Governments have been exploring space for a while, but the influx of private players has altered the rules of the game. What are the laws governing space today?
When we think of space players, we think of state and regional space agencies, such as Indian Space Research Organisation (ISRO) and the European Space Agency (ESA). But the world has changed since the cold war decades of the last century. In 2015, governments spent US $76.7 billion in space—which was just over one-fifth of all such expenditure. Four-fifths of the space economy is in the hands of private corporations. These include “old space” such as Airbus and Boeing, and “new space” such as Elon Musk’s SpaceX and Jeff Bezos’ Blue Origins. In China, a generation of new private space companies grow alongside the Chinese National Space Agency. In India, ISRO has a parastatal as its commercial wing—Antrix. Now the ball is in the court of famous conglomerates such as Tata, Mahindra, and others, to diversify into satellites and space launchers.
Today we have six decades of developing an acquis of international space law. The International Institute of Space Law was founded in 1960. Universities such as Leiden in the Netherlands and McGill in the US have schools of air and space law.
Space law builds on aviation law, law of the high seas, and the Antarctic Treaty. The foundational Outer Space Treaty of 1967 has been signed and ratified by 108 states. Its principles include that all nations may participate in space exploration. It prohibits annexing the moon or other celestial bodies, building military fortresses on them, and stationing nuclear and other weapons of mass destruction in space or on the moon.
The treaty defines astronauts as envoys of all humanity. Provisions of this treaty were elaborated by a series of later treaties. The Rescue Agreement of 1968 obliges all countries to rescue stranded astronauts and return them to their home country. So far, astronauts whose flights have been aborted all landed within their own country.
The Space Liability Convention of 1972 obligates the state from which a spacecraft is launched to compensate for any damages it may cause. For example, Russia paid Canada to cover the costs of clearing up radioactive remains when one of its nuclear-powered satellites crashed into Canada’s arctic north in 1978.
The Registration Convention of 1976 requires every launching state to record every satellite they may launch. This is not always done, and there is no penalty for default. A few years ago, Russia launched a reconnaissance satellite, Kondor-E, on behalf of South Africa. But neither of those two states registered the satellite, which reportedly later went defunct. The most unsuccessful attempt to date in space law is the Moon Treaty of 1979—no space power has signed it. This treaty reiterated that no country may lay claim to the moon.
The reality of international power is that the US promulgated its statute called the Commercial Space Launch Competitiveness Act of 2015. This law explicitly permits a corporation to exploit space resources such as mining, deferring to the Outer Space Treaty by merely stating the US will continue to not claim sovereignty nor practice annexation of the Moon or other celestial bodies. The statute was lobbied for by US companies such as Planetary Resources, Deep Space Industries, and Bigelow Resources, which hope to one day mine asteroids for platinum and other minerals.
Luxembourg has also passed a similar law. Its significance is that Luxembourg is a corporate tax shelter state, which attracts the siting of the head office of many global companies.
International space law prohibits stationing nuclear and other weapons of mass destruction in space. The first military activity in space was reconnaissance satellites. For example, the US has since the 1970s monitored the entire globe for nuclear tests and missile launches. Those space sensors have also reaped benefits for science, such as recording bolides (fireballs) and other large meteors entering our atmosphere.
The military services of countries show many variants of organisation. Russia more than a decade ago merged its strategic missile forces with its air force. The US is moving in the opposite direction. It has started to hive off its space force from the US Air Force and other services. This will not of course mean a manned military base orbiting in space—its personnel will be operating from bases buried under Cheyenne Mountain and elsewhere.
Building rockets and launching satellites is an enterprise that struggles to break even. More profitable is building communication and other satellites. Elon Musk has announced that he is diversifying into satellite construction, to generate profits that can fund his aim of flying passengers to Mars. The most profitable segment of the space economy is the ground segment—digital processing of imagery and other data. India is strong in software companies, and may increase her future participation in this.
Future visions of space tourism and space industrialisation depend upon reducing the prohibitive cost of access to space. The key to this is reusable space vehicles—RLVs. For six decades, satellites and astronauts were launched from rockets used only once and discarded. Imagine what air fares would cost if a jumbo-jet could only fly once!
SpaceX has pioneered its Falcon 9 rockets which fly back to the launch pad or a drone barge with a powered descent. If each rocket can be reused a dozen times or more, this will make a significant mark on the bottom line. Blue Origin will also launch reusable boosters.
However, powered ballistic descent is the least cost-efficient method of reuse. The next step of progress will be using winged vehicles. The US company Sierra Nevada is developing its Dreamchaser, which like the late US space shuttle can land on a runway.
But these are only partially reusable. SpaceX has not yet recovered a second stage rocket. Dreamchaser will be launched on top of an expendable rocket.
One British proposal is for Skylon—a winged spaceplane which will take off from a runway, fly to orbit, and return to a runway. So far, after three decades of lobbying, the company Reaction Engines has only raised funding to build a scale model of its engine for static testing.
The most futuristic concept, which could lower the cost of going to orbit by two orders of magnitude, comes from India. Back in the 1980s a Defence Research and Development Laboratory (DRDL) team did the number-crunching to propose a spaceplane named Hyperplane in its full-scale variant, and a mini version called Avatar. This drew on a US proposal to use liquid hydrogen fuel to condense oxygen out of the atmosphere during flight.
The maths of taking off with an empty liquid oxygen (LOX) tank, and only filling it during flight, means that Hyperplane/Avatar would gain a far greater payload capability than Skylon. But DRDL’s mandate is confined to weapons. Simultaneously, ISRO has its own, different trajectory for a reusable technology demonstrator. So the Hyperplane-Avatar project was mothballed. But DRDL did declassify its blueprints and technology, which is available for either ISRO or any company in India to develop—or even in other countries. I predict that we have not heard the last of the Hyperplane-Avatar concept, and we will see a future growth of space travel and space tourism utilising its cost-cutting advances.
(Keith Gottschalk is a political scientist at the University of the Western Cape, Cape Town, South Africa)
(This blog was first published in Down To Earth's print edition dated May 1-15, 2019)
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