Who will govern beyond the final frontier?

Dr Chris Newman                 The increasing militarisation and commercialisation of space may seem like very recent trends, but are in fact the continuation of a tradition going back to the origins of the ‘space race’.  That is the view of Dr Chris J Newman, Reader in Public Law at Sunderland University in the UK, and the leader of Britain’s only university course in Space Law.

Chris visited New Zealand in early July to present a seminar for the Institute of Governance and Policy Studies at the School of Government, Victoria University in Wellington. The seminar, entitled “Beyond the Final Frontier: developments in Space Law and policy”, outlined the key issues facing lawyers who are trying to disentangle the difficult nature of outer orbit legal jurisdiction.

“Many people do realise that there have been firm foundations for Space Law for nearly fifty years,” says Chris “in the form of the United Nation’s ‘Space Law Treaty’ of 1967, which is still described today as the ‘Magna Carta of space’”. He explains that leadership in the field goes back even earlier, to the UN’s Committee for the Peaceful Uses of Outer Space (COUPOS), which was founded in 1957.

In addition, Chris highlights some interesting governance arrangements with national space programmes. “Most people would naturally associate the US space programme with NASA”, he says, “but it’s the Federal Aviation Authority which has always been responsible for the protocols governing take off and re-entry. What’s interesting, however, is that there are no rules at all for the time people are actually in orbit”.

The potential for increased militarisation may be a concern but was always a driver of space exploration. “The whole space race has been described more than once as ‘sabre rattling’” says Chris. “But weaponisation remains slightly less likely than other military uses. Putting weapons of mass destruction in space is already expressly prohibited by Article VI of the Outer Space Treaty but other uses [of militarisation] such as communications, tracking devices and remote sensing capabilities make up a much more realistic concern”.

Chris also points out that the harmonious tenor of space exploration has begun to change very slightly, with official US space policy since 2006 having the goal to “develop and deploy space capabilities that sustain US advantage”.

Commercialisation of space has always been important but, Chris argues, there are now significant developments that have legal ramifications. “The first key difference is that commercialisation is no longer the preserve of large nationalised organisations such as NASA or ROSCOSMOS [the Russian Federal Space Agency], but of entrepreneurial companies such as Golden Spike and Virgin Galactic. Indeed, the latest US space legislation, including the Commercial Space Acts of 1998 and 2003, are all geared towards the facilitation of private companies”.

“The other massive difference,” Chris points out “is simple affordability. Companies promoting space tourism are still charging large sums of money, but these are in the hundreds of thousands [of dollars] rather than the millions – well within the price range of many people. Bespoke satellite solutions are more affordable today than ever and can be purchased online within a matter of minutes.”

However, the increase in affordability may exacerbate a number of existent problems, not least of which is space debris. “Scientists estimate the level of space debris orbiting Earth to be around 29,000 objects larger than 10 cm, 670,000 pieces larger than 1 cm, and more than 170 million above 1 mm. There are literally millions of man-made particles in orbit that can damage satellites and other bodies”.

The issues facing Space Law, therefore, are not new but have taken on new forms and current governance arrangements will need to be continually re-assessed.  Codes of conduct, for example, are almost certainly going to be required for space tourism.

“In the UK a few people raised their eyebrows when we developed our university programme,” Chris says “but the importance of Space Law is a simple reality. I’m delighted to be able to join it when so many interesting questions are being asked”.

Dr Michael Macaulay is an Associate Professor (Public Management) at Victoria University and Deputy Director of the Institute for Governance and Policy Studies.     

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