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About this book

This contributed volume addresses the future development of space law in light of our ever-growing space activities, the multiplicity of new space actors and the challenges posed by novel space technologies. Unlike existing space law literature, it sets its sights on the future, envisaging how space law could and should evolve in coming decades.

Written by experienced professors, academics and practitioners in the field, this edited volume constitutes a valuable tool for understanding the current state of space law, the challenges it is called upon to address and the new phase it is about to enter. In addition, this book initiates a discussion de lege ferenda, addressing the letter and spirit of space law in the world of modern and future space activities.

These papers were presented at “The Space Treaties at Crossroads: Considerations de lege ferenda,” held on August 28 to 29, 2015, in Athens, Greece. The conference was jointly organized by the National and Kapodistrian University of Athens and the Institute of Air and Space Law of McGill University

Table of Contents

Frontmatter

Chapter 1. Positive Space Law and Privatization of Outer Space: Fundamental Antinomies

Abstract
Over the past few years, an intense debate on the development of private commercial activities in outer space has commenced. This discussion presupposes the existence of relevant intentions, the attraction of significant investment, and the development of the necessary technology, in order for planned private activities in outer space, such as space tourism or the exploitation of mineral resources from celestial bodies, to enjoy a promising future.
George D. Kyriakopoulos

Chapter 2. Interpreting the UN Space Treaties as the Basis for a Sustainable Regime of Space Resource Exploitation

Abstract
Long considered only from a theoretical perspective, a spate of initiatives revolving around the exploration and utilization of the Moon and asteroids, both public and private, have recently reintroduced the relatively long-standing United Nations (UN) treaties to the pressing issue of natural resource appropriation. In direct response to the budding development of an American space mining industry, the United States adopted the Commercial Space Launch Competitiveness Act in November 2015. This Act was the first legal instrument to explicitly grant property rights to private enterprises over resources extracted from asteroids and other celestial bodies. Though the aim of domestic initiatives such as the 2015 US Act is to increase legal certainty for companies and their investors, this goal can only be fully achieved by an elucidation of the fundamental principles of international space law that they wish to implement. This article wishes to contribute to this daunting challenge by offering a possible interpretation of the existing UN space treaties in light of recent developments in space mining regulation.
Philip De Man

Chapter 3. The Effectiveness and Applicability of the Moon Agreement in the Twenty-First Century: Will There Be a Future?

Abstract
At the dawn of the twenty-first century, a significant number of nations showed keen interest in space activities that focus on the exploration of the Moon and near-Earth asteroids. This prospect, which is mainly a result of the privatization and commercialization of such activities, reveals new challenging tasks for space-faring nations and raises the issue of effectiveness of the already existing legal framework.
This paper considers the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement) as the most relevant legal document to address the topic in question. This position is followed because the Moon Agreement can be viewed as a text designed specifically to provide for a globally acceptable legal regime to govern such unavoidable development. However, during the past decade, legal and policy concerns – including concerns on the interpretation of the current legal regime – have arisen and put the effectiveness of the Moon Agreement in the spotlight. For instance, the lack of definition of the term “celestial body” or issues concerning state responsibility, as drawn in Article 14 of the Agreement, reveal significant legal gaps that need to be addressed to enhance the possibility of a wider acceptance of the Moon Agreement. Through the analysis of the aforementioned, the author will emphasize the need that the Moon Agreement be reviewed and reconsidered by the future international community. Therefore, this paper addresses questions on the future of this legal instrument and on whether it should be reformed or discarded once and for all.
Eleni-Anna Mavroeidi

Chapter 4. The Interplay Between Space Law and International Investment Law: Local Equity Requirements as a Model for Standards of Global Action in the Uses of Outer Space

Abstract
Private investment in the realm of space activities is an ever-growing reality. Only in the first quarter of 2018, more than US $1 million was invested by the private sector in start-ups in the space industry. As a result, space technologies are developing fast, national laws are trying to adjust to the new realities, and traditional space actors appear in different roles.
Lukas Vanhonnaeker, Maria Manoli

Chapter 5. From Little Things, Big Things Grow: How Should We Regulate the Commercial Utilization of Small Satellite Technology?

Abstract
Since the launch of Sputnik 1 in 1957, space-related technology has developed to the point that humankind is now engaged in a broad range of space activities. The utilization of this technology forms an integral element of global society, such that the world is dependent upon constant and unimpeded space “access.” Yet, the existing international legal and governance framework, largely developed in a very different era of space activities (1960–1980s), is now straining to provide the necessary certainty, standards, and protections and is not sufficiently detailed or nuanced to comprehensively regulate recently evolving space technologies. This will increasingly impact upon each country’s space “security” and may impede opportunities for industrial progress and commercial initiative. The disconnect between law and technological development will become even more pronounced in the future with the development of small satellite technology, which offers both strategic and commercial opportunities, but also challenges, to existing space participants while facilitating the market entry of new space “actors.” This paper discusses a number of the more significant regulatory requirements that apply to small satellite technology now and into the future under the international lex lata of space law. Since the Space Treaties were not designed to apply to such technology, this represents an unsatisfactory regulatory regime. This paper will therefore argue that the imperative will be to develop and adapt legal and regulatory frameworks to appropriately address the demands and inevitability of new technological innovation, not the other way around.
Steven Freeland

Chapter 6. Using Space Objects in Orbit as Transaction Objects: Issues of Liability and Registration de lege lata and de lege ferenda

Abstract
Using space objects in orbit in commercial transactions may entail serious practical difficulties under the current regime of international space law. This paper analyses such problems and proposes solutions at the example of air law, adjusted to the particularities of space operations.
Michael Chatzipanagiotis

Chapter 7. Is the Launching State the Only “Appropriate State” to Register a Space Object? Change of Registry in Case of Change of Ownership

Abstract
The United Nations treaties on the exploration and use of outer space (“space treaties”) date back to the beginning of the space era, when space actives were limited and generally carried out by only a few governmental actors. At the time international space law was called to reply to specific needs of the international community, such as to protect against the establishment of State sovereignty in outer space, to prohibit its use for non-peaceful purposes, to define the rights and obligations of States with regard to space objects. The regulation of private activities were addressed, but only as a subject of authorization and supervision of a certain State (the “appropriate State”), that should also bear international responsibility for them.
Amalia Dimopoulou

Chapter 8. From Sea to Outer Space and Back: Political, Economic, and Environmental Considerations for Ocean-Based Space Launching Activities

Abstract
The connection between space activities and the marine domain exists since the early days of the Space Era. Auxiliary tasks such as position tracking, telecommunications, and space object recovery conducted by vessels and installations were already part of the routine since the 1960s. Eventually, various experimental and operational rocket launchings were being carried out by vessels, submarines, as well as platforms, though mainly suborbital. During the last decades, a new trend has emerged that entails not only launching but also landing of space objects from and at the seas (hereafter “Ocean-Based Space Activities” – OBSAs). Such a kind of activity involves various advantages in financial, safety, and operational terms, but since it has not been widely practiced or studied, there are certain potential threats and knowledge gaps that ought to be examined further on. The scope of this paper is to highlight the prospects and dangers for Launching States on the one hand and on the other to emphasize on the priorities and rights of Coastal States and other ocean users.
Gerasimos Rodotheatos

Chapter 9. Judicial Settlement of Space-Related Disputes: Sovereignty’s Final Fetters

Abstract
State practice provides evidence that each international situation is capable of being determined as a matter of law. Currently, sovereign independence of States is curtailed by the international rule of law. Most, if not all, judgements rendered by the World Court contribute influentially to the legal process and the pacification of international society. The Court enjoys a potentially unlimited scope of jurisdiction ratione materiae. The idea of settling judicially a space dispute was not treated as a panacea that will secure international peace and solve international conflicts. State sovereignty, as far as space disputes are concerned, remained relatively free of any relevant conventional impingement. The Court enjoys the authority and jurisdiction to hear and try a space law dispute. Out of 72 ‘optional clause declarations’, no State has included a ratione materiae reservation, therewith excluding disputes originating from a conventional space law instrument or even customary international space law. The Court remains at the service of international community in its entirety and has been radiating through the entire global community a consciousness of the international rule of law. Access to the Court has become ‘universal in nature’. Space law is a new field indeed; settlement of disputes is most certainly not. Although there is no concrete and hard evidence to support the view that a multiplicity of international tribunals has impaired the unity of jurisprudence, what the legal audience focuses on is the influence of the Court on the system of substantive law. Future cases dealing with issues of space law should be referred to the World Court as a full Court, for a wide and comprehensive experience will be needed.
Stratis G. Georgilas

Chapter 10. The Legacy of the Dinosaurs: Regulation of Planetary Defence and Near-Earth Objects at a Global Level

Abstract
In recent years, Near-Earth Objects (NEOs) have caused increasing concerns among space scientists and policymakers. Despite the initiatives at UN COPUOS, international law falls considerably short of addressing issues pertaining to the detection and mitigation of hazardous NEOs. This paper proposes the creation of a Convention on Planetary Defence. The convention will address co-operation issues among States and, moreover, establish a Global Fund for Planetary Defence, which will be used for R&D on NEOs, for identifying best practices in deterring potential attacks, and for compensating relevant damages.
George Leloudas, Michael Chatzipanagiotis, Konstantina Liperi

Chapter 11. Legal Challenges of the New Space Race to Mars: Proposal for the Use of a Three-Tier Legal Framework

Abstract
The beginning of the space race, which took place during the 1950s, led to the establishment of the foundations for the regulatory framework for space activities, i.e. the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. Today, however, space missions significantly differ from the achievements of the 1950s as humanity is close to deploying manned missions to Mars. Yet, the relevant legal framework remains the same as 40 years ago, which raises doubts on its current relevance.
The present space race to Mars – mainly led by the private sector – already reincited discussions on appropriation, use of resources and possible settlement. To support their projects, private companies are interpreting the treaties loosely. According to them, the legal term “celestial bodies” does not include Mars, while the non-appropriation principle allegedly only applies to states, not to possible private owners.
Even though private actors constitute the driving force in future space activities, states are still responsible for their national activities. Therefore, the existing legal shortcomings of the OST need to be revisited. However, amending the OST or creating a new space treaty is unlikely to occur due to world politics; hence, the need for a novel solution to incorporate and reinforce the fundamental philosophies behind the OST.
Therefore, this paper proposes the use of three-tier legal frameworks, crafted after the legal model adopted for the so far most complex space mission, the ISS. More specifically, this paper suggests that Mars missions be regulated explicitly and individually among participating entities, which would facilitate enforceability. Thereby, missions to Mars would still be guided by the principles of the OST, yet protected through specific obligations.
Sarah Germann, Anja Nakarada Pecujlic

Chapter 12. The Consolidation of the Five UN Space Treaties into One Comprehensive and Modernized Law of Outer Space Convention: Toward a Global Space Organization

Abstract
The development of the so-called NewSpace industry, together with the emergence of new space players, both governmental and nongovernmental – which did not exist when the current international space law was formed – implies a new approach toward space-related matters including new regulatory considerations. Some of the reasons for such new approach would include the necessity for international regulatory certainty as it is required by investments, the promotion of global public interest in outer space, and the preservation of international peace and security.
Francesco Gaspari, Alessandra Oliva
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