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Orbital Tourism, Asteroid Mining, and International Space Law

Developing A Legal Regime for Private Spaceflight in the 21st Century

Human activity in outer space has undergone significant developments since Neil Armstrong’s 1969 walk on the Moon. In the first and second decades of the 21st century, private companies have been established in the hope of eventually mining asteroids and other extraterrestrial bodies for their rich resource deposits.[1] Entrepreneurs and airlines have begun scheduling suborbital and orbital tourist flights, and have started the development of space-planes to accomplish them.[2] Private prototype space hotels have already been placed into orbit around Earth, and others are being planned.[3] Recognizing the lucrative economic opportunities that outer space can provide, states are starting to construct the physical infrastructure needed to support private, commercial spaceflight.[4] There have been few developments in the last half century with as much potential to reshape ‘space law’ as the rapidly increasing involvement of private actors in space activities. International space law, which governs human activity in outer space, is constituted by a series of international space treaties and non-binding agreements. The principles established in these treaties place private activity in space under the domain of national governments, while prohibiting the “national appropriation” of extraterrestrial bodies. Historically, this legal regime has been able to sufficiently govern state actors, under whom the domain of spaceflight exclusively fell. Yet, with entry of the private sector into spaceflight, there is now the question of whether international space law can adequately deal with developments in private space activity. Can states foster a private space sector while maintaining their international obligations? What are the implications of constraining treaty provisions which in effect prohibit activities such as space mining? Moving forward deeper into the 21st century, what direction will the development of ‘space law’ take to account for changes in the use of outer space, if it can account for them at all? This paper explores the myriad legal issues facing private spaceflight, in particular commercial space mining, and details the process through which international space law will likely evolve to deal with these developing industries.

Academic Perspectives on Space Law and Private Spaceflight

The legal questions surrounding private spaceflight are of great significance for the coming development of human activity in outer space. However, in their attempts to apply the established legal regime to private spaceflight, legal scholars and academics have struggled with the issues of vague treaty language and rapidly changing technological developments. As such, there are numerous diverging interpretations of established space law, its application to private spaceflight, and various predictions for the legal regime’s future.

A breadth of scholarship argues that the principles established by existing space treaties are of great importance for international conduct in space and that, moving into the future, this existing legal framework should not be abandoned. In her analysis of outer space arms control, Brisibe argues that the existing treaty regime plays a significant role in the prevention of the militarization of outer space.[5] Vereshchagin similarly argues that it is necessary to have an established, treaty-based legal regime for space, and that the fundamental principles set forth by the U.N. treaty framework serve admirably as the foundation for conduct in space.[6] These authors thus support the notion that established international space law can and should deal with the consequences and legal questions arising from private spaceflight. Entirely reshaping the legal regime, their argument goes, would undo decades of norm-setting and would undermine internationally agreed-upon principles that the U.N. space treaties describe.

Other scholars agree with the argument that existing space law provides a sufficient framework for dealing with the coming era of private space activity, but believe that the legal regime will need to be amended or reframed in order to comprehensively deal with future issues. Wheeler makes the case that there is substantial room for reform and reconsideration of established space law to meet the changing private space market. Yet, because private spaceflight is in its infancy and the legal challenges that may arise are still years away, he believes that it is still too soon to revise the treaty framework.[7] In a discussion of the possible future directions of international space law’s development, Blount describes how the legal regime might be changed to adapt to private spaceflight. He argues that the Outer Space Treaty and other treaty frameworks should be gradually amended or altered to reflect “soft law” developments and other conduct agreements.[8] He points to the creation of national legislation, especially in the United States, that regulates private spaceflight as a first step toward achieving an internationally acceptance legal regime for private space activity. To that end, Sreejith believes that space law is a receptive field which is capable of being internally robust yet externally dynamic, open to change and developments at both an international legal level and at the state level.[9]

Yet others are skeptical of international space law’s capacity to allow for developing commercial ventures in outer space, or feel that the interpretation of space treaties is strictly constraining. Brittingham argues that the modern body of space law is entirely vague on the concept of private appropriation of resources in outer space. He notes that the Outer Space Treaty does not expressly forbid non-governmental appropriation, yet its ambiguous wording can be interpreted as prohibitive of such appropriation. Developing nations favor an interpretation which provides for an equitable distribution outer space resources not based on contribution or effort, further limiting the international acceptability of commercial space activity.[10] In an analysis of commercial mining, Lee contends that governmental and private commercial space mining ventures require compliance with the principles of international space law as established in the U.N. space treaties. He notes that, because there is no positive duty to share the derived benefits from nonexclusive commercial space activities and there is a required freedom of access to all areas of celestial bodies, current space law poses a significant legal obstacle for a commercial space mining ventures.[11] Freeland examines legal issues that must be addressed in order to allow for the regulation of space tourism activities. He argues that existing international rules of space law do not appropriately address an industry that will be undertaken as a private commercial venture. As such, an argument is advanced that a uniform and comprehensive regime for passenger liability arising from space tourism activities should be developed at the international level.[12] Analyzing commercial space tourism, Failat proposes that economic activity in space should be accompanied by the implementation of a legal framework through which these activities are regulated by an international organization.[13] However, Blount, though contending that that space law should be reformed, argues that the legal regime is indeed not receptive to change. Reforming established space law on an international level will therefore be a difficult endeavor.[14]

The “Outer Space Treaty” and Private Space Mining

There is thus considerable disagreement within academia over whether and to what extent the existing legal framework for outer space activity can adequately deal with private and commercial spaceflight. This disagreement is hardly a surprise; the manner and context in which space law was created is state-centric, thereby limiting its capacity to deal with contemporary issues such as the privatization of space activity. The foundations of space law emerged during the infancy of spaceflight, a period characterized by exclusively state involvement in outer space affairs. The drafting of fundamental principles for the use of outer space was therefore conducted with the basic assumption that spaceflight would be public, not private.[15] Blount argues convincingly that these principles were designed with primarily security in mind; particular provisions which are detrimental to private commercial spaceflight, such as the “non-appropriation” of extraterrestrial bodies, were created to mitigate the possible geopolitical dangers of a heightened, colonial “space race.”[16] Contemporary space law is the product of an amalgam of historical international treaties, non-binding technical agreements and declarations, and custom. Blount asserts that this foundation for space law, which still serves as its contemporary core, no longer corresponds to the coming realities of space activity.

The development of international space law is marked by two periods, the first of which was characterized by binding international treaties and the second by non-binding agreements. The 1960s and 1970s, when spaceflight was in its early infancy and the domain of the United States and Soviet Union, encompassed the period of binding, United Nations space treaties. The first, the 1967 Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (“Outer Space Treaty”), set down basic principles governing states’ activity in outer space and has come to be seen as a “constitution for outer space.”[17] The 1972 Convention on International Liability for Damage Caused by Space Objects holds a state strictly liable for damage caused by its space objects on the Earth and in space.[18] Finally, the 1975 Convention on Registration of Objects Launched into Outer Space detailed requirements and procedures for the registration of space objects.[19]

These treaties are all fairly widely ratified, with 101 parties signatory to the Outer Space Treaty as of 2012.[20] The specific provisions of the Outer Space Treaty are highly significant to the governance of conduct in outer space, as they lay out fundamental principles which are the obligation of signatory states to uphold. Among these principles is a prohibition on claims of extraterrestrial territory in Article II, a prohibition on placing weapons of mass destruction in space in Article III, and a requirement that space exploration and use be carried out for the benefit of all countries as “the province of all mankind.” Article VI of the Outer Space Treaty provides that states are internationally responsible for ‘national activities in outer space,’ including cases where activities are carried out by non-governmental entities.[21] Accordingly, states are responsible to the same extent for private activities as they are for public activities. As the Outer Space Treaty provides the legal framework for all space activities and lays the foundation for further regulation, the violation of its terms would amount to a violation of the outer space legal regime in general. This provides a major impetus for states to take legislative action to regulate their private space sector, for they have to answer internationally for private space activity which violates international space law.[22]

The Registration Convention of 1975 provides a further regulatory mechanism enabling national governments to control private space activities and thereby uphold their international responsibilities. It stipulates that it is the duty of space-faring states to register space objects originating from their territory. The effect of registration of a space object can therefore be compared to that of the registration and consequent nationality of ships and aircraft.[23] States are entitled to extend any national legislation to space objects registered with them, and Article II of the Registration Convention makes clear that the registration of a space object leads to the retention of jurisdiction of the registration state over the space object.[24] The retention of jurisdiction under Article VIII of the Outer Space Treaty also extends beyond the space object itself to the ‘personnel thereof,’ similar to the legal status of ships or aircraft. The phrase ‘thereof’ has further been interpreted to encompass extra-vehicular activity as well; a person conducting a moon-walk, for example, can be traced back to a particular space vehicle, and thus the state that register that vehicle continues to retain jurisdiction over such a person.[25]

The language of the Outer Space Treaty is, in many cases, vague. Leaving treaty terms open to intentionally ambiguous language allowed for flexibility. States could later interpret the language to respond to unanticipated developments without technically breaking treaty obligations.[26] Article VI, however, is clear in that all activities in outer space are the responsibility of national governments. So long as states are signatory to the Outer Space Treaty, they will regulate their private space sector in order to uphold the treaty’s provisions. Article II, meanwhile, prevents the appropriation and claiming of extraterrestrial bodies. Finally, Article I establishes that the use of space be for the benefit of “all mankind.” The prospect of commercial space mining is thus faced with significant legal hurdles.

Though the technologies and practices involved in space mining are still in development, the general concept has been developed to such an extent that these legal issues are apparent in its application. Space mining entails the acquisition of an asteroid or another resource-rich extraterrestrial body, the development of mining infrastructure upon on that body, the extraction of resources, and the returning of those resources back to Earth.[27] Numerous steps of this process are in violation of the provisions laid out by the Outer Space Treaty. Landing on an asteroid or other resource-rich extraterrestrial body need not necessarily equate with an “appropriation” of territory, which again explains why the Apollo Program moon landings were not in violation of the Outer Space Treaty. Yet Article II further extends the prohibition of “appropriation” to “means of use or occupation.” Mining an extraterrestrial body would necessitate some level of use and occupation; a spacecraft would need to remain stationary on the body’s surface, and in turn “occupy” it, in order to successfully extract resources. Furthermore, a spacecraft’s presence on the surface of an extraterrestrial body for the purpose of mining it constitutes some level of explicit “usage.” Scholarship is split on whether private entities are bound by the provisions of Article II. Brittingham argues, for example, that the Outer Space Treaty does not explicitly prevent “non-governmental appropriation” of extraterrestrial bodies, and that private mining might therefore fall outside of the treaty’s limitations.[28] Yet such revisionism of the treaty is the result of interpretation, and as the scholarship of Blount, Wessel, and Vereshchagin would suggest, an equally valid interpretation can be made to the contrary. Indeed, Article VI, which details which entities are bound to the treaty’s provisions, leaves little room for interpretation. It lays out that “states shall be responsible for national space activities whether carried out by governmental or nongovernmental entities.” As states are expressly prohibited from appropriating extraterrestrial territory, and as private or “nongovernmental” activity in space is equated with state activity, it appears clear that space mining, be it private or public, is in violation of Article II of the Outer Space Treaty.

There is a further issue with Article I, which necessitates that the use of outer space be for the “benefit of all countries” and “all mankind.” Do space resources mined by a private company and brought back to Earth for use in a specific, private market fall within the scope of such a provision? The language of the Outer Space Treaty is ambiguous enough to leave questions about what entails the “benefit of all countries,” yet both scholarship and historical precedent seem to suggest that it is prohibitive of private, limited use of extraterrestrial resources. Lee argues that the costs of developing and maintaining a private or public extraterrestrial mining operation are so prohibitive that there is no incentive for states to share the derived benefits. Even if claims to and the usage of an asteroid for mining purposes is nonexclusive, the use of the resources produced would be. Ultimately, he argues, the use of outer space to exploit natural resources in outer space is different from scientific or exploratory purposes in that natural resources provide limited benefits to limited actors, while exploration provides the shared benefit to all mankind.[29] This is an entirely valid point, and further demonstrates how ambiguous language in the treaty has made it difficult to apply current developments to its provisions. In light of this interpretation, it would appear as though the exploitation of resources in outer space for private use is counter to the provisions of Article I, and therefore impermissible.

Scholarship aside, there is historical precedent which lends support to a prohibitive interpretation of Article I. In 1979, a fifth U.N. treaty, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, was adopted by the General Assembly and opened for signature.[30] Among other provisions, the “Moon Agreement” further expanded past provisions on the non-appropriation of lunar territory. The centerpiece of the Moon Agreement, however, is a requirement that any exploitation of lunar resources be carried out through an international regime that would ensure all states share equitably in the benefits of those resources. Considering the burden that such requirements could place on national space programs, it is unsurprising that only thirteen states, none of which are major space powers, have ratified it.[31] Yet, despite its limited number of signatories, there is still significance in the language of the Moon Treaty and the context of its drafting when exploring the legality of private space mining. Drafted in roughly the same international environment and technological context as the Outer Space Treaty, the Moon Treaty equally represents the international community’s intentions for outer space conduct.[32] The use of outer space for the “benefit of all countries” was clarified by the establishment of an international space mining regime and the equitable sharing of resources among all states. Such an approach is entirely antithetical to the idea that a private space company, responsive to a single national government, can exploit resources and return them to Earth for private use and financial gain. Though the Moon Treaty is not widely signed and thus -does not constitute as much of the basis for space law as the Outer Space Treaty, its provisions suggest that any attempt to reinterpret Article I of the Outer Space Treaty to allow for private mining would be met with considerable opposition. Lee agrees, arguing that developing nations strongly favor an interpretation of Article I which provides for an equitable distribution of outer space resources. Though there is room for reinterpretation, there is the general perception that Article 1 is prohibitive of private mining for exclusive financial gain.[33]

As it stands, commercial mining in space is prohibited by the established provisions of international space law. For private individuals hoping to establish space mining companies and for national governments seeking to foster what would undoubtedly be a highly lucrative industry, the legal obstacles appear to currently be insurmountable. This, however, has not kept companies from seeking to develop such an industry, and indeed has not kept national governments such as the U.S. Congress from proposing standards to regulate it. The ASTEROIDS Act, introduced to the U.S. House of Representatives in 2014, is the first piece of national legislation to seek the facilitation of commercial exploration and exploitation of asteroid resources to “meet national needs.”[34] It provides for ownership of extracted resources from asteroids and other extraterrestrial bodies to the private entity which extracted them. Yet legal experts agree that the language of the bill, aside from being incredibly vague, does not appear to uphold the obligations set forth by the Outer Space Treaty. As a result of the contentious issue of resource extraction at the international level, the bill and others like it are unlikely to be passed.[35]

National Legislation, Regulation, and “Soft Law”

Though commercial asteroid mining is perhaps the most ambitious of private plans for outer space, there are other private industries, such as the commercial satellite industry, that already exist and some, such as the space tourism industry, that are soon to be realities. Space mining is prohibited by the language of the Outer Space Treaty, but other private activities are not. Indeed, considerable leeway is given in established space law for the growth of commercial spaceflight. So long as private spacecraft adhere to the standards and regulations set by their state of registration, thereby upholding those states’ international obligations per Article VI of the Outer Space Treaty, they are free to operate in outer space. States have come to regulate the specifics of these budding industries at the international level through the creation of “soft law,” non-binding agreements and declarations which establish standards and codes of conduct.[36] Meanwhile, at the national level, states have passed legislation, often very technical and specific in nature, which regulates and governs private spaceflight. As such, outside the vague framework of the U.N. treaties, national legislation and international “soft law” have become the main method through which the legal issues surrounding private and public spaceflight are addressed and accounted for.

The second period of international space law’s development, which saw a shift from binding treaties to non-binding agreements on more specific areas of law, began in the 1980s and 1990s. Among these agreements was the 1982 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, the 1986 Principles Relating to Remote Sensing of the Earth from Outer Space, and the 1992 Principles Relevant to the Use of Nuclear Power Sources in Outer Space.[37] A further agreement was the 1996 Declaration on International Cooperation, which expanded on the “province of all mankind” principle of outer space use.[38] These agreements are collectively known as the U.N. Principles on Outer Space, and were formed in response to the rapidly developing field of space technology. They largely clarify various portions of ambiguous language in past treaties, expand upon the obligations a state must uphold when regulating its national space activity, and provide methods by which international disputes regarding space activity can be resolved. The definition of a “launching state” was clarified in 2004 and recommendations on the registration of space objects were provided in 2007.[39] A 2007 set of guidelines contained recommendations on minimizing the creation of orbital debris in state and commercial space operations. Moving to the present day, proposals for international space agreements and space law are focused on developing codes of conduct. Most proposed codes of conduct provide for substantive limitations as well as confidence-building measures, yet are explicitly non-binding.[40]

While not all of the “Principles” and other “soft law” agreements constituting international space law pertain directly to private spaceflight, they nonetheless establish and promote general standards of the use of outer space and provide for the promotion of further international cooperation and understanding in space activities. Significantly, their non-binding nature can help states to maximize the goals they seek in outer space while minimizing the risks they take. As a result, soft law agreements are easier to achieve than hard legalization, allowing states to creatively tackle international legal issues surrounding space without making sacrifices of their own sovereignty.[41] In this way, despite the core of “hard” legal provisions established by the U.N. treaties, “soft law” allows for a degree of legal flexibility in responding to changing technologies and circumstances relating to the use of outer space. Furthermore, and perhaps more significantly, the establishment of a “soft” international legal regime has influenced domestic legislation relating to the regulation of private spaceflight.[42] As states, international organizations and institutions, and private actors become more aware of the current and potential benefits of space activity, they have started to more actively formulate their own space law policies and participate in the elaboration of legal rules governing space. The failure of the international community to establish new legally binding regulations for space has led to a burgeoning of national space legislation that now exists in more than twenty states. In a number of cases, the agreements and understandings reached through “soft law” have taken on a legally binding nature at the national level through the creation of domestic legislation.[43]

Nowhere can this be seen more readily than in the case of the United States’ domestic space legislation. Over the past few decades, there has been a significant increase in the passage of American legislation that regulates and monitors private space activity, often in line with the principles established by non-binding agreements. Among these is the 1984 Commercial Space Launch Act, which designated the Department of Transportation as the federal agency responsible for facilitating and regulating commercial space launch activities.[44] The 1992 Land Remote Sensing Policy Act established a regime for facilitating and regulating commercialization of land remote sensing satellites.[45] The 1998 Commercial Space Act gave the Department of Transportation regulatory authority over commercial spacecraft that return from space as well as launches into space.[46] One of the most prominent examples of legislation meant to incentivize the private use of space is the Federal Aviation Administration’s Human Spaceflight Requirements. These requirements encourage private human space flight by, among other things, requiring space flight provides to give informed consent to space flight participants in order to reduce possible claims against the space craft’s provider in the event of an accident.[47] These pieces of legislation, along with a number of others within the United States, the European Union, and other space-faring nations, constitute steps toward codifying a regulatory and legal regime for private spaceflight. In the absence of “hard” international law pertaining to private spaceflight, space law has taken on a distinct division into two autonomous systems – national law and international law. As such, space law does not exist as a single coherent and comprehensive body of legal principles, but rather as a complex interaction and linkage between domestic and international rules and regulations.[48]

Of course, there are limitations to the regulation of space activity, be it private or public, through the establishment of a “soft” legal regime. As the agreements and understandings reached by “soft law” agreements are non-binding, there is no expectation that states will adhere to them. The inability to effectively enforce the codes of conduct which “soft law” agreements establish means that there is considerable uncertainty over whether they truly influence the direction spaceflight regulation will take. Even in cases where domestic legislation codifies “soft law” agreements, there can be considerable divergences in the interpretation and eventual implementation of the principles they establish. Ultimately, codified, “hard” international space law represents the only legal regime capable of regulating spaceflight in a comprehensive, universal manner. Yet, despite this, there are arguments to be made that “soft law” agreements represent the first step toward the establishment of “hard law.” Scholarship is divided on whether the establishment of “soft law” through non-binding agreements creates lasting norms of conduct and, in turn, customary international law. Wessel argues that they do not, and that, rather, “hard law” is the only manner through which custom regarding space activity can be created.[49] However, he premises his argument primarily around legal theory and definitions of terms rather than a practical look at the reality of contemporary space activity. Vereshchetin and Blount, on the other hand, contend that “soft law” indeed does develop customs and support such contentions with evidence such as the codification of “soft law” in domestic legislation. Such an argument is convincing; regardless of its non-binding nature, “soft law” nonetheless represents an international consensus on how activity in space should be regulated and conducted. As states do not want their sovereignty constrained by such regulations, they have not codified them on an international level. Still, as evidenced by domestic legislation associated with “soft law” principles, there is a wide degree of acceptance of the codes of conduct “soft law” creates. Over time, this acceptance becomes broader and, as such, becomes international custom.[50] As will be discussed later, these customs are an important step toward the creation of a codified, international legal regime for private space flight.

Outstanding Legal Issues with Private Spaceflight

As private space flight and the space tourism industry are still in their infancy, there are a number of legal questions and issues surrounding them that have yet to be resolved. Moving forward into the future, these issues will need to be addressed by domestic and international law in order to ensure the continued growth and success of these industries and effective regulation of outer space. Among the myriad of legal issues surrounding private spaceflight today that have yet to be resolved are the clear definition of what constitutes outer space, the definition of what constitutes a “space tourist,” liability and protections for private individuals participating in space activity, and the status of legal protections for private installations such as space hotels on celestial bodies. There are also a number of other concerns which will eventually need to be addressed as private and public activity in space develops through the 21st century.

From a legal perspective, there is as yet no clear definition of what constitutes outer space. While activity in outer space has continued to develop regardless of this uncertainty, there is now an important, practical reason to determine a clear legal distinction between commercial aviation flights and commercial space flight. Tourist activity that takes place in outer space is not subject to prior consent on the part of any sovereign state, although it remains subject to the supervision and authority of the state to which it is registered. Yet any space tourist activity requiring a launch from Earth and a return to Earth will also involve a use of ‘air space,’ thereby making the law of air space relevant to the legal position of space tourism. The territorial nature of air space is reflected in prior law treaties, which provide that every state has complete and exclusive sovereignty over the air space above its territory.[51] Consequently, civil and commercial aircraft only have certain limited rights to enter the air space of another state.

As such, it is important to determine what legal regime applies during specific parts of commercial flights into space. However, there has, over the years, been controversy over how far air space extends above the surface of the Earth, and international consensus over the issue has yet to be reached.[52] Among the significant questions surrounding these issue are whether air law should apply for the part of the journey into space that takes place within the Earth’s atmosphere while space law is applied at some yet-defined point in the overall activity. Furthermore, there is the issue of whether this legal position differs for orbital and suborbital flights, which take place at varying altitudes within and above the Earth’s atmosphere. The applicability of different laws represents an unsatisfactory and impractical solution and lead to uncertainty in the absence of a clear delineation between air space and outer space.

There is also the issue of what constitutes a “space tourist.” International space law makes no reference to “tourists,” though it does address space travel by “personnel of a spacecraft.” The Outer Space Treaty obligates states to render assistance to astronauts in the event of an accident, distress, or emergency landing, obligations further developed in the Rescue Agreement. Furthermore, the Moon Agreement confirms that any person on the Moon is to be regarded as an astronaut. Yet, because of the ambiguity of language in the Outer Space Treaty, it is not clear whether a commercial space tourist would fall within the classification of “astronaut” and therefore be granted the privileges established by international space law. Though the language of these treaties can be interpreted to include space tourists within the classification of “personnel of a spacecraft,” the status of private individuals in space needs be clarified. As tourism in outer space increases, the issues which the Rescue Agreement attempts to resolve will come to apply to these private individuals. Until their status is clarified, uncertainty surrounding it is likely to hamper the further development of tourist space activity.[53]

Another further legal issue relating to the status of a space tourist stems from the language of the Liability Convention, which explicitly does not apply to damages caused by a space object to foreign nationals during any time they are participating in the operation of that space object. That is, if a foreign national is in control of or working within a space object, they are not protected from damages caused by that space object. Though space tourists would generally not fall within this exception, for they would not normally be operating a space vehicle, a level of uncertainty arises from the Liability Convention’s language and must therefore be clarified.[54] Because space tourism is still in its infancy, there has yet to be continuing instances where a private individual is in control of or somehow operating a spacecraft. Yet, as space tourism continues to develop, such a case is a likely eventuality, and must therefore be accounted for. Space tourism, being a risky commercial endeavor, is reliant upon guarantees of protection and liability to entice customers and grow as an industry.[55] Until those protections are in place and the status of liability for tourists are clearly established, the industry is unlikely to attract a significant number of participants.

To that end, if the space tourism industry is to continue to develop, every effort must be taken to ensure the safety of those on board tourist spacecraft. Once the general public is more heavily involved in space activity, Freeland contends, the minimum required safety record of spaceflight must be significantly improved.[56] There must be a system of responsibility and liability established at the international level and supplemented by domestic law to regulate the circumstances when a space tourist suffers injury, loss, or damage. Doing so would remove current uncertainties surrounding available remedies to loss and would ensure that proper risk avoidance procedures are put into place. With relation to this, international space law is, inadequate. Article VII of the Outer Space Treaty, along with the more detailed liability regime laid out in the Liability Convention, explicitly impose international liability for certain damage caused by a space object on its launching state alone.

When damage is suffered by an individual, the procedures established by the Liability Convention only allow for legal action to be taken by a relevant state. As such, this requires political will on the part of that state to present a claim to a launching state. To date, as no such claim has yet been made by any state, it is not certain that a state would decide to engage in such an action in the future. Meanwhile, space tourists themselves are unable to claim compensation under the Liability Convention. While there may be room to institute legal proceedings under national laws, limitations such as sovereign immunity protections may represent a challenge to a claim for compensation.[57] Furthermore, even though domestic legislation may seek to regulate the space industry and provide for standards and protections, there is a danger that the lack of a uniform international law liability regime will give rise to further uncertainty, and therefore doubt, in this area. Freeland suggests that a comprehensive regime for passenger liability, which allow for direct private claims by passengers for damages and which should operate from the moment of launch until the safe return of a spacecraft, needs to be established.[58] Again, until this regime is put into place, the space tourist industry, being inherently risky, will have difficulty attracting a significant number of customers.

There is the further issue of the “non-appropriation” clause in the Outer Space Treaty and how it will affect private space installations. While the language of the Outer Space Treaty prohibits activities such as space mining, which entail an appropriation, exploitation, and utilization of outer space resources, it is ambiguous on other activities that might suggest some level of appropriation of space territory. It is foreseeable that, as space tourism develops, a demand will emerge for the constant presence of tourists on the Moon or other celestial bodies; this may necessitate the construction of permanent or semi-permanent space hotels. It will be important for the owner or operator of such a structure to gain some level of legal protection in relation to the site of that hotel; perhaps, Freeland suggests, akin to some lease title available on Earth.[59] However, in the absence of sovereignty on the Moon, it is not possible under existing international space law to assert that any jurisdiction applies to the area on which that hotel is constructed. Even if the language of the Outer Space Treaty is interpreted to include space hotels under the definition of a ‘space object,’ so that they can be registered to a single state and therefore given some level of legal protection, these protections would only extend to within the hotels, not to the surface of the Moon. As states are unable to exercise jurisdiction over celestial bodies, it is currently thus impossible to determine how a Moon hotel or other private installation would be granted any legal protections and claims over the site it occupies. Without these, private entities will lack the incentive to invest in such activities.[60] As such, some form of property rights associated with the construction of tourism related facilities on celestial bodies may need to be developed.

Finally, there is the issue of the many questions that will arise regarding the regulation of future space tourism activities. Should there be any restriction on the nature of these activities, and on what basis should these restrictions be determined? Would it be, for example, acceptable to allow advertising billboards to be constructed in Earth orbit or on the Moon? Will casinos or perhaps even brothels be allowed to be established on the Moon in order to cater to tourists or other private individuals? Such questions are unlikely to be pressing in the immediate or near future, yet, eventually, as space technology continues to develop and more individuals enter outer space, they will need to be addressed. Considering that such issues affect outer space, which is considered the domain of humankind, they will need to be addressed and regulated in an international manner. In a similar fashion, there is the issue of human inhabitants of future space colonies. What are the rights of individuals who live their entire lives in outer space or who were perhaps even born in a settlement on the Moon? Will their rights or civic duties in space differ from those on Earth? For individuals born in space, what will be the status of their nationality? Again, such issues are a concern for the more distant future, but will eventually need to be dealt with on an international level. As international space law develops, such questions will have to be taken into consideration by those who draft domestic space legislation and international treaties.

Toward the Future of International Space Law

As has been seen, contemporary space legal regime is a mixture of non-binding “soft law” and codified, enforceable “hard law” at the domestic and international levels. Built around a series of historical U.N. treaties, binding space law fails to account for the rapid involvement of private entities and commercial activity in space. As private industry in space continues to develop, and as states such as the United States continue to support and foster such industries, it is inevitable that the current legal regime is going to change. As can be seen in the case of what the drafters of the Outer Space Treaty created, predicting the future of spaceflight is difficult to do. Changes in technology and private industry are hard to account for, making it difficult to create a lasting and effective regulatory regime. Nonetheless, drawing current and historical trends in the development and character of space law into consideration, various possibilities for what the future of international space law will look like become apparent.

One potential direction is scrapping the current codified legal regime. There are a number of questions about whether the established legal regime built around the Outer Space Treaty is effective in a rapidly changing world. Drafted in the context of the Cold War environment, it is framed around a limited, exclusively public approach to spaceflight without accounting for private commercial activity. The ambiguity of its language leads to a lack of clarity on its rules. Questions of and disagreements of meaning can potentially lead to ineffective regulation of some space activities.[61] These shortcomings could justify the negotiation of a new international treaty or series of treaties that better accounts for commercial spaceflight and changes in technological capabilities. Such treaties would incorporate the technical and regulatory developments that national governments have developed for their own private space sectors along with elements of “soft law” that have become widely customary and accepted among states.[62]

Yet there are prevailing counterarguments against both the wisdom and practicality of such an approach. As evidenced by its wide ratification, there is a broad consensus in the international community that the principles laid out by the Outer Space Treaty are important to have established. The treaty sets out values that still constitute the core of international space law, many of which have become customary law. In light of this, it is difficult to that abandoning the treaty framework would be acceptable for most states. Indeed, states seem uninterested in negotiating new binding law which would constrain their current levels of sovereignty. Such is why “soft law” and non-binding codes of conduct have become a primary mechanism in which the regulation of spaceflight has developed. Though states are interested in fostering private space industries, which the treaty framework fails to account for, such industries are still too early in their infancy to be tangibly hampered by treaty provisions. Considering this, it is unlikely that the Outer Space Treaty will be abandoned. Recent trends in the development of space law have made the renegotiating of binding international space law outside the realm of current or near-future possibility.[63]

It is, as mentioned, impossible to predict the future of spaceflight because of its rapidly changing and developing nature. As such, any new treaty framework would fall prone to the same issues that affect the Outer Space Treaty’s ability to account for all scenarios. However, this leads to the argument that the Outer Space Treaty’s ambiguity and lack of many hard proscriptive articles is advantageous, for it allows for adaptability. Regulating with ambiguous language requires states to cooperate in order to develop universal standards of regulation and therefore avoid conflict. To that end, some have argued that the treaty can and should be revised or “remapped” into something that is capable of accounting for current developments. One potential manner in which this would be done is through the clarification of treaty provisions by “soft law” agreements, developments in domestic legislation, and international custom. As mentioned, states have developed domestic legislation to correspond with the codes of conduct set out by “soft law” agreements. While this legislation is up to the state’s interpretation of what those agreements entail, it nonetheless establishes a regulatory regime which influences the conduct of private spaceflight. Over time, the regulatory mechanisms established by domestic law or which are suggested by non-binding agreements become standard procedure and, in turn, international norm.

States are, of course, legally obligated to uphold their responsibilities as laid out by the Outer Space Treaty. Yet, ultimately, the binding quality of that obligation is only as strong as the international community’s willingness to call a state into question if it is in violation of a treaty provision. Often, this willingness is limited; states hardly ever seek consultation on whether their or another state’s activity is in violation of treaty provisions, an available option described by Article IX of the Outer Space Treaty.[64] For example, a 2007 Chinese outer space test of an anti-satellite missile, conducted without consulting the international community about potential violations of treaty language, amounted to a violation of Article IX of the Outer Space Treaty. However, no state, save for Japan, invoked Article IX in protest against China’s military test.[65] This indicates that states have a degree of flexibility and leeway in the activities they conduct in outer space, and may conduct activities outside the bounds of the Outer Space Treaty if the international community does not condemn it. Seen in this context, there is the great potential that domestic legislation in space faring nations regulating private space activity will pioneer the establishment of an international regulatory regime for private spaceflight.

Ultimately, the private space sectors in some states are more developed and farther advanced than those in others, and thus necessitate a higher degree of attention and regulation for their state’s government. The the legislation these states develop influence the conduct of private activity in space, which is held in the domain of all humankind, impacts the entire international community, and states are expected to ensure that their private sector upholds international obligations. As such, other states can call into issue the approach some states to take regulating their private sectors. Regulations which the international community takes issue with, such as is likely to be the case with the ASTEROIDS Act, will ultimately need to be repelled or fail to become lasting procedure. Those which are acceptable to the international community, on the other hand, will come to define through custom and practice the manner in which private space activity occurs.

Accordingly, it seems that the states pioneering private space flight, such as the United States, will develop increasingly technical and evolving legislation to adapt to changes in space technology. As they do, they will enter non-binding, “soft law” agreements which establish codes of conduct for the developing legal and regulatory regime. So long as the international community does not call the evolving legal regime into question and argue that it violates the provisions of the Outer Space Treaty, it will become solidified into customary international law. Over time, if changes in the geopolitical environment occur or if enough states come to fully accept the stipulations of these customs, there might be enough international impetus to codify them into hard, international law. Meanwhile, differences in domestic regulatory regimes for private spaceflight or differences in interpretations of “soft law” agreements regarding private spaceflight will likely be resolved through market mechanisms. Blount argues convincingly that it is economically advantageous and beneficial for private entities to seek universal standards of regulation, liability, and protection.[66] As such, they will petition their national government to establish standards which correspond with the standards of other states. In order to foster the further development of lucrative space industry, states will, over time, come to agree upon universal standards for private space flight regulation.

There is, of course, the issue of space mining, which is prohibited by the language of the Outer Space Treaty. Ultimately, as described, it may be up to the states that pioneer the space mining industry to determine whether such industries are allowed and how they would be regulated. It has been suggested that states could enter non-binding agreements or establish mutual understandings of what constitutes “appropriation” of space territory and resources or clarify that the private use of space resources falls within the provisions of the Outer Space Treaty.[67] As mutual understandings are reached and defined, the international community could become more receptive to the idea of private space mining. After all, as such an industry is still decades away, it is possible that more nations will have begun fostering their own private space industries and recognizing their potential benefits by then. States such as the United States should therefore be encouraged to seek greater dialogue and cooperation with others which have private space industries. Of course, it is entirely possible that states will not come to accept private space mining or take issue with the way it is implemented.[68] In such an event, states are going to need to consider either abandoning such an industry in order to uphold their international obligations or abandon their ratification of the treaty in order to foster their industry.

Such is the challenge of private and state involvement in rapidly changing and evolving space activities. If international space law is to remain built around the provisions of the Outer Space Treaty and universally enforceable, it will need to account for new developments in private spaceflight. Otherwise, states may decide it is more within their interest to abandon the current treaty framework and instead make their own choices when it comes to private space activity. As Vereshchetin rightly points out, it is imperative that some established, codified principles for space be maintained, for outer space is the domain of all humankind. Moving forward into the future of spaceflight without them would be a dangerous endeavor, one likely giving rise to the very suspicion, tension, and conflict which the Outer Space Treaty sought to prevent. Ultimately, then, some international solution to the issue of private space mining, be it through a clarification of codified language or the reaching of a general consensus on conduct, must eventually be reached.


Private, commercial activity in outer space is bound to cause revolutionary changes in international space law. Though a myriad of legal issues exist surrounding private spaceflight, space tourism, space mining, and private space installations, the international community has come to gradually deal with them through domestic regulation and non-binding international agreements. However, for private space activity, significant issues still remain with the “hard law” core of international space law. States, recognizing the benefits of space, are undoubtedly going to foster and develop their private space sectors. Yet, as they are required to uphold the provisions of codified international space law, they will find ways to foster such industries while still maintaining their responsibilities. This will likely come through the development of a legal regime through “soft law” and domestic legislation which, if and when accepted by the international community, will become international custom. Eventually, such customs will define the procedures that characterize the private use of outer space. Yet issues remain with activities such as space mining, which are expressly prohibited by the language of the Outer Space Treaty. As it appears unlikely that the Outer Space Treaty is going to be abandoned, and as there is little willingness in the present to redraft a new treaty, the international community is inevitably going to need to discuss and resolve the legal hurdles and issues surrounding space mining. If they fail to, states may deem it more economically beneficial to support the industries and abandon the treaty framework than to abandon their industries. Such would be a dangerous future for human spaceflight, one that the international community can and should actively work to prevent.

Works Cited

[1] “Asteroids.” Planetary Resources. http://www.planetaryresources.com/asteriods/#asteroid-prospecting (accessed November 11, 2014.

[2] “Virgin Galactic Fact Sheet.” Virgin Galactic. http://www.virgingalactic.com/uploads/141501863048197/original.pdf (accessed November 11 2014).

[3] “Bigelow Aerospace.” Bigelow Aerospace. http://www.bigelowaerospace.com/ (accessed November 10, 2014).

[4] P.J. Blount. “Renovating Space: The Future of International Space Law.” Denver Journal of International Law and Policy, Vol. 40, No. 1 (2011-2012)

[5] Tare C. Brisibe. “Customary International Law, Arms Control and the Environment in Outer Space.” Chinese Journal of International Law 8(2): 375393 (2009).

[6] V.S. Vereshchetin. “THE LAW OF OUTER SPACE IN THE GENERAL LEGAL FIELD (COMMONALITY AND PARTICULARITIES).” Inaugural Nandasiri Jasentuliyana Lecture, 2009.

[7] Joanne Wheeler. “Managing Space, International Space Law and Prospective Reforms.” Harvard International Review (2012).

[8] P.J. Blount. “Renovating Space: The Future of International Space Law.”

[9] S.G. Sreejith. “Whither International Law, Thither Space Law: A Discipline in Transition” California Western International Law Journal 38: 331^417 (2008).

[10] Bryon C. Brittingham. “Does the World Really Need New Space Law?” Oregon Review of International Law 12: 31-54 (2010).

[11] R.J. Lee. Law and Regulation of Commercial Mining of Minerals in Outer Space. Dordrecht: Springer (2012).

[12] Steven Freeland. “Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?” Melbourne Journal of International Law 11: 1-29 (2010)

[13] Yanal Abul Failat. “Space Tourism: A Synopsis on its Legal Challenges,” Irish Law Journal 1: 1 20-15 1 (2012).

[14] P.J. Blount. “Renovating Space: The Future of International Space Law.”

[15] Brian Wessel. “The Rule of Law in Outer Space: The Effects of Treaties and Nonbinding Agreements on International Space Law.” 35 Hastings Int’l & Comp. L. Rev. 289. 2012

[16] P.J. Blount. “Renovating Space: The Future of International Space Law.”

[17] Helmut Tuerk. The Negotiation of the “Moon Agreement.” 52 PROC. OF THE COLLOQUIUM ON THE LAW OF OUTER SPACE 491,493 (2010).

[18] Convention on International Liability for Damage Caused by Space Objects, opened for signature Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187

[19] Convention on Registration of Objects Launched into Outer Space, opened for signature Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15

[20] U.N. OFFICE FOR OUTER SPACE AFFAIRS, TREATY DATABASE. http://www.un oosa.org/oosatdb/showTreatySignatures.do. Accessed November 8, 2014.

[21] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967)

[22] Brian Wessel. “The Rule of Law in Outer Space: The Effects of Treaties and Nonbinding Agreements on International Space Law.”

[23] Ibid.

[24] Convention on Registration of Objects Launched into Outer Space.

[25] Brian Wessel. “The Rule of Law in Outer Space: The Effects of Treaties and Nonbinding Agreements on International Space Law.”

[26] Ibid.

[27] Stephen Harris. “Your Questions Answered: Asteroid Mining.” The Engineer. http://www.theengineer.co.uk/aerospace/in-depth/your-questions-answered-asteroid-mining/1015966.article (accessed November 14, 2014)).

[28] Bryon C. Brittingham. “Does the World Really Need New Space Law?”

[29] R.J. Lee. Law and Regulation of Commercial Mining of Minerals in Outer Space.

[30] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18. 1979, U.N. GAOR, 34th Sess., Supp. No. 46, at 77, U.N. Doc. A/34/46 (1980), 18 I.L.M. 143

[31] Brian Wessel. “The Rule of Law in Outer Space: The Effects of Treaties and Nonbinding Agreements on International Space Law.”

[32] Ibid.

[33] R.J. Lee. Law and Regulation of Commercial Mining of Minerals in Outer Space.

[34] American Space Technology for Exploring Resource Opportunities in Deep Space (ASTEROIDS) Act. H.R. 5063, 113th Cong. (2014).

[35] Jeff Foust. “Hearing Raises Questions About Asteroid Mining Bill.” Space News. http://www.spacenews.com/article/civil-space/41825hearing-raises-questions-about-asteroid-mining-bill (accessed November 15, 2014).

[36]Brian Wessel. “The Rule of Law in Outer Space: The Effects of Treaties and Nonbinding Agreements on International Space Law.”

[37] Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, G.A. Res. 92, U.N. GAOR, 37th Sess.,100th plen. mtg., at 51, U.N. Doc. A/RES/37/92 (1982); Principles Relating to Remote Sensing of the Earth from Outer Space, G.A. Res. 41/65, U.N. GAOR, 41st Sess., Supp. No. 53, at 115-16, U.N. Doc. A/RES/41/65 (1986); The Elaboration of Draft Principles Relevant to the Use of Nuclear Power Sources in Outer Space, U.N.GAOR, COPUOS, 26th Sess., U.N. Doc. A/AC.105/C.2/L.154/Rev.2 (1987).

[38] Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, G.A. Res. 51/122, U.N. GAOR, 39th Sess., 83rd plen. mtg., U.N. Doc. A/RES/51/122 (Dec. 13, 1996).

[39] Application of the Concept of the “Launching State,” G.A. Res. 59/115, U.N. GAOR, 59th Sess., U.N. Doc. A/RES/59/115 (Dec. 10, 2004); Recommendations on Enhancing the Practice of States and International Intergovernmental Organizations in Registering Space Objects, G.A. Res. 62/101, U.N. GAOR, 62nd Sess., U.N. Doc. A/RES/62/101 (Dec. 17, 2007).

[40] Brian Wessel. “The Rule of Law in Outer Space: The Effects of Treaties and Nonbinding Agreements on International Space Law.”

[41] P.J. Blount. “Renovating Space: The Future of International Space Law.”


[43] Ibid.

[44] Commercial Space Launch Act. (Pub. L. 98-575, Oct. 30, 1984, 98 Stat. 3055)

[45] Land Remote Sensing Policy Act of 1992. (Pub. L. No. 102-555, 106 Stat. 4163-4180)

[46] Commercial Space Act of 1998. H.R. 1702, 105th Cong. (1998)

[47] Human Spaceflight Requirements, 14 C.F.R. 460 (2011)


[49] Brian Wessel. “The Rule of Law in Outer Space: The Effects of Treaties and Nonbinding Agreements on International Space Law.”

[50] P.J. Blount. “Renovating Space: The Future of International Space Law.”

[51] Convention on International Civil Aviation, opened for signature 7 December 1944, 15 UNTS 295.

[52] Steven Freeland. “Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?”

[53] Ibid.

[54] Ibid.

[55] Ibid.

[56] Ibid.

[57] Lauren S B Bornemann. “This Is Ground Control to Major Tom … Your Wife Would Like to Sue but There’s Nothing We Can Do …The Unlikelihood that the FTCA Waives Sovereign Immunity for Torts Committed by United States Employees in Outer Space: A Call for Preemptive Legislation.” 63 Journal of Air Law and Commerce (1998)

[58] Steven Freeland. “Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?”

[59] Ibid.

[60] P.J. Blount. “Renovating Space: The Future of International Space Law.”

[61] Ibid.

[62] Ibid.

[63] Ibid.

[64] Ibid.

[65] Ibid.

[66] Ibid.

[67] R.J. Lee. Law and Regulation of Commercial Mining of Minerals in Outer Space. Dordrecht: Springer (2012).

[68] Ibid.

Rethinking NASA’s Approach to Mars: Policy Options and Alternatives for Our Exploration Roadmap

With the end of the Shuttle Era marked by the last Space Shuttle flight in 2011, the cancellation of the “Constellation Program” and George W. Bush’s “Vision for Space Exploration” in 2010 (Chang 2010), and President Obama’s call for human exploration of Mars by the 2030s (Matson 2010), the United States’ space program has been reshaping its exploration goals and long-term strategic roadmap. NASA has now adopted a new direction for its manned spaceflight program, one which hopes to take American astronauts to a captured asteroid and, by the 2030s, to Mars. This new policy lays out the future of the American manned space program for the coming decades, and is bound to serve as the basis for long-term strategic decisions. Yet it has also come under considerable criticism and backlash from various members of Congress and the space industry, who claim that it is too expensive for NASA’s current budget, without direction, and will fail to meet goals within the established timeframe (Achenbach 2014). At a time when America’s leadership in space is being threatened by budgetary constraints and emerging space powers, it is imperative that our space program adopt the most effective and efficient policy approach to exploration possible. To that end, this policy analysis explores NASA’s current exploration policy and the problems associated with it. It lays out a series of policy alternatives which provide different directions the agency can take toward accomplish the goal of a manned mission to Mars, such as increasing NASA’s budget, abandoning current exploration goals, or fostering greater cooperation with commercial space companies. A policy recommendation gauged by a number of criteria, such as cost and effectiveness, is further provided.

The goal of a manned mission to Mars by the 2030s is commendable for being both inspiring and practical. Ambitious undertakings enthuse and excite the population, as evidenced by the Apollo Program and Moon Landings of the 1960s creating national pride and unity in a time of civil strife and inspiring a generation of scientists and engineers (Dick 2007). Of course, the Moon Landings were a product of the “space race,” the competition between the Soviet Union and the United States for prestige and dominance in outer space. Yet while the Cold War era of space competition is over, a new one may be starting; China and Russia are both planning returns to the Moon and possible missions to Mars in the coming decades (Howell 2014). If the United States wishes to maintain its leadership and preeminence in outer space, it must be accomplishing great things and expanding frontiers. With an American flag still firmly planted in the Moon, a manned mission to Mars would be the next logical step toward maintaining that leadership.

Since President Obama’s call for a manned mission to Mars and NASA’s strategic redirection, the agency has taken concrete steps toward accomplish its goals. The Orion spacecraft, a carry-over technology from the cancelled “Constellation” Program that is capable of taking astronauts to Mars, is expected to make its first test flight in December 2014 (“Orion” 2014). To carry the craft into space and onward toward Mars, NASA has begun the construction of a heavy-lift rocket called the Space Launch System. Expected to first fly in 2017 or 2018, it is poised to be the largest rocket ever constructed (“NASA’s Space Launch System” 2014). Plans for spacecraft technologies needed for a transit, orbit around, and landing on Mars are in the process of being considered and developed (“Exploration Systems Development” 2014). In terms of missions, NASA has planned for a manned “Asteroid Redirect” mission in the early 2020s. Using spacecraft technologies developed for an eventual Mars mission, NASA will “capture” an asteroid, redirect it into lunar orbit, and send astronauts to explore it. The agency has framed the mission as necessary to develop the technical expertise and capabilities needed for a mission to Mars (“What is NASA’s Asteroid Redirect Mission” 2014).

While NASA’s exploration goals are commendable and actual progress towards those goals has been made, they have nonetheless faced significant criticism. Republican congressmen have called the mission uninspiring and a waste of money (Achenbach 2014). Members of the scientific community have called the purpose of the mission into question, arguing that it distracts from the overall focus on a mission to Mars (Khan 2014). Significantly, the National Research Council’s review of NASA’s human spaceflight program, a $3.2 million investigation mandated by Congress, called numerous parts of NASA’s current exploration policy into question. It agreed that the “Asteroid Redirect” mission distracts from the goal of Mars exploration, and would provide a number of “dead-end” technologies that would not get the United States any closer to Mars. It also cautioned that the flight schedule designed by NASA, which calls for a test flight of the SLS in 2017 or 2018 followed by the “Asteroid Redirect” mission in the 2020s, does not provide a frequency required to maintain competence and safety (Achenbach 2014).

There is then the added issue of federal funding. NASA’s recent budget has been among the lowest levels it has received in its history, yet the levels of funding needed to continue the development of the SLS and Mars missions are increasing (NASA OIG 2012). Lofty expectations by Congress and NASA’s leaderships do not correspond with the reality of NASA’s limited finances. In a report on NASA’s budget, the Government Accountability Office found that budget shortfalls put the current exploration goals at “high risk” of failure. The GAO predicted that there is at least a 90% chance the SLS will slip past the scheduled date for its test flight, with further slips expected if funding doesn’t increase. Without a set mission portfolio outside the “Asteroid Redirect” mission, concerns are raised whether there will be continued political will to sustain SLS and Orion funding. Furthermore, without increased funding, NASA will have to make the difficult choice between funding its human spaceflight program and funding its unmanned, robotic space science programs. In order to meet deadlines for its manned programs, NASA may have to cancel or significantly cut back on its science, education, and unmanned exploration missions (GAO 2014).

There is thus a significant and justified question about whether NASA’s current policies and levels of funding can meet the exploration goals it has set out to accomplish. Though progress has been made toward an eventual manned mission to Mars, many are rightly concerned that the agency’s current direction will not be able to meet the goal in the timeframe it has established. NASA has done a poor job justifying its “Asteroid Redirect” mission, which falls outside the scope of the focus on Mars and which has not demonstrated any value for an eventual Mars mission. Already burdened with financial constraints, the American space program will not be able to sustain the progress it is making should current levels of funding be maintained. With concerns over the United States’ manned space program representing a threat to continued American leadership in space and the future of NASA’s exploration activity, the agency is faced with a clear policy problem. As such, a number of policy alternatives which diverge from the current exploration framework need to be explored.

These policy alternatives provide different options for achieving the United States’ long-term space exploration goals, and therefore offer possible solutions to the criticism NASA is currently facing. However, they should be judged by a series of criteria in order to gauge their viability. The task of exploring Mars is a momentous undertaking; at a time when NASA’s budget is strained, accomplishing that goal will necessitate minimizing costs while maximizing possible gains. Among the most significant criteria by which these options can be evaluated, then, is their cost and whether they would be effective in advancing NASA’s progress toward Mars exploration. America’s victory in the “space race” of the 1960s, its leading role in the construction of the International Space Station, and its development of global positioning and communication satellite networks prove that the United States’ space program plays a significant role in ensuring national security and global prestige. Recognizing this, it is important to judge whether these policy alternatives preserve American leadership and preeminence in space. Additionally, the development of a mission as complex as the exploration of Mars is bound to stimulate the economy and inspire interest in the sciences and technology; these policy options should be evaluated at least in part by whether they will positively impact American industry.

In light of the criticism NASA has faced on its roadmap for achieving the exploration of Mars, the first, and perhaps most drastic, policy alternative that should be considered is scrapping the current exploration goals altogether. Tasked with the significant goal of exploring Mars yet developing missions which have faced significant criticism and backlash, NASA is, some contend, an agency without direction (Achenbach 2014). Abandoning that current direction could allow for a reconsideration of strategic goals and decisions. Developed spacecraft and allocated finances could be redirected away from the “Asteroid Retrieval” mission toward a different purpose, such as the exploration of lunar space and the Moon. Such was the suggestion of the National Research Council in its review of NASA’s human spaceflight program, which argued that, while, the current approach will create a number of “dead-end technologies” getting America no closer to Mars, a renewed effort on Moon landings will (Achenbach 2014). Abandoning existing space strategy is not without precedent, either. Indeed, the “Asteroid Retrieval” mission and agency focus on Mars exploration is a part of President Obama’s “National Space Policy,” which cancelled President Bush’s “Vision for Space Exploration” approach of renewed lunar exploration (National Space Policy 2010).

Abandoning the current exploration roadmap could, depending on the new approach that is then developed, provide considerable savings. The Space Launch System is projected to cost $7 billion between February 2014 and its maiden flight in November 2018 (GAO 2014). The Orion Capsule, according to information presented during a joint Senate-NASA presentation in 2011, is projected to cost $6 billion, and upgrades to launch facility infrastructure to support planned missions will cost at least $2 billion (Smith 2011). The Asteroid Retrieval Mission will likely cost in the billions (GAO 2014). With a freed budget, NASA could begin work on developing a cheaper roadmap toward a manned Mars mission, and would not need to worry about the high costs of its various spacecraft and rockets currently in development. However, abandoning the agency’s current direction would not help maintain American leadership in space, nor would it further advance progress toward an eventual Mars mission. With the cancellation of the “Constellation” Program in 2010 and the scrapping of the already-developed Ares rocket, a significant amount of effort and money was put to waste. In the time spent redeveloping its exploration strategy and designing the SLS, NASA has been left without its own usable man-rated rocket and has done little in the way of manned exploration (Moskowitz 2010). Indeed, the cancellation of the “Constellation” Program left NASA open to criticism that the agency was adrift (Achenbach 2014). Abandoning this program, especially after it has already made a considerable amount of progress, would likely only worsen the perception that NASA is an agency without direction and forestall any progress to be made toward getting American astronauts to Mars. Similarly, abandoning current progress would do little to help American industry; as the SLS and Orion capsule are currently being built, significant parts of the space industry have been geared toward their production. Scrapping their development would leave these industries with little to work on, and would represent an enormous loss in terms of finances invested. Innovation and technological advances made toward “exploration systems development” would also be lost should exploration goals be scrapped, representing a further loss in American space preeminence and progress.

A different policy option, which takes the opposite approach as the last, would be to maintain the current exploration polices and roadmap but focus on increasing NASA’s federal funding. NASA currently receives less than .5% of the overall federal budget (“Budget” 2014). At the height of the “Space Race,” Apollo Program, and Moon Landings – missions similar in scope and scale as the current planned missions – NASA was receiving over 3% of the federal budget (Rogers 2010). Though there are concerns and criticisms targeted at NASA’s “Asteroid Redirect” mission, they are framed in the context of a limited budget. The proposed mission to an asteroid is a “distraction,” for example, only because it will divert funding from the overall goal of a mission to Mars. The issues which the GAO raised about SLS funding and the problems the National Research Council addressed involving the SLS’s launch frequency would both be easily addressed if NASA had more money to dedicate to the program. Indeed, with more funding, NASA would be able to explore more options for achieving the goal of a manned mission to Mars and develop a broader range of technologies and missions for that end.

It is hard to dispute that giving NASA more money would positively affect its ability to realize its exploration goals. With increased finances, the agency would be able to broaden the scale and frequency of its missions, hasten and increase development of its spacecraft and rocket systems, and justify the devotion of finances to “side-missions” such as the “Asteroid Redirect” mission for the purposes of building capabilities and technical expertise. As such, increasing NASA’s funding would be an effective way to dispel issues with agency direction and get American astronauts on Mars. Enabling NASA to devote more resources toward broadening the scale of its missions and hastening their timeframe would positively impact American leadership in space. The sooner the United States is able to begin deep-space exploration with new technologies and accomplish the yet-accomplished, the sooner it will reassert its preeminence and prestige in outer space (GAO 2014). Increasing NASA’s funding will also have significant economic impacts. Private contractors and space industries working on the Orion capsule, the SLS, or associated technologies are paid by NASA; the industry is indeed supported by funding coming from the space program. If increasing NASA’s funding means that NASA can spend more money on the development of its spacecraft and technologies, as well as increase the rate at which it will use those spacecraft, then the industries which produce and support those spacecraft will benefit positively. In general, NASA’s activities benefit the broader economy. Supporting a space program creates high-caliber, high-paying jobs, inspires a wealth of spin-off technologies, and promotes interest in higher education, science, and technology (Barth 2012). Spending more on NASA would entail a higher return on that investment.

Yet when discussing increasing NASA’s budget, the issue of cost must be taken into consideration. Where would the increased money being allocated to NASA come from? As NASA’s funding is part of the federal budget, increasing its funding would either necessitate a rise in taxes or the diversion of funds from some other part of the budget. Though public support for the American space program is high, legislators are hesitant to increase the agency’s funding because of public ignorance over how much the agency actually receives and a lack of perceived political benefit for supporting the program (Dick 2007). Without a “space race” environment to excite people about spaceflight, it has become increasingly difficult for people to see how the space program impacts national security or global leadership (Dick 2007). Arguing that increased funding for NASA should come out of the bloated defense budget, a common contention among supporters of the space program, is thus a difficult argument to make. The question must also be raised of whether increasing budgetary costs to fund NASA at higher levels is actually worth it. The “Constellation” program was cancelled in large part due to budgetary over-runs, slips in development timelines, and funding constraints (Chang 2010). Though the SLS and Orion are not over-budget, they are under-funded and at threat of slipping past their scheduled development dates. While providing NASA more money to support these programs, there is a legitimate argument to be made that throwing more money at them will not resolve their issues.

A third policy option straddles between the previous two; maintain the current exploration policy, keep NASA funding levels consistent, but either redirect NASA finances to the manned space program or explore deeper cooperation with the commercial sector. NASA is made up of multiple directorates which receive funding, of which the human space program is only one. In NASA’s FY2015 budget request of $17.5 billion, the human space program is given $7.8 billion (“Agency Budget Fact Sheet” 2014). If the agency were to reallocate the remainder of its budget to the manned space program, it would potentially be able to deal with the concerns of funding that have plagued its current policy. Alternatively, NASA could explore deeper cooperation with the commercial space sector, with which it has fostered close ties already. In recent years, NASA has signed contracts with a number of space companies to develop private spacecraft capable of ferrying American astronauts and cargo to the International Space Station (“Commercial Crew Program” 2014). The “Commercial Crew” program, which represents a deeper connection between the national space program and independent space activity and which intends on driving spaceflight costs down, could serve as a framework for a private-public mission to Mars. The leaders of some of these private industries have expressed interest in working with NASA to achieve a manned Mars mission (Clough 2014), and already some level of cooperation exists between the private and public sector toward such a goal (Williams 2014).

Adopting such a policy approach would not entail a change in costs. Rather than increasing or decreasing NASA’s overall budget, the already allocated finances would be redistributed to address the financial concerns surrounding the manned space program. Money would either be given to the manned program at a higher priority, or diverted toward contracts with the commercial sector. As is the case with increasing NASA’s overall budget, reallocating funds toward the manned space program or commercial sector would be effective in helping achieve the goal of a manned mission to Mars. Yet it would come at the cost of NASA’s other missions, such as its educational outreach programs, its science programs, and its unmanned, robotic exploration of the solar system. As such, pursuing such a policy would have mixed results for ensuring continued American leadership in space and for the American economy. Though humans planting flags on foreign worlds represent a major symbolic feat, so too do the images of other planets and distant galaxies returned from robotic spacecraft. American leadership in space, especially currently, is built around its scientific endeavors and the discoveries made by its robotic spacecraft. The images and science returned greatly support interest in NASA and space. Drastically cutting the budget of these programs to support the manned space program could therefore severely undermine the pillars upon which American space leadership is currently built. Meanwhile, while the industries which support the manned space program might benefit from increased funding, those which support unmanned spacecraft or the science derived from them will undoubtedly suffer.

In light of these recommendations, and taking into consideration the criteria by which they should be judged, it is the opinion of this policy analyst that NASA’s best course of action would be to seek increased federal funding. Ultimately, the biggest issue facing NASA, its current policies, and the direction it is taking is that it is attempting to do too much with too little money. The other policy options suggested, while providing alternative approaches to dealing with the issue of underfunding, do not directly address that problem itself. Scrapping the progress made so far is not a viable alternative, for too much has already been done, and abandoning agency direction would add to fears that NASA is adrift. Reallocating NASA funding away from other programs to the manned space program offers a temporary solution to funding concerns, but at the great detriment to all of NASA’s equally important activities. What is needed is more funds overall.

Of course, lobbying for extra funding will be a difficult task for NASA. As pointed out, many legislators are hesitant to spend extra money on NASA, for doing so does not provide any direct political gain nor are the benefits immediately apparent. While eager to give NASA lofty goals and have high expectations, they are not so eager to actually provide the resources to meet those challenges. Yet NASA’s leadership and congressional leadership on the Space subcommittee have a strong case to make with the current situation the agency is facing. Agencies within the United States government, such as the Government Accountability Office, and research groups sponsored by Congress, such as the National Research Council, both make the argument that NASA is severely underfunded. They both reach the conclusion that NASA will never be able to accomplish the goal of manned exploration of Mars under the current financial constraints it faces. As the support for such an argument mounts, NASA’s and Congresses’ leadership can make the point that, if American leadership in space is to be maintained, if American industry and the economy is to continue to be stimulated by the spin-off technologies and innovation manifest from a space program, and if the American people wish to build the national pride and prestige that comes with great accomplishments such as a manned landing on another world, NASA’s funding must go up. Otherwise, as is becoming increasingly apparent, the American space program will continue to be plagued with cost over-runs, slips in development, and mission drift. For an agency which landed men on the Moon and a country which dared to dream of such an achievement, more can and should be expected of the space program.

Works Cited

Achenbach, Joel. 2014. “NASA Strategy can’t get humans to Mars, says National Reseearch Council spaceflight review.” The Washington Post. June 4. http://www.washingtonpost.com/national/health-science/nrc-human-spaceflight-report-says-nasa-strategy-cant-get-humans-to-mars/2014/06/04/e6e6060c-ebd6-11e3-9f5c-9075d5508f0a_story.html (November 25, 2014).

Barth, Chris. 2012. “Neil deGrasse Tyson: Invest in NASA, Invest in U.S. Economy.” Forbes. March 13. http://www.forbes.com/sites/chrisbarth/2012/03/13/neil-degrasse-tyson-invest-in-nasa-invest-in-u-s-economy/. (November 25, 2014).

Chang, Kenneth. 2010. “Obama Calls for End to NASA’s Moon Program.” The New York Times. February 1. http://www.nytimes.com/2010/02/02/science/02nasa.html (November 25, 2014)

Clough, Richard and Julie Johnsson. 2014. “Musk Seeking Mars Mission After NASA Picks SpaceX-Boeing.” Bloomberg News. September 17. http://www.businessweek.com/news/2014-09-17/musk-seeking-mars-mission-after-nasa-picks-spacex-boeing. (November 25, 2014).

Dick, Stephen J., and Roger D. Launius, eds. 2007. Societal Impact of Spaceflight. Washington DC:Government Printing Office

Howell, Elizabeth. 2014. “New Space Race? US Eyes Asteroids As Other Nations Shoot for the Moon.” Space.com. July 23. http://www.space.com/26613-manned-moon-missions-china-russia.html (November 25, 2014).

Khan, Amina. 2014. “NASA’s plan to capture an asteroid? Bad idea, scientist says.” The LA Times. October 30. http://www.latimes.com/science/sciencenow/la-sci-sn-nasa-asteroid-redirect-mission-distract-mars-astronaut-20141030-story.html. (November 25, 2014).

Matson, John. 2010. “Obama’s Goals for Space Exploration Include a Manned Mission to Mars Orbit in the 2030s.” Scientific American. April 15. http://www.scientificamerican.com/article/obama-space-plan/ (November 25, 2014).

Moskowitz, Clara. 2010. “NASA Signs New $355 Million Deal to Fly Astronauts on Russian Spaceships.” Space.com. April 6. http://www.space.com/8158-nasa-signs-335-million-deal-fly-astronauts-russian-spaceships.html. (November 25, 2014).

NASA. 2014. “Agency Budget Fact Sheet.” http://www.nasa.gov/sites/default/files/files/508_agency_budget_fact_sheet_final.pdf. (November 25, 2014).

NASA. 2014. “Budget.” http://www.nasa.gov/news/budget/. (November 25, 2014).

NASA. 2014. “Commercial Crew Program – The Essentials.” http://www.nasa.gov/content/commercial-crew-program-the-essentials/#.VHZoKsmvEXX. (November 25, 2014).

NASA. 2014. “Exploration Systems Development.” http://www.nasa.gov/exploration/systems/index.html#.VHZOfcmvEXU (November 25, 2014.)

NASA. 2014. “Orion.” http://www.nasa.gov/orion/#.VHZOJ8mvEXU. (November 25, 2014).

NASA. 2014. “NASA’s Space Launch System.” http://www.nasa.gov/exploration/systems/sls/index.html. (November 25, 2014).

NASA. 2014. “What is NASA’s Asteroid Redirect Mission?” http://www.nasa.gov/content/what-is-nasa-s-asteroid-redirect-mission/. (November 25, 2014).

NASA Office of Inspector General. 2012. “NASA’s Challenges to Meeting Cost, Schedule, and Performance Goals.” September 27. http://oig.nasa.gov/audits/reports/FY12/IG-12-021.pdf. (November -25, 2014)

Rogers, Simon. 2010. “NASA Budgets: US Spending on space travel since 1958.” The Gaurdian. February 1. http://www.theguardian.com/news/datablog/2010/feb/01/nasa-budgets-us-spending-space-travel. (November 25, 2014).

Smith, Marcia. 2011. “New NASA Crew Transportation System to Cost $18 Billion Through 2017.” Space Policy Online. September 14. http://www.spacepolicyonline.com/pages/index.php?option=com_content&view=article&id=1867:new-nasa-crew-transportation-system-to-cost-18-billion-through-2017&catid=67:news&Itemid=27. (November 25, 2014).

The White House. 2010. “National Space Policy of the United States of America.” June 28. http://www.whitehouse.gov/sites/default/files/national_space_policy_6-28-10.pdf. (November 26, 2014)

United States Government Accountability Office. 2014. “Space Launch System, Resources Need to be Matched by Requirements to Decrease Risk and Sustain Long Term Affordability.” July. http://www.gao.gov/assets/670/664969.pdf (November 25, 02014).

Williams, Matt. 2014. “How NASA and SpaceX are Working Together to Land on Mars.” Universe Today. October 21. http://www.universetoday.com/115408/how-nasa-and-spacex-are-working-together-to-land-on-mars/. (November 25, 2014).

Policy Memo: The Rise of China and its Implications for U.S. Foreign Policy

To: John Kerry, U.S. Secretary of State
From: Cody Knipfer, Student – McDaniel College
Date: 10/21/14
RE: The Rise of China and its Implications for U.S. Foreign Policy

Secretary Kerry,

The People’s Republic of China (PRC) is rapidly rising to become the dominant regional actor in the Asia-Pacific, and as such its relationship with the United States will come to define the international environment of the 21st century. As such, it is vitally important that the United States pursue a strategy that seeks closer, cooperative relations with the PRC. This policy memo outlines background information about the PRC, its foreign policy intentions, its perceptions of the United States, and provides policy suggestions for the coming relationship between our two countries.

Background Context


Situated between North Korea, Russia, India, and Vietnam and stretching into Central Asia, the People’s Republic of China comprises the bulk of land territory in the East Asian landmass. A number of relevant geographic statistics about the PRC include:

  • A territory encompassing 9,560,960 square kilometers, the 4th largest in the world and the largest in East Asia.
  • 14 borders with other states, the most in the world along with Russia.
  • Access to the East China Sea, Korea Bay, Yellow Sea, and South China Sea.
  • Extremely diverse climate, with biomes ranging from tropical rainforests, subarctic, mountains, and deserts to temperate grasslands, forests, and deltas.

Population and Demographics[ii]

A number of population and demographic statistics about the PRC demonstrate its enormous size and reveal future internal challenges:

  • A population of over 1,355 million people, the most in the world.
  • Population growth rate of .44% annually, the 159th highest in the world.
  • 91% Han Chinese, with a vast diversity of smaller minority groups found largely along the peripheral borders.

By comparison, the United States, as the world’s 3rd most populous country, has 318 million inhabitants – less than 25% that of the PRC.[iii] However, as a result of the PRC’s massive current population and slow growth rate, a result of Beijing’s attempts at controlling population rates, the PRC is one of the world’s most rapidly aging countries. This could present significant economic issues for Beijing in the coming decades, as millions leaving the workforce may not be replaced with new workers.[iv]


The People’s Republic of China is today a major global economic power. Since the late 1970s, the PRC has transformed from a closed, centrally-planned economic system to a more market-oriented one.[vi] Economic liberalization reforms included the phasing out of collectivized agriculture, the gradual liberalization of prices, fiscal decentralization, increased autonomy for state enterprises, the growth of the private sector, the development of a modern banking system and stock market, and an opening to foreign investment and trade. A number of statistics demonstrate the PRC’s rapidly growing economic power and clout:

  • GDP of $9.33 trillion, as of 2013, the 2nd largest in the world.
  • Annual growth rate of 7.7%, the 13th highest in the world as of 2013.
  • 1st largest global exporter.
  • $3.821 trillion in reserves of foreign exchange and gold, the most in the world.
  • $1.95 trillion in imports.

The PRC’s primary export partner is the United States of America, which purchases 16.7% of Chinese exports. Japan, which purchases 6.8% of Chinese exports, is the PRC’s second largest export partner, followed by South Korea at 4.1%. The PRC’s largest import partner is South Korea, from which it purchases 9.4% of its imports, followed by Japan at 8.3% and Australia at 7.8%.

However, the Chinese government faces numerous economic challenges which it must deal with for sustained economic growth.[vii] These include:

  • Reducing a high domestic savings rate and correspondingly low domestic consumption.
  • Facilitating higher-wage job opportunities.
  • Reducing corruption and economic theft.
  • Containing environmental damage and social strife produced by a rapid economic transformation.


The People’s Republic of China is a single-party, socialist, authoritarian state, in which the Chinese Communist Party has supreme political authority. This authority is realized through a comprehensive control of the state, military, and media.[ix] Power in China is concentrated in the “Paramount Leader,” current Xi Jinping, who holds the three most important political and state offices: “General Secretary of the Communist Party,” of the “Central Committee,” and “Chairman of the Central Military Commission.”[x]

The primary branches of China’s governmental system include:[xi]

  • Legislative Branch: the National People’s Congress
  • Executive Branch: State Council
  • Judicial Branch: Supreme People’s Court
  • Military Branch: People’s Liberation Army

Military Capabilities

Over the last decade, the People’s Republic of China has embarked in a program of significant military expansion and modernization. The PRC has a capable ground force, the largest in the world, backed by an even larger reserve/militia component. Its navy is developing deep-water capability, its air-force is capable of regional power projection and is rapidly modernizing, and the PRC is focusing on developing a sophisticated offensive and defensive missile capability.[xii]

Under most conceivable circumstances, the PRC’s military would be capable of sustaining the country well against outside attack and would render an indefinite occupation of Chinese territory impossible.[xiii] However, as major military operations outside of peace-time training and maneuvers have yet to be carried out, the true force and logistical capabilities of the PRC’s military remains to be seen or tested. The strengths of the PRC’s military and as of yet unproven contemporary capabilities should be kept in mind in Washington when developing strategies for areas of potential conflict with the PRC. Ultimately, considering the massive size and growing modernity of the PRC’s military, it would likely be most beneficial if the United States avoided a military confrontation at all costs.[xiv]

Chinese Foreign Policy Intentions

Chinese Foreign Policy Objectives

As the People’s Republic of China continues to rise on the world stage, it is pursuant of a number of foreign policy objectives in the Asia-Pacific region. Beijing’s overarching, long-term strategic goals appear to be maintaining regional stability and displacing the United States as the dominant regional hegemon.[xv] Maintaining a peaceful, stable international order in the Asia-Pacific is a primary goal for Chinese policymakers. The Communist Party maintains internal order and legitimacy through its ability to produce economic results; considering the deeply interconnected nature of regional economies, any major disruption of the peace and stability in Asia would have dire consequences for Beijing.[xvi]

Displacing the United States as regional hegemon can be considered China’s long-term strategy. Beijing seems to believe that American hegemony in the region necessitates Chinese subservience.[xvii] While the PRC is not yet in a position economically or militarily to displace the United States through force, its current strategy is to restrain the United States’ exploitation of its own political, military, and economic strength. To achieve this end, Beijing has pursued two courses of action:[xviii]

  • Active diplomacy with regional and extra-regional states aimed at expanding China’s regional political and economic influence, which is seen as the most effective way to counter the United States while avoiding direct confrontation.
  • The modernization of its armed forces, so to exert a more tangible hard-power influence and balance against American power projection.


Threats to China’s Regional Interests

The PRC’s strategic dilemma and arguably greatest threat lies in the difficulty of forming a dominant regional role without antagonizing the United States or alienating other regional powers. As the PRC exerts an increasingly hegemonic role in the Asia-Pacific, many neighboring states seek to balance against it by forming security arraignments with the United States. Doing so, they minimize the capacity for Beijing to directly influence the region, which the PRC increasingly wishes to do.[xix]

Other threats to Beijing’s interests of regional peace and stability include transnational, internal, and regional issues such as:

  • Piracy
  • Crime and Smuggling
  • Internal popular dissent, particularly in China’s peripheral regions such as in Xinjiang with minority populations.[xx]

Chinese Allies and Enemies

The Chinese-North Korean relationship is perhaps the most significant of the PRC’s various alliances. The PRC is North Korea’s most important ally, biggest trading power, and main source of food, arms, and energy Beijing has historically opposed harsh international sanctions on North Korea, as it hopes to avoid regime collapse and refugee influx across the border. The close nature of this relationship gives Chinese policymakers significant clout over North Korea, providing it the potential to “resolve” the North Korean issue and thereby increase The People’s Republic’s international standing. Yet Pyongyang’s continual “saber-rattling,” refusal to defer to Chinese wishes, and international isolation appears to be wearing Chinese patience thin. As the PRC develops closer trading relationships with North Korean enemies such as South Korea and Japan, and as the dynamics of the region shift towards greater Chinese hegemony, the Chinese-North Korean relationship is bound to become more complicated.[xxi]

Other Chinese alliances of significance, which entail diplomatic, military, and economic ties, include those with:[xxii]

  • Russia
  • Myanmar
  • Pakistan
  • Venezuela
  • Zimbabwe
  • Iran

Meanwhile, Beijing perceives the United States and its regional allies to be pursuant of a strategy of containment against the PRC’s rise. While nonetheless sharing deep economic ties and other forms of interdependence with these states, they can for the purposes of this policy memo be considered the PRC’s principle “enemies.” These states include:[xxiii]

  • The United States of America
  • Japan
  • Australia
  • South Korea

Chinese Perception of the United States

At present, it would appear as though Beijing acknowledges that it cannot fully dislodge the United States from the Asia-Pacific. Still, the PRC is highly sensitive to and suspicious of America’s power projection, which it views as an attempt to contain the PRC’s economic and political rise. Still, deep economic interdependence between the United States and the PRC deters direct conflict between the two states. Chinese policymakers acknowledge that the need to have the United States as a principle economic partner and the desire to avoid a military confrontation with the United States will encourage coming US-Chinese cooperation.[xxiv]

Nonetheless, Beijing sees the United States’ continued presence and hegemony in the Asia-Pacific as preventing its own rise to dominance. The United States’ projection of power into the region has served to amplify Chinese suspicions and fears. Among China’s main concerns about American involvement in the region are:[xxv]

  • The strengthening of U.S. military alliances
  • The revision of U.S.—Japan defense guidelines
  • The planned deployment of ballistic missile defenses
  • The supply of advanced American arms to Taiwan

The Context of US-Chinese Relations

Potential Threats to American Regional Interests

A rising China poses a number of possible challenges to the United States’ interests in the region and regional goals. As the PRC increasingly asserts its hegemony, it appears as though Beijing seeks to displace the United States as the dominant regional actor. Beijing’s rhetorical disclaiming of interference in the internal sovereignty of other states and pursuit of peaceful dialogue is at odds with its recent belligerent strategic maneuvering, suggesting to Washington that China could disrupt the order the United States has created in the region over the last half-century. China’s potential threats to American regional interests include:[xxvi]

  • Displacing the United States as the dominant regional leader and hegemon.
  • Establishing a hostile international order through Chinese-dominated IGOs.
  • Exacerbating territorial and sovereignty disputes with American allies, particularly Japan.
  • Continuing economic policies at odds with American economic standards.
  • The continued cyber-theft of trade, military, and government secrets from the United States and regional allies.

Potentials for US-China Cooperation

Despite the perceived threat of a rising China, and despite Beijing’s seeming desire to replace the United States’ as regional hegemon, the PRC has much to offer the United States in the way of achieving Washington’s regional goals. A peaceful, stable, cooperative Asia-Pacific is as beneficial, if not more beneficial, for the PRC’s interests as it is for the United States’. Potential areas for cooperation with the PRC that would benefit American interests and regional goals include:[xxvii]

  • Tackling transnational issues such as piracy, smuggling, crime, terrorism, and climate change.
  • Addressing regional issues such as nuclear proliferation and a belligerent North Korea.
  • Continuing regional economic growth and development through bilateral and multilateral economic agreements and arraignments.
  • Strengthening regional institutions and developing peaceful norms of cooperation through multilateral dialogue and engagement.

China’s Influence on America’s Agenda toward Other Regional Actors

Increasingly, states in the Asia-Pacific seek to maximize their range of strategic options by avoiding commitments that could lead them into conflict. They do not feel a need to seek alignment with either the PRC or the United States in order to protect their own interests. Deeply interconnected with the PRC yet threatened by its growing hegemony, states are forming diverse bilateral and multilateral relationships in order to increase their security and support strategic interests. This strategy of “hedging” has positively influenced regional states willingness to engage with the United States, but has also limited the United States’ capacity to pursue a strategy of direct “containment” against the PRC. Still, Beijing’s growing military capability has increasingly motivated neighbors to draw more closely to the United States, allowing Washington to deepen regional security arraignments and broaden military alliances.[xxviii]

Policy Suggestions and Recommendations

As the two states with regional and global primacy, the PRC and the United States have a vital stake in each other’s success. As such, the United States should make a concentrated effort to prevent a ‘Cold War’ environment in the 21st century Asia-Pacific, which would be counter to both states’ interests of regional security and prosperity. Washington must ensure that the U.S.-Chinese relationship is defined not by mutual suspicion and strategic rivalry, but by fair competition, practical cooperation on regional issues, and the constructive management of differences and disagreements. Beijing’s expanded regional role should be seen as complementary to the United States’ sustained strategic engagement in the Asia-Pacific, and offers Washington the possibility of a major partner cooperating on issues of mutual benefit.

Cooperation with the PRC can be found in numerous areas where interests overlap. As such, the United States should prioritize high-level dialogue with Beijing aimed at finding points of mutual interest and agreement, and focus heightened energy on working constructively with China to resolve them. Dialogue can come in the form of new, ad-hoc meetings and conferences, through established international institutions such as the United Nations, or through existing frameworks such as the high-level “US-China Strategic and Economic Dialogue.”

The PRC’s economic development should be seen as healthy for the region’s continued growth and prosperity, and as such the United States should pursue policies and agreements aimed at strengthening economic ties with, and the economic environment around, China. These include:

  • Pushing Beijing toward a market-determined exchange rate.
  • Negotiating bilateral investment treaties.
  • Increasing access to Chinese markets for U.S. business.
  • Developing more transparent regulatory regimes.

The United States should also attempt to find diplomatic, dialogue-driven solutions to issues such as forced technology transfer and the theft of intellectual property and trade secrets. Of course, though a deeper and more “fair” economic relationship would benefit both partners, the United States has had past difficulty shaping China’s economic strategies to meet its interests. Dialogue and compromise alone may not convince Beijing to conform to the United States’ economic standards. At present, as a method to incentivize a more responsible Chinese approach to economic issues, the United States should consider bringing the PRC into the Trans-Pacific Partnership, a major, comprehensive free-trade agreement which includes many states in the Asia-Pacific. Doing so would not only further integrate the Chinese-U.S. economies, providing a deterrent to conflict, but would be a signal to the Chinese that the United States wishes to include it constructively and prominently in the regional economic order.

As the PRC develops and modernizes its armed forces, it is crucial that Washington builds a sustained and substantive military-to-military relationship with Beijing. Identifying concrete areas of cooperation is crucial to reducing the risk of military confrontation, while engaging the Chinese military in high-level dialogues and on-the-ground cooperation dispels mutual suspicion and builds shared capacity. Finding and engaging in military partnerships with the PRC aimed at resolving regional issues such as piracy, climate change, and natural disasters further has the potential to develop lasting regional norms of cooperation and peaceful projection of force among major powers. It is through direct engagement, as opposed to counterbalancing or military buildup, that Washington and Beijing can peacefully cooperate despite their strategic disagreements and major armed forces.

Though the United States does not take sides on the sovereignty questions underlying territorial disputes between the PRC and other regional powers, Washington should have an interest in the way these states manage and resolve these claims. The United States should thus push the PRC, along with other territorial claimants, to resolve these issues with fair dialogue and compromise. While maintaining a position of neutrality, the United States should attempt to have these territorial disputes moved into arenas of international dialogue such as the United Nations, and in turn provide diplomatic assistance through mediation or other means when needed. Washington should also make clear that it believes these issues should be decided on the basis of the merits of the PRC’s and other claimants’ legal claims and adherence to international law and norms, rather than the strength of their militaries or the size of their economies. Territorial disputes and issues of sovereignty have the potential to plunge the region into conflict; as such, the United States should continue taking steps to monitor these disputes, engage with the governments involved, and attempt to provide a moderating influence towards all parties should tensions heighten.

Increased dialogue and attempts at cooperation with China fit into the United States’ broader, already-established regional “rebalancing” strategy.[xxix] Prioritizing the Asia-Pacific as the region most crucial to the 21st century, this strategy involves:

  • Modernizing and strengthening U.S. regional alliances
  • Developing economic and bilateral ties with emerging partners
  • Supporting effective regional institutions
  • Increasing trade and investment to expand broad economic growth,
  • Ensuring a continued regional military presence that supports the full range and scope of the United States’ activities overseas.

The rebalancing can further be seen, and should be branded, as a signal to regional powers that the period of the United States’ singular focus on the Middle East, terrorism, and nation-building is over. To dispel Chinese suspicions of the United States’ motives for increased focus on the region, American policymakers have tried to portray the rebalancing as focusing on the region at large[xxx].

While China’s rise can easily be seen as a causal factor in the rebalancing, it is far from the only one, and Washington should make clear this fact. Piracy, international smuggling, illegal drug trades, nuclear proliferation, climate change, and natural disasters are only a few of the many issues in the Asia-Pacific which extend beyond the nature of the U.S.-China relationship. A rhetorical or strategic framing of America’s current and future regional involvement as a means to counter China’s rise risks not only drawing Chinese ire, but limits the possibilities for broad American engagement. Thus, the United States’ rebalancing and future engagement in the Asia-Pacific should be portrayed to regional states, and perceived in Washington, as a means to ensure a lasting stability and order which benefits all, including China.


Works Cited

[i] Statistics taken from: “China,” CIA World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/ch.html (accessed October 23, 2014).

[ii] Ibid.

[iii] “United States of America,” CIA World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/US.html

[iv] “The Security Risks of China’s Abnormal Demographics,” The Washington Post, http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/04/30/the-security-risks-of-chinas-abnormal-demographics/ (accessed October 23, 2014).

[v] “China,” CIA World Factbook.

[vi] Mitter, 2007.

[vii] “China,” CIA World Factbook.

[viii] “China,” CIA World Factbook.

[ix] Ralph H. Folsom, John H. Minan, Lee Ann Otto, Law and Politics in the People’s Republic of China, 76–77. St. Paul : West Publishing, 1992

[x] Andrew Higgins, “Hu’s Visit Spotlights China’s Two Faces,” The Washington Post, http://www.washingtonpost.com/wp-dyn/content/article/2011/01/15/AR2011011504013.html (accessed October 23, 2014).

[xi] “China,” CIA World Factbook.

[xii] Dreyer, 2007.

[xiii] Dreyer, 2007.

[xiv] “Pentagon: China Continues Military Modernization,” Defense News, http://www.defensenews.com/article/20140605/DEFREG02/306050042/Pentagon-China-Continues-Military-Modernization (accessed October 23, 2014).

[xv] Dreyer, 2007.

[xvi] Yan Xeutong, “China. Striving for Preventive Cooperation,” Regional Perspectives on the U.S. Rebalance. Asia-Pacific Defense Forum, January 1, 2014

[xvii] Mitter, 2007

[xviii] Mitter 2007.

[xix] Roy, Denny. “More Security for Rising China, Less for Others?” AsiaPacific Analysis, no. 106, January 2013.

[xx] Armin Rosen, “China May Have Commited A Tiananmen Square-Scale Massacre This Year – And Totally Covered It Up,” Business Insider, http://www.businessinsider.com/chinas-other-major-protests-2014-10 (accessed October 24, 2014).

[xxi] Beina Xu and Jayshree Bajorina, “The China-North Korea Relationship,” Council on Foreign Relations, http://www.cfr.org/china/china-north-korea-relationship/p11097 (accessed October 23, 2014).

[xxii] “China,” CIA World Factbook.

[xxiii] Ibid.

[xxiv] Mitter 2007.

[xxv] Ibid.

[xxvi] Ibid., Dreyer 2007.

[xxvii] Xeutong, Yan. “China. Striving for Preventive Cooperation.”

[xxviii] Cossa, Ralph A. “Security Dynamics in Asia.” In International Relations of Asia, edited by David Shambaugh and Michael Yahuda, 368. Lanham:Rowman & Littlefield, 2014.

[xxix] Forum Staff. “Regional Perspectives on the U.S. Rebalance.Asia-Pacific Defense Forum, January 1, 2014.

[xxx] Ibid.

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