“WE ARE AT A CROSSROADS WHEN IT COMES TO SPACE”
Steven Freeland speaks to All About Space about the importance of space law, the future of space travel and who is liable when something goes wrong
What is space law?
Space is incredibly important for us. We use it many times a day without even thinking. It’s not just your phone, it’s so many things, as diverse as financial transactions to aircraft navigation to agriculture to disaster management. There’s also a highly commercial, global $400 billion [£290 billion] space industry that is growing exponentially. Space is also a critical part of infrastructure for national security and military purposes and, of course, is about science, culture, religion and many aspects of civil society.
Space is ubiquitous, but also incredibly multifaceted, highly strategic and highly (geo)political. It’s crucial, therefore, that we have developed a fundamental body of international law to regulate and compel responsible behaviour in outer space, which unlike airspace is an area beyond national jurisdiction.
The legal characterisation of airspace was already categorised by the 1919 Paris Convention as the exclusive jurisdiction of the underlying country. Thus, UK law applies to UK airspace. In general terms, I cannot enter another airspace without permission.
By contrast, when in 1957 Sputnik 1 was launched into Earth orbit and began ‘overflying’ many countries, nobody asserted that somehow the USSR should have obtained prior permission from any of those countries. It was therefore assumed – and this is reflected in the formal rules that have followed – that there were fundamental differences between how law regards airspace (national jurisdiction) and outer space (beyond national jurisdiction). UK law does not apply to outer space ‘above’ its territory – rather this is governed by international (space) law.
Where does airspace ‘end’ and space ‘begin’? There’s no agreement as to where any boundary might exist, or whether we need one at all.
Each year at COPUOS meetings the issue of the definition and delimitation of outer space is discussed. Many of the almost 100 member states will make statements calling for a boundary to be agreed so as to clearly designate the upper limits of a country’s sovereignty. Other space-faring nations assert there’s no need for such a boundary. This debate has been going on for over six decades with no end in sight, essentially due to politics.
Can law keep up with current developments in space technology?
One of the criticisms you might hear about international space law is that the treaties are all decades old, and as technology has developed, they’re no longer relevant. I completely disagree. The space law treaties provide foundational principles that have served us well and will continue to serve us well in the future. They have, in essence, allowed for space to ‘work’ thus far – notwithstanding the undoubted challenges – and have meant that space has not become an area of conflict. It’s no doubt competitive, and that is to be expected, particularly given the strategic and commercial nature of space. But our exploration and use of space has provided such incredible benefits to the whole of humanity and is inextricably tied up with the future of humanity.
That said, of course we will need to augment and supplement the ‘rules of the road’ regarding space with additional agreed norms and principles to more specifically cover new space activities
made possible by rapid technological advancement. The importance of the existing principles remains clear even in this changing environment, just as the fundamental principles of, for example, the 1949 Geneva Conventions remain crucial to the conduct of armed conflicts, notwithstanding the rapid technological changes to warfare over the past 70 years. Law will never fully keep up in areas where technology races ahead – yet it still provides the fundamental basis within which those new technologies must operate.
Who has jurisdiction on and over a spacecraft? International space law establishes a registration system, which has effects somewhat like the registration system for ships. Each party to the relevant space treaty is required to maintain a national register, in which it would enter details of those space objects that have been launched into Earth orbit or beyond, and over which it retains jurisdiction and control, both in relation to the object itself and any personnel on board. As a state of registry, therefore, that county’s jurisdiction would apply to that satellite and its crew and any spaceflight participants.
What about the International Space Station? The International Space Station (ISS) is probably the most complex cooperative infrastructure project we have ever seen, with the US, Russia,
Japan, Canada and 11 European countries as participants. From a registration perspective, however, the ISS is regarded as a series of separate modules. Each participant has registered specific modules of the ISS in its own national register, meaning that, in effect, different national laws apply in different parts of the ISS.
For example, US law applies to the areas of the ISS that the US has registered, Russian law applies to its modules and so on. This was an agreed ad hoc solution because the participants didn’t wish to relinquish their jurisdiction over the parts that they had contributed to the overall structure.
This even extends to situations where a crime might be committed on board. We quite recently saw an example where an American astronaut had allegedly unlawfully hacked into her ex-partner’s bank account while in the American part of the ISS. In that case, it was pretty straightforward – American criminal law would apply – but it could become more complicated depending on the circumstances.
As we move towards possible future permanent human settlements in space or on celestial bodies like the Moon, we will need to work out an appropriate model to determine what laws and jurisdiction will apply, as well as the content of those laws themselves, given the unique environment in which they will be living. These are difficult and complex questions to resolve.
Who is liable for collisions and falling debris?
If an orbiting or falling satellite collides with another satellite, damage will almost certainly result. International space law establishes a liability regime to deal with such collisions, as well as where space debris falls to Earth, causing damage. The regime establishes that the ‘launching state(s)’ will bear such potential liability, either on a fault basis [for collisions between space objects] or an absolute/strict basis where the damage is on Earth or to an aircraft in flight.
Unusually, this liability falls on the relevant countries, even where the space object that causes the damage is owned and/or operated by a private entity. If a satellite owned by a UK company was launched from French Guiana, both France and the UK are regarded as launching states. If parts of this satellite were to fall on a house in Melbourne, Australia could potentially, under international space law, seek compensation for the damage from the UK, France or both. If this UK satellite were to collide with another satellite in space, liability would be determined on the basis of fault. Again, the countries themselves – as launching states – would be liable. Thus there will always remain a risk to a country when a private entity within its jurisdiction conducts a space activity. The risks are relatively small, but increasing over time.
As part of the national licencing system, therefore, the relevant government authority
might require some form of financial indemnity, protection or insurance from the applicant as a condition of granting the licence.
In the past, private space companies have typically been large organisations that could meet such conditions relatively easily. With reduced barriers to space due to ‘miniaturisation’ technology, many smaller and start-up companies are now seeking to access space. For them, existing financial imposts and conditions may make the planned mission unfeasible. Governments will have to rethink how much of a risk they are willing to bear in order to encourage industry, innovation and entrepreneurship while recognising that, if something goes ‘wrong’, it may itself be on the hook. It’s a balancing act which every government must consider as it drafts new national space legislation or reforms its existing laws.
What law applies to the Moon and Mars? International space law also applies to celestial bodies within our Solar System, like the Moon and Mars, despite what some corporations might assert. There are important principles that apply to activities on celestial bodies, but we clearly will need to think carefully about augmenting these to provide clarity for future activities. There is now great excitement about the possible exploitation of space resources on celestial bodies. This is a ‘big’ issue that will define our future relationship with space. There are many conversations on this issue taking place at all levels, and COPUOS has been actively engaged and has recently established a working group on the issue.
What principles are important going forward? For me there are three overarching principles as we continue to meet the challenges and opportunities arising from rapid development of space technology. We are now doing things that were beyond the comprehension of people even 10 to 15 years ago, let alone when the foundational treaties were agreed. We really don’t know what might be possible in even five years from now. We need to adhere to the fundamental principles of space law, but we need more guidance.
Notwithstanding the ‘terrestrial’ geopolitical tensions, all countries – and particularly the major space-faring nations – have much more in common in space than they have differences.
Their utilisation of space has allowed them to do incredible things, to grow and develop and maintain competitive advantages over other countries. They have significant space assets as part of the critical infrastructure on which they rely, and are therefore highly dependent on space and most vulnerable if certain lines are crossed. It’s clearly in all of their interests that the use of space is not compromised by irresponsible behaviour.
The second overarching principle is humanity. The future of humanity is linked to space. It’s a crucial part of everything we do on Earth now, and impacts on everyone’s lives, livelihoods and human rights. We must stay loyal to notions of humanity as we move forward.
My third overarching principle arises from our stewardship relationship, not just with Earth, but also with space. We are custodians of the planet – though we’re not doing a great job at that – but also of space, for current and future generations. There’s so much to enjoy and wonder about space, and we must ensure that those elements remain. We can’t afford to repeat the same mistakes.
Overall, we are at a crossroads at this moment when it comes to space. If we stray down the wrong path, there may be a point where the damage becomes irreversible. In my opinion, everything we do in the governance of space should be directed towards responsible behaviour, avoiding conflict and maintaining the stability, safety and sustainability of space.
Our exploration and use of space has provided such incredible benefits to the whole of humanity