A vacation to the Moon may no longer be a far-off pipe dream for Americans (at least those with plenty of money in the bank). Elon Musk's Space Exploration Technologies Corp., known as SpaceX, has previously announced plans to prepare to send private citizens into space by late 2018. And citizens of Earth—including the legal community—are wondering what comes next.

This is because, at the moment, it's not completely clear which commercial laws govern space or what regulations companies and their in-house attorneys have to follow there. Most of the space law that does exist deals with government and military activities, not commercial activity. And the laws that do address businesses in space mostly deal with satellites, not full-fledged space tourism or, say, asteroid mining.

“We have international and domestic laws geared up to the activities done in the last 40 years which [have been in] civil and military space,” said Sagi Kfir, the general counsel of Deep Space Industries, an asteroid mining company. “But with the boom of these startups we'll see an increased development or increased emphasis on developing new regulations for space.” 

Before commercial activity in space gains traction as part of the U.S. economy, investors and space-focused companies need legislative clarity, says Mark Sundahl, director of Cleveland-Marshall College of Law's Global Space Law Center. With the current lack of clear legislation and regulatory guidance, he explained, there's fear that investments in space companies could be for naught if later legal changes leave vessels or business plans failing to meet newly established standards.

There are two bills before Congress to modify the space licensing laws for commercial use that are slated to have effects on the corporate universe.

One is the American Space Renaissance Act, which pushes for clearer regulation and more funding for regulators to minimize the risk for those who invest in commercialized space projects. The other, the American Space Commerce Free Enterprise Act, would create a single authority for U.S. authorization and supervision of nongovernmental space activities—right now it's unclear if some projects fall under the purview of the Federal Communications Commission or the National Oceanic and Atmospheric Administration—as well as a transparent certification process for commercial space ventures.

“Congress is actively pursuing new [space] regulations and the companies have got to be involved,” Sundahl said. “But to be GC of a company is a busy, busy thing, and they may neglect getting involved in the regulatory process. That's a big mistake because then they're going to end up with legislation they don't like.”

And it's not just pushing for regulation on a domestic level. While several companies interested in space have begun lobbying in D.C., according to federal database searches, there's also a lot of room for discussions about this area of law on the international stage.

Cold War-era legal frameworks such as the 1967 Outer Space Treaty still provide the main outlines for international space laws. And last year, Luxembourg joined the United States as one of the first countries to permit companies to claim ownership over items collected in space. Kfir notes there have been conversations in the United Arab Emirates, Japan, China and other countries about authorization and jurisdiction in space.

Some European countries are approaching space regulation discussions on a vessel-by-vessel basis, with ongoing debates as to which types of vessels should be covered under existing aerospace laws or less-specific (or non-existent) outer space laws in their jurisdiction. Whether a vessel is an aircraft or spacecraft, or both, can affect a company and country's liability.

According to Frans von der Dunk, a space law professor at the University of Nebraska-Lincoln, College of Law, the 1967 Outer Space Treaty, the 1972 Liability Convention and the International Telecommunication Union hold the United States as a state responsible and liable for what private actors from the country do in space.

“Consequently, the Commercial Space Launch Act ensures that anything launched into outer space for which the U.S. can be held responsible and liable will be properly licensed, including handling the derogation of international liability claims to be potentially paid by the U.S. government to the licensee and attendant insurance obligations,” von der Dunk wrote in an email to Corporate Counsel. “As of 2004 amendments, this also includes impending private manned spaceflight—'space travel.'”

On a company-specific level, U.S.-based operations sending private citizens to space won't be liable for private passenger injuries in space, according to von der Dunk, if they require passengers to sign a liability waiver to ride the space craft. But in other countries, it's not yet clear what a company's liability will be if passengers are harmed in-flight—another reason space-company GCs may focus on getting clear regulations.

“The most important point is that companies are asking for this regulation,” Sundahl said. “It's not really so much what the regulation is but that there is regulatory clarity. Right now, because there are no clear regulations on these activities, companies are afraid.”