Context 

As the ILA white paper notes, space law is a relatively new branch of international law, with developments arising in the middle of the 20th century in response to the realities of the Cold War and the United States and USSR’s space race. However, since the United States’ successful landing on the moon, outer space missions have transformed from states’ activities to commercial opportunities. Specifically, in recent years, the billionaire space race has seen Jeff Bezos launch Blue Origin to create an industrial base in space, Elon Musk launch SpaceX to colonise Mars and Richard Branson launch Virgin Galactic and Virgin Orbit to develop and provide low-cost space tourism opportunities. In this light, space law developments have shifted from binding legal treaties to declarations of principles, guidelines and recommendations. Moreover, individual states and groups of states have collectively created legal instruments to control and regulate outer space activities. Examples of the former include the creation of domestic laws on the principles of space operations in countries such as Austria and Australia. An example of the latter is the Artemis Accords, developed by the United States as part of its mission to return humans to the moon. Consequently, in light of these new national legal instruments, the ILA wished to consider the challenges for the future of space law.  

The conference considered four themes. First, whether there is a need for new rules or regulations for current space activities. Second, the current exploitation of resources by states. Third, whether or not consequences are needed for states that do not follow binding rules. Fourth, whether there is a need for structural changes in the development of space law. 

Summary of Presentations

Kimitake Nakamura 

Mr Nakamura discussed the challenges associated with removing space debris. In 2017, ESA’s Space Debris Office estimated that there were more than 166 million objects of space debris orbiting the earth, with sizes varying from microobjects of 1 nm to objects greater than 10 cm. Moreover, recent figures from ESA indicate the presence of more than 130 million objects of space debris, most floating in the Lower Earth Orbit. For this reason, the ILA white paper considers that the Earth’s orbit is now reaching saturation, threatening future space exploration, safety and sustainability. For Mr Nakamura, Active Debris Removal (ADR), which removes space debris in orbit to improve the safety of individuals and the space environment, was considered necessary. This was especially the case for Mr Nakamura, given the increase in orbital congestion as the commercial space race intensifies. However, Mr Nakamura noted that while ADR was necessary, individuals would be unlikely to sponsor or support directly or indirectly these efforts through taxation. Conscious not to subject new companies to higher and more demanding laws, Mr Nakamura believed that space law should continue to create norms and build on the soft law developments.

Armel Kerrest

Mr Kerrest noted that they were anxious about the future of space law and, in particular, the dangers of creating new law, especially in the context of unilateral decisions. Mr Kerrest referred to section 10 of the Artemis Accords that expressly provides that the extraction of space resources does not inherently constitute national appropriation under Article 2 of the Outer Space Treaty. This principle, debated heavily, is contentious because Article 2 states that outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, use, occupation, or other means. In Mr Kerrest’s view, Article 2 should be interpreted in good faith, according to Article 26 of the Vienna Convention of the Law of Treaties, the pacta sunt servanda principle. Therefore, it was Mr Kerrest’s view that an interpretation that supports the appropriation of resources on the moon is one made in bad faith with reference to the Outer Space Treaty.

Aisha Jagirani

Ms Jagirani referred to the environmental issues concerning space objects and space debris. Specifically, Ms Jagirani expressed concern about the absence of international bodies to regulate activities, noting that with the commercialisation of space, including the billionaires’ space race, the new competition between states and private entities and the significant increase in objects launched into space, there is a strong need for regulation. Ms Jagirani noted that regrettably, since the end of the Cold War and the Space Race, there has been no apparent demand from powerful nations for a body to regulate and supervise outer space activities. Ms Jagirani noted that it would be interesting to watch the development of space law principles in light of the Artemis accords and specifically their role in adding to or modifying customary international law.

Mamoudou Niane

Mr Niane commenced their presentation by noting that in 2023, 55% of satellites came from Africa, which, as a continent, was becoming increasingly open to space and space exploration. The growth in the African space industry led to the recent creation of the African Space Agency. Mr Niane mentioned that space exploration and the current space treaties could be considered asymmetrical. For example, in Mr Niane’s view, the ability to exploit space is reliant on objects, including satellites, that are incredibly expensive and only affordable to some countries. Moreover, Mr Niane reminded attendees that the main space treaties governing space activities were drafted when the major European powers, including France, Belgium, and the United Kingdom, largely controlled Africa. As a result, Mr Niane invited attendees to consider whether the treaties’ principles and space technologies needed to adapt and evolve to make space more accessible to all nations. Moreover, given the dominance of Western empires and powers during the shaping of the treaties’ original development, Mr Niane reflected on whether there was a need for new language in the space treaties.

Alexandre Vallet

Mr Vallet concluded the formal discussions regarding the white paper noting that reviews and examinations of the treaties occur every four years. Specifically, Mr Vallet noted that while it is tempting to be attracted by new developments in the law, it is equally important to examine what is already in force, including recent ratifications of treaties, the development of institutions, including UNCOPUOS and the interpretation of the treaties by courts and countries. Mr Vallet was unsure if we would see a boom in space tourism, notwithstanding some predictions and the desires of billionaires. Nevertheless, it was the view of Mr Vallet that it was necessary to have stable treaties that governed space activities. It was for this reason that Mr Vallet concluded by noting that there is a need to have coherence and coordination about the limits and the tolerances of the treaties, especially if it is the case that space tourism will boom in the near future.

Further information on white paper 9 can be obtained here. 

For additional information on the conference click here.

Report written by Benjamin Crowley