resources is expressly prohibited.

Whether private exploitation of these resources would contravene the “international obligations of the United States” under the Outer Space Treaty is a topic of debate, and the law in this area remains unsettled.

Earth law still applies

Despite their lofty ambitions (and launch trajectories), each and every SpaceTech company remains subject to the laws of its jurisdiction of incorporation – and the laws of wherever else it carries on activities.

Likewise, humans in space are also subject to a variety of Earthbound legal regimes. For example, a Canadian in Russia, flying in a spacecraft registered in the United States, would be, at the moment of launch, subject to the laws of all three jurisdictions.

Complying with all these different laws could be a major headache for a SpaceTech start-up. Identifying all the potential legal impacts of your activities at an early stage, and early engagement with your national space agency, is essential to avoid costly delays (or even costlier lawsuits).

Political issues should also be taken into account

Political issues in space are not new. Indeed, many of humankind’s greatest achievements in space were driven by the geopolitical contest known as the “Space Race.” For SpaceTech companies, operating within the uniquely international space legal regime requires sensitivity to the political issues, both in their home country and around the world, that may affect their activities.

There is also a noted tendency for many States to view space primarily through a military lens. Private entities need to keep in mind the potential for military restrictions on their space-based activities, and develop plans to avoid their space-based assets becoming collateral damage in the event of space conflict.

Fortunately, a consortium of universities are currently developing the Manual on International Law Applicable to Military Uses of Outer Space in order to clarify the fundamental rules applicable to the military use of outer space, in times of peace, as well as in periods of tension and conflict. Once complete, the Manuel should offer a degree of guidance to private entities seeking to assess risks to their space-based assets.

Our take

The growth of SpaceTech should spur the further development of space law. After all, an exciting new frontier leads to equally exciting legal questions.