At first glance, space law can be defined as the set of rules and principles aimed at regulating the space beyond the aerial zone and the objects, celestial bodies and related activities within it.
It would then be necessary to first identify the exact delimitation between air space and cosmic space, i.e. the boundary between the earth's atmosphere and outer space. This operation is far from simple: as a matter of fact, the United Nations Committee on the Peaceful Uses of Outer Space, a committee created in 1958- one year after the launch of Sputnik, the first artificial satellite sent into orbit around the Earth by the Soviet Union on October 4, 1957 – did not yet agreed on the most appropriate criterion to adopt. From the moment technology allowed man to penetrate the "fourth environment", various methods have been suggested ranging from the so-called Kármán line of primary jurisdiction (which takes its name from the Hungarian-American engineer who developed it in 1957 and fixed it at an altitude of 83.6 kilometers above sea level) to the limits progressively identified inter alia on the maximum altitude reached by an airplane, on the gravitational attraction and the lowest perigee of an artificial satellite. These criteria, aimed at the delimitation of this sort of "vertical frontier" can be ascribed either to a direct approach, that tries to distinguish between two natural environments, or to an indirect approach, according to which the outer space would be defined in terms of devices used, i.e. the type of mission conducted.
Therefore, the determination of the exact boundary line already poses problems that might trigger international controversies, since the delimitation of outer space is essential to establish the precise scope of application of the legal regime aimed at regulating the activities that take place within it and, consequently, the impact on the operational aspects of space research and exploration. On the other hand, adopting under claims of scientific and technical progress a single criterion while neglecting the others could lead both to practical difficulties due to the inability of many countries to observe and control such a designated boundary, and to an obstacle to the development of space technology, ending up, paradoxically, causing more problems than it would solve. Thus, the legally relevant but not legally defined limit is currently linked, in a rather empirical way, to the fact that aircrafts are not able to exceed the altitude of 25 km from sea level while spacecrafts and other space objects orbit at least 95 km from sea level, so that in the intermediate band (i.e. between 25 and 95 km from sea level) there is no activity of aircrafts nor space vehicles, accounting for ascent (after take-off) or descent (in view of landing) from or to Earth of space objects.
The Treaties of Space
The failure to identify such limit has not prevented the emergence of international agreements aimed at regulating cosmic space. The legal perimeter can be represented as a pentagon whose sides are determined by agreements made between the late 60s and late 70s. In a time span of just ten years, the Treaty on the activities of States in the field of exploration and utilization of outer space including the Moon and other celestial bodies (1967), the Convention on the rights of astronauts and the rights to objects in outer space (1968), the Convention on the liability for damage caused by space objects (1972), the Convention on the registration of space objects (1975), the Treaty on the Moon and other celestial bodies (1979) have been stipulated. The fil rouge linking these agreements is the idea – at times explicit, at times not -that outer space as well as the activities and benefits deriving from it should be aimed at improving the well-being of all members of the international community and, in general, of humanity, with an emphasis on promoting international cooperation. Preceding these space law agreements, the Treaty on the partial ban on nuclear tests of 1963 had a significant impact on cosmic law to the extent that prohibited nuclear experiments in the atmosphere and in space, precisely because, in the midst of the Cold War, the primary objective was to avoid the cosmos to become a battlefield between super Powers, giving concrete form to the theory of mutual assured destruction.
Hence, the starting point of the discipline of space must be found in the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies” of 1967, which currently counts 110 States Parties, and states, since the first paragraph of the Article 1, that the exploration and utilization of outer space must be conducted for the good and in the interest of all countries, regardless of the level of their economic or scientific development, since the cosmos, the Moon and other celestial bodies "shall be the province of all mankind". This Treaty, normally referred to as the Outer Space Treaty, constitutes a sort of Magna Carta of space and, in addition to reaffirming the prohibition to place nuclear weapons in the cosmos and to limit the use of the Moon and other celestial bodies for peaceful purposes only, it also states how the outer space must be freely explored and used by all States and how it must never be the object of occupation or exclusive appropriation through claims of sovereignty. It should be emphasized that the Treaty does not prohibit the exercise of activities in space by non-governmental entities, but specifies that these require the authorization and continued supervision of the State Party in which the non-governmental entity is located, so that it accounts for full state responsibility regardless of whether the exploration activity is carried out by governmental or non-governmental entities (Article VI).
In the following decade the other four treaties have been added:
- The first is the The Rescue Agreement of 1968, or Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, now ratified by 98 States. The Rescue Agreement places an obligation on States to provide assistance to astronauts in distress and to cooperate in order to allow their smooth return to Earth, as well as to take the necessary measures to recover fallen space objects (an obligation that falls on the country of launch if the object falls into a territory not subject to the sovereignty of any State).
- Subsequently, the Convention on International Liability for Damage Caused by Space Objects (1972) was adopted. The so-called Space Liability Convention, ratified by 98 States, outlines a dual liability regime of the State of launch: absolute strict liability (i.e. against which no cause of justification is allowed) for damage caused by objects launched into orbit to the earth's surface or to aircraft in flight and a liability for fault (according to which the State is liable only if the damage results from its own fault or the fault of persons for whom it is responsible) for damage caused to other space objects, including persons and/or property on board such object.
- Later, in 1974, the Convention on the Registration of Objects Launched in Outer Space was drawn up: the so-called Registration Convention, to which 69 countries currently adhere, aimed at drawing up a registry of space objects, both in the State of launch and at the Secretary-General of the United Nations.
- The latest agreement is the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, also known as the Moon Treaty or Moon Agreement, which - in reaffirming the prohibition of all military use of celestial bodies, including testing of weapons or the establishment of military bases - states that such celestial bodies (with the exception of objects entering the Earth's atmosphere, such as meteorites) constitute "common heritage of humanity". From this principle derive both negative obligations - such as prohibitions to carry out explorations or use celestial bodies without the approval of all other States, to alter the environment of celestial bodies, to declare exclusive sovereignty over any territory of celestial bodies - and positive obligations - such as the duty to notify the Secretary General of the United Nations of all space activities and discoveries made as a result of these activities, the obligation to take appropriate measures to avoid accidental contamination of the space environment, the constraint for States taking space objects during research activities to make part of them available to all countries and the scientific community. Yet, even if the Moon Agreement entered into force in 1984, to date, it has been ratified by only 18 countries, none of which is a Space Power: this reluctance can be reconducted to two main reasons. First, the Treaty states that States Parties have international responsibility for national activities, whether conducted by governmental agencies or non-governmental bodies, and must also ensure that national activities are carried out in accordance with the provisions set out in the Treaty. Second, the fear that, due to the principle of “common heritage of humanity” (primarly elaborated in the Montego Bay Convention in relation to oceanic funds), those States possessing the technological know-how and resources necessary to reach the Moon and other celestial bodies should have shared the benefits earned from them with other members of the international community.
Following the aforementioned ad hoc treaties tracing the legal framework for space activities, the international regime of the cosmos is enriched by other rules too, both pacts (such as the 1998 International Space Station Intergovernmental Agreement between Canada, the Russian Federation, Japan, the United States and ten other member states of the European Space Agency, dismantling the ideology of blocks while promoting cooperation) and secondary legislation (such as the Radiocommunications Regulations - binding on the members of the International Telecommunication Union, specialized agency of the United Nations - under which States "shall bear in mind" to use the frequencies "rationally, efficiently and economically, ... so that countries or groups of countries may have equitable access to those orbits and frequencies, taking into account the special needs of the developing countries and the geographical situation of particular countries" thus reversing the principle first come, first served to one based "on the principle of equal rights of all countries, large or small, to equitable access to these bands" ). Within this framework, it is worth mentioning the existence of soft laws too, such as the four principles on specific aspects of space activities developed by the United Nations Committee on the Peaceful Uses of Outer Space, respectively: direct satellite television (1982), remote sensing (1986), the use of nuclear energy sources in Space (1992), international cooperation in the exploration and use of Space, with particular reference to the needs of developing countries (1999).
Private Ownership in Space
Within the shadows of such ambiguous, and often blurred, legal framework - determined by the fact that the Outer Space Treaty, in its brief 17 articles, does not directly mention the issue of the use of space resources by private individuals, which resulted, at the time of the creation of the Treaty, a very unrealistic scenario – stands the U.S. Commercial Space Launch Competitiveness Act signed by President Obama in 2015. According to this Act, the U.S. does not only authorize private space mining activities, but also recognizes the right of private companies registered in their territory to appropriate of and use for commercial purposes the resources obtained in space. The U.S. legislation has been an inspiration for Luxembourg which, in 2017, enacted a law that recognized private companies the possession of the resources they find in space, such the minerals contained in asteroids. Opposed by states such as Belgium and the Russian Federation, these national regulations, are based on a jurisdictional analogy with the Montego Bay Convention. According to such convention, while on the one hand no state can claim its own sovereignty on any part of the high seas (as it is considered res communis omnium, namely a “thing of public domain”), on the other hand, it allows fishing activity and exploitation: likewise, the prohibition in the Art. II of the Outer Space Treaty, with regard to the appropriation of the Moon and celestial bodies, would not imply an extension of this prohibition also to the resources contained in them. The rationale behind these legislations is to outline a legal framework of reference that guarantees private individuals the rights on the resources they extract from space, to avoid the ultimate risk of relocation of these companies, moving to countries that are not part of the Outer Space Treaty. The Executive Order On Encouraging International Support for the Recovery and Use of Space Resources, promulgated on April 6, 2020 by President Donald J. Trump, is part of this legal framework and confirms the support of the U.S. policy to a full commercial exploitation of the resources of the cosmos.
In conclusion, the legal framework defining the new Space Economy appears multi-faceted, and governed by a vast plurality of elements. Among them, the variable geometry of States ratifying the many agreements and international instruments; the absence of a clear hierarchy of principles and treaties – where it is not certain which old rule is still valid or which has been overshadowed by a new one - ; the blurred lines of the economic/commercial element linked to the exploitation of the resources of the space by public and private bodies; the lack of an institutional apparatus such as a Conference of the Parties or a Secretariat, bodies usually required in the most recent multilateral treaties. Summing up these aspects, nowadays cosmic law shows all the signs of the time in which it was developed, suffering from various legal uncertainties and fragilities that could be tackled either through pull factors for investments by pioneering companies (such as Jeff Bezos' Blue Origin, Richard Branson's Virgin Galactic or the SpaceX - Space Exploration Technologies Corporation - by Elon Musk who last developed the Falcon 9 rocket for NASA), or through push factors, especially in light of the dual nature of aerospace applications, both applicable, per nature, to the military and civil sectors. Precisely this last point - namely the fact that the development of any aerospace application, even of a non-commercial nature, may pose a potential security threat - led President Donald J. Trump, in December 2019, to declare outer space a war-fighting domain and to establish the United States Space Force, the sixth independent branch of the U.S. armed forces. Such move clearly violated the Outer Space Treaty, in light of the prohibition, stated in Article IV, to place any type of weapon of mass destruction, to install military bases, to carry out experiments for military purposes, to perform military maneuvers of any kind in outer space.
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