Space law is an immensely detailed and varied field, which goes right back to the dawn of humanity’s steps into space. However, with commercialisation and the prospect of resource mining on the horizon, how will this law shape the future of space exploration?
We spoke to Professor Sa’id Mosteshar, an expert in international space law and director of the London Institute of Space Policy and Law, to learn more about the field and how it affects the development of space exploration.
Why do we need laws governing space?
Where you have a lot of different interests and assets in an environment that can be used by all, you really do need at least a framework that will ensure that it is well-used and is available to everybody else.
What are the main areas that space law covers?
It covers any activity in outer space. Telecoms is regulated in a very specific way, but one of the underlying fundamental principles of space law is that nobody can appropriate any part of it, but you can attach rules that, for example with satellite communications you can say yes you can use these frequencies and this orbital position, it’s not giving you a right to the orbital position but it’s giving you a right to transmit in those frequencies if you’re over there.
And there are other aspects of this fundamental principle of non-appropriation, which are coming under some strain in some areas, particularly because there is, at the moment, an interest in extracting resources from space. It’s a big question – if you do, it there a legal regime that gives you property rights in it.
Given the ‘no appropriation’ rule of space law, how do you see asteroid mining developing?
As it all stands at the moment, it’s stretching the argument to say that you can own resources in outer space and extract them and use them for commercial gain.
There are a number of arguments put forward. One of them is that outer space treaties only address the behaviour of states, so therefore private entities are not prevented from doing things that are outside that regime. But that is a fundamental misunderstanding of what the regime is and when states can’t extend their sovereignty or jurisdiction to outer space.
Property rights are a combination of possession and control, but also of legal recognition. If you can’t have a legal structure that recognises it, you can’t own it. And the other aspect of it is that where are you going to have it recognised?
The Outer Space Treaty, which is in fact adhered to by most countries whether they are space-faring or not, says that any activities by your nationals are the responsibility of the state. So in a way if you go out there it’s your state that is regarded as being responsible for it.
The principle says that the state can’t own it, so they can’t give ownership to you. But as I say, there are many arguments that people put forward, and there is much debate as you can imagine.
If technology progressed and access to space increased, do you think people would seek to change those laws so ownership could be claimed?
There is the structure for doing that, and the Moon Agreement, which is one of the five space treaties, provides for creating a regime if and when it becomes possible to exploit outer space. And it’s very much like the sea authority, which really monitors and, if you like, has put in place a regime for distributing the benefits of exploiting the oceans.
So that regime is there, it’s not a developed regime but the Moon Agreement says that if and when it becomes possible then you have to establish a regime that will have these basic requirements within it.
But the Moon Agreement is not being ratified by many states. It’s only got 15 ratifications and the major space-faring nations have not ratified it. The reason for that is moderately complex, but one of the objections to it is that is requires opening your facilities that you establish in outer space to inspection by anybody else.
So you can build a base on the moon, you own that bit of the moon and if anybody wants to look at it you have to let them.
Is there any established criminal law for space?
No there is not, but what there is within the Outer Space Treaty – that’s the main treaty of principles of 1967. There is the provision that each state can extend its jurisdiction and control to its own space objects, so if you were to build the base and facilities, and you have to do that unless we happen to discover somewhere which is very much like the Earth, even then you’d have to have structures within which you carry out these activities.
So whoever then owns that – in inverted commas – whichever nation state it belongs to, that state can then extend its criminal law, any part of its laws, or create new laws to govern activity in those places.
For example, on the Space Station, which is actually made up of different components, different units that are contributed by different countries. You can be in the Japanese bit, you can be in the Canadian bit, you can be in the American bit, and each of those can extend their laws to it and have done.
Indeed, for example, the United States has provisions in its intellectual property laws that extend their application to US space objects.
Potential future technological advancements seem to have largely already been considered within space law already – is that the case?
I would feel extremely adventurous if I said we had considered everything! We haven’t.
Insofar as current activities are concerned, certainly, we’re fairly well served. With future activities one of the amazing things about the Space Treaty, which as I say is the main treaty governing activities in outer space, is it sets principles and I think those principles could serve us very well.
I think where the departure comes is looking at commercial interests that essentially are exclusionary and a regime that is inclusive.
The outer space principle is that everybody and anybody who wants to should be able to explore outer space and conduct activities there. And obviously if you want to mine for precious metals and have exclusive rights to it, then it doesn’t fit in that well with that regime.
But as I say, it’s been foreseen, and it works reasonably well with deep sea resources and a similar regime could be set up. The Moon Agreement deals with that – although it’s called the Moon Agreement it actually applies to any celestial body, it’s not just the Moon.
Would the establishment of a colony in space lead to changes in space law?
Yes I think there would be, I’m not sure that in the majority of cases you need a different international regime. You will see much more engagement with space activities in national laws.
As I say, for example, copyright patent laws etc will then say ‘oh yes, if you do it in space these rules apply to you’ as if you’d done it on Earth, or there may be different ones. The current position with the US is indeed that it’s as if you’d done it in the United States.
There is the intergovernmental agreement which sets up the International Space Station and that has many provisions that deal with what laws apply to what activities and whose laws apply to which activities.
Is space law growing as a field?
It certainly is growing in the sense that there are aspects of it that need to be better defined and better understood.
For example, the whole regime for dealing with orbital debris is something that has been developing and improving over the last few years and we have now a set of guidelines that pretty much everybody adheres to now, such as allowing or making sure that if you put a satellite up when it comes to the end of its life you can de-orbit it or put it in a graveyard orbit. Pretty much everybody now imposes that as a condition of being licensed to do it.
Are there legal decisions about space that were made in the past that people are now seeking to change?
I would say that there are – the Moon Agreement, for example, people do think that that could have been done differently. But the interesting thing about the Moon Agreement is that it was negotiated and fully participated in by all of these countries that haven’t ratified it – the US was very active in negotiating and agreeing the terms of what then became the Moon Agreement, but it’s not seeing its interests as being well-served by it.
And a lot of that is also to do with how your own policies develop and what it is that you want to promote. The US was very early, earlier than anyone else, to look at commercialising space. And there are, as I’m sure you’re aware, the huge commercial interests that drive US laws and policies.
We’ve had quite a big influx of private companies coming into the field recently; do you anticipate that impacting on space law?
It will to an extent, but a lot of it will in the area of guidelines and policies rather than changing the underlying principles that are there.
My own personal view is that the Outer Space Treaty happened at the perfect time, when the US and the USSR both wanted to do very similar things and both didn’t want the other to do it alone.
So we have a pretty good balance there, and of course it had to take account of others coming into the field and other countries’ interests. If we did it today, I’m not sure we’d get there, or end up with anything quite as good.
Do you think humanity in the future will be grateful for the fact we did go that way with it?
I’d like to think so. But that’s a huge ethical and political issue. I just happen to think that in very many ways we’re going in the wrong direction.
The US Supreme Court has even held that corporations can have religious beliefs, you know, and freedom of speech and money of speech – that is just so removed from what I think were the driving forces in these things. But as I say, those are in some ways political considerations.