Enhancing the regulatory environment and sustainable practices for space

The following article will address the fourth goal on the UK Space Industrial Plan: ‘enhancing the regulatory environment and sustainable practices for space’. In particular, we will consider:

• The existing legal framework, including the main international treaties and their origins and interpretations;
• The core principles of that framework and the practical limits thereof;
• The modernisation and ‘on-shoring’ of the existing international legal framework in the UK;
• The uncertain legal meaning of ‘space’ itself, and proposed interpretations;
• Practical considerations for the peaceful and sustainable occupation of space;
• The divergence of geopolitical interests and commercial considerations; and
• Final open questions and agenda items for stakeholders in the space sector.

The corresponding key texts are introduced as necessary and will be referred to throughout. Further reference material and sources relied on can be found at the Appendix.

 

The regulatory environment - international

The existing legal framework

From an international perspective, our extant space law has long historical origins. The driving forces leading to the codification and "reatification" of space law can largely be traced to the Cold War and the Space Race. The oldest space regulations were prepared in the 1930s by a Czech jurist, Vladimir Mandl, translated into English as “Space Law: The Problem of Space Travel”. Prior to travelling into space, lawyers were already considering the possibilities of the new regulatory environment.

Governing this progress, the five main United Nations international framework agreements were introduced between 1967 and 1979. They are as follows:

Treaty title	Date	Purpose
Outer Space Treaty	1967	The first (and still the most significant) treaty governing the activities of states in the exploration and use of outer space.
Rescue Agreement	1967	The first (and still the most significant) treaty governing the activities of states in the exploration and use of outer space.
Liability Convention	1972	Liability Convention 1972 Relating to the international liability for damage caused in outer space.
Registration Convention	1974	Relating to the registration and documentation of objects launched into outer space.
Moon Agreement	1979	Similar in scope and tone to the Outer Space Treaty, but relating specifically to activities on the Moon and other celestial bodies.

These treaties vary in their scope and applicability, number of signatories, and their impact. Each will be specifically discussed in turn, below.

The Outer Space Treaty (1967)

144 countries are party to the Outer Space Treaty (full title: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies) (the Treaty). Still today, this is the central legal framework of international space law. The Treaty itself is relatively short and straightforward, containing only twenty-seven plain-English "Articles". It was signed in tripartite in London, Moscow, and Washington, on 27 January 1967.

The twenty-seven articles of the Treaty have been distilled into the following nine key principles by the United Nations Office for Outer Space Affairs (UNOOSA):

1. The exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind;
2. Outer space shall be free for exploration and use by all States;
3. Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means;
4. States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner;
5. The Moon and other celestial bodies shall be used exclusively for peaceful purposes;
6. Astronauts shall be regarded as the envoys of mankind;
7. States shall be responsible for national space activities whether carried out by governmental or non-governmental entities;
8. States shall be liable for damage caused by their space objects; and
9. States shall avoid harmful contamination of space and celestial bodies.

It has been argued that the Treaty is a product of the Cold War. The Treaty was drafted during the period of the Cold War known as the "arms race", following the launch of Sputnik. To that end, it was drafted to preserve peaceful cooperation in space. When reading the Treaty, it is useful to remember that the militarisation of space was a more pressing consideration than the commercialisation of space, at the time of drafting. Many of the deficiencies of the Treaty can be explained by reference to this consideration.

Given that the Treaty was drafted in the shadow of the Cold War (and is therefore predominantly an arms control treaty), it has been suggested that it may no longer be fit for purpose. Particularly, the Treaty is ambiguous on topics such as lunar activity, the preservation of the space environments, and mineral extraction.

As a result of this ambiguity, there is an ongoing lobby by the growing private space sector for clearer legislation. Responding to this pressure, the US government introduced the US Commercial Space Launch Competitiveness Act of 2015. As a starting point, this Act granted private companies ownership rights to materials extracted in space; many other nations followed suit, including Luxembourg, Japan, China, India, and Russia. In 2020, The United States announced the Artemis Accords, named after NASA’s Artemis Moon program. This seeks to establish “safety zones" on the Moon. Russia and China have not joined the accords.

Despite being nearly fifty years old, the Treaty and the principles enshrined therein still govern the discourse on the regulation of space. The following three sub-headings address some of the main features of the Treaty worthy of deeper consideration: Non-Appropriation; Freedoms; and Cooperation.

• The Outer Space Treaty: the Non-Appropriation Principle

The Treaty presented what is now referred to as the "Non-Appropriation Principle". Article II states that “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”. The Moon Agreement, discussed below, reaffirms this principle.

The Non-Appropriation Principle creates complexity in the question of resource extraction. It is not clear that states can make claims to resources on celestial bodies, such as the Moon. Thus, it is not clear to what extent mining on the Moon, for example, would entitle the operating actor to the resources extracted, nor to the profits from their extraction. As discussed above, several nations have already passed domestic laws which are contrary to the Non-Appropriation Principle.

Further, the Freedom of Outer Space principle, at Article 1 of the Treaty, insists that “Outer Space, including the Moon and other celestial bodies, shall be free for the exploration and use by all States without discrimination of any kind”. This may be at odds with the Non-Appropriation Principles, which restrict ownership claims. This necessarily delimits the Freedom of Outer Space principle, particularly with respect to purported "use" of outer space.

There is also the question of the resource of the "real estate" of space itself. Geostationary "slots" are the limited spaces which satellites might occupy – analogous to patches of real estate on terrestrial land. Most of these are already occupied by satellites (many of which are no longer operational). Under the Non-Appropriation principle, the status of this occupation is not yet clear.

• The Outer Space Treaty: Freedoms

Set against the Non-Appropriation Principle, the Freedoms expressed in the Treaty seem to create an internal conflict. On the one hand, there is a fundamental prohibition on the appropriation of space. On the other, there is an equally fundamental freedom of use. "Use" is undefined in the Treaty, but will presumably scope over a variety of human activities, possibly including the commercial activities in pursuit of profit. This freedom, which was originally drafted to ensure equality and equity in space, may now be relied upon to justify commercial ventures.

There is a secondary "Freedom of exploration" and "Freedom to conduct scientific exploration". Scientific investigation and understanding, on an international basis, is one of the key freedoms and motivations agreed upon by signatories as a reason for going into space. Therefore, it is coherent that the Treaty duly enshrines that freedom.

Relevantly, the United Kingdom has granted license fee exemptions for private actors entering outer space, if those actors are furthering education or conducting scientific research. This creates an interesting (and possibly problematic) stratification between "pure" commercial actors, and entities who are entering space for scientific purposes. It is not clear that such a delineation could ever be clearly made in practice.

• The Outer Space Treaty: Cooperation

The principle of Cooperation can be considered separately, and is addressed in three main provisions of the Treaty: Articles III, IX, and X. Two of these provisions are quoted directly below, in order to explore the ambiguity of their possible interpretations.

Article III:

“States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the Moon and other Celestial bodies, in accordance with international law, including the Charter of the United nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding”.

This Article III sets out the high-level intention of "maintaining international peace and security", as well as "promoting international cooperation and understanding". It’s not particularly clear what this means. A provision such as this may be relevant when considering the launching of military satellites, or the acquisition of resources for single nation states or private actors.

Article IX:

“In the exploration and use of outer space, including the Moon and other Celestial bodies, States Parties to the Treaty shall be guided by the principle of Cooperation and mutual assistance and shall conduct all their activities in outer space, including the Moon and other Celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty”.

The principle of Cooperation, although codified, is not necessarily clear. Resources in space, like on earth, are subject to zero-sum mechanics. It is not clear to what extent private or space actors will be required to offer each other "cooperation" or "mutual assistance" in the extraction and use of those materials. States may, on the one hand, accept the requirements of the Rescue Agreement (below), but might dispute a proposal to share extracted resources or spacefaring technologies. Acting with ‘due regard’ to corresponding interests leaves considerable room for interpretation.

The UN’s 1996 Space Benefits Declaration, paragraph 2, tried to provide some clarity on the meaning of cooperation. It made clear that states can freely determine “all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis”, as well as acknowledging the ‘contractual terms’ of cooperative ventures. Providing some additional flexibility to spacefaring states, it was submitted that:

“International cooperation should be conducted in the modes that are considered most effective and appropriate by the countries concerned, including, inter alia, governmental and non-governmental; commercial and non-commercial; global, multilateral, regional or bilateral; and international cooperation among countries in all levels of development.”

The Outer Space Treaty is a valuable starting point and indicates some of the international objectives and attitudes to space. Future amendments, discussion, and domestic on-shoring have made some progress towards clarifying its broad-stroke aims. However, as the use of space legislation is increasingly required for activities in the commercial sectors, there are still many questions to be answered about how space activity will be controlled. If states don’t act quickly to legislate for space, there are foreseeable conflicts, with no laws in place to resolve them.

 

Appendix

• Partial Nuclear Test Ban Treaty
• Outer Space Treaty
• Rescue Agreement
• Liability Convention
• U.S. Space Law - Space Foundation
• COPUOS
• Spaceflight legislation and guidance - GOV.UK
• Size & Health of the UK Space Industry 2022 - GOV.UK
• Bayes Centre News: Edinburgh’s bid to be space data capital of Europe inspires new video | The University of Edinburgh
• Terra Carta | Sustainable Markets Initiative
• Astra Carta Seal | Sustainable Markets Initiative