Who defines law in outer space?

As humanity increasingly establishes itself off Earth, what laws will govern its activities? On this planet, governments enforce their own national legal systems, and international regimes also exist to a certain extent. But what are the rules off-world? Who defines those rules? And who enforces them? These are all compelling questions, particularly when one considers space race tensions. To learn more about laws in outer space, Filling Space spoke with Thomas Cheney. Besides being a doctoral candidate in Space Law at Northumbria University, he is the Executive Director of the Centre for a Spacefaring Civilization.

How does space law compare to other areas of law?

There are two types of space law: international space law and national space law. International space law is part of international law akin to the law of the high seas or the Antarctic treaty regime. It is a set of agreements, written or unwritten, legally binding and not (so-called soft law) which guides and governs the activities of states in outer space. One aspect of this (Article VI of the Outer Space Treaty) makes states responsible for the activities of their nationals in outer space, and they are required to authorize and supervise these activities. This has given rise to bodies of national space law, which is how states regulate the activities of their nationals (which covers both private persons and corporations). What national space law covers depends on the country, and unsurprisingly countries like the United States have more developed bodies of national law than others. Though national space law needs to conform with international space law.

The main way that space law differs from other areas of law is its lack of “development”. This is perfectly understandable because despite all the talk of the so-called “New Space revolution”, humans, especially outside of government, still don’t do much in space beyond launch and operate satellites in Earth orbit, and the body of law governing that activity is well developed. Space mining, on-orbit serving, private human space flight, in-space manufacturing, and other “New Space” activities are still things for the future, still things in development. So, it is no surprise that the law governing those activities is still in development, too.

However, there is another way that space law is unique, and that is because outer space is a unique environment. That is meant literally but also in the sense that space law is focused on the future of humanity in a way that many other areas of law are not. Space lawyers have the freedom and the privilege (and I would argue the obligation) to think about the future of humanity. Is the development of space law simply about expanding human activity beyond the immediate environment of planet Earth, or is it about building a better world to the benefit of all? Personally, I think if it’s not the latter then it’s not worth the effort.

What are some of the greatest ambiguities with regards to space law and what efforts are being made to address them?

A lot of the ambiguities are simply definitional and relate to the fact that space law was developed during the 1960s to cover governmental spaceflight. There are a number of ambiguities that could be highlighted. One such ambiguity is over the definition of a “space object”. “Space object” represents probably the foundational block of the space law regime. “Space object” is essentially analogous to “spacecraft” and covers everything from the individual modules of the International Space Station to a nanosatellite. States are required to register space objects and from that liability, jurisdiction, and ownership flow.

However, space objects have to be launched into outer space from Earth. This means that if “spacecraft” start being manufactured in outer space, especially if they are made out of “space-derived material” (think metal mined from an asteroid), then they aren’t technically “space objects”. They would therefore fall outside the existing registration and liability regime.

Groups such as The Hague Space Resources Governance Working Group have considered this issue. They favor creating the term “space product” to cover such objects which would then be subject to the same or a similar regime as “space object”. To the extent that I have thought about it, I prefer simply striking “launched from earth” from the definition and considering any human-made object in outer space to be a “space object”. But it is an ongoing discussion.

Another ambiguity that is actually in the process of being resolved is the “appropriability” of space resources. Article II of the Outer Space Treaty prohibits the appropriation of outer space, the Moon, and other celestial bodies. It has always been clear that this means that one (whether state, person, or corporation) cannot claim territory in outer space, but there has been question as to whether this applies to resources, especially once they have been extracted from the celestial body they were located in.

I won’t detail the arguments for or against this proposition, but essentially since the US passed its space mining law in 2015 there have been regular discussions of the topic of space resources at the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space. In these discussions, there has been a clear shift to an acceptance of the ability to “appropriate” resources once they have been removed from the celestial bodies. It is too early to talk about an opinio juris (or legally significant international consensus), and there is still disagreement about who and how to regulate and authorize space mining – essentially, can states do this themselves or does there need to be an international regime or body akin to the International Seabed Authority? At the state level (and in international law that’s what matters), there has been a broad acceptance of the legality of space mining in principle.

There are other ambiguities but those should give a good taste. We are in an exciting period of space law history, just as for the space sector in general. As we develop new activities we will need new laws and we should be bold and innovative in developing those new laws.

How did you become interested in space law?

The short answer is I found a book in the library. The longer answer is I have always been interested in outer space – I’ve been a Star Trek fan literally as long as I can remember and I devoured every book on space and space programs I could get my hands on. Three books in particular are responsible for changing a nerdy obsession into a career. In middle school, I discovered John Lewis’ Mining the Sky and Robert Zubrin’s The Case for Mars, which both captured my imagination and helped me realize that the science fiction future of humans on Mars and beyond didn’t necessarily have to remain science fiction forever.

But while I enjoyed science, I wasn’t any good at it, particularly once math beyond algebra came into play. So, space wasn’t a career ambition. Besides, I was more interested in history, politics, and law. I was interested in pursuing an academic career (either in history or law) and I was interested in questions of sovereignty and the nature of the state. While doing my undergraduate dissertation on the Falklands Islands sovereignty dispute, I discovered and read a book called An Introduction to Space Law. It made me realize that sovereignty questions (especially where space mining was concerned) were not insignificant issues for space law. And I realized that this was the thing for me, a perfect mix of my interests. Space law lets me make a professional career out of reading about the development of states in ancient Mesopotamia, the emergence of property in 12th century England, and human colonies on Mars in the 22nd century. I love it.