Space Law

The Austrian Outer Space Act, which entered into force in December 2011, and the Austrian Outer Space Regulation, which has been in force since February 2015, form the legal framework for Austrian national space activities. The elaboration of this national space legislation became necessary when the first two Austrian satellites were developed, to ensure compliance with Austria’s obligations as State Party to the five United Nations space treaties. The legislation comprehensively regulates legal aspects related to space activities, including the authorization, supervision, and termination of space activities; the registration of space objects; insurance requirements; and possibilities for recourse of the government against the operator. One of the main purposes of the law is to ensure the authorization of national space activities. The Outer Space Act sets forth the conditions for authorization, which, inter alia, refer to the expertise of the operator, requirements for orbital positions and frequency assignments, space debris mitigation, insurance requirements, and the safeguard of public order, public health, and national security, as well as of Austrian foreign policy interests and international law obligations. The Austrian Outer Space Regulation complements these provisions by specifying the documents the operator must submit as evidence of the fulfillment of the authorization conditions, which include the results of safety tests, emergency plans, and information on the collection and use of Earth observation data. Particular importance is attached to the mitigation of space debris. Operators are required to take measures in accordance with international space debris mitigation guidelines for the avoidance of operational debris, the prevention of on-orbit breakups and collisions, and the removal of space objects from Earth orbit after the end of the mission. Another specificity of the Austrian space legislation is the possibility of an exemption from the insurance requirement or a reduction of the insurance sum if the space activity is in the public interest. This allows the support of space activities that serve science, research, and education. Moreover, the law also provides for the establishment of a national registry for objects launched into outer space by the competent Austrian ministry.

The article provides an overview of the Brazilian legal framework for space-related activities, highlighting the main legal instruments and their most relevant provisions. Domestic regulatory initiatives are appraised and contextualized through the review of specific provisions and legal instruments. The Brazilian space program’s normative structure is acknowledged, considering national space policy and applicable legislation. Brazil regulates national space activities through a myriad of regulations and edicts, forming a broad—although fragmented—body of rules. Considered an emerging space power, Brazil has a long-standing and ambitious space program, involving artificial satellites, launch centers, and the eventual development of a national launch vehicle. However, a domestic, general space law, as required by the Federal Constitution of 1988, still awaits to be enacted. The latest developments at the Brazilian Space Agency indicate that it might not be too long for such a federal law to materialize. The importance of a national space law for the implementation of international obligations as well as to ensure legal certainty for governmental and non-governmental national space activities is increasingly realized by space-faring nations. The Brazilian space legal framework represents a relevant case study toward the identification of appropriate legal mechanisms for the regulation of national space activities, taking into account international principles and local perspectives.

Throughout the history of human activity in outer space, the role of private companies has steadily grown, and, in some cases, companies have even replaced government agencies as the primary actors in space. As private space activity has grown and diversified, the laws and regulations that govern private actors have been forced to evolve in reaction to the new realities of the industry. On the international level, the treaties concluded in the 1960s and 1970s continue to be in force today. However, these treaties only govern state activity in space. The rules regulating private industry are necessarily domestic in nature, and it is in these domestic laws that the evolution of space law can be most clearly seen. That said, new industries, such as asteroid mining, are testing the limits of international law and have forced the international community to examine whether changes to long-standing laws are needed.

Since the beginning of space exploration, outer space has fascinated, captivated and intrigued people’s mind. The launch of the first artificial satellite—Sputnik—in 1957 by the Soviet Union, and the first man on the Moon in 1969 represent two significant missions in the space exploration history. In 1972, Apollo 17 marked the last human program on the lunar surface. Nevertheless, several robotic spacecrafts traveled to the Moon such as the Soviet Luna 24 in 1976 or more recently China’s Chang’e 4 in 2019 which touched down on its far side, the first time for a space vehicle. The international space community is currently assessing a return to the Moon in 2024 and even beyond in the coming decades, toward the Red Planet, Mars. Robots and rovers, for instance, Curiosity, Philae, Rosetta or Perseverance, will continue to play a major role in space exploration by paving the way for future long-duration missions on celestial bodies. Landing humans on the Moon, Mars, or on other celestial bodies, needs robotics because there are significant challenges to overcome from technological and physiological perspectives. Therefore, the support of machines and artificial intelligence is essential for developing future deep space programs as well as to reach a sustainable space exploration. One can imagine future circumstances where robots and humans are collaborating together on the Moon’s surface or on celestial bodies to undertake scientific research, to extract and to analyze space resources for a possible in situ utilization, as well as to build sites for human habitation and work. Indeed, different situations can be considered: (a) a robot, located on a celestial body, operated by a human on Earth or aboard a space station; (b) the in situ operation of a robot by an astronaut; (c) the interaction between a robot in outer space, manipulated from Earth and an astronaut; (d) the interaction between a robot operated from space and an astronaut; (e) the interaction between a robot with an artificial intelligence component and an astronaut; (f) the interaction between two robots in the case of on-orbit servicing. The principles of free exploration and cooperation are two core concepts in the international space legal framework. Hence, it is necessary to analyse the provisions on the five United Nations space treaties in the context of “human-robotic” cooperation. In addition, the development of a Code of Conduct for space exploration, involving humans and robots, might be needed in order to clearly identify the missions using robotic systems (e.g., mission’s purpose, area of operations) and to foresee scenarios of responsibility and liability in case of damage. Lastly, a review of the dispute settlement mechanisms is particularly relevant as international claims related to human–robot activities will inevitably occur given the fact that their collaboration will increase as more missions are being planned on celestial bodies.

Outer space has always assumed a relevant geopolitical value due to strategic and economic reasons. Since the beginning of the so-called space age, national space policies have pursued both political and economic objectives, taking into account fundamental security and military considerations. After the Second World War, the international relations were based on the dichotomy between the United States and the Soviet Union. The foundation of activities in outer space finds its roots in the Cold War and reproduces the distinctive geopolitical dynamics of that historical moment. The diverging interests between the two states were reflected in the political tensions that characterized the competition to reach outer space. The classical geopolitics deals with how states should act in outer space to increase their influence in the international arena. According to the theories developed during the space race, whoever controls outer space controls the world. In this sense, security on Earth depends on the security in space, ensured by national control over the strategic assets. Space applications had indeed a central role in the context of deterrence. In addition, conducting activities in outer space represented an important tool of foreign policy and for the enhancement of international cooperation, mainly within the blocs. International geopolitical dynamics were reflected on space regulations developed during the Cold War era. The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (OST) is the main legal instrument, which codifies the general principles in international law of space activities. Over the past few decades, space activities have changed due to the growing participation of non-state actors to the so-called space economy. The end of the Cold War era produced a structural change of the international relations in the space sector. The traditional scheme of cooperation within the Western, or Eastern, bloc was overcome by a stronger multilateral cooperation, such in the case of the International Space Station. Furthermore, the end of the Cold War busted the regionalization of space cooperation. Furthermore, space activities are relevant for the well-being of humankind. Many services provided by public and private companies, such as satellite broadcasting, weather forecasts, or satellite navigation, have a strong socioeconomic impact. In addition, the protection of the environment in outer space has become a central theme in the international debate, with a focus on mitigation and removal of space debris. These issues are reflected in increasing legislation, adopted to regulate space activities on a national level. This evolution, along with technological changes, poses political challenges to the actors involved in the space arena and creates a competitive geopolitical situation in which states aim at protecting their national interests in outer space. In this context, the international space governance plays a fundamental role in bringing together national interests toward a collective interest in protecting and promoting space activities for the benefit of humankind and with due regard to the corresponding interests of all states.

Space activities are technically sophisticated and challenging endeavors involving high risk. Notwithstanding precautionary measures that are taken by commercial operators, damage may be caused during space objects’ launching, passing through air space, in-orbit maneuvering and operating, and de-orbiting. The rules and procedures aimed at ensuring the prompt payment of a full and equitable compensation for such damage constitute the international liability regime, which is of crucial importance in space law. The first reference to international liability for damage caused by space objects and their component parts on Earth, in air space, or in outer space can be traced back to the very beginning of the space era. In 1963, just a few years after the first ever artificial satellite was launched, international liability was declared by the United Nations General Assembly as one of the legal principles governing the activities of states in the exploration and use of outer space. It was later made legally binding by inclusion in the 1967 Outer Space Treaty and received further development in the 1972 Liability Convention. The latter is generally referred to as lex specialis when the interrelation between the two international treaties is described and introduces several provisions that treat liability for damage caused in specific circumstances somewhat differently. International space law imputes liability on states that launch or procure launchings of space objects and states from whose territory or facility space objects are launched. This does not, however, exclude liability for damage caused by space objects that are operated by private entities. Still, international liability for accidents involving commercial operators stays with the so-called launching states, as this term is defined by the Liability Convention for the same states that are listed in the Outer Space Treaty as internationally liable. Insurance is well known to address damages and liability issues, including those arising from commercial launches; however, it is not always mandatory. Frequently, space-related accidents involve nonfunctional space objects and their component parts, which are usually referred to as “space debris.” This may include spent rocket stages and defunct satellites, as well as fragments from their disintegration. Since the nonfunctional state of a space object does not change its legal status, the relevant provisions of international space law that are applicable to space objects continue to apply to what is called space debris. This means, in particular, that launching states are internationally liable for damage caused by space debris, including cases where such debris was generated by private spacecraft. The probability of liability becomes even higher when it comes to active space debris removal. Such space activities, which are extensively developed by private companies, are inextricably linked to potential damage. Yet, practical problems arise with identification of space debris and, consequently, an efficient implementation of the liability regime.

The adoption and entering into force of the 1975 Convention on Registration of Objects Launched into Outer Space (also known as the Registration Convention) was another achievement in expanding and strengthening the corpus iuris spatialis. It was the fourth treaty negotiated by the member states of the United Nations Committee on the Peaceful Uses of Outer Space (UN COPUOS) and it represents a lex specialis to the Outer Space Treaty (OST), elaborating further Articles V, VIII, and XI of the OST. Article V OST deals with safe and prompt return of astronauts in case of distress or emergency landing to the state of registry of their space vehicle, which is then further defined in the Registration Convention. Article VIII OST only implied registration and provided for the consequences thereof, namely in respect of exercising jurisdiction and control over a registered space object. However, the Registration Convention specified the ensuing obligations and regulated the necessary practical steps of space objects registration. The Registration Convention also complements and strengthens Article XI OST, which stipulates an obligation of state parties to inform the secretary-general of the nature, conduct, locations, and results of their space activities in order to promote international cooperation. The prevailing purposes of the Registration Convention is the clarification of “jurisdiction and control” as a comprehensive concept mentioned in Article VIII OST. In addition to its overriding objective, the Registration Convention also contributes to the promotion and the exploration and use of outer space for peaceful purposes. Establishing and maintaining a public register reduces the possibility of the existence of unidentified space objects and thereby lowers the risk of putting, for example, weapons of mass destruction secretly into orbit. Notwithstanding these important objectives, the negotiation history of the Convention and its lower number of ratification compared to the previous three space treaties testify to the numerous challenges that surround registration. The mandatory marking of space objects was one of the most heated points of debate between member states during the drafting of the Convention in the 1970s. Member states had conflicting views, depending on whether they were launching states or potential victims of launch failures. Additionally, questions on whether there should be one central or several registers and whether the type of information to be registered should be obligatory or optional were also pivotal in the discussion. It took five years of negotiation for member states to reach compromises and to adopt the Registration Convention, containing 12 articles. The articles covered issues ranging from registration procedure and different registries to amendments and withdrawal from the Convention. In addition, the following novelties were introduced: a new definition on “state of registry” was included; the “Moscow formula” was abandoned as the depositary was moved to the UN; and the “in five years review” clause found in Article X signified that the drafters were anticipating that technological developments could have such an impact on the Convention’s provisions that shorter time span between reviews were required than in previous space treaties. Despite the Convention’s novelties and its objective to protect the attribution of jurisdiction and control on the basis of a registry, as well as to ensure the rights provided in the Liability Convention and the Rescue and Return Agreement by offering means to identify space objects, the articles dealing with joint launch registration and registration by Intergovernmental Organizations (IGOs) are seen as weakening jurisdiction and control concept. Due to the fact that jurisdiction and control stay only with the state of registry, the other launching states may only conclude appropriate agreements to retain any of these rights. Thus, international responsibility and liability remain with all the launching states, but jurisdiction and control only with the state of registry. Furthermore, in the case of an IGO, the IGO does not have the sovereign authority to exercise jurisdiction and control, thereby raising the question who could do so instead of or on behalf of an IGO. In this regard, the Convention leaves important areas unregulated. In the following years, there were proposals to expand the Registration Convention to encompass other subject matters such as financial interests of assets in outer space; however, up until today, these issues remain regulated only by the UNIDROIT Space Assets Protocol.

Shortly after the launch of the first manmade satellite in 1957, the United Nations (UN) took the lead in formulating international rules governing space activities. The five international conventions (the 1967 Outer Space Treaty, the 1968 Rescue Agreement, the 1972 Liability Convention, the 1975 Registration Convention, and the 1979 Moon Agreement) within the UN framework constitute the nucleus of space law, which laid a solid legal foundation securing the smooth development of space activities in the next few decades. Outer space was soon found to be a place with abundant opportunities for commercialization. Telecommunications services proved to be the first successful space commercial application, to be followed by remote sensing and global navigation services. In the last decade, the rapid development of space technologies has brought space tourism and space mining to the forefront of space commercialization. With more and more commercial activities taking place on a daily basis from the 1980s, the existing space law faces severe challenges. The five conventions, enacted in a time when space was monopolized by two superpowers, failed to take into account the commercial aspect of space activities. While there is an urgent need for new rules to deal with the ongoing trend of space commercialization, international society faces difficulties in adopting new rules due to diversified concerns over national interests and adjusts the legislative strategies by enacting soft laws. In view of the difficulty in adopting legally binding rules at the international level, states are encouraged to enact their own national space legislation providing sufficient guidance for their domestic space commercial activities. In the foreseeable future, it is expected that the development of soft laws and national space legislation will be the mainstream regulatory activities in the space field, especially for commercial space activities.

Outer space is once again facing renewed competition. Unlike in the earlier decades of space exploration when there were two or three spacefaring powers, by the turn of the 21st century, there are more than 60 players making the outer space environment crowded and congested. Space is no more a domain restricted to state players. Even though it is mostly a western phenomenon, the reality of commercial players as a major actor is creating new dynamics. The changing power transitions are making outer space contested and competitive. Meanwhile, safe and secure access to outer space is being challenged by a number of old and new threats including space debris, militarization of space, radio frequency interference, and potential arms race in space. While a few foundational treaties and legal instruments exist in order to regulate outer space activities, they have become far too expansive to be useful in restricting the current trend that could make outer space inaccessible in the longer term. The need for new rules of the road in the form of norms of responsible behavior, transparency and confidence building measures (TCBMs) such as a code of conduct, a group of governmental experts (GGE), and legal mechanisms, is absolutely essential to have safe, secure, and uninterrupted access to outer space. Current efforts to develop these measures have been fraught with challenges, ranging from agreement on identifying the problems to ideating possible solutions. This is a reflection of the shifting balance of power equations on the one hand, and the proliferation of technology to a large number of players on the other, which makes the decision-making process a lot problematic. In fact, it is the crisis in decision making and the lack of consensus among major space powers that is impeding the process of developing an effective outer space regime.

Space activities can bring tremendous benefits to global development and humanity. For the safety, security, and long-term sustainability of outer space, activities and developments in the exploration and use of outer space must therefore be guided by the effective formulation, implementation, and enforcement of law and governance. Concerted and quality space law education and capacity-building efforts are necessary for the cultivation of competent professionals, scholars, and next-generation experts who are cognizant of the emerging issues and challenges posed by the proliferation of space activities and actors in the global commons of outer space. In order to fully grasp space law, it is important to possess a basic understanding of space technology, space applications, and the space environment in which the exploration and use of outer space take place. Not only should space law professionals and scholars be trained in law and have a deep understanding of especially public international law, but the approach to space law education and capacity-building must also be uniquely holistic and interdisciplinary. Hence, education and capacity-building can stimulate international development and cooperation in space activities and contribute to building expertise and capacity in countries with emerging space capabilities.

Space law is composed of disparate elements of ordinary national laws and general international law. It has been created by the agreement of states as to the international law that should govern important technical and technological developments of the later 20th and the 21st century. That agreement is expressed in five general treaties; other treaty-level measures including as to the use of radio, declarations of principle, recommendations on the conduct of space activities, and by state practice. The United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), serviced by the UN Office of Outer Space Affairs (UNOOSA), plays a significant role in the development of the many aspects of space law, as do intergovernmental and nongovernmental agreements together with informal arrangements between space-active bodies.

Throughout human history, resources have been the driving force behind the exploration and settling of our planet and also the means to do so. Similarly, resources beyond Earth will make space the next destination in the quest for further exploration and economic expansion of our species. The multitude of celestial bodies surrounding Earth and the space between them hold a vast wealth of resources for a variety of applications. The unlimited solar energy, vacuum, radiation, and low gravity in space, as well as the minerals, metals, water, atmospheric gases, and volatile elements on the Moon, asteroids, comets, and the inner and outer planets of the Solar System and their moons, constitute potential valuable resources for robotic and human space missions and for future use on our own planet. In the short term, these resources could be transformed into useful materials at the site where they are found to extend mission duration and to reduce the costly dependence on materials sent from Earth. Making propellants and human consumables from local resources can significantly reduce mission mass, cost, and risk, enabling longer stays and fueling transportation systems for use within and beyond the planetary surface. Use of finely grained surficial dust and rocks can serve for habitat and infrastructure construction, radiation protection, manufacturing parts, and growing crops. In the long term, material resources and solar energy could also be brought to Earth if obtaining these resources and meeting energy demands locally prove to be no longer economically or environmentally acceptable. However, just like on Earth, not all challenges to identify, extract, and utilize space resources are scientific and technological. As nations and private companies start working toward extracting extraterrestrial resources, an international legal framework and sound socioeconomic policies need to be put in place to ensure that these resources are used for the benefit of all humanity. Space resources promise to unleash an unprecedented wave of exploration and of economic prosperity by utilizing the full potential and value of space. As we embark on this new activity, it will be up to us, humans on planet Earth, to find the best alternatives to use resources beyond our planet effectively, responsibly, and sustainably to make this promise a reality.

The great rise and diversification of the use of outer space raises the question of the limitations to space activities. The ultimate restriction posed by space law is the use of outer space “for peaceful purposes.” Regardless of the semantic approach one adopts with respect to the definition of the term “peaceful purposes” in the text of the Outer Space Treaty, it is the underlying substantive legal normativity which constitutes the determining factor. The applicable international legal rules confirm that the ultimate limit is the prohibition of the use of force laid down in Article 2 (4) of the UN Charter, which applies to outer space along with the exceptions stipulated in the UN Charter and general international law. In addition, the Outer Space Treaty establishes a particular legal regime on celestial bodies, declaring them a demilitarized zone, and bans the stationing of weapons of mass destruction in outer space. Space law, as any other branch of public international law, is of evolutive nature, so future adjustments and developments of its legal normativity in light of the abrupt growth and multiplication of the exploration and uses in the space arena remain open.