50 Years After the Moon Landing - Space Law is needed
As we celebrate the 50th anniversary of landing on the moon, one thing is certain: the next 50 years will look very different. A new age of space exploration will need to be regulated however. In particular, it will need the rule of law and a system of arms control to thrive.
Already, Jeff Bezos and Elon Musk unveiled their plans for colonizing space, whereas China has increased its research on anti-satellite lasers.
Ultimately, the question of damages caused by space debris on Earth, in the air and in outer space sparks the debate on Space Law. So, 50 years after the Moon Landing, what’s need in Space Law?
At the origins is the Outer Space Treaty. Signed in 1967, the treaty represents the basic legal framework of international space law. Especially, Article II of the treaty 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.”
However, there are many loopholes in this treaty, essentially because it does not mention the commercial exploitation of natural resources available in the outer space. Additionally, the treaty allowed for non-governmental activities under government supervision.
As a result, there is a lot of ambiguity in Space law, for example what is the framework for weapons in space? Access to space? Mining Rights, boundary disputes, space debris, etc. This article engages the discussion on (I) Private Space Flight; and (II) Space Resources Utilization.
I/ Private Space Flight
NASA has announced it will be allowing tourists to visit the International Space Station. But experts warn that space tourism could hurt the environment by damaging our planet’s fragile ozone layer. Meanwhile, you will be able to purchase a seat on a SpaceX capsule for $52 million. At this stage, there seems to be no limit.
In the United States, the creation of the commercial space flight sector can be traced back to the passage of the Commercial Space Launch Act in 1984, which set out guidelines for the acquisition of launch licenses for private rockets. Additionally, it is the Federal Aviation Administration (FAA) today that issued regulations establishing requirements for crew and space flight participants (passengers) involved in private human space flight.
The issue here is whether the federal regulatory framework for space commercial flight should be consolidated? Reorganized? For instance, transferring the FAA’s licensing responsibilities to the Office of the Secretary of Transportation, or just creating a new civil authority for space in either the FAA or the Department of Commerce?
The current framework:
Under the current law, a company licensed by the FAA must purchase insurance covering third-party claims up to $500 million. The federal government then compensates the company for losses between $500 and $3 billion. However, the law covers only suborbital spaceflight, aka travels to a high altitude and then returns to the earth after a short time. How a company chooses to address the lack of regulations for orbital spaceflights is part of their business plan.
The need for action:
In the end, Congress will need to address these issues. The challenge for that process is balancing industry’s need for timeliness and transparency with the government’s need to meet national security and foreign policy objectives.
II/ Space Resources Utilization
Space resources development could produce an new economy, stimulate technological innovations and perhaps contribute to reduce environmental pollution on Earth. However, this too should be regulated. For the moment, there is no international legal framework for use of space resources; it exists only at national level. A specific legal regime for the exploitation of resources should be elaborated, perhaps through the United Nations, on the basis of present international space law.
New markets structures:
The OST Agreement does not exclude exploitation by private entities, as long as they are compatible with “common heritage of mankind” requirements. However, under the treaty ownership of resources is prohibited. This question is the focus of the Hague Space Resources Governance Working Group
The Hague Space Resources Governance Working Group, is studying this topic. In the United States, the Commercial Space Launch Competitiveness Act of 2015 is intended to facilitate commercial exploration and commercial recovery of space resources by US citizen. The Act make it clear, however, that there is no appropriation or ownership, just the right to extract space resources. So we are back at uncertainty.
International Cooperation needed:
International consensus will need to be reached regarding the method and means for sharing the moon and its resources. To this effect, the Committee on the Peaceful Uses of Outer Space (COPUOS) is a good forum and could serve to create the appropriate legal framework. Multilateralism in this sense seems overwhelming required.
To Infinite and Beyond, but first Safety First
At the end, the International Community needs to update the “Space Law”, discussing space-related activities, including space exploration, liability for damage, weapons use, rescue efforts, environmental preservation, information sharing, new technologies, and ethics.
International frictions already exist with regards to space use. The OST will continue to play a critical role. However, the new developments raise the need for international regulatory and policy changes. Among the most significant challenges will be the commercialization of outer space along with a new form of space tourism.
It is to be noted that there should be a balance between the need to reform the existing treaties and the preservation of International Law Principles. Ultimately, the possibility of the lack of general agreement could lead the current framework to fall apart.
So who knows what the future holds? What is certain is that a new generation of lawyer will be needed. Perhaps many of us already dream of becoming Space Lawyers.
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