Outer space is not free of regulation, but it’s certainly not flush with it either.
A hubcap rolls down the road. A car swerves out of its lane to avoid it – into oncoming traffic. The resulting carnage sends people to hospital, tow trucks scrambling and insurance companies to their lawyers.
It’s an unholy mess. And that’s despite the well-established processes of assigning responsibility and liability.
But what if the hubcap was a rocket faring?
What if the car was a satellite? And the lanes, orbits?
Then there’s the matter of every new fragment becoming yet another deadly hubcap …
It’s a threat that can end humanity’s access to space.
What if two countries want to mine the same crater on the moon or an asteroid? Who gets access to already crowded orbital highways? What constitutes an act of war?
And that’s why – against all the odds – the world is bringing itself to do something about it.
“Space technology has raced forward and the law has not kept pace with all the new things we are doing, and planning to do, ” says Professor Steven Freeland. “Yet space touches us all – we all need access to what it offers”.
Earlier this year, the Western Sydney University and Bond University international law expert was elected co-chair of the United Nations’ new Working Group on Legal Aspects of Space Resource Activities. But he’s just one of dozens of Australian legal and technical experts wading into the fray in a bid to thrash out a consensus on what “the peaceful use of space for the benefit of all mankind” actually means.
‘For all mankind’
Australian National University Institute for Space, mission specialist, Dr Cassandra Steer says space is already critical for our everyday lives.
“Something the size of a pea can be lethal to a satellite,” she says. “And you and I depend on them for internet banking, weather forecasting, climate tracking, aviation and shipping control, search and rescue, firefighting – and all kinds of daily activities.”
Not everything bothering the UN is about the “Kessler Syndrome” effect – where a chain reaction of debris strikes creates such an extreme orbital shooting gallery that nothing can survive.
But it is about averting potential crises before they happen.
Space has never been a “Wild West”, says Steer. At least not since the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) was established in 1958 and the adoption of the Outer Space Treaty in 1967.
And it works.
It works because it needs to work. Otherwise, there would be chaos. And nobody benefits from that.
“There’s an incredible amount of law governing space,” she says. “Yes, there are a lot of grey areas. But not only do we have the treaties, we also have all of domestic law. The Outer Space Treaty says that everything in outer space must be done in accordance with international law. So it drives me nuts when I read that space is lawless – or the Wild West.”
We know what road rules involve. Aircraft share common procedures and standards. And we have a United Nations Convention on the Law of the Sea (UNCLOS).
So what’s so hard about space?
“If you’ve got a whole bunch of nation states operating in certain areas of the Moon in relatively close proximity, those analogies work really well,” Freeland says. “You’ve got to be operating under the same rulebook. But you’ve got to work out what those rules are because – you know – some countries will say ‘keep left’, while others want to keep to the right.
“That’s what this diplomatic negotiation process is all about.”
Space itself is a whole separate matter.
Just which direction is “left” anyway?
“When it comes to space law, I think you could say we kind of went from the horse and cart era in the 1960s to five-lane freeways by the start of the 20th Century,” says Steer. “And now we’re at multiple five-lane highways that intersect each other from all different directions and orientations. Every vehicle is on a different trajectory. But they can still end up intersecting with each other. And they’re doing so at ten times the speed of a bullet.”
For decades, only a few dozen new objects were launched into space each year. That’s now measured in the hundreds. Soon, it will be thousands.
And as their interactions get more complex, so must the means of managing them.
More on space laws: Aussie Moon missions bump up against legal grey areas
“A lot of people will say the Space Treaty is out of date, that it’s not fit for purpose, that technology’s moved on. And I always say ‘no’,” says Steer.
“These treaties are a framework, kind of like a constitution. A constitution lays down principles and values. But it doesn’t regulate everyday activities.”
When technologies and uses change, it’s the everyday rules and regulations that must be adapted to apply the constitution.
“In fact, the Outer Space Treaty places most of the responsibility on nation states,” Steer says. “It says that states are responsible under international law for all their activities in outer space, whether they’re governmental or commercial.”
“Nobody has ever invoked liability in collisions in space,” says Freeland. “And it’s only ever been invoked once for resulting damage on Earth – and that was in the 1970s. But that’s not to say it might be invoked in the future.”
Liability only works when you can prove the cause.
And while most of the larger pieces of space junk have been identified, many haven’t. And almost none of those smaller than 10 centimetres can be traced to their origin.
But all it takes to destroy a multi-million-dollar satellite is a speck of paint – moving at 15,000 kilometres per second.
“Liability only comes into play once the damage is done,” Freeland says. “What we want to do is minimise the possibilities of the damage happening in the first place.”
The idea of cleaning up space is seductive, he adds.
One analogy is an abandoned car on the side of the road. Its licence numbers reveal its owner. Parking regulations allow its removal. It has grappling points built into its design. And it’s harmless civilian technology.
But space is more complicated than that.
“Who owns it? Is it what they say it is? Has it got sensitive technology? What about nuclear power? If you try to grab it, will it crumble into deadly little pieces?”
And that’s why space needs regulation.
Materials standards may mitigate the risk of fragmentation. Standardised grappling points may help recover dead satellites. De-orbiting procedures could remove the need for both.
“Nothing is ever perfect,” Freeland says. “There will always be risk. But we need to find ways to minimise risk and maximise benefit.”
A host of legal, diplomatic and technical experts are being gathered under the auspices of the new Australian Space Agency. They will add Australia’s voice to debate over matters as diverse as the road rules for Australia’s proposed Lunar rovers to common standards for satellite tracking.
“Australia has a real opportunity to have a voice in a whole range of important issues,” says Freeland. “And its voice is growing.”
Space is hard
It turns out that there is something more complex than rocket science. And that’s space law.
“People may criticise the way the UN works. And of course industry complains everything is too slow. But it’s actually quite remarkable that we have been able to get to where we are as quickly as we have,” Freeland says.
The new COPUOS Working Group on Legal Aspects of Space Resource Activities was formed in April. And that’s despite heightened global tensions after the invasion of Ukraine by Russia.
More on space law: Do we need new space law to prevent space war?
“It shows there are issues where we can move forward,” he says. “But every step has to be debated. Every word has to be negotiated. It’s a process that takes time. But on really big issues like space resources, space traffic management and space sustainability, you really must have a multilateral process. Otherwise, you won’t get a consensus.”
First, everyone must agree to talk.
Then it’s a matter of agreeing on what to talk about.
And that’s long before any agreement is reached.
“You’ve got to get 110 countries to agree. And every one of those countries has a power of veto. That’s why they don’t establish many working groups…”
Steer says that’s why international talks are moving away from specific laws toward common principles. “Instead of trying to identify a specific weapon or technology to define what’s lawful or not, we’re focusing on what is or is not suitable behaviour. How can we come up with internationally agreed norms, rules and principles and break out of the Catch-22 of trying to come up with exact legal definitions and prohibitions”.
She says this may require a new way of doing “international cooperation.”
And there is precedent.
“In New Zealand, there is a river that has been given legal personality. That means it has legal rights. But to represent those rights, you need a board. And that board has directors who include local Maori representatives, government agencies and private sector interests. And it works well because everyone needs to look after the interests of the river, as well as their own”.
We have liftoff
In 2019, the COPUOS Scientific and Technical subcommittee agreed on 21 Guidelines for the Long-term Sustainability of Outer Space.
“These guidelines are being adopted on a voluntary basis,” Freeland says. “But they’re already prompting debris mitigation plans, establishing international operating procedures, and improving transparency about what’s going on up there.”
That’s because the 110 or more countries that agreed on the guidelines must then interpret them into national laws.
Australian satellites must now be certified as complying with Australian standards – just as car manufacturers must. Australian regulators must establish and enforce those standards.
And while there is the risk of “flags of convenience” – similar to where shipping companies register in nations with lax shipping laws – Steer says even those laws are better than nothing.
“Laws alone are not going to solve these problems,” she says. “We need to have transparency and communication. So we need codes of conduct and practices. Only then can we hope to keep ahead of the technology.”
And that, Freeland says, needs participation.
“If humanity wants to engage in these sorts of activities, it needs to find a way that allows everyone to have buy-in,” he says. “Because if you and I have buy-in on a process, we’re much more likely to adhere to it. And that’s because we’ve had the opportunity to contribute to the rules than have them foisted upon us”.
Jamie Seidel is a freelance journalist based in Adelaide.