This post is on a topic that I have been mulling for some time now, but was prompted by the recent editorial in the Financial Times calling for the laws of outer space to be ‘updated.’ I have no real issue with the piece in and of itself, there are more than a few points that I could nit-pick but I’m not going to. What I want to address in this post is the general theme of the need to ‘update’ space law. This tends to crop up quite frequently, and it is not unreasonable that it does so. The Outer Space Treaty is now over 50 years old and even the youngest of the ‘space treaties’, the ‘failed’ Moon Agreement turns 40 this year (if we count from the date of opening for signature, that is.) Furthermore, the developments of the ‘commercial’ space industry over the past twenty or so years have changed the space landscape considerably and it is legitimate to ask whether the treaties drafted in the late 1960s are still relevant as we approach the third decade of the 21st century.
Treaty on Principles
It is true that the Outer Space Treaty, as mentioned, is now over fifty years old and that the nature of the space ‘sector’ has changed dramatically over the last fifty years (although given the writings of space advocates in the 1950s and ‘60s from the likes of von Braun and Arthur C. Clarke we can debate how unforeseeable some of these developments were to the drafters of the Outer Space Treaty) but does that require an update or an overhaul of the Outer Space Treaty?
The full official name of the Outer Space Treaty is the ‘Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.’ As its name suggests it is a treaty on principles, it is a foundational document that outlines key principles upon which the body of the law governing activities in outer space should be based. Some of these are fairly vague such at the exhortation that activities in outer space should be conducted for the benefit and in the interests of humanity. Certain aspects of the Outer Space Treaty were further developed by subsequent treaties such as the Rescue Agreement which expanded upon Article V’s provisions on providing aid to astronauts in distress and the Liability Convention and Registration Convention which elaborated upon provisions in Articles VII and VIII respectively. The Outer Space Treaty is a framework not a comprehensive, all encompassing ‘convention’ or ‘codification’.
While it is true that neither the Outer Space Treaty, nor indeed any of the ‘core’ space treaties, directly address commercial space entities that is not necessarily an issue. First, international law, which is what the treaties are, addresses States, as it is States that are the subject of, and indeed, creators of, international law. Second, Article I of the Outer Space Treaty grants the freedom of use of outer space, and that freedom should be interpreted broadly, granted it is restricted by other provisions of the space treaties, such as Article II of the Outer Space Treaty which prohibits national appropriation of ‘outer space, the Moon and other celestial bodies’ by ‘claims of sovereignty, use, occupation, or any other means’, but those restrictions still leave significant scope for activities in outer space. Furthermore, Article VI of the Outer Space Treaty does address commercial entities, indeed all non-governmental entities, admittedly indirectly, but again, international law addresses States, and Article VI of the Outer Space Treaty permits non-governmental activities in outer space but makes States responsible for the activities of their nationals and requires States to authorise and supervise such activities. That is to say that the Outer Space Treaty, despite its age is flexible enough to allow for developments, largely because it is a treaty on principles which avoids getting overly specific.
Frozen in time?
Which segues nicely into my next point, space law has hardly been static in the last fifty years. Granted there haven’t been any new treaties since the failure of the Moon Agreement but there have been numerous developments on the international stage ‘moving the ball forward’ these range from the Space Benefits Declaration to the Space Debris Mitigation Guidelines and the ISS Agreement to more recent efforts such as The Hague Space Resources Governance Working Group’s Draft Building Blocks for the Development of an International Framework on Space Resource Activities. But there have also been significant developments in space law occurring at the national level, one only need to look at the laws enacted in the United States and Luxembourg on space mining in the law few years to see that. Or indeed, that developments on the regulation of commercial human spaceflight have occurred via national legislation such as the US’ 2004 Commercial Space Launch Amendments Act, New Zealand’s 2017 Outer Space and High-altitude Activities Act, or the UK’s 2018 Space Industry Act. While the Outer Space Treaty is indeed a product of the 1960s the law of outer space isn’t stuck there.
Beware unintended consequences
While there may be merit to amending the Outer Space Treaty (though for the above discussed reasons I reject any calls to replace it and would, if a treaty changes or development are necessary, prefer supplementing a la the Rescue Agreement and the Liability and Registration Conventions) one does need to be wary of unintended consequences. Attempting to alter the Outer Space Treaty may introduce unwanted changes alongside those considered desirable or even necessary, and potentially risks fracturing or even destroying the existing space law regime upon which it is based. Considering space law is and has been evolving to meet new developments without amending the Outer Space Treaty, it is probably best avoiding doing so, particularly given the state of COPUOS and indeed the international ‘community’.
It is understandable that people feel there is a need to ‘update’ space law, however that doesn’t need to take the form of a new treaty or amendment of existing treaties. Space law, just like international law in general, is constantly updating, in effect this is what customary international law is all about, as is ‘soft law’. Often calls for ‘updating’ space law are about more than the Outer Space Treaty or its age. And some of the issues, like the lack of a ‘dispute resolution’ system are problems that are not unique to space law. But international law is all about compromise, and in that compromise is its strength, a treaty no one signs up to is not worth a whole lot (look at the Moon Agreement, or UNCLOS before the Implementation Agreement). There are areas where space law needs to develop, I have raised the issue the definition of ‘space object’ potentially excluding objects manufactured in outer space before but I am confident that these issues will be resolved in time, without a major overhaul of the existing regime. And in the end, we need to make sure that we don’t throw the baby out with the bathwater. Particularly at this moment in time when the very concept of the multilateral rules based international order is under attack on multiple fronts.