Over the last few years, outer space activities have amplified significantly. States have introduced policies as well as strategies to increase investment in new space initiatives, in both the public and private sector, as an essential boost to future economic growth. “Space economy is seen as a river of untapped potential.”^[i] Moreover, space exploration provides the pathway to bring innovative and serendipitous benefits to a variety of areas, whether climate change, global security, food security, or water management etc.  Therefore, due to the importance of space exploration, Expo 2020 Dubai has launched a ‘Space Week’ in October. Space Week is the second of 10 theme weeks taking place throughout Expo, as part of the Programme for People and Planet.  The aim of this theme is to showcase an array of content and dialogue on the benefits, solutions as well as challenges of exploring outer space.

Hence, with the continuous advancement in space activities, as well as the emergence of private actors in outer space exploration, it is of major importance to examine the rules of engagement in the new frontier. It is essential to understand the development of laws governing space, the current rules and regulations governing cooperation, competition as well as conflict resolution.

The History of Space Law

Exploring outer space has always been a fascination for humans: from the Babylonian astronomers of 700 BCE,  who recorded the paths of planets, to the ancient Inca and Aztec builders of astronomical observatories, as well as the ancient Egyptian astronomers, who may have discovered variable stars.[ii]

However, the law governing space was an idea without shape or substance for more than 2 decades.[iii] Only in 1932 the first comprehensive monograph was discovered, which presented some fundamental concepts of space law. The first doctoral dissertation examining some concepts of space law occurred in 1953.^[iv] Yet, it is widely recognized that international space law is by-product of the Cold War, as a result of the successful launchings of the Soviet satellite Sputnik 1 in 1957 and the US satellite Explorer 1 in 1958, where both the United States and former Soviet Union, took an active interest in the development of international space policy.[v]  The principal objective of the architects when negotiating space law rules was actually security, due to the fact that the space race involved two world powers vying for technological superiority.

The launch of Sputnik is often portrayed as a black eye to the United States in its quest for space superiority, from a country that should have been its technological inferior. The oft forgotten part of that narrative is that the Soviet launch raised a serious strategic threat to the United States, in that it showed that the Soviet Union was much closer to the technology that would allow for the intercontinental delivery system for a nuclear warhead (an Intercontinental Ballistic Missile - ICBM).[vi]

Consequently, frictions increased between the two countries, as they both got closer to developing nuclear weapons, leading to a great strategic risk for both sides. This prompted the necessity of negotiating principles to lessen such tensions and eventually the development of UN Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. The Principles basically included obligations such as the ban on the "national appropriation" of space as well as placing strong emphasis on transparency and international cooperation. Such notions aimed to lay the basis of a legal regime that promoted the peaceful exploration of space and simultaneously reducing tensions in the new arena. [vii]

These principles were later integrated into the Outer Space Treaty, which was ratified by 63 participants in the United Nations in 1967. It is considered as a landmark in the development of international space law and it remains in effect today among participating countries.  The Treaty was followed by other four, namely:  the 1968 the Rescue and Return Agreement; the 1972 the Liability Convention; the 1974 the Registration Convention; and finally, the 1979 the Moon Agreement.[viii] These four UN treaties are actually supplemented with several of non-binding instruments, i.e., resolutions adopted by the UN General Assembly and documents produced by the UN Committee on the Peaceful Uses of Outer Space.

Therefore, it is to note that both soft space law and hard space law form lex specialis (law governing a specific subject matter), which, along with international law in general, administer all space activities irrespective of their nature.

In addition to these international instruments, many states have national legislation governing space-related activities.

The Current Rules of Engagement

According to Dr. Frans G. von der Dunk, Director Public Relations of the International Institute of Space Law, outer space is similar to international waters in the sense that no one can fully take ownership or control it but it is still open to use by everyone.[ix]   The Outer Space Treaty aims to govern space activities and therefore is acknowledged as the mainframe for space law. The main principles of the treaty assert that

The exploration of space should be carried out peacefully for the benefit of mankind.

Placing of nuclear weapons and other weapons of mass destruction is prohibited in space or on any celestial body.

The moon and other celestial bodies cannot belong to a state but are for the beefit of the international community.

Development of military bases, facilities, and fortifications, and experimentation of all types of weapons in outer space are prohibited.[x]

Hence, a number of essential principles govern the conduct of space activities, including the concept of space as the ‘province of all humankind’, the freedom of exploration and utilization of outer space by all states without discrimination, and most importantly the notion of non-appropriation of outer space.

Other fundamental principles were addressed as well by the other treaties and instruments such as international cooperation, the preservation of the space and Earth environment, the rescue of astronauts, liability for damages caused by space objects, the use of space-related technologies, and the sharing of information about potential dangers in outer space etc.

While it could be noted that the development of international space law was based on the notion to keep outer space as a sanctuary for peace, there is always a possibility of armed conflicts in outer space. Treaties do not explicitly address potential or actual armed conflict, yet international space law contains only the above-mentioned substantive rules addressing military activities.  The main substantive provision of the Outer Space Treaty in the security realm is the Article III obligation that space activities should comply with international law, referring to the UN Charter. Hence, according to Dr. von der Dunk “both the U.N. Charter’s baseline prohibition on the use of force that threaten the territorial integrity or political independence of any state and the two fundamental categories of exceptions to it—the right of self-defense in U.N.-ordered or U.N.- mandated military sanctions—have become applicable to outer space as well.”[xi]

Limitations of International Space Law

In May of 2020, SpaceX, was the first ever private corporation to send humans into space, showing not just a tremendous technological accomplishment but creating a new “space-for-space” industry. However, the current space law has some limitations, since it solely focuses on state activities and hence does not take into account for the evolving advancements in the space industry as well as the increasing involvement of private companies in space activities. Some of the gaps in international space law could be deduced as the following:

1.    Lack of enforcement mechanism

One of the primal issues of the current legal system, is the lack of an enforcement mechanism and of a clear threshold for what comprises as violation or infringements, giving leeway for China, Russia, France, and US during the arms race to embark on atmospheric nuclear tests. “For instance, the United States and Russia have both carried out atmospheric nuclear tests and tested weapons such as R-36 missile developed by Russia in 1967.”[xii]

2.     Lack of sufficient protection from the cyberattacks in space

Currently, much of the world’s fundamental infrastructure depends on space for the daily functioning. “Essential systems -- such as communications, air transport, maritime trade, financial services, weather monitoring and defense -- all rely heavily on space infrastructure, including satellites, ground stations and data links at the national, regional and international level.”^[xiii] Therefore, because of the increasingly digitized critical infrastructure, satellites for example are vulnerable to cyberattacks.  While, the Tallinn Manuals that addresses how international law should apply to cyberwarfare and the laws of armed conflict in space, yet cyber hacking in space does not have a clear legal framework.[xiv]

3.     Lack of sufficient regulations for private entities

SpaceX’s recent advancements and the efforts by Blue Origin, Boeing, and Virgin Galactic to send people in space sustainably, pioneered the concept of spaceflight led by private firms. 

Moreover, currently there is huge number of satellites worldwide, since almost every state uses information generated from space, however many of them are privately owned. [xv]

Asteroid mining has also gained a lot of interest from private companies, registering “around the world to begin the exploitation of asteroids for precious metals (such as platinum) and compounds (such as rare-earth minerals)”[xvi]

However, this privatization of outer space presents challenges to space governance. The current legal regime does not contain sufficient provisions on how to deal with the peculiarities of private entities activity. “The law was crafted around an architecture that did not include a full panoply of non-governmental actors, and has left numerous questions about the obligations that states have to regulate these entities”^[xvii] While several states such as the UAE, Luxembourg, and Japan created a domestic legal framework to regulate space activities by private companies, new norms and rules are needed to establish a global code of conduct.

Conclusion

The past few years have witnessed the largest advancements  to the space field since the Cold War. The Outer Space Treaty of 1967, adopted under the auspices of the United Nations, laid down the foundation of the international space law.  Currently, the Outer Space Treaty and the consecutive UN treaties constitute the normative framework governing state activities in outer space. This system has been essential in maintaining the exponential growth in space activities of countries and sustaining  the global space economy.

Yet, today, private stakeholders started to increase their outer space activities. Billionaires including Elon Musk, Jeff Bezos, Paul Allen, and Richard Branson have disrupted the market, leading outer space to be driven by several actors: states, private or non-traditional actors. With such advancements, the current space legal regime must change to be able to with 21st-century challenges, in order to maintain its initial goal that exploration of space should be carried out peacefully for the benefit of mankind.