Space travel not just science fiction anymore

Well, friends, welcome to the future. It’s been a big summer for space travel, and the new players are trying to make great leaps forward as quickly as possible. In the past week, SpaceX and Governor Rick Perry jointly announced the establishment of “the world’s first commercial launch complex for orbital missions” in Texas. This just a few days after a SpaceX test rocket launch ended in an explosion after liftoff on Friday, in what NBC called the company’s “highest profile failure by far.”

This is the new space race, everybody. It’s no longer the wholesome “astronaut exploring the galaxy” thing you saw when you were a kid. Today we see a very different group of players who are not so much speaking the language of “exploration” as that of “exploitation.” Move over, NASA, there’s a new kid in town. Instead of names like Apollo, Lockheed and Boeing, we are hearing names like Virgin Galactic, SpaceX, Blue Origin and Bigelow Aerospace. And behind those names are even bigger names.

The boys behind this new industry are none other than tech’s now-familiar brat pack of billionaire moguls. You have people like Tesla Motors architect Elon Musk, Virgin founder Richard Branson, Amazon CEO Jeff Bezos, and aerospace entrepreneur Robert Bigelow. And this new outer space pioneering comes with its own juggernaut of hype, PR, and marketing. New Space, as it has come to be called, is becoming big business.

This has a lot to do with the face that Old Space is getting, well, old, and needs New Space to pick up the slack. Back in 2010, US President Barack Obama rolled out a whole new blueprint for NASA operations, that shifted the responsibility for space transportation onto the private sector. The president voiced his commitment to developing this space initiative: “The bottom line is, nobody is more committed to manned space flight and the human exploration of space than I am.” A new system of private-public partnerships and contract deals has since emerged, leading to a decidedly more competitive and urgent push to find new ways to launch new things into the atmosphere.

The resulting space race is very different from the Cold War era jockeying between the Soviets and the US. The competition is on home turf, is often rather petty, and seems to have a total disregard for international agreements or guidelines. The vibe is very first-come-first-serve.

To the average layman, some of the plans being thrown around sound ambitious at best. In a field where everyone is dreaming as big and as hard as they can, it’s hard to say which horse to bet on. Branson’s Mojave-based Virgin galactic has plans to be shooting passengers into suborbital space within the next couple of years, at $250,000 a pop. SpaceX’s chief executive Musk outlined plans to colonize Mars, explaining “we’re either going to be on Earth forever until some extinction event claims us, or we’re going to be a multi-planet species.”

Professor Ram Jakhu, Associate Director at the Centre for Research of Air and Space Law in Montreal, member of the Space Security Council of the World Economic Forum, and Associate Professor of Law at McGill University, admits that these sort of proposals are not just a bunch of hot air.

“Everything is realistic,” Jakhu says. “Everybody is talking about all kinds of things. Space tourism is today. It is happening. And of course space tourism will lead to space colonization." 

But in spite of the hype, the rapid development of experimental technology, and optimistic projections of tourist flights taking off as early as next year, Jakhu points out that the legal guidelines supporting these kinds of projects is in need of some serious updating and clarification before everyone starts hopping on rocketships to the moon.

“With space tourism, for example, I don’t really see any international policy in place,” he says. “In Canada, I have not seen any significant move towards domestic policy either. This is maybe probably because there is not sufficient interest in Canada, compared to the US. However, I would suggest that the government of Canada or companies interested in this field start thinking about these things, and maybe within a few years come up with some ideas for policy development here.”

The two main legal documents that currently apply to space tourism and development are the 1967 Outer Space Treaty, and the 1979 Moon Agreement, which has been ratified by sixteen states. The two international agreements make up the legal framework for what you can and can’t do in space, and deals with some basic questions of responsibility. Both agreements talk about not disturbing the environment of the Moon and other celestial bodies, and non-government institutions like the Committee on Space Research (COSAR) are working on guidelines for environmental sustainability in space.

“My personal view is that there has to be clarity of law, for companies,” Jakhu says. “Companies may not like to see laws, they say it’s too much constraint on their freedoms, but in case damage is caused or something happens, they need to become responsible. There is the question of liability, and also the question of insurance.”

One of the main rules in place that private developers are finding ways to work around is the prohibition of appropriation. Robert Bigelow, the Budget Suites of America mogul who now heads up Bigelow Aerospace, which designs inflatable space habitats, has been talking property rights. Bigelow wants the US government to issue a ruling that would give entrepreneurs property rights to protect their investments as they exploit the moon’s resources. “Property rights provide order and reduce tribal warfare,” Bigelow stated at a news conference in 2013. When asked if he thought anyone should be allowed to own parts of the moon, Bigelow responded “No. No one anything should own the moon. But yes, multiple entities, groups, individuals, yes, they should own the moon.” He also urged the US government to make haste on these kinds of legislations, because if the US failed to do so, a rival nation (here Bigelow specifically referenced China) would beat them to it.

Of course, some would say that the Moon Agreement prohibits this kind of ownership. 

“There are two ways of overcoming this,” Jakhu explains. “One way is to have an international venture, where you have companies coming together from different countries and coming together into a shared initiative through an international agreement. The other, of course, is to actually read the legal treaties. The 1967 treaty imposes a very broad and stringent prohibition that you cannot appropriate by any means. The 1979 agreement gives you some flexibility. And because the second agreement comes later, it prevails over the 1967 treaty.”

Jakhu also points out a crucial point of discussion in the Moon Agreement, the controversial Article 11, which states that the Moon cannot be claimed, that its natural resources belong to all mankind, and that the benefits derived from any extracted resources are to be shared equitably.

“People talk about the Moon Agreement requiring the equal distribution of benefits of exploitation, but this is quite simply wrong,” he says. “The Moon Agreement does not say ‘equal,’ it says ‘equitable.’ There is a big difference between these two things. Secondly, this ‘sharing’ applies only when there is an international regime formed, after exploitation has become feasible. Currently exploitation is not feasible, and there is no international regime, so you can go ahead and do whatever it is you want to do, and then you don’t need to share. It’s very simple. It says this in Article 11.”

The present international arena is very different from 1979, and the international community has been quick to point out the problems with the current legal framework. The 2004 Space Law Report from the International Law Association found that freedom of exploration and use were conflicting with principles of sovereignty and non-intervention in internal affairs of states, principles of exclusive jurisdiction, and state sovereignty over natural resources. The growing need for more national space legislation over private enterprise, more clarification on international laws and mechanisms, and guidelines for sustainable development were the main discussion points at the most recent session of the UN Committee on the Peaceful Uses of Outer Space this summer.

“Companies are investing a lot of money, and studies are being done,” says Jakhu. “but my view is that countries interested in the exploitation of resources or commercial ventures should prioritize ratifying the Moon Agreement, because with it you can explore, use, and exploit and keep everyone happy because it establishes it as an international venture.”

It is difficult to say what sort of role Canada would play in all of these processes. Jakhu doubts we will play any significant role in policy development, due to a lack of precedent and interest at home.

“Currently there are no laws in Canada specifically addressing private space travel,” he says. “In terms of international policy initiatives, I have not seen anything.  There needs to be a movement in this direction, but the government of Canada is not moving in this direction. These laws and policies have been adopted in accordance with purpose and need. There is simply no urgent need in Canada to push for these clarifications... Currently.”

“I will say however that the government of Canada or companies interested in this field in Canada should start thinking about these things, and maybe within a few years come up with some kind of policy development in Canada,” he adds.