Thursday, September 6, 2012

Lex Astrorum: Space Law Takes Off

Rocket launch
Much like the universe, space law is expanding at an accelerating pace. Cutting-edge developments in celestial law include “keep our orbit beautiful” space-litter regulation, rules for interstellar arbitration, and questions of property rights to asteroids and the lunar surface. Here is a flyby of the latest in the lex astrorum*, the law of the final frontier.

Proposed Regulation of Cosmic Endeavours
This year, the United States, the European Union, and other nations launched negotiations toward a nonbinding International Code of Conduct for Outer Space Activities. U.S. Secretary of State Hillary Clinton’s announcement in January that the United States would participate emphasized the gravity of hazards that space debris poses to satellites and spaceflight. The Secretary of State also stated elliptically that the United States’ position on prohibitions on militarizing space is not in flux. Her statement affirmed that the United States
'will not enter into a code of conduct that in any way constrains our national security-related activities in space.'
In June, the EU announced that over forty countries attended the first multilateral meeting on this new Enterprise. Also, possibly eclipsing the U.S.’s position, the EU statement proclaims that the Code would “lay down the basic rules to be observed by space faring nations in both civil and defence space activities.” This nebulous statement raises questions regarding the extent to which the United States will be a Challenger to other nations’ aspirations for the Code. The Space Review has discussed the legal and political obstacles ahead. 
Rare fallen space debris
Arbitration of Interplanetary Disputes
The universe may be infinite, but elbow room in the area where most space activity now happens is tight. Presciently spotting a legal black hole and the potential for colliding interests, the Permanent Court of Arbitration adopted in December the “PCA Optional Rules for the Arbitration of Disputes Relating to Outer Space Activities.” In promulgating these pioneering rules, the PCA acknowledged the meteoric rise of the global space industry, worth nearly $300 billion, which involves immense investment by states and private actors.

Galactic Property Rights 
Several Intrepid entrepreneurs are already probing for space minerals, with platinum at the top of the most-wanted list. As a result, a vigorous debate is under way on whether space mining violates UN treaties and what, if any, property rights regime does and should govern space mining. The U.N. Outer Space Treaty of 1967 (prior IntLawGrrls posts) proclaims that
'the exploration and use of outer space shall be carried out for the benefit of all countries and shall be the province of all mankind.'
Because states are prohibited from making territorial claims in the heavens, there can be no sovereignty over asteroids or other celestial bodies. The treaty affirms:
'Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.'
However, it is not clear whether this principle would bar private enterprises from merely exploiting a Discovery of space minerals by, for example, mining an asteroid without asserting over the object the sovereignty of any state. In search of an answer, some have looked to the penumbra of recognition of ownership over spacecraft and lunar samples brought back to Earth. However, given the astronomical sums that could be spent on exploration, one might wish for an atmosphere of less relativity.
Aurora Australis seen from Space Shuttle Discovery
In sum, the lex astrorum has light years to go before it reaches its zenith. Potential questions for the future lawyers of the species include:
► Do the Geneva Conventions extend to extraterrestrial combatants?
► Is universal jurisdiction truly universal? and
When must a property interest vest to comply with the rule against perpetuities in an infinite dimension?

*Boundless thanks to Latin expert Bill Linney for help with declensions!


Unknown said...

Thank you so much for posting about space law! Loved the article!

Sadie Blanchard said...

Thank you, Joel. Do you want to be a space lawyer? I just came across this article in the New York Times about space tourism. You might like it too: