Over the past few decades, there have been considerable changes to the space establishment. The activities associated with the use and exploration of outer space have significantly shifted from the domain of international state actors to private stakeholders. These private entities have also earned a seat at the table. Billionaires including Paul Allen, Elon Musk, Jeff Bezos, and Richard Branson at the helm of companies such as Stratolaunch Systems, SpaceX, Blue Origin, and Virgin Galactic, respectively, have disrupted a market long dominated by defense contractors. One thing is clear: space has matured into a domain driven by a greater number of actors— be it nations, private entities, or non-traditional actors and is now more congested, contested and competitive than ever before. With the shifting changes in space development, new activities have been introduced bringing about novel changes to the global order. These activities, on the other hand, have given rise to several challenges most of which the existing laws have failed to address. In this article, we will set out the legal framework for space, we will highlight emerging challenges, and propose possible solutions.
SPACE LEGAL FRAMEWORK
The recognition of the importance of outer space to humanity’s existence gave rise to the formulation of various treaties and principles to govern the use and activities of outer space by various countries of the world. In fulfillment of this, The United Nations Committee on the peaceful use of outer space(COPOUS) was formed, becoming responsible for the creation and implementation of the five UN treaties related to outer space activities, principles, as well as other related international agreements (as each pertains to space). These five (5) treaties commonly referred to as the “five United Nations treaties on outer space” includes:
- The “Outer Space Treaty” of 1967(Formally: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space) deals with issues such as the non-appropriation of outer space by any one country, arms control & the freedom of exploration by member countries.
- The “Rescue Agreement” of 1968(Formally: Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects launched into Outer Space) deals with the safety and rescue of spacecraft and astronauts and the recovery of space objects that return to the Earth outside the native state of launch.
- The Space “Liability Convention” of 1972(Formally: Convention on International Liability for Damage Caused by Space Objects) deals with liability for damage caused by space objects and the prevention of harmful interference with space activities and the environment.
- The “Registration Convention” of 1975(Formally: Convention on Registration of Objects launched into Outer Space) deals with the notification and registration of space activities, scientific investigation.
- The “Moon Agreement” of 1979(Formally: Agreement Governing the Activities of States on the Moon and other Celestial bodies) deals with the prohibition of any hostile activities on the moon.
These essentially have been the legal framework for space administration. Each of the treaties stresses the notion that the activities carried out in outer space and whatever benefits might be accrued from outer space should be devoted to enhancing the well-being of all countries and humankind, with an emphasis on promoting international cooperation. But with growing private sector participation, there are emerging challenges. Some of which include:
Uncertainty as to Liability
Article 1 of the Outer Space Treaty (OST) states that “State Parties to the Treaty have international responsibility for national outer space activities, whether carried out by government agencies or by non-governmental entities.” It also clarifies that the “appropriate State is responsible for authorizing and supervising all non-governmental entities’ activities.” The Article establishes a dual structure where, at the same time, private actions are allowable, but the obligation remains with the States. Access to space is regulated by the States and they should therefore take reasonable steps, on a case-by-case basis or more generally, to license and supervise private users operating within their territories.
This seems straightforward but when construed alongside the Liability Convention of 1972, it throws up a lot of questions. For instance, the Liability Convention distinguishes between strict and fault-based liability but does not answer the question of who is the “owner” of the space entity causing the accident and who is “responsible for it. The Convention states, that the launching state shall be held responsible for any harm incurred by its space object,’ but the question is not so straightforward in the case of private involvement. There are questions about the words that characterize the “launching state,” such as who is conducting the launch and if it is a private launch operator, what is the responsibility? The “territory” used for the launch is an expressly state-reserved privilege, but what if the launch takes place outside some state’s territory, such as on the high seas? Nevertheless, as only States are protected by the treaties, States are the only entities to bear the maximum responsibility of international liability depending on the state in which the space object is registered. Such a presumption puts countries at high risk of compensation unless strict rules are laid down by national space legislation, such as liability insurance obligations, in an attempt to shield themselves from liability.
Space debris, collusion, and containment
Increasing space activities has led to increased space debris consisting of obsolete satellite and also parts and instruments lost during extravehicular activities. Space debris can pose an operational spacecraft satellite navigation threat, particularly in the Geostationary Satellite Orbit, where it can drift, raising the risk of colliding or interfering with transmissions of operating satellites. Earth’s orbit is, therefore, crowded with 600,000 orbiting objects, raising the possibility of pollution by radioactive and other hazardous substances. As demonstrated by the collision of two satellites in orbit for the very first time in 2009, the problem of space debris is an inevitable one.
However, neither the UN Space Treaties nor even the current provisions of the Space Law sufficiently address the problem of space debris with the effectiveness necessary. This ineptitude is connected to confusion in the event of responsibility for space debris damage and the absence of a legally enforceable treaty. According to the Liability Convention of 1972, if the harm is due to negligence, the “launching state is responsible for damage caused by a space object or to people or property of some other state on board. This statement poses two critical issues: on the one hand, negligence is difficult to prove, because ‘space traffic laws’ do not exist systematically, and on the other hand, it is an impossible task to decide who is liable in the majority of cases, taking into account the coplexity of the origin of the majority of space debris.
Another concern that exists is the lack of a legally binding meaning of space debris. It is generally agreed that the word includes anything from small pieces to “dead” satellites. Although some steps have been taken at global, national, and regional levels to mitigate the environmental destruction of outer space; the ‘Space Debris Mitigation Guidelines of the Committee on the Peaceful Use of Outer Space appears not sufficient.
Regulation of property rights in space
Article II of the Treaty on Outer Space (OST) of 1967, states that ‘Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by demand of sovereignty, by use or occupation, or by any other means.’ In outer space, all types of appropriation are forbidden, even by private individuals. But some states like the United States of America & Luxembourg have made laws that give proprietary rights to private companies. From implementing the Space Resource Discovery and Use Act 2015 at the behest of private businesses, or Luxembourg, voting on the Exploration and Use of Space Resources Act of July 2017. Both texts create a regulatory structure that allows private entities to exploit and commercialize celestial bodies’ resources. How do these states recognize these laws’ international legality?
Their point is that the appropriation of the celestial body, which is prohibited, is dissociated from the exploitation of its resources, which would be legal. Here are two arguments advanced. On the one hand, there is no mention of natural resources in Article II of the Outer Space Treaty, but only of celestial bodies. Accordingly, the non-appropriation rule does not concern resources. Thus if the appropriation of a celestial body is forbidden, it will be legal to use its resources. In addition, American law expressly notes that no right to possession in outer space is asserted by the United States of America. Mining, on the other hand, is safeguarded by the liberty of use of outer space, asserted in Article I of the international treaty referred to above.
Regarding celestial bodies, other nations, such as the United Arab Emirates and Saudi Arabia, are in the process of establishing national legal structures for the commercial use of space resources. Some have raised concerns that the US government’s support for private space companies is likely to lead to the reinforcement of EarthBound Wealth Inequalities in space.
Militarization of outer space
Further to this is the resurgence and reinforcement of the military space policies of the State which has given rise to debate among States on an arms race in outer space, and its compatibility with the objectives of using space in the interest of humanity. 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 kind 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 maneuvers on celestial bodies shall be forbidden. The use of military personnel for scientific research or 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 is protected from any military exploitation; if not from any commercial exploitation. Two interpretive theories about the scope and meaning of the “peaceful uses of outer space” have been advocated. 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.
Unclear Dispute Resolution Framework
Currently, there has been no agreed forum that best addresses issues relating to space law activities. Under the traditional framework of space law, space was viewed as being primarily reserved for government activities. The set of international space treaties were negotiated and ratified during this early period of human space activity in the 1960s and early 1970s and reflect the drafters’ focus on government rather than commercial uses of space. Although the private use of space was envisioned, these treaties largely assumed that diplomatic negotiations would solve future space-related disputes between nations.
Although there have been no significant international disputes arising from in-space incidents that have created enough economic or other damage to warrant a rewriting of the treaties or laws, yet the potential for such an incident grows yearly, especially from the crowding of orbits with satellites and human-created debris. Past occurrences have shown that when it comes to the question of fault-finding from damages that occurred in space, caused by different governments, the first and primary method of resolving these government-to-government disputes is usually to engage in direct diplomacy and reach a negotiated outcome. Also, the resolution of the Cosmos 954 accident as well as negotiations involving subsequent international space accidents have set a precedent for using diplomacy for government-government space incidents.
On the other hand, with the rapid growth of private investment in space, particularly in the telecommunications and direct broadcast TV industries in Geosynchronous Earth Orbit (GEO), along with proposals for Low Earth Orbit (LEO) broadband systems incorporating large numbers of satellites, where it involves private claims involving space collision, there have been no clearly established frameworks to address the issues of private claims involving space collision. The question arises as to who determines disputes in the instances of private to private party situation(where both parties are domiciled in the same state),a private to private party situation (where both parties are from different states) and a private party and another foreign government. Although various means of resolving these disputes have been proposed, for example in a situation involving a foreign government(plaintiff) and a private actor, the plaintiff government might seek to sue the private actor in a national court, but might face difficulties in enforcing a judgement of its own “home” court against a foreign defendant. Potential problems still exist, especially if one side is perceived as having a “home ground” advantage.
Current evolving trends as well as the growing number of non-traditional players has made multilateral agreements and treaties ineffective at managing international space activities. In an age where space is evolving and developing more rapidly than intergovernmental organizations can keep up, it is clear that the current global space governance framework is no longer adequate thus bringing about the need for a more revised or rather, additional laws to ensure stronger global space governance and the safety of and sustainability of space for the future ahead. The preference appears to be through national policies and legislation. The U.S. and Russia stand apart from other nations, as they have the most robust set of national laws and regulatory organizations designed with international space commitments in mind. For example, the US in its efforts to refocus its attention on space, has created a new National Space Policy as well as a series of Space Policy Directives, which outline and provide rules of the road for American space activities in the wake of pressing international challenges. These policies which have been developed cuts across various space activities such as human space exploration program (SPD-1); commercial space regulations (SPD-2); national space traffic management (SPD-3); the creation of the Space Force (SPD-4); cyber security in space (SPD-5); space nuclear power and propulsion (SPD-6) and the U.S.-led Artemis Accords, these documents taken together are a means to establishing modern customary international law and norms of behaviour beyond the Cold War-era provisions of the foundational U.N. space treaties.
In light of growing interest in the space sector in Nigeria, particularly on the need to enhance satellite capabilities, Nigeria has enacted the 2015 regulations on the licensing and supervision of space activities. This regulation complements the preceding Act – The National Space Research and Development Agency (NASRDA) Act by fleshing out its licensing regime. This is laudable but a lot more laws & regulations need to be put in place. Nigeria should take a queue in all of this by partnering with other developed nations and providing for a more robust national space policy in order to address current and future challenges and provide the Nigerian space scene with much-needed respite.
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U.N. Office for Outer Space Affairs on Space Law Treaties and Principles
Collins Okeke– Senior Associate
Uchechi Ofoegbu- Associate