Legislate the space before things fall apart

| 29-12-2021, 13:14 | English

Jeff Bezos and Richard Branson’s recent spaceflights shine a spotlight on the commercial space industry. This is developing at a rapid pace. However, there is a lack of appropriate space law to steer this industry in the right direction. It is time to modernize international space law to oversee the private space industry.


Over the past two weeks, the first leg in the billionaire space race won by Richard Branson (Virgin Galactic) and Jeff Bezos (Blue Origin). Both skimmed the edge of space. This is just the beginning. Hundreds of companies are working on much larger space projects.

Such a trip to the edge of the atmosphere is nice for tourists, but that is only a fraction of a fast-growing space industry. According to calculations by the Swiss investment bank UBS, this industry was worth about USD 340 billion two years ago (EUR 289 billion) and will more than double by 2030. Space tourism represents only 3 billion of that, less than 1 percent.

Space tourism is therefore not the finishing line. The technologies now applied to pleasure spaceflight are a first step towards more profitable projects, such as satellite launches, space mining, and perhaps even one day a permanent base on the moon and missions to Mars. For example, Blue Origin and SpaceX are developing reusable rockets, lunar landers and transportation systems to take satellites, payloads and crew into space.

Private space industry

This growing private space industry has both advantages and disadvantages. On the one hand, it reduces the costs of space travel. This makes more scientific research from space possible. This price reduction increases the chance that poorer countries can also benefit. We can also make good use of the space minerals for all wind turbines and batteries that are needed for the green energy transition. On the other hand, private space travel creates a sustainability risk, such as atmospheric pollution and space debris. There is a risk of accidents, on Earth and in space.

International agreements are needed to create a safe and sustainable space industry. However, international space law is, in general, outdated and therefore ill-equipped to develop the modern private space industry. Most space law dates back to the Cold War. The most important treaty, the Outer Space Treaty, dates from 1967. At that time, private use of space was a dream for the future. Incidentally, the boundary of the space has not been established at that time or since. For example, Branson – who traveled 80 kilometers – and Bezos – who tapped the Kármán line at 100 kilometers – both claim that they were the first to reach space.

Space law therefore does not fit in well with this new era of commercial space travel. The consequences must be resolved.

When a private rocket crashes to Earth in a fireball, the launching state pays for the damage

First, the state is at all times internationally liable if something goes wrong. If a private rocket falls to Earth in a fireball or collides with a satellite, the state from which the projectile took off must pay for the damage. International space law says nothing about the responsibility of private parties. It is up to states themselves to regulate this through national law. So there is a risk that several states will encourage private space companies to operate out of their territories (and receive the taxes from those companies) by providing looser rules for sustainable and responsible use of space. Then a race to the bottom threatens.

Secondly, there are no harmonized space regulations as we know them in air traffic. That is asking for accidents. However, the rules of aviation cannot simply be applied or the aerospace industry. The technological and legal differences are too great for that. For example, the airspace is divided into sovereign parts, while the space falls outside the national domain.

Emergency landing

Thirdly, as a space tourist, you can basically only find yourself in trouble if you get into trouble. States are required to provide astronauts with all possible assistance in the event of an accident, difficulty or emergency landing. They must immediately take all possible measures to astronaut to save. From a legal perspective, it is uncertain whether a space tourist is also an astronaut. Such support is not a cheap joke if massive space tourism really took off. As a result, pleasure space travel currently poses a major risk to space tourists.

It is time to close the gaps in international space law and set minimum standards for private use of space. The United Nations Commission on the Peaceful Uses of Outer Space (COPUOS) and the United Nations Office on Space Affairs (UNOOSA) are doing a good job of reaching agreement among states. However, it seems unlikely that the half-century-old deadlock between states on space law can be broken any time soon.

A perhaps more feasible proposal to consider is the creation of an international organization with delegated authority to enact much-needed regulation and oversee space travel. The International Civil Aviation Organization (ICAO) in Montreal and the International Seabed Authority (ISA) in Kingston are good examples.

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