Space is big. You just won’t believe how vastly, hugely, mind-bogglingly big it is. I mean, you may think it’s a long way down the road to the chemist’s, but that’s just peanuts to space.

Douglas Adams, The Hitchhiker’s Guide to the Galaxy

Of all the great adventures that humanity can embark on in the near future, none has captured the popular imagination quite like space exploration. Since before the time that humanity launched the first artificial satellite, we have dreamed of what it might be like to set foot on other worlds. Where dreams lead, however, the bureaucrats are sure to be lurching close behind. Passing judgment and crafting policy has long been the pleasure of the professional statist. In man’s adventure into space, such a creature was given a rare gift: A virgin field, unframed by any law save those of nature. Before even the first V-1 was launched, there were those who contemplated both exploration and policy.  Theodore von Kármán, one of the founders of Aerojet, an early rocket company, had this to say in 1942, just after the incorporation of the company, “Now, Andy, we will make the rockets – you must make the corporation and obtain the money. Later on you will have to see that we behave well in outer space…After all, we are the scientists but you are the lawyer, and you must tell us how to behave ourselves according to law and to safeguard our innocence.[i]” There were, at that time, no laws on the books to describe allowable action, inactions, and responsibilities that would accompany space flight. But in the next two decades, such a field would develop.  Andrew Haley would be one of the main crafters of space law[ii], even coining a term for it, ‘metalaw.’

The laws that would be crafted were largely a creation of their time when the UN was paralyzed between cold warriors. As such, they are imbued with a certain neutrality and compromise. The most famous and overarching of these regulatory documents was the 1967 ‘Outer Space Treaty.’ This treaty laid down some basic conventions which are still honored today, such as Article V forbidding the placement of WMD’s in orbit, on the Moon, or in any sort of stationary platform or satellite. There are gaps, though; the treaty mentions WMD’s but not conventional weapons, so in theory, orbital bombardment is still allowed. Another gap in the treaty, one that is becoming increasingly relevant, is the use of resources in space. At the time the treaty was written, the idea of commercial entities who could perform their own launches or exploit resources was inconceivable. Now there are at least eighteen competing commercial space companies. That’s only counting ones working on launch vehicles. There are many other companies that specialize in other areas and more being created every day. That would come as a grand surprise to the many bureaucrats who were stuck in a binary view of policy, who could never imagine advances beyond what they saw before them. Even more pressing today: the treaty does not allow any nation to claim territory in space. The moon, asteroids, and all other stellar bodies are seen as communally owned and for the benefit of all mankind[iii].  That might come as news to the several space mining companies that are looking to exploit the potential trillions of dollars of precious metal and rare earth elements that are locked in the numerous asteroids in the solar system[iv].

Indeed, as much the way that regulators were unable to predict the rise of disruptive technology online or in new media, they were equally unable to foresee the rise of a whole industry based around the idea of exploiting the resources present in the solar system and beyond. In attempting to placate the powers of the time, they left no room for innovators to build on the fantastic possibilities of space exploration. This has meant that those who wish to dream of riches from beyond the world must go to antiquated documents written in a time before we had even set foot on the moon. Even when the push against regulation comes, one must also wonder how hard the early pioneers of space exploitation will try to close the door behind them in order to throttle competition. In a truly free market, companies would not have to go hat in hand to the national regulators to get launch permission, then comb the international laws looking for a loophole to exploit in their quest for mineral exploitation. Rather, it would only be a matter of capital investment and an entrepreneurial spirit that would lead the way. Of course, as the race for asteroid wealth increases pace it is certain that some enterprising person will find a way around the laws, even if it means approaching their state looking for succor to reach around international regulations.

Space is big, but governments currently control the sky that separates us from heavenly riches. There will undoubtedly come a time when the exploitation of space resources becomes a common practice. It is important for the allies of economic liberty to push for the reforms needed to open up a truly free market, so when that success comes, it will be that much harder for the bureaucrats to take the credit for the success that their laws would have nearly strangled in the crib.

________________________________________________
[i] Andrew G. Haley (1963) Space Law and Government, page xii, Appleton-Century-Crofts
[ii] Daniel Lang and Brendan Gill (December 29, 1956) The Talk of the Town, “Metalaw”, The New Yorker, p. 19
[iii] Jennifer Frakes, (2003) The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise? Wisconsin International Law Journal, 21, at 409
[iv] Webster, Ian “Asterank” Asterank