*This blog post is part of the Jean Monnet Chair of European Media Governance and Integration series
By Katrin Nyman Metcalf*
One of the fascinating things when I researched my PhD on the law of outer space nearly 20 years ago was to read old sources – which in space law means end of the 1950s,early 1960s – and feel transported not just in space but also in time. Then so little was known about outer space that serious academic authors actually discussed (Haley, 1963; McDougal, Laswell & Vlasic, 1963; Vasquez, 1965; Gal, 1965; Chaumont, 1960; Jenks, 1956) how to react when meeting aliens, what we could expect when travelling to different planets and so on. Underlying it all was an optimistic message of creating something entirely new: leaving the shackles of the earth behind and starting a new future, in which national borders and terrestrial disputes played no role. This language is like that of the early cyberspace discussions. This is one of several reasons, including of course also the international nature of the areas, why outer space and cyberspace law are quite often compared in the debate[1]. That in turn is one of the reasons space law is institutionalized and discussed more now[2] than some 20-30 years ago, when several treaties had been adopted, a general legal framework created and space activities were becoming commonplace.
Outer space itself also presents reasons why the legal system is coming under renewed attention. The key principle of outer space law, as stipulated in the 1967 Outer Space Treaty and according to many authors recognised at least partially as customary law, is that space cannot be appropriated but it can be used and such use should be for the benefit of humankind. The legal regime does not clarify the border between prohibited appropriation and permitted use. When use was mainly scientific and rather limited, this was not a problem. With the increased use that we see today and not least a growing number of private actors (in addition to a growing number of states with e.g. China. Japan, Brazil and India in addition to the more traditional Russia, USA and Europe) there can be real questions of whether use of a space resource is in fact so extensive that it excludes any other user and thus is akin to appropriation. The USA adopted the first law on space resources at the end of 2015 and although it claims to be in accordance with the international space law, it remains to be seen if and how use of tangible space resources can fit into the scheme of appropriation versus use.
The reason why international lawyers take an interest in space law, even if not fascinated by space as such, is because of its nature and the consequences for law-making. Here is an area that is really international, and does not belong to any state – thus rules must be made internationally. Only national space law would not be enough. Consequently, international rulemaking is tested: can states agree on functioning rules in a global setting? In the early space age, it was positively surprising that despite the Cold War, the main players, the USSR and the USA, managed to agree on many issues. It may have been because of the novelty, as neither knew what the other had up their sleeve or due to the largely scientific nature of activities. Currently the planet is in an Added to this complexity is the changed situation in outer space where private firms develop new activities, the number of space nations with civilian as well as military capabilities is growing rapidly, space debris has turned into a real practical problem and there has not been any successful international space legislation passed for some decades. All of this contributes to a situation in which space activities proceed, but in a climate of uncertainty. The international legal framework is not suited for the new situation. If states fill the vacuum with national legislation, will the established principles of space law remain valid?
This allows adding another similarity to cyberspace – outer space comparison: it is essential to clarify what the legal regime actual is, and this is not easy. Outer space provides an example for cyberspace regulation of how rules are made in an international environment but it also highlights the challenges: when there are business interests and potential risks for individuals and businesses that go beyond what states can agree upon in the traditional, international law and diplomacy setting, it is very difficult to achieve rule of law. Cyberspace should strive to include novel and more innovative ways to make rules – something outer space rulemaking could learn from cyberspace.
*Professor Katrin Nyman Metcalf, Tallinn University of Technology/Estonian representative to the European Space Agency International Relations Committee
[1] Some examples, they are from Katharina Ziolkowski (ed) Peacetime Regime for State Activities in Cyberspace. International Law, International Relations and Diplomacy (CCDCOE – NATO Cooperative Cyber Defence Centre of Excellence, Tallinn, 2013): Martha Meija-Kaiser “Space Law and Unauthorised Cyber Activities” 349-372 Also K Ziolkowski “General Principles of International Law as Applicable in Cyberspace”, 135-188 and Benedikt Pirker “Territorial Sovereignty and Integrity and the Challenges of Cyberspace”, 189-216
[2] Nyman-Metcalf, K. (2009). Space for the benefit of mankind? New developments and old problems. Annals of Air and Space Law, XXXIV, 621 – 644.
Read about the risk of space war here: https://www.scientificamerican.com/article/war-in-space-may-be-closer-than-ever/
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