Which Way to the Stars? Challenges to regulation of “new space” activities

The Society's 114th Annual Meeting—and first Virtual Annual Meeting—took place June 25–26, 2020. The 2020 Annual Meeting theme, "The Promise of International Law," was an opportunity to reflect on the successes and failures of international law, while reaffirming our commitment to achieving its promise of a more just and peaceful world.

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The imminent increase of privately-funded, commercial space flight and other operations, collectively referred to in international law literature as “New Space” activities, is often presented as a challenge to the corpus iuris spatialis. Truthfully, the proliferation of such “New Space” activities provides the impetus needed for a possible revamping of existing norms relating to the use, exploration and exploitation of outer space. Emphasis has been on particular space law aspects, specifically those presumed to constitute an impediment to financially profitable commercial operations. For instance, commercial endeavors regarding the exploitation of natural resources on celestial bodies are challenged by and in turn challenging the principle of non-appropriation of outer space, enshrined in Article II of the Outer Space Treaty, as well as the potential profit-sharing mechanism of Article 11 of the Moon Agreement. Efforts are already undertaken both at the governmental and non-governmental level, internationally, bilaterally or, upon occasion, unilaterally, to provide responses to such challenges. Nonetheless, there is a broader discussion to be had on the evolution of space law beyond the conceptualization of space as simply a resource. Indeed, whereas providing responses to targeted commercial issues may facilitate the evolution of a specific aspect of space law, the discipline itself will suffer if it follows a piecemeal “New Space” approach. A holistic, centrally-coordinated approach will eventually be necessary, brought about by the multitude of operational requirements and concerns of national regulators as well as the different branches of the space industry. The incentive to reach such a centrally coordinated framework for all kinds of “New Space” activities is the one element all of them have in common: movement in, through and out of outer space, including on celestial bodies, and impacts of various space uses (such as for geostationary orbits necessary for telecommunications, proposals for space mining and space debris management, space exploration and information exchanges on science, climate change, among others). Consequently, an international, cooperative system of regulatory cooperation for “New Space” activities, operated by an appropriately mandated international body, could be the institutional clearinghouse and coordinated guarantee for the orderly development of “New Space” activities, in a way that would both satisfy commercial interests, but also safeguard the pressing jurisdictional concerns of States. Is this more functional approach a prima facie unprecedented erosion of State sovereignty?

Gérardine Goh-Escolar, Hague Conference of Private International Law
Yuri Takaya-Umehara, University of Tokyo
Isavella Maria Vasilogeorgi, Department of Management Strategy, Policy and Compliance, United Nations (Moderator)
Guoyu Wang, Academy of Air, Space Policy and Law, Beijing Institute of Technology

(Speaker organizations are shown as of June 2020)