Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. — Outer Space Treaty

It’s the year 2122. A space tug owned by the Weyland-Yutani Corp. and diverted by a distress signal has discovered a potentially valuable asset on a distant planet. But rival company Blue Sun says it registered an intellectual property claim on the planet’s biological resources even though it had never sent teams there.

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Who should prevail in court? The scenario may be set in the far future, but the law the decision might be based on is rooted in our past.

|  Individuals in space

All countries have laws, rules and governing bodies determining what is legal — and what is not. Emigrate to a new country, adopt a new legal system. But what about moving to a new planet or space station? Under which — or whose — jurisdiction would your new home fall? Would there be one at all?

Maritime law could be one model to follow. When a ship is in international waters, the laws of the country of registration apply. An American cruise ship in the middle of the Pacific follows the American legal system. Should that ship drift into another country’s territorial waters, it would fall under the jurisdiction of the country whose territory it is physically in.

Currently, a spacecraft is considered an extension of its country of origin. So while on your space shuttle bus to your new home on the moon, the maritime international waters model applies. Upon landing, that’s where things get complicated.

According to the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (more commonly known as the Outer Space Treaty or OST), “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”
Space belongs to no one — no law applies universally. Literally.

Enter “extraterritorial jurisdiction.” According to this principle, people are subject to the laws of their home country even outside its territories. When a person is in another country, that country’s laws supersede the home country’s laws — but when they aren’t in any country, like on the moon, the home country’s laws do apply. Two people on the moon could be subject to different laws.

The 1998 Space Station Agreement says, “Canada, the European Partner States, Japan, Russia, and the United States may exercise criminal jurisdiction over personnel in or on any flight element who are their respective nationals.” Extraterrestrial jurisdiction applies.

Yun Zhao is head of the department of law at the University of Hong Kong. In an article for Space Policy, Zhao writes: “Objects and personnel inside space objects that are transported from Earth into outer space do not enter a legal vacuum during their sojourn; they continue in a confirmed legal relationship with the Earth. This legal relationship is maintained and connected by registration.”

The Convention on Registration of Objects Launched into Outer Space requires entities to establish and maintain the registration of space objects. It’s maritime law again, just in the vastness of space instead of the waves. According to Zhao, whether the space object is governmental or non-governmental is of no consequence: If an American company launches a spacecraft, it’s an American spacecraft and any person on board is subject to American law.

So far, fewer than 700 people have been to space. All planned to return — but what will govern those who choose to stay there?

|  Extraterrestrial human settlement

The China National Space Administration has been rapidly developing its space program, including a successful landing of a rover on the far side of the moon in 2019, and Mars in 2021. It has expressed interest in establishing a crewed lunar base and plans to send crewed missions by 2030.

The Russian space agency, Roscosmos, has a long history of space exploration and has expressed interest in establishing a lunar base in partnership with other countries. NASA plans to send astronauts back to the moon by 2024 under the Artemis program, with plans for long-term space exploration and settlement. Within the next 100 years, the UAE aims to establish a human settlement on Mars. Historical explorations on Earth have taught us that whoever gets there first lays claim to the land.

But can this — and should this — apply to the extraterrestrial?

For the most part, current space exploration is an international collaborative effort. The challenges of exploring and utilizing space are immense and no single country can achieve them alone. By working together, countries can pool their resources, share expertise, and spread the risks and costs of space exploration. Look up at the International Space Station, a prime example of successful international collaboration in space, an unlikely if not impossible endeavor if it weren’t operated by a partnership of five space agencies: NASA, Roscosmos, the European Space Agency (ESA), Japan Aerospace Exploration Agency (JAXA) and the Canadian Space Agency (CSA).

Space exploration is inherently a global effort, and if this spirit of collaboration can continue, the Outer Space Treaty of 1967 could be enough to protect humankind’s interests in space. As no one may claim ownership of any celestial body, everything in space becomes the common heritage of humanity.

Perhaps this will suffice. Certainly, president of the International Institute of Space Law and ESA’s special advisor for political affairs Kai-Uwe Schrogl believes in it:

“Common heritage is the only thing that can save us,” Schrogl tells KUST Review. “We can learn from our experiences here on Earth and develop these principles of common heritage for space. Look at Antarctica or deep-sea mining.”

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GRAPHICS: Anya Lambert & Anas Albounni

In 1960, U.S. President Dwight D. Eisenhower proposed that the principles of the Antarctic Treaty of 1959 be applied to outer space. The signatories to the Antarctic Treaty (of which there were only 12 in 1959, but a further 17 signed by 2010) recognize “that it is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord.”

Sounds familiar. There are many overlaps between the Antarctic Treaty and the Outer Space Treaty, which makes sense: They’re both remote, extreme environments with potentially valuable resources, and lots of people want to explore, exploit and possibly make territorial claims.

While only 50 countries have signed the Antarctic Treaty, 112 countries are party to the Outer Space Treaty, with another 23 signed but not ratified. This is encouraging to those with Schrogl’s worldview of optimism and common heritage, but there may be a more earthly reason: The Outer Space Treaty started as the 1963 Limited Nuclear Test Ban Treaty, which prohibited nuclear weapons tests or detonations under water, in the atmosphere or in outer space. One hundred twenty-six countries signed that one.

However, as Schrogl points out to KUST Review: “We haven’t seen anyone break the Antarctica Treaty, and we haven’t seen anyone break space law.”

As for claiming land, the Antarctica example works again. During the Antarctic Treaty discussions, many countries wanted to claim part of the continent by virtue of their citizens having reached there first, with some claims overlapping. The moon and Mars may offer more surface area to divvy up, but just like it was decided no country could claim sovereignty over any part of Antarctica, so too should the Outer Space Treaty hold up.

Zhao agrees: “More than 50 years after the OST entered into force, it is justifiable to hold that the non-appropriation principle has successfully ensured the safe and orderly development of space activities.”

|  Commercial space activities

The increasing commercialization of space is leading to new legal challenges, particularly in the areas of intellectual property and the use of space resources. Private companies like SpaceX and Blue Origin are playing an increasingly important role in space exploration, and there is a growing need for regulation of their activities. This includes issues related to liability, intellectual property and the use of space resources. As private companies begin to exploit resources like water and minerals on the moon and other celestial bodies, clear legal frameworks will need to be developed to govern these activities.

For the University of Hong Kong’s Zhao, intellectual property protection plays a significant role in promoting the sustainable development of space commercialization.

“Over the past few decades, the space sector has witnessed an accelerated speed of commercialization,” Zhao says. “Due to the advancement of space technology and gradual reduced cost of space exploration, private entities are looking for new chances to participate in the development of space commercialization. However, existing policies and treaties fail to consider international intellectual property.

GRAPHICS: Anya Lambert & Anas Albounni

 

“Given that space exploration heavily relies on technology, which certainly requires intellectual property rights protection, the expansion of space commercialization further enhances such demand. Without an explicit and standing legal basis in space law that provides IP protection to private entities, they may be deterred from investing and thereby actively participating in commercial space activities.

“Space commercialization cannot be disconnected from IP protection. The essentially public nature of outer space law appears to clash with the private nature of IP law,” Zhao adds.

At its core, IP law relates to the establishment and protection of intellectual creations, such as inventions, designs, patents and trademarks. IP law offers economic incentive because it allows people to benefit from the information and intellectual goods they create, protecting their ideas and preventing copying.

For the companies charging ahead in an unclear framework, the Outer Space Treaty holds up.

“Article II of the OST also states that outer space cannot be appropriated by means of use,” Zhao says. “Therefore, from a legal point of view, neither the scientific use nor commercial use of outer space will ever be sufficient to validate a territorial sovereignty claim. Landing on the moon constitutes a ‘use’ of outer space, but it does not and can never constitute a ‘national appropriation’ that leads to territorial sovereignty. The major purpose of Article II was to protect outer space from the potential conflict which may be caused by territorial or colonization-drive[n] ambitions.”

While he wants further clarification for the future, Zhao isn’t too worried for those private entities going forth now: “In general, the IP regime we have now should be fine.”

|  Space debris

With more and more objects being sent into space, the amount of space debris is increasing rapidly. This debris poses a significant risk to both manned and unmanned space missions, and there is currently no comprehensive international legal framework to regulate its removal.

University of Hong Kong’s Zhao points to the Outer Space Treaty:

“Article VI makes states internationally responsible for their national activities in space, and Article VII makes states internationally liable for their launch of space objects into outer space and the damage caused thereof.

Sounds simple enough, and Kaitlyn Johnson, author of the Center for Strategic and International Studies report on key governance issues in space, calls space debris mitigation one of the best developed areas of space law.

“Space debris is a growing problem with almost every launch,” she writes. “Many space experts acknowledge that without norms of behavior or debris removal missions, the space environment may be permanently damaged.

There are several international mechanisms, national policies, and industry efforts to curb the creation and proliferation of space debris, but despite this progress, few international standards or norms exist.”

The few that do exist, Johnson adds, are out of date with today’s technology and the proliferation of commercial satellites. She points out the recent near miss between an ESA Earth observation satellite and one of SpaceX’s first satellites for its broadband internet provision plan. The U.S. Air Force tracked the two satellites, noting the chance of collision as 1 in 1,000. In the end, ESA chose to maneuver its satellite away from the SpaceX orbital path.

“In just this single example, it is clear that the lack of agreed international norms and processes for space-traffic management could have caused a devastating event in the space environment,” Johnson writes. “A lack of defined international regulations means the choice of how to proceed is left to the satellite operators, but in cases where satellites are not operational, and cannot be maneuvered out of the way, all the international community can do is wait and watch.”

P.J. Blount, IISL’s executive secretary and lecturer in law for Cardiff University, firmly agrees the most pressing concern for policymakers is the safety of operations in Earth’s orbit.

“At the moment, there is increasing congestion in parts of Earth’s orbital space, which has been coupled with a proliferation of space debris,” he tells KUST Review. “Space operations are coordinated through a variety of ad hoc frameworks, but as operators and objects increase these frameworks are strained under these burdens. While understanding how resource activities may work out in the future is important, on-orbit congestion and the need for space traffic is a problem that the space industry faces today.”

Johnson says 2019 saw the real start of united efforts to better coordinate space-debris management and space-traffic management measures. It started with the International Astronautical Congress in 2019, she says, where the international space community collectively called for better space-situational awareness and the need to mitigate debris-creating events in the space domain.

Later that year, the 92 member states of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) approved 21 new guidelines for space sustainability.

(For more on space debris check this out: Cleaning up our space)

These guidelines are voluntary and not legally binding, but Johnson says they signify a united effort to track all objects in space and to limit debris.

Part of this is the guideline encouraging increased communication between countries and non-governmental entities, and a United Nations information platform to manage space traffic.

2019 also saw the International Organization for Standardization (ISO) update its primary document on space-debris mitigation guidelines, making its compliance requirements stricter. The ISO crafts and promotes international standardization for policy areas including food safety, health care, agriculture, commercial technology and space.

GRAPHICS: Anya Lambert & Anas Albounni

Compliance with ISO standards is generally accepted as industry best practice, and Johnson points out that several nations follow ISO guidelines and either write the standards directly into their national policies or use them as a basis for crafting unique policy.

Developing international guidelines and policies takes time, and Johnson worries that real efforts to protect the space domain will not occur until a major debris-creating event takes place. However, she also highlights the strong industry and multinational consensus that protecting the space environment and focusing on efforts to mitigate the creation of debris should be an international priority.

|  What lies ahead?

“The 1967 OST was made before the era of space commercialization,” Zhao tells KUST Review. “It contains only general principles; there is a need to further clarify the application of these principles in our modern life with a lot of new development. There are loopholes in the current legal regime and an urgent need for the international society to negotiate to come up with some documents guiding new space activities.”

Schrogl also highlighted the need to update and develop space law for the modern space race, but remains optimistic about the future:

“The threat that member states (of the OST) go alone is omnipresent,” he tells KUST Review. “We have cases and cases where we see this on Earth but we have also seen over the last 50 years or so where respect for international law and the rule of law is growing. Wherever countries think ‘I can be first,’ they try and find loopholes or even use brute force, and we have to be realistic about that. But at the same time, if you look at it with a historical perspective, it’s not so bad how, in particular, space law has been applied and respected.”

So what does 21st century space law look like?

For Zhao, expert in intellectual property law, IP is the main concern. He highlights scientific experiments carried out in space where no countries can claim sovereignty and says we’ll need to determine the rules for IP claims for these results. For him, whether the national legal regime would apply to these situations is the big question.

Schrogl doesn’t know what the future holds for space law but recognizes the sheer number of issues to be ironed out:

“Space law has expanded. From the beginning, it was meant to provide an understanding of the status of outer space and the status of the actors in outer space. This it did extremely well: It’s a space for free use and non-appropriation, states are responsible and liable, and private actors can only act if they are authorized by the states. This holds true today. But space law’s extension has to regulate the behavior of these actors. We need provisions for space traffic management to avoid accidents and collisions, for cleaning space debris, and for long-term sustainability.”

Space law isn’t standing still: There’s COPUOS working to develop guidelines and principles for the exploration and use of space resources. The International Institute of Space Law helps international organizations and national institutions cooperate to develop space law, and the International Astronautical Federation leads space advocacy across 75 countries. There are 11 academic journals dedicated to space law and policy.

And while Schrogl admits progress is slow, “we’re building a new dimension of space law.”