OpEd: Space Law for a Moon-Mars Program

U.S. President Barack Obama has made it clear that his administration intends to maintain a strong and expansive space program. The president’s 2010 budget request seeks $18.7 billion for NASA. In addition, the president’s economic stimulus package – the American Recovery and Reinvestment Act, signed into law Feb. 17 – allots an additional $1.2 billion to NASA, of which $400 billion is tagged for exploration.

Expanding human presence into space requires consideration of a broad array of policy and legal issues. A foundational body of national and international space law is already in place to guide plans for sending spacecraft and people back to the Moon, and, eventually, on to Mars and elsewhere.

The guiding principles that nations adopted at the beginning of the Space Age have brought 50 years of maintaining space for worldwide beneficial uses. At this time, when policies and programs are being examined, it is useful to consider why and how this ongoing success in avoiding space wars was achieved.

When the U.S.S.R. launched Sputnik 1 on
Oct. 4, 1957
, other nations reacted with fear of Soviet capability to launch weapons of mass destruction. Sputnik created the perception of a military problem of defense. In the
United States
, Senate Majority Leader Lyndon B. Johnson began a preparedness investigation in the Armed Services Committee. Scientists and engineers called to testify explained that the space environment could be used for many peaceful purposes – global communications, meteorology, navigation, remote sensing and scientific investigations. The concept of the problem consequently changed from fear of war to hope for peace. Senators learned that the outer space environment is entirely different from the Earth, air and sea, and that science and technology dictate what can and cannot be done in space. Adjustments must be made to microgravity, cosmic radiation, solar flares and storms. Spacecraft and astronauts must be protected. All such factors create the need for regulation.

As NASA was formed, three forces converged to define the conditions essential for safety and order in space: nation states with responsibility for action, scientists and engineers organized to collaborate on space research, and the United Nations to serve as a forum for negotiated legal principles to guide the development and maintenance of space for peaceful and beneficial purposes. The world was unified on the objectives of preventing conflicts in space.

In its declaration of policy and purpose, the 1958 National Aeronautics and Space Act (the NASA Act), a product of the Senate hearings, calls for “the establishment of long-range studies of the potential benefits to be gained from, the opportunities for, and the problems involved in the utilization of aeronautical and space activities for peaceful and scientific purposes” and “cooperation … with other nations and groups of nations in work done pursuant to this Act and in the peaceful application of the results, thereof.”

In 1959, the United Nations formed a Committee on the Peaceful Uses of Outer Space, and this committee began drafting a set of treaties to govern the uses of outer space. In 1967, the U.N. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (the Outer Space Treaty) went into effect, providing an international legal platform for regulating space activities. To date, 100 nations, including the United States, have ratified the treaty, which specifies that “the exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind” and that “outer space … is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

Plans for sending spacecraft and people back to the Moon, and eventually on to Mars, and elsewhere, are in accord with national and international space law. International cooperation in these endeavors is also in accord with this framework. Since 1958, NASA has made thousands of international scientific and technological space agreements in the form of memoranda of understanding, executive agreements and letter agreements. This practice has linked nations in a remarkable pattern of international space cooperation for peaceful purposes.

In the current global environment, all nations face problems in financing their space projects. The motivation for exploration is so strong, however, that, as it was in 1957, hope is stronger than fear of defeat. Government and the private sector cooperate on space activities, but there are occasions when their motivations collide. Government is responsible for national defense and humanitarian space projects. Private industry is motivated by the necessity of making a profit. The government cannot expect industry to undertake space activities that are not profitable, and industry cannot expect to be unregulated. Both groups must comply with the facts of space science and technology, which are often the deciding factors.

NASA faces important policy questions in mapping our future in space. How will the public and Congress be informed so they can decide whether to support a long-term commitment to a Moon-Mars exploration program? What will NASA’s guidelines be for working with other nations on missions to the Moon and Mars? Will NASA seek international partners for both human and robotic missions? What policy will be followed if and when exploration leads to commercial uses? What sort of regulatory framework will be needed for such activities? As policy options are formulated for
U.S.
activities in space, it is heartening to know that a time-tested legal framework is in place to guide decision making. NASA has the national and international legal authority to enter partnerships with other nations. For 50 years, international cooperation has been effective in keeping outer space safe and orderly for developing benefits and preventing space wars. All nations face the challenge of paying for the high cost of space cooperation, but the motivation to extend knowledge and use for human benefits is so strong that this impediment will ultimately be overcome.

Eilene

Galloway advised House and Senate leaders on the formation of NASA, the establishment of the United Nations Committee on the Peaceful Uses of Outer Space, and the writing of the 1967 Outer Space Treaty. She was a founding member of the International Institute of Space Law.