Space; the Final (Legal) Frontier

Space; the Final (Legal) Frontier

Space; the Final (Legal) Frontier 2560 1709 Michael Evans

As commercial interest sparks a ‘Second Space Race’, our Senior Content Executive Tobias Sansome looks at the pre-existing legislation on space, and questions whether it is fit for purpose in today’s age.

 “One Small Step For Man”

Looking back at the 4,000 years of written law, it is hard to not marvel at how far we have come. Since the Code of Ur-Nammu some 4 millennia past – all the way up to laws passed just yesterday – humanity has sought to enshrine every aspect of our existence in law. The earliest laws covered the issues faced by ancient civilisations such as property, taxation, and crime & punishment; whilst the laws of today covers more esoteric concepts like IP, social behaviour, and emerging technologies. Indeed, almost every aspect of human existence has been rigorously codified over the centuries; with oceans governed by maritime laws, interactions between businesses and consumers governed by transaction laws, political activities governed by political law, etc etc ad infinitum.

However, whilst humanity is rightfully proud of its legal systems, and the extent to which they have grown to encompass – they are dwarfed by the sheer scale of the cosmos, and consequently, by the number of laws that will eventually be required to govern it. How will mining companies lay legal claim to mineral rights within the metal-rich asteroid belt? How will territorial disputes for valuable lunar property be resolved between different nations? What system of laws will be used for social governance on other planets? Whilst these questions may seem far-fetched now, the explosion of commercial space, and the PRC’s foray into manned space exploration have shown us that these questions will have to be addressed – and possibly sooner than later.

“Houston, We Have A Problem”

Yet despite this, there exist only 5 treaties that have been internationally recognised as governing space. They provide (at best) a framework on which further law can be developed – but as we will see: due to the context of the time these laws were passed, they provide (at worst) a problematic foundation for further legal and technological development. The five major treaties outlined by the Committee on the Peaceful Uses of Outer Space (COPOUS) are as follows:

  1. The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty”).
  2. The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space (the “Rescue Agreement”).
  3. The 1972 Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention”).
  4. The 1975 Convention on Registration of Objects Launched into Outer Space (the “Registration Convention”).
  5. The 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Treaty”).

These laws broadly follow the themes of preservation, peace, and individual sovereignty, with much emphasis given to the fact that no nation or individual can claim sovereignty over any part of the cosmos, and that the actions of explorers and agencies (such as NASA) are the responsibility of their sovereign nation. The treaties also sought to enshrine the sanctity of the moon and other celestial bodies, ensuring that no nuclear weapons could be tested in space, and that no nation could lay claim to them.

These last two stipulations reveal the inherent flaw underlining the initial five treaties: they were drafted at a time when space was the domain of two super-power nations on the brink of nuclear war. Much of the legal documentation is orientated towards the preservation of space neutrality, with addendums such as the Test Ban Treaty focusing on the use of weaponry in space, and with a strong focus on denying nations the ability to ‘claim’ regions of the cosmos as their domain.

The result is a legal framework that is focused on the prevention of a long-thawed, nuclear cold war between two combatants – one of which no longer even exists – and that consequently is unsuited for the realities of the second space race. This compounded by the fact that since the 70s, new developments in our understanding of space – and especially our understanding of its natural resources – have changed our objectives regarding space travel. The Moon – once considered a barren resourceless rock – has been shown to harbour significant reserves of the valuable resource Helium-3, whilst scans of the asteroid belt have revealed a nearly endless wealth of heavy-metals and rare-earth elements.

“The stars don’t look bigger, but they do look brighter”

The drive-by commercial and national organisations to explore further into space and establish footholds on celestial bodies, has begun to generate friction with the outdated existing legislature. One example of this is the joint Russian/Chinese commitment towards a manned lunar base which has raised questions as to whether the landing site will fall under Russian/Chinese jurisdiction, and what limitations this may place on other nations that are planning permanent bases on the lunar surface. Another example is asteroid mining which – while ostensibly legal under the regulations of the Outer Space Treaty – has no codified structure for the claiming of mineral rights, nor the arbitration of disputes between two competing mining firms.

Consequently, calls for an overhaul of the internationally recognised space law are beginning to rise amongst those with a stake in its development. Mining firms, commercial space agencies, commodity traders, astrophysicists, politicians and  Star Trek loving lawyers have all added their voices to the cacophony calling for a review of the legislation, with a focus on opening up space for the betterment of mankind, and the growth of the human race beyond our pale blue dot.

Who knows… perhaps in 4,000 years an archaeologist will stumble across our first attempts at codifying the laws of space, and will marvel at how far we have come.