On Thursday, SpaceX is set to make history with Polaris Dawn, the first-ever spacewalk conducted by private civilians. This groundbreaking mission, led by billionaire entrepreneur Jared Isaacman, brings together a team of four civilian astronauts for a five-day journey, venturing further from Earth than any crewed mission since the Apollo program in 1972. Yet, as SpaceX pushes the boundaries of human space exploration, legal experts are questioning whether the United States is upholding its obligations under a 50-year-old space treaty.
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| A view of Earth and the Dragon capsule's Skywalker spacewalk platform shortly after the Polaris Dawn crew launched into an orbit on September 10, 2024 |
The Outer Space Treaty (OST), signed in 1967 during the height of the Cold War, established fundamental principles for the peaceful use of space. One critical provision of the treaty, Article VI, requires that nations bear responsibility for activities in space conducted by private companies, ensuring such activities are authorized and supervised by the government. SpaceX's mission, however, operates outside NASA's jurisdiction and is not subject to direct oversight by the U.S. government, raising concerns that the United States may be in violation of its longstanding international commitments.
A Milestone for Private Space Exploration
Polaris Dawn, which launched on Tuesday from Kennedy Space Center, is the latest step in SpaceX's ambitious quest to privatize space travel. The crew, consisting of Isaacman, two SpaceX employees, and a former military pilot, are preparing to conduct a spacewalk—a daring feat traditionally performed by astronauts from government-run space programs. Elon Musk’s company has developed advanced spacesuits and is keen to test them in the vacuum of space, marking a new chapter in private space exploration.
Until now, only state-run agencies like NASA or Roscosmos have carried out spacewalks, but SpaceX’s involvement in human spaceflight has changed the landscape. The company’s spacecraft, Dragon, has already proven itself by ferrying astronauts to the International Space Station. Polaris Dawn represents the next evolution in private space missions, but with this bold move comes a renewed debate over the legality of these private ventures.
A Cold War Treaty Meets New Challenges
The OST was created in an era when space was the domain of superpowers. The United States and the Soviet Union, embroiled in the space race, agreed that space should remain a global commons, free from conquest and military expansion. While the treaty allowed for private enterprise, it placed the onus on nations to regulate and supervise these activities. Article VI makes it clear that governments must authorize and oversee private entities operating in space, making them liable for any incidents or damages caused.
Experts like Tomasso Sgobba, executive director of the International Association for the Advancement of Space Safety, argue that the Polaris Dawn mission violates this key provision. Sgobba points out that there is no continuous supervision by a U.S. government agency, leaving SpaceX entirely in charge of the mission’s safety. “The lack of independent oversight may have left somewhere an open issue which has not been identified,” Sgobba warns.
Ram Jakhu, former director of McGill University's Institute of Air and Space Law, echoes these concerns, noting that the treaty is more relevant than ever. “If Article VI was not adopted, it would have been impossible to have this treaty,” Jakhu explained. He emphasized that private companies must still be subject to state oversight, a fundamental principle that allowed the OST to become a reality.
The US and Its Regulatory Gaps
The U.S. Federal Aviation Administration (FAA) is responsible for certifying the safety of rockets and spacecraft, but it does not regulate the safety of the astronauts aboard them. The FAA confirmed that it has no authority over SpaceX’s spacewalks or any other aspects of the Polaris Dawn mission beyond ensuring that the spacecraft itself is safe for launch. This hands-off approach stems from a moratorium placed by the U.S. Congress in 2004, which limits regulatory oversight of commercial spaceflight. The moratorium has been extended multiple times and is set to expire in 2025.
NASA, while not involved in Polaris Dawn, leases the Kennedy Space Center launch pad to SpaceX. Still, this mission is entirely independent, with SpaceX assuming full responsibility for the safety of the crew. Although the astronauts have signed informed consent agreements, there is growing concern over the risks of spacewalks, especially in the absence of government oversight.
The Risks and Rewards of Spacewalks
Spacewalks, or extravehicular activities (EVAs), are among the most dangerous tasks astronauts can undertake. Historically, they have been essential for repairing satellites, retrieving film from lunar missions, and building the International Space Station. However, spacewalks expose astronauts to extreme temperatures, radiation, and the threat of micrometeorites, not to mention the challenges posed by bulky, pressurized spacesuits.
On Thursday, two of the Polaris Dawn crew members will open the hatch of their capsule and float into the vast emptiness of space, tethered by umbilical cords. They will have spent days preparing their bodies to avoid decompression sickness as they transition to the vacuum of space. While SpaceX boasts top-tier safety experts, some analysts worry that an independent review might have highlighted additional risks that remain unidentified.
A Legal Gray Area in Space
Despite the risks, some experts argue that SpaceX’s mission does not violate international law. Tanja Masson-Zwaan, a professor of international air and space law, believes the OST is broad enough to accommodate modern private space ventures. “The treaty is sufficiently broad to accommodate new activities, and the principles should hold to preserve use and exploration for peaceful purposes,” she told Al Jazeera, adding that even private actors support the continuation of the treaty.
Nevertheless, Sgobba remains unconvinced, advocating for the creation of an international, independent space safety institute to provide third-party oversight of private missions. “I believe that Article VI does not leave much room to interpretation,” he argued. Without government authorization and supervision, the safety of these groundbreaking missions remains uncertain, raising concerns about the long-term implications of privatized space exploration.
The Future of Space Law
As private companies like SpaceX, Virgin Galactic, and Blue Origin push the boundaries of space travel, the need for clear international regulations grows. The OST, while robust, was created in a different era. As the new space race heats up, nations must revisit the terms of the treaty to ensure that private entities remain accountable, and that space remains a realm for the benefit of all humanity.
With Polaris Dawn, SpaceX is charting a new course for private space exploration, but it also raises questions about how the U.S. and other nations will adapt to the evolving landscape of space law. As private missions venture further from Earth, the legal framework established half a century ago may need to be redefined for the next frontier.
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