Opinion #SpaceWatchGL: Reconciling commercial space activities with the fundamental principles of space law

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by Steven Freeland

Observing the Crescent Earth from space towards Europe with a solar flare. Image courtesy of CLS / Kineis.

Since the dawn of the first “space age” in 1957, space-related technologies have transformed our lives, revolutionizing communications, medicine, navigation, finance, agriculture and computing, to no avail. name just a few. Space is an important piece of critical infrastructure to support the global economy, international trade and investment, strategic thinking, military strategy, national security, science and, frankly, the future of the world. ‘humanity. A (theoretical) “day without space” would be disastrous for lives, livelihoods and economies around the world.

Space is also “hard” and, despite our remarkable technological advances, each advancement brings associated challenges. For example, if we maintain an “as usual” approach to space, threats arising from the increasing proliferation of orbital debris are increasingly looming. Other significant challenges include the militarization of space, the impact of geopolitical tensions, the lack of a global space traffic management system, the difficulties in establishing a viable business case for complex space activities, and even the physical limitations of the human body.

The complex nature of space requires global governance. The “public” role that space plays for humanity means that it must be managed in a way that preserves its security, stability and sustainability for present and future generations. Given the legal characterization of the space as an area beyond national jurisdiction and not subject to national ownership, this is done primarily through international law and multilateral governance structures, supplemented by legislation. national.

In many ways, space now also plays an important “private” role. The early 1990s saw the commercialization of space expand rapidly. Since 1998, the value of the commercial space sector has exceeded that of the government space sector. The global commercial space economy in 2020 totaled approximately US $ 400 billion (representing an annualized growth rate of about 7% since 2005) and is expected to reach between US $ 1 and 3 trillion by 2040. Commercialization of outer space is very important, and the growing number of private space actors are seeking “enabling” space route rules, which would allow them to expand their potential business opportunities with strong government support. but minimal government interference.

In turn, many countries – but not all – are developing their sovereign space capabilities in partnership with and taking advantage of technological advances in the private sector. The public-private relationship in space for these countries is an essential two-way street.

This requires that complex and sometimes competing elements be taken into account in the continued development of regulatory and governance structures for space at the international and national levels. The principles of international law are based on a notion of shared and common interests in space, even going so far as to require that space activities be “carried out for the benefit and in the interest of all countries”. One of the dominant themes of this international regime is that countries have a responsibility to ensure that all activities that they and their businesses and private citizens undertake in space adhere to globally accepted principles of law.

These fundamental principles, which continue to serve us well and have so far enabled us to avoid a major conflict in space and have allowed space to “work” are not necessarily always perfectly in tune with the requirements. needs of private commercial players, who operate around a carefully calibrated risk / return calculation when determining their investment in space.

Governments must therefore carefully balance these competing factors when developing national space regulations. They are bound by important global principles of international space law but, at the same time, some of these governments will also wish to encourage private and commercial participation in space, for their own benefit and for the growth of their industry, their national economy, inbound and outbound foreign direct investment and the strengthening of their strategic technological competitiveness.

In addition, various elements of government still largely tend to view space technology as ‘missile’ / military technology and often focus, perhaps quite understandably, on its military and national security applications. Of course, this is a very important consideration. That said, with only this underlying political engine in mind, they could impose restrictive import / export control regimes that, in practical terms, stifle cross-border investment and trade in advanced space technologies that could otherwise give rise to broad benefits. This in turn slows down, and sometimes even closes, supply chains for space countries and their business entities.

So where does that leave us? The imperative for each country to improve its sovereign space capabilities creates an interesting ecosystem for increased transfer of technology. On the other hand, adherence to the fundamental principles which promote the peaceful uses of outer space is essential if we are to avoid a “tragedy of the commons” in outer space. As we increase our ability to exchange capital and know-how, we improve a better understanding of the common interests of all to act responsibly in space, thus enabling us to harness more benefits for the global community, but also for the commercial sector, which requires a stable space environment.

It is therefore important to focus the language of space and the underlying thinking on the regulation of space towards civil and commercial activities that build capacity and promote peaceful uses of space, and away from it. rhetoric of space as a zone of conflict, military competition and, ultimately, war.

Professor Steven Freeland. Photograph reproduced with the kind permission of the author.

Steven freeland is Professor Emeritus, Western Sydney University; Associate Professor, Bond University; Co-Principal, law firm specializing in the Azimuth Advisory space; Director, International Institute of Space Law; Member of the Space Law Committee of the International Law Association; Member of the Space Law and War Crimes Committees of the International Bar Association; and member of the Australian Space Agency Advisory Board. He was recently appointed by the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) as vice-chair of a five-year working group dealing with issues related to space resources.

Steven Freeland is also the host of the Space Café “Law breakfast with Steven Freeland”. The next live event will take place on November 25, 2021 at 9:30 a.m. CET / 7:30 p.m. AEST.


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