Mark J. Sundahl
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 early 1990s, in analytical reviews, experts have increasingly been paying attention to the growing scarcity of rare and rare earth metals (REM) necessary for the development of advanced technologies in modern industry. The volume of the world market has increased over the past 50 years from 5,000 to 125,000 tons per year, which is explained by the extensive use of REM in the rapidly developing areas of industry associated with the advancement of high technology. Unique properties of REM are primarily used in the aerospace and other industrial sectors of the economy, and therefore are strategic materials. For example, platinum is an indispensable element that is used as a catalyst for chemical reactions. No battery can do without platinum. If all the millions of vehicles traveling along our roads installed hybrid batteries, all platinum reserves on Earth would end in the next 15 years! Consumers are interested in six elements known as the platinum group of metals (PGM): iridium (Ir), osmium (Os), palladium (palladium, Pd), rhodium (rhodium, Rh), ruthenium (ruthenium, Ru), and platinum itself. These elements, rare on the Earth, possess unique chemical and physical properties, which makes them vital industrial materials. To solve this problem, projects were proposed for the utilization of the substance of asteroids approaching the Earth. According to modern estimates, the number of known asteroids approaching the Earth reaches more than 9,000. Despite the difficulties of seizing, transporting, and further developing such an object in space, this way of solving the problem seemed technologically feasible and cost-effectively justified. A 10 m iron-nickel asteroid could contain up to 75 tons of rare metals and REM, primarily PGM, equivalent to a commercial price of about $2.8 billion in 2016 prices.
However, the utilization of an asteroid substance entering the lunar surface can be technologically simpler and economically more cost-effective. Until now, it was believed that the lunar impact craters do not contain the rocks of the asteroids that formed them, since at high velocities the impactors evaporate during a collision with the lunar surface. According to the latest research, it turned out that at a fall rate of less than 12 km/s falling body (drummer) can partially survive in a mechanically fractured state. Consequently, the number of possible resources present on the lunar surface can be attributed to nickel, cobalt, platinum, and rare metals of asteroid origin. The calculations show that the total mass, for example, of platinum and platinoids on the lunar surface as a result of the fall of asteroids may amount more than 14 million tons. It should be noted that the world’s known reserves of platinum group metals on the Earth are about 80,000 tons.
Emergence of ballistic missile technology after World War II enabled human flight into the Earth’s orbit, fueling the imagination of those fascinated with science, technology, exploration, and adventure. The performance of astronauts in the early flights assuaged concerns about the functioning of “the human system” in the absence of the Earth’s gravity. However, researchers in space medicine have observed degradation of crews after longer exposure to the space environment and have developed countermeasures for most of them, although significant challenges remain. With the dawn of the 21st century, well-financed and technically competent commercial entities have begun to provide more affordable alternatives to historically expensive and risk-averse government-funded programs. The growing accessibility to space has encouraged entrepreneurs to pursue plans for potentially autarkic communities beyond the Earth, exploiting natural resources on other worlds. Should such dreams prove to be technically and economically feasible, a new era will open for humanity with concomitant societal issues of a revolutionary nature.
Gianfranco Gabriele Nucera
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.
The public impact of planetary science, or, alternatively, the public value of planetary science, is poorly understood, as little research has been published on the subject. Public impact may be linked to scientific impact, but it is not the same as public impact. Nor is it the same as public benefit or public understanding. No clear, agreed-upon definition of “public impact” exists, and certainly no definition of “the public impact of planetary science” exists. It is a matter of judgment as to whether global spending on planetary science has yielded positive public impacts, let alone impacts that are worth the investment.
More research on the public impact of planetary science is needed. However, the study of public impact is a social scientific enterprise, and space agencies, space research institutes, and aerospace companies historically have invested very little in social scientific research. Without further study of the subject, the public impact of planetary science will remain poorly understood.
Anja Nakarada Pečujlić
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.
This is an advance summary of a forthcoming article in the Oxford Research Encyclopedia of Planetary Science. Please check back later for the full article.
The space and multitude of celestial bodies surrounding Earth hold a vast wealth of resources for a variety of space and terrestrial applications. The unlimited solar energy, vacuum, 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 in 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 from materials sent from Earth. Making propellants and human consumables from local resources can significantly reduce mission mass and cost, enabling longer stays and fueling transportation systems for use within and beyond the planetary surface. Use of finely grained soils and rocks can serve for habitat construction, radiation protection, solar cell fabrication, and food growth. The same material could also be used to develop repair and replacement capabilities using advanced manufacturing technologies. Following similar mining practices utilized for centuries on Earth, identifying, extracting, and utilizing extraterrestrial resources will enable further space exploration, while increasing commercial activities beyond our planet. In the long term, planetary resources and solar energy could also be brought to Earth if obtaining these resources locally prove to be no longer economically or environmentally acceptable.
Throughout human history, resources have been the driving force for the exploration and settling of our planet. Similarly, extraterrestrial resources will make space the next destination in the quest for further exploration and expansion of our species. However, just like on Earth, not all challenges are scientific and technological. As private companies start working toward exploiting the resources from asteroids, the Moon, and Mars, an international legal framework is also needed to regulate commercial exploration and the use of space and planetary resources for the benefit of all humanity. These resources hold the secret to unleash an unprecedented wave of exploration and of economic prosperity by utilizing the full potential and value of space. It is up to us humans here on planet Earth to find the best way to use these extraterrestrial resources effectively and responsibly to make this promise a reality.
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.
Rajeswari Pillai Rajagopalan
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.
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.