Outer Space Law in 2021 and beyond

08 January 2021

Nicholas Gould, Partner at Fenwick Elliott LLP, updates us on recent outer space activities and what we can expect to see in 2021.

2020 was certainly a challenging year for many around the world to meet the challenges of Covid 19. Despite this, outer space activities have gained wide public attention. SpaceX’s Dragon spacecraft named Resilience launched in November with a crew from NASA. China's Chang’e–5 mission launched an unmanned craft to the moon in order to collect samples. This is the first time samples have been collected from the moon for over 40 years. In addition, a recent Japan Aerospace Exploration Agency capsule returned to Earth after collecting samples from an asteroid. NASA also announced in October that water had been discovered on the moon. Further, China is progressing a mission to Mars. This renewed and substantial interest in outer space activities is driven in part by governments but also private entities.

The ability to launch modern small and powerful satellites is perhaps the more obvious commercial reason for engaging in space activities. Worldwide communication coverage using satellites to distribute data is not just about meeting the world’s continuous need for greater data exchange, broadband activity, and voice calls, but also relates to the role of military or security activities from space-related hardware.

A small number of treaties provide the legal governance for outer space activities. The first was the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space 1967. This ‘Space Treaty’ was supplemented by three further Treaties and then in 1979 an Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. National laws also supplement outer space law by those countries which engage in space-related activities. Aside from national laws, the five international Treaties still provide the basis for the legal governance of outer space activities. However, given these recent developments discussed above it's unlikely that the limited old treaties are sufficient. The reality is that the law governing outer space activities is very much in its infancy, but is developing and will no doubt need to develop substantially in the coming years.

Outer Space Law was first published in 2017 by Globe Law and Business, under the guidance of consulting editors Yanal Abul Failat and Anél Ferreira-Snyman. When I authored the chapter on ‘Dispute Resolution’ for the book the area was certainly of great interest given the Permanent Court of Arbitration at The Hague had already given effect to the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, based upon the 2010 UNCITRAL Arbitration Rules. Specific rules for a specific sector were already in place.

Since 2017 the global space industry has expanded considerably. Interest in the treaties, law and governance relating to outer space activities has followed. So much so, that the second edition of Outer Space Law is now underway. This is not simply about international law relating to outer space activities or indeed the national laws. There is, of course, the question of property ownership, licensing and insuring outer space activities; whether the manufacture, delivery and launch and regulation once in orbit of space hardware or the related intellectual property rights. There is also the regulation of artificial satellites as well as the regulation of remote sensing activities of those satellites.

The regulation of a space tourism sector could become a reality in a relatively short space of time given the SpaceX and Virgin Galactic space plane developments in that area. The discovery of water on the moon and recent gathering of samples also leads to the question of the exploitation of natural resources in outer space and the legal implications. The international trade aspects of outer space cannot ignore environmental responsibility not just for the exploitation of natural resources, but also responsibility for dealing with the current widespread space debris from previous launches, as well as decommissioned satellites. Increased reliance on international data transfers also raises the question of cyber operations from facilities on earth through outer space, as well as the governance of intellectual property law data gathered by space-related activities.

All of this, of course, needs to be considered in the context of applicable dispute resolution procedures, applicable law as well as the applicable forum for any dispute resolution activities. Currently, those disputes will be resolved by reference to the laws and procedures of applicable jurisdictions, so bringing us all back to earth at least in the legal context.

Nicholas Gould, Partner at Fenwick Elliott LLP and Visiting Professor at King’s College London, contributed to Outer Space Law: Legal Policy and Practice. The new edition of Outer Space Law is forthcoming.