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What on Earth is Happening to Space Law?

Published on July 31, 2018        Author: 
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In 2015 and 2017, respectively, the United States of America and Luxembourg enacted bills granting property rights on resources collected in outer space. The potential beneficiaries of these laws are hi-tech companies investing in the exploration and exploitation of space resources. Even though robotized mining of precious metals, rare earths and other raw materials on the Moon or on near-Earth asteroids is said to be at least 20-25 years away, an economy of space resources is already developing at a brisk pace. The stakes are in fact high: mining a few large asteroids may change world market conditions for some crucial raw materials. One may be tempted to see these new developments as intimations, not only of a new space race, this time driven by private actors, but also of the space law to come – and possibly as an occasion to let space law flow back into the main stream of international legal scholarship.

Space law began to take shape as a branch of public international law some time around the late 1950s. In the next two decades it struggled to define its identity by analogy with the law of the sea and the legal regimes of other remote places (yet not as remote) like Antarctica or the deep ocean seabed. The law-of-the-sea analogy has always been a powerful motif in the making of and theorizing about the law of outer space. But it is also potentially misleading, as Rolando Quadri was ready to point out in 1959. Epitomized by the adoption in 1979 and subsequent failure of the Moon Agreement, space law’s arrested development left it with an uncertain, coarse-grained legal ontology that compares unfavourably to that of the law of the sea. While the latter distinguishes between low-tide elevations, islands, and uninhabitable rocks, space law works with an inchoate notion of ‘celestial body’ encompassing anything between the Sun and the tiniest asteroid. The legal status of space resources, both living and non-living, is likewise uncertain and no agreement has as yet been reached as to the exact boundary between airspace and outer space, let alone on the limits of humanity’s jurisdiction to prescribe or on protocols governing the encounter with other sentient beings. Tomorrow’s spacefarers will not be leaning over a legal void. It is clear, though, that some rethinking of the fundamentals is required, as well as some change.

Unilateral initiatives like those recently taken by the US and Luxembourg may well set in motion processes of legal change, no matter if these States describe their acts as fully compliant with the existing law of outer space. Although understandable as a matter of diplomatic tactics, this defensive stance is nonetheless based on a disputed interpretation of the law in force (for overviews and detailed analyses of the different positions see Pop, Tronchetti, De Man, Jakhu et al.Su and Hofmann).

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