Mankind has been exploring outer space since the late 1950s, which is to say about 60 years at the time of this writing. The Soviet Union launched the first artificial satellite, Sputnik I, into orbit on October 4, 1957. Shortly thereafter, Russian cosmonaut Yuri Gagarin because the first human to travel into space on April 12, 1961. Not to be outpaced by the Soviet Union, the United States launched the Apollo 11 mission and, on July 20, 1969, successfully landed American astronauts Neil Armstrong and Buzz Aldrin on the surface of the moon. These remarkable accomplishments were all carried out by and at the direction of terrestrial governments.

Despite the significant length of time that humans that have been launching themselves beyond earth’s stratosphere, the international legal framework for space exploration and exploitation that was adopted in the 1960s has not changed very significantly. The Outer Space Treaty, also known as the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” was signed in Washington, Moscow, and London on January 27, 1967. Its greatest flaw is glaringly apparent, namely that it fails to address how crimes should be prosecuted against individuals or how private legal disputes will be settled in space. The underlying assumption of the Outer Space Treaty seems to be that activities in outer space will be primarily carried out by or at the direction of government entities. This assumption is becoming more baseless with every passing day. The captains of the space industry are advancing their progress toward the realization of private, profitable commercial activity in space at a meteoric rate. Unfortunately, the world’s governments are all but ignoring this inevitability.

The 21st Century promises to be a new era of activity in outer space where private actors play a far more prominent role than in the past. However, international law currently prohibits nation-states from claiming sovereignty over outer space or over objects in space, such as asteroids or planets. The problem is that jurisdiction and sovereignty usually go hand-in-hand. When the first crime is committed in space, or when the first civil cause of action arises in space, questions of jurisdiction alone will undoubtedly stymie even the best legal experts. Consider the following scenario:

Suppose X-Corp, a multinational corporation based in China, establishes a lunar mining outpost on Earth’s moon for the purpose of harvesting Helium-3 (“H3”). Y-Corp, another multinational corporation based in Germany, establishes another lunar mining outpost for harvesting H3 that is fairly close to X-Corp’s. The employees working at both outposts are citizens of a wide variety of countries. Both corporations regularly employ survey teams that scour the moon’s surface in order to search for new deposits of H3. Survey teams from X-Corp and Y-Corp simultaneously discover a “mother lode” of H3. A lead surveyor from X-Corp’s team gets into a heated argument with a lead surveyor from Y-Corp’s team about which team discovered the H3 deposit first. The altercation between the lead surveyors becomes a mutual affray. During the scuffle, the X-Corp surveyor accidentally damages the respiration system of Y-Corp surveyor’s spacesuit, resulting in the Y-Corp surveyor’s death by suffocation. The X-Corp surveyor is a citizen of Brazil. The deceased Y-Corp surveyor is, or was, a citizen of Australia.

Under the current legal international regime, the preceding situation would result in a legal catastrophe. There would be calls for the criminal prosecution of the X-Corp employee, who would likely claim self-defense. X-Corp and Y-Corp would sue each other over the rights to harvest the disputed H3 deposit. The Y-Corp employee’s family would likely want to file a wrongful death lawsuit against X-Corp, Y-Corp, and the individual X-Corp employee. Worst of all, no one would have any clear idea as to where any of these cases should be filed or what
bodies of law should apply.

It should not be necessary to create an entirely new body of law, or an entirely new court system for that matter, to settle civil disputes and criminal matters in space. What is necessary, however, is a clear international agreement as to how jurisdiction will be decided when legal matters involving private individuals and entities arise in outer space or on the surfaces of celestial bodies. Ideally, this should be done ahead of time and with a great deal of forethought. And it should be done soon. The second Space Age is imminent, and the governments of the world cannot afford to wait much longer.