Outer Space law is woefully out of date1st Jul 2022
EDITORS’ NOTE: This article on the antiquarian state of space law begins Orbital Today’s deeper examination of the underpinning of commercial space. The editors would like to thank Rachael O’Grady of Mayer Brown International LLP for the insight she shares with us here.
In an industry as fast-paced as that of space, with new technological breakthroughs being made on a constant basis, and as we continually find ourselves on the cutting edge of what is humanly possible in orbit, it is somewhat ironic that the laws governing these activities remain the polar opposite; utterly pale in comparison, like antiquated relics, in (well-overdue) need of reform.
Not all laws – over recent years, governments from space-faring nations across the globe have worked hard to respond to the evolution of the commercial space industry and to foster investment and innovation within their respective jurisdictions. They have done so by legislating, in order to ensure that their domestic legal frameworks provide players operating in the space sector with adequate legal assurance. This has led to a boom of activity in certain ‘space friendly’ jurisdictions.
However, it is the laws that bind nation States themselves, and their respective governments, which is where the issue lies. Indeed, the international legal order governing human activity in outer space was put in place in an era which is, from today’s space-conscious perspective, totally unrecognisable. In the midst of the Cold War, the 1967 Outer Space Treaty (“OST”), was urgently concluded by politicians from around the globe in an attempt to preserve outer space as the “common heritage of mankind“, accessible to all, on an equal basis. In the face of Soviet aggression, it was also designed to prevent outer space from becoming used for non-peaceful purposes. Four other supplementary treaties quickly followed the OST; (i) the Rescue Agreement of 1968, covering the rescue of astronauts and other objects from outer space, (ii) the Liability Convention of 1972, concerning international liability for damage caused by space objects, (iii) the 1976 Registration Convention, mandating the registration of objects launched into outer space, and (iv) the 1984 Moon Agreement, in order to govern the activities of States on the moon and elsewhere (although, to date, this latter instrument has not been adopted by any of the main space-faring nations and has therefore not come to have any meaningful effect).
These ‘Space Treaties’ still, today, continue to underpin all human activity in outer space. Yet the era in which they were promulgated meant that they were designed to serve a different purpose to the needs of the modern space industry; their authors could not have ever imagined the extent to which mankind, including private entities and individuals (and not just State actors, as in the 1960s) are now dominating the outer space scene, let alone the endless feats that have been achieved over the last 50 years. While the Space Treaties have served – and continue to serve – their purpose, there is no doubt that they are creatures of their time; they are not in sync with the modern space age. For example, matters such as ownership rights over space-derived resources, orbital traffic control, and management of space waste – all of which are at the top of the discussion board of the space-faring community – are not even mentioned within their provisions. On the contrary, the OST guarantees “free access to all areas” to all States, without discrimination, and it prohibits “national appropriation by claim of sovereignty, by means of use or occupation, or by any other means“. Before long, this is likely to pose an issue; for example, those seeking to commercially exploit space resources will inevitably want to ensure that they have legal title and rights to any extra-terrestrial resources they manage to procure. As orbit becomes increasingly congested, the provisions of the Liability Convention (and the gaps within them revealed by today’s space age) would also benefit from reform.
Efforts to reach unanimous global accord on an updated, international legal framework to govern space activity have been hampered by an inherent difficulty: finding unified, global consensus between nations with space programs of differing maturities and with significantly varying national budgets. As human activity in space continues, and mankind’s reliance on space-derived technologies becomes ever more cemented into our daily lives, it is crucial that the international legal and space-faring communities afford more attention to these issues. Parallels can be drawn with climate change in this respect, where international accord was delayed due to differing political agendas and, ultimately, the Paris Agreement was reached at a point when, in many respects, it was already too late. Let’s not make the same mistake with space, before we have even really got there .