Since 1967, when the Outer Space Treaty was initially signed, the legal framework governing outer space has started to fray for several reasons.
One of the most significant reasons comes from the proliferation of private actors in space, and the tensions this has created among countries. In 1967 and throughout the Cold War, the main actors in the ‘final frontier’ were countries – notably the United States and the Soviet Union.
Today however, over 70 countries and 100 private companies operate in outer space. The United States in particular has fostered the development of dozens of private space companies, most notably SpaceX and the United Launch Alliance. Overall, the “demand for commercial communications and imaging satellites, as well as business from the U.S. military, International Space Station cargo ships, and a NASA asteroid sample return mission,” have helped generate a billion-dollar industry. In fact, launch services alone generated an estimated $5.9 billion in 2014.
SpaceX in particular became a household name recently when a SpaceX Falcon 9 FT rocket exploded on a launch pad in Florida during a static fire test. The rocket was set to launch the Amos-6 communications satellite for the company, Spacecom. Despite this setback (and many others for private space companies) the exponential growth of these companies, and the demand for their services is not expected to diminish.
Due to the proliferation of private actors and business interests in space, tensions and gaps have increased in the international legal framework. For example, the Outer Space Treaty explicitly states:
- outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means;
- States shall be responsible for national space activities whether carried out by governmental or non-governmental entities;
Essentially, the governance of private activities in outer space has become increasingly difficult because no state has sovereignty over the realm, yet states are responsible for the activities carried out by companies registered in their country. Space is regarded as a “global commons” but as Dr. Cassandra Steer, Arsenault Fellow at the McGill Institute of Air and Space Law, pointed out during our interview, “For the most part there is cooperation and adherence to international guidelines. But it’s at the boundaries of these activities that we’re starting to have problems.”
For example, in response to pressure from private companies like SpaceX, the United States’ government began developing domestic laws governing private launch activities into space. In 2015 the government passed H.R. 2262 – the U.S. Commercial Space Launch Competitiveness Act – which essentially gave “those companies (US-based) exclusive rights to space, even though the law says that the government is not claiming sovereignty in space or of spatial objects.” Dr. Steer argues however, “That’s exactly what they’re doing.”
The space revolution started many years ago, but policies and regulations have failed to rise to the challenge. The lack of political will domestically, and competing interests internationally could prove detrimental for the future and security of outer space.
Who has the right to space? Can one country own it? Should we allow certain companies to build monopolies? How do we secure the vital satellites in orbit that we depend on?
These are essential questions that have yet to be answered. Dr. Steer argues that privatization is actually the way to go because it is more sustainable and innovative, but adopting efficient policies to address the outstanding issues with privatization will be the biggest challenge in the next five to ten years.
“We need an international regime that allows these industries to flourish but also protects the global commons, but not just a few countries that build a monopoly to outer space.”
To find out more, watch this video.
We will publish Part III of this series on outer space in October, which will focus on the militarization of space, and the security threats to this vital realm.
