To infinity and beyond
I’m sure we’ve all seen movies such as “Interstellar”, “Ad Astra” or the famous “Star Wars” series and everything seemed to be so far from us and so imaginary but actually what was in people’s heads has begun to take shape years and years ago, moving from fantasy to reality.
From the moment engineering paved its way to space, law had to follow ; this is because usually when something is starting to be discovered it needs to be also restrained and governed by the law.
This is how space law evolved, but what is “space law”?
In order to define the “space law” we have to first define law itself:
“Law can be defined as ‘the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.’”
Well , once we’ve stated what the law is we can easily refer to a particular field that develops over time- in particular, space, the focus of this article.
The term “space law” refers to a variety of international agreements, treaties and conventions as well as legislations that governs space-related activities.
What is interesting and also surprising is to see how this big cluster is composed : there is a central body consisting of the five U.N. space treaties , but everything except that is confusing and composed not as a single comprehensive body of rules governing human activities in outer space but instead as a composite picture made by international and national levels , therefore it can be said that the main feature of the space law is its fragmentation.
The common aim of these treaties is to improve the well-being of the members of the international community , and the idea behind it is to regulate outer space activities (started with the launch of Sputnik 1 in 1957) while coordinating through oversight by the UN.
Lastly what we can observe is that space law is not something that can be enclosed with boundaries but is a process still in evolution.
We could think that this process has began when man-made objects were launched into orbit around the earth but in reality the process has started years before and is still developing today , especially due to the fact that in the past 60 years new developments and technologies have increased rapidly.
What about our roots?
Let’s start by saying that Space law is a very modern field of regulation.
In 1910 Emile Laude, a Belgian legal expert asserted: “un droit nouveau regira les relations juridiques nouvelles. Cela ne sera plus du droit aerien, mais, a coup sur, il s’agit du droit de I’espace.” (“A new law will govern the new legal relations. It will no longer be air rights, but surely it will be space law. ”)
Even before Laude, in 1903, the Russian space pioneer Konstantin Tsiolkovsky had already published a paper in which he anticipated human expansion in outer space by using liquid fuel rockets.
These pioneers were followed in 1932 by Vladimir Mandl, who published the first monographical study on space law.
During the years preceding World War II significant progress in space technology was made in countries like Germany, the USSR and the USA. Unsurprisingly, their activities received an enormous boost during the war and afterwards, leading eventually to the great breakthrough of 1957, when Sputnik I became the first satellite to orbit the Earth in outer space. This achievement was soon followed by a series of further successful experiments, all aimed at exploring and analysing the new dimension unfolding itself before the human eye.
In April 1961, Yuri Gagarin completed the first manned space flight, and in 1969 Neil Armstrong became the first human being to set foot on another celestial body, the Moon.
It had, by then, already become apparent that legal rules were indispensable if confusion and undesirable practices in the use of outer space were to be avoided. In the wake of burgeoning space technology, space law soon became a reality.
A very important event was the international conference in Paris in 1910, a conference leading eventually to the Paris Convention, concluded in 1919.
This international agreement, the first in aviation history, adopted as its basic tenet the ancient Roman law concept of cuius est solum, eius est usque ad coelum et ad inferos. Its principal concern was to establish sovereign rights for states in the airspace above their territories up to an altitude where effective control could still be exercised, and to create rules regulating the use of it.
On 18 December 1958, the United Nations General Assembly recognized the need for international co-operation and for conventions establishing the common interest of mankind in outer space that could be used for peaceful purposes only. At the same time, an ad hoc committee was installed by the UN General Assembly to deal with the legal problems involved in space activities.
On 12 December 1959, a permanent body, the Committee on the Peaceful Uses of Outer Space (UN COPUOS) was established.
In 1961 the United Nations adopted a resolution which recognized that the exploration and use of outer space should be only for the betterment of mankind and to the benefit of states irrespective of the stage of their economic or scientific development.
Two fundamental principles were commended to states for their guidance in the exploration and use of outer space, namely: that international law including the Charter of the UN, applies to outer space and celestial bodies; and that outer space and celestial bodies are free for exploration and use by all states in conformity with international law and are not subject to national appropriation. The principles laid down in that Resolution were to form the basic element of the Declaration of Legal Principles Governing the Activities of States in the exploration and Use of Outer Space in 19639 and the so-called ‘Outer Space Treaty’ of 1967. This UN treaty, which entered into force on 10 October 1967, is the cornerstone on which a number of space law treaties and sets of principles of later date have been based. Taken together they constitute the nucleus of international space law as it stands today.
WHY IS RAISING THE AWARENESS OF THE IMPORTANCE OF SPACE LAW CRUCIAL NOW?
Nowadays it is crucial to work on the awareness of a necessity to increase the attention on the importance of space law. That is one hand to facilitate access to, and the use of, space, and on the other to favor cooperation between all nations. We have faced an evolution and today the aim is to increase the use of space by all areas in order to achieve more knowledge on the Universe. Furthermore, it would be beneficial also to help the management of risk, to protect the environment, to maintain peace and security, and to achieve a high degree of cooperation in the interests of humanity as a whole.
States are starting to raise awareness of the need for a legal and political framework to permit them to all benefit from outer space in a peaceful way. This is caused by many factors starting from the increase in daily activities dependent on space technology which is directly linked to the national interests of the countries involved. Subsequently this has caused the arrival of new actors interested in space apart from States and the commercialization and privatization of outer space.
Unfortunately it has to be maintained that not all countries are parties to all these legal instruments. In facts, It is to be hoped that with the intertwining of law and technology, and the continuous repercussion of space activities on the Earth, more and more States will become conscious of the necessity for space law and will join international treaties.
It is not to be doubted that new actors and new subjects are appearing, and new topics are being discussed, such as the problem of the promotion of space law. Therefore, the existence of international colloquia is considered to be important both to achieve knowledge and to build an organization. It is also crucial to note that the outer space law born in the UN is complemented by many bilateral and multilateral agreements signed outside of the UN. Therefore it is found deeply needed a guide to embrace the entirety of all laws, regulations, customs, contracts, etc and literature concerning activities in outer space.
In order to understand the importance of this field of study, we should consider why Space Law is a matter of great interest for our future with its challenges and opportunities. First of all, we must consider how international co-operation between governments and institutions is and will be fundamental, especially given the large investments that space activities require. Examples of co-operation include the International Space Station, the European Space Agency, the global navigation satellite systems and the various remote sensing organizations.
Additional cooperative arrangements can be seen in the different satellite telecommunication organizations, both intergovernmental and private. However, problems remain to be solved as activity in space increases. As circumstances evolve, solid methods and agreements will have to be refined in order to establish an effective legal framework. Another concern is related to the environment. Let’s consider the problem that comes with space debris (or space junk, referring to big objects such as dead satellites left in orbit by humans at the end of their mission): it is imperative to raise the question of whether a legally binding instrument would be useful through the imposition of clear obligations.
Perhaps this would encourage both the responsible and less-responsible space-licensing authorities to set and implement appropriate environmental requirements. In human spaceflight, the law related to space tourism must be developed on an international as well as a national basis. The interaction of human beings in outer space can sometimes result in space tragedy. Difficult decisions may have to be made: if life-support on a space vehicle or a celestial base becomes insufficient to maintain the life of all present until help can arrive, who should survive? who decides? what are the criteria for the decision? Can an astronaut who becomes a threat to others be executed?
An additional matter is related to how rights in space may be recognized, and this still remains to be settled. This mostly refers to immoveable property on the Moon and other celestial bodies. Nowadays the law makes clear that national appropriation cannot occur. However, it is clear that in the future some formula will have to be developed to design at least an equivalent of “property” rights.
Entrepreneurs need to be assured that the assurance of an economic return on investment guaranteed by “terrestrial property law”, will also be available for investments in space. A new worry is also connected to the outer space traffic that has been increasing intensively: collision avoidance will be a major issue. Co-ordination and co-operation are required in order to provide a full, accurate real-time picture of the objects and satellites in outer space. Independent, one-sided monitoring is not sufficient.
Initially, the national space organizations that now monitor space objects could co-ordinate directly with each other, but inter-organizational co-ordination should become much wider and should involve international organizations able to set minimum standards. Lastly, we shall mention the importance of preserving outer space for peaceful purposes. Ever since the first explorations took place, it was evident that this new field was going to be fundamental for the leading countries around the world, in order to increase their power.
Space has been, is and will always remain, an area with so much military interest and involvement that it seems impossible to demilitarize outer space entirely. In this sense humankind must refrain from diminishing the vulnerable balance of neutral coexistence on earth and in space. It can do so by ensuring the creation of a legal framework to govern its activities, as pointed out in the preceding lines. Let’s just hope that we will be wise enough to keep exploring outer space in a spirit of collaboration and harmony. The current political climate may not appear to justify such a positive thought, but steps forward have been made and even bigger ones are possible with dedication and effort.
Space economy and Space law: an intergalactic connection
A brand new sector that is definitely starting to get a lot of attention is the commercial space industry: if 50 years ago outer space was reserved for the most powerful nations, today there is a democratization of space.
Commercial industry is inching us closer to the cosmos, and in this process, there is a growing interdependence between what is happening hundreds of miles up into space and down below on Earth. This is one of the reasons why today we hear more and more about the space economy. So, what is it?
The Space Economy is defined by OECD as the full range of activities and the use of resources that create value and benefits to human beings in the course of exploring, researching, understanding, managing, and utilising space. Starting from research, development and construction of space-enabling infrastructures, the discipline reaches the generation of innovative “enabled” products and services (telecommunications, navigation and positioning services, environmental monitoring, weather forecast).
The Space Economy is growing and evolving, together with the profound transformation of the space sector and the further integration of space into society and economy. Currently, the space market is worth approximately US$400 billion and the commercial space industry, using multi-million-dollar rockets and satellites, is increasingly playing a part in our everyday lives.
One of the best-known living US entrepreneurs, Jeff Bezos said in a talk that Amazon’s success would not have been possible without access to pre existing infrastructure. He continued by saying that it is the job of the current generation to create similar infrastructures in space, so that humans in the future can benefit from the infinite resources and scale of the wider universe beyond Earth. He also said that an underlying legal framework is equally necessary for the management of all aspects of space. Therefore, space law and space economy are strongly intertwined. Just like the economic sector, the law of space will serve as the basis for humanity’s extra-planetary endeavours over the coming century.
However, even today there is no shortage of occasions in which the law of space is applied. An example could be when some time ago, NASA astronaut Anne McClain was accused of illegally accessing her spouse’s bank account while she was aboard the International Space Station. This case raised several legal issues and questions about how to fight a crime committed in space: the main one is where the air ends and where the space begins. The international community has not been able to agree on this matter: people want to set limits and the only way to do that is to give themselves laws.
To solve problems related to the economy of space, there have been five space treaties that have been negotiated since the 1960s and that govern the countries and their activities: they make states accountable for the activities of their citizens by creating national regulations so that nations carefully observe and regulate the activities of those who venture into space.
An example is the Outer Space Treaty which constitutes a sort of Magna Charta of space: it states how the outer space must be freely explored and used by all States and how it must never be the object of occupation or exclusive appropriation through claims of sovereignty. It is the document that all space lawyers turn to when considering anything happening in space.
So, basically, international agreements state that no government can claim outer space or celestial bodies as its own and this is –according to private companies seeking to invest in potential space ventures- the major obstacle to the future commercial development of space. The absence of property rights prevents them from obtaining external financing, hinders the protection of their investments in space and deprives them of the guarantee that they will be able to appropriate the income from their investment. In short, the lack of sovereignty in space jeopardizes the ability to profit from private investment.
Furthermore, in the last decade, many countries enacted laws that recognize private enterprise. The rationale behind these laws is to outline a legal framework of reference that guarantees private individuals the rights on the resources they extract from space, to avoid the ultimate risk of relocation of these companies, moving to countries that are not part of the Outer Space Treaty. The Executive Order On Encouraging International Support for the Recovery and Use of Space Resources, promulgated on April 6, 2020 by President Donald J. Trump, is part of this legal framework and confirms the support of the U.S. policy to full commercial exploitation of the resources of the cosmos.
In this international context, Italy boasts a long tradition in space activities: among the first nations in the world to launch and operate satellites in orbit, it is one of the founding members of the European Space Agency. Italy has recently defined a “Space Economy Strategic Plan”, which provides for a country an investment of approximately 4.7 billion euros, of which 50% covered with public resources, including national and regional, in addition to those ordinarily intended for space policies. The Plan is divided into 5 programmatic lines, according to the initiatives conducted at the European level:
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Satellite telecommunications
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Support for national participation in Galileo
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Galileo PRS infrastructure
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Copernicus support
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Space exploration and related technological developments.
Although large regulatory gaps remain – both nationally and internationally – caused by the fact that it is a new and not yet fully codified discipline, Space Law, Space Economy and related space activities represent a new interest, not to underestimate.
The voyage into space is not far, and the economy that will manifest from it has already proven to be grand. All in all, this is simply one small step for men, and one giant leap for the private sector.
But what do the experts say?
As we have seen, this is very much a developing sector with new advancements being frequently. Despite this, multiple universities have started to offer courses in Space Law, including McGill, which runs an institute dedicated to furthering the interpretation and development of this field. Dr. Ram Jakhu has been the director since its creation, and was one of the first people to write a PhD in Space Law. He has claimed that countries are extremely invested in the development of new regulations in space thanks to the economic prospects.
Dr. Jakhu goes on to explain how the use of microgravity in manufacturing could bring massive changes, with the creation of “space factories”. He states that one of the largest challenges for the future development of Space Law is the lack of cooperation between nations. Given that any new treaties regulating nations’ conduct in outerspace would result in a limitation of their national sovereignty, there is very little political impetous at the national level to sign any such treaties.
For example, unlike the Outer Space Treaty of 1967 which has been signed by all space-faring nations, the Moon Treaty of 1984 has to date only been ratified by 18 nations, none of which are space-faring, highlighting just how reluctant most nations are to accept any changes or limitations on their power. This has led to an extremely outdated status quo, which is unfit for the future and opens a Pandora’s box of potential legal questions and issues, especially when it comes to non-governmental organisations and companies.
The main limitation of the existing Outer Space Treaty (OST) is the fact that it does not apply to private individuals, a fact which has been criticised by many, given that this oversight has led to a complete lack of regulation for private-space companies such as SpaceX. This has been highlighted by Thomas Gangale, a leading jurist in Space Law, who writes that private companies could circumvent the OST and harvest minerals from the moon with no government restrictions or regulations, thus creating a frenzy to plunder these valuable resources.
Even the existing OST is vague in some points, and open to interpretation: while it prohibits the “appropriation of outer space, including celestial bodies”, some nations have taken this to mean any claims of ownership over extracted resources are illegitimate, others disagree, claiming it only prohibits them from claiming territory on astronomical bodies.
Jakhu believes that the largest challenge we face in this field is the increasing militarisation of space. We have seen a severe escalation in military tensions in outer space, culminating in the creation of the Space Force by President Trump. He goes on to criticise the pace of current Space Law, which – as we have seen – has almost completely stalled since the entering into force of the OST, stating that “the problems have increased significantly but the law has not kept pace with that”. While the OST prohibits the placement of weapons of mass destruction in space, it does not prohibit any other activities such as establishing military bases. If the new Space Force were to start challenging other nations’ access to space it would likely cause many legal issues, given that the accepted consensus is that space is a good for all mankind.
Overall the general consensus among space jurists is that the current treaties are extremely outdated, a fact that is at risk of being exploited by governments and companies alike, which could lead to the depletion of resources in space, and the increased militarisation of it.
Space debris is any nonfunctional human-made object in space. Imagine that, instead of landing in the ocean, the recent Chinese rocket crashed into your house while you were at work. What would current law allow you to do?
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