Historical evolution of international space law and its current and future challenges

Technological development over the past decades dictated a dynamic pace for the creation of new areas of legal regulation, including the law governing outer space. The most important international treaty regulating that domain, the Outer Space Treaty (hereinafter OST), was adopted only a few years after the launch of the first satellite—Sputnik I, and it set out the main legal principles related to the exploration and use of outer space. However, the broadness of the principles contained in the OST has often been problematized, as their precise scope and meaning is unclear, making it difficult to efficiently apply these principles in practice. This problem is becoming increasingly evident with the new challenges brought by the changing nature of space activities and its consequences.

One of the main challenges is the increased involvement of private (non-state) actors in the space sector, as private entities are not directly and explicitly bound by international law and human rights instruments. Non-state actors, furthermore, pursue their private interests, that are not always in line with the interests of humankind, and are, according to Miller (2019, 34–35) much more likely to pose a threat to humanity, due to their absence of fear of reprisal, the lack of accountability and sometimes the indifference toward escalation of wars or other disruptions of peace, such as terrorism.

Dominance of private interests in outer space significantly contributes to another challenge—space pollution, which could result in even more severe contamination of our planet (Cirkovic 2022, 325–326). Pieces of space debris have already fallen on Earth, hitting not only the oceans, but also populated areas (see Byers et al. 2022, 1093). Certain pieces, such as those recovered after the Kosmos 954 accident, were highly radioactive, and due to the fact that they were scattered over a large area of land, could easily lead to lethal accidents (Weintz 2015). Besides those already mentioned, new challenges are being brought by expansion of space activities toward space tourism and space mining, which are all still not explicitly regulated.

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This image shows the path of radioactive debris in Canadian territory, created by the crash of Kosmos 954, that was later carefully removed in the process of Operation Morning Light. Image: Cosmos-954 reentry footprint, 18 June 2007, Natural Resources Canada.

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Lower Earth Orbit is becoming crowded—functional and non-functional space objects are taking more and more space increasing the risk of collisions and other accidents, as well as creating more risk for future space activities. Image: Debris plot by NASA, 1 February 2005, NASA employee.

Lower Earth Orbit is becoming crowded—functional and non-functional space objects are taking more and more space increasing the risk of collisions and other accidents, as well as creating more risk for future space activities. Image: Debris plot by NASA, 1 February 2005, NASA employee.

In the previous century, there were, however, certain expansions of the space law regulation. In the decade following the adoption of the OST, some of its principles have been concretized by the three additional international space treaties, but the precise scope and content of most of them still remains to be determined. A later attempt at further concretization, aimed at establishing a more precise legal regime for the exploration and use of the Moon—the Moon Agreement—turned out to be more or less ineffective, as it has only been ratified by 18 States, not including any of the most space active states, with one of the States Parties—Saudi Arabia—actually withdrawing its signature in January of 2023. These examples demonstrate that the effort to further regulate the developing space technology existed, but did not manage to result in a comprehensive legal framework, capable of efficiently addressing all current issues.

Traditionally, the process of drafting international space treaties developed at the United Nations’ Committee on the Peaceful Uses of Outer Space (hereinafter: UN COPUOS). However, due to the difficulties in reaching consensus in the UN COPUOS hindering further development of space law through international treaties, the recent regulatory efforts have taken the form of soft law mechanisms or non-legal agreements. One such example are the Artemis Accords—initially presented as a non-binding political agreement expressing certain common views of partners in the NASA-led Artemis mission. With more and more states signing the Accords, however, there is a risk that they will crystalize into law, the effect of which will be to bypass the law-making process of the UN COPUOS and thus end multilateralism in the development of space law (Nelson 2020, 4–5).

Such new endeavors may prove problematic in case they create rules that are in contradiction with the existing law and regulation governing outer space. Contradictions in international law lead to its fragmentation and can therefore pose an issue for legal safety and predictability, causing certain rules to be rendered ineffective, making it necessary for different sub-branches of international law to develop in a more harmonized manner (Grief et al. 2018, 204; see also Peters 2017, 672–675). Otherwise, the fragmentation can negatively impact the protection of health and lives of humans. The danger of such consequences is greater when documents are drafted outside the auspices of international organizations and without public scrutiny, as it is more likely that they will pursue predominantly commercial or military aims or without giving proper attention to the aspects of protection of the health and lives of all humans. The concern for the latter must have a place in the law-making process, especially when regulation deals with technology, capable of significantly affecting the health and lives of humans. That includes space technology, as space objects are particularly vulnerable to become the convenient targets of cyberattacks or similar threats to humans, due to the growing dependence on critical infrastructure and basic services used in our everyday lives (such as transportation, navigation, telecommunication, natural disaster management, etc.) on satellite data (Akoto 2020; Hobe 2019, 101). A recent example is the cyberattack of 24 February 2022—the beginning of Russian invasion in Ukraine, aimed at the KA-SAT GEO satellite network used by the Ukrainian army, confirming that the threat of satellites being used as targets in armed conflicts in order to cause disruption of the services they provide, is very much real. The future regulation of outer space must therefore include a human rights perspective. The proposed new human right, developed during the hearings of the Airspace Tribunal, aimed at protecting the freedom to live without physical or psychological threat from above, has been presented as one of the ways to achieve this goal (see Grief et al. 2018).

Interrelation between the proposed human right and the existing legal framework governing outer space

Even though it regulates an area spatially separated from Earth, most authors agree that space law is not a self-contained regime because even though it provides specific rules and principles that govern outer space, it allows other rules of international law to serve as a normative background and thus apply in situations where space law fails to provide a clear answer (Hobe and Pellander 2012, 3). I will, thus, here examine how the proposed new human right, as part of international law, could be interrelated with the framework of space law as set out in the OST.

As explained below, there are several principles enshrined in the OST that can be relevant for the establishment of the proposed new human right, because they highlight the same humanitarian aspect or aim to achieve the same end goal—the safety and wellbeing of humans. That makes the proposed human right highly compatible with the existing legal framework. The latter can thus provide a basis for the establishment of the proposed new human right, as well as guidance for answering certain important questions regarding its nature and effects, for example, as discussed by Grief (2022, 236), whether the proposed right should be qualified or absolute. On the other hand, these principles are written in a broad manner and thus need further concretization, in order to be more directly applicable to real-life situations, and the proposed new human right can contribute to such concretization.

Article I of the OST sets out the basic principle of the freedom of use and exploration of outer space. Simultaneously, however, it introduces certain limitations to such freedom, namely, that a State must not exercise it in a way that would impair the equally relevant freedom of other States (De Mann and Munter 2018; Hobe 2009, 34–38), and that the use and exploration of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all humankind (Gorove 1971, 100). Those limitations pursue a similar goal as the proposed human right, as both aim to ensure that the freedom to use and explore outer space is exercised with regard to the interests of the broader population on Earth. Not only is the proposed right compatible with the limitations contained in Article I, it can also serve as a means to achieve their concretization by highlighting the importance of the absence of physical or psychological threat from above as one of the fundamental interests of humankind.

Article III of the OST dictates that activities in the exploration and use of outer space shall be carried out in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding. The object of this principle is to minimize threats to international peace, and to prevent the further escalation of an arms race in outer space (Ribbelink 2009, 65–67). In addition, Article IV of the OST imposes certain limitations on the weaponization of outer space, as it prohibits placing in orbit around the Earth any objects carrying nuclear weapons or any other kind of weapons of mass destruction, installing such weapons on celestial bodies or stationing them in outer space in any other manner. The proposed human right strives to achieve similar goals as those two Articles, as it aims to eliminate or at least minimize physical and psychological threats from above that stem from artificial objects, especially weapons. There are, however, certain shortcomings to be noted regarding Articles III and IV. For example, the scope of international law rules, applicable to outer space by means of Article III, remains undetermined (Ribbelink 2009, 67), and the prohibition in Article IV does not cover conventional weapons or military satellites (Schrogl and Neumann 2009, 78), meaning that the use of satellite data for military activities on Earth is therefore not explicitly prohibited (Hobe 2019, 106). It remains further unclear what precisely constitutes a ‘nuclear weapon’ or a ‘weapon of mass destruction’—for example, could psychological damage caused by a certain weapon play a role in defining it as weapon of mass destruction? A debate sparked by the proposed human right specifically defining its content and terms could offer further knowledge about the dangers of the weaponization of outer space, highlighting both physical and psychological harms stemming from threats from the above, and thus significantly contribute to the further concretization of principles enshrined in Articles III and IV.

Article VI of the OST establishes the international responsibility of States for national activities in outer space, whether such activities are carried on by governmental agencies or by non-governmental entities, and the obligation of assuring that national activities are carried out in conformity with the provisions set forth in the OST. States usually do so through the process of authorization and licensing of the particular activity. It is unclear, however, what the precise consequences of non-conformity with Article VI are, especially from the perspective of the victim who suffers damage from a particular space activity. To some extent the issue of damage (including loss of life, personal injury or other impairment of health) is covered by the liability of the launching state enshrined in Article VII of the OST (and concretized by the Liability Convention), but there it is limited to cases where such damage is caused by a space object, and—even more problematic—it is extremely challenging to prove causality and to identify exactly which space object caused the damage. The establishment of causality is problematic especially in cases of extremely small pieces of space debris, sometimes smaller that 1 cm and thus almost impossible to track.

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This picture demonstrates that space debris consists of a great variety of objects, some of which are merely a piece of metal, and for such objects it is practically impossible to prove to which space object they initially belonged. Image: SpaceJunk, Miguel Soares, 2001, 3D animation, 2001, Miguel Soares.

The proposed human right is compatible with the principles of responsibility and liability, as it entails a certain legal response to an unlawful and harmful activity, and it could also provide additional legal grounds for addressing damage caused by threats from above. This would extend the possibilities of the victim to seek compensation, as it would open the door to other tribunals and bodies tasked with the protection of human rights, such as the European Court of Human Rights or the UN Human Rights Committee (See Grief 2022, 235–238). It must be noted, however, that the proposed human right does not solve the issue of responsibility and liability of non-state actors, which are becoming the leading actors in space activities, since they are not directly bound by international law. The liability of non-state actors is mostly regulated by national legislation. There have also been some attempts to ascribe international responsibility for human right violations to non-state actors—at least in certain cases (Clapham 2010, 2006). A clear extension of liability and responsibility for human rights violations to non-state actors would make the proposed human right significantly more effective.

Article VIII of the OST establishes that a State which registers an object shall retain jurisdiction and control over such an object, and over any personnel thereof, while that object is in outer space or on a celestial body. This Article does not elaborate on how control and jurisdiction over an object must be carried out. Instead, guidance for answering this question must be sought in other articles of the OST and other rules of international law. In this regard, the proposed human right could assist by providing a condition that jurisdiction and control must be exercised so as to not pose a physical or psychological threat to people on Earth. On the other hand, Article VIII may prove useful in determining the extraterritorial application of the proposed human right. As noted by Grief (2022, 235), human rights instruments determine the obligation of a State to protect human rights of individuals when they are on its territory or when under that state’s jurisdiction beyond its national borders. As Article VIII establishes jurisdiction over a space object to the state that registers such an object, it could thus create important implications for the extraterritorial application of human rights. In the case of the proposed right that would mean that Article VIII creates a basis for its extraterritorial nature, at least in cases where a physical or psychological threat would be deriving from a certain registered space object—the state of registry would, then, be the entity responsible to ensure the protection of this right. The situation becomes more unclear, however, in cases when a space object is sold to another state while in outer space—so called on-orbit transfers of ownership—as the state that originally registered the object loses control over it once the sale is completed.

Article IX of the OST highlights the importance of avoiding harmful contamination of the outer space environment. This entails potentially significant implications also for the Earth environment, as certain forms of harm in outer space have negative effects on the health and lives of humans on Earth (See, for example, Byers et al. 2022, 1093). Such an example is the increasing amount of space debris—pieces of non-functional satellites and other artificial objects that are moving in orbit at immense speed, being multiplied, for example, by collisions between themselves or by certain harmful activities, such as the performance of anti-satellite (ASAT) weapons tests (David 2013; Chen 2011, 538–539; Chow and Mitchell 2021). Even though neither space debris nor ASAT tests are explicitly prohibited by law, it has been argued, that they present harmful contamination mentioned in Article IX of the OST, even though the precise scope of this Article remains disputed.

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This graphic demonstrates the growing number of objects in outer space, and shows how much the amount of space debris drastically increases after collisions or ASAT tests. Image: The growth of all tracked objects in space over time. Updated version of the plot from [3]. Data extracted from the General Catalog of Artificial Space Objects [5], 21 April 2022, A. Lawrence, M. L. Rawls, M. Jah, A. Boley, F. Di Vruno, S. Garrington, M. Kramer, S. Lawler, J. Lowenthal, J. McDowell, M. McCaughrean.

The proposed human right could fill in the lacunae and add to the protection against harmful contamination, extending it to the prevention of threats from above. On the other hand, the fact that Article IX is aimed at minimizing harmful effects of space activities, means that it also contributes to the same goal that the proposed human right seeks to achieve. It can be thus concluded that both respective legal instruments are interrelated.

Conclusion

This brief analysis shows that international space law and the proposed human right are interrelated in various ways. The highlighted principles of space law strive to ensure that space activities are conducted in a way that does not impair the interests of other states and the well-being of people on Earth. The proposed human right follows a similar goal, through means of minimizing physical or psychological threat from the above. Thus, it can be concluded that it does not stand in contradiction with the existing legal framework of space law, but rather is in line with it. On the other hand, the proposed human right could play an important role in further concretization of the aforementioned principles of space law, in their application in concrete situations and in closing the loopholes created by the rapid development of space technology.

Finally, the further development of space law and the proposed human right must thus go hand in hand. Only in this way will the fragmentation of the subbranches of international law be mitigated and the international legal framework develop in a more coherent manner.

Even if the proposal for the new human right is not successful in the end, the process of its design through the Airspace Tribunal will highlight the human rights dimension of outer space which remains crucial for the development of space law in a human-friendly manner.

Notes

  1. 1.

    Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 610 UNTS 205, 18 UST 2410, TIAS No 6347, 6 ILM 386 (entered into force on 10 October 1967).

  2. 2.

    It must be noted that there exist certain regulatory precautions aimed at ensuring that private activities do not violate international law and human rights. For example, OST in its Article VI contains a requirement that states must authorize space activities of non-governmental entities before they are conducted and then they must also continuously supervise their realization. This means that private space activities have to be regulated by national legislation. It must be noted, however, that this could in some cases clash with other interests, as states are highly dependent upon the services provided by private actors (the best example here is probably NASA’s use of transport and launch services carried out by Elon Musk’s SpaceX) as well as their investments and contributions to states’ economies.

  3. 3.

    Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 19 December 1967, 672 UNTS 119 (entered into force on 3 December 1968); Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, 24 UST 2389, 10 ILM 965 (1971) (entered into force 1 September 1972); Convention on Registration of Objects Launched into Outer Space, 12 November 1974, 1023 UNTS 15 (entered into force on 15 September 1976).

  4. 4.

    Agreement governing the Activities of States on the Moon and Other Celestial Bodies, 5 December 1979, 1363 UNTS 3 (entered into force on 11 July 1984).

  5. 5.

    For example, see Inter-Agency Space Debris Coordination Committee (IADC), Space Debris Mitigation Guidelines 2001, Revised 2007; approved by United Nations General Assembly (UNGA) Resolution 62/217.

  6. 6.

    The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids, NASA, https://www.nasa.gov/specials/artemis-accords/img/Artemis-Accords-signed-13Oct2020.pdf.

  7. 7.

    See the International Law Commission's Report on Fragmentation of International Law: Difficulties Arising From The Diversification And Expansion of International Law (Fragmentation Report), U.N. GAOR, 61st Sess., Supp. No. 10, U.N. Doc. A/61/10 (2006), pp. 25, 32, 35, 36.