New space laws are needed more than ever

In the realm of space, humanity’s presence is a mixed bag: we have numerous autonomous satellites, a significant amount of space debris, and a small crew aboard the ISS. Given this current state, the average person may question the necessity of implementing specialized space laws: why do we need them and who would they benefit? With challenges in enforcing laws here on Earth, some may wonder if creating space legislation is truly imperative. However, it is crucial not to underestimate the importance of “extraterrestrial law.” The provisions within these laws shape the present and future of space activities, and unexpectedly, they may even have implications for our terrestrial affairs.

Let's delve into imagination for a moment: picture Elon Musk's company, or perhaps another ambitious entrepreneur, successfully reaching the oil reserves on Saturn's moon, Titan. They aspire to establish regular deliveries of this valuable resource to Earth. Now, imagine Elon Musk making a grand announcement about the first extraction mission, passionately describing how extraterrestrial resources will ensure humanity's survival when Earth's reserves diminish. However, amidst his captivating speech, he inadvertently forgets to mention the matter of resource ownership.

As news spreads, the public becomes divided into two camps: some embrace the new technologies and progress, while others express discontent. Not only ordinary individuals are concerned but also authorities: some express dissatisfaction due to the sudden drop in oil prices; international organizations disapprove of Musk appropriating space resources. On the other hand, developing nations are considering "space looting" while no legislation is in place. And… we’ll leave it to the reader to envision how this complex scenario may ultimately unfold.

Space and international law

Space law, a relatively new branch of law, emerged in the latter half of the 20th century. While not all countries have developed their own space laws, there exists general legislation governing space activities at the international level. Currently, the primary focus of space law development lies within national jurisdictions, while progress in international legislation has been sluggish.

The necessity for the establishment of the first “space laws” arose following the historic launch of Sputnik 1 into orbit. In 1959, the United Nations swiftly formed the Committee on the Peaceful Uses of Outer Space (COPUOS) in response. Shortly thereafter, in 1960, the International Institute of Space Law (IISL) was established. Concurrently, the United Nations Office for Outer Space Affairs (UNOOSA) was created as a dedicated division. COPUOS remains a vital platform for deliberating space-related matters, comprising 77 member countries, including the most active players in this field, such as Russia, the United States, China, India, Japan, Brazil, and Australia. It is COPUOS that issued the five major space agreements and treaties.

At the forefront of international space law is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, commonly known as the “Outer Space Treaty” of 1967. This foundational treaty affirms the freedom of space exploration for all nations and emphasizes that all activities should be carried out for the benefit of humanity, with no appropriation of celestial objects by any country. It also explicitly prohibits the use of nuclear weapons and other weapons of mass destruction in space. The treaty holds nations and states accountable for the actions of their citizens and the outcomes of their activities in space. Widely embraced by the majority of participating countries in the Committee, it has evolved into an internationally recognized legal norm, guiding not only the signatory states but also any entities seeking to engage in extraterrestrial endeavors.

Complementing the Outer Space Treaty is the Agreement on the Rescue of Astronauts (1968). This agreement was established with the aim of ensuring prompt assistance to astronauts in emergency situations. It mandates that in the event of a spacecraft crash or a failed launch, states must swiftly provide aid to astronauts, irrespective of their nationality or the location of the accident.

The Convention on International Liability for Damage (1972) was established to address situations in which a space object belonging to a specific country causes harm to individuals or property on Earth. According to this convention, the country that owns the space object will be held accountable for any resulting damages.

In order to maintain a record of objects launched into space, the Convention on Registration (1975) was enacted. This convention ensures the systematic tracking and documentation of space objects. The “space registry” can be accessed here, and it enables comprehensive monitoring of space objects.

The Agreement on the Moon (1979) sets forth regulations governing the use of celestial bodies, with certain regulations resembling those applied to the global ocean. This agreement is aimed to establish a unified legal framework for space activities and safeguard the interests of countries without direct access to space. However, it encountered limited support, with only 17 out of 77 countries signing the agreement, and notably lacking participation from major space-faring nations.

Since its inception, the COPUOS has organized three UNISPACE conferences, with a fourth conference planned for 2018 to commemorate the 50th anniversary of the first space conference. These conferences serve as crucial platforms for addressing the evolving landscape of space exploration and responding to the increasing involvement of nations and non-governmental entities in space activities.

What’s wrong with space law?

The documents mentioned in the previous paragraphs primarily focus on the activities of countries in space, with no specific provisions for private corporations. Furthermore, there is a notable absence of an established international legal framework for the exploitation of space resources. While there have been precedents for the extraction of soil samples, the scale of resource extraction envisioned by private companies far exceeds these limited cases. This discrepancy raises concerns and increases the likelihood of encountering the challenging scenario mentioned in the intro.

This situation is unsatisfactory for all parties involved. Consequently, countries have begun enacting laws that attempt to regulate the activities of private individuals in space to some extent. In 2015, the United States passed an act regarding the exploration and exploitation of space resources, granting US citizens the right to claim ownership of what they extract in space. Similarly, in 2016, Luxembourg developed a similar law (yet to be enacted) that also allows for space resource ownership. It is argued that such laws may potentially contradict the principles outlined in the “Outer Space Treaty” if the prohibition of national appropriation is interpreted to include citizens of states and companies registered in those states. However, the global community has remained largely silent on this matter, as there is an underlying interest in participating in the division of space resources in the future.

State space laws may even be a good thing, despite the concerns about exacerbating social inequality through resource appropriation. However, these laws alone fail to address the larger issue at hand. The lack of consensus between the legislations of different countries poses a significant challenge, as it may cause conflicts and complications in the future.

Legalize the resource appropriation or prohibit it?

The pressing need for international action in the realm of space law is evident, but determining the appropriate course of action remains a subject of contemplation among public intellectuals and research groups.

One perspective on the matter can be summarized as follows: In our capitalist era, space, including its resources, lands, and objects, should be regarded as commodities.

Without necessary amendments to space laws, there will be a decline in startups and investments, leading to fewer incentives for space resource extraction, which ultimately has negative implications for humanity as a whole.

There are advocates for this theory, including the space affairs expert Rand Simberg. Taking it a step further, the Space Settlement Institute proposes the notion of “giving away” territories where extraction companies already exist to those responsible for organizing them, with the belief that this approach will attract space exploration and relevant investments. Further details regarding this concept are outlined in the “Space Settlement Prize Act.”

On the other hand, proponents of an alternative perspective, represented by authors like Peter Dickens, argue that the influence of the capitalist economy on nature and various personal interests has demonstrated its ambiguity. They contend that extending this economic framework to space, with all its drawbacks, would not be prudent. Instead, they propose the introduction of “conservation-friendly” regulations for space utilization, akin to those implemented in Antarctica and the world’s oceans. In 2015, Professor Johann-Dietrich “Jan” Wörner put forth the idea of establishing a “lunar village” where individuals would coexist in peace and harmony, transcending national affiliations and working towards the common good. In summary, this perspective suggests allowing ownership rights for extracted resources but prohibiting ownership of space objects, emphasizing collaboration.

Meanwhile, proponents of the “radical space anti-capitalist” viewpoint argue that space should be left undisturbed, refraining from polluting the space environment, and strictly reserved for scientific purposes. They contend that humanity has already strayed down the “wrong” path, exploiting space for commercial gain, resulting in a significant amount of space debris in orbit. Perhaps it is time to pause and embark on a path of “space sustainable development”? Similar thoughts are expressed by sociological ecology researcher Alan Marshall in an article published on The Conversation.

These divergent perspectives highlight the complex nature of the debate surrounding space law, urging a thoughtful examination of the best path forward.

What actions should be taken once we determine our approach?

Once the objectives for space exploration are established, the next step is to navigate the seemingly mundane bureaucracy and translate those objectives into appropriate legislation. If the key space players can reach a consensus on space rules, it signifies a stroke of luck and opens the possibility for establishing international regulation of space activities. Frans G. von der Dunk, the editor of the book “Handbook on Space Law,” asserts that this is the only viable solution and other measures will fall short. However, achieving such an agreement among the key players necessitates meticulous diplomatic work, which can be time-consuming. While it is theoretically possible to amend existing agreements, doing so may lead to the withdrawal of many participating countries.

To a certain extent, coordination of countries’ activities in space can be achieved through putting national space legislations in accordance wuith each other. Therefore, it is logical to promote the creation of space laws at the national levels. One initiative in this direction involves developing template laws for space regulation, which countries without their own space laws can adopt. German universities have undertaken projects like Project 2001 and Project 2001+ to create these “template” laws, enabling the adoption of agreements reached among the key space players.

In the event that putting national space legislations in accordance to each other proves to be unattainable, we can hope that judicial system will effectively resolving space disputes. Gérardine Meishan Goh, the author of the book “Dispute Settlement in international space law,” proposes that “alternative dispute resolution,” particularly the “Multi-Door Courthouse” system, can serve as a valuable measure.

To sum up

Many individuals are invested in space exploration and believe that it should be fair and beneficial for all people worldwide. While achieving this ideal is a distant prospect, it does not mean we should succumb to despair and wait for a future marked by “corporate competition for resources.” Rather, we must strive to comprehend the true essence of “the interests of the entire world” and determine how to ensure that all of humanity reaps the benefits of space resources. Once these objectives are delineated, promoting universal space legislation becomes imperative. Of course, both tasks require significant time and resources, and they will not be resolved overnight. Therefore, it is wise to prepare for potential challenges in advance.

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The piece was originally published in 2017.

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Dickens, Peter, and James S. Ormrod. Cosmic society: Towards a sociology of the universe. Routledge, 2007.

Galliott, Jai. Commercial space exploration: Ethics, policy and governance. Routledge, 2016.

Goh, Gérardine Meishan. Dispute settlement in international space law. A Multi-Door Courthouse for Outer Space (2007).

Simberg, R. Property Rights in Space. The New Atlantis 2012.

von der Dunk, F. & F. Tronchtti. Handbook of Space Law. Edward Elgar Publishing, 2015.