The space industry is undergoing an interesting process, opening the market to private entrepreneurs and investors.
SpaceX provides a good example for a private commercial company with launch capabilities and the ability to operate transportation to and from the International Space Station. Further, private entities hope to lead the exploration of Mars and asteroid mining, recently, a mission to explore deep space was funded by private investors as well. And of course, there are several private companies that will operate sub-orbital flights for private space tourists.
While the above projects require massive investment in order to become operational, there are small-scale space projects that enjoy the financial support of the “average Joe”. A visit to “Kickstarter” reveals small space projects that were successfully funded by the website users, such as a sub-orbital spacecraft, a nano-satellite mission, an experimental mission of new miniature space hardware or other new projects that are still collecting funds.
While Kickstarter is an American web platform, there is a similar Dutch platform that focuses on equity-based crowd funding.
There is no doubt that these developments bring space closer to us all. Recalling the provisions of the Outer Space Treaty of 1967, which is the magna carta of international space law, the following question arises:
Should it be that simple to acquire a piece of the (space) action?
The 1967 Treaty does not restrict or forbid private space activity, however, according to its Article VI, the state will always be responsible (and consequently liable in most cases) for “national” space activities carried by non-governmental actors. The wording of this provision reflects a compromise between two opposite policies, on the one hand, the view of the former USSR according to which outer space should be accessible to states exclusively, and on the other hand, the American view which promoted non-governmental activities in outer space.
Getting back to the new developments in the private space sector, we can ask specifically:
- Can a micro investment by a private entity in a space project trigger state responsibility by becoming a “national activity” of the state?
- If so, should changes be made to the criterion of nationality as attributing private space activities to the state? (e.g. by amending the 1967 Treaty)
- Should states restrict the possibility of crowd funding for space projects in order to avoid massive exposure to international responsibility (and possibly liability)?
- If so, on the basis of which criteria?
Such questions are at the core of the development of private space activities, and they relate to law, policy and finance. Until regulatory progress will be made, space entrepreneurs will enjoy the relative freedom granted by default, as they lead humanity to new frontiers in outer space, and as their actions lead us, space lawyers, to new territories of legal thought.