Following the technology: questions relevant to the future regulation of space activities

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Steven Freeland
Western Sydney University, Penrith
s.freeland@westernsydney.edu.au

The complexity and ubiquity of space

Over 60 years ago, on 4 October 1957, a Soviet space object, Sputnik 1, was successfully launched into earth orbit. This not only marked the beginning of the ‘space age’, but immediately highlighted the need for legal regulation of the exploration and use of outer space.

Over the ensuing decades, fundamental international legal treaty principles have developed that have significantly improved living standards for all humanity through satellite telecoms, global positioning systems and remote sensing technology. More recently, the possibilities have been magnified significantly through the advent of the miniaturisation of satellites. We are now also looking at the prospect of establishing human settlements in space and further exploiting space natural resources.

Space is also highly ‘commercial’. Both the wide array of space-related activities and the constant demand for services that stem from the associated technology contribute to the ongoing economic impact of the space sector worldwide. For the year 2019, the global ‘space economy’, comprising launch and ground services, satellite manufacturing, satellite television and communications, government exploration, military spending and other activities, was estimated at approximately US$400bn+, with commercial space representing in excess of 75 per cent of that amount. Many commentators suggest that the global space economy will continue to grow at upwards of eight to ten per cent per annum over the coming decades, representing multiples of the growth forecast for the broader world economy, even on pre-Covid-19 figures.

Space is therefore vital in terms of the world economy, strategic thinking, terrestrial military strategy, geopolitics, human rights, commercial enterprise, tech innovation and, frankly, the future of humankind. The impact of our use of space and the increasing range of space activities mean that law – at both the international and national levels – has an important role in ensuring that such activities are carried out in an appropriate manner. Furthermore, the avoidance of a ‘tragedy of the commons’ scenario^[1] is crucial if humankind is to garner the maximum benefit from what space has to offer.

This brief article raises some questions arising from the various challenges ahead for legal regulation in this sphere.

Addressing the major legal challenges

In view of the ubiquitous and vital presence of space technology, each country is, or should be, asking the same questions:

• What does the development of space technology mean for us?

• How can we maximise our ability to take advantage of the use of space for our continuous development?

• Do existing national laws or policies unduly inhibit or restrict the development of a viable and self-sustaining domestic space industry?

• What regulatory framework is most appropriate in terms of our risk profile, capability, needs, culture, economic circumstances, national security situation and strategic alliances?

• How can this framework be constructed in a way that is adequately ‘future proofed’ (if indeed this is at all possible)?

For each country the answers will be different, but there is no mistaking the need to address the implications of space-related technology. They pose great opportunities but their management and regulation – both at the international but, even more significantly, the national and commercial levels – raise difficult questions.

In addition, given the exponential growth of the commercial space sector, we must also consider what expertise commercial lawyers will require so that they can properly support the growth of indigenous space industry and capability, given the peculiar legal nature of space and the unique risk, cross-waivers, insurance, liability, transfer of ownership, registration and other aspects that flow from the broader international regime for space and which influence every space-related commercial transaction. In essence, the commercial legal framework for space is very different from ‘terrestrial’ commercial transactions in several important respects, and ‘off the shelf’ approaches, without the necessary understanding of the peculiarities will, in the end, not serve clients’ best interests. Like many areas of commercial practice, there is a need to apply specific expertise and experience to space-related transactions.

With this important caveat in mind, the so-called ‘New Space’ phenomenon represents an enticing opportunity for skilled lawyers to play an even greater role, by engaging more actively with new participants in space and therefore advocating for appropriately balanced enabling laws and legislation to allow for the most progressive way forward.

What challenges lie ahead?

Turning to the global considerations, with respect to perhaps two of the most pressing challenges for international space law: the long term sustainability of space; and the potential militarisation/weaponisation of space. That is, the existing terrestrial environmental principles on the one hand, and the laws of armed conflict on the other, whilst relevant, are certainly not adequate or necessarily appropriate to meet the complexities. Both of these considerations require specifically crafted legal rules that, even if they do draw on terrestrial law for some inspiration or comparison, are specifically designed to meet the peculiarities that stem from our legal characterisation of outer space, as well as the complicated non-legal factors that effect and shape the broad range of space activities.

The attempts to deal with these challenges have so far been largely exploratory, generalised, and on a non-binding and voluntary basis. While much has been made of the importance of ‘soft law’ instruments in shaping the face of the space regulatory regime, there are differing views as to whether such an approach serves us well in the longer term, particularly in relation to such important issues in the context of our future uses of outer space and, indeed, in many respects, for the future survival of the human race.

Given our increasing reliance on non-binding international instruments measures for space-related matters, do we run the risk that they will work only until they don’t? Shouldn’t they always be regarded only as interim measures, until traditional international law principles can be agreed and applied? Is this approach feasible, given the multitude of concerns associated with the continued development of space-related weapons technology, and the environmental (and other) risks that they pose?

The increasing use of small, nano and micro satellites may facilitate new space programmes in states that previously could not have contemplated undertaking such activities. By eliminating some significant barriers to entry, small satellite technology may facilitate capacity building, broader collaborative opportunities, and education/training programmes, as well as bridging some technology gaps. It will also open up even more diverse commercial opportunities for a much broader range of industry.

This inevitably represents some significant challenges to space law, generating yet more questions, including:

• What is the impact of this technology for the space ‘market’?

• What forms of legal and regulatory frameworks are necessary to balance the interests of a particular state with the demands of entrepreneurs?

• How will existing space actors react to the potentially new range of participants that this technology will allow for?

• How can specialised lawyers best facilitate the commercial possibilities for their clients offered by low-cost satellites?

• How do we deal with the prospect of so-called ‘mega-constellations’ of small satellites, whose (planned) number will quite quickly dwarf the number of space objects launched since the time of Sputnik 1?

In this regard also, there has developed an important cross-fertilisation of activities in outer space with those in cyber space. It is no surprise that many of the major digital platform companies are now investing significantly towards the expansion of their operations through the use of space technology. This has been referred to as the space ‘GAFTA phenomenon’ (Google, Amazon, Facebook, Twitter, Apple). Again, this poses yet more questions:

• How should the recent interest shown by major digital platform operators be regulated in the space sector?

• Will there be a major convergence between digital content and the space industry?

• How can/should law react to and properly regulate the digitisation of commercial space?

Another challenge stems from the development of aerospace technology and the legal regulation of human aerospace and space flight. Much thought is required about who will take responsibility for the governance structures and legal principles that will be needed and how this will be brought about. In this regard, one will need to examine the scope and legal/regulatory implications of, for example, proposals to (re)define the areas of air space and outer space into distinct zones corresponding to differing uses of space-related and high-altitude technology (drones, balloons, other high-altitude platforms, air travel, aerospace flights, suborbital flights, orbital flights, space stations, permanent human settlements, etc)?

In the area of geopolitics, must we really be required to think of space in terms of that now well-worn mantra, that it is ‘contested, congested and competitive’, or are there other themes towards which future space law should be directed? How can the regulatory framework minimise/mitigate the threat of conflict spilling over from states’ space ambitions? In the end, it is necessary to understand that all states, particularly the major space-faring ones, will suffer if activities in space are undertaken irresponsibly such that certain ‘red lines’ of accepted behaviour are crossed. The implications of this will likely be irreversible.

No overview of the challenges facing space law would be complete without a consideration of the potential for the commercial exploitation of outer space’s natural resources. As is well known, the US Congress passed the Space Resource Exploration and Utilisation Act of 2015. Luxembourg and, more recently, the United Arab Emirates (UAE) have enacted their own national legislative frameworks that encourage and promote space resource exploitation and use.

These national law developments have highlighted important legal issues but also the need for continued multilateral dialogue at the United Nations level.^[2] Areas of discussion would include:

• How will technology ultimately enable this commercial exploitation to take place?

• Is there a potential legal/regulatory model that will adequately support these activities, particularly in light of the uncertainties that some express with respect to the interpretation of the relevant principles of the international treaty regime?

• What additional legal/commercial frameworks will be necessary to facilitate these proposed activities?

These are but a few of the imposing challenges ahead for space law. The ‘spacescape’ is changing rapidly, driven by this bewildering technological maelstrom that, over the last decade, has far surpassed the already rapid evolution in space-related technology that began at the start of the space age. Lawyers must be ready and able to assist in addressing these challenges. This will take time and effort to reach an appropriate level of understanding of space’s unique features.

Overarching considerations: principles of humanity and stewardship

The need for a more comprehensive and detailed legal/regulatory framework for outer space represents one of the most politicised and complex challenges ahead for our and future generations. The opportunity presents for governments, industry, scientists, entrepreneurs and civil society to work together to develop appropriate future legal frameworks that supplement and compliment the robust foundational principles that underpin how space has ‘worked’.

This leads to probably the two most important considerations that arise:

• How should the societal, community and human impacts of our inexorable march into space be measured?

• Why has so little work been carried out so far regarding the human rights aspects of the exploration and use of outer space?

• What legal and regulatory regimes best protect the broader interests of society without unduly restricting the development of appropriate space activities in the future?

• What are the criteria by which we are to determine the priorities as to what constitutes ‘appropriate’ future space activities?

• What role does law play in shaping these choices?

Furthermore, as we develop frameworks to address these legal challenges, we must remain cognisant of the ‘stewardship’ role we, as human beings, have in the way we manage our ongoing relationship with space. Our responsibilities in this regard extend not only to ourselves, but to future generations. It is incumbent on us as an imperative for the future of humanity that we do not repeat some of the mistakes made on Earth that threaten our ability to coexist here into the very long term.

In answering the questions posed above, it is important that, at all times, we are conscious of, and adhere to, the core principles of ‘humanity’ that underpin space law, in order to avoid the possibility of scenarios that do not bear contemplating.

Lawyers will therefore continue to play a crucial role in this regard. They will need to understand the unique features of space and its regulatory requirements, as well as the ideas, knowledge and expertise of all relevant stakeholders. It is an exciting time for lawyers but also one that requires careful consideration of a multitude of relevant issues so as best to advise clients proposing to responsibly engage in the opportunities for humanity that space technology offers.

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