The future challenges related to space activities: towards a new legal framework?
by Anne-Sophie Martin
|Soft law instruments have become the preferred form of defining and refining norms for space activities. It has many advantages.|
Recently, the General Assembly of the United Nations had adopted a document related to “Further practical measures for the prevention of an arms race in outer space”,4 encouraging all states to contribute actively to the prevent of an arms race in outer space, especially the placement of weapons in outer space, as well as the use of force against space objects, with a view to promoting and strengthening international cooperation in the exploration and use of outer space for peaceful purposes. The UN General Assembly recognizes the role of the Conference on Disarmament to work on an international legally binding instrument on the prevention of an arms race in outer space, including on the prevention of the placement of weapons in outer space. A new Group of Governmental Experts should be established to consider and make recommendations on substantial elements related to this topic.
As space has become more accessible and commercialized, there may be the need for the adaptation of the Outer Space Treaty or an amendment, as it in the case, for instance, for the United Nations Convention on the Law of the Sea (UNCLOS) and its Agreement adopted on July 1994 that explicitly deals with technology transfer, the management of the deep seabed, and resource sharing. Nevertheless, adopting a new binding treaty does not seem the easier and the most convenient approach.5 In fact, the soft law seems to be the best way to respond to the new challenges laid down by space activities.
Signs of soft law are increasingly in the space domain.6 Indeed, soft law instruments have become the preferred form of defining and refining norms for space activities. It has many advantages: it is quicker, it can address also private entities, it is easier to adapt, and it is also very effective through peer pressure and inclusion in national space legislation.7 However, it is also disputed whether soft law is efficient and effective enough for some of today’s most urgent challenges, for instance space debris and military uses.
As space technologies and capabilities reach maturity or are widely deployed, norms may need to be supported by law, both domestic and international. This is true both for emerging undertakings, such as small satellites, large constellations of satellites, satellite servicing, debris mitigation, and the use of space resources on asteroids and large planetary bodies, and for already occurring activities which otherwise may impact space sustainability such as activities that may lead to the creation of debris, radiofrequency interference, and orbital crowding. Space is especially challenging for the development and promulgation of suitable norms.
The current international regulatory regime of space activities does not directly address the problem of long-term sustainability (LTS).8 So far the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) has adopted Space Debris Mitigation Guidelines as the first step of establishing a new regulatory regime of the long-term sustainability in space. At present further work is ongoing under the auspices of the COPUOS within the framework of a dedicated Working Group on the Long-term Sustainability of Outer Space Activities, whose main objectives are to identify areas of concern for LTS, propose measures that could enhance sustainability and elaborate a set of guidelines on LTS addressed to the whole international space community.9
|A new tendency appears to the extent that states will adopt, in the next years, national space legislations in connection with the activities that they will develop.|
Commercial space activities, as a relatively new subject for regulation,10 do not clearly fall under the scope of regulation of the existing space treaties adopted in the 1960s and 1970s. Article VI of the OST only imposes on states parties to the treaty international responsibility for national activities in outer space, and also stipulates that states shall authorize and continuously supervise non-governmental space operations, so appropriate control regimes of private space activities have to be established at the national level.
In this field, several nations are setting up or have implemented national space legislation to regulate their national space activities. Recently, New Zealand has introduced the “Outer Space and High-altitude Activities Bill, 179-1, 2016”.11 Luxembourg has passed a bill giving companies the rights to space resources they extract from asteroids and other celestial bodies.12 Indeed, prospective mining of outer space resources has become a new vector of development of the LTS topic due to the adoption by the United States of a new piece of national legislation, the Commercial Space Launch Competitiveness Act of 2015.13 In this area, The Hague Space Resources Governance Working Group is working on the identification and formulation of building blocks for the governance of space resource activities as a basis for negotiating on an international agreement or non-legally binding instrument.14
A new tendency appears to the extent that states will adopt, in the next years, national space legislations in connection with the activities that they will develop such as suborbital flights,15 space mining or the regulation of nanosatellites16 and mega-constellations.
In the future, in order to develop rational, efficient, and implementable governance systems for outer space that will work well, we ought to consider and determine what activities are best suited for national regulations and international agreements, and which activities are fine under non-obligatory norms. Finally, unlike most of the history of space age, an increasing number of the actors currently in space are not nation-states, so if there is to be a true representation of stakeholders in discussions of best practices, it has to be done in a manner that allows the input of non-state actors. Treaties, by their very definition, are worked out at the state level, while norms are created by all those who are actively working in space, including non-state actors.17