Cosmopolitan Space Law: To Legality and Beyond

2011 The six Expedition 30 crew members assemble in the U.S. Lab (Destiny)

Dr Marjan Ajevski writes about his interest in Space Law and its developments in this blog post.

Prior to coming to the OU Law School, Marjan was a Visiting-Research Fellow at NYU's Program for International Relations , a post-doc for the PluriCourts Centre of Excellence at the University of Oslo, Norway, and a PhD researcher at the Central European University in Budapest, Hungary, where he has also been a visiting professor.

November 5^th marked twenty years of continuous human presence in space. China has landed a sample return mission on the Moon, and there are almost weekly tests and launches at the SpaceX facility in Texas, USA. The sight of two Falcon 9 boosters landing always leaves me breathless.

We are entering a new type of space race and it leaves space enthusiasts like me giddy, but it also leaves me apprehensive of the path that the developments in Space Law have taken.

International space law is a compilation of several UN Treaties and Resolutions that lay the basic principles of human exploration of outer space, such as: the purpose of human exploration of space which is for the benefit and in the interest of all, the peaceful exploration and use of space, the non-appropriation of outer space, the applicability of international law to space activities, and the responsibility of national governments to regulate space activities on their territories. But international space law is also a compilation of treaties and informal governance mechanisms that regulate some technical but important aspects of space flight: like registering launches, liability for incidents and damages, or apportioning the electro-magnetic spectrum. There are also other international instruments that deal with the legal aspect of a specific space project, like the bundle of agreements regarding the building and operation of the ISS. These technical agreements are very important for continued human operations in space, and I would not like to be one of the lawyers that would be called in to settle the mess that a space junk collision might cause

The new space race and the prolonged human habitation in space create several challenges for space law, but the one that interests me is the rights and status of human beings in space. The principles of space law are clear – international law governs space activities, and human rights is a major branch of international law. Moreover, it is full of obligation that states cannot easily suspend regardless of the conditions that they operate in. The right to life, the prohibition of slavery and torture, non-discrimination, the guarantee of equal protection before the law, are rights that apply to all human beings regardless of their special coordinates.

Unfortunately, the new space race is creating a contemporary scramble for resources and profit – the Moon’s open for business!, Masten Space Systems tweet a recent tweet stated, and I don’t mean the one from the departing US President. This is pushing space law and space governance in a particular direction, one of managerialism. The recent Artemis Accords are a perfect example of this. Managerialism is nothing new in international governance and there are benefits to technocratic management of certain areas. I wouldn’t let lawyers change a light bulb. However, technocratic management is also quite good at hiding the values that it serves: it is not good at asking the questions who are we and what do we want – it is very good at assuming the answers to these questions and discussing how do we get what we want and how much is it going to cost.

Which brings me to the troubling direction of space law: while we scramble for resources and profit in this new space race, we will make new law, fill in gaps in the old one. We will use analogies. As Gaius’ Institutions tell us “All the law which we make use of has reference either to persons, to things, or to actions.” Which analogy we chose matters. If we think space law is about things (resources, profits, rent, interest, real and intellectual property) we will destroy its heart and soul. I want space to be about human exploration, human growth, human cooperation, the freedom of exploration and the obligation to share the knowledge gained with all of humanity. Let’s get back to the principles of Space Law.

Dr Marjan Arjevski