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The SPACE Act, an Expanding Commercial Space Sector, and U.S. National Security

By: Frank E. Waliczek

The world watched in awe as the United States put the first man on the moon in 1969 during the “Space Race” against the former Soviet Union. Though it was wonderful publicity for the country and an incredible feat of humanity, the primary goal of U.S. space programs has always been to improve American security. As weapons and space technologies advanced during this intense competition for world power so too did the need for increased intelligence gathering, communication capabilities, and military presence in outer space. This led the world to debate the ways in which space should be regulated, and between 1967 and 1979, five international space treaties were created by the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS).

The public has once again been captivated by space, as commercial space companies, like SpaceX and Orbital Sciences, are now the adversaries of our modern space race, battling for resources and advancing scientific technology. The few world powers that had monopolized space exploration throughout the Cold War era now share these capabilities with commercial sectors and governments worldwide. The U.S. remains the pre-eminent space power and their strategic approach during the Cold War era remains the same, but these advancements have created serious new threats to U.S. security. In response to the ever-evolving space capabilities of the commercial sector, Congress passed the Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act in 2015. However, many nations have criticized the SPACE Act, arguing that it violates international law and will be considered a provocative measure by most nations.

The primary purpose of the Act was to encourage U.S. citizens to engage in commercial space exploration by providing them with the right to possess, manipulate, mine, and sell celestial resources found in outer space. The need to form relationships between private and public entities to protect national security interests led Congress to enact the SPACE Act. Additional motivation to pass the Act came from the fear of U.S. investors to risk large amounts of capital to support the uncertain future of commercial celestial mining. The Act also outlined the relevant federal agencies to be in charge of regulating commercial space activities and extended the indemnification period for which commercial space exploration entities would be liable for third-party damages arising from their activities to 2025.

COPUOS’s Outer Space Treaty of 1967 was the first and most important of the five international space treaties. The Outer Space Treaty has 107 signatory nations, including the United States, and established the foundation of space law. The Treaty included restrictions on the use of outer space and bans the storage of Weapons of Mass Destruction (WMD), prohibited the creation of military bases, and barred any nation from asserting sovereignty over the Moon or any other celestial bodies. Furthermore, the Treaty requires that all exploration of space must be free to all nations, for the benefit of all nations, and accomplished solely for peaceful purposes.

The international community has criticized the legality of the SPACE Act, claiming it violates the appropriation clause of the Outer Space Treaty. Article II of the Outer Space Treaty states that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Critics argue that because the U.S. has now created laws allowing their citizens to take ownership of resources found on celestial entities, they have effectively asserted a claim of sovereignty, or national appropriation, over outer space. However, the U.S. rejects these claims and argues that steps like the SPACE Act must be taken to accommodate the rapidly growing international commercial space sector. The U.S. insists they did not make a claim of sovereignty through the Act’s enactment, rather that it is the first nation to address the issue. To support these claims, the U.S. cites Article I of the Treaty, which grants all states the right to free exploration and use of outer space.

The SPACE Act has likely opened the door for other nations to take similar legal steps to ensure they do not miss out on the “celestial gold rush.” Being the first nation to take action to promote and protect commercial space exploration has created large advantages for the United States. The U.S. has further increased their space dominance and gained a crucial advantage in the commercial space sector. More importantly, though, are the relationships that will likely be formed between national security agencies and commercial space entities. As the commercial sector continues to develop more efficient technologies for launching mining and exploration programs into outer space, these federal agencies will seek to create partnerships to enable their agents to join these missions.

Through these prospective partnerships, the SPACE Act not only offers economic benefits but also opportunities for improved national security. Among many things, the partnerships will allow for more affordable reconnaissance missions to monitor potential threats, manage military forces, and ensure the success of intelligence operations. While commercial programs research the uses of celestial resources on Earth, national security agencies have to potential to expand and employ various communications and intelligence gathering systems under the veil of this commercial research.

The United States will certainly reap economic and security benefits from being the first nation to pass a law like this, but it will also bear the burdens associated with leading new legal frontiers, as many questions exist regarding how certain ambiguous terms of the Act are to be defined. Though many in the international community have contested the legality of the Act, the debate will likely pivot to focus on how far commercial protections can be extended as more nations begin to establish similar laws.

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