Space: The Last Legal Frontier
It is generally believed that law is an ever evolving and developing subject, where stagnation in any context results in social disruption and injustice. It is with this very principle in mind that countries periodically amend their laws, either by way of official mandates and the passage of bills, or through the relevant updated case laws. Essentially, the law is at its most efficient when its nature is dynamic - adapting to the social stimuli. With the onset of the Cold War, the United Nations (UN) set up Space Laws in order to avoid nuclear-powered airstrikes and resolve the international conflict with the minimum casualty count possible. This article centres around identifying and analysing the gaps in existing space-legislature by showing how the technological, commercial, and international implications of human use and encroachment of outer space has changed over the last sixty-odd years.
In the context of the Cold War and Russia’s launch of the Sputnik-1 satellite, the “space race” was initiated, in which the global superpowers—the United States of America and the USSR—competed for maximum manifestation of their ideological hegemony, on land and in space, making inevitable a highly probable nuclear showdown between the two nations. To prevent a complete and total nuclear annihilation, for the immediate future at the very least, the nations arrived at a UN resolution, titled the Outer Space Treaty, 1967, which was opened for signature at Moscow, London and then Washington. With the dawn of the Space Age, the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) was established in 1959 as an ad-hoc committee, and it was formally established by the UN resolution 1472 (XIV).
The aim of the initial resolution of 1967 was to establish principles to govern the “activities of state” during the “peaceful exploration and use of outer space, including the Moon and other celestial bodies”, to create an agreement of liability for “damages caused by the launching of objects into outer space and an agreement on assistance to and return of astronauts and space vehicles” and to begin the “study of questions relative to the definition of outer space and the utilisation of outer space and celestial bodies, including the various implications of space communications”. These larger goals of the Committee have been underwritten with an overarching sense of international cooperation and collaboration, in the hopes of a peaceful use of outer space. Between the seventeen codified articles, the Treaty broadly establishes that the use of celestial bodies shall be done with free access, equally and without discrimination, and, in accordance with the principles of International Law, stating that these bodies are not viable for national appropriation or sovereign claim.
It would be very easy to map this legislation over the 20th and 21st Centuries and, after a superficial look, call it a success. Frankly, the goal of preventing space weaponisation is a very low bar—one that should only have been applicable until the turn of the century. After that, the International Court of Justice (ICJ) and the United Nations Office for Outer Space (UNOOSA) should have devised modifications, alterations, and developments to the law in accordance with the shifting social and technological background. This is especially relevant given that currently, almost sixty years into the use of this Treaty, only the seventeen articles in the primary text, and a few smaller, supporting legislations—all of which are based on the same general idea of harmonious living and nation-funded use of outer space—are found to be untenable by current day societies.
A non-law criticism is that this treaty, even while being signed and ratified by many other countries, was held up solely by the willingness of the US and USSR to abide by it and choose not to send weapons into space. The treaty is also outdated, given that it failed to account for the fall of American hegemony and the subsequent shift towards a more equitable, global dispersion of power. Given the increase in involvement from many other nations and coalitions and their efforts at establishing themselves in the scientific arena, this half-a century-old piece of legislation is inadequate in reflecting today’s needs—and it also entirely fails to consider the commercial use of outer space!
Corporations and their rights to the use of outer space are not reflected at all in the existing legislation. The language of the Outer Space Treaty is only specific to national ownership; resultantly, there is no legal consensus at all on the status of the appropriation of celestial bodies by private, commercial entities. Taking, for instance, Article II of this treaty which lays down the regulations on establishing national sovereignty on celestial bodies, only the state-sponsored organisations and the national militaries are prevented from establishing and recognising territories in space. Article VII of the treaty establishes that “each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air or in outer space, including the moon and other celestial bodies”. But this means that for any actions taken by independent commercial entities, no matter their intention, the liability to reduce the damages arising from that situation would fall on the state that the company falls under the jurisdiction of. For companies like SpaceX and Blue Origin, this is a get-out-of-jail free card, giving them immunity from any responsibility or liability from any mishaps that happen in space. Correcting this loophole is even more necessary as the needs continue to arise from the commercial use of space, and they benefit the “common man” far more than the state sponsored projects currently do, and to prevent the shift of power from the hands of the nation in question, and into the multinational corporations. Apart from the shift from a purely nationalised to a more commercialised use of space, now more than ever, as more space-tech gets launched—for research and exploratory purposes—the lack of proper regulations or international management poses a threat to the very foundation of peaceful cooperation that the UNOOSA treaty is based on.
In the implemented legislation, there are three glaring problems:
Firstly, it does not make a distinction between “weapons of mass destruction” and conventional weapons. The discerning factor between the two is that the conventional weapons are the most commonly used in global armaments—including, but not limited to, armoured combat vehicles and aircrafts, small and light weapons, ammunitions and artillery—where weapons of mass destruction are a special class of weapons dedicated which, defined by the UN Office for Disarmament Affairs, “produce in a single moment an enormous destructive effect capable to kill millions of civilians, jeopardise the natural environment, and fundamentally alter the lives of future generations through their catastrophic effects, cause death or serious injury of people through toxic or poisonous chemicals, disseminate disease-causing organisms or toxins to harm or kill humans, animals or plants and deliver nuclear explosive devices, chemical, biological or toxin agents to use them for hostile purposes or in armed conflict”. The fact that the treaty is silent on the use of conventional weapons goes against the primary objective of the treaty by creating a very blatant loophole and therefore, indirectly, makes the use of Outer Space threatening for other nations.
Secondly, even though the treaty explicitly disallows nations to claim sovereign territories in space, it does not talk about “who” may own the resources which are mined from celestial bodies like the Moon. In light of the recent events where NASA has officially proposed to pay companies to help mine the Moon, the probability of this event becoming an eventuality is fast-approaching, creating a need for an upgrade in the Outer Space Treaty—one that considers the widened scope of investment, commercial arbitration and national liability that may arise as future disputes.
Thirdly, one of the agreements that the countries and inter-state space organisations have ratified is that they will all take all the necessary steps to “rescue and assist astronauts in distress and promptly return them to the launching State, and that States shall, upon request, provide assistance to launching States in recovering space objects that return to Earth outside the territory of the launching State.” In hindsight of the fact that multiple nations are currently developing a commercial space-tourism sector, and the recent NASA Artemis Accords being signed for the same sole purpose of civil exploration of outer space, the problem that arises is in the Outer Space Rescue Agreement. This resolution only deals with the rescue and assist operations for astronauts, not passengers in civil space capsules. Considering the fact that the scope of the use of outer space will be soon expanding to include civilians as well, a change in the implemented resolution is imperative.
Furthermore, the dispute process for nations themselves are very inaccessible, convoluted and time intensive. Although inefficient, it makes sense that disputes on ‘international use of space’ would take a lot of time (even though 60 years into the statute, they should have the procedure figured out by now). On a national scale, it makes sense to do things in a gradual and measured manner as these are millions of stakeholders whose welling and collective harm/benefit will have to be analysed by the nations’ representatives and the ICJ itself to ensure that the national and international duties and responsibilities are being followed.
However, with the introduction of privatised and commercialised players in the game, it is not a complete exaggeration to say that the lens of individual profit is a threat to the collective wellbeing. And this threat is even more apparent when we take into account that these entities have no social responsibility and their actions are not being tempered by any legislation, culminating in the fact that they have no recourse or platform to adjudicate their matters on private space disputes.
The laws on space regulation are currently working with an “if it isn’t broke don’t fix it” mindset, with methods of alternate dispute resolution being used to resolve the disputes between parties (national and private) regarding space exploration and travel. These methods are obviously not entirely appropriate or equipped to tackle these problems. The goal of the law should not be to play catch-up with the events that have already transpired, but to plan for the future as well. In this case, it would mean preparing for the eventuality of public-private partnerships in different avenues of space use, and because the privatised corporations have the means to fund such increase in scale, and would pre-empt a shift in power with regards to who has control over space… Then what will be the contingencies for commercial monopolisation of space in the absence of adequate legislation?
This article under Legal Eye is written by Inspire Law's Writer, Ishani Chatterjee. Read more of her pieces on 'The Feed'.
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