Future Legal and Diplomatic Issues on Outer Space: A Critical Analysis

International law governed by outer space. It means all severing countries and all kinds of stakeholders need to work together to develop effective space legislation for future needs.

Outer space is fascinating. It excites us, makes us wonder what is out there and how far we can reach. Outer space is practical. It makes our daily lives easier with the various satellites that provide telecommunication, broadcasting, observational and positioning services. Outer space is challenging. It demands the development of new technologies and new activities. What outer space is not, however, is a lawless void.

One hundred and seven countries are party to the constitution of international space law, the 1967 Outer Space Treaty. This means that virtually every nation that plans to undertake space exploration agrees to follow and implement the Outer Space Treaty through its own regulations and enforcement procedures.

Concerning future space legal issues, the founding text of this new branch of international law is the Outer Space Treaty (OST) of January 27, 1967. This framework agreement was supplemented by four specific international treaties: the Astronaut Agreement of April 22, 1968, the Convention on International Liability for Damage Caused by Space Objects of March 29, 1972, the Convention on the Registration of Objects Launched in Space of January 14, 1975, and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of December 18, 1979.

These texts lay down a series of great principles which are: freedom of use and exploration of outer space, non-appropriation of outer space, peaceful uses of outer space, protection of astronauts, authorisation and supervision of private space operations, responsibility for potential damages caused by space objects, and jurisdiction and control.

Since its adoption, space law has gone through several periods. First developed in the context of public international law to frame the activities of States in outer space, space law experienced a first significant change from the 1980s with the adoption of national laws aimed at regulating space operations conducted by private companies. Thus, while international law remains the general framework for space activities, they are now directly governed by national law. In France, space activities fall under LOI n° 2008-518 du 3 juin 2008 relative aux opérations spatiales.

The second change in space law, speaking about future space legal issues, aims to place the law at the service of entrepreneurial innovation. This evolution originated in the United States of America, first through the establishment of public-private partnership contracts. Through the 2005 Commercial Orbital Transportation Services (COTS), the 2008 Commercial Resupply Service (CRS), and the 2010 Commercial Crew Development (CCDeV), NASA has signed several contracts to boost the privatisation of outer spaceflights with innovative and cost-effective solutions. Entrepreneurial innovation is also encouraged by the adoption of specific laws in two new areas to support the private initiatives that led to the emergence of what is today called “New Space”: sub-orbital flights through the 2004 amendment to the Commercial Space Launch Act, and the exploitation of celestial bodies through the 2015 Space Resource Exploration and Utilization Act.

Space powers, delegating business to companies, are now refocusing on their military space activities. While some demonstrate their ability to destroy satellites in Low Earth Orbit (LEO), and others announce the creation of space-specific armed forces, all fear the possible overflows resulting from this new militarization of outer space. Finally, the development of outer space activities, with the increase of potential space debris, announces a saturation of some orbits; there is an urgent need to develop “space traffic management” tools, as is already the case with airspace.

SPACE MINING ACTIVITIES

While natural resources are being depleted on Earth, many of them are available in huge quantities on celestial bodies, including asteroids. Their exploitation, one of the examples of future space legal issues, runs up against Article II of the 1967 Outer Space Treaty (OST) which states that “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. All forms of appropriation are prohibited in outer space, including by private persons. This did not prevent the United States of America from adopting, at the request of private companies, the 2015 Space Resource Exploration and Utilization Act, or Luxembourg, in search of new markets to compensate the end of banking secrecy, to vote the law July 2017 on the Exploration and Use of Space Resources. Both texts set up a regulatory framework to allow private companies to exploit and sell the resources of celestial bodies.

How can these states affirm the international legality of these laws? Their argument consists in dissociating the appropriation of the celestial body, which is forbidden, from the exploitation of its resources, which would be lawful. Two arguments are advanced here. On the one hand, Article II of the Outer Space Treaty does not mention natural resources, but only celestial bodies. The principle of non-appropriation does not therefore concern resources. Thus, if the appropriation of a celestial body is prohibited, the exploitation of its resources would be lawful. Moreover, the American law expressly states that the United States of America does not claim any right of ownership in outer space. On the other hand, mining is protected by the freedom of use of outer space, proclaimed in Article I of the aforementioned international treaty.

The attitude of the United States of America here recalls the American position vis-à-vis the continental shelf when, on September 28, 1945, President Truman unilaterally proclaimed the jurisdiction of the United States of America over the natural resources of the continental shelf adjacent to the American coasts. The other States have made similar claims, the international law of the sea was eventually modified in the sense of recognition of sovereign rights to the exploitation of continental shelf resources by coastal States. With respect to the celestial bodies, other countries are in the process of developing national legal frameworks for the commercial exploitation of space resources, such as the United Arab Emirates, and Saudi Arabia. If the national normative movement continues with the adoption of other laws, the international law of outer space, like the international law of the sea, could be modified in the sense of the American national law.

Given the uncertainty of the lawfulness of the laws of the United States of America and Luxembourg, it is important to bring the debate back to an international forum and find a framework to organise the exploitation of the natural resources of celestial bodies. Among the possible options, the establishment, under the responsibility of the Secretary-General of the United Nations, of a register of national authorisations, specifying the location (and nature) of prospecting and exploitation operations, has been proposed. Such a system, which is not binding for States, if accepted by the space powers, would also meet the requirements of the 1979 Moon Agreement, and would be likely to reconcile the interests of the space industry around international law. France, which has signed the 1979 Moon Agreement, but has not yet ratified it, could be at the origin of such an initiative.

THE MILITARISATION OF OUTER SPACE – FUTURE SPACE LEGAL ISSUES

In recent years, military space news has been very regular. The resurgence and reinforcement of the military space policies of the States, including France, is the occasion to return to the legal regime of military uses of outer space. This trend is also likely to revive the debate among States on an arms race in outer space and its compatibility with the objectives of using space in the interest of humanity.

In the context of the Cold War already mentioned the U.N. resolutions prior to the adoption of the 1967 Outer Space Treaty specified that space should be reserved only for “peaceful purposes”. But from one resolution to the other, a door to the possibility for States to use outer space as a military arena, has been opened. . Indeed, on May 1, 1960, the U.S. U-2 spy plane was shot down by the Soviet Air Defence Forces while performing photographic aerial reconnaissance, and the opportunities offered by satellites became essential to the geopolitical interests of space nations.

Article IV of the 1967 Outer Space Treaty states that “States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner”. It then continues with “The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited”. Since the legal concept of “celestial body” includes celestial objects of the asteroidal type, and planetoid type, the latter are protected from any military exploitation; if not from any commercial exploitation.

As far as the near-Earth space is concerned, article IV of the aforementioned international convention authorises States to transit through outer space, objects carrying nuclear weapons or weapons of mass destruction. In addition, it is allowed to put into orbit weapons that do not cause mass destruction. Let’s recall that the Preamble of the 1967 Outer Space Treaty affirms the following: “Believing that such cooperation will contribute to the development of mutual understanding and to the strengthening of friendly relations between States and peoples”.

Then came two interpretive theories about the scope and meaning of the “peaceful uses of outer space”. The first, strict, considers that outer space cannot be used militarily, the term being the opposite of peaceful. Space satellites would therefore be prohibited from all espionage, surveillance, and more generally, all military satellites. This is, in any case, the meaning given to the peaceful use provided for in the 1959 Antarctic Treaty System. The second theory, that of non-aggression, considers that non-aggressive military use of outer space can be considered peaceful. It would even be necessary for the maintenance of peace, which would be impossible without constant reciprocal surveillance by States. Moreover, the antonym of “peaceful” is not “military” but “warlike”. The second interpretation, that of “non-aggression”, is today the predominant one.

SPACE TRAFFIC MANAGEMENT

As the number of space objects in orbit around the Earth increases, so does the chance of them colliding. The speeds at which they travel pose the threat, for each of them, of considerable dangers, if not fatal. Operational objects, manoeuvring or not, operated from the Earth, are added space debris. This diverse population of inactive objects, bringing together satellites of several tons, as well as stages of launchers or even splinters of paintings detached from them, evolves in various orbits.

The increase of this orbital population now seems almost inevitable. On the one hand, the reduction in the costs of access to space, the result of the miniaturisation of satellites, and the drop in launch costs invites more and more actors to take part in these activities, and those activities to multiply. On the other hand, the proliferation of debris, reinforced by the increased risk of collisions between them, considerably increases the number of obstacles in orbit.

Ensuring the viability of orbital activities, therefore, implies setting up a “space traffic management” regime, that is to say a set of rules for the conduct of these objects. This problem, now the subject of many works, is generally referred to by the English expression Space Traffic Management (STM). It cannot be decorrelated to space surveillance capabilities, referred to as Space Situational Awareness (SSA).

Under the lens of law, these space legal issues present a dual challenge. On the one hand, the legal regime for space activities requires the establishment of such a device for its perfect application. On the other hand, the law is the appropriate instrument for the construction of these norms. Indeed, the application of certain mechanisms established by space law requires that rules relating to Space Traffic Management be defined. This is particularly the case with regard to liability.

The 1967 Outer Space Treaty and the 1972 Liability Convention cited above to establish a very special regime of responsibility, unique in international law. The latter is structured around two possible situations in the event of damage caused by a space object: either the damage takes place on Earth or is caused to an aircraft in flight, or it takes place elsewhere, that is to say in outer space. In the first case, liability is flawless: that is, the mere occurrence of the damage caused by the space object is sufficient to hold the liability of its launching State or one of them in case of a plurality of launching States. In the second case, liability is said to be for a fault: that is to say, it is necessary to demonstrate that the damage caused by the space object is the result of a fault. If this double regime presents no conceptual difficulty, the “fault” to which reference is made in the second case, is not defined. Therefore, it becomes difficult, if not impossible, to determine with certainty whether the responsibility of a launching State can be accepted in the event of damage that a space object would have caused to another space object.

In this respect, establishing a “Space Traffic Management” regime, widely understood as a set of rules governing the conduct of space objects, is necessary to establish the existence of a fault and with it, to engage the responsibility of a launching State for damage caused in outer space. Failure to comply with these “conduct rules” would constitute misconduct within the meaning of the 1972 Liability Convention, and would thus, make it possible to apply the planned regime strictly. Conversely, Space Traffic Management is one of the major new challenges in space law, as it is the tool by which such a regime can be established. In any case, this set of future standards, governing the conduct of space objects in orbit, will be a component of the broader set of legal and regulatory frameworks for space activities.

It is thus necessary, in research on future space legal issues, to question the legal scheme that could be appropriate for the establishment of the STM. If examples exist, a reflection by analogy is possible on the form, but inoperative on the bottom. The physical laws peculiar to astronautics make it difficult to establish a system comparable to those put in place in other spaces. By definition, space objects placed in orbit are constantly in motion, and are constrained by their speed. A space object is not manoeuvrable with as much ease as an aircraft, or a ship, and it is thus impossible to imagine today being able to require from a space operator a similar control over its object.

Strictly speaking, the STM should thus be based on a logic different from that adopted for Air Traffic Management, with which it nevertheless shares certain problems. Among them, whether an international institution could play a role similar to that played by the International Civil Aviation Organization for flights conducted in international airspace. Indeed, outer space is not sovereign and thus, shares a status similar to the airspace overlooking the high seas. Just as air traffic and maritime traffic require common and shared rules of all, the future standards of space traffic cannot be defined as anything other than multilateral. It, therefore, seems that the authorities that should be privileged to lead the work related to the STM are first those that allowed adopting the legal principles governing today’s space activities.

These selected issues for space law range from the most prospective to the most practical. All three demonstrate the need to stay in an international setting. The international nature of outer space and the idealist objectives of the 1967 Outer Space Treaty requires the U.N. to act as soon as possible, remembering that, as written in Article I of the OST, “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries”. This is what can be said concerning future space legal issues.