Undoubtedly, mankind has made great leaps in all sectors: artificial intelligence is now well integrated in day-to-day activities, machine learning has been embedded in most sectors and the harmonization of technology with human activities is now considered to be the norm. But part of mankind’s insatiable hunger to define and explain every element of its surroundings is the need to conquer space. The perpetual question of ‘what lies out there?’ has been answered by scientists who have ventured (quite literally) among the stars. But now an even bigger question lays ahead: who sets space law – the rules of the game of this black monstrosity above us?
Problems with an outer-space flavor
The governing of space is a tricky concept. State sovereignty attributes a flavor to this matter which makes it even more completing. But the true challenge when addressing the matter of space law lies in the problems that arise and concern the extraction of resources, orbital pollution and space warfare.
When it comes to the extraction of extraterrestrial resources and orbital pollution, things get tricky. Because of the absence of international legislation around these matters, states have started taking initiatives by formulating domestic laws that allow companies and citizens within their constituency to exploit such natural resources. The US has led the way with the Space Resource Exploration and Utilization Act of 2015, with Luxembourg following suit in 2017 and the UAE enacting a similar law in 2020.
Secondly, the question of who’s responsible for the orbital pollution caused by this ambitious space exploration also needs to be addressed. The European Space Agency (ESA) estimates that there are more than 3,000 abandoned satellites currently in orbit and more than 34,000 fragments of debris from defunct spacecrafts. Operators in the UN Office for Outer Space also reckon that there are thousands of ‘constellations’ containing abandoned communication satellites, which can do serious damage in the case of an impact with active satellites or moving spacecrafts at the wrong place.
Lastly, the newly resurfaced space race can be complemented with yet another layer of challenges. Space warfare isn’t new- during the Cold War, the US and the USSR conducted two dozen anti-satellite tests between them. More recently, the Cold War protagonists and China have moved their satellites close to others, as a sign of provocation and effort to test each other’s limits. And while Russia and China want some formal treaty banning all weapons in space, the US is on its path to finalize and launch space-based anti-missile systems. The issue of space warfare is directly linked to the idea of the absence of an overarching authority that can dictate the lawful actions in space.
Hide-and-seek of space laws:
Just two years after the Soviet Union launched Sputnik, the first artificial satellite, in 1959, the United Nations established a Committee on the Peaceful Uses of outer space. In the heart of the Cold War, when powers contested for more than simple ideologies, space came to play an important role. The acquisition of space for both blocks incentivized them to make use of their creativity and explore the moon over our heads. Just a few years later, ‘the moon and other celestial bodies’ were termed as ‘the province of all mankind’ along the provisions of the landmark Outer Space Treaty.
The foundations of today’s international space law have laid the groundwork for operations in space. Yet, the penetration of technology in everyday life has made the revision of these principles a vital next step for the harmonic interaction of man with the ‘fourth environment’. The past 40 years have seen the transformation of space activities proceed at an unprecedented rate, progressing towards dimensions previously unimagined by governments. And exactly because no sovereign rules over space, problems are emerging. The issues of extraterrestrial resource extraction, orbital pollution and anti-satellite warfare ought to be addressed but, before this can happen, some supranational body has to define the legal framework in which states, and persons, will be called to operate and coexist.
The delimitation of outer space is essential to establish the precise scope of activities that can take place within it and requires the use of carefully considered scientific data. Not considering the sensitivity of the matter or allowing for some flexibility in terms of political maneuverings, is bound to generate conflict. Today, what separates air space from cosmic space is the distance from the sea: objects within 25km from sea level are considered air space, while spacecrafts and other space objects orbit at least 95km from sea level.
Due to the lack of proper identification of a concrete limit beyond air space within which states can perform space exploration, treaties and conventions about the proper use of outer space have been formulated. In a time span of just 10 years, treaties in the field of exploration and utilization of outer space, about the rights of astronauts and the registration of space objects have been stipulated. The starting point of the discipline of space can be found in the ‘Treaty on principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moons and Other Celestial Bodies’, which represents a magna carta and outlines the idea that outer space must be freely explored and used by all states and must not be the object of claims of sovereignty.Within the shadows of this ambiguous legal framework, the rules of the proper use of outer space become systematically blurred.
The renewed debate over the international legal framework around outer space has driven a desire to set the rules of the play. The possibility for further research and collaborative exploration are overshadowed by competition and a newfound scramble for the Moon. These developments are fueling debates as to whether the existing space legal regime is robust enough to manage the challenges ahead, or whether alternative, more modern and more inclusive frameworks are required. In a field where the notions of state sovereignty aren’t easily applied, problems are bound to surface.
What about the future?
In a world where no all-embracing authority sets down the rules of the game, state sovereignty is used as the excuse that allows countries and individuals to venture in outer space. Space has been termed as one of the least governed realms, and one of the most controversial as far as legislative framework formulation is concerned. The codification of national aspirations and desires to extend spheres of national influence take the form of domestic law, which is later used as a pretext by states who are willing to exploit the absence of overarching authority in space. And though an international framework which lays down the principles for the proper use of space is yet to be written, states have to sign and ratify such conventions, implement their practices and potentially limit their own ventures. Data about upcoming domestic laws regarding the proper use of space is lacking, but there is general agreement about the increasing relevance and need for such qualitative information.
Yet as we progress and exceed our potential, new rules need to be stipulated and crystalized, reminding us of how far we can go. Political maneuverings and legislative creativity have to be combined, in an effort to determine the runaround developments away from Earth.