The Emerging Commercial Space Age: Legal and Policy Implications
Abstract
Once considered the final frontier, outer space has become the modern day Yukon territory. A burgeoning commercial economy is reshaping the balance of powers and expanding the breadth of activities beyond our atmosphere. Outer space is no longer the exclusive province of a select number of nation states engaged in geopolitical competition. A robust private sector has begun to stake its claim, ushering in a fundamentally different incentive environment that answers to shareholders and venture financers. As a consequence, the principles that persisted from the Cold War, and ultimately motivated the Outer Space Treaty[1] and its subsequent counterparts,[2] are no longer sufficient. Truth be told, they were never expected to be so. The United Nations Committee on the Peaceful Uses of Outer Space (“COPUOS”) never contemplated commercial uses when it adopted—and many nations subsequently ratified—its longstanding space treaties. While private actors have interacted with this environment for decades, the commercial space industry has only recently reached a point of maturity where entities can productively utilize orbital environments, cultivate an entirely new source of natural resources in lunar and cislunar space and further explore the translunar realm. Commercial space is having its moment, and it represents a monumental paradigm shift for space law and policy.
Considering the radical evolution of actors and activities in space, do the instruments and institutions that oversee it need to evolve as well? Traditional forms of public international lawmaking—multilateral treatymaking and institution building followed by each participant’s cooperative consent—may not meet the needs of private actors who bear little affiliation to the country they select to license their operations. Similarly, domestic regulations and policies from a government-mission minded era appear ill suited for the novel complexities of the commercial launch and communications capabilities that are rapidly eclipsing those of national governments. The diverse set of actors and activities in outer space also introduce a novel set of contexts and conflicts that impact private law. In effect, commercial space activity is spurring change that no one track can resolve independently, necessitating pluralist reform that extends the bounds of both public and private law.
A second-order problem that emerges is how to manage an ecosystem in which collective commercial interests diverge from national interests. As many nations become dependent on commercial space services and infrastructure, the balance of power is shifting toward a new calculus. Decisions by private actors now impose externalities that national actors experience immediately and directly, and vice versa, making both sides of the public-private dichotomy increasingly intertwined. Thus, if the law is intended to evolve into more efficient, wealth-maximizing rules, we must also ask who reaps the benefits of these efficiencies, and do they lead to sound policy?
These questions are vexing but timely and provide ample room for further scholarly development exploring ways to better manage the use of outer space. On February 3, 2023, the Journal of Law & Innovation hosted its symposium, “The Emerging Commercial Space Age: Legal and Policy Implications” at the University of Pennsylvania Carey School of Law.[3] The Symposium brought together leading international law scholars, economists, and telecommunications and antitrust policymakers to assess the twenty-first century space domain and its implications for legal and policy frameworks. Panelists and moderators emphasized the progress of commercial enterprise in outer space, how these increasingly complex and multifaceted interests would influence international space law and the paradigm shifts that must emerge in economic regulation and public policy to foster innovation and sustainable competition. The Articles in this volume touch each of these considerations and are an outgrowth of the presentations and moderated discussions at the Symposium.
[1] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967) [hereinafter Outer Space Treaty].
[2] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119; Convention on the International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereinafter Liability Convention]; Convention on Registration of Objects Launched into Outer Space, Nov. 12, 1974, 1023 U.N.T.S. 15; Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 5, 1979, 1363 U.N.T.S. 3 [hereinafter Moon Agreement].
[3] The symposium program and webcasts of the presentations and discussions are available at https://www.law.upenn.edu/institutes/ctic/jli/events.php.