If you’ve kept up with the news in the last few months, you would have noticed that space activity has been a hot topic of conversation in foreign affairs. Iran, South Korea, and most recently Russia, launched their military satellites, and NASA, along with SpaceX, sent a manned mission from US soil to the International Space Station (ISS) for the first time since 2011. This summer has also been one of multiple Mars missions, with three countries launching exploration rovers to the red planet, namely the UAE, China, and the US. As space programs continue to expand, are they complemented by a robust legal environment that can adequately regulate the increasing human activity there?
Unfortunately, the rules that exist largely date from the Cold War era. Space law, which according to the UN Office for Outer Space Affairs (UNOOSA), is meant to “ensure a rational, responsible approach to the exploration and use of outer space for the benefit and in the interests of all humankind”, comprises 5 major international treaties and agreements that govern activities in space:
1. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (widely known as the “Outer Space Treaty” or “OST”) of 1967 forms the foundation of space law. It makes clear that space is to be used for peaceful purposes only, that it is free for exploration by all states, and prohibits national sovereignty and the “establishment of military bases, installations, and fortifications, the testing of any type of weapons and the conduct of military maneuvers” in space, including on the Moon and other celestial bodies.
2. The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the “Rescue Agreement”) of 1968 requires states to assist and rescue astronauts in distress and return them to their launch locations.
3. The Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention”) of 1972 holds the launching party liable to pay compensation for damage caused by its space object on the surface of the earth or to any aircraft.
4. The Convention on Registration of Objects Launched into Outer Space (the “Registration Convention”) of 1976 requires parties to provide to the UN: the name(s) of the launching state(s), the space object’s registration number, the date and location of the launch, basic orbital parameters, and the general function of the space object.
5. The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Treaty”) of 1984, requires all moon exploration to be exclusively for peaceful purposes, prohibits the establishment of military bases or the testing of any kind of weapons on its surface, and forbids the claiming of anything on the moon as the property of any state, international intergovernmental organization, or non-governmental bodies.
The common assumption underlying all these laws is that only states are the primary stakeholders in any kind of space activity, and not private companies or individuals. Of course, this is not surprising, given that these rules were written when there were very few spacefaring nations, and space technologies were not as sophisticated as they are now.
However, things are drastically different today. There are more satellites orbiting the Earth than ever before—almost 2,000—which provide crucial economic, civil and scientific benefits to the world and generate information for use in navigation and communication systems, weather forecasts, and disaster relief. Increasingly, the owners of these satellites are not just nations or international organizations, but also commercial actors; and very soon, this list could even include individuals. As space continues to industrialize, there is an increasing need to update the laws governing its use and exploration.
The biggest and most basic concern that stands out, is that of understanding what using outer space for strictly “peaceful purposes” means. Space activity has never been solely peaceful, given that most space objects are dual-use. For instance, Sputnik I, the world’s first artificial satellite also served as a military satellite, which ultimately triggered the space race between the US and USSR. Since then, militaries of various nations have followed suit and continue to use space for military communication, signals intelligence, imaging, arms control verification, and so on. Additionally, while the existing frameworks explicitly prohibit weapons of mass destruction (WMDs) in space, they do not say anything about limiting other kinds of space weapons, tests, or military space forces. The ambiguity in the language means that it is up to countries to decide on what constitutes “peaceful”, leaving space open for a range of activities, like the US instituting a Space Force, or countries developing their anti-satellite (ASAT) missile testing capabilities.
Another issue is the exponentially growing amount of space debris. As we continue to look for ways to spend more and more time in outer space, we’re leaving our mark there in the form of trash. Space debris consists of pieces of non-functional spacecraft from rockets that jettison satellites into orbit or even dead satellites that get left behind after missions are completed. But, it can also include smaller bits and pieces lost to space including paint chips that flake away from the outsides of devices, nuts and bolts, garbage bags, or screwdrivers. New trash emerges from either routine space pursuits and the accidental breakup of objects in orbit, or the intentional destruction of satellites by anti-satellite (ASAT) weapons.
Most of this junk, which amounts to millions of pieces, sits within 1,250 miles of the Earth’s surface, in what is known as the low Earth orbit (LEO), which is home to many satellites, telescopes, and also the International Space Station. The presence of such debris, which can reach speeds of 18,000 miles per hour, poses a real threat to space missions operating in the LEO. Though the UN Committee on the Peaceful Uses of Outer Space (COPUOS) has issued guidelines on space debris mitigation, these rules are not enforceable internationally, and every country can choose to develop and implement their own mitigation mechanisms. In case of a collision, the rules are not clear about liability, since the current framework places the responsibility of the damage entirely on the launching party. However, countries can now launch their missions from locations outside of their borders, which makes the issue legally murky. Furthermore, not all pieces of debris can be identified and tracked. NASA estimates that out of the million pieces floating in the solar system, only a couple thousand are large enough to track, which makes assigning responsibility for any damage caused even more difficult. The increasing number of space objects is only going to add to the trash needed to be managed. Just yesterday, the US Federal Communications Commission approved Amazon’s request to operate a constellation of roughly 3,200 internet satellites in the LEO. SpaceX is also planning to launch more than 12,000 satellites in a constellation known as Starlink.
The advent of space mining has also raised questions about the legality of such an exercise. As our planet confronts serious levels of resource scarcity, looking into our solar system, which has been found to have metals, minerals, and energy sources in near-infinite amounts has roused political and commercial interest, and is increasingly being seen as a realistic and achievable objective. Amazon CEO Jeff Bezos has envisioned using ice found in the craters of the moon to synthesize rocket fuel and sustain astronauts, as part of his Blue Origin initiative. Bezos has cited reduced launch costs and using resources already available in space as crucial in moving towards the commercialization of space travel. NASA has plans for a space station in the lunar orbit from where astronauts will be able to operate robots on the moon’s surface that could harvest minerals. Though we still have some time before the requisite technologies for such missions become available, it is important to think about their implications on Earth and establish relevant and comprehensive global policies and regulatory mechanisms for these endeavors. At present, the OST outlaws the ownership of a celestial body by a particular country. However, if private companies and certain nations are funding space exploration, who will these valuable resources that are extracted belong to? Considering these questions becomes crucial, as they will point to the entities that will yield massive economic and military power in this next chapter of human history. Additionally, if there are extremely valuable materials hiding behind near-earth asteroids and other celestial bodies, the weaponization of space will undoubtedly move forward if there are no robust laws and regulatory mechanisms established to manage and check such endeavors.
These gaps in the law call for stronger coordination and clear, uniform standards and regulations governing issues like space mining, exploration, and interplanetary travel involving both, the public and private sectors. The current rules governing space are outdated, and space law must extend to reflect the constantly evolving and expanding space industry and address the new and more complex challenges that come with it. A revised global framework is urgently needed that enables transparency, fairness, collaboration, and accountability to ensure a better future for all of humankind, and not just a select few. While international organizations like the UN should lead the effort, nothing can be done unless the world’s major space powers are committed to sustained dialogue and cooperation to keep outer space from becoming the wild west of the 21st century. Russia and the US met this week to discuss space security, but the conversation about space governance needs to include important players like India, China, and Europe as well. Unfortunately, given the current political climate, this is hardly a promising group of partners.
Space Law: What on Earth Is Going On?
As space industrializes, there is an increasing need to update laws governing its use.
August 1, 2020
SOURCE: MEDIUM