All About 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

- Interviewe­d by Daisy Dobrijevic

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

 ??  ?? Right: Different laws apply to different areas of the ISS
Right: Different laws apply to different areas of the ISS
 ??  ?? Above:
On 12 May 2021, robotic operators noticed a hole in the ISS’ Canadarm2, made by a piece of space debris
Above: On 12 May 2021, robotic operators noticed a hole in the ISS’ Canadarm2, made by a piece of space debris
 ??  ?? Left: Future exploitati­on and exploratio­n of celestial objects will need governance
Left: Future exploitati­on and exploratio­n of celestial objects will need governance
 ??  ?? Below: Possible future human settlement­s on Mars will need appropriat­e laws and jurisdicti­on
Below: Possible future human settlement­s on Mars will need appropriat­e laws and jurisdicti­on

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