Public International Law of Outer Space – its Extensions & its Limitations

Introduction

The exploration of the outer space contributed to the accelerated development of science and open new horizons for the expansion of the mankind. The mankind has overcome boundaries of the Earth and explored the outer space. At the same time, the exploration of the outer space raised the problem of the legal regulations and introduction of international laws that rule the exploration of the outer space and activities of governments and private sector companies in the outer space. In this regard, it is worth mentioning the fact that historically the exploration of the outer space was driven by military goals and aspirations of the major world powers, such as the US and the USSR. The military activities in the outer space contributed to the scientific progress but also raised the problem of the necessity of regulating human activities and operations in the outer space. The further development of science and the commercialization of outer space operations and activities raised new problems and challenges, such as pollution and the necessity of space traffic management. In such a way, the exploration of the outer space raised the problem of the lack of international legislation. In response to the  new challenge, the new international legislation emerged which intended to regulate basic principles of exploration and operations of the outer space, but even today the international law and regulations are insufficient for the effective regulation of international relations in the outer space. Therefore, the international law needs the further development today to enhance regulations concerning the exploration of the outer space, the use of the outer space for the military and civil purposes, commercial use of outer space, and space traffic management as well as other issues that need the effective regulation and clear rules at the international level.

Background and essence of the public international law of outer space

The major difficulty of the regulation of the space exploration and the development of the outer space activities of leading countries was the lack of any control over the outer space and the presence of humans in the outer space. In this regard, the outer space was similar in a way to the exploration of the New World by Europeans, when there were no legal entities capable to regulate and set control over activities of settlers in the New World. Similarly, the exploration of the outer space and human activities in the space raised the problem of the lack of any legal entities and tools of the effective control over the outer space activities and programs conducted by leading nations capable to explore the outer space. At the dawn of the outer space exploration era, the major legal problem was the rivalry between the US and the USSR which attempted to take advantage of their outer space programs to use them in their military operations and strategies.

The development of the international law involved the regulation of military threats and regulations of the military use of the outer space. This is why the basis of international law governing space is the 1967 Outer Space Treaty, established out of Cold War fears that the United States or the Soviet Union would launch nuclear weapons from space (Riederer, 2014). The treaty implied the regulation of military activities of the US and the USSR. The treaty set boundaries on their military activities and regulated basic rules and principles of using the outer space. The treaty laid the foundation to the development of the further international laws regulating international relations.

However, the further progress of the exploration of the outer space opened new opportunities and stimulated the development of commercial activities that encouraged the intensive use of the outer space not only by governments but also by companies for commercial purposes. Today, the outer space is one of the most globalized of all arenas of human activity. There are some 845 working satellites, owned or operated by 41 nations, as well as a number of others working in consortiums with each other or with industry partners (Hitchens, 2007). Therefore, the outer space exploration contributed to the development of multiple industries. Started as the military oriented, the outer space exploration turned into the highly profitable business which is currently controlled by a few multinational corporations. The development of the international business contributed to the emergence of new challenges and new needs of the international law regulation and control. At the moment, the international law is not fully prepared for the active commercialization of the outer space and raises the problem of the introduction of new regulations and rules that regulate the use of the outer space by companies and governments.

In addition, the active exploration of the outer space involve new issues such as the need of the international regulation of space traffic management or the problem of the pollution of the outer space because of human activities in the outer space. These issues emerge under the impact of the commercialization and intensive exploration and use of the outer space. The increase of human activities make the enhancement of the international law concerning the outer space the objective necessity, while any delays or the lack of regulations can lead to negative consequences of the further exploration and use of the outer space.

In this regard, the future security of space faces several major issues faring nations and international institutions that require some form of collective response. These pressing issues include preventing a buildup of dangerous space debris that could cripple future space operations; establishing “rules of the road” for peacetime space operations; and handling the emerging threat of weaponry in space (Hitchens, 2007). Therefore, the development of the outer space raises three main issues military issues, pollution, and peacetime space operations, including traffic regulations and basic rules of using the outer space and activities of people in the outer space.

Weapon and military use of the outer space

The development of the international relations in the field of the outer space emerged as the result of the military rivalry in the first turn. The rivalry between the US and the USSR involved the military competition. The use of the outer space to reach military purposes required the development of the international legislation to set the legal framework for the use of the outer space by leading nations and super powers. The military use was always one of the main objectives of the exploration of the outer space and the international law aimed at the fair rules and clear regulations that could prevent the escalation of the military conflict that involve the use of the outer space. This is why the 1967 Outer Space Treaty was the first major international agreement on the outer space that set tone and created the framework for further international agreements between leading nations with regard to the use of the outer space.

The UN collective security system and the customary right of self-defense govern the use of force or jus ad bellum. The means and methods through which self-defense is exercised are in turn governed by international humanitarian law (Bourboniere & Lee, 2007). This principle is fundamental for the regulation of the outer space law and regulations concerning the use of force and military operations that involve the use of the outer space (Stroud 2002). The principle of using force in self-defense implies that nations cannot use force to assault other nations. This principle is fundamental but it was traditionally applied to the onland operations and military activities, while the outer space international law required further development and use of effective  legislation that can help to address burning issues and the key problems that refer to the use of the outer space by the military (Shirtliff 2008). Initially the problem of the international law concerning the military use of the outer space and the use of weapon in the outer space was the lack of the application of principles that were applied to military conflicts and use of force on the Earth.

In regard to the conventional international humanitarian law concerning war and military conflicts, the question concerning the international outer space law that begs is whether space should  be weaponized the basing of these weapons and their use will be subject not only to international space law but also to the UN Charter and to international humanitarian law (Bourboniere & Lee, 2007). The inclusion of the outer space into the jurisdiction of the UN Charter and international humanitarian law allowed expanding the humanitarian law to the outer space that helps to make the weapon and military-related international legislation homogeneous. Nevertheless, even such changes leave room for controversies because the outer space is different from the conventional weapon and military-related issues on the Earth. The development of the international legislation should continue since today new players may intervene and use outer space for military purposes. Today, it is not only the major nations that have access to space technologies but also minor states, including outcast states. Moreover, terrorist organizations may also get access to technologies that may involve the use of weapon in the outer space. These new issues emerge but the international legislation is still unprepared to address those issues adequately.

Economy

Economy is the major driver of the development of the outer space-related industries. The use of the outer space is commercially attractive and many companies attempt to use the outer space to get access to new markets and offer new products and services, but, at the moment, there are just a few large multinational corporations that have control over outer space industry. The worldwide satellite industry alone produced $88.8 billion in revenue in 2005 (Hitchens, 2007). On the other hand, there are only five multinational companies providing the bulk of commercial satellite communications to global users (Hitchens, 2007). Therefore, the satellite industry is under the control of five multinational companies which hold the lion share of the satellite market. Other industries related to the outer space manifest similar trends. The dominance of a few large multinational companies over the outer space-related industries is the result of the specificity and nature of those industries. Outer space industries are highly technological. They need substantial financial and human resources. They also need advanced technologies. Such resources and technologies are not available to small companies. Instead, they are affordable for large multinational companies only. In addition, as the outer space industry emerged as military-driven industry, it was large companies that became government contractors to participate in outer space programs. As a result, they took the lead in the outer space industry and now they dominate outer space-related industries.

Technologies and economy play the determinant part in the development of the contemporary outer space industry along with the impact of policies conducted by leaders of the outer space industry. “Technological and geopolitical forces shape space law as well as economics” (Dysart, 2013). Today, economy is the major driver of the development of outer space industries but they also need the use of advanced technologies. This is why outer space industries need substantial costs and even multinational companies experience difficulties with funding their projects. This is why the government support is important and government contracts comprise a large part of contracts of companies operating in outer space industries. Nevertheless, as technologies keep progressing, they become more and more available to companies and customers. For example, the development of the space tourism is one of the new trends in the development of outer space industry and such industries open great prospects because they can bring considerable profits to companies that operate in those industries (Freeland 2002).

Outer space offers new economic opportunities which companies on the Earth still have to explore in the future. On the lunar surface, there is helium-3, an isotope than many believe could be a revolutionary fuel source; the far side of the moon, facing away from Earth, is the most radio-quiet place in the inner solar system, making it a gold mine for astronomers (Riederer, 2014). Therefore, outer space may offer resources which are not available on the Earth. Moreover, the Earth has scarce natural resources and steadily runs out of strategically important resources, like oil. This is why outer space may become a great alternative and the target for the further exploration for companies from the Earth. However, the further exploration and use of the outer space requires the legal regulations which are under-developed at the moment. To put it more precisely, existing legislation does not regulate many issues that are likely to emerge in the future, such as the excavation of natural resources on the Moon or other use of natural resources in the outer space. Many commercial projects may emerge concerning the use of the outer space in the future but they are not regulated by the international law at the moment.

Pollution of the outer space

The pollution of the outer space is one of the major challenges to the further exploration of the outer space and flights of humans to the outer space. The collision of a U.S. commercial satellite and a Russian military satellite in 2009 eloquently demonstrated, a crash between two objects can easily generate thousands more pieces of space debris (Yatsu, 2017). The increased frequency of flights and the amount of space debris create new challenges which require legal regulations at the international level. Today, countries and companies send satellites and other objects into the outer space which ultimately end up as the space debris. There are no specific international laws and regulations that could control or limit the space debris which create threats to the outer space exploration because launches from the Earth become more and more difficult and risks of crashes because of the space debris increase drastically. The accelerated development of outer space industries and the rapid commercialization of the outer space lead to the drastic increase of the space debris. 

The space debris management can be an area for countries like Japan, the US or the EU to technologically and politically lead related discussions on the world stage (Yatsu, 2017). At this point, multinational companies may also get involved into the space debris management, because they have technologies that can help to decrease debris or make debris safer for the environment and future flights of people to the outer space. However, the lack of the clear international legislation that regulates the space debris management raises the problem of the poor control over space debris and the poor space debris management. As a result, the space debris keeps growing, while governments and companies do next to nothing to address the problem of the space debris.

As the problem of the space debris needs to be solved to continue expanding human activities in space, taking a leadership role in active debris removal (ADR) will eventually help the nation that takes the lead in this field to improve its presence in the fields of space development and diplomacy, as well as in the broader security realm (Yatsu, 2017). At the moment, leading nations and governments are discouraged to develop their space debris management programs because there is no legal ground for such activities. If there were clear legal rules and norms that regulate the space debris management and related activities, many countries could use their full potential to address the problem. Moreover, multinational corporations could also take the lead in the field of the space debris management as well, if they had clear rules of the game and certainty that their activities will be legal in the future and they will be able to develop their space debris business in a long run.

Space traffic management

The space traffic management is a relatively new problem that emerged by the end of the 20th century, when the space traffic increased substantially and the regulation of the space traffic became essential. In response to the new problem, national governments attempted to elaborate basic regulations and rules that could help to facilitate and enhance the space traffic management. The most comprehensive frameworks for traffic management are laid out in a 2001 study by the American Institute of Aeronautics and Astronautics (AIAA) and also in another study by the International Academy of Astronautics (IAA), “Cosmic Study on Space Traffic Management,” published in early 2006 (Hitchens, 2007).

However, the problem of clear and homogeneous regulations of the space traffic management still persists. The AIAA study laments the lack of rules for orbital insertion and maneuver, and defines several categories of potential traffic management rules, including “right of way rules” for satellite maneuver; “zoning rules” that would prohibit certain activities in certain orbits; and “communications rules” governing notifications (Hitchens, 2007). The problem of the lack of clear regulations threatens to the safety of flights and puts under a question the safety of outer space exploration because traffic grows denser and regulations are essential as the case of the aforementioned collision of a U.S. commercial satellite and a Russian military satellite in 2009 proves. Such accidents may occur not only because of the space debris but also because of the poor space traffic management.

The creation of international space traffic management rules and regulations is essential. The IAA framework would include a regime for provision of orbital data; a notification system including pre-launch and maneuver notifications; “zoning” and “right of way” rules for maneuvering; safety provisions for launches, human spaceflight including tourism, and re-entries; debris mitigation and environmental pollution measures; and liability laws (Hitchens, 2007). These safety provisions are helpful but they are not enough. Moreover, to make those safety provisions viable, they have to be implemented and adopted by all players of the outer space market. This means that these regulations have to become common to set at least basic rules and regulations to manage space traffic safely.

The lack of the regulatory body that can control the space traffic at the international level makes any efforts to elaborate regulations and rules for the development of the space traffic management. Neither COPUOS nor the ITU have any enforcement powers, and nations have not (as evidenced by the debris mitigation negotiations) been gung-ho on subjecting themselves to new international laws in space (Hitchens, 2007). Perhaps a first step could be for the individual nations to adopt national regulatory and licensing requirements that establish agreed voluntary rules as national law-an approach suggested by AIAA (Hitchens, 2007). Alternative, or perhaps follow-up, approaches might be the creation of a new UN body under COPUOS or the UN Office of Outer Space Affairs, which would be given both management responsibilities and powers of enforcement, such as license withdrawal or economic penalties (Hitchens, 2007). Therefore, the space traffic management should involve the development of the international control from the part of the UN or other international body that can regulate the space traffic. Such international control is essential to make the space traffic safe and effective.

Conclusion

Thus, the development of the contemporary science, technology and economy involves the accelerated development of outer space-related industries which pose numerous challenges for the international law. The major problem of the outer space exploration and use is the lack of international law and regulations that can address the major issues associated with the use of the outer space, including military and weapon issues, commercial use of the outer space, pollution of the outer space with space debris, space traffic and other issues. The international law also has to foresee and address new emerging issues, such as the possibility of using natural resources of the outer space. At the moment, there are substantial gaps which have to be eliminated to make the use of the outer space safe and effective.

Works Cited:

Bourbonnière, M., & Lee, R. J. Legality of the deployment of conventional weapons in earth orbit: Balancing space law and the law of armed conflict.European Journal of International Law, 18(5), 2007, 873-901. doi:http://dx.doi.org.molloy.idm.oclc.org/10.1093/ejil/chm051 

Dysart, J. (2013, 02). Sky’s the limit. ABA Journal, 99, 19-20. Retrieved from http://molloy.idm.oclc.org/login?url=https://search-proquest-com.molloy.idm.oclc.org/docview/1287027707?accountid=28076

Freeland, Steven. “FLY ME TO THE MOON: HOW WILL INTERNATIONAL LAW COPE WITH COMMERCIAL SPACE TOURISM?” Melbourne Journal of International Law 11.1 (2010): 90-118. ProQuest. Web. 17 Nov. 2018.

Hearsey, C. M. The evolution of outer space law: An economic analysis of rule formation (Order No. 10003525). Available from ProQuest Dissertations & Theses Global, 2015. (1760170276). Retrieved from http://molloy.idm.oclc.org/login?url=https://search-proquest-com.molloy.idm.oclc.org/docview/1760170276?accountid=28076

Hitchens, T. Debris, traffic management, and weaponization: Opportunities for and challenges to cooperation in space. The Brown Journal of World Affairs, 14, 2007, 173-186. Retrieved from http://molloy.idm.oclc.org/login?url=https://search-proquest-com.molloy.idm.oclc.org/docview/219571735?accountid=28076

Riederer, R. Whose moon is it anyway? Dissent, 61, 2014, 7-10. Retrieved from http://molloy.idm.oclc.org/login?url=https://search-proquest-com.molloy.idm.oclc.org/docview/1561634671?accountid=28076

Shirtliff, R. Twilight war: The folly of U.S. space dominance. Peace Magazine, 24, 2008, 27-30. Retrieved from http://molloy.idm.oclc.org/login?url=https://search-proquest-com.molloy.idm.oclc.org/docview/213764473?accountid=28076

Stroud, Joel. “Space Law Provides Insights on how the Existing Liability Framework Responds to Damages Caused by Artificial Outer Space Objects.” Real Property, Probate and Trust Journal 37.2 (2002): 363-83. ProQuest. Web. 17 Nov. 2018.

Yatsu, M. Can Japan clean up outer space? The Diplomat, 2017. Retrieved from http://molloy.idm.oclc.org/login?url=https://search-proquest-com.molloy.idm.oclc.org/docview/1966412486?accountid=28076

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