How the law works, high above us

If law is, as the saying goes, a certain ordinance of reason for the common good, what happens beyond Earth's atmosphere? Victoria University of Wellington’s Sir Ken Keith runs the rule over space law.

Imagine two different nations conducting two different kinds of work on the moon. One is exploring the effects of a thin atmosphere on various organisms, while the other is exploring the dusty craters for lucrative veins of titanium to mine.

A solar flare disrupts communications and there is an accident. The miners are aggrieved because during the accident one of their roving machines has been damaged by the scientists’ wayward equipment. How would such a situation be resolved and what laws apply?

This is where the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (the Outer Space Treaty) comes in.

In essence, the Outer Space Treaty outlines what countries can and can’t do in space and ensures no country has sovereignty over space or celestial bodies, like the moon. Although it’s been 50 years since the treaty came into force, the potential for such a scenario is only now beginning to be realised, including in New Zealand. The New Zealand Space Agency was created in 2016 and new legislation for licensing space activities that came into force on 21 December 2017 — testament to the reality of space as a growing industry.

Analogy with Antarctica

So what exactly does the Outer Space Treaty cover? And how was space law developed?

“Space law wasn’t an issue until 1957 when the first Sputnik satellite was launched. Then the Americans got into the space race as well and very quickly people realised there had to be law regulating this activity,” says Sir Ken Keith, Emeritus Professor at Victoria University of Wellington’s School of Law and a former judge of the International Court of Justice — the only New Zealander to hold this position.

“People also realised there was an analogy with Antarctica in terms of thinking about the law. So the decision was made to adopt the law that outer space can only be used for peaceful purposes — so nuclear weapons or weapons of mass destruction were not allowed in space — that space belongs to all nations and that no single nation can colonise the moon or other celestial bodies. As a great scientific endeavour, the scientific knowledge that comes from space research was also to be made available to all nations.”

Sir Keith was one of the judges presiding over the 2017 Manfred Lachs Space Law Moot, which is held as part of the annual International Astronautical Congress — the major global forum for all parties concerned with space. The teams taking part in the moot focused on the lunar accident scenario.

“The question was about what rights the mining state has and who was responsible for damage done to the mining outfit by the scientific team. There is a liability convention that says that if any damage is caused, you are absolutely liable to meet the costs,” Sir Keith says.

“We now have around 1400 operating satellites and millions of bits of space debris, so there is a huge amount of activity.”

“There will be an ongoing argument as technology develops and, as scientific inquiry moves on, there will be serious issues about whether you can extract minerals, and questions about who should get the benefit. This is the same sort of issue as deep-sea mining. There are actually a lot of parallels with deep-sea mining that people can draw on in further developing ideas about regulating activity in outer space.”

New Zealand is party to three United Nations space treaties, including the Outer Space Treaty. The other two agreements cover the rescue and return of astronauts and objects launched into outer space, and liability for damage caused by space objects.

There is also an obligation for states to register anything that goes into space from their territory or involving one of their nationals.

New issues, like space waste, have arisen as technology improves and outer space becomes a busier place. This leads to an understanding of how to deal with such debris and avoid the frequent collisions that occur.

Sir Keith: “This understanding is not yet in treaty form, but is dealt with through a UN committee called the Committee on the Peaceful Uses of Outer Space that has existed since the early 1960s, and which New Zealand joined last year. This committee works alongside other space-related agencies, including the International Telecommunications Union and the World Meteorological Organisation. It’s an ongoing effort to regulate all the activity in space.

“From a time when there were just one or two satellites that lasted only a day, or a few weeks, we now have around 1400 operating satellites and millions of bits of space debris, so there is a huge amount of activity.”

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