This article has been written by Aman Kumar.

Introduction

International Space law is a comparatively new domain of Public International Law (hereinafter PIL), consisting primarily of a mixture of customs and treaties, though it is transcended by the general concepts of PIL. In the early 1960s, under the leadership of the United States of America and the U.S.S.R., then involved in the quest for the Moon, space legislation was established as part of the United Nations (UN). The two superpowers also worked to avoid space from being a region of confrontation in the sense of instability related to the Cold War. Since its creation, the key goal of international space law has been to maintain humanity’s unrestricted, unhindered, fair and equitable access to space in order to preserve peace, which has underpinned the leading position of sovereign countries in space exploitation and exploration.

Regarding future space legal challenges and issues the fundamental and most important treaty regulating the Law of Space is the Treaty on the Principles of the Exploration and Use of Outer Space Activities of Nations, Including the Moon and Other Celestial Bodies, or more generally referred to as the Outer Space Treaty (hereinafter OST) of January 27, 1967. It is the founding text of this modern branch of international law.   

This new agreement was followed by four equally important separate international treaties: the Astronaut Agreement of 22 April 1968 (Rescue Agreement); the Convention of 29 March 1972 on International Responsibility for Harm to Space Objects (Liability Convention); the Convention of 14th January 1975 on the Registration of Space Object launched in space (Registration Convention) and the Agreement regulating the activities of States on the Moon and Other Celestial Bodies signed on 18th December, 1979 (Moon Agreement). These texts set down a range of essential principles such as the right to use and explore outer space, the non-exploitation of outer space, the responsible use of outer space, the safety of astronauts, the permission and oversight of space operations conducted by private entities, the accountability for potential harm incurred by space objects, and the control and jurisdiction of space objects.

The OST, along with the other Treaties and Conventions that elucidates particular elements of the treaty have been active in creating a legal framework that in outer space has preserved peace and stability. However many decades have passed since the ratification of the OST, which places the evolving problems beyond the efficient implementation of the existing space law. According to Fabio Tronchetti, a pioneering writer in field of Space law, the need for new Space Legal principles is motivated by four key factors: (a) technological advances, (b) increased capacity to launch satellites directly into orbit, (c) the growth of new commercial space operations, and (d) the evolution of new technical and legal developments problems and issues which were not anticipated or found important at the time the UN Space Treaties were drafted.

For example, some of the existing issues concerning space law presently comprise the growing participation of the private sector entities in outer space, which demands for a critical evaluation of existing legislation and policies; the application of domestic law and the subsequent need for its own legal changes to promote greater involvement with commercial space advancement; the sufficiency of the current international liability system for the safety of space tourists in the circumstance of a space vehicle accident; growing use of space for military operations; the challenges of space debris scavenging and space resources protection.

So we are going to discuss some of the issues mentioned above.

Increasing involvement of private sector entities in the outer space activities

Although space exploitation is still at an experimental stage, there are some new innovations that are taking place increasingly. We are thus faced with a new period of space law, under which the outer space operations were typically managed by government entities are open to the public and private sectors. With every passing year more countries pursuing novel space programmes themselves or are allowing a private corporation to carry out space operations on their own, thus raising the risk of taking initiatives that disregard or even violate international space treaties.

This contributes to a different approach to space law and reinforces the need for regulations to be reformed in order to keep up with the new circumstances. In particular, if we take into consideration that all countries will soon be able to carry out exploiting missions, because of the lower cost of launch. At a time when space operations were solely scientific and the only players in exploitation and exploration, the outer space regulatory framework was drawn up where governments, hence all space agreements, addressed only states. Nonetheless, international, regional and national legal rules apply to entrepreneurs and private entities working in space.

The most significant regulation about private entities and actors is Art. VI from the OST which states that “State Parties to the Treaty have international responsibility for national outer space activities, whether carried out by government agencies or by non-governmental entities.” It also clarifies that the “appropriate State is responsible for authorising and supervising all non-governmental entities’ activities.” This Article establishes a dual structure where, at the same time, private actions are allowable, but the obligation remains with the States as a result of an agreement being reached between the Soviet Union’s and the United States’ competing claims. The most prevalent perception is that in the situation of the actions of their domestic private commercial entrepreneurs, the states remain legally liable. Access to space is regulated by the States and they should therefore take reasonable steps, on a case-by-case basis or more generally, to licence and supervise private users operating within their own territories.

In the view of private entrepreneurs, the strategy to the legal side of liability is a complicated one. The Liability Convention of 1972 distinguishes between strict and fault-based liability but does not answer the question of who is the “owner” of the space entity causing the accident and who is “responsible for it. As per the Convention, the ‘launching state shall be held responsible for any harm incurred by its space object,’ but the question is not so straightforward in the case of private involvement. There are also questions about the words that characterise the “launching state,” such as who is conducting the launch and if it is a private launch operator, what is the responsibility. The “territory” used for the launch is an expressly state-reserved privilege, but what if the launch takes place outside some state’s territory, such as on the high seas? Nevertheless, as only States are protected by the treaties, States are the only entities to bear the maximum responsibility of international liability according to the state in which the space object is registered. Such a presumption puts countries at high risk of compensation unless strict rules are laid down by national space legislation, such as liability insurance obligations, in an attempt to shield themselves from liability.

Issue of increasing space debris

An absolute junkyard of orbital space debris consisting of obsolete satellites, and also parts and instruments lost during extravehicular activities, has been generated by increasing space activity. Space debris can pose an operational spacecraft satellite navigation threat, particularly in the Geostationary Satellite Orbit, where it can drift, raising the risk of colliding or interfering with its transmissions with operating satellites. Earth’s orbit is therefore crowded with 600,000 orbiting objects, raising the possibility of pollution of radioactive and other hazardous substances.  As demonstrated by the collision of two satellites in orbit for the very first time in 2009, the problem of space debris is an inevitable one.

However, neither the UN Space Treaties nor even the current provisions of the Space Law sufficiently address the problem of space debris with the effectiveness necessary. This ineptitude is connected to confusion in the event of responsibility for space debris damage and the absence of a legally enforceable treaty. According to the Liability Convention of 1972, if the harm is due to negligence, the “launching state is responsible for damage caused to a space object or to people or property on board of some other state.” This statement poses two critical questions: on the one hand, negligence is difficult to prove, because ‘space traffic laws’ do not exist systematically, and on the other hand, it is an impossible task to decide who is liable in the majority of cases, taking into account the complexity of the origin of the majority of space debris. 

Another concern that exists is the lack of a legally binding meaning of space debris, although it is generally agreed that the word includes anything from small pieces to “dead” satellites. Nonetheless, significant steps have been taken at global, national and regional levels to mitigate the environmental destruction of outer space. In 2009, the implementation of the ‘Space Debris Mitigation Guidelines of the Committee on the Peaceful Use of Outer Space‘ at an international level, initially drafted up in the year 2002 after an evaluation of the atmosphere and danger of space debris, was a positive move. Two key origins of space debris are distinguished in the text: (a) accidental and deliberate break-ups and (b) debris emitted during the vehicle’s launch process. A total of seven clauses are included in the guidelines and are centred on the differentiation between short- and long-term initiatives.

It is voluntary in nature to enforce these guidelines, but they have a significant impact, as they have been implemented by all main outer space organisations and actors. Taking into consideration the restricted manoeuvring potential and their high speed, the enforcement of the guidelines together with space traffic management is a requirement.

One of the potential solutions of the issue of space debris is the creation of legislation, which will mitigate any possibility of removing debris of another country without permitting it to be considered illegal since the United Nations Space Treaties do not recognise the termination of jurisdiction and control of a space object. The definite universal differentiation between functional spacecraft and non-functional space debris and the incorporation of legally binding definitions for all vague terms is the most important solution to the problem of space debris. Remediation steps can also be considered as well, particularly as technological advances render the thermal decomposition of space debris a rational solution. Besides the high cost, the biggest problem with the remediation steps is the variations in the recommendations made. One of the prevalent hypotheses is that taking preventive steps in the construction of the spacecraft rather than remediation measures is the easiest and most economical approach for dealing with space debris.

Generally speaking, the preferable solution is to address all legal questions and to have a comprehensive approach to this problem by implementing an international treaty that would provide binding legal and technological provisions governing the management and prevention of space debris at all levels of a space operation.

Future possibility of space mining activities

Although on Earth, natural resources are being exhausted, many of them are present on celestial bodies, including asteroids, in enormous quantities. Their misuse, one of the examples of potential legal issues relating to space, runs counter to Article II of the Treaty on Outer Space (OST) of 1967, which states that ‘Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by demand of sovereignty, by use or occupation, or by any other means.’ In outer space, all types of appropriation are forbidden, even by private individuals.

This did not prohibit the United States of America from implementing the Space Resource Discovery and Use Act 2015, at the behest of private businesses, or Luxembourg, in search of new markets to compensate for the end of banking secrecy, from voting on the Exploration and Use of Space Resources Act of July 2017. Both texts create a regulatory structure to allow private entities to exploit and commercialize celestial bodies’ resources. How do these states recognize these laws’ international legality?

Their point is that the appropriation of the celestial body, which is prohibited, is dissociated from the exploitation of its resources, which would be legal. Here are two arguments advanced. On the one side, there is no mention of natural resources in Article II of the Outer Space Treaty, but only of celestial bodies. Accordingly, the non-appropriation rule does not concern resources. Thus if the appropriation of a celestial body is forbidden, it will be legal to use its resources. In addition, American law expressly notes that no right to possession in outer space is asserted by the United States of America. Mining, on the other hand, is safeguarded by the liberty of use of outer space, asserted in Article I of the international treaty referred to above. 

With reference to celestial bodies, other nations, such as the United Arab Emirates and Saudi Arabia, are in the process of establishing national legal structures for the commercial use of space resources. The international law of outer space may be changed within the context of American national law if the national normative movement proceeds with the introduction of other laws. 

Given the ambiguity that the laws of the United States of America and Luxembourg are lawful, it is necessary to return the discussion to an international forum and to find a mechanism for organising the exploitation of celestial bodies’ natural resources. Among the potential alternatives, the creation of a registry of national authorisations, under the responsibility of the Secretary-General of the United Nations, defining the location (and nature) of exploration and exploitation operations, has been suggested.  Such a scheme, which if agreed by the space powers, would therefore comply with the conditions of the 1979 Moon Agreement and would be likely to align the space industry’s interests with international law. France, which has signed, but has not yet ratified, the 1979 Moon Agreement, may be the source of such an initiative.

Conclusion

As humans extend their reach in outer space, laws regulating human activities in that area are becoming more and more applicable and significant for both states and the commercial sector. The OST has a critical position and is the cornerstone on which all other frameworks of international space law have been established. Technological advances however have made it possible for space operations for private operators who are not yet incorporated into the current legal system. With a view to ensuring organized and systematic space exploitation and exploration, this progress increases the need for certain international regulatory and legislative changes.

The commercial exploitation of outer space and space debris is one of the most critical issues facing the international community in the near future. As space technology and its implementations evolve, other concerns, such as property rights to external space resources, will rise in relevance. It is evident that international cooperation is the key component for the continuity of peaceful exploration and use of space, but that the Space Law is splintering, a trend that arose primarily from the commercial use of space.

In response to these concerns, it is necessary to enact and harmonise domestic space laws in order to create a safe environment for space exploration in the sense of the legislative structure applicable to them. However, domestic laws, following changes in International Space Law, should be harmonised. Finally, it should be acknowledged that there is a clear need to find a balance between the need for treaties to be amended and reformed and the protection of issues that are evidently safe at present. Alternatively, the lack of a general agreement may lead to the current structure falling apart.

References

1. Tronchetti, F., 2013. Fundamentals of Space Law and Policy. 1st ed. New York and London: Springer Briefs in Space Development, p. 19
2. Sundahl, M., 2017. Legal status of spacecraft. In: R. Jakhu & P. Dempsey, eds. Routledge Handbook of Space Law. London and New York: Routledge, pp. 47-48.
3. https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:276:0001:0010:EN:PDF
4. Williams, M., 2011. Space Debris as a ‘Single Item for Discussion’. Proceedings of the International Institute of Space Law, 4(1), p. 333.
5. Viikari, L., 2015. Environmental aspects of space activities. In: F. von der Dunk & F. Tronchetti , eds. Handbook of space law. Cheltenham and Northampton: Edward Elgar Publishing: Research Handbooks in International Law, pp. 717-769.
6.  The term in use at deliberations in UNCOPUOS refers to all man-made objects, including fragments and elements thereof, in Earth orbit or re-entering the atmosphere, that are non-functional. For more information, see Tortora, J.J (2011). Studies in Space Policy. London and New York: Springer.
7. UN, 2012. Active Debris Removal — An Essential Mechanism for Ensuring the Safety and Sustainability of Outer Space. A Report of the International Interdisciplinary Congress on Space Debris Remediation and On-Orbit Satellite Servicing , Vienna: Doc. A/AC.105/C.1/2012/CRP.16.
8. See also Johnson, N., 18-20 April 2005. Orbital debris research in the US. Darmstadt, Germany, Proceedings of the Fourth European Conference on Space Debris, ESA/ESOC.
9. For example, EU, 2014. Draft Code of Conduct of Outer Space Activities.
10. Schwetje, K., 1990. Liability and Space Debris. In: K. Böckstiegel, ed. Environmental Aspects of Activities in Outer Space: State of the Law and Measures of Protection. Cologne: C. Heymanns Velag, pp. 36-40.
11. McGill-Cologne Declaration on Space Debris 2010: https://www.mcgill.ca/iasl/files/iasl/3rd-Space-Debris-Congress-Program-Final-02NOV11.pdf
12. Leinberg, G., 1989. Orbital Space Debris. The Journal of Law and Technology, 4(1), pp. 93-116.

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