The realm of outer space is often labelled ‘the final frontier’: it is for man to explore new civilisations and worlds, seeking answers to fundamental cosmological questions such as, ‘does extraterrestrial life exist’? Recently, technological advancements in the fields of aeronautical engineering and astrophysics have caused several space aficionados such as SpaceX CEO Elon Musk to envisage the evolution of humans into an interplanetary species. The billionaire entrepreneur has already put plans into motion to terraform Mars and construct a sustainable settlement there, and Richard Branson’s Virgin Galactic have begun accepting reservations for its commercial spaceflight program. However, the transition of space travel from a purely government-mandated activity to the private sector presents fresh legal challenges. My dissertation sought to identify and analyse these legal hurdles to commercialised outer space activities, and whether the contemporary space law framework sufficiently addresses these issues. Space is primarily regulated by international instruments since it is regarded as ‘res communis’ (i.e. a global commons).

The thesis commenced by identifying that space debris presents a potentially catastrophic threat commercialised space tourism, and that threat will become exacerbated with increasingly frequent space vehicle launches. Space debris is essentially non-functional objects left in outer space, which may form naturally (e.g. meteoroids) or artificially (typically through spacecraft collisions). Further accumulation of outer space debris presents a two-fold problem: it can impede the accessibility of outer space from Earth (as enshrined in the UN Outer Space Treaty) and de-orbit and fall back to Earth, which happened when radioactive debris from the Cosmos 954 incident fell over Northern Canada in January 1978. Astroenvironmentalists are concerned that if space debris is not remediated imminently, a cascade effect known as the ‘Kessler Syndrome’ may occur, in which space debris collides with other debris to create further fragmentation, hindering the accessibility of outer space from Earth. The dissertation found the current legal framework does not impose a legally binding obligation on States to remediate space debris and therefore fails to adequately protect the cosmic environment. The paper also considered whether an obligation could be extracted from principles of international environmental law such as intra and intergenerational equity and the ‘common but differentiated responsibilities’ approach but concluded that these were too difficult to construe an obligation.

Liability in space law for damage caused to both the Earth and other space objects was also examined. The Liability Convention imposes absolute liability for damage caused to Earth or aviation vehicles, but an element of fault must be proven to establish liability for damage caused to other space objects. The dissertation highlighted that the Convention does not provide a sound interpretation of ‘damage’ because it does not elaborate on whether indirect or consequential damage such as radio frequency interference caused by Global Navigation Satellite Systems is included. The paper concluded that this type of damage would not be included since the Vienna Convention on the Law of Treaties would not permit a special meaning of damage because the drafters of the Convention would not have intended to implement such a term. As such, victim States and commercial space operators are denied access to justice for damage caused by indirect sources such as electrostatic or electromagnetic interference.

Further, the thesis showed that the element of fault under the liability regime is problematic and requires imminent reform. The fault provision is unique as it is the sole fault-based international liability regime to exist. ‘Fault’ is a notoriously ambiguous term in international space law because a concrete criterion to determine fault is absent. As such, commercial space operators are unable to quantify their exposure to liability, which may dissuade further corporate investment into space exploration and innovative space technologies. Furthermore, the standard of fault required is uncertain. Some space law academics suggest ‘fault’ places an obligation on States to exercise ‘due diligence’ as modelled by the International Court of Justice in the Corfu Channel Case (UK v Albania). Alternatively, some also point to the due diligence fault standard in the Articles of Transboundary Harm. However, my dissertation dismissed these arguments because the applicability of the Articles to outer space activities is purely theoretical since the opinions of the International Law Commission are not legally binding. As such, my dissertation concluded the current liability regime in space law is inadequate as it is plagued by speculative concepts, rendering its’ applicability uncertain.

The paper then focussed on whether it is legally possible to establish proprietary rights on the Moon or other celestial bodies. The Outer Space Treaty expressly prohibits that outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty by any means. However, several entities have attempted to circumvent this provision and establish interplanetary property rights. For example, in the case of Nemitz v United States, a US citizen attempted to argue that he had established property rights on the asteroid of Eros and that NASA had infringed those rights by landing a probe there. The question for the court was whether the Outer Space Treaty provision also prohibited private, as well as national, appropriation of outer space. The court ultimately held the prohibition extended to non-governmental entities, relying on the fact that the Outer Space Treaty stipulates that States are responsible for the acts of private operators. They also held that enabling private entities to evade this prohibition runs counter to the fact that outer space is free for exploration by all and that it is the ‘province of all mankind’; it should be used for wholly peaceful purposes. However, the thesis did allude to the fact all methods of appropriation may not be excluded. In the Bogotá Declaration of 1976, eight equatorial states successfully argued that geosynchronous orbital slots could be subject to their territorial sovereign powers because it formed an integral part of the territory. Although an anomaly in international space law, this precedent could indicate how a claim of sovereignty in outer space may operate in the future.

The final issue my dissertation analysed was whether the current legal framework permits the commercial exploitation of extraterrestrial resources and, if so, how those resources should be distributed. Several companies such as Deep Space Industries and Planetary Resources have begun experimenting whether commercial exploitation is economically feasible. In particular carbonaceous asteroids contain abundant quantities of liquid water; Helium-3 and platinum mining can also be utilised to support the sustainability of Earth’s climate. Further, exploitation of celestial bodies will become an eventual necessity once all non-renewable mineral resources on Earth is exhausted. In establishing whether the exploitation of lunar resources is legally permissible, it must be questioned whether such an activity constitutes ‘appropriation’ prohibited by the Outer Space Treaty. Two major spacefaring nations, the US and Luxembourg, have already passed national provisions enabling the legality of commercial exploitation of space resources. The dissertation argues that as the US expressly knowledges that such exploitation does not constitute a claim of extraterritorial sovereignty, it does not violate the non-appropriation principles in the Outer Space Treaty. In any event, the NASA Artemis Accords - of which the UK, US and Luxembourg are all signatories - also provides that commercial exploitation does not constitute national appropriation.

However, there are significant disputes over the way in which those resources should be distributed. The Moon Agreement provides that the Moon and its natural resources are the ‘common heritage of mankind’ and that the signatories shall establish a distributive regime to govern the exploitation of resources when exploitation is about to become feasible. That regime shall include an equitable sharing of resources, and States, regardless of their contribution, will be given special consideration. Indeed, opponents to the Moon Agreement have claimed that this clause emits anticompetitive efforts which will cause harm to the commercial space resources market. As such, many States have yet to ratify the Agreement, meaning this regime has very little relevance in international space law. Hence, the dissertation rejects this regime, and highlights several considerations when establishing this regime. Some of these are balancing stakeholder and competing interests of States, balancing commercial and economic development with the outer space environment as well as antitrust considerations.

The dissertation highlights that international space law is in a state of flux and is not fit for the commercial space age. The uncertainty of the contemporary space law framework threatens to deter future investment into deep space exploration and technological innovation, and the administrative burden on commercial space operators is heavy. These legal lacunas must be rectified by legislators if the human populace truly wishes to become an interplanetary space-faring civilisation. As the Father of Rocketry Konstantin Tsiolkovsky once said: ‘Earth is the cradle of humanity, but one cannot remain in the cradle forever.’

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