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.
Gianfranco Gabriele Nucera
Christopher Daniel Johnson
Negotiated at the United Nations and in force since 1967, the Outer Space Treaty has been ratified by over 100 countries and is the most important and foundational source of space law. The treaty, whose full title is “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” governs all of humankind’s activities in outer space, including activities on other celestial bodies and many activities on Earth related to outer space. All space exploration and human spaceflight, planetary sciences, and commercial uses of space—such as the global telecommunications industry and the use of space technologies such as position, navigation, and timing (PNT), take place against the backdrop of the general regulatory framework established in the Outer Space Treaty. A treaty is an international legal instrument which balances rights and obligations between states, and exists as a kind of mutual contract of shared understandings, rights, and responsibilities between them. Negotiated and drafted during the Cold War era of heightened political tensions, the Outer Space Treaty is largely the product of efforts by the United States and the USSR to agree on certain minimum standards and obligations to govern their competition in “conquering” space. Additionally, the Outer Space Treaty is similar to other treaties, including treaties governing the high seas, international airspace, and the Antarctic, all of which govern the behavior of states outside of their national borders. The treaty is brief in nature and only contains 17 articles, and is not comprehensive in addressing and regulating every possible scenario. The negotiating states knew that the Outer Space Treaty could only establish certain foundational concepts such as freedom of access, state responsibility and liability, non-weaponization of space, the treatment of astronauts in distress, and the prohibition of non-appropriation of celestial bodies. Subsequent treaties were to refine these concepts, and national space legislation was to incorporate the treaty’s rights and obligations at the national level. While the treaty is the cornerstone in the regulation of activities in outer space, today the emergence of new issues that were not contemplated at the time of its creation, such as small satellites and megaconstellations, satellite servicing missions, the problem of space debris and the possibility of space debris removal, and the use of lunar and asteroid resources, all stretch the coherence and continuing adequacy of the treaty, and may occasion the need for new governance frameworks.
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.
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.