The “space race” began on October 4, 1957, when the Soviet Union launched the first manmade satellite, Sputnik 1. The ensuing scramble for control of the stars between the Soviet Union and the United States was breathtaking and fast-paced, with both sides quickly making breakthroughs in outer space. Benchmark after benchmark was met until the space race reached its climax when the United States put a man on the moon in July 1969. Unseen by most of the captive audience of the space race, a legal framework for humanity’s activities in space was being structured. Due to the rapid pace of developments in space, the litigation that dictated what activities were deemed appropriate in space was argued quickly, and left many questions unanswered. Following the conclusion of the space race, there has been a sizable increase in the number of launching states, or states capable of launching a space object or whose territory are used for launching a space object. Furthermore, there has been a concurrent increase in private interest in space. At the onset of space exploration, private interest in space was usually through the medium of satellites, but more recently, private space companies such as SpaceX and Blue Origin have cropped up and become prominent. These companies are entering uncharted territory in more ways than one, given the absence of a comprehensive legal framework to direct their actions at either the international or national levels. Beyond the glaring legal ambivalence regarding the privatization of space, there are considerations of the militarization of space, how to deal with the growing amount of space debris and whether the pursuit of an international regime of space law is a lost cause. Before delving into these issues, however, it is important to understand what the current state of space and space law is, and how it came to be so.
The current international framework of space law is primarily dictated by five treaties and five “declarations and legal principles.” All of these documents share two characteristics. First, they were all drafted and passed through the United Nations Office for Outer Space Affairs (UNOOSA). For the international community, UNOOSA bears the closest resemblance to an agency that directs activities in space, and it continues to have relevance as most launches and outer space objects are registered with the office. Second, most of the documents were passed during the dawn of human interest in space. The passage of the treaties ranges from 1967 to 1984, and the passage of the declarations and legal principles ranges from 1963 to 1996. There have been resolutions passed since the final set of legal principles were instituted, but they have been minor, such as clarifying definitions or expanding on the principles in previous documents. Ultimately, there has been very little movement in the fundamental nature of international space law in the past two decades.
The most important of these documents 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, which entered into force in 1967 and is commonly referred to as the “Outer Space Treaty.” The Outer Space Treaty was forged to lay out several principles intended to define and guide space travel in a time of heightened tensions between the United States and the Soviet Union. Unsurprisingly, the paramount principle of the treaty is that activities in space should be peaceful and undertaken for the benefit of all mankind. Furthermore, the Outer Space Treaty establishes several broad guidelines about what states can do in space. Namely, the treaty stresses that outer space is the domain of all states and no part of outer space, including celestial bodies such as the Moon, can be subject to claims of sovereignty or occupation by a state. Once the primary principle of the treaty is well-defined, three other comprehensive stipulations are made regarding the exploration and use of outer space. First, the status of astronauts is defined as “envoys of mankind in outer space,” and it is explicitly stated that if an astronaut is in danger, any state that has the ability to provide assistance must do so. Second, Article IV of the treaty is devoted to prohibiting the militarization of space. Particular attention is given to banning the testing and use of nuclear weapons in space, but the treaty also clarifies that other forms of militarization, such as constructing bases or conducting maneuvers, is also not allowed. The third stipulation pertains to ownership and liability of objects in space. Essentially, states are to be held responsible for the space activities that are conducted by government and non-government actors within their borders, and are liable for any damage caused by such activities.
The remaining treaties make efforts to clarify and expand upon certain important parts of the Outer Space Treaty. The first treaty to follow the Outer Space Treaty was the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, or the “Rescue Agreement.” The Rescue Agreement expands upon Articles 5 and 8 of the Outer Space Treaty, and requires any state that has knowledge of lost space personnel or space objects to take reasonable steps to aid in the recovery of such items or personnel, including informing the launching state and the Secretary-General of the United Nations of the location and condition of the objects or personnel. The second treaty to follow the Outer Space Treaty was the Convention on International Liability for Damage Caused by Space Objects, or “Liability Convention.” This expanded upon Article 7 of the Outer Space Treaty and ensured that states were to be held absolutely liable for any damage caused by objects that were launched by them, or by non-government entities acting with their approval. Next was the Convention on Registration of Objects Launched into Outer Space, or “Registration Convention.” The Registration Convention made an effort to expand upon the implicit wishes of the states party to previous treaties by stipulating that all states must maintain a registry of objects that are launched into space. The Convention further stipulates that this information must be registered by the UN in order to compile a comprehensive, international registry of space objects. This registry is still maintained today. The fourth and final treaty of significance to follow the Outer Space Treaty was the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, or the “Moon Agreement.” The Moon Agreement emphasizes the guidelines from the Outer Space Treaty regarding the proper exploration and use of celestial bodies. Namely, the Moon Agreement reaffirms that celestial bodies must not be militarized nor claimed as sovereign territory by any state, and any activity upon celestial bodies must be reported to the United Nations.
As human activities in space have continued to develop, the fundamental treaty framework intended to guide them has remained rather static. Furthermore, each of these treaties was ratified to a varying degree of success, with the Outer Space Treaty receiving the most attention and the Moon Agreement receiving the least. In regards to the five sets of legal principles, they mostly reflect the principles already outlined in the five treaties: outer space is intended for all of humanity, it is not to be militarized and states must be held liable for their activities in space. With this survey of current space law in mind, we can now turn to key developments in outer space that are arising and consequently require a legal framework for operation. There are three broad issues that need to be addressed: the economic development of outer space, the militarization of outer space, and the question of space debris.
The economic future of outer space looks promising. Throughout the decades following the first forays into space, more and more private companies entered the space business, doing everything from constructing satellites to providing launch services. Lately, however, much attention has been devoted to the activities of companies such as SpaceX, which aims to ultimately colonize Mars, and Blue Origin, which has an interest in space tourism. Several problems arise when it comes to how these companies can actually be regulated. Firstly, there is an absence of a comprehensive international regime that can regulate activities such as those planned by SpaceX and Blue Origin. In fact, Article XI of the Moon Agreement calls for the establishment of such an international regime that can regulate the exploitation of the resources of the moon, once this exploitation is feasible. Although the treaty specifically mentions the moon, the Moon Agreement and previous treaties broadly speak of all celestial bodies, so the purview of this international regime can be reasonably extended to include Mars. It seems, then, that we have reached the point in which such a regime must be established, but clearly no such regime exists. The creation of this regime would be an essential first step in regulating activities in space. There is a danger in allowing individual states to set up regulatory regimes rather than having a standard, international regime. Fragmented regulation would most likely lead to a “flags of convenience” issue. Some states implement lax regulations compared to others, leading space companies to register and launch from these countries. Such a problem already exists with regards to maritime law, with certain states having much looser regulations surrounding tax and labor laws, leading to an undue amount of ships being registered in those countries. If the same thing were to happen with regards to space law, there would be a similar race to the bottom with regulations, leading to potentially dangerous outcomes for all parties involved. On a final note, if space law was not to fundamentally developed any further, the question of whether SpaceX can colonize Mars remains murky. There is an argument to be made that both Article II of the Outer Space Treaty and Article XI of the Moon Agreement explicitly state that no celestial body is to be claimed as sovereign territory by any state. On the other hand, SpaceX could argue that the Outer Space Treaty merely states that the development of space must be conducted for the benefit of all of mankind, and colonizing Mars is indeed in the interest of all of mankind. No doubt this question will have to be settled as SpaceX nears its promised Mars mission.
The militarization of space was recently brought into the public eye with President Trump’s call to create a space force. Such a move is almost certainly not allowed under the current regime of space law, as using space for military purposes is explicitly banned by the Outer Space Treaty and discouraged by many documents and resolutions since passed by the United Nations. However, the United States rejected a treaty in 2014 that called for a wholesale ban on using weapons in space, primarily citing the lack of a ban on anti-satellite weapons, or ASATs, a weapon system that China has tested in the past. In fact, much of the reasoning behind President Trump’s call for militarizing space is the fact that Russia and China are acting more aggressively in space and that the United States needs to catch up. In fact, one of the items potentially holding the United States back in outer space activities may be its current militarization progress. Currently, all spacecraft in the United States are required to register under the United States Munitions List, which means that they are subject toInternational Traffic in Arms Regulations, or ITAR, by the U.S. State Department. ITAR makes it difficult for US-based space companies to share information about their spacecraft with foreign companies, holding back the potential for cooperation and development in space.
A final concern in the development of space is that of space debris. Space debris as small as one centimeter poses a threatdue to the kinetic energy it has from travelling at orbital velocities. There are currently over half a million pieces of space debris orbiting the earth, which has posed problems in the past such as when the International Space Station (ISS) has had to maneuver around space junk. Furthermore, SpaceX’s plan to provide cheap and fast internet will require 1,200 satellites, which has the potential to create a space debris problem so dire that all space travel would be forced to cease. Currently, international space law is rather weak regarding space debris. The closest thing to a legally binding set of rules for space debris is the Liability Convention, which only holds states responsible for damage done by space debris in cases ofnegligence. Given that there has not been enough development in this area for a commonly accepted standard of operational negligence to be established, proving liability is a difficult task. In addition, there is no law of salvage in space law as there is in maritime law, making it ostensibly illegal for a state to interfere with another state’s debris. There are potential solutions to the space debris issue being developed, such as a space harpoon and lasers, but these new technologies have yet to be tested and some fear they may be weaponized. Again, it seems that the only solution to a fundamental problem of outer space is purposeful international cooperation.
Outer space is a vast and untouched expanse that excites people from all walks of life. Fans of space have recently had their passions renewed as more and more companies and nations express interest in space. However, we must be careful to avoid a completely laissez-faire approach to developing space law. Regulated properly, the development of the use of outer space can be in the common interest of all of humanity. If left to its own devices, however, we run the risk of unequal development and the squandering of a frontier of promise.