Space law: another small step for a human, but a big step for mankind?

Space law is not a field that needs to be created from scratch. Of course, its roots are not in antiquity as in the case of Roman law, but space law was born during the mid-1900s. During the Cold War, with the start of national space programmes, the official creation of an international space policy became necessary. Initially, space law was conceived as a part of traditional aerospace law, which was valid only within the borders of the nation that passed it [1]. Soon, however, man's growing ambitions made it necessary to make space law independent of any concept of national territory: man was looking far beyond the atmosphere, to the Moon.

The launch of the world's first artificial satellite, Sputnik 1, by the Soviet Union in 1957 directly prompted the US Congress to pass the National Aeronautics and Space Act, creating the well-known National Aeronautics and Space Administration (NASA) [2]. In response to discussions between the two main players in the space race (the United States and the USSR), the UN passed a resolution called Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (1963), that states, among other things, that: «The exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind.»

The UN also created the Committee on the Peaceful Uses of Outer Space (COPUOS) in 1959, which is still responsible for discussing issues of international space law and policy today. Five international treaties have been negotiated and drafted within COPUOS. The first one is the 1967 so called «Outer Space Treaty» that represents the basis of today's outer space law and found much support stating that: «outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means». The most recent, the 1979 «Moon Treaty», has only 18 contracting parties and has only been accepted to a very limited extent.

The fact that the most recent agreement dates back to 1979 makes clear that international space jurisdiction is obviously stuck in the past. These agreements were established during the 1900s, and for more than forty years nothing has happened from a legal universal point of view. Meanwhile scientific progress in the field of space exploration has progressed immensely: the scale of what was considered impossible forty years ago has changed, and yet space legislation has not been further developed.

After years of silence on the subject of space agreements, the «Artemis Accords», principles guiding the US-initiated «Artemis» programme, has been signed by twelve countries (including Australia, Brazil, Canada, Japan, Luxembourg, New Zealand, South Korea, Ukraine, the United Arab Emirates, the United Kingdom, the United States and Italy). This event has brought media attention back to an issue of great importance: the need to regulate space exploration as soon as possible by creating a legal framework that can finally be unanimous and in line with new scientific discoveries and technological capabilities.

Antonino Salmeri, researcher in space law at the SES Chair of the University of Luxembourg, describes it as «a masterpiece of diplomacy» that an agreement was created «that commits all countries in the same way with the same document» [3]. The Artemis Accords could lead the way for the future of space law by providing jurisdiction across national borders. Nevertheless, the signing of this agreement has raised a number of doubts and misunderstandings, mainly due to the lack of clarity that is too often a feature of space law and its regulation.

It is important to emphasise that none of the nine principles presented in the Artemis Accords are in contradiction with international space law, nor are they intended to replace it. On the contrary, they are based on the «Outer Space Treaty» of 1967. The Artemis programme has no interest in «overriding» international law; it needs its legitimacy. «To go to the Moon without the precautions provided by the Outer Space Treaty would be political madness», says Antonino Salmeri.

Despite this premise and some to a large extent widely accepted principles, the signing of these accords caused quite a stir. Two controversial points emerged that soon became the subject of much debate [4].

First point concerns space mining, which can be operated by private individuals for commercial purposes. In fact, according to the Artemis Accords, states or companies operating in the mining sector «can legally own the resources they extracted».

Second point is about the right to declare «safety zones» around bases and/or extraction facilities. Zones that should prevent damage and harmful interference from rival companies or other states.

What certainly contributed to the controversy over these issues was an executive order by former US President Donald Trump, setting out the US view on mining on the Moon and other celestial bodies. This order read: «Space is a legally and physically unique domain of human activity, and the United States does not view it as a global commons.»

This statement triggered opposing positions. For many it was a clear violation of the «Outer Space Treaty». According to Professor Salmeri this is due to the different concepts of the term «global commons». He describes two of them in his interview: a legal and an economic one [3].

Legally the term «global commons» stands for areas outside national sovereignty − just like space. If Trump had based his executive order on this understanding of global commons, it would indeed have conflicted with the «Outer Space Treaty».

According to Salmeri and others, who did not recognise any contradiction with the «Outer Space Treaty», it is more likely that the executive order by Trump referred to an economic notion of the global commons: that of an asset which necessarily requires the participation of all owners in the benefits of global commons. In this case: the global community. Thus, according to the economic definition, if something is defined as a global common, there is no possibility of profiting from it individually − precisely what private companies interested in doing business in space wanted to avoid.

The ambiguity of the statement can thus be attributed to the fact that it was not specified whether the statement referred to the economic or the legal concept. This ambiguity triggered a great debate based on the belief that Trump was beginning to lay the foundation for a new form of colonialism in space [4].

Although the administration that issued this decree has been replaced, this situation has highlighted the fundamental problem of the lack of specificity in the terminology of space jurisprudence and the immediate need to find a new and modern international agreement that leaves no room for misunderstanding of definitions. As space law researcher Vittoria Veronese argues in her Ted-Talk: «The challenges that space law will face in the future are fourfold and concern the dimensions of internal compliance, international cooperation, ethics and the emergence of scientific innovation» [5]. New agreements are more than necessary, as the recent discussions around the «Artemis Accords» have shown.

Colonising the Moon or Mars are no longer science fiction ideas, they are gradually becoming tangible projects. In her Ted-Talk Vittoria Veronese reminds us: when we talk about a colony, we are not talking about a research environment like the International Space Station (ISS), which requires rules that govern the intentions of a small group of scientists for a limited time. We are talking about ordinary citizens from a variety of cultural backgrounds who form a new community that needs rules to function [5].

Let us now recall what Article 2 of the «Outer Space Treaty» says: «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.» Veronese simplifies this in her talk: no nation is allowed to have a colony in space [5]. Future ones will not be national colonies, but human ones that do not have to abide by the rules of a specific nation but rather a new jurisdiction. To give rules to these colonies, it will be necessary to conduct a dialogue between different legal sensitivities in order to identify the fundamental core of rules necessary for the colonists' lives to function regardless of their nationality.

The effort to achieve colonisation will have to be planetary, a work of confrontation and sharing between the different nations will be necessary. A new space law would not only affect the solar system, creating a new legislation, but also the Earth: it would be the opportunity to open a new dialogue between nations. A dialogue that could ultimately find a way to rediscover the value of fundamental human rights. A work that would allow us to realise that when we go into space, we will do so as a whole humanity and, looking back at what Carl Sagan called «a pale blue dot in the immensity of the cosmos», we will not see the borders between one nation and another, but rather the planet that sheltered us and gave us a home [5].

A new space law would be an opportunity to rediscover those original rules that allow us to live together as a community, beyond any national boundaries. The law of space could then lead us to understand that, although our immense intellectual capacity allows us to reach places we never thought possible, we remain human beings. And once again, space exploration, which sometimes seems so distant from everyday life, could have a positive impact on the lives of all humanity.