The Exponential Growth of Space Activities: Challenges for Space Law in the Coming Decades – Steven Freeland

On 4 October 1957, a Soviet space object, Sputnik I, was launched and subsequently orbited the earth over 1,400 times during the following three-month period. This milestone heralded the dawn of the space age, the space race (initially between the Soviet Union and the United States), and the legal regulation of the use and exploration of outer space.

Since then, some fundamental international legal principles have developed that significantly improve the standard of living for all humanity through, for example, the facilitation of public services such as satellite telecommunications, global positioning systems, remote sensing technology for weather forecasting and disaster management, and television broadcast from satellites. The prospects for the future use of outer space offer both tremendous opportunities and challenges for humankind, and law at both the international, and also national level, will continue to play a crucial role in this regard.

Space is vital in terms of world economy, strategic thinking, geopolitics, human rights, commercial enterprise, technological innovation, and, frankly, the future of human kind. The impact of our use of space and the increasing range of space activities mean that law does and should have an important role to play in ensuring that such activities are carried out in an appropriate manner, with appropriate outcomes and benefits and for appropriate purposes. Moreover, the avoidance of a ‘tragedy of the commons’ scenario is crucial if humankind is the garner the maximum benefit from what space can offer.

I will briefly outline some of the various challenges ahead for legal regulation in this sphere. I believe that there is an imperative to explore the fundamental design elements of supra-national legal governance for issues of global concern – for example, the impacts of climate change, world poverty, the global commons and international criminal justice – whilst also retaining a grounded view of their significant practical contemporary relevance. This is highlighted, for example, by the interaction between space technology and another area of great relevance to future global/international regulation – that of cyber law and cyber security.

It is, for example, important also to recognise that such issues questions that are increasingly relevant for the regulation of outer space, given the increasing rush towards a ‘digitisation’ of space activities. Just as there have been past lessons for space law in considering the legal regime established for air space so it is important for the future development of space law to understand the complexities – from a jurisdictional, technical, commercial, societal, cultural and security-related perspective – that arise with respect to the regulation of cyber space. There are clear parallels between the two regimes of outer space and cyber space, not only in considerations impacting on the law-making side, but also due to the seemingly endless development of technology that causes the activities of these two realms to become ever more interdependent.

I recently had cause to look at an important collection of essays entitled Outlook on Space Law over the Next 30 Years, published in 1997 on the occasion of the 30th anniversary of the Outer Space Treaty. It is interesting but perhaps not surprising that, barely two-thirds through this ‘next’ 30 year period, virtually all of the ‘possible’/‘maybe’/‘perhaps’ innovations in space canvassed in that book are already a reality or near reality, with some of them now part of mainstream space activities.

Another interesting observation is that – again not surprisingly – the book centers around the Outer Space Treaty and the traditional actors involved in space activities. Whilst, of course, both the treaty and the existing space participants will continue to be very significant in the future regulation of space, it is incumbent on us all to take a ‘holistic’ view of how space inter-relates with every aspect of life and what this means in terms of constructing the most appropriate legal and regulatory frameworks going forward.

Indeed, the dream of space, and the desire of humankind to engage with space in more and more ways, has driven the development of space-related technology far more quickly, and in ways that would not have seemed imaginable even a few years ago. And, as typifies much about the development of legal rules in a sphere driven by technological innovation, space law has not kept pace with the multitude of space activities about which we can now marvel, and therefore increasingly struggles to properly address the vast complexities that specific uses of space give rise to.

The evolution of space activities – and the associated laws that governed those activities – from an era where, initially, only two States dominated the scene, to one where there are a growing number of space-faring States (currently estimated to be around 60-70), coupled with the exponential growth of commercial opportunities, which has seen primarily large and well-funded companies invest heavily in space technology, with a view to reaping significant economic returns.

Much has been written about this trend towards the commercialisation and privatisation of space, and the increasingly important role that non-governmental actors play, not only to serve the needs and demands of civil and commercial end users, but also those of States and even military customers. These trends will, if anything, continue on an increasing scale given the trend towards the ‘democratisation’ of space as new actors emerge due to developing technology, presenting considerable additional challenges to the ‘global commons’ legal characterisation of space that stems from the fundamental roots of space law.

Innovations such as nano/small satellite technology and human aerospace flight will, ultimately, bring space to more people in a tangible way – through direct participation and entrepreneurship. I think this is very important since, sadly, those involved in the space regulatory ‘industry’ have not ‘sold’ the idea of space, and its significance to the general public, very effectively at all.

It seems to me quite extraordinary in this day and age that one great challenge ahead for space law is to get people to actually take it seriously. Those of us who have discussed with our respective governments the need to establish rational, practical and appropriate legal and regulatory frameworks for the development of a viable space industry at the national level have in the past sometimes been met with counter-arguments stemming from inertia and conservatism, financial concerns, differing priorities and, unfortunately, a lack of understanding.

This situation has now changed quite markedly in many countries, and the truth of the matter is that space is, of course, very real and not something to be derided, but rather something that is vital for the very future of our life here on Earth. No country can afford to fall behind its friends and neighbours in relation to important aspects of space development.

Indeed, we are standing at the dawn of a new era in space activities – which will require very considerable thought as to exactly how to adapt, and adopt, appropriate legal frameworks that are able to strike the most appropriate balance between sometimes competing interests. There is an urgent need to comprehensively assess these challenges and to develop and design the structure and content of these frameworks. In order to be relevant, innovative and sufficiently ‘forward-thinking’ to properly advance the field of space law, the development of these frameworks to meet the challenges of the 21st century must incorporate a comprehensive approach, breaking down the ‘silo’ mentality that has traditionally characterised not only existing legal research, but also the current space ‘law-making’ and regulatory processes. In essence, the challenge – indeed the imperative – is to develop legal and regulatory frameworks to properly address the demands and inevitability of technological innovation and an increasingly globalised and connected world, not the other way around.

This represents an enticing opportunity for space lawyers to play an even greater role in the context of the ‘NewSpace’ phenomenon, by engaging more actively with new participants in space and therefore advocating for appropriately balanced ‘enabling’ laws and legislation to allow for the best path forward. It is not the time for detached and overly academic law-making – rather the future space law regimes must be closely integrated with, and aligned to, the sheer breadth of influence and impact that space technology does and will assume.

There are other examples of legal challenges ahead for space law. In order to systematically approach these challenges, we must first understand the issues that they give rise to – only then are we in a position to construct, through a cooperative and multidisciplinary approach, the laws and standards that will allow humankind to maximise the benefits to be garnered from the exploration and use of outer space. The position is so fast-moving and fluid – given the speed at which innovation and technology develop – that it is neither possible nor appropriate to any longer attempt to rely exclusively on the traditional principles – as important as they will remain – that are to be found in the United Nations space law treaties.

Nor can we then rely on a simple ‘copy/paste’ transposition of terrestrial international law principles to somehow fill the gaps in the extra-terrestrial regulation of activities that are clearly beyond the contemplation of the original drafters of the treaties. I listen with interest to commentators who latch on to article III of the Outer Space Treaty [1] – which, as we all know, provides that activities in outer space shall be carried out in accordance with international law – and then make a quantum leap to their ‘eureka’ moment, to postulate that laws that were developed on Earth for terrestrial activities can somehow magically fit into the unique environment that is outer space. This is a seductive conclusion, but far too simplistic to adequately meet the realities. Square pegs do not seamlessly fit into round holes.

Indeed, with respect to two of the most pressing challenges for space law – the long-term sustainability of space, and the potential militarisation/weaponisation of space – the existing terrestrial environmental principles on the one hand, and the laws of armed conflicton the other, whilst relevant, are certainly not adequate to fully meet the complexities that these issues present. Both of these pressing questions 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 complex non-legal factors that impact and shape the broad range of space activities and the uniqueness of space itself.

The attempts to deal with these challenges thus far have largely been exploratory, generalised, and on a non-binding and voluntary basis. Whilst much has been made of the importance of soft law instruments in shaping the face of the space regulatory regime, I have some reservations 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.

Indeed, notwithstanding the legal ‘value’ that some such instruments may have, at their core they are merely guidelines or recommendations that do not necessarily have the force of law, unless they are to be regarded as reflecting rules of customary international law, itself a very difficult assertion to substantiate in the absence of, say, a finding to that effect by the International Court of Justice.

Given our increasing reliance on such non-binding measures in a whole range of 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? And, indeed, 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?

Ideally, binding treaty norms should be negotiated, to be adhered to in good faith by all relevant States. Of course, in the absence of a change of approach between, in particular, the major space powers, treaty rules are unlikely to come to fruition in respect of these issues in the short and perhaps medium term. This represents a major challenge ahead for all who understand the role of law in facilitating the peaceful and sustainable uses of outer space in the future. But it is a goal towards which we must all strive – the fact that we do not have such a treaty regime as yet does not mean it cannot happen.

I have already made reference to the increasing use of small, nano and micro satellites. This technology may represent an important precursor to the establishment of indigenous and independent space programs 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 programs, as well as bridging (some) technology gaps for hitherto non-space faring States. It will also open up even more diverse commercial opportunities for a much broader range of potential service providers.

I liken the potential of small satellites for space activities to the way that mobile phones have revolutionised terrestrial communications activities. We simply do not know where this technology might ultimately lead and what it will allow us to do. However, we can confidently expect that it will open the door to an even more expansive array of commercial opportunities.

This inevitably represents a challenge to space law. For example, 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? Should the governing legal regime encourage or discourage this evolution towards a multitude of space actors? What role does/should law have in facilitating the commercial possibilities offered by low-cost satellites?

I also mentioned earlier the cross-fertilisation of activities in outer space with those in cyber space – sometimes referred to as the ‘GAFTA phenomenon’ (Google, Amazon, Facebook, Twitter, Apple). 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 this rush towards the digitisation of commercial space?

Another challenge that arises is the development of aerospace technology and the legal regulation of human aerospace and space flight. Much discussion is required about the future legal regulation of these activities and, equally importantly, about who would take responsibility – and how – for the governance structures that will be needed. 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, air travel, aerospace flights, suborbital flights, orbital flights, space stations, permanent human settlements etc)?

In the area of geo-politics, strategic space, and transparency and confidence building measures (TCBMs), 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 is there another theme towards which future space law should direct itself? How can the regulatory framework minimise/mitigate the threat of conflict involving the space ambitions of States and/or the commercial sector?

And, of course, no overview of the challenges facing space law would be complete without a consideration of the potential for the commercial exploitation of the natural resources of outer space. As is well known, the United States Congress passed the Space Resource Exploration and Utilization Act of 2015. This raises some thorny legal issues, [2] but has also brought to the forefront intense geopolitical disagreement at the United Nations discussion level. Even putting those aside, 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 misgivings surrounding the existing treaty regime?

These are but a few of the imposing challenges ahead for space law. The existing regime has largely served us well and, in certain respects, has been remarkably successful. But the ‘spacescape’ is changing very quickly, driven by this bewildering technological maelstrom that, over the last five years or so (and certainly for the next period of time), has far surpassed the already rapid evolution in space-related technology that began at the time I was born.

We thus find ourselves in interesting times. 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. All stakeholders need to work together to find a path forward, in order to meet the challenges. The existing international regulatory framework, whilst important, cannot alone stand up to the strains that the ever-increasing range of space activities – and the possibilities that still lie before us – impose. The opportunity presents for governments, industry, scientists, entrepreneurs and civil society to work together to develop appropriate future legal frameworks.

This leads to probably the most important question I can offer. How should the societal, community and human impacts of our inexorable march into space be measured? Why has there been so little work done so far as regards 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? And, indeed, 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 fashioning these choices?

In answering these questions, 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 perhaps do not bear contemplation. In the end, the principle of humanity must be the bedrock of all global legal regimes, including the regulation of the exploration and use of outer space.

In this regard, law will therefore continue to play a crucial role. But lawyers certainly cannot do this on their own. They simply do not have the tools to do so. All relevant stakeholders must exchange ideas, knowledge and expertise, and understand how each can contribute to an appropriate future where space continues to play a vital role in the activities of humankind. In the end, these discussions will be the most important way in which all of the exciting innovations and developments that we all dream about can best be advanced.

Steven Freeland is the Dean of the School of Law and Professor of International Law at Western Sydney University, Australia.

[1] Article III of the Outer Space Treaty provides as follows:

‘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 co-operation and understanding.’

[2] Steven Freeland, ‘Common Heritage, Not Common Law: How International Law Will Regulate Proposals to Exploit Space Resources’ (2017) 35 QIL 19-33