International Space Law

Posted on Posted in Analyses

By Evangelia Katsifou, Associate Contributor KEDISA

“The time will come when diligent research over long periods will bring to light things which now lie hidden. A single lifetime, even though entirely devoted to the sky, would not be enough for the investigation of so vast a subject… And so this knowledge will be unfolded only through long successive ages. There will come a time when our descendants will be amazed that we did not know things that are so plain to them… Many discoveries are reserved for ages still to come, when memory of us will have been effaced.” 

― SenecaNatural Questions
Even before astronauts left our planet to explore  extra-atmospheric space, legislators and lawmakers plan ahead for what, and whose, laws would apply to space, a place where many travelled but no one owned.  There were a lot of debates whether these new lands would be liable to allocation and claim, just like it happens on Earth, or they would be a no man’s land. International legal scholars, mindful of Cold War animosity, sensed the most crucial parameters and detected the conceivable threats in this unknown area. All this happened long before widespread development of outer space could establish customary international legal precedent that carried national conflicts into space. That’s when was born the idea of Space law, encompasses international and rnational law governing activities in outer space.

In brief  the five treaties and agreements of international space law, which have been developed under the auspices of the United Nations, provide a solid legal basis  of controversial subjects such as “non-appropriation of outer space by any one country, arms control, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, the prevention of harmful interference with space activities and the environment, the notification and registration of space activities, scientific investigation and the exploitation of natural resources in outer space and the settlement of disputes.” [11]
In addition to these international instruments, many states have national legislation governing space-related activities which effectively confirms that the freedom of exploration and use of outer space by all states without discrimination.

Even today the 1967 Outer Space Treaty (OST) remains the cornerstone of international space law while a lot of legislators and some companies that represent private interests are having a controversy over the law interpretation of article II of OST: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means” which sows the seed of doubt if citizens of nations may acquire real estate or extract and commercialize the wealth of outer space, while nations may not. Space mining could become a reality within a couple of decades and seems that international policy makers follow the technological developments and not the opposite. The two most well-known cases are these of United States of America and Luxembourg.
Toward the end of last year, the US government made an endeavor to redesign the U.S. Commercial Space Launch Competitiveness Act (CSLCA) , delivering a bill that permits mining organizations to “have, claim, transport, utilize, and offer” the elements they extract from the moon, asteroids or other celestial bodies in such a way that is not perceived as contra legem but in case it might be put in practice then it definitely violates the OST. The industries that stake in asteroid mining lauded the Act since they have been pushing for space resource extraction for decades now. On the other hand, the majority of scientific community think  of the U.S. Space Act as directly violating the treaty, as it allows states, private firms, or international organizations to appropriate natural space resources.

More recently Luxembourg’s, almost one year after having expressed its intent to develop its national space resource utilization legal regime in order to foster the growth of an indigenous commercial space resource utilization industry, passed a new law guaranteeing private space companies the rights, which could be briefly described as “finders are keepers”.  According to Luxembourg’s ministry “Space resources-dedicated licenses will be issued under the new law, and government supervision of the activities of operators and regulating their rights and obligations will be ensured by Luxembourg in accordance with the Outer Space Treaty.” Unlike the US, Luxembourg law on asteroid mining will extend to foreign corporations which are established in the duchy.

Nevertheless, no one doubts that outer space is overflowing with resources.  Public and private R&D expenditures in critical technologies might become a major point of difference between states in the foreseeable future taking as a fact that the space-mining industry could become an equally important contributor to a state’s economy. Asteroids are packed with precious metals, 24-hour solar power from the Sun could be channeled back to Earth, and the storage of water on the moon, asteroids, and beyond could be used for fuel, cultivating, drinking, and protecting us from radiation. People on Earth could hypothetically live serenely on space assets while never mining our home planet again. All these under the condition that we sideline the unbearable-at least for now-cost. The long-term economic development of new, innovative activities in the space and satellite industries as a key cutting edge segment for states.

A lot of case scenarios about a space mining race, just like it happen in cold war in other fields, verify that the space mining debate probably should have started with international discussions. But international consensus has been difficult to find before. The 1979 Moon Agreement, for instance, would have restricted mining in space to international governing bodies. Throughout the years, 16 nations have signed on to the treaty, however none of the significant space-faring countries have consented to it.

“United Nations Audiovisual Library Of International Law”. Legal.un.org. N.p., 2016. Web. 27 Dec. 2016.

“United Nations Treaties And Principles On Outer Space, Related General Assembly Resolutions And Other Documents”. UNOOSA. N.p., 2016. Web. 27 Dec. 2016.

“Press Conference On The New Luxembourg Space Law To Provide Legal Framework For Space Resource Utilization Activities – Gouvernement.Lu // L’Actualité Du Gouvernement Du Luxembourg”. Gouvernement.lu. N.p., 2016. Web. 27 Dec. 2016.

“Is Asteroid Mining Legal? | Deep Space Industries”. Deep Space Industries. N.p., 2016. Web. 27 Dec. 2016.

“New US Space Mining Law To Spark Interplanetary Gold Rush”. Phys.org. N.p., 2016. Web. 27 Dec. 2016.