12 May 2022
Humanity has entered a new era in space exploration; there can be no doubt. Developments in space technology over the last decade, particularly those brought about by commercial entities, such as SpaceX, Blue Origin and Virgin Galactic, continue to make headlines.
As humans start to press up against the Earth's limitations, it is inevitable that a significant focus will turn to space innovation and exploration, both to support life on Earth, but also elsewhere.
Although these advances should be celebrated as a marker of human ingenuity, for lawyers and regulators this creates a number of challenges. For example, how to govern outer space and space traffic; the management of resources and information collected in space by States and commercial parties; liability when accidents happen (and they will); what dispute resolution and governance regimes there should be for parties working or operating in space and how disputes are to be effectively resolved.
The law currently governing activity in space is based on international law, convention, treaties and diplomacy. The United Nations Office for Outer Space Affairs ("UNOOSA") is the United Nations entity dedicated to promoting international cooperation amongst States in the exploration and peaceful use of space. UNOOSA defines space law as "the body of law governing space-related activities… [and] comprises a variety of international agreements, treaties, conventions and United Nations General Assembly resolutions as well as rules and regulations of international organizations". 'Space-related activities' has a very broad definition as it can include objects launched into space, the collection and sharing of data and information related to outer space, the use of space-related technologies on Earth and in orbit, as well as the collection and use of resources from space (e.g. from celestial bodies including the Moon).
UNOOSA assists United Nations Member States ("Member States") in the establishment of legal and regulatory frameworks governing national and international space activities, and helps to strengthen countries' capabilities with space technology by integrating them into national development programmes (e.g. the National Aeronautics and Space Administration ("NASA") and the United Kingdom Space Agency ("UKSA")). UNOOSA's mandate to work with Member States has resulted in collaborative partnerships between national countries and stakeholders, such as NASA and UKSA, to work together on innovative space projects. Examples of these partnerships include the Memorandum of Understanding between UNOOSA and NASA signed on 17 December 2020 to share knowledge relating to science and technology and create international partnerships to support the peaceful uses of outer space and expand capabilities of developing countries to participate in the space exploration; and UNOOSA's and other Member States space agencies' involvement in the Artemis program (whereby NASA will land the first woman and the next man on the Moon by 2024, marking the next chapter in space exploration and utilisation).
The U.S.-Soviet Cold War during the mid-1950s, and in particular the Soviet Union's launch of the first artificial satellite, Sputnik1, in 1957 is often considered to be the catalyst for the beginning of the 'Space Race', which saw the Soviet and the American governments compete to launch satellites, humans, dogs and chimpanzees into space, commit substantial government funding towards their national space programs, and significantly advance space technology.
It was also following the launch of Sputnick1 that the American and the Soviet governments decided that current rules governing international air law could no longer be used for the governance of spacecrafts, as the trajectory of spacecrafts in orbit would breach international air law and the sovereignty of countries (a principle based on the Roman law maxim Cujus est solum, eius est usque ad coelum et ad inferos ("for whoever owns the soil, it is theirs up to Heaven and down to Hell") and the modern understanding that the sovereignty of nations vertically extends over the terrestrial boundaries of every country (as set out in the Warsaw Convention of 1929).
This resulted in the international community negotiating its first multilateral treaty to govern space law - the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space Treaty").
The current legal framework governing space derives from the Outer Space Treaty, which contains a series of general principles that have been expanded on in subsequent international treaties and national laws.
The key principles in the Outer Space Treaty include the establishment that:
The Outer Space Treaty is widely considered to be the foundation for modern space law and a major achievement in public international law as it was ratified by most space-faring nations. The success of the Outer Space Treaty led to the subsequent development of four major multilateral treaties over the next decade, including:
The Rescue Agreement, the Space Liability Convention and the Registration Convention are also widely considered to have been a success given the number of nations that have ratified each of them– the exception being the Moon Agreement which has only been ratified by 18 nations and signed by four nations.
The United Nations General Assembly has also adopted a number of non-binding resolutions, conventions and agreements which set up institutions to monitor space activities, including the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water; the 1971 Agreement Relating to the International Telecommunications Satellite Organization (the "ITSO"); the 1976 Convention on the International Mobile Satellite Organization; and notably the 1992 International Communication Constitution and Convention (the "ITU"), all of which have been ratified by over 100 nations respectively.
These international treaties have helped countries create national legislation to govern their own space-related activities, including the UK's Outer Space Act 1986 ("OSA 1986") which requires entities that procure overseas launches or operate satellites in orbit from the UK to hold a license. Over the last decade, the UK government appears to have taken notice of the significant changes in space technology and recently passed the Space Industry Act 2018 ("SIA 2018") in response to the growing power of commercial entities operating within the UK space sector. This Act builds on the OSA 1986, but focuses on all other space-related activities (including activities in space or low Earth orbit ("LEO")) carried out in and from the UK (such as the procurement of UK launches); all launches and returns to Earth; operation of satellites from any UK facility; the operation of spaceports in the UK and range control services operated in the UK. This Act has been welcomed by many concerned with regulating the commercial space industry, including the Civil Aviation Authority ("CAA") which became the UK's space regulator in July 2021 and will be responsible for licensing space companies and their activities in accordance with the criteria set out in the OSA 1986 and the SIA 2018.
While the Outer Space Treaty and the multilateral treaties, conventions and non-binding resolutions have certainly helped to guide nations with their space-faring activities, they have also been criticised for not being sufficiently responsive to the growing commercialisation of non-governmental actors driving the new space economy.
A number of new drivers within the space industry are growing at an exponential rate, contributing to what some are calling a 'New Space Economy'. These drivers include commercial satellite launches in LEO to improve connectivity and communications; commercial deep space exploration with missions to transport cargo and humans to the moon and other planets and explore the opportunity to build products and settlements on these celestial bodies; commercial mining of near-Earth asteroids to source rare minerals, metals and water which could be used as a source of ready fuel in space for the next generation of spacecrafts and satellites commercial tracking and monitoring of space debris to prevent collisions with satellites and spacecrafts, as well as managing space debris when it falls back to Earth; commercial space tourism and other space adventure programs; commercial research and development of spacecrafts, hardware, systems and engines related to space exploration. Morgan Stanley estimates that the space economy will grow three-fold in just over 20 years, jumping from a global value of US$350 billion (in 2016) to over US$1 trillion by 2040 (based largely on growing demand for internet and satellite broadband, ground equipment and public sector interest in this industry). It is no wonder many countries, as well as commercial actors, are keen to seize the many opportunities offered by this new space age.
Although the United Nations and the Outer Space Treaty have been credited for helping to maintain peace in space over the last 60 years, this may prove to more challenging with the growing participation of private entities operating in space and the growing space economy.
A big challenge in space law will be governing the use of space for military activity. Over the past decade there have been several instances of nation states testing military equipment in space. Examples include China's decision to test an anti-satellite weapon in 2007, which created a large debris cloud that continues to cause issues in space (such as the International Space Station's near collision with a piece of debris on 10 November 2021); and Russia's recent launch of a missile to destroy one of its own satellites on 15 November 2021, which continues to threaten the International Space Station and other space assets currently in orbit. Similar launches of anti-satellite weapons were carried out by the US in 2018 and India in 2019, which were reported to be less destructive but nonetheless met with the disapproval of the wider international community.
The United Nations General Assembly First Committee ("UNGAFC"), which governs threats to peace, global challenges and disarmament, appears to have taken note of these developments and the need to intervene in international space activities. On 1 November 2021, the UNGAFC approved five draft resolutions "aimed at preventing an arms race in outer space". One of these resolutions creates an open-ended working group to assess threats to space operations, assist with the negotiation of legally binding instruments needed to maintain peace in this new space age and "make recommendations on possible norms, rules and principles of responsible behaviour".
It is reassuring that the international community continues to make attempts to govern space exploration and prevent its militarisation, however, the current framework to deal with commercial space activity remains incohesive and piecemeal at best.
With the fast-pace development of drivers and commercial entities emerging in the space industry, such as asteroid mining (e.g. the recent discovery of a number of asteroids full of rare-earth elements worth billions and NASA readying to probe a giant asteroid estimated to be worth $10,000 quadrillion), as well as the growing number of crewed missions researching lunar and Mars exploration and possible inter-planetary settlements, there is a clear and immediate need for cohesive international frameworks agreed to by all space-faring countries to govern the new space economy, including the necessary arbitral bodies required to resolve the inevitable space-related disputes that will soon start to emerge.
Space law, space governance and space dispute prevention/resolution are topics we will cover in a series of space law articles throughout 2022. We remain committed to assisting current and future clients as they navigate the new space economy.