Space needs private law

by Alexander William Salter
Monday August 31, 2020

The Cold War is back, and it’s heading towards orbit. American tensions with China and Russia are intensifying, especially since the test of anti-satellite weapons suspected by Russia. At stake is nothing less than a peaceful future in space. Operations in orbit and beyond require extraordinary precision and certainty. Any conflict can seriously hamper the operational effectiveness of governments and businesses. Fortunately, there is a solution that can benefit all parties: Give private law a major role in the order of the cosmos.

Without a doubt, space must be ruled. Corn governance is not the same as government. The virtue of private law – a set of rules based on consensual practices, rather than sovereign authority – is that it can lay the groundwork for future space activities, without starting a government race to project power. Where state power ends, private governance begins. It has worked several times on Earth, and it can work in space.

To understand why, we need to understand recent developments in space policy that have raised the stakes for celestial craft. NASA recently announced the Artemis Agreements, a series of bilateral agreements aimed at establishing standards and procedures for future space missions. The agreements are aimed at securing membership from U.S. allies who are also space nations, with the aim of cooperating with NASA’s ambitious Artemis program to return humans to the moon. Russia seemed like a natural partner, due to the successful collaboration with the United States on the International Space Station.

Instead, there was a falling out. Russia and China view the Artemis project and agreements as a space version of NATO: a politically motivated attempt to expand US hegemony. “Frankly, we are not interested in participating in such a project,” said Dmitry Rogozin, head of the Russian space agency. Russia views the US initiative as an attempt to privatize space, which in practice means celestial domination by whoever gets there first. China obviously agrees. Indeed, Rogozine spoke warmly of the collaboration with the Chinese, affirming that they are “definitely our partner”.

This is bad news, but we could avoid the dangers of factionalism if we use private law to avoid the staking of jurisdictional claims in space. Preserving a neutral domain in which space nations can interact to their mutual benefit would help keep the peace. This has been understood for over half a century. The 1967 Outer Space Treaty, still the backbone of public international space law, explicitly prohibits the extension of governmental jurisdiction to celestial bodies.

Thus, an alleged privatization by the United States, such as a 2015 law guaranteeing the property rights of American nationals to celestial resources, as well as a recent executive order encouraging the commercial development of space, is seen as contrary to the spirit of the treaty. America’s space rivals are on high alert to the extension of American sovereignty in space by extra-legal means.

Strictly speaking, these US initiatives comply with international treaty obligations. Combined with Artemis, they represent significant advancements in humanity’s journey into space. Nevertheless, Russia and China fear that there is a political motive behind these economic policies. In the interest of peace and cooperation, the United States should extend an olive branch not by falling back on Artemis, but by promoting private law.

Space nations can thrive under this system of governance, but only if states do not compete for sovereignty. For example, just look at international trade.

Trade between nations often involves entities from different jurisdictions. If they have a commercial dispute, no national court can hear the case. But that does not mean that international trade is lawless, far from it. These disputes are settled in private and voluntarily applied by the traders themselves. A private body of self-enforcing law, dating back to the early Middle Ages, evolved to meet the needs of traders. There are even organizations, such as the International Chamber of Commerce and the International Center for Dispute Resolution, that specialize in arbitrating such disputes.

Much of international trade law can apply to outer space. In addition, the Permanent Court of Arbitration already offers guidelines for the arbitration of space disputes. But that doesn’t mean that only private entities will rule the space. States still have an important role to play. For example, space nations should live up to treaty obligations by monitoring their nationals, making sure that no one tries to take over a planet in a fit of pride. This still leaves a lot of room for non-jurisdictional (and therefore private) space activity.

The development of a private space commercial law body is the best way to maintain peace in space. Unlike privatization, private law does not raise geopolitical red flags. In these early years of Space Age 2.0, we must all work to prevent international conflicts from stifling the exploration and development of space. Only then will humanity be free to extend its reach to the stars.

Alexander William Salter is Professor of Economics at Rawls College of Business at Texas Tech University, Research Fellow in Comparative Economics at TTU’s Free Market Institute and Contributor to Young Voices. Follow him on twitter @alexwsalter.

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