Space Commercialization and the Development of Space Law
- Yun ZhaoYun ZhaoDepartment of Law, University of Hong Kong
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 launch of Sputnik-1, the first manmade satellite, by the Soviet Union in 1957 signaled the start of the space era (Lyall & Larsen, 2009). The Soviet Union and the United States started the space race after the end of World War II. The two superpowers monopolized space activities during the Cold War period.1 Space programs had their origins in military projects. National security was the major consideration at that time, and space activities during the cold-war period were mainly state-oriented (Gabrynowicz, 2004). This was all the more understandable in view of the large amount of financial resources needed for space activities. Consequently, the space rules formulated under the framework of the United Nations mainly regulate the activities conducted by states and aim to realize peaceful uses of outer space (Gabrynowicz, 2004).
Civilian use was only a byproduct of the original military utilization of outer space, since the dual-use nature of space technologies allows for space applications in civil and commercial fields (Outer Space).2 With the end of the Cold War, commercial use of outer space stood out as an important topic for space scientists and lawyers.3 This article examines relevant legal issues related to space commercialization. The second part provides an overview of the UN legal framework for space activities and its inadequacy in coping with new legal issues arising from the ongoing process of space commercialization. The third examines the latest development of space law to support space commercialization. The article concludes that the ongoing process of space commercialization calls for further development of space laws in their civil and commercial aspects. In view of the difficulty in concluding new space treaties at the international level, future development of space law will be more likely to take a decentralizing and softening approach through national space legislation and soft-law drafting.
Space Law and the Process of Space Commercialization
The Development of Space Law
The UN reacted quickly to the launch of the first manmade satellite Sputnik in 1957 by setting up an ad hoc committee overseeing the peaceful uses of outer space and issuing a UN General Assembly (UNGA) Resolution the same year (1958) (UN Res. 1348, 1958). This ad hoc committee was the predecessor of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), which was established one year later (UN Res. 1348, 1958). The 1958 UNGA resolution acknowledges the need for international space cooperation and the importance of using outer space only for peaceful purposes (UN Res. 1348, 1958). Another important UNGA resolution entitled Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (Outer Space Declaration) was adopted in 1963, laying down several important principles for the exploration and use of outer space (UN Res. 1962, 1963). It set a milestone in the early stage for space law legislation. This document forms the basis for the first space law treaty—the 1967 Outer Space Treaty (United Nations, 1967). This was to be followed by four other treaties sponsored by the UN, namely the 1968 Rescue Agreement (United Nations, 1968), the 1972 Liability Convention (United Nations, 1972), the 1975 Registration Convention (United Nations, 1976), and the 1979 Moon Agreement (United Nations, 1984).
These five UN space treaties constitute the nucleus of space law. The Outer Space Treaty, by defining outer space as the province of all humankind, provides all states with the right to free access, exploration, and use of outer space (United Nations, 1967, article I(2) (3)). Several fundamental principles, including non-appropriation of outer space (United Nations, 1967, article II), peaceful uses of outer space, and international space cooperation (United Nations, 1967, article III, etc.), are now part of customary international law (Lála, 1998). While enacted at an early stage of the space era, with space activities dominated by sovereign states, these five treaties take an open approach allowing for private and/or commercial space activities. For example, the Outer Space Treaty provides that space activities can be carried out by both governmental and nongovernmental entities (United Nations, 1967, article VI). The state shall be held responsible for activities carried out by nongovernmental entities through such measures as authorization and continuing supervision (United Nations, 1967, article VI). Accordingly, the Outer Space Treaty, though drafted when states were the sole space player, does not preclude the possibility of space commercialization and privatization (Masson-Zwaan, 2008).
The Rescue Agreement is a further elaboration of Article V of the Outer Space Treaty, on the assistance to be rendered to astronauts in the event of accident, distress, or emergency landing, and Article VIII, on the return of space objects found beyond the territory of the member state.4 The Liability Convention elaborates on Article VII of the Outer Space Treaty by providing two liability regimes for different scenarios: absolute liability “for damage caused by the space object on the surface of the Earth or to aircraft in flight” (United Nations, 1972, article II) and fault liability for “damages being caused elsewhere than on the surface of the Earth” (United Nations, 1972, article III) to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State” (United Nations, 1972, article III). It also provides dispute resolution for the settlement of claims, through diplomatic negotiation and the establishment of a Claims Commission (United Nations, 1972, article 14).
The Moon Agreement is the only convention which acknowledges the possibility of commercialization (See, 2017). However, the term “common heritage of mankind” in this convention caused much controversy (Hoffstadt, 1994). Though not as widely accepted by the international community as the other four space treaties, this convention does have clear wording on the necessity of an international regime in future to govern the exploitation of natural resources of the Moon (United Nations, 1984, article 11(5)).
The five space treaties laid a solid foundation for peaceful uses of outer space by the states. However, legal issues related to space commercialization were not the main regulatory targets for these five treaties, which is understandable in view of the time when these treaties were drafted (Zhao, 2004). Space commercialization is becoming an increasingly important topic for space scientists and lawyers (Zhao, 2004).
The first stage of space legislation ended with the conclusion of the Moon Agreement (Marboe, 2012a). This stage of space law was characterized by the adoption of binding international documents, laying down basic legal principles for space activities (Marboe, 2012a). From 1980 to 1992, the UN failed to adopt any binding conventions, but its efforts in space legislation did not stop (Howald, 1989). This second stage of space legislation was represented by the adoption of UNGA resolutions, an important form of nonbinding documents (Bourély, 1987). With space commercialization already in place, the UNGA adopted three important resolutions governing specific aspects of space activities, including the use of artificial earth satellites for international direct television broadcasting (UN Res. 37/92, 1982), remote sensing activities (UN Res. 41/65, 1986), and the use of nuclear power sources in outer space (UN Res. 47/68, 1992).
The 1990s witnessed the rapid development of national space legislation in this third stage (von der Dunk, 1998). With no more space treaties adopted at the UN to tackle emerging new legal issues, national space legislation came to the forefront to fill in the gap in the international space law regime. At the moment, Argentina, Australia, Canada, Finland, France, Germany, Hungary, Indonesia, Japan, New Zealand, Philippines, Republic of Korea, the Russian Federation, Slovakia, Sweden, South Africa, Tunisia, Ukraine, the United Kingdom of Great Britain and Northern Ireland, and the United States of America have already enacted national space laws (Jakhu, 2010a). During this stage, the UNGA continued to adopt several important resolutions, dealing with the issue of international space cooperation, (UN Res. 51/122, 1996) the concept of “launching State” (UN Res. 59/115, 2004), registration of space objects (UN Res. 62/101, 2007), and national space legislation (UN Res. 68/74, 2013).
These UN space treaties, UNGA resolutions, and national space laws offer important rules regulating space activities; they will continue to play an important role in furthering the process of space commercialization (Ryzmanek, 1987). However, for a complete understanding of space law, the conventions which touch upon specific aspects of space activities should not be disregarded. In a sense, the scope of space law is much broader than has been previously considered. For example, the 1963 Treaty Banning Nuclear Tests in the Atmosphere, in Outer Space and Under Water (Partial Test Ban Treaty, 1963) bans not only nuclear tests in the atmosphere and under water, but also in outer space (Andem, 2003). The Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations in 1998 established an effective mechanism to facilitate the provision of telecommunication assistance for the purpose of disaster mitigation (Zhao, 2007). These documents, supplementing the UN space treaties, further enrich the substance of space law by addressing new legal issues arising from space activities.
The Ongoing Space Commercialization Process
The zero-gravity environment in outer space provides an excellent condition for scientific experiments, with the scientific results readily available for commercialization (NASA, 2015; David, 2014). The rich mineral resources have long been attractive for entrepreneurs for possible profit-making (Hui, 1992). Outer space, with its unique features, serves as an ideal greenhouse for the development of diversified commercial space activities (Hui, 1992)—to name just a few, space launching activities, satellite direct broadcasting, remote sensing, telecommunications, space tourism, space mining (Freeland, 2005), small satellites (Rinner, 2013), and the digitization of space.5
Space tourism is no longer only a dream; the successful visit of Dennis Tito to the International Space Station was the prelude to human’s flight to outer space as tourists (Space Today, n.d.). More recently, Virgin Galactic’s SpaceShipTwo successfully made its first test flight with a revamped re-entry system (Fox News, 2017), paving the way for commercial space travel. Moreover, beside the successful rocket recycle experiment conducted by SpaceX in December 2015 and its latest success in 2018 (McGoogan, 2017), the successful reuse of the New Shepard booster and the smooth return of a passenger compartment conducted by the US company Blue Origin also proved that taking a trip to outer space for ordinary people would soon become a reality.6
The use of satellites, which were originally made for public and military purposes, is the best example to elaborate on the development of space commercialization. There are three main forms of satellite use: telecommunications, remote sensing, and navigation.7 Firstly, the International Telecommunication Satellite Organization (INTELSAT) was first established as an intergovernmental organization and launched the first commercial global satellite communications system in 1965 (Smith, 1969). Thus, the commercialization of telecommunications services has already been in place for more than 50 years (Smith, 1969). The INTELSAT was further reorganized and became a private company in 2001. This privatization process also happened to other telecommunications enterprises, including the European Telecommunications Satellite Organization (EUTELSAT) and International Maritime Satellite Organization (INMARSAT). As such, the telecommunications services provide an excellent case study of the development of both space commercialization and privatization (Frischmann, 2000–2001).
Secondly, remote sensing is no longer monopolized by states. Even those public or semi-public entities owning remote sensing satellites are providing remote sensing data on a commercial basis (Achilleas, 2008). At the same time, many commercial provides, such as Quick Bird in the United States and Rapid Eye in Germany, are already in the remote sensing market offering products and services to private entities or states that lack indigenous remote sensing capability (Livingston, 2015). Thirdly, the navigation market, long monopolized by GPS and GLONASS, is welcoming two other new systems, the GALILEO (European Space Agency, 2017) and the BeiDou (Compass), to provide navigation services. The commercial use of navigation services (European Global Navigation Satellite Systems Agency, 2016), in particular access to the added-value data from navigation satellites, is already in place (Larsen, 2017a).
Lastly, in the 2000s and 2010s, with the continuous development of satellite technologies and related applications, the satellite launch market is not only trying to reduce satellite costs and risk, but also accelerating the development cycle.8 In this context, the small satellite is becoming prevalent, as it can undertake a single dedicated task and be networked easily (Jakhu & Pelton, 2014). The characteristics of low investment and short developing cycle have allowed small satellites to become widely used by the commercial sector (Jakhu & Pelton, 2014). They can be used in various civilian areas, such as communications, earth observation, remote sensing, meteorological observation, marine exploration, and scientific research (Jakhu & Pelton, 2014). The previously mentioned space commercial development has attracted an increasing number of private entities to participate in the space commercialization market (Larsen, 2017b).
Space commercialization is proceeding much faster than expected. The last two decades have witnessed the rapid and successful development of these commercial activities, and there are a much broader range of space actors, including small companies and entrepreneurs, which calls for specific rules to govern these commercial activities and entities. Many new legal issues have arisen for which no ready and easy solutions are in place (Dempsey, 2016), like the licensing of small satellites owned by private entities, the regulation of radio frequencies and orbits, international and national registration of satellites, and responsibility- and liability-allocating issues between government and private entities (Dempsey, 2016). Moreover, the expanding space commercial activities also pose a great threat to the space environment; no existing enforceable laws deal with the space environmental problem, which is mainly caused by space debris. All these emerging legal issues in the space commercialization process have posed a challenge to the existing international space law regime, and only when these legal issues are resolved properly and a predictable legal environment for these new space “actors” is set up can more entities have confidence in being involved in space commercial activities and the commercial space market achieve sustainable development (See, 2017). Nevertheless, with more and more countries joining the space club, space legislation at the international level proves to be difficult (Davalos, 2016). This is evidenced by the fact that no international treaties have been concluded under the UN framework since the adoption of the Moon Agreement in 1979 (David & Lee, 1999).
Decentralized Development of Space Law in the Era of Space Commercialization
Decentralized Space Legislation at the International Level
The UN played a key role in the first stage of the development of space law (Larsen & Lyall, 2013). The five space treaties mainly regulate the public side of space activities (Larsen & Lyall, 2013); with space commercialization becoming increasingly important, there was an urgent need to enact rules to regulate the private and commercial side of space activities (Blount, 2011). The UN is obviously not the ideal entity to take up this role (Blount, 2011). Under this circumstance, other entities have filled the gap.
The first notable area for space commercialization is telecommunications services (Niemann, 2004). This is also an area which exemplifies how space technologies can bring convenience to human lives. For a long time, the International Telecommunication Union (ITU), the leading UN agency for information and communication technologies, has filled the important role of coordinating the use of the radio-frequency spectrum and space orbits (Ryan, 2012). In the era of space commercialization, the important issue came up as to how to liberalize the telecommunications market so that more consumers could benefit from related services (Ryan, 2012). The liberalization of telecommunications services was included in the ambitious agenda of the World Trade Organization (WTO) Uruguay Round of negotiations. The negotiation process was not smooth; the sensitivity of basic telecommunications services delayed the whole process (Mashayekhi & Gibbs, 1999). The deal was reached in 1997, two years after the establishment of the WTO (Mashayekhi & Gibbs, 1999). Apart from the application of the General Agreement on Trade in Services to the telecommunications services and the commitments made by individual states, the WTO also adopted a Reference Paper providing guiding principles for national regulatory authorities in regulating basic telecommunications (Manner & Hernandez, 2013). This plurilateral document lies down six principles for the regulatory framework, including competitive safeguards, interconnection, universal service, public availability of licensing criteria, independent regulators, and the allocation and use of scarce resources (Manner & Hernandez, 2013). These principles have the function of ensuring that the national regulatory regime can provide a fair playground for satellite service providers in their competition process (Manner & Hernandez, 2013). For the first time, an international document has set down guidelines for national regulatory authorities on how to regulate, which has always been part of the powers falling within national sovereignty.
In the area of dispute resolution, with more commercial entities involved in space activities, the traditional state-to-state dispute resolution mechanism does not appear to be sufficient or appropriate. The Permanent Court of Arbitration adopted the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (Pocar, 2012), modifying the 2010 United Nations Commission on International Trade Law Arbitration Rules to better serve and “reflect the particular characteristics of disputes having an outer space component involving the use of outer space by States, international organizations and private entities” (Pocar, 2012) The commercial model of arbitration fits in well with the process of space commercialization and has a great potential to be used by space-related industries in their future commercial disputes (Selivon, 2011).
Financing proves to be a viable channel to raise necessary resources for space activities, which require large amounts of investment (Stanford, 2012). Space financing contains distinctive features, compared with other financing projects, in the high value of the object and its continued operation instead of physical occupation in case of default (Stanford, 2012). The International Institute for the Unification of Private Law (UNIDROIT), with the aim of modernizing and harmonizing private and commercial law, took the initiative to enact an international convention on financing high-value mobile equipment (Goode, 2014). The Convention on International Interests in Mobile Equipment (Cape Town Convention) was adopted in 2001, to be used together with protocols for specific equipment (UNIDROIT, 2017). The UNIDROIT picked up several types of high-value equipment for legislation in the first stage, namely aircraft equipment, railway rolling stock, and space assets (UNIDROIT, 2017). The Protocol on Matters Specific to Space Assets was adopted in 2013 to deal with specific aspects of space financing (Protocol to the Convention, 2012).
Consequently, the UN is not sole entity for space legislation in the era of space commercialization; moreover, it does not appear to be the ideal entity to regulate the commercial side of space activities. The fact that the UN failed to adopt any new international conventions after 1979 does not directly lead to the conclusion that space legislation ended in the same year. As elaborated above, other international entities have taken up the initiative to regulate the commercial and private side of space activities, presenting to the international community a decentralized process of space legislation. This phenomenon is conducive to the development of space commercialization.
With increasing countries joining the space club, international space legislation proves more difficult in view of diversified interests in space activities. As a result, another distinctive feature of space legislation after 1979 is the adoption of soft-law documents (Aoki, 2012). The UN General Assembly (UNGA) is the major forum for soft-law making. With no space treaties adopted after 1979, the UNGA took a proactive and pragmatic attitude towards the adoption of UNGA resolutions. Major resolutions include the following: Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting in 1982 (Bourléy, 1998); Principles Relating to Remote Sensing of the Earth from Outer Space in 1986; Principles Relevant to the Use of Nuclear Power Sources in Outer Space in 1992; Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries in 1996; Application of the Concept of the “Launching State” in 2004; and Recommendations on Enhancing the Practice of States and International Intergovernmental Organizations in Registering Space Objects in 2007 (UN Res. 62/101, 2007). These UNGA resolutions help to provide general guidelines for certain aspects of space activities, avoiding the situation of lawlessness in these areas (Filho & Fabricio dos Santos, 2010).
This pragmatic approach was adopted in view of the difficulty in reaching consensus on areas of utmost importance to national interests (Filho & Fabricio dos Santos, 2010). The UNCOPUOS took an active role in the first stage of this process; however, recent years have witnessed increasing participation of other entities outside the UN forum. The Inter-Agency Space Debris Coordination Committee (IADC), an inter-governmental forum for the coordination of space debris research activities, took the lead in producing Space Debris Mitigation Guidelines in 2007 (Plantz, 2012), which formed the basis for the UNCOPUOS Space Debris Mitigation Guidelines in 2010 (Plantz, 2012). For peaceful and sustainable use of outer space, the European Union (EU) put forward a nonbinding document entitled International Code of Conduct for Outer Space Activities for the consideration of international society (Rohrer, 2012).
So-called “soft law” does not have binding legal effect; no legal obligations arise from such documents (Rohrer, 2012). States are not legally bound by such documents, which is obviously not the ideal situation for the regulation of space activities. Nevertheless, in view of the urgency of rules for space commercialization hampered by the difficulty in concluding new space treaties, soft-law making proves to be the second best approach to coming up with guiding rules for international society (Urban, 2016). These documents can serve as a testing bed for possible future international legislation; in the meantime, their ethical implications for the international society should not be underestimated (Urban, 2016).
National Space Legislation
With the stagnation of space legislation under the UN, legislation at the national level stands out as another viable channel for the regulation of space activities. The UNCOPUOS set space law capacity building as a main task in the new era (UN Doc. A/AC.105/C.2/2017/CRP.12, n.d.). This involves two aspects of the work: encouraging more countries to accede to the existing five space treaties and the members to the five treaties to implement the treaty obligations through national space legislation (UN Doc. A/AC.105/C.2/2017/CRP.12, n.d.).
The UNCOPUOS initiated a series of capacity-building workshops in 2002. Different continents took turns working with the UNCOPUOS to hold the workshops (UN Doc. A/AC.105/C.2/2017/CRP.12, n.d.). From the very first workshop, held in the Netherlands, the UNCOPUOS has recommended that “States and international organizations become party to the United Nations treaties on outer space (. . .) before carrying out space activities. . . .” (UNCOPUOS, 2003). This has indeed achieved some success, as evidenced by the number of members to the five space treaties. By January 1, 2004, the numbers of signatories to the five space treaties were 98, 88, 82, 45, and 10; by January 1, 2010, the numbers reached 100, 91, 88, 53, and 13, and they had climbed to 105, 95, 94, 63, and 17 by January 1, 2017 (United Nations Office for Outer Space Affairs, 2018b).
In the meantime, the UNCOPUOS encouraged members to start national space legislation. To help members come up with a national space law, the UNGA, based on a text prepared by the UNCOPUOS, adopted a resolution titled Recommendations on National Legislation relevant to the Peaceful Exploration and Use of Outer Space in 2013 (Brisibe, 2013). The International Law Association (ILA) had adopted a Model Law on National Space Law one year earlier (Hobe, 2013). This shows that the international society, not simply the sole entity of UNCOPUOS, has reached consensus on the need for national space legislation (Masson-Zwaan & Marchisio, 2010). National space legislation is expected to elaborate and provide detailed rules at the national level on the application of principles and legal issues that are covered in the space treaties (Masson-Zwaan & Marchisio, 2010). Such issues include liability and responsibility, registration of space objects, insurance, environmental protection, and peaceful uses of outer space (Dempsey, 2016). So far more than 20 countries have made their own space laws (United Nations Office for Outer Space Affairs, 2018a).
Apart from implementing the treaty obligations, national space legislation can also provide a useful attempt in providing rules for space commercialization (United Nations Office for Outer Space Affairs, 2018a). This can be well exemplified by the enactment of the US Commercial Space Launch Competitiveness Act on November 25, 2015, in particular its Title IV on space resource exploitation (Blount & Robison, 2016). The current space regime is unclear as to the commercial exploitation of natural resources in outer space (Blount & Robison, 2016). While the Outer Space Treaty contains a provision on non-appropriation of outer space, it is not clear as to whether the removal of natural resources from outer space constitutes appropriation (International Institute of Space Law, 2015). The United States took the initiative by allowing American citizens to make profits from such commercial exploitation. This also paves the way for other countries, such as Luxembourg (Foster, 2016), to take a similar position. It is too early to draw a conclusion as to whether this position should be welcomed; however, this piece of legislation vividly demonstrates that national space legislation can play an important role in filling in the gap in the legal regime and that it can provide a testing bed for certain new rules.
Further Elaboration of Space Law Principles
The Outer Space Treaty provides important principles guiding space activities. However, as the term “principles” indicates, these provisions were drafted in a very general manner (Clute, 1970). The general nature of these provisions facilitated the adoption of the treaty at that time; with more and more space activities taking place on a daily basis, there is a need to provide further details to these principles. The Rescue Agreement, the Liability Convention, and the Registration Convention are examples in the first stage of space law development in further elaborating important principles in the Outer Space Treaty.
Recent adoption of soft laws and attempts at drafting conventions show that the effort of the international community in providing clearer rules guiding space activities has never stopped. The principle of peaceful uses of outer space has long been under discussion with regard to the meaning of “peacefulness” and the means to realize peacefulness (Okolie, 1998). In the Conference on Disarmament (CD) in 2008, China and Russia cosponsored the draft treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT) with the aim of banning arms race in outer space (Conference on Disarmament, 2008). In 2014, the two countries introduced the revised version of the treaty to the CD for further discussion (Tronchetti, 2014). Apart from this hard-law approach, the international society has also emphasized the need for transparency and the adoption of confidence-building measures (Kaiser, 2011); the EU initiated the discussions on the proposed International Code of Conduct for Outer Space Activities, with the fifth version introduced in March 2014 (Draft International Code of Conduct for Outer Space Activities, 2014).
Environmental protection is an issue that has not been well elaborated in existing space law (Diederiks-Verschoor, 1987). We can only find a very brief provision in Article IX of the Outer Space Law with regard to the avoidance of “harmful contamination and also adverse changes in the environment of the Earth” (Diederiks-Verschoor, 1987). After years of discussions, the international society was able to make some progress in the adoption of the Space Debris Mitigation Guidelines and the endorsement of the recommendations and decisions made by the Working Group on the Long-term Sustainability of Outer Space Activities established by the UNCOPUOS (United Nations, 2016).
International cooperation has long been a major principle in the space law field (Zhao, 2016). In 1963, international cooperation was indicated as one of the most important principles for space activities (UN Res. 1962, 1963). This principle was further reinforced in the 1967 Outer Space Treaty and universally accepted by the international community (United Nations, 1967, article 9). The 1996 UNGA resolution provides details on how to understand this principle, listing the significant provisions on the possible means (formal requirements) of international space cooperation and the conditions (substantive requirements) (United Nations, 1967, article 9); however, the issue of enforcement is not yet clear. The UNCOPUOS has thus taken the initiative to set up a Working Group to review international mechanisms for cooperation (UN Doc. A/AC.105/1003, 2012), with the purpose of encouraging all possible types of cooperation between different entities, including governments, international organizations, private enterprise, and so on.9
Space technologies developed rapidly after the launch of the first satellite in 1957. The space era started with the use of satellites. The dual-use nature of the satellites and space technologies means that space commercialization and privatization is a natural result of satellite usage and space activities. Space is increasingly close to our daily lives; space commercialization presents itself as an irreversible trend for further development of space activities. It is predicted that, in the coming five to ten years, the space commercial market will keep flourishing, and the market share of private space entities will keep increasing. There will be growing competition in the traditional commercial launch sector, and key players in the CubeSat community are in the private sector. The new commercial areas will take shape and witness rapid development, such as human space flight, space energy, the utilization of space stations, and space mining (Global Trends in Civil and Commercial Space, 2015). The UN space treaties adopted in the last century, when states were the sole player in the space field, helped to set up a legal framework for the smooth and orderly development of space activities; it is obvious that these rules are insufficient to tackle new legal issues arising from space commercialization and privatization. Under such circumstances, the development of space law presents a more diversified process, which hinges closely on the ongoing space commercialization process.
With more and more states becoming space-faring nations, the negotiations for new treaties under the UN framework are not easy. Other international entities have taken up the role of drafting rules for certain aspects of space commercial activities. The inability to conclude new treaties under the UN does not foreclose the adoption of space rules at other platforms, such as the WTO and the UNIDROIT.
Nevertheless, the UN continues to take a lead in facilitating the rule-making process by encouraging the adoption of soft laws and national space legislation through the UNCOPUOS. The UNGA adopted several resolutions which have important impacts on various aspects of space activities; at the same time, other entities, such as the ILA and the EU, have also joined in the soft-law making process since the 1980s.
The states are not left out of the space-law-making process; national space legislation has been given an important role, in view of the difficulty of making binding rules at the international level. All this national legislation, while offering useful guidance for space activities, also constitutes useful state practice for future international legislation. From a national regulatory viewpoint, several issues should be taken into consideration along with space commercialization, namely licensing for commercial space activities (including the conditions for space projects, the qualification of the entity to conduct space activities and insurance requirement, etc.), responsibility and liability allocation between the government and the private sector (including restricting the power of government in claiming indemnity from private entities, which is critical for relieving the burden of the space enterprises, especially small ones; third-party liability insurance, etc.) (Dempsey, 2016), and setting up the registration mechanism according to the UN resolution on enhancing the practice of states in registering space objects (UN Res. 62/101, 2008).
The development of space law in the era of space commercialization presents the above three features; this further substantiates the conclusions in the 1990s that space law is already an independent branch of law (Malanczuk, 1994). It includes not only treaties and customs at the international level, but also national legislation. The earlier stage of space law focused more on the public side of space activities, regulated mainly at the UN through the UNCOPUOS. The rapid development of space commercialization has led to a decentralized legislation process. Firstly, the UN is no longer the sole platform to make space laws; other international organizations are increasingly in the law-making process. Secondly, the legislation takes the forms of both hard law and soft law. Finally, international space legislation is strongly supported and supplemented by national space legislation.
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1. For the space activities conducted by the former Soviet Union and the United States, see US-Soviet Space Cooperation (Washington, DC: US Congress, Office of Technology Assessment, OTA-TM-STI-27, July 1985).
2. For the introduction of the dual-use nature of space technologies, see Mineiro (2012, pp. 5–6).
3. For the specific contents of the commercial use of outer space, see Stella Tkatchova (Ed.), Space-Based Technologies and Commercialized Development: Economic Implications and Benefits (Hershey, PA: Engineering Science Reference, 2011).
4. Outer Space Treaty, Article V, “States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle.” Outer Space Treaty, Article VIII, “Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.”
5. Just as Google Sky and Amazon seek to become engaged in commercial space activities, Google Sky includes a number of different digitalized ways to explore the universe. See Amazon, NASA to host first 4K live stream from space.
7. “Types and Uses of Satellites.” For the detailed introduction of the key aspects of satellite applications, including civilian and military fields, see Joseph N. Pelton, Scott Madry, and Sergio Camacho-Lara, Handbook of Satellite Applications (Cham, Switzerland: Springer International, 2017).
8. “Small satellites” usually refers to those that weigh less than 1,000 kilograms (500–1,000 kilograms known as small satellites, 100–500 kilograms as micro satellites, 10–100 kilograms as microsatellites, less than 10 kilograms are called nanosatellites) (see Jakhu & Pelton, 2014, p. 2).
9. For the final report of the working group on reviewing the international mechanisms for cooperation, see UN Doc. A/AC.105/C.2/112 (2017), “Report of the Working Group on the Review of International Mechanisms for Cooperation in the Peaceful Exploration and Use of Outer Space on the Work Conducted under its Multi-year Workplan.”