The world now sits at the face of an entirely new frontier, one that possess certain challenges of the past but also one that is entirely new. It mirrors the arrival of Europeans to the New World and the subsequent generations that moved westward across the contiguous United States. However, unlike the frontier that was faced around the 18th and 19th centuries in the New World, this frontier has the possibility of making issues for the entire world, it is a shared frontier unlike anything we have known before. The present issues faced are the lack of clear legal rules in space especially with respect to the new actors in space, private companies, there is a lack of understanding of who may have jurisdiction if anyone, and of course the issue around enforcement and compliance that dogs many international legal regime.
Over the course of this article the key issues listed above will be considered through a legal lens. In the first section there will be a brief introduction into the history of space law, touching on the purpose behind its formation. The next section will then consider the treaty and customary law covering space. The subsequent part will take into account the rules of space law and the unique challenges that are present when entering the latest phase of space governance. The final two portions will provide a conclusion and some recommendations respectively.
History:
The primitive building blocks of international space law can be traced back to the 1960s. The global politics of for most of the mid to late 20th century can be viewed in the backdrop of an ideological war between different philosophical and economic systems, promulgated by two world superpowers fought out in a variety of different arenas, one of which was space. It was realised early on however that to avoid a situation where space would become a literal mine zone or worse, there would need to be something, some modicum of legal agreement about how to regulate state activities in the wake of the new space faring technology being unlocked by both superpowers.
The history of International Space Law can be seen in the wake of at least one watershed moment, and possibly a second one we are living in or will approach shortly. There is a pre-Sputnik 1 time frame and a post-Sputnik 1 time frame. Furthermore, it may be argued, presently a time frame where there is a proliferation of private non-state actors in space. The pre-Sputnik 1 period can be seen as starting in the 1910’s and concluding at the entry into orbit of Sputnik 1 in 1957. It can be characterised by a disorderly, yet generally affable or agreeable theoretical realisation that states air space probably stopped at or around the space for technical and legal reasons. It was very much based in the theory of rockets and attempting to get ahead of introduction of the first artificial earth satellites. The post-Sputnik 1 era was much more based on a realisation and newfound necessity to implement some degree of rules. It can be characterised as one of the few areas where the two superpowers at the time found consensus and so declaration of principles, agreements and even conventions and treaties proliferated.
The 1960s saw the start of the international legal order form and in the subsequent decades there was a propagation of different international agreements and organisations formed, there was also an abundance of regional and even national measures adopted. It is not the scope of this article to meticulously drill down into each instrument so rather there will be a focus on the treaties and conventions adopted as they have more legal force, obviously declarations and other agreements demonstrate parts of customary law so will be utilised to a lesser degree. The first proper treaty regulating ISL was the Outer Space Treaty (herein after OST). It is not the only treaty that was adopted under the guidance of the UN, but it should be considered the most important, the others include more specific obligations for example, liability caused by space objects, agreement on the rescuing of astronauts and registration of objects sent into space.
In the proceeding part the obligations imposed by international law will be addressed more specifically.
Law:
Treaty Law:
As mentioned in the above section the main treaty for the governance of space activities is still the OST. There have been four other subsequent treaties, that will be listed but for the purpose of this article the main focus will remain in the OST. The five main treaties that build up the corpus of international space law is: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; Agreement on the Rescue of Astronauts, the Return of Astronauts and Return of Objects Launched into Outer Space; Convention on International Liability for Damage Caused by Space Objects; Convention on Registration of Objects Launched into Outer Space; Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.
The OST consists of thirteen articles and is based around the principal idea that the space that surrounds earth and other celestial bodies is not eligible for national jurisdiction and so should be considered a commons of mankind. In the first and second articles the OST stipulates this principle, that the exploration of outer space is to for the benefit of mankind and is not to be subject to national jurisdiction. Article four prohibits the installation or use of nuclear weapons in outer space. Article five prescribes that astronauts, of any nation, should be subject to rescue or help regardless of their home nation. Importantly, for this essay article six explains that state parties will be responsible for the actions of their government actors and also their non-start actors. Article seven infers that any damage caused by any object launched into space that causes damage to a state will incur liability and article eight mandates the registration of these objects launched into space. Articles nine through to eleven emphasis the need for cooperation when it comes to space exploration. This was a very brief overview of the contents of the OST.
Customary International Law:
The exact scope and nature of customary space law can be quite difficult to determine as there isn’t necessarily a single authoritative source on it. Furthermore, the limited number of actually state actors that participate in space exploration is very limited and finding a consensus can difficult as many states have no real state practice recorded. However, it is agreed by many jurists and legal scholars that despite the OST being a new source of law at the time many of its provisions, alongside the provisions of the 5 main treaties that followed could be considered to have achieved the status of customary international law with respect to space.
Application to Private Enterprise:
In recent years the role of space exploration and exploitation have been shifting, in a similar fashion to other governmental roles, from a public sphere to a private capacity. In April 2020 NASA signed an agreement for SpaceX to start the installation of a 12,000 strong satellite scheme. This action alone is nearly ten times the number of satellites presently orbiting the globe. There are now an ever-expanding number of companies looking to utilise space in some capacity, from tourism to mining to further communications and even co-use military installations. The pressing question now is then, how to we ensure that these private company act within the philosophical and legal understanding of outer space being considered a commons of mankind?
Owing to a quirk of international law more broadly that ties into the notion of sovereignty it is hard to hold private actors to account. Namely, that for all of these treaties there would need to be some sort of national implementing legislation in order to be able to hold private entities to account for the actions since it is still, and likely will for a while, the general consensus that states are the only ones to be considered subjects in international law, with private entities more akin to objects or beneficiaries. These pieces of national law should reflect the object and purpose of the international obligations created by these treaties. Many countries over the decades have implemented some sort of national regulation of their citizens presence in space, these include the USA, Russia, China, Sweden, Norway and the UK to name just a few. More recently the USA and Luxembourg have made small amendments that focus more pointedly on the actions of private individuals.
In short there is an obligation on states to ensure that private actors in space adhere to the terms of the OST, as seen in article 4, however this article itself and subsequent state practice as done nothing to transpose legal personality in full to these private actors on an international level. Couple this with a general state interest to give their own companies a competitive advantage and you have a perfect storm for the degradation of space. You have private actors motivated primarily by profits, and states that want to gain a competitive advantage in space and for their companies but can’t be seen as outwardly violating the rules in the OST. This disjunction between the lack of enforcement on the legal subjects (the states) and the newfound role of private business in space has all the markings of a disaster on the horizon.
Already space is littered with debris, tiny shards of metal from broken satellites, the size of a marble. While this may sound very small travelling at the speed of bullet this has the potential to do enormous damage, or at the very least create enormous hazards for future space endeavours. There is already an example of how SpaceX’s Star Link installation is impeding scientists on earth from performing meaning observations of our common night sky, potentially impacting our scientific activities. It can only be speculated how much a worse this is going to get if private actors can utilise space unabated.
In short there is some serious issues that are on the horizon, with respect to private actors in space. Furthermore, there is a huge legal blackhole in both the application and the enforcement of space law. In the application, because international law by and large and by extension space law, doesn’t apply to private undertakings. As for the enforcement, because the OST lacks a meaningful enforcement mechanism to bring states actions and their law governing their citizens into compliance.
Conclusion:
In summary, the world is sitting at the precipice of the next big frontier, it is similar to what has come before, only the actors that shape this may not be governments with a few private enterprises but rather these enterprises may be instrumental in the shaping of the future. The body of law that exists to regulate actions of states is embedded within the general principles of public international law, which designates them the principal actors and only real legal subjects. This view will not be altered with respect to space law specifically and so will continue to restrain the application of international space law to states despite the ever-enlarging role of private actors within this field. There is not so much a lack of law in this field, albeit old, there is just a lack of applicability towards private actors. The OST also suffers a secondary deficit, namely that its enforceability even to those it does apply to is very lacking. There is no mandatory dispute scheme or mandatory enforcement mechanism, so violation at the hands of states or large companies will continue to go unpunished even if the applicability could be targeted towards private enterprises.
Recommendations:
In the above parts there has been an explanation about how deficient the current legal order around space is, especially in light of the new challenges posed by private enterprises. In this section there will be some recommendations for potential solutions.
Firstly, a recommendation that has already received support from the main committee that reviews the acts of states in the endeavour of peaceful existence in space, is the institution of an additional protocol, similar to that implemented by ICCPR and ICESCR, that would create competence for tribunals or other quasi-judicial hearings for violations of space law. Th
Primarily, there needs to be a renewed importance to recodify in a treaty form the rules that govern space, as the actors and institutions of the past are not necessarily the main players of the future, institutions like NASA will always be important actors in the exploitation of space but it is private companies that still largely fall outside the purview of space law that pose existential threats to the law of space. International organisations like the UN should realise this pressing issue and renew calls for a reconfiguration of the treaty-based space law.
In the meantime, realising the enormity of getting a consensus of states internationally to agree on the exact parameters of a new treaty there should be efforts done nationally and regionally. What this could look like is imposing new standards or practice or regulations at a national level that govern what conduct could be expected from an enterprise involved in space. This could also be achieved regionally, say for example in the EU or NAFTA areas. This has a greater chance of success as these countries customs and rules are generally more closely aligned than say the whole world, however it does severely limit the scope to a smaller area.
A final recommendation would be soft law principles similar to that of the OECD and UN rules on due diligence and corporate social responsibility. A call for this would require the least amount of political will as it is not binding on a state and is merely a recommendation for companies to follow certain CSR rules. However, this does not really address the lack of real enforceability of space law on private actors, but even if it regulates a little bit of the rules of due diligence it should be done.
Bibliography
o Stephen Doyle, Concise History of Space Law, International Institute for Space Law.
o Feyisola Ruth Ishola et al, Legal Enforceability of International Space Laws: An Appraisal of the 1967 Outer Space Treaty, Voices of the New Space Generation.
o United Nations Office for Outer Space Affairs, International Space Law: United Nations Instruments, United Nations Office at Vienna.
o Samuel Stockwell, Legal ‘Black Holes’ in Outer Space: The Regulation of Private Space Companies, E-International Relations
o Art Dula, ‘Private Sector Activities in Outer Space’, International Lawyer
o Ph. Diederiks-Vershoor et al, “Future Legal Status of Nongovernmental Entities in Outer Space: Private Individuals and Companies as Subjects and Beneficiaries of International Space Law,” Journal of Space Law
o P. J. Blount, “Jurisdiction in Outer Space: Challenges of Private Individuals in Space,” Journal of Space Law
o Valentina Vecchio, “Customary International Law in the Outer Space Treaty: Space Law as Laboratory for the Evolution of Public International Law,” German Journal of Air and Space Law
Julia Selman Ayetey, “In Support of Global Accountability for Private Commercial Space Actors,” Georgia Journal of International and Comparative Law
