Researchers on the Law of the Sea reach for the stars

Space law is a new focus area at the Scandinavian Institute of Maritime Law. A group of researchers looks up to the Moon and the stars and contributes to new regulations on outer space and its enormous resources.

Satellite in outer space

Illustration: NASA/JPL-Caltech.

Photo: Copyright: NASA/JPL-Caltech

Who decides which rules apply in outer space? Who is responsible if a space launch goes wrong? Does anyone own the Moon? Which rules should apply then we extract resources from asteroids, and should a future society on the Moon and Mars be a democracy?

These questions intrigue those of us who do not know so much about outer space and space law, but also lawyers. Researchers from several disciplines and subject fields at the Faculty of Law participate in research on space Law.

Developing space law

The head of the research group International Law and Governance Professor Alla Pozdnakova leads the initiative on space law. A number of researchers at the faculty support Pozdnakova, amongst them Trine-Lise Wilhelmsen, the leader of the law committee who has been tasked by the Norwegian government to draft a new Norwegian space law and the Report on the draft space law, and the committee ‘s secretary Simon Torp. Together they draft a new Norwegian Space Act and examine legal problems related to space law.

- I want to contribute to developing space law as a legal research field in Norway. With my background in international law, Law of the Sea and domestic administrative law I can help Norwegian authorities to get an understanding of Norway’s rights and duties in space, and to participate in space activities as a responsible actor.

- Legal research is necessary for Norway to fulfil its rights and duties as an actor in space and as an Arctic nation, but also to contribute to a sustainable use of outer space, she adds.

Norway – a space nation

Alla Podznakova
Alla Podznakova. Photo: UiO.

Norway has a long tradition in exploring outer space, in large part due to its geographic location in the North. We have participated in research and technological innovation related to outer space for more than 120 years. Kristian Birkeland’s famous Terrella experiment, where he in 1896 produced artificial Polar lights, marked the starting point of modern space exploration.

Norway has also early seen the necessity of creating legal rules – a Space Act – to ensure sustainable and responsible use of outer space. Norway’s Space Act is in fact the oldest national space act in Europe, and the oldest codified space act in the world.

Our space law needs a reform

According to Pozdnakova, Norway’s space law of 1969 is outdated as it does not take account of recent developments in outer space and international law obligations in this field.

- We need an act that reflects Norway’s international law obligations and that will provide a robust legal basis for private outer space activities. The new law needs to build upon international law, but we also need to take into account domestic administrative law, contract law, insurance law and tort law, and we need to include a comparative perspective in our work. Other states’ regulations can be an important source of inspiration for our efforts to find an ideal solution for Norway’s needs but we need to follow the Norwegian law-drafting tradition and we also need to take into account the current and future development of the Norwegian space sector.

Peaceful outer space rather than Star Wars

There are still states that do not have their own space law, even though much has happened since the 1950s.

- After Sputnik was launched into space in 1957, the US and the Soviet Union quickly saw that they needed international law to regulate the use of and activities in space. At that time, only the two superpowers had the capacity to use space, and invested in outer space exploration. The superpowers needed satellites, infrastructure and resources for mutual surveillance. These innovations were mainly tied to military activities and self-defense, Pozdnakova says.

- The superpowers became increasingly aware of the need to ensure that space is used in a peaceful and sustainable manner, rather than for a war with the potential of eradicating humankind. Quite surprisingly, the states managed to enter into agreements in this field. The 1967 Space Convention lays the foundation of space law. The treaty is still in force, and Norway is a party to it. Today, it is important to make sure that all States remain loyal to the fundamental principles set out in the Outer Space Treaty.

States’ responsibility and risks

According to the treaty, states must use outer space in a peaceful manner, act in a responsible way and are accountable for their own actions. In later years, the treaty has been supplemented with other conventions that regulate liability for damage.

- A space rocket can explode at launch or a satellite can fall down on Earth and cause enormous damage if it does not burn up in the atmosphere. Activities in space are risky and dangerous, and it was necessary that states assumed responsibility for damages caused to humans, material and other damage. States have also agreed on rules for the rescue of astronauts and space objects, and on a registration system for objects in outer space, so that states know of each other’s activities.

- Sustainable use of the outer space is extremely important for the contemporary and future generations’ access to crucial services such as satellite-based communication.

- Current challenges such as space debris are not reflected in the treaties, and must be solved through political agreements and soft law. Another topic that is difficult to regulate is the commercialization of space activities through private actors.

Who owns outer Space?

Norway has ratified the four most important space conventions, Pozdnakova says.

- The fifth was the Moon Treaty, which to a large degree builds on the same principles, but expands the rules on the use of the Moon and other celestial bodies. Today, the question  whether someone owns the Moon, outer space, or Mars is no longer purely hypothetical. The treaties stipulate that space is a “province of the mankind”. No one should stake a legal claim to the Moon or other space objects. 40 years ago, these were theoretical considerations, but now the situation changes quickly.

Outer space is a treasury

We have heard of Elon Musk sending his Tesla into space, and about spacecraft taking probes on the surface of other planets. The Norwegian Space Agency’s vision is that Norway should use space better than most other countries in the world.

As of today, the extraction of resources in space is mainly theory. We have not started digging for diamonds in the interior of known and unknown planets. Humans do not yet spend years in space stations on Mars. But both states and private actors should be interested in the enormous resources of minerals and metals in outer space, Pozdnakova says.

- States seek to secure access to resources on the Moon and Mars, and this challenges the principles of non-appropriation of space and that the outer space should be used for the benefit of all states. How can we ensure that all states have an equal right and equal access to these resources? Should the profit generated from these resources be redistributed, and if so, how?

International law does not provide answers to these questions. But we know that the United States and Luxembourg, for instance, have domestic laws that allow private actors to extract resources from outer space and recognize private property rights to such resources. We have also heard of countries in the Middle East that have developed ambitious space programmes. We now see efforts to coordinate these national initiatives through international Law.

The relevance of the Law of the Sea

Pozdnakova explains that the Law of the Sea is useful in her research.

- I see many parallels between the Law of the Sea and public international law more generally and space law. The Law of the Sea struggles with the «Tragedy of the Commons» in relation to unsustainable exploitation of common resources, where nobody has an incentive to avoid damage. If one actor abstains from exploiting the resources, others get more while she gets nothing.

- It is difficult to create binding rules for the sustainable use of space resources, because some states are not interested in changing the status quo. One example is the resources of the Moon. Another example is the use of orbits around the Earth. Unregulated use of these orbits will lead to excessive space debris and may impede future use of Space.

- For Norway as a maritime and Arctic nation, access to space-based services is crucial, and we should seek to gain a best possible understanding of the legal challenges and opportunities in this Field.

What will the future bring?

Human settlements on the Moon, or the transportation of rare metals from a sister planet - doesn’t this lie far ahead in the future?

-Today’s discussions are very concrete: There are plans to create a space station orbiting the Moon or a Moon Village. There may be private space tourism, and a Norwegian may become an astronaut in a joint international project.

Today’s International Space Station is a great example of cooperation of States across political interests and sciences. But the Space Station is old, so humankind needs a new cooperation project. A space station on the Moon, or astronauts on Mars - we might live to see these projects carried out. Law is, of course, highly relevant in preparing such initiatives. Lawyers should be actively involved in interdisciplinary research collaborations.

Space waste
Space waste can cause considerable damage. Image: ESA/ID&Sense/ONiRiXEL.

 

By Bente Kraabøl
Published Nov. 28, 2019 12:03 PM - Last modified Nov. 28, 2019 1:06 PM