Space Law

Space law consists of treaties, agreements, and regulations such as the Outer Space Treaty, the whole Moon Treaty, and the Patents in Space Act, to give prominent examples. Much of it is designed to regulate the militarization (i.e., weaponization and nuclearization) of space, with debates existing over whether, for example, the nuclear explosion used to propel a spacecraft is a weapon or not. Another growing area involves space tourism, private ventures, and commercialization of space, where the guiding legal principles appear to be informed consent and assumption of risk. However, the general thrust of space law is oriented toward the same directions as environmental law, in that the peaceful uses of outer space are seen as being of parallel importance to issues such as ozone depletion, climate change, and biological diversity. These two specialty areas of law are closely related for a number of reasons because control of space (and/or environment) not only brings the potential of absolute power, but has civil rights implications (privacy vis-a-vis satellite monitoring, for example).

There are further and somewhat questionable aspects to space law which involve such things as space war (the stuff of science fiction) and what happens when first contact is made with extraterrestrials. Additionally, there are unknown political dynamics about what will happen if and when any of the attempting countries (China, Brazil, Japan, Nigeria, Russia, USA) gets a colony to the moon or another planet first, which is to say, colonization of space is an important issue. The country of China has already gone on record saying they will not surrender any of their developed lunar resources to any international authority. Back when it was just the USA and the Soviets dominating the space race, things were simple, but space law always held a great deal of technological and intellectual fascination. Now that the topic has some psychological momentum, it is on the verge of becoming something that really matters.

As early as 1957, the United Nations addressed the issue of peaceful uses of outer space in the form of the UN Committee on the Peaceful Uses of Outer Space. This organization, more than any other, has shaped the norms and laws governing development of international space law. Next in order of importance is the Limited Nuclear Test Ban Treaty of 1963 (also called the Partial Test Ban Treaty) signed in Moscow by the US, Russia, and Great Britain. It prohibits all nuclear testing in the atmosphere, outer space, and underwater (underground testing is only allowed). Another important treaty in this regard is the 1967 Outer Space Treaty which forbids putting weapons of mass destruction in earth's orbit or on celestial bodies. In addition, states are not allowed to establish military stations or conduct military maneuvers on the moon or other planetary objects. The treaty does not cover the transit of nuclear weapons, the placement of conventional weapons, nor the launch of nuclear weapons into space. Apart from the Outer Space Treaty, there has only been one other legal instrument concerning weapons in space -- the Anti-Ballistic Missile (ABM) Treaty between the U.S. and the Soviet Union. However, in December 2001, President Bush announced U.S. withdrawal from this treaty.

In parallel to the UN problem with defining terrorism, none of the UN documents, including the Outer Space Treaty, really define what "peaceful use" means. Most interpreters believe that the term "peaceful" means "non-militarized" or "non-aggressive," but again, the problem (like with terrorism) lies in defining "aggressive" and "non-aggressive." There is no bright line in space law between militarized and peaceful use. It remains an area where states are hesitant to relinquish national interest, and efforts by the UN to spark cooperation, as with UN conferences on disarmament, are continually deadlocked.

In terms of actual weapons, the devices of most concern are anti-satellite (ASAT) weapons and ballistic missiles. ASATs are weapons designed to intercept missiles during their mid-course trajectory through space, and ballistic missiles are weapons designed to intercept intercontinental ballistic missiles (ICBMs) while they are on their trajectory through space. In some quarters, there is additional concern about satellite devices which are believed capable of preemptively executing combat operations on their own, but much of this is paranoia over the way the U.S. uses predator drones and satellite-enhance precision targeting. In 2007, China conducted its first ASAT test, shooting down one of their own satellites and joining the U.S. and Russia as the only countries with ASAT weapons. ASAT tests themselves are controversial because they result in a lot of space debris, which is potentially more harmful to Earth than letting the satellites fall on their own. Ballistic missiles are controversial mostly due to Cold War-like debates over U.S. and NATO efforts to station missile defense systems in the Czech Republic, Poland, and elsewhere. Russia, China, and the EU (noting that the European Space Agency has made enormous strides in recent years) have proposed multilateral agreements to prevent an arms race, but for its part, American officials have gone on record (Space Commission 2001) stating the U.S. must avoid a "space Pearl Harbor" and has pretty much taken the position that American dominance of space would lead to greater international security. This policy position is evident from the following sample of U.S. National Space Policy (Unclassified, supersedes PDD/NSC-49/NSTC-8):

Excerpts from Official U.S. National Space Policy

US leadership in space exploration has improved life around the world and enhanced security. Freedom of action in space is as important to the US as air and sea power. In order to increase knowledge, discovery, economic prosperity, and national security, the US must have robust, effective, and efficient space capabilities. The US believes “peaceful purposes” include defense and intelligence-related activities in pursuit of national interests. The US rejects any claims to sovereignty by any nation over outer space or celestial bodies. The US views purposeful interference with its space systems as an infringement on its rights ... and will take whatever actions necessary to protect its space capabilities, respond to interference, and deny, if necessary, adversaries the use of space capabilities hostile to US national interests.

REGULATION OF SPACE TRAVEL

Space tourism is on the verge of becoming a new industry and the best source of information on that subject is the Japanese Rocket Society's research on the Kankoh-maru (VTOL - Vertical Takeoff and Landing) rocket manufactured by Kawasaki. Additionally, the founder/billionaire head of Amazon has developed the Blue Origin spacecraft at a facility near Seattle. Further, billionaire Sir Richard Branson (of Virgin Group) has developed a spaceship called the Galactic and as of 2009 is booking seats. Clearly, space tourism is going to commercialize and there's no stopping it. The question then becomes if newer laws and regulations are needed or if the old models of civil aviation are sufficient.

Most of space law has been written by governments, and for governments. No one ever thought about what would be needed if the private sector got involved. That is, until around 1997 when lobby groups like ProSpace (and others) helped get the Commercial Space Act of 1998 passed thru Congress. This legislation allows not only commercial travel but the development of Space Solar Power (SSP), consisting of geosynchronous satellites that beam microwave energy transmissions back to earth. Quite possibly regulation is needed to control risk, but an energy crisis could jump start SSP into an unregulated environment. Energy independence is a long way off. The thing most likely to happen first is sub-orbital cargo transport, which gets shipments from point A to point B in record time. Look for UPS or FedEx to get into the space business by at least the year 2015.

The simplest way to regulate space might be to simply extend traditional aviation rules. Agencies like the FAA might have to create a new Aerospace Traffic Control system, but the principles and procedures could be similar. A problem exists, nonetheless, in the fact that outer space traffic routes are not easily mapped but change positions continuously relative to the Earth's surface. Agencies like NASA or the Coast Guard may have to create new Search and Rescue units because someone has to be available for aid and assistance in the event of commercial vehicle failure. Inspection services would most likely have to be created to check on manufacture quality, vehicle certification and registration, design and instrumentation standards, and passenger safety (space radiation and debris being of utmost concern). Noise levels at launch and landing sites may also be of concern to neighboring residents. Also, like with regular air travel, passengers in space will certainly need insurance, but insurance companies may not be able to adequately assess liability, so some sort of government-imposed cap on liability (as with the Warsaw Convention for regular air travel) may be needed.

Additional issues arise if space hotels (or orbiting premises) are created. There is no real estate in space, but it is supposed that any dwelling or domicile capable of sustaining autonomous life support might qualify as "housing." Land on the moon or other planets definitely qualifies as real estate. The problem is that the 1967 UN Outer Space Treaty seems to imply that no private ownership of empty space can occur. This is not to say that private ownership of a parcel of space is prohibited because several governments and individuals have long disputed the UN's position on the matter. As far as real estate on the moon goes, scam artists have been selling bogus property deeds since 1936, but the 1984 Moon Treaty very specifically prohibits any private ownership of land on the moon. The Moon Treaty is a failed treaty, however, since several nations have not ratified it and several major space-faring nations have not even signed it. Humans have already made manned landings on the moon, and in 2009, NASA announced the discovery of proof that water exists there. For its part, the US has committed to going back there by the year 2018. India and Japan hope to get there first. The literature on colonization of the moon is quite extensive.

PRINTED RESOURCES
Eckart, P. (2006). The lunar base handbook, 2e. NY: McGraw Hill.
Hui, Z. (2006). Space weaponization and space security: The Chinese perspective. Geneva: ISN Publishing House.
Reynolds, G. & Merges, R. (1998). Outer space: Problems of law and policy, 2e. Boulder, CO: Westview.
Space Commission. (2001). Report of the Commission to Assess United States National Security Space Management and Organization. Washington DC: US GPO.
US Army (1959). Project Horizon: A study for establishment of a lunar military outpost. Redstone Arsenal, AL: US Army.
Wolff, J., Hitchens, T., Nardon, L., Hagen, R., Scheffran, J., Johnson, R., Paris, J., Mott, M., Williams, R. and Adeniji, O. (2003). Making space for security. Geneva: ISN Publishing House.

Last updated: Dec 20, 2009
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