Space law is inadequate for the boom in human activity there

IN MAY JEFF BEZOS gave an hour-long presentation on his vision for humanity’s future in space: a series of artificial settlements in orbit that would be home to as many as 1m people each. Mr Bezos was talking in his role as founder of Blue Origin, a privately held rocket-launch firm. But he also referred to the company for which he is better known, Amazon.

Amazon would never have existed, he said, without pre-existing infrastructure: postal services to deliver packages; home computers to order goods; credit cards to make payments. The job of the current generation would be to build an equivalent “infrastructure” for space. Mr Bezos identified two elements of this: much lower launch costs and the exploitation of resources in space. But he might have mentioned another, more basic requirement for enterprise: a proper legal environment.

What rules there are largely date from the cold-war era. The Outer Space Treaty of 1967 is the foundational space-law text. It sets out some basic principles, among them that space is free for exploration and use by all states, and that no claims of sovereignty can be made. Later agreements assign liability for damage caused by space objects and require states to help rescue astronauts in distress.

A common thread runs through these texts. They all assume that space is a realm dominated by states, not by companies, let alone individual billionaires. As space industrialises, the gaps in the law are becoming clearer. Two areas of concern stand out: debris and resource extraction.

Debris is much the more pressing issue. NASA, America’s space agency, already tracks more than 500,000 pieces of space junk in orbit around Earth. Items that are smaller than a marble are not yet tracked but NASA reckons there are millions; and at velocities of more than 27,000km per hour, even a fleck of paint can cause damage. Systems are in place to reduce the risk of collisions (“conjunction risk” in the understated argot of the satellite industry). Firms that launch objects into space need licences from the relevant national authorities. These regulators are meant to vet proposed orbits and set end-of-life rules for old satellites either to re-enter Earth’s atmosphere, where they burn up, or to be propelled into “graveyard slots” where there is no risk of collision.

International guidelines, based on American standards, specify best practices for mitigating the risk of debris. America’s Space Surveillance Network shares some data on the trajectory of larger bits of space junk. The International Telecommunication Union (ITU), a UN agency, responsible among other things for allocating radio frequencies in space, acts as a clearing-house for information on satellites in orbit.

Put your helmet on

But the current system is, in the words of Alexandre Vallet of the ITU, less a binding framework than “a gentlemen’s agreement”. End-of-life rules vary between regulators. The guidelines on debris mitigation are not enforceable internationally. When satellites are on a crash course, demanding large changes in orbit, as happens perhaps once or twice a year, common sense is what stops a collision. States themselves are free to ignore norms of good behaviour. India caused both outrage and a fresh debris field in March by conducting an anti-satellite missile test; China increased the amount of trackable debris then in space by 25% with a single such test in 2007 (see chart which covers bigger objects, with a diameter of more than about 10cms). This system has worked well enough so far. But the problems are becoming more complex. First, launch capabilities are spreading. Last year an American startup called Swarm Technologies paid a footling $900,000 fine for sending four tiny satellites into orbit on an Indian rocket, having been denied permission to do so by the US Federal Communications Commission.

Second, the number of objects in the heavens is about to rocket. The UN’s Office for Outer Space Affairs says about 8,650 objects have been launched into space since Sputnik went up in 1957. SpaceX, a rocketry firm, alone has plans to launch more than 12,000 in a constellation of small satellites known as Starlink. Other constellations are planned. Space tourism may well add to the amount of traffic to be managed.

These constellations are needed because the satellites will be in low-Earth orbit (LEO). The bulk of satellite communications today comes through objects in a geostationary orbit, some 36,000km above the Earth. At that altitude a satellite takes a day to travel around the planet, seeming to hover in the same place. At a lower orbit, lots of satellites are needed to maintain coverage of a specific area; constellations will criss-cross each other as they whizz around the world.

Floating in a most peculiar way

The rules are clear for objects that stay in the same location, says Ruth Pritchard-Kelly of OneWeb, an operator which has six LEO satellites in orbit already and plans eventually to launch at a rate of 30 a month until its constellation is complete. “But there are an infinite number of ways for an object to be non-geostationary. We have to come up with rules on how to share space.” An ITU conference in Egypt in October and November will try to do just that.

Liability rules also need refreshing. A 1972 regime assigns liability for damage caused by a space object based on who launched it. That made more sense in an era when governments launched their own objects from their own territory. Take the collision in 2009 between a defunct Russian military satellite called Kosmos-2251 and an operational commercial satellite called Iridium 33. Iridium 33 was owned by an American firm but it was launched from a Russian-owned spaceport. Had there been a claim for compensation, Iridium would have had to call in the State Department to approach the Russian Ministry of Foreign Affairs. The Russians could have argued that, since Iridium 33 launched from Russia, it was in effect Russian and this was an internal affair.

Iridium, which ended up not making a claim, would have faced another argument, too: that responsibility for a collision lies with the party which had the last opportunity to avoid it. Working that out is not always easy, and becomes well-nigh impossible if both objects are defunct. “If you have two drivers on a road with no traffic lights, no steering wheels and no brakes, who’s at fault if they crash?” asks Dara Panahy of Milbank, a law firm.

In these circumstances, mitigating the risk of future collisions is not enough; it is also necessary to be able to remove debris from space. A range of technologies, from harpoons to tethers to nets, are being developed to do that. But the practice would require a change in the rules. International law states, for example, that an object belongs in perpetuity to the country that launched it. James Vedda of The Aerospace Corporation's Centre for Space Policy and Strategy, a research group, argues for an equivalent of a maritime-salvage regime, so that it is possible either to recover an object without permission or to get such permission very quickly.

Compared with the problem of space debris, the legal questions raised by space mining are less urgent. The technological and financial hurdles to success are immense: companies like Planetary Resources and Deep Space Industries, formed in a blaze of publicity to prospect for minerals on asteroids, have already stumbled. But the ambition remains, focused clearly on Earth’s nearest neighbour.

“If we can utilise resources to keep a community on the Moon,” says Michelle Hanlon of the Air and Space Law Programme at the University of Mississippi School of Law, “that is our best way to find out how to keep humans in space for the long term.” At his presentation in May, Mr Bezos envisaged using ice in the shadowed craters of the Moon to generate fuel, and targeted a lunar landing by Blue Origin by 2024. NASA plans a space station in lunar orbit, from where astronauts would operate robotic probes on the surface that could harvest minerals. China and India both have lunar programmes and, doubtless, similar thoughts.

Some question whether resource extraction would be legal. The Outer Space Treaty prohibits national appropriation in space. To the question “who owns the Moon?”, the unambiguous answer is “no one”. In practice, however, the question is not so much whether mining can happen, but in what circumstances.

International lawyers point to two, admittedly imperfect, analogies on Earth as ways to think about space mining. One is the high seas: no nation has sovereignty but you don’t need international permission to extract resources (ie, fish). The other template is provided by seabed mining, an activity subject to strict licensing and regulation by an organisation called the International Seabed Authority (ISA).

Planet Earth is blue

An attempt to set up a space equivalent of the seabed-mining regime has already been tried, however, and failed to gain traction. The Moon Agreement came into force in 1984. It calls for an international regime to administer any exploitation of lunar resources. But the agreement has only been ratified by 18 countries. “Spacefaring states like voluntary standards and non-spacefarers like the idea of international obligations,” says Patrick Slomski of Clyde & Co, a law firm. These divergent interests weaken the chances either of the Moon Agreement gaining fresh momentum or of a big, new international space treaty.

Instead, the high-seas model is the one that looks likely to prevail. Both America and Luxembourg, which has long punched above its weight in the satellite and aerospace industries, have passed legislation that explicitly allow firms incorporated on their territories to carry out space mining; the United Arab Emirates is about to follow suit. Proponents of the high-seas approach like the fact that it allows commercial firms to act fast. But unbridled competition for resources is also a recipe for trouble. If a Chinese miner and an American one were to set up shop next door to each other on the lunar surface, say, domestic laws would be no help in resolving any conflict that might result.

That argues for co-ordination and common standards. The award of licences by national authorities could be notified to an international body modelled on the ITU’s radio-frequency regime for satellites. Rules could usefully be set for the duration of mining licences, for the placement of buffer zones around mining sites and for dispute-resolution processes.

Ms Hanlon, who also runs an NGO called For All Moonkind, suggests an even narrower goal: an agreement on common lunar landing-pads in order to protect historic sites such as the landing area of Apollo 11 in 1969. “We are not going to agree a treaty in the next five years, but we can take baby steps,” she says. Mr Bezos would approve of that. His talk ended with a picture of him alone at a desk in the early days of Amazon and the caption “Big things start small”. ■