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#SpaceWatchGL Opinion: Reconciling Commercial Space Activities with the Foundational Principles of Space Law

by Steven Freeland

Crescent Earth viewing from space to Europe with sun flare. Image courtesy of CLS/Kineis.

Since the dawn of the first ‘Space Age’ in 1957, space-related technologies have transformed our lives, revolutionising communications, medicine, navigation, finance, agriculture and computing, to name but a few. Space is an important element of critical infrastructure to support the world economy, international trade and investment, strategic thinking, military strategy, national security, science and, frankly, the future of humankind. 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 progress, each advance brings with it associated challenges. For example, if we maintain a ‘business as usual’ approach to space, the threats arising from the increasing proliferation of orbital debris loom ever larger. 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 safety, stability and sustainability for current and future generations. Given the legal characterization of space as an area beyond national jurisdiction and not subject to national appropriation, this is done primarily through international law and multilateral governance structures, supplemented by national legislation.

Space in many ways is now also playing an important ‘private’ role. The beginning of the 1990s saw the commercialization of space expand rapidly. Since 1998, the value of the commercial space sector has exceeded the government space sector. The global commercial space economy in 2020 totalled approximately US$400 billion (representing an annualized growth rate of approximately 7% since 2005) and is anticipated to grow to between US$1–3 trillion by 2040. The commercialization of outer space is highly significant, and the growing array of private space actors seek ‘enabling’ rules of the space road, that would allow them to expand their potential business opportunities with strong government support but minimal government interference.

In return, many – but not all – countries develop their sovereign space capabilities through partnership with and by leveraging from the technological advancements of the private sector. The public-private relationship in space for those countries is an essential two-way street.

This requires that complex and sometimes competing elements be considered in the ongoing development of regulatory and governance structures for space at both the international and national level. The international law principles are based on a notion of shared and common interests in space, even going so far as to require that space activities are to be ‘carried out for the benefit and in the interests of all countries’. One overarching theme of this international regime is that countries are responsible to ensure that all activities that they and their corporate and private citizens undertake in space will adhere to the globally accepted principles of law.

These foundational principles, which continue to serve us well and have thus far helped us avoid a major conflict in space and enabled space to ‘work’ are, however, not necessarily always squarely in sync with the needs of private commercial actors, who operate around a carefully calibrated risk/reward calculation when determining their investment into space.

Governments therefore need to carefully balance these competing factors when crafting national space regulations. They are bound by the important global principles of international space law but, at the same time, some of those governments will also wish to encourage private and commercial involvement in space, for their own benefit and for the growth of their industry, domestic economy, inward and outward foreign direct investment and the enhancement of their strategic technological competitiveness.

In addition, various elements of government still largely tend to regard space technology as akin to ‘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 that underlying policy driver in mind, they might impose restrictive import/export control regimes that, in practical terms, stifle cross-border investment into and the trade of state-of-the-art space technology that could otherwise give rise to broad benefits. This in turn slows down, and sometimes even closes off, supply chains for space-faring countries and their corporates entities.

So where does this leave us? The imperative for every country to enhance its sovereign space capabilities creates an interesting ecosystem for increased transfer of technology. On the other hand, adherence to fundamental principles that promote peaceful uses of space is essential if we are to avoid a ‘tragedy of the commons’ in space. As we increase our ability to exchange capital and knowhow, we enhance a deeper understanding of the common interests of all to act responsibly in space, thus allowing for further benefits to be utilised for the global community, but also for the commercial sector, which requires a stable space environment.

It is important therefore to focus the language of space, and the underlying thinking about the regulation of space, towards civil and commercial activities that enhance capabilities and promote the peaceful uses of space, and away from the rhetoric of space as an area of conflict, military competition and, ultimately, warfare.

Professor Steven Freeland. Photograph courtesy of the author.

Steven Freeland is Emeritus Professor, Western Sydney University; Professorial Fellow, Bond University; Co-Principal, specialised space law firm Azimuth Advisory; Director, International Institute of Space Law; Member, Space Law Committee of the International Law Association; Member, Space Law and War Crimes Committees of the International Bar Association; and Member, 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 5-year Working Group addressing 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 be on 25rd November 2021 at 9:30 am CET / 7:30 pm AEST.

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