In 1961 United Nations Office for Outer Space Affairs (UNOOSA) adopted Resolution 1721: International co-operation in the peaceful uses of outer space. The need for an outer space legal regime came as a direct result of the emerging field of space exploration, as the International community wanted to ensure peaceful uses of outer space. The United Nations provided a focal point for international discussions on the issues, as well as facilitating a structure which could unite “space countries”. As humankind increasingly ventures into outer space, the laws regulating such activities are becoming progressively critical to both government and the commercial sector.
New enterprises may potentially ignore or even directly conflict the existing International space agreements.
Space Law currently manifests as a combination of customs and treaties geared to ensure free, unimpeded and non-discriminatory access of humankind into space. The broad, founding principles of Space Law are based on Public International Law. Space Law is predicated on five, core United Nations (UN) treaties formulated from the 1950s through the 1980s. The primary treaty is the “Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space (OST), Including the Moon and Other Celestial Bodies” of 1967; the 1968 “Rescue Agreement”, the 1972 “Liability Convention”, the 1975 “Registration Convention” and the 1979 “Moon Agreement”. Today those founding treaties of Space Law finds many issues unaddressed, particularly the development of space tourism, “New Space”, space debris and climate change.
With today’s New Space environment and new stakeholders – particularly private companies – changes in legal approaches to both deep space and near-Earth activities are required. New enterprises may potentially ignore or even directly conflict the existing International space agreements. The old rules are failing and new one must determine which way New Space will go.
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Who owns asteroids?
When existing outer space legislation was created only government institutions were venturing into space. Accordingly, the decades-old space laws were formed by public policy for government use. Government-run agencies such as the US National Aeronautics and Space Association (NASA), the Russian State Space Corporation Roscosmos, the European Space Agency (ESA) or the Japan Aerospace Exploration Agency (JAXA), worked in collaboration with private companies. Now, the reality of New Space exploration requires regulation by both private and public sectors of legislation, in order to organize and solve such issues as limited launch permits, controlled operation licenses, and questions of ownership.
“Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation or by any other means”
Asteroids are known to be rich in valuable resources like iridium, platinum, and palladium, which are rare on Earth. Because of the high value of these materials, mining expeditions are expected to be a frequent phenomenon. The critical question then is “Who will own those mined resources?”
According to the terms of the OST and Liability Convention: “Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation or by any other means”. When national councils and private operators are predicated on an ownership basis, this causes concern. Accordingly, countries such as the US and Australia are starting to look at detailed national legislation for outer space activities.
The Space Settlement Institute, a New York-based advocacy group, has proposed Congressional legislation titled the Space Settlement Act. The Act provides legal support for land ownership “for any private entity which has, in fact, established a permanently inhabited settlement on the Moon, Mars, or an asteroid, with regular transportation between the settlement and the Earth open to any paying passenger”. For example, a private company based in the USA could create and inhabit a settlement on the Moon without the US government or other public entity approvals.
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The privately held space settlements envisioned by the proposed Space Settlement Act would not be under the sovereign jurisdiction of any terrestrial nation (although the individual citizens would still be subject to the laws of their own nations). In those circumstances, private property rights would be secured and the national appropriation problem would be solved.
How to save space-flight participants?
Space tourism faces not only technological risks but also liability issues, since the current space treaties refer only to assisting and rescuing astronauts.
The International Space Station Partner States and the US law make a clear distinction between professional astronauts and spaceflight participants.
Article V of the 1968 Rescue Agreement addresses near exclusively “the return of astronauts and space objects”, the “assistance to astronauts” and the “obligation to inform other states and the UN Secretary-General of any phenomena liable to constitute a danger to the life or health of astronauts”. In space, astronauts have the legal obligation to help other astronauts, but the countries have no such obligation. Overall the Agreement enshrines the immunity of astronauts and establishes rescue procedures in the event of an accident.
The International Space Station Partner States and the US law make a clear distinction between professional astronauts and spaceflight participants. This again reinforces the view that the Agreement would not apply to spaceflight participants, even though the prevailing theory is such that humanitarian consideration demands the applicability of the rescue rules. Existing general humanitarian obligations to assist humans in trouble would prevail, even if the current space law doesn’t explicitly say so.
Regardless, it would be extremely useful for the international community to clarify the status of “space-flight participants” and the applicability of the Rescue Agreement, which would then lead to the clarification of provisions and the subsequent elimination of conflicting laws and practices.
Who will pay for damage?
The increase of space activity has created a potential hazard both around Earth and beyond: a junkyard of orbital space debris consisting of defunct satellites, as well as components and tools lost during extravehicular activities. Whether launched by state or by corporation, this poses a definite danger to satellites still functioning.
In 1978, a Soviet nuclear-powered satellite carrying radioactive power cells failed on orbit.
The European Space Agency reports that, in the almost 60 years since the start of humankind’s activity in space, there have been more than 5,000 launches resulting in over 42,000 objects in Earth’s orbit large enough to be tracked by the U.S. Space Surveillance Network. Nearly a quarter of those objects are satellites, and less than 20 percent remain operational.
The Liability Convention, which is part of the OST, differentiates two versions of liability: strict or absolute liability applies in case of “damage on the surface of the Earth or to aircraft in flight” by a space object, and fault-based liability applies in the event of “damage being caused elsewhere than on the surface of the Earth”. Liability lies even in the case of legitimate activities, while the term “space object” includes “the components of a space object, as well as the launch vehicle and its parts”.
In 1978, a Soviet nuclear-powered satellite carrying radioactive power cells failed on orbit, largely disintegrated in the atmosphere, and a few pieces landed in Canada’s rural Northwest Territories. Canada subsequently spent over $5 million in recovery and remediation efforts, then submitted a claim to the Soviet Union under the convention. The two countries agreed, in 1981, to a settlement of $2.55 million – around half of the original claim amount.
As a fact, technological development has enabled space activities and private operators not anticipated in the antiquated legal framework. This development raises the need for international regulatory and policy changes with an eye to maintaining orderly and peaceful space exploration.
Among the most significant challenges that the international community will face in the coming years is the commercialization of outer space and the ever-increasing space debris. Other issues, such as property rights to outer space resources, will grow in importance as space technology and its varied applications develop.
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