The last decade has demonstrated an increase in commercial activities in outer space. The technological advancement that this represents in the exploration of space is welcomed. However, it also poses a threat to the long-term goal of sustainable use of the sphere that no person owns. The need to ensure the latter is further emphasized by our reliance on space-based services in everyday life, as it is a vital part of the infrastructure in modern day society. Where international treaties once were deemed sufficient, the call for national regulation has now become more prevalent.
This blog post explores some of the regulatory challenges at the international and national levels and highlights the advantages that a non-binding ‘middle ground’ at the international level might present for the task of harmonizing different national approaches. This is of especial relevance, considering the national, and corporate, interests in economic growth that comes with the commercialization of space.
Corporate interests – economic growth and sustainability
The corporate interest in the space sector can be said to be twofold, especially with regard to the aspect of sustainability. First, the sector itself represents a remarkable opportunity for economic growth, with the global space market predicted to generate up to USD 1tn by 2030. Secondly, a wave of new technology appears to present alternatives to conducting existing business ventures in a more sustainable manner. There is a clear need, not only for states with their international obligations, but also for commercial actors, to ensure a sustainable use of outer space.
The tensions and the disconnect, which arises from the aim of economic growth for national actors and the common goal of a sustainable outer space for all, pose challenges for legislators.
Can current space regulations keep up with innovation?
The existing framework for the supervision of space activities, both international and national, encompasses a multifaceted landscape – like most fields subject to transboundary challenges. The international regulations in place are vague and not in accordance with the technological developments within the space sector. Coming to an agreement resulting in binding international regulations, is challenging and time consuming. One could therefore argue that the rapid technical development within this field would benefit more from soft law-instruments allowing for more frequent amendments.
The Outer Space Treaty of 1967 functions as the most prominent regulatory framework when it comes to the international governance of outer space. Alongside the Rescue Agreement, the Liability Convention, the Registration Convention, and the Moon Agreement, the Treaty sets forth the fundamental principles for the use of outer space. A commonality between all these regulatory vehicles is the vague nature of their wording. Especially considering the advanced technological matter they are set to regulate.
A call of action for national legislators – striking a balance
The increased commercialization of outer space has resulted in many deeming the abovementioned treaties as insufficient, not only due to their vagueness, but also because international instruments necessitate national measures in order to enforce regulation upon private actors. This has prompted many states both to enact and reconsider their own national space legislations. An example can be found in the considerations set forth in a Norwegian white paper published in 2019 (in Norwegian only).
National regulatory entities play a crucial role in space mission proposals, ensuring compliance with both national and international regulations. This includes space debris mitigation measures and adherence to space traffic management protocols, both necessary to ensure a sustainable use of outer space. Further, liability and insurance regimes are regulated in national laws to address the potential consequences of space activities. These are all measures which aim to hold private entities accountable for their ventures in space.
National legislators also face the intricate task of balancing relevant national interests with the overarching principles set forth in international treaties. However, the vagueness of the latter might tempt them to create regulations that prioritize national benefits with the effect of further complicating efforts of harmonization. As the space sector expands with the involvement of more private actors, collaborative efforts among nations, regulatory bodies, and private entities, become imperative. Such cooperation facilitates the development of harmonized national regulations, with the international frameworks in place serving as a point of reference.
Advantages of soft law
The transboundary nature of outer space necessitates international cooperation and regulation. However, reaching an agreement among sovereign states can often be challenging. Non-binding international frameworks serve as a middle ground, enabling states to harmonize without having to surrender too much of their regulatory sovereignty. This has led to a wave of soft-law instruments regarding supervision of outer space activities, as illustrated by the Long-term Sustainability Guidelines of 2019.
Non-binding international guidelines allow for a more detailed point of reference for states when working with national regulations – a necessary step to keep up with the rapid evolution of space activities. Unlike legally binding treaties, which can be vague and ill-suited to address the intricacies of modern space technology, soft-law instruments offer both flexibility and clarity for national lawmakers to build upon in their respective legislation.
Corporate interests and sustainability – mutually exclusive?
The economic opportunities presented by the space sector must be balanced against the imperative of sustainability. As commercial activities in outer space continue to expand, it is essential to ensure that regulatory frameworks evolve to address emerging challenges and safeguard the long-term viability of space exploration.
Not only is a sustainable development of outer space of benefit to the environment, but also to businesses looking to expand into and keep existing this field. By embracing collaborative solutions and leveraging non-binding international guidelines, the complexities of corporate sustainability in outer space can be navigated, while advancing exploration and discovery.