Although the question of ‘’Who owns the space?’’ is not raised when seeking solutions to today’s legal problems, the answer to this will determine how the new-age at the door of humanity will be shaped. We now stand at the precipice of a new era in spaceflight. Missions that were traditionally undertaken by the governments are now partly assumed by private companies. Then can space belong to certain people or a country? Should rich countries that allocate resources and develop innovations in this field have more voice than poor countries that contribute next to nothing? Can countries legally deploy weapons in orbit? Who will profit from the exploitation of asteroids? In summary, will space belong to humanity as a whole or will it belong to those who hold the power? I will try to answer these questions in my article.
Where Does This Term Come From?
First, we need to go back in time in order to understand the origin of space law. The principle of airspace sovereignty was firmly affirmed in the Paris Convention on the Regulation of Aerial Navigation (1919) and subsequently by various other multilateral treaties. After this point in history, airspace was generally accepted as an addition of the subjacent territory and shared the latter’s legal status. Vertically, airspace ends where outer space begins so following this principle, every state has the right to regulate the entry of foreign aircraft in and out of their territory. But after the humans turned their look towards the stars, there had to be more agreements that would bind countries together in a common ground.
So, what made it possible for humans to aim for the stars? To find the answer, we have to understand what happened in Germany during the second world war. Developed by German engineers and being the world’s first long-range guided ballistic missile, V2 rockets (also known as Retribution Weapon-2) became the first artificial object to cross the Kármán line (the boundary between Earth’s atmosphere and outer space). Although the purpose of V2’s development was to take revenge on the heavy bombardment done by the allied powers, it unwittingly became humanity’s gateway to the stars and thus eventually led to the birth of international space law.
Beginning of the Space Race
After the inevitable defeat of the Germany, USA and the Soviet Union emerged as superpowers. Naturally, this highly sophisticated technology and the engineers that developed it were tried to be obtained by both sides for the sake of their own space programs. To this end, each side made its own operations. While Americans were conducting Operation Paperclip (1945-1959) where more than 1600 German scientists, engineers, and technicians alike, notably Wernher von Braun and his V-2 rocket team, were taken from Germany to the USA; Soviet Union was conducting the Operation Osoaviakhim (1946) where more than 2200 German specialists, along with their families, were taken from the Soviet-occupied zone of post-WW2 Germany for employment in the USSR. Although the names of the operations were different, their purpose was the same: Seize the German rocket technology and take the lead in the space race.
The start and the end date of the space race are generally accepted to be between August 2, 1955 – July 20, 1969. It started with the USSR declaring to the world that they would also be launching a satellite in the near future just after the US announced that they were planning to launch an artificial satellite for the International Geophysical Year and ended with the Moon landing with the flight of Apollo 11. Although many treaties and agreements were made during this time, none were as important as the Outer Space Treaty which I will be discussing in detail.
Outer Space Treaty
The Outer Space Treaty (10 October 1967) or formally known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies is the foundational instrument of the outer space legal regime. With this treaty, countries reached a consensus on the rights and prohibitions in space and placed those principles on a common legal basis. As well as in response to the questions that were asked at the beginning of the article, some of these principles include:
– The exploration and use of outer space shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. Outer space shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies. (This article is open to different interpretations, mainly it indirectly prohibits only the acquisition of territorial property but it says nothing about the exploitation of space resources which means it is allowable even for profit by private companies.)
– Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
– No Weapons of Mass Destruction are permitted in outer space (It should be mentioned that while it does ban weapons of mass destruction like nuclear weapons it does not prohibit the usage of conventional weapons from orbit such as kinetic bombardment which is equally destructive. This has sparked controversies in recent years.)
– The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations, and fortifications, the testing of any type of weapons, and the conduct of military maneuvers on celestial bodies shall be forbidden. The use of military personnel for scientific research or any other peaceful purposes shall not be prohibited. (Again, this article is also open to interpretation in many different ways. It does not meet today’s requirements, because the treaty was prepared more like a non-armament treaty and in terms of new ways to exploit the space it offers limited regulations.)
– States shall be liable for damage caused by their space objects and avoid the harmful contamination of outer space.
As can be seen in the aforementioned articles, the treaty has become obsolete in certain aspects that do not meet today’s needs at some points. Although these articles will be changed as time goes on, the monopolization of space by certain companies or countries should definitely be prevented. Recognition of the rule of law must be unquestionably accepted by the signatory countries, and the chance of a possible future military stand-off should be eliminated in such a way so we can progress as humanity rather than individual countries.
Used rocket remnants that come from the unregulated satellite launches pollute the earth’s orbit in such a way that if left unchecked it will make any future launches impossible. In 2009, two satellites collided in orbit for the first time in history and since then it is happening nearly every year. The existing space law falls short of solving these problems and what is worse is that the liability for damage caused by space debris is often a blurred subject. Although the country is responsible for errors caused by negligence, no country can be held responsible for the garbage created in orbit because there is no law of salvage in outer space.
Commercial Human Spaceflight
Soon, people will be taken to space by private companies and perhaps in the near future, they will also be allowed to stay on special habitats in orbit. In such a case, it is expected that this alone will raise many complicated legal issues. In the event of a possible accident, the legislature will need to have passed laws on the various possibilities that may occur. Issues such as the penalties for those responsible for the accident and the judge’s discretion will also need to be clarified.
Regardless, space law is still a new field. Although the necessity to work on it jointly by many countries makes things more difficult, humanity’s rights in space should become clear, now more than ever. If we want to develop as humans, we must put aside our nationalities and adopt a single identity which is just, simply put, being from this good Earth.
- Stephan Hobe, “Adequacy of the Current Legal and Regulatory Framework Relating to the Extraction and Appropriation of Natural Resources” McGill Institute of Air & Space Law, Annals of Air and Space Law 32 (2007): 115-130.
- Bourbonniere, M.; Lee, R. J. (2007). “Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict”. European Journal of International Law. 18 (5): 873.
- Exorcising Hitler; The Occupation and Denazification of Germany, Frederick Taylor, Bloomsbury Press
- history.com, Space Race
- Jacobsen, Annie (2014). Operation Paperclip: The Secret Intelligence Program to Bring Nazi Scientists to America.
- Neufeld, Michael J. (1995). The Rocket and the Reich: Peenemünde and the Coming of the Ballistic Missile Era
- Koch, Jonathan Sydney (2008). “Institutional Framework for the Province of all Mankind: Lessons from the International Seabed Authority for the Governance of Commercial Space Mining”. Astropolitics. 16 (1): 1–27
- Space Law: Is asteroid mining legal?. Wired. 1 May 2012.
- Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting.
- UN. General Assembly (37th sess. : 1982-1983)