a hubcap laps On the road. A car deviates from its lane to avoid it – in oncoming traffic. The resulting carnage sends people to the hospital, tow trucks scramble and insurance companies to their attorneys.
It’s an unholy mess. This is despite well-established processes for determining liability and responsibility.
But what if the hubcap was an advanced missile?
What if the car was a satellite? And the lanes, the orbits?
Then there’s the matter of each new part turning into another killer cover…
It is a threat that could end humanity’s access to space.
What if two countries wanted to extract the same crater on the moon or asteroid? Who can get to the already crowded tropical highways? What is the work of war?
Which is why – against all odds – the world is pushing itself to do something about it.
“Space technology has taken off, and the law hasn’t kept pace with all the new things we’re doing, and planning to do,” says Professor Stephen Freeland. “However, space touches us all – we all need to have access to what it has to offer.”
Earlier this year, an international law expert at Western Sydney University and Bond University was elected co-chair of the new United Nations Task Force on the Legal Aspects of Space Resource Activities. But he is just one of dozens of Australian legal experts and technicians battling to reach consensus on what it means to “peaceful use of space for the benefit of all humanity”.
‘for all mankind’
Dr Cassandra Steer, Australian National University Institute of Space, says space is indeed important to our daily lives.
“Something the size of a pea can be a satellite killer,” she says. “And you and I depend on them for online banking, weather forecasting, climate tracking, flight and cargo control, search and rescue, firefighting — and all kinds of everyday activities.”
Not everything that bothers the UN has to do with the effect of “Kessler Syndrome” – where a chain reaction of debris strikes creates a tropical shooting gallery so intense that nothing can survive.
But it is about avoiding potential crises before they happen.
Steer says space has never been the “Wild West”. At least not since the creation of the United Nations Committee on the Peaceful Uses of Outer Space (COBOs) in 1958 and the adoption of the Outer Space Treaty in 1967.
And it works.
It works because it needs to work. Otherwise, there will be chaos. Nobody benefits from that.
“There is an incredible amount of law governing space,” she says. “Yes, there are a lot of gray areas. But not only do we have treaties, we also have all domestic laws. The Outer Space Treaty states that everything in outer space must be done according to international law. So it drives me crazy when I read that space is outlawed. Or the Wild West.
We know what the rules of the road involve. Aircraft share common procedures and standards. We have the United Nations Convention on the Law of the Sea (UNCLOS).
So what’s so hard about space?
“If you have a whole bunch of nation-states operating in certain regions of the Moon in relatively close proximity, these comparisons work really well,” Freeland says. “You have to work under the same rulebook. But you have to figure out what those rules are because – you know – some countries will say ‘stay left’, while others want to stick to the right.
“That’s what this diplomatic negotiation process is about.”
The space itself is an entirely separate matter.
Just what is the “left” trend anyway?
“When it comes to space law, I think you could say we kind of moved from the horse-and-cart era of the ’60s to five-lane highways by the beginning of the twentieth century.The tenth Century,” Steyer says. “And now we’re on multiple, five-lane highways crisscrossing each other from all different directions and directions. Each vehicle is on a different path. But they can still cross each other. And they do it at ten times the speed of a bullet.”
For decades, only a few dozen new objects were launched into space each year. This is now measured in the hundreds. Soon, the number will be in the thousands.
As their interactions become more complex, so must the means of managing them.
More about space laws: Aussie Moon missions hit legal gray areas
“A lot of people will say that the space treaty is outdated, that it is not fit for purpose, that this technology has moved forward. And Steer always says ‘no’.”
These treaties are a framework, kind of like a constitution. The constitution lays down principles and values. But it does not regulate daily activities.”
As technologies and uses change, the day-to-day rules and regulations must be adapted to apply the constitution.
“In effect, the Outer Space Treaty places most of the responsibility on nation states,” Steyer says. “It states that states are responsible under international law for all of their activities in outer space, whether governmental or commercial.”
“No one has claimed responsibility for collisions in space,” Freeland says. “And it has only been invoked once because of the damage done to the earth – and that was in the 1970s. But that doesn’t mean it may be invoked in the future.”
Liability only works when you can prove the cause.
And while most large pieces of space junk have been identified, not many have. An origin smaller than 10 centimeters almost cannot be traced back to its origin.
But all it takes to destroy a multimillion-dollar satellite is a speck of paint – moving at 15,000 kilometers per second.
“Liability doesn’t come into effect until after the damage has occurred,” Freeland says. “What we want to do is reduce the odds of the damage happening in the first place.”
He adds that the idea of cleaning up the space is tempting.
One example of this is an abandoned car on the side of the road. Its license numbers reveal its owner. Parking regulations allow for their removal. It has grappling points built into its design. It is a harmless civilian technique.
But space is more complex than that.
“Who owns it? Is that what they say it is? Does it have sensitive technology? What about nuclear power? If I try to catch it, will it crumble into deadly little pieces?”
This is why space needs to be organized.
Material standards may mitigate the risk of fragmentation. Unified engagement points may help recover dead satellites. De-orbiting procedures can eliminate the need for both.
“Nothing is ever perfect,” Freeland says. “There will always be a risk. But we need to find ways to reduce the risks and maximize the benefits.”
A group of legal, diplomatic and technical experts is brought together under the auspices of the new Australian Space Agency. They will add Voice of Australia to the debate on issues as diverse as the rules of the road for the proposed Australian lunar modules to the Common Standards for satellite tracking.
“Australia has a real opportunity to have a voice on a whole range of important issues,” Freeland says. “And her voice is getting louder.”
space is hard
It turns out there is something more complicated than rocket science. This is the law of space.
People may criticize the way the United Nations works. And of course the industry complains that everything is too slow. “It’s really cool that we were able to get to where we are as quickly as we got,” Freeland says.
The Committee’s new Working Group on the Peaceful Uses of Outer Space on Legal Aspects of Space Resource Activities was formed in April. This is despite escalating global tensions after Russia’s invasion of Ukraine.
More on space law: Do we need a new space law to prevent space war?
“It shows that there are issues we can move forward on,” he says. But every step must be discussed. Every word must be negotiated. It’s a process that takes time. But on really big issues like space resources, space traffic management, space sustainability, you really have to have a multilateral process. Otherwise, you won’t get a consensus.”
First, everyone must agree to speak.
Then it comes to agreeing what we’re talking about.
And that’s long before any agreement is reached.
“You have to get the approval of 110 countries. And each of those countries has a veto. That’s why they didn’t create that many working groups…”
This is why international talks are moving away from specific laws toward common principles, Steyer says. “Instead of trying to identify a specific weapon or technology to determine what is legal or illegal, we focus on appropriate or inappropriate behavior. How do we come up with internationally agreed standards, rules and principles and get out of Catch-22 to try to come up with precise legal definitions and prohibitions” .
She says this may require a new way of doing “international cooperation”.
There is a precedent.
“In New Zealand, there is a river that has been given legal personality. This means that it has statutory rights. But to represent these rights you need a board. That board has directors that include local Maori representatives, government agencies and private interests. It works well because everyone need to take care of the river’s interests, as well as their own.”
Our take off
In 2019, the Committee on the Peaceful Uses of Outer Space (COPUOS) Scientific and Technical Subcommittee approved 21 guidelines for the long-term sustainability of outer space.
“These guidelines are being adopted on a voluntary basis,” Freeland says. “But they are already calling for debris mitigation plans, international operating procedures, and improved transparency about what’s going on there.”
This is because 110 or more countries that have agreed to the guidelines must then interpret them into national laws.
Australian satellites must now be certified to comply with Australian standards – just as car manufacturers must. Australian regulators must establish and enforce these standards.
And while there are dangers of “flags of convenience” – as shipping companies register in countries with lax shipping laws – even those laws are better than nothing, Steyer says.
“Laws alone will not solve these problems,” she says. “We need transparency and communication. So we need a code of conduct and practices. Only then can we hope to keep pace with technology.”
And that, Freeland says, needs sharing.
“If humanity wants to engage in these kinds of activities, it has to find a way that allows everyone to participate,” he says. “Because if you and I are involved in a process, we are more likely to stick to it. This is because we have had the opportunity to contribute to the rules rather than impose them on us.”