How lawyers can tackle the cosmic conundrums of space law

The idea that law extends to outer space can seem both counter-intuitive and intuitive. On the one hand, humanity’s activities (wherever they occur) should be subject to law, even in outer space. On the other hand, the counter-intuition is captured well by Nicholas Katzenbach in his article, “Law and Lawyers in Space” (1958):

“I hope that scientists can solve the problem of re-entry from outer space quickly. I am afraid a number of my brethren at the bar are already in orbit. They are travelling very high and very fast in a circular path, and I want them brought back to Earth as soon as possible.”

Lawyers had begun to conceive of the extension of law to outer space as early as the 1950s, even though it seemed somewhat out of this world.

The counter-intuition is also captured, more recently, in the jurisdictional clause in the Starlink Terms of Service, which states:

“For Services provided on Mars, or in transit to Mars via Starship or other spacecraft, the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities. Accordingly, Disputes will be settled through self-governing principles, established in good faith, at the time of Martian settlement.”

In-house counsel at SpaceX have surely inserted this clause in jest, but notwithstanding the levity in both extracts, space law is, more than ever, a matter of much gravity (please excuse the pun)

Sources of law

The early foundations of space law were set in five space-specific treaties concluded at a remarkable pace in the 1960s and 70s by the United Nations (UN). The treaties established key principles like the non-appropriation of outer space, freedom of use and exploration by all States, and the peaceful use of the Moon and other celestial bodies.

While the treaties collectively form the foundation of international space law, they have been supplemented by various UN principles and guidelines to address emerging challenges in space activities, including the mitigation of space debris and the promotion of sustainable use of outer space.

However, since 1979, no binding treaty instruments have been adopted. The cornerstone Outer Space Treaty 1967 (Outer Space Treaty) is explicit in extending international law to outer space. For example, relevant parts of international environmental law, intellectual property law and laws of armed conflict are applicable. Under the Outer Space Treaty, individual States are responsible for the “authorisation and continuing supervision” of national activities in outer space, whether they are conducted by government or private entities.

Australia regulates its space activities through the Space (Launches and Returns) Act 2018 (Cth), which (among other things) sets out the requirements for permits to launch a rocket from Australia or to have a payload return from space to Australian soil.

Current challenges

There are four challenges in humanity’s use and exploitation of outer space and the regulation of space:

Congestion

The increasing dependence of modern societies on space infrastructure has led to a congested orbital environment. Thousands of new spacecrafts are launched each year, providing essential services such as global positioning, Earth observation, weather forecasting, and telecommunications.

While space is big, the useful orbits around Earth are finite and are becoming increasingly congested. This creates the risk of collision and creates challenges for managing radio frequency interference. There is currently no space traffic management regime (as you see in other domains such as maritime and aviation), but there is an urgent need for international cooperation to ensure the sustainable use of orbital space.

Competition

In the Apollo era, space was the purview of governments. In recent years, commercial actors have come to dominate space activities. In 2023, around 90 per cent of satellites deployed were commercial, compared to civil or military government spacecraft. Private entities are not usually the direct subjects of international law. Instead, they are subject to the laws of the States from which they launch and where the entity is based.

Increasing competition for resources in space is testing the regulatory frameworks governing commercial activity in space. For example, satellite operators compete for uninterrupted access to the finite resource of frequency. To ensure that satellites do not ‘clog’ Earth orbits and do not continue transmitting after their useful life, telecommunications authorities, like the US Federal Communication Commission (FCC), have introduced requirements for the disposal of satellites at the end of their missions. The FCC has mandated that operators in low-Earth orbit must dispose of their satellites within five years of completing their missions. It is hoped that this will reduce congestion and lower the risk of orbital debris.

Contested space

The space domain has always been, and continues to be, of immense military strategic value because of the services it provides to military forces on Earth including: intelligence, surveillance and reconnaissance (ISR), precise positioning, navigation and timing (PNT), and communications.

In recent times, nations have been developing a broad range of counter-space weapons to deny adversaries the advantages derived from use of space, while concurrently enhancing their own existing capabilities to derive greater advantages themselves. The prospect of exploitation of trillions of dollars’ worth of mineral resources is inflaming the extension of geo-strategic rivalry to the Moon, asteroids and beyond.

As nations and private entities set their sights on lunar and asteroid mining, as well as potential Mars colonisation, the legal framework surrounding these activities remains uncertain. The Outer Space Treaty prohibits national appropriation of any part of outer space (including celestial bodies and void space), but it does not explicitly address the extraction and use of space resources. This ambiguity has led to conflicting interpretations and unilateral actions by some nations to establish domestic laws permitting space resource utilisation.

In the context of an increasingly congested, competitive and contested space domain, such ambiguity undermines the certainty needed for international law to play its role in de-escalating tension away from potential armed conflict. It highlights the need for clarification and expansion of the legal and normative framework to address these emerging challenges.

Commons

The Outer Space Treaty declares the use and exploration of outer space to be the “province of all [hu]mankind” (one hopes that new international instruments would be written in more inclusive terms). However, there is no polity that effectively represents the interests of the whole of humanity. Therefore, there is no entity to mediate (and enforce) the pursuit of disparate parochial interests by all those narrow polities (including nations, billionaires and their transnational corporations), who are guaranteed “freedom of use and exploration” of space by the Outer Space Treaty.

Bodies such as the UN Committee on the Peaceful Uses of Outer Space (COPUOS) operate on the basis of consensus among Member States (although some non-governmental organisations are permitted ‘observer’ status). This can be difficult to achieve as more nations become space actors and each nation possesses competing strategic aims.

The concept of space as a ‘global commons’ emphasises the shared responsibility of all nations, both collectively and separately (in the absence of a polity representing the whole of humanity), to preserve and protect the space environment for future generations. However, this ideal is often at odds with national and commercial interests. The lack of a centralised authority to oversee and enforce space activities has led to a fragmented regulatory landscape, where individual States interpret and implement space law differently.

As in other global commons, there is the prospect of a ‘tragedy of the commons’ in which disparate actors exploit the domain, none of whom have sufficient oversight and power to ensure that such exploitation does not collectively reach unsustainable levels. In the space domain, physical congestion of Earth orbits, the creation of debris, and the use the electromagnetic spectrum are all pushing the limits of sustainable use. Addressing these challenges requires innovative legal and policy approaches that balance the interests of all stakeholders, while preserving the long-term sustainability of space activities.

Conclusion

As we ponder the evolution of space law since Katzenbach’s quip in 1958, it’s clear the field has become mainstream, with lawyers and policymakers grappling with complex issues that were once within the realm of science fiction. The extension of law to outer space is no longer counter-intuitive, but an absolute necessity in our increasingly space-dependent world.