Is space the new Far West?
Space is limitless, but it doesn’t mean that everything is permitted, Philippe Achilleas, a specialist of space law, explains.
SpaceX, Blue Origin, Virgin Galactic… Not a week passes by without new spaceships being tested in the United States. It is what one calls the New Space, or the new space conquest. Its characteristic: it is led by a handful of billionaires of the new economy. Are they free to do whatever they want? Has space become the new Far West? Far from it: space may be infinite, its use is still framed by several treaties. Philippe Achilleas, head of the Space Law and Telecommunications Institute and public law teacher at the Caen-Normandie University, explains the judicial principles that rule the development of this young industry.
Pluris – To whom does space belong?Philippe Achilleas – It is a fundamental problem which was solved by the 1967 Outer Space Treaty. It stipulates as a first principle that space activities are “the prerogative of the entire humanity”. It does not mean that space belongs to everyone but that everybody must benefit from what you do there. But the Outer Space Treaty does not define space’s judicial status, because the redactors of the time, mainly the United States and the Soviet Union, agreed to consider that space did not belong to anyone. It is thus a “negative non-appropriation”: no one can appropriate space or its resources. In 1979, the Moon Treaty went further by indicating that all celestial bodies and their resources are the “common patrimony of humanity”: the Moon, Mars and the Solar System’s planets belong to everyone. But it was ratified by 15 countries only.
Why is there this distinction between space and celestial bodies?The notion of “common patrimony of humanity” appeared at the end of the 1960s, after the adoption of the Outer Space Treaty. They thought the moon would be a good field to apply it to, just like the deep sea, also proclaimed common patrimony of humanity by the 1982 Convention on Sea Law. But the great spatial powers of the time, which did not sign the Moon Treaty, did not like this notion, as generous as it was uncertain, and they never put it in the Outer Space Treaty.
These treaties seem to only plan one kind of actors of the space conquest: states. Is a firm allowed to go to space?Yes, it is a freedom guaranteed in the first article of the Outer Space Treaty. It includes freedom of space exploration for scientific purposes, and freedom of use, that is to say commercial exploitation. A private firm can benefit from it but indirectly because, at the time of the Treaty negotiations, two visions were opposed. The one of the United States which wanted to encourage private firms to invest in the space sector, and demanded for space freedom to apply to them as well. And the one of the Soviet Union, which, coherently with its socialist philosophy, was opposed to space privatization.
The compromise of this ideological conflict is found in the 4th article of the treaty which mentions a unique rule in international law: states can have non-public activities in space but under their direct responsibility. Firms act thus under the state’s responsibility. Still according to the article, the state gives, under certain conditions, an authorization to a private firm which asks it, and places it under a constant surveillance. But your question contains a second dimension, currently debated: the question of resource’s appropriation, which is confronted with the principal of space non-appropriation.
Once they are up there, what can firms do and not do?They are allowed to do many things, like launching telecommunication satellites and doing observations, since a principal of freedom was stated. But they must follow the principle of peaceful use of space, and must not do anything that could be seen an aggression toward another state. That is the main limit, with non-appropriation of celestial bodies’ resources.
“The United States interprets the principal of non-appropriation in a restrictive way, separating territory appropriation and resources appropriation.”
But if a firm launches itself in the conquest of new planets, it is with the intention of exploiting their resources.Yes, that is obviously one of the motivations of the future private missions to Mars or to the Moon. But they don’t have that right since it goes against the article II of the Outer Space Treaty. That said, the United States, which is in a logic of encouragement of private investment, introduced a law, the Space Act, to set up a regime of licenses enabling private firms to exploit celestial bodies’ resources like asteroids. Technically, it is in contradiction with the article II.
During a space peaceful use committee directed by the UN, in April 2016, the Americans explained that they would respect space law when applying this law. But they interpret the principal of non-appropriation in a restrictive way, separating territory appropriation and resources appropriation. For them, non-appropriation only means not claiming sovereignty rights on a territory, it does forbid resources appropriation by private actors. It is a new vision of the article II of the Outer Space Treaty, which they are the only one to have today, and which allows them to go around the prohibition. Since there is no radical opposition from other space powers, they are in a favorable position to make the interpretation of the article II evolve.
One can assume that private actors outside the Americans will end up emerging. They will also have interests in modifying the article II.Absolutely, and I’ll give an example, even if it is difficult to speak of a “great space power”. At the beginning of this year, Luxembourg announced a very ambitious national space mining industry development plan. For them, it is a new mean of growth to replace the end of bank secrecy. For a long time, it has been welcoming very innovative firms from the space field, like the international operator SES Astra. Like the Americans with the 2015 Space Act, they try to attract private investors, because they are the new comers pushing for space conquest, not the big well established firms. Luxembourg is thus trying to go from the big banking power status to the one of space innovation land.
What about space vehicles? Should they be matriculated?Yes, it is an obligation from the article VIII of the Outer Space Treaty. Matriculation helps identifying the responsible state in case of damage, and the state which will exercise its jurisdiction when the vehicle is in space. Because the spaceship evolves in an international zone but it is still submitted to the state matriculation law. A non-matriculated spaceship would be a pirate, but today that is science fiction!
“Space conquest is first a dream for politicians, who know that space is important for national prestige: a great power is also a space power.”