Space Law and the New Space

Let’s have a look at Space Law and the New Space. This article describes the issues surrounding the regulation of “New Space” activities. Today’s space field is characterised by new activities, new actors and new concerns. New activities in space such as space mining or large constellations of small satellites raise issues that are not clearly addressed in the UN space treaties.

Steps undertaken by the international community and individual States to address these gaps (through international guidelines or national law), will be explained. New actors include start-ups and universities that are not always aware of legal implications and requirements. States enact national law to comply with their treaty obligations, and the importance of building capacity and raising awareness among new actors will be highlighted.

Some examples of how States regulate the activities of private entities will be provided, as well as an overview of the work of the United Nations in this field. The emergence of new activities and new actors also raises new concerns, such as a “gold rush” for space resources or congestion and collisions in Low Earth Orbit (LEO). Efforts to address these concerns will be outlined.

State Responsibility and Authorisation of National Activities in Outer Space

On Space Law and the New Space, Article VI of the Outer Space Treaty of 1967 (OST) provides that States must authorise any space activities carried out by their nationals (public entities, private-commercial entities, non-profit organisations…). States must continuously supervise these activities and ensure that they are in line with the provisions of the OST and general international law.

This provides the basis for enacting national space laws, and many space faring nations have enacted national legislation to specify the terms and conditions for obtaining such authorisation. In most cases this is done by creating a licensing mechanism.

State Liability and Third-Party Liability Insurance

Article VII of the OST and the 1972 Liability Convention provide that launching States are liable for damage caused by space objects, even if they are operated by a private entity. For this reason, national space laws often provide that the State has a right of recourse against the private entity and that the latter is obliged to purchase liability insurance, so that the State can recover any funds it may have to pay as compensation for damage under the treaties.

The State’s duty to compensate under the treaties is unlimited, but usually they “cap” the liability of their licensed private entities under national law, because they will not be able to assume and insure against unlimited financial risk. Several States have specified that operators must procure and maintain third-party liability insurance to cover damage up to sixty million Euros. Should the damage be higher, the remaining amount will be borne by the State.

International and National Registration of Space Objects

Continuing with Space Law and the New Space, Article VIII of the OST and the 1976 Registration Convention provide that the State of registry has to provide written notification of the objects it launches into outer space by registering them. This obligation has an important legal effect, because the registered space object is under the jurisdiction and control of the registering state, which is one of the object’s launching state(s). The international register is maintained by the UN, and States must also maintain a national register.

States usually implement this obligation in their national law by obliging private entities to provide certain data to the State, so it can comply with its treaty obligations. Some New Space activities complicate the practice of registration; for instance, in case of constellations of hundreds of small satellites, or when satellites are sold to a company in another State while in orbit. Also, the creation of objects from space resources raises the question of whether these need to be registered, as technically they have not been “launched into outer space”. Solutions will have to be found to address these issues.

Implementing International Soft Law in National Space Law

Besides implementing binding treaty provisions through national space law, there is also a need to regulate matters that are not covered by the UN space treaties. Even though States are not legally bound by such international guidelines, they may choose to follow them, and ensure through national law that their nationals abide by them as well. This is already usually done with the UN space debris mitigation guidelines.

Likewise, States can contribute to the “long-term sustainability of space activities” (LTSSA) by ensuring that their private entities comply with the new guidelines recently adopted by the UN in this field. LTSSA can be defined as: “the ability to maintain the conduct of space activities indefinitely into the future in a manner that realizes the objectives of equitable access to the benefits of the exploration and use of outer space for peaceful purposes, in order to meet the needs of the present generations while preserving the outer space environment for future generations”.

New Actors and New Activities: New Legal Issues

Finally, concerning Space Law and the New Space, the emergence of new actors and new activities raises issues that have not been addressed in the UN treaties drafted in the 1960s and 1970s. Large constellations of small satellites will lead to more congestion in outer space and create the need to find a pragmatic solution for registering a large number objects that stay in orbit for only a short while. Constellations and swarms will also bring an increased risk of collision, which means that Space Traffic Management rules will have to be elaborated.

Activities to commercially use space resources raise the need for priority rights, the establishment of safety zones and to find a way of sharing benefits in order to comply with the OST. Because the treaties do not provide answers to these questions, some States have enacted national law. It would be preferable, however, and more beneficial for all stakeholders, to agree on an international framework for such activities.

There are other examples of the need for clarity to regulate new activities. Another concern is that new actors, whether they are newly emerging space faring nations or unconventional players such as start-ups and universities, need to be made aware of the existence of rules and regulations to avoid disregard and non-compliance, as has already happened once, hence there is a need for capacity-building activities. That is what can be said concerning Space Law and the New Space.