Space is the last frontier for humankind. We are entering a new era where soon humankind will be travelling thousands if not millions of kilometres to settle planets and to mine their abundant and precious resources. Space will be the focus of the modern economy with companies racing to get there, to create colonies and mining operations. Unfortunately, these advancements in space travel and technology have brought with them new legal challenges to the international legal order.

Current legal challenges

To begin with, there are only 5 international treaties relating to space: the Outer Space Treaty, the Rescue Agreement, the Registration Convention, the Liability Convention and the Moon Agreement. The Outer Space Treaty (referred to by some as the ‘Magna Carta of Space’) represents the basic legal framework of international space law. The 50-year-old agreement establishes that ‘space shall be free for exploration and use by all nations, but that no nation may claim sovereignty of outer space or any celestial body’.

The Outer Space Treaty, however, contains provisions the language of which is not specific and is often somewhat ambiguous with much left to interpretation of states (e.g. Article XI on the international consultation process). The issue of current and completed space debris, for instance, is not addressed by the Treaty. It also gives limited guidance on the mitigation of orbital and space debris, and barely contains any provisions on newer space activities, such as space mining and commercial colonisation of space. Moreover, none of the treaties mentioned above contain a definition of where space starts and where the earth’s atmosphere ends.

Although there are various UN General Assembly resolutions concerning space and human conduct in space, these are merely recommendations or declarations (ex: UN RES/62/101). They have no legal binding character on nations and corporations.

Hence, one can argue that the built-in flexibility of the current system of space treaties by allowing for a wide array of interpretations and definitions to emanate from said treaties, has resulted in a watered-down, shell of a legal system. This blog will argue that as the commercial and security activities in space grow at an increasing rate, we can no longer rely on these relatively archaic treaties and diplomatic channels to resolve the ever-changing and complex legal issues in the vacuum that is the cosmos.

Orbital/space debris

A major concern voiced by many experts in space and astronomy is the increase in space debris. The debris can be as large as a motorcycle and as small as a tool, and move around at deadly speed, threatening cosmonauts, space stations, and satellites. Harm to any satellites could have an impact on global commerce, commercial and location services.

Furthermore, we must also be aware of the potential of the Kessler effect, the theory proposed by Donald Kessler of NASA. It argues the possibility of a scenario where the amount of orbital debris in Low Earth Orbit (LEO) would reach a critical mass (amount) due to the current rate of launching satellites. As a result, a chain reaction of collisions between debris would occur, preventing further launches of objects into and through LEO, thus exiling humanity from planetary orbit and space in general for some time.

Therefore, it is pertinent that a system for the registration of space vehicles apart from the Registration Convention be implemented. Under the current Registration Convention, the onus is on the state itself to choose to register and no specific timeframe has been given for this “voluntary” system of registration to happen. On a side note, a proposed clean-up of LEO should also be considered by the UN and relevant agencies and organisations to avoid this terrible scenario.

Corporatisation of space

A company that can colonise and exploit space first may even surpass nation-states in its influence and wealth (though many Western transnational corporations already have more wealth and arguably influence than some countries (mainly third world nations)), basically an economic monopoly or oligopoly over space. Monopolies and oligopolies have traditionally dismantled possible competitors and prevented new competitors from emerging in their market via predatory and unjust methods. In this context, the activities of corporations in space should be subject to scrutiny beyond the scope of issues considered thus far in current international space legislation.

Corporatisation of space is particularly important in relation to planetary colonisation. Companies that could very conceivably colonise planets (most likely Mars) ought to assume the responsibilities of a government for their colonies (providing basic utilities, a justice system, security apparatus etc.). This raises questions such as: who would lead the colony on Mars? Would it be an executive from the company? Or would that person be an elected member from that colony? That is why there have to be rules and regulations on how companies conduct themselves with their space colonies and the subjects of such colonies. In theory, we do not allow an environment of exploitation on this planet, so why allow it elsewhere in the universe?

Moreover, new human rights must be developed regarding space colonies. The reliance on the use of artificial air on spacecraft gives rise to one such right: the right to air. No one can and should deprive another of air in space or anywhere. Another right for example could be the right to contact family members. As the members of the colony would be previous members of our planetary and regional societies, they will have family, friends, children and spouses that they would like to keep in contact with, even if millions of kilometres apart.

To conclude, comprehensive international space regulation and legislation should be developed to resolve current and future issues in relation to the ever-growing commercial and security use of space. This requires consistency and predictability from a legal regime instead of ambiguity and never-ending debate. The current private space race should be an incentive to create, clarify and codify space regulation that will ensure that the last frontier is not a lawless vacuum. As space is the only frontier left for humanity to explore and conquer, we must focus on how we can ensure a successful and just evolution of humanity into an interplanetary and hopefully an intergalactic species.