As technology advances and private companies increasingly set their sights on extraterrestrial ventures, the question of who makes the rules in space is becoming more important than ever.
“Space is the internet of tomorrow,” said Simonetta Di Pippo, astrophysicist and director of the UN Office for Outer Space Affairs (Unoosa), at an international meeting on 2 June. “Countries that do not have access to it will be left behind.”
Yet the rules that govern our behaviour in space have not been updated for more than 50 years. Any entity operating in outer space is governed by the laws of the country from which they hail and the laws of the country that they – or the object they are operating – are launched from.
“By most accounts, the most important [legislation] is international outer space law, which has been developed through the United Nations since the 1950s,” says Dr Jill Stuart, an expert in the politics, ethics and law of outer space at the London School of Economics.
There are five main international treaties dealing with space. The most significant is the 1967 Outer Space Treaty, which sets out the basic principles for human activities in space. If these rules are now more than 50 years old, are they in need of an update?
“I personally think that the Outer Space Treaty is up-to-date with technological capabilities, but it is behind on political ones,” says Stuart. Since 1967, there have been two major changes with regards to the way nations operate in space, she says. The first is the number of countries with space capabilities, and the second is the reasons nations have for space exploration. “States no longer want to have space programmes merely for prestige,” she says. “Space programmes are now part of everyday infrastructure, or may be a valuable part of, say, development activities, such as crop monitoring, in countries such as India, for example.”
Many startups are looking into the possibility of asteroid mining. With rich resources of water and metals, asteroids hold the potential for private companies to make a huge amount of money.
Digging in the sky
“The Outer Space Treaty states that the moon and other celestial bodies, such as planets and asteroids, are not subject to sovereign claims by any country,” says Dale Stephens, a professor of law at the University of Adelaide. “However, the resources of such bodies are not subject to that same specific legal requirement.
“National laws of countries like the US and Luxembourg anticipate that space mining will occur in the near future and are written to regulate such activity,” says Stephens. “They are written on the understanding that they do not violate the prohibition on sovereign claims as established under the 1967 Outer Space Treaty.”
Take US-based Planetary Resources, currently planning the first commercial deep-space mission to scope out asteroids as potential sources of water for use in space.
“At the international level, the Outer Space Treaty and its progeny do not speak to specific activities in outer space; these basic rules of the road apply generally to all space activities, including mining,” says Brian Israel, general counsel at Planetary Resources. However, he expects that one day, when space-mining activities are more widespread, the laws will need to be updated.
“This could unfold in a number of different ways: from a top-down, multilateral treaty at one extreme, to a bottom-up coordination arrangement among public and private space mining actors at the other,” he says.
Is there life on Mars?
Then there is the question of colonising Mars. Some companies, like Elon Musk’s SpaceX, have made it their mission to send humans to Mars to increase the likelihood of survival of the human race. But, if humans do colonise Mars, who will make the laws there?
“As of yet, there is no clear answer,” says Stuart. “In theory, they would be bound by a combination of international law that would govern Mars itself, as a celestial body, the national laws of their country as citizens, and if they were occupying a capsule launched by an individual country, they may be bound by the laws of that country when in that capsule.” For example, when you are in the Russian and US capsules of the International Space Station, you are technically bound by the criminal laws of those countries.
Star wars
Another aspect of space law in need of an update, according to Stephens, is the rules about military activities in the cosmos. Because of this, Stephens is part of a group drafting a document that articulates and clarifies existing international law applicable to military space operations, called the Woomera Manual on the International Law of Military Space Operations.
“Military use of outer space is increasing exponentially, and we wanted to establish what legal framework existed for the conduct of such activity,” says Stephens. “Most of the existing space treaties are generally vague on the conduct of military activities in space.” He says there are a few specific exceptions, like the rule that prohibits placing nuclear weapons and other weapons of mass destruction in orbit around the earth, or their placement on celestial bodies, or stationing them in outer space.
“We felt there was a need to properly articulate how space law and other areas of international law, especially those relating to the use of force and international humanitarian law would apply,” he says. He expects the manual to be finished in late 2019 or early 2020.
Right now, there really isn’t a sheriff of space. But as extraterrestrial private and state activity proliferates, the need for a space-based law enforcer will likely become ever more pressing.
