When it comes to space exploration, law is probably furthest consideration from anyone’s mind. But an article in Foreign Policy examines the importance of developing a more sophisticated, comprehensive legal framework to govern human activities beyond Earth. A rather obscure U.N. agency, joined by similarly lesser known experts and institutions, recently convened a special session on this matter.
The U.N. Office for Outer Space Affairs (UNOOSA) Legal Subcommittee, meeting currently for the 54th time, is the primary international forum responsible for developing guidelines and laws for human activity in space. This group works on the legal problems that arise as companies, nations, and international bodies expand their presence beyond the planet. Some of these questions are both thorny and profound: On the agenda for this session, for instance? “Matters relating to the definition and delimitation of outer space.”
The committee is going boldly where few lawyers have gone before — but where more and more are headed, as human space exploration becomes increasingly democratized and commercialized. Monday’s symposium on “space traffic management” — this session’s first major conversation, following opening remarks in a fourth-floor boardroom — included presentations by experts from the Beijing Institute of Technology, the Netherlands-based International Association for the Advancement of Space Safety, the U.N. International Communication Union, and the U.S. Embry-Riddle Aeronautical University, among others. The subcommittee, representing 76 UNOOSA member states and chaired by European Space Agency Policy Department head Kai-Uwe Schrogl of Germany, regularly invites leaders in related fields to give presentations or participate as observers.
Space programs around the world have a long history of productive cooperation. But issues fundamental to uncharted elements of human space exploration, such as regulations on space mining and space garbage cleanup, remain on shaky legal footing, as practitioners of the burgeoning field of space law struggle to sort through an uncharted landscape potholed with knowledge gaps and new territory. Should missions to asteroids serve science and the common good, or mining companies, or some combination thereof? Questions like these, in a matter of decades, have gone from thought exercises to legal work.
These are critical considerations, not only because a growing and more diverse number of parties are getting involved in space exploration, but also due to the increasing complexity and capability of human activities in space — milestones from the successful landing of a probe on a comet, to the announcement of several Mars missions, suggest that it may not be long until humans start brushing up against some of the sensitive ethical and political issues cited at the end of the above excerpt.
Granted, none of these concerns are new; it was not long after humanity first entered space that there were efforts to create some sort of legal framework for the world to abide by.
The international community took its first stabs at putting space under legal jurisdiction during the 1960s and 1970s, beginning with bilateral talks between the United States and the Soviet Union in 1958, shortly after the launch of the first Sputnik satellite. Held mostly in letters between then U.S. President Dwight D. Eisenhower and then Soviet Premier Nikita Khrushchev, these early conversations ended in impasse: The Soviet Union was confident of its technological superiority at the time and saw no reason to join with the United States in regulating space, thereby abdicating a perceived advantage in that arena. By 1959, the U.N. had created the Committee on the Peaceful Uses of Outer Space and the international community began to move beyond the space age’s brief but disquieting unregulated period. The committee’s attempts at a legal framework led to a cluster of international treaties, which established a basis for the somewhat amorphous set of international agreements and domestic regulations that comprise space law today.
The four widely ratified foundational treaties were sweeping in scope: They established space, including celestial bodies, as part of a shared human heritage, not to be claimed or weaponized by any state. Other provisions established freedom of exploration; the obligation to rescue astronauts in distress, should the need arise; nations agreed to carry full legal responsibility for any object launched within national borders; and an international registry was created to monitor all man-made objects in space.
As the treaties slowly came into law, human space exploration continued to advance. Between 1961 and 1972, NASA’s Apollo program sent six manned missions to the moon. A fifth treaty in 1979 attempted to lay the groundwork for international jurisdiction on the moon and other celestial bodies, as it became increasingly apparent that nations would not have equal access to potential space resources in a post-Apollo world. The attempt largely failed. No nation with a major space program ratified — a foreshadowing of legal challenges that would arise when space exploration first began taking a commercial turn.
But while these prescient efforts helped set the foundations for the budding new field of “space law“, numerous issues remain unresolved, including even where space begins (there is no agreed upon scientific answer, let alone a legal one). This has only gotten more complex as space-related projects begins to involve numerous jurisdictions and nations.
The era of the International Space Station poses legal challenges the Apollo astronauts could scarcely have imagined: Whereas space travel began in a world in which each national space program ran its own missions, manned space missions today are more likely to involve intricate minute-to-minute international cooperation predicated on a dizzying mesh of regulatory arrangements at the intersection of domestic and international legal systems.
The ISS — the largest, most expensive, and most complex project completed in space — is at the heart of legal uncertainties that characterize all space ventures. Constructed beginning in 1998 in a cooperative effort by Canada, the European Space Agency, Japan, Russia, and the United States, astronauts representing 15 countries have served on it since 2000. This unique collaboration has posed unusual legal questions, both immediate and hypothetical.
So far, cooperation aboard the ISS — between astronauts and between partner states — has been smooth. But space crime won’t remain a hypothetical forever. Nations participating in the ISS project are expected to extend their national jurisdictions to the space station components they contributed. For instance:
A crime committed in a module built in Japan would be tried in Japan; a crime committed in module built by the United States would be tried in the United States. Under this understanding, astronauts routinely cross national borders projected into space in the course of their work. And the jurisdiction laws apply beyond criminal matters: liability and intellectual property also come into play. Under U.S. law, any intellectual property invented in a station module built by the United States is subject to U.S. patent law. Other states have followed this precept, even without specific laws on the books. But scholars have pointed out that significant problems remain unaddressed. “Consider the scenario where an experimental payload, specifically identified as a Japanese experiment… is permanently moved from the Japanese Experiment Module to the U.S. Lab,” Theodore Ro, Matthew Kleiman, and Kurt Hammerle wrote in an article published by the Journal of Science and Technology Law in 2011. “If the payload reads on the claims of a U.S. patent, the patent owner may be able to sue the Japanese payload owner for infringement,” arguing that the action constituted the illegal importation of a patented invention.
The article cites one seemingly absurd consequence of this jurisdictional complexity: because satellites are legally owned in perpetuity by the nation that built them — even when they have been decommissioned or largely destroyed — cleaning up even a fragment of a given satellite would require permission from its country of origin. Given the problems posed by the growing amount of space debris, this impractical arrangement cannot last forever.
There is also legal ambiguity with regards to moon and asteroid mining, another burgeoning frontier in space exploration that has already been proposed by several private companies. While some optimistic projections suggest extraterrestrial mining operations could begin in just four years, it remains unclear how or whether a country or company claim resources in outer space. (For its part, the U.S. holds the position resources in space belong to whichever nation discovers them.)
Given that space will certainly become a busier and more complicated place in the near future, it will probably be inevitable that some sort of international framework emerges to sort out how nations, private entities, and even individuals conduct themselves in space. Then again, who is to say it won’t be a free-for-all — after all, the international system here on Earth is far from settled, despite the plethora of forums, institutions, and treaties that exist to purportedly enforce certain global standards.
Perhaps this is why so many science fiction narratives conceptualize some sort of united Earth government as a prerequisite for human space exploration. It might not necessarily need to come to that, but the last thing we need is to export war and conflict to outer space. If groups like UNOOSA and its partners have their way, such issues may not prevail.
What are your thoughts?