To the stars: international space law current & future states

5 minute read  08.07.2024 Jack Holmes, Jack Goldsmith

Space is not a legal 'Wild West', though evolving geopolitics and technology are rapidly requiring new laws and norms.


Key takeouts


  • Space law is a complicated structure built on a geopolitically fraught past.
  • New space technologies and actors are forcing us to consider how space is governed.
  • Australia has a key role to play as a space norms entrepreneur.

Introduction

Like the environment and radiofrequency, outer space is a shared human resource. To prevent against misuse or overexploitation and ensure sustainability, appropriate legal safeguards need to be implemented and obliged by all nation states. With the introduction of new technologies and private capital, space in the 21st century is now open to a range of new actors, and is rapidly forcing change to the ways international space law is constructed and enacted.

The origins of space law

The launch of the world's first satellite, the Soviet Sputnik 1 in 1957 amid the Cold War, sparked a space race that would give rise to the need for space law. The US, fearing the Soviet Union had eclipsed its technological capability, responded to Sputnik by launching a series of its own satellites into orbit. The prospect of space's weaponisation or unilateral exploitation by either the US or Soviet Union gave rise to global discussions on the need to regulate space through international law.

The American Bar Association was among the first to advance law in 1959, passing a resolution declaring that celestial objects such as the Moon should not be subject to state appropriation. Following this in 1960, the UN established the Committee on the Peaceful Uses of Outer Space. This Committee oversaw the first Declaration of Legal Principles, which were adopted by the UN General Assembly in 1963 and provided the preliminary architecture for space law. These Principles were then formally codified in 1967 in the Outer Space Treaty, which now comprises the foundation of modern international space law.

Overview of space law

Modern-day space law is predicated on a cascading structure of public international legal treaties, conventions, principles, other legal instruments, and domestic law. The Outer Space Treaty mirrors many provisions in the Declaration of Legal Principles and sets out several rights and obligations on states parties to the treaty, including that the Moon and other celestial bodies shall be explored for the benefit of all countries, irrespective of their scientific or economic development. The Treaty also repeatedly asserts that nothing in space can be exclusively claimed by a state, and that all activities in outer space are to be conducted peacefully.

Among the various sources of international space law, there are four primary treaties that support the Outer Space Treaty and outline responsible state behaviour in space. The Rescue Agreement covers broad rights to rescue, regardless of bilateral relations, of any personnel of a spacecraft in distress. The Liability Convention sets out a regime demanding liability for states parties that damage a another's space object. The Registration Convention requires that any state launching an object into outer space must register the object with the UN. Finally, the Moon Agreement, which mirrors much of the sentiment in the Outer Space Treaty, prohibits the placing of military bases and weapons – nuclear or otherwise – on the Moon. Stemming from the Declaration of Legal Principles in 1962, these documents communicate an enduring ambition for international peace, security, cooperation and non-appropriation in space.

The changing face of space law

Although notionally the 'province of all mankind', there naturally exists some states with greater space capability than others. Historic space leaders include the US, Russia, China, and the European Space Agency. A cadre of middle space powers is growing, however, consisting of, India, Japan, France, Australia and South Korea, among others.

Private companies such as SpaceX, Blue Origin, and Virgin Galactic are also burgeoning in space, offering launch services, commercial space tourism, telecommunications, and GPS. SpaceX, which operates Starlink satellites, plans to increase its constellation to 42,000 satellites over the coming years. Space law does not currently prevent actors, public or private, from launching large numbers of satellites into space. Yet, much like the oceans can be overfished, space debris can create serious problems for the future uses of space.

Challenges to achieving international cooperation in space

Space diplomacy refers to the range of international engagements, practices, and mechanisms that support responsible behaviour in space. Space diplomacy helped establish the International Space Station, and was instrumental to recovery efforts following the crash of a Soviet satellite into Canadian territory in 1978. Space diplomacy is therefore a necessary precursor for future space law, particularly when dealing with the growing problem of space debris. Anti-satellite (ASAT) weapons, for example, are currently being tested by a range of states without due regard for collateral damage to space objects in proximity. In 2021, the Russian Federation destroyed one of its own satellites which, according to the US, produced at least 1,500 trackable pieces of space debris, endangering both lives and property. In low Earth orbit, wherein most new satellites are located, space debris can travel at around 8 kilometres per second, and can take anywhere from a few months to thousands of years to re-enter Earth’s atmosphere. With enough debris, a point of no return may soon be reached where all present and future space enterprises become unviable due to the overwhelming risk of placing objects in orbit.

Australia's place in space

Australia's primary space program is overseen by the Australian Space Agency (ASA), which launched in 2018 and is headquartered in Adelaide. The ASA has committed to tripling the size of the Australian space sector to $12 billion by 2030, fuelled by 20,000 new jobs. Australia is already making modest efforts to achieve this, having agreed with NASA in 2021 to build an Australian-made moon rover designed to collect lunar soil. Australia is also a founding signatory state to the Artemis Accords, a recent attempt by the US to promote positive norms in space. Most importantly, however, is Australia's critical role in supporting other spacefaring countries, most notably the US, through operational assistance. Australia's sparse, flat geography and clear skies are ideal for launch sites and ground stations.

Conclusion

The final frontier is far from a legal 'Wild West', but it certainly lacks sufficient guardrails for its use. As such, it is integral that we understand the legal landscape governing outer space, the current technological capabilities of spacefaring nations, and Australia’s place in promoting positive space norms so that, as an influential middle power, we can enable a vibrant future among the stars.

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