Outer space laws and legislation: regulating the province of all mankind

Outer space is fascinating. It excites us, makes us wonder what is out there and how far we can reach. Outer space is practical. It makes our daily lives easier with the various satellites that provide telecommunication, broadcasting, observational and positioning services. Outer space is challenging. It demands development of new technologies and new activities. What outer space is not, however, is a lawless void.

One-hundred-and-seven countries are party to the constitution of international space law, the 1967 Outer Space Treaty. This means that virtually every nation that plans to undertake space exploration agrees to follow and implement the Outer Space Treaty through its own regulations and enforcement procedures.

What are the ‘constitutional’ principles of international space law? Most importantly, the Outer Space Treaty declares outer space “the province of mankind”. This means that its exploration and use shall benefit all countries, be without discrimination, and ensure free access to planets and other celestial bodies. It forbids appropriation of outer space by any state. According to the treaty, outer space shall be used for peaceful purposes, without harmful interference and without contamination of its environment. Last but not least, it makes states liable for damage that may result from their space activities.

Space exploration has made substantial progress. In 2017, there were 1,738 operating satellites orbiting the Earth, while 16 scientific missions currently explore the solar system, the International Space Station has been permanently inhabited since 2000, and new space stations are now under development.

The growing involvement of private and commercial companies in space exploration, both jointly and individually, is the most significant trend and has already been tagged ‘NewSpace’ – unlike ‘OldSpace’, it is not dominated by governments. NewSpace companies develop innovative technologies, try new approaches to R&D and project management, commercialise space activities and are entrepreneurial.

Companies such as Planetary Resources and Deep Space Industries want to mine asteroids, or even other planets, in order to sell the extracted resources. Satellite Earth observation company Planet launched over 200 satellites in just four years, 88 of which were on one single rocket last year. SpaceX plans to use rockets to transport people from one continent to another on 30-minute suborbital flights, while several companies are currently developing technologies for commercial space transportation and tourism.

‘Access into and return from outer space [will] become commonplace.’

Recent developments and the changing paradigm of space exploration – from being dominated by government programmes to being driven by the interests of private companies – are a challenge for regulators. It has become fashionable to question the applicability of the Outer Space Treaty to new space ventures. Is the Outer Space Treaty still fit for purpose, or has it become obsolete? Has ‘province of mankind’ become an outdated concept?

The Outer Space Treaty is a valid international law instrument and none of the countries involved have withdrawn. The challenge now is to correctly apply and enforce its provisions. The beauty of the treaty is the generality of its principles – they are, so to speak, technology-neutral. It provides the basic legal foundation and a framework to further develop space law.

For effective and efficient application, international space law needs to be clearly detailed and coupled with suitable enforcement mechanisms. This comes down to individual countries, but how they do it, and whether they do it successfully, remains to be seen.

Talking about the development of space exploration and challenges in implementing international space law, let’s look into current regulatory discussions and actions. What are the ‘hot’ areas for regulators? Do they successfully uphold the ‘province of mankind’ principle?

Space traffic management is an issue that has been on the agenda for quite some time, specifically due to the ever-increasing amount of all kinds of space junk (or, as the professionals call it, “space debris”).

The European Space Agency (ESA) estimates that more than 170 million pieces of space debris – each of which can damage and destroy working satellites – are to be found in Earth’s orbit alone. The feasibility of more extensive human space transportation adds another dimension to this issue. Space traffic management systems are needed to ensure safe access to and from space, as well as safe navigation in outer space itself, with low collision and environmental risks.

Suborbital flights will make such a system more complex, since air and space traffic management will have to be coordinated. Lesley Jane Smith, Professor of Law at Leuphana University and solicitor at Weber-Steinhaus & Smith in Bremen, says that this coordination will go much further: “New hybrid technologies will enable access into and return from outer space to become commonplace. This will require a supra-system of regulations that effectively replace the long-standing ‘sector-driven’ rules that apply to air, to space, and to the other communication regimes. Space traffic management cannot be reduced to an isolated category of operations.”

The global scale of space exploration poses a major challenge for regulators. Today, no single state can operate a space traffic management system. This means that all countries, international organisations and private companies have to coordinate and cooperate. The fact that the United Nations Committee on the Peaceful Uses of Outer Space (UN COPUOS), International Civil Aviation Organisation (ICAO) and major space agencies around the world all have space traffic management on their agenda demonstrates its importance.

As Frans von der Dunk, Othmer Professor of Space Law at the University of Nebraska, points out: “An intergovernmental authority, whether existing or newly established, should approach the issue of space traffic management ... get all states to agree within the bounds of an international regime for specific states to provide the services necessary ... for everyone concerned to operate safely and efficiently – and without violating existing international law or otherwise threatening the international peaceful status quo regarding outer space.”

The regulators are working on developing rules for data sharing, responsibility and liability for provision of space traffic management services, issues regarding access to dual-use technologies and intellectual property, and authorisation of active space debris removal. At present, a UN COPUOS working group is formulating guidelines that will help set up a space traffic management system. These should be finalised by 2020 but will not be immediately obligatory. If these guidelines are going to be as widely accepted as the UN COPUOS Space Debris Guidelines and the IADC Space Debris Mitigation Guidelines, it will require a significant regulatory step forward.

If successful, a space traffic management system will certainly make outer space a safer ‘province of mankind’.

The next big question is how to regulate space mining so that outer space doesn’t become a ‘province of the few’. The USA and Luxembourg have already adopted laws that allow for commercial space mining. How do they accommodate the treaty’s concept of the ‘province of mankind’?

The US’s Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act of 2015 allows a US citizen engaged in asteroid or space mining to possess, own, transport, use and sell extracted resources. Luxembourg’s law on space resources, adopted in 2017, also allows appropriation of space resources. Both laws declare that authorised mining activities will comply with international obligations. This is essentially a reference to the Outer Space Treaty. Do they adequately implement its principles, though?

The Outer Space Treaty does not address the issue of space resources directly. While some space law experts agree that extraction and commercial use of space resources is possible, most of them do not favour individual national procedures. They foresee an international authorisation regime that will implement the principle of free use of outer space for all as a better way forward.

Marco Ferrazzani, head of the legal services department at ESA, is in favour of adopting international rules for a new legal framework that will encourage respect and fair distribution of extracted resources. “When space mining becomes technologically feasible, economically beneficial and physically realistic, conditions to pursue dialogue and reconcile international rules could be established.”

Tanja Masson-Zwan, deputy director of the International Institute of Air and Space Law at Leiden University, elaborates: “There is a need for an international regime, whether through adoption of a binding treaty or soft-law mechanisms, because it will ensure compliance with the principles of international space law, increase legitimacy of space-mining activities, provide legal certainty to stakeholders, and develop an approach to benefit sharing. An adaptive governance approach of addressing issues step-by-step and involving all actors in the discussion would be most effective.”

The first national laws should be seen as the first small steps in a journey towards a comprehensive international regime that will ensure sustainable space mining.

At less than 50kg, small satellites – a trend of ‘NewSpace’ – are much less costly to produce and launch. Forecasts estimate substantial growth in the years to come, from fewer than 50 satellites launched in 2010 to around 170 in 2017. ‘OldSpace’ satellites, which can be as big as a bus, are being replaced by shoebox-sized successors.

Christopher Johnson, space law advisor at Secure World Foundation, says that the most significant legal issues linked to small-satellite launches include “space debris creation from used or non-function satellites, for many of these small satellites will not have propulsive capability to manoeuvre to avoid collisions. There are also significant spectrum and frequency challenges for small satellites, and they will all require the use of a coordinated spectrum to communicate.

“Additionally, all these new plans need government oversight and approval, and that will put a strain on the resources of government regulators as well as on the international system, with the International Telecommunication Union coordination and registration with the UN Office of Outer Space Affairs.”

The Outer Space Treaty does not address these issues. National laws will ensure that space activities involving small satellites are sustainable. Some countries already have regulations in place to limit the creation of space debris, provide safety procedures for launch and operation of satellites, set insurance requirements and introduce space debris mitigation measures for retiring satellites. No country yet has a specific regulatory regime for small satellites, and experts continue to discuss whether it is actually needed.

The importance of international space law principles is in providing an overarching legal framework for space exploration. The devil is in the detail, for only the detailed adjustment of general principles to individual cases will result in regulations that foster sustainable and successful space activities.

As Masson-Zwan at Leiden University puts it: “Development of international space law depends on the dialogue among all stakeholders, with the UN COPUOS continuing to play an important role as a forum where all states can talk in a neutral environment and eventually agree on necessary additions to the existing legal framework for space activities.”

Space is challenging. Space law is facing these challenges, too.