The difference between space policy and space law

In many conventions, talks and meetings where I have been, people have wandered what’s the difference between space policy and space law. For this new Space Law article on Space Legal Issues, I thought it would be good to quickly discuss the meanings and implications of both space policy and space law. Space policy is more about politics, whereas space law is more about law.

The intertwined notions usually reflect a State’s political will concerning outer space. The space policy of a State or a national or international organisation is the domain of public policy which concerns space activities. It covers both the choice of development axes (research, inhabited space, launchers…), the share of public funds allocated to outer space, and the definition of the organisation responsible for its definition and implementation.

Space policy

Space policy is the political decision-making process for, and application of, public policy (the principled guide to action taken by the administrative executive branches of the State with regard to a class of issues, in a manner consistent with law and institutional customs) of a State (or association of States) regarding spaceflight and uses of outer space, both for civilian (scientific and commercial) and military purposes. A policy is usually defined as “A definite course or method of action selected from among alternatives and in light of given conditions to guide and determine present and future directions”.

Space policy intersects with science policy, since national space programs often perform or fund research in space science, and also with defense policy, for applications such as spy satellites and anti-satellite weapons. It also encompasses government regulation of third-party activities, such as commercial communications satellites and private spaceflight. Space policy also encompasses the creation and application of space law, and space advocacy organisations exist to support the cause of space exploration.

In the United States of America

The space policy of the United States of America includes both the making of space policy and law through the legislative process, and the implementation of the policy in the civilian and military U.S. space programs, through regulatory agencies. The early history of the United States of America’s space policy is linked to the Space Race of the 1960s, which gave notably way to the Space Shuttle program. There is a current debate on the post-Space Shuttle future of the civilian space program.

The United States of America’s space policy is drafted by the Executive branch at the direction of the President of the United States of America, and submitted for approval and establishment of funding to the legislative process of the United States Congress. Space advocacy organisations may provide advice to the government and lobby for space goals.

The President of the United States of America may also negotiate with other nations and sign space treaties on behalf of the U.S.A., according to the President’s constitutional authority. Congress’ final space policy product is, in the case of domestic policy, a bill explicitly stating the policy objectives and the budget appropriation for their implementation, to be submitted to the President of the United States of America for signature into law, or else a ratified treaty with other nations.

In Europe

The European Space Agency (ESA) is the common space agency for many European States. It is independent of the European Union, though the 2007 European Space Policy provides a framework for coordination between the two organisations and Member States, including issues such as security and defence, access to outer space, space science, and space exploration.

European space policy is based on the cooperation of three types of actors: the Member States of the European Union, the European Union and the European Space Agency (sometimes referred to as the space triangle). Member States have the strongest decision-making power since they define space policy and funding at all levels.

Space legislation

Space legislation or space law is the body of law governing space-related activities, encompassing both international and domestic agreements, rules, and principles. Parameters of space law include space exploration, liability for damage, weapons use, rescue efforts, environmental preservation, information sharing, new technologies, and ethics. Other fields of law, such as administrative law, intellectual property law, arms control law, insurance law, environmental law, criminal law, and commercial law, are also integrated within space law.

Space law is thus different from space policy. The origins of space law date back to 1919, with international law recognising each country’s sovereignty over the airspace directly above their territory, later reinforced at the Chicago Convention in 1944. The onset of domestic space programs during the Cold War propelled the official creation of international space policy.

Space law was created in the early 1960s as part of the United Nations, under the leadership of the United States of America and the U.S.S.R., then engaged in the race for the Moon. In the context of tension linked to the Cold War, the two great powers have sought to prevent space from becoming a zone of conflict.

The founding text of this new branch of international law is the Outer Space Treaty (OST) of January 27, 1967. This framework agreement was supplemented by four specific international treaties: the Astronaut Agreement of April 22, 1968, the Convention on International Liability for Damage Caused by Space Objects of March 29, 1972, the Convention on the Registration of Objects Launched in Space of January 14, 1975, and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of December 18, 1979.

These texts lay down a series of great principles which are: freedom of use and exploration of outer space, non-appropriation of outer space, peaceful uses of outer space, protection of astronauts, authorisation and supervision of private space operations, responsibility for potential damages caused by space objects, and jurisdiction and control.

Since its adoption, space law has gone through several periods. First developed in the context of public international law to frame the activities of States in outer space, space law experienced a first significant change from the 1980s with the adoption of national laws aimed at regulating space operations conducted by private companies. Thus, while international law remains the general framework for space activities, they are now directly governed by national law. In France, space activities fall under LOI n° 2008-518 du 3 juin 2008 relative aux opérations spatiales.

The second change in space law aims to place the law at the service of entrepreneurial innovation. This evolution originated in the United States of America, first through the establishment of public-private partnership contracts. Through the 2005 Commercial Orbital Transportation Services (COTS), the 2008 Commercial Resupply Service (CRS), and the 2010 Commercial Crew Development (CCDeV), NASA has signed several contracts to boost the privatisation of outer spaceflights with innovative and cost-effective solutions. Entrepreneurial innovation is also encouraged by the adoption of specific laws in two new areas to support the private initiatives that led to the emergence of what is today-called “New Space”: sub-orbital flights through the 2004 amendment to the Commercial Space Launch Act, and the exploitation of celestial bodies though the 2015 Space Resource Exploration and Utilization Act.

Space powers, delegating business to companies, are now refocusing on their military space activities. While some demonstrate their ability to destroy satellites in Low Earth Orbit (LEO), and others announce the creation of space-specific armed forces, all fear the possible overflows resulting from this new militarisation of outer space. Finally, the development of outer space activities, with the increase of potential space debris, announces a saturation of some orbits; there is an urgent need to develop “space traffic management” tools, as it is already the case with airspace.