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Wednesday, October 13, 2021

The Return of Space Law

Space law was a hot topic in the 1960s. I recall from law school a portrait of Myres McDougal that had the moon in the background because of his work on space law. 

Needless to say, space law has not been a hot topic since the 1970s. Indeed, it's almost not a topic at all. But that should start to change. The advent of space tourism means that people need to start thinking harder about basic questions of jurisdiction and substantive regulation for injuries that occur on a space flight. Some of the treaties on space law were made with the Soviet Union and are woefully out of date, for example. 

BTW, you could ask whether maritime law might provide a better template for space law than the common law, but I'd need to give that more thought.

Posted by Gerard Magliocca on October 13, 2021 at 09:02 AM | Permalink


See: “War in Space May Be Closer Than Ever,” by Lee Billings, August 10, 2015, for Scientific American

“China, Russia and the U.S. are developing and testing controversial new capabilities to wage war in space despite their denial of such work.”

* * *

Mike Dorf at his blog in 2018:

“Last week, Vice President Pence announced the creation of a ‘Space Command,’ a first step towards what President Trump hopes to obtain from Congress: a ‘Space Force’ as a full-fledged new branch of the military to take its place alongside the Army, Navy, Air Force, Marines, and Coast Guard. Despite the appeal of a Space Force to pre-adolescent boys whose mommies and/or daddies tuck them into Star Wars-themed blankets (and to a president whose emotional age matches the youngest of these boys), a Space Force is a terrible idea.”

I agree. Mike’s post, however, is not about international law and the weaponization of space (distinguishable to some extent from the ‘militarization’ of space, which has already taken place) but rather asks the question, “Would a Space Force be constitutional?” I’ll leave the possible answers to that question to Mike and his colleagues who are experts on constitutional law. Here I simply want to introduce some material relevant to the international law questions:

“The fact that a large number of States have been calling for the adoption of a treaty on the prevention of an arms race in space for decades now, and more recently with renewed vigour, demonstrates the international community’s belief that the existing legal regime is inadequate for halting the encroaching militarization of space. This should serve as a reason to re-examine what existing space law actually has to say on this issue. [….]

The peculiar circumstances which gave birth to the entire branch of international space law imply that the international community saw a chance for a new beginning in the ascendance of mankind to the stars. It was this perception that brought about the prohibition of claims of sovereignty on celestial objects, or the obligation to help astronauts regardless of their national origin. The same is true when it comes to mandating the ‘peaceful uses of outer space.’ Militarization should be seen as antithetical to the inspired goals and ideals set by space law treaties.

While many scholars would conclude that ‘the final frontier’ is increasingly militarized, the law clearly places a number of limits on the military activities of States in outer space. The ‘pacifist’ approach to the law is therefore more than just idealism. But simply interpreting the law is not enough. International law provides a framework for any scientific, commercial or even military activities in space. As such, it can restrict specific activities, but it may not direct them. The latter remains primarily the domain of policy. If the exploration of space is truly to provide humanity with a chance to start over, it needs to be guided by the principles of true equality, solidarity and cooperation between all States — and they exclude all forms of militarism.”—Pavle Kilibarda

(Pavle Kilibarda holds a LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights. He previously worked at the ICRC’s legal training sector, the UNHCR office in Belgrade and the Belgrade Centre for Human Rights, engaging principally with the legal position of refugees and asylum-seekers in Serbia.)

Please see the material at the Union of Concerned Scientists website: https://www.ucsusa.org/nuclear-weapons/space-weapons/international-legal-agreements#.W3QlesInb4Y

See too the introductory analysis by Kilibarda (above) on the IRC’s blog on Humanitarian Law & Policy (in chronological order):
• “Space law revisited (1/3): The notion of ‘peaceful uses’ and the Outer Space Treaty”
• “Space law revisited (2/3): Are weapons of mass destruction prohibited in space?”
• “Space law revisited (3/3): The regime of international liability in space”

Finally, see to the work of Professor Christopher J. Borgen, who used to blog at the international law blog, Opinio Juris:

A past Co-Chair of the American Society of International Law's Space Law Interest Group, in 2018 Professor Borgen was also named a “core expert” for a proposed “Manual on the International Law of Military Space Operations,” colloquially known as “The Woomera Manual.” Following on previous multinational manual projects concerning the laws applicable to naval warfare, air and missile warfare, and cyber-operations, this project brings together international lawyers and technical experts from around the world to develop a model manual that will objectively articulate and clarify existing international law applicable to military space operations.

Posted by: Patrick S. O'Donnell | Oct 14, 2021 4:43:18 PM

Important issue indeed.

Tourism, may become secondary issue, to that huge one which is:

Mining in space.

Space is full of celestial bodies (like asteroids) full of precious metals.

In fact, there is a convention, dictating, that no one can claim sovereignty in space. Doesn't belong to no one. In reality, can become hell simply.

Here one may read, Japanese spaceship, sort of pilot, mining on asteroid, titled:

"Japan's asteroid sample returns home, poised to reveal solar system's secrets"



And here, in OJ, about the convention mentioned and mining in space. Titled:

"International Law Does Not Prohibit Commercial Asteroid Mining. Nor Should It."




Posted by: El roam | Oct 13, 2021 11:04:44 AM

Interesting topic in theory for sure, but it's hard to see space tourism rising above the level of a very niche activity for a very select group of ultra-affluent white techbros any time soon, if ever. In the timeframe needed for space tourism to get off the ground in a meaningful capacity, the chances seem good we'll have all succumbed to climate change anyway. Cheerful thought I know!

(all space puns very much intended!)

Posted by: kotodama | Oct 13, 2021 11:02:16 AM

This column touches upon it though it is written by a lay individual:


Posted by: Joe | Oct 13, 2021 10:27:41 AM

“BTW, you could ask whether maritime law might provide a better template for space law than the common law, but I'd need to give that more thought.”

“The principles of Space law are the following: 1) Space can be explored freely. 2) It is considered as the common heritage of mankind. 3) It is not open for appropriation (status of international space, like the high seas). 4) It is used for peaceful purposes.”

Just a thought, when giving that more thought, It is important to note, that with Time, The Universe is expanding☺️

Posted by: Nancy | Oct 13, 2021 10:25:56 AM

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