As space activities become more prevalent, there is an increasing need to regulate these activities to ensure safety, security, and sustainability. How to do so, particularly given the global nature of the industry and the involvement of multiple countries and organizations?
To be honest, all space activities have always been regulated on a legal level. It’s one of the rare sectors where law comes prior to any human achievement. Before we even stepped foot on the moon, more than 100 States had signed the 1967 Space Treaty by the UN. The objective of this intergovernmental treaty was to regulate space exploitation in a responsible way under the supervision of each concerned States. In other words, they have to apply the provision of the treaty it in their own legislation. The aim being the safety of people and property, as well as our planet and space. This has also been in the best interest of mankind, the preservation of the terrestrial environment and space – which includes among others orbits, management of space debris and celestial bodies. This all means that the space law is clear and establishes comprehensive principles for the greater interest of our future generations whilst preserving mankind’s needs.
The States have then the obligation of authorizing and monitoring the space activities conducted by themselves but also their citizens, which comprises the private sector as well. All space activities, including private, are also regulated by the State, through its jurisdiction or national legislation. How does it work? Through a licensing system where all operators are obliged to have this governmental license to be able to work in market. They operate their vehicles under their own responsibility, meaning they are obliged to compensate for their eventual casualties to third parties up to a given amount fixed by law (€60 M in France and for ESA launchers) and their system must comply with the technical regulations.
This helps ensure that all systems do not pose any risks whether it is of explosion or environmental. Although the levels of regulation are often questioned, they are essential to ensuring the security of systems and protection of people and environment. When limiting the occurrence risks, quality of the technical regulation also contributes to limit the financial exposure of States being understood that under UN 1967 Treaty and 1972 liability convention the State remain first responsible and liable toward third Parties.
In other words, all operators whether public or private, including startups, are subject to a license from the State. If the companies do not oblige to it, they will not be able to operate.
States and their space agencies have also to stay on the lookout of evolutionary technologies and rethink their texts accordingly to these evolutions. In Europe, like in the rest of the world, there are different works being done on the evolution of these technical regulations, which is a bit trickier to do. The main challenge for States being to protect security of people, goods and environment according to international treaties while avoiding regulations that are restricting the companies activities too much; if not they run the risk of them moving elsewhere under a less restrictive jurisdiction.
This means that there is a certain competitiveness between each country’s regulations. For example, Europe and the United States both have responsible regulations. This isn’t done against the industry though; but instead to promote the quality of performances which are made possible through rigorous, adapted and appropriate regulations ‘requirements. What’s even better is that these same regulations create a competitive advantage for companies exporting their products as they already have a high standard of norms compared to others.
Which role does international cooperation play in space law and policy, and what efforts are being made to foster such cooperation?
Jean-Jacques Dordain has written a lot about this subject and has coined the word “coopetition”. He said that the space sector is a laboratory of both cooperation and competition at the same time. This is very typical of the space programs where the financial risks are always very high (technical, human, financial and many others), beyond any national capacity, public as private. This is for instance the case for Europe and the US regarding space exploration. The Artemis program for example is aimed at attracting a maximum number of cooperators. Even during the Cold War, the spatial sector was a witness of several collaborations.
This means that there have always been collaborations as mutual assistance was required for space operation needs, and it eventually turned into an obligation. When you go and do an expedition on the Moon or anywhere else, the people are on-site have to be able to assist new comers if necessary (1968 UN Agreement). This need for assistance is similar to the one found in the naval agreements that foresee activities posing a certain degree of risk. Yet, this doesn’t mean that competition stops. Private companies are still in competition on their business market but they cooperate with each other on rescue, as a condition of their own insurance agreement. This contract allows them to be reimbursed for the expenses they have incurred to help third parties, who are themselves insured. Indeed, the global economy of the naval or space insurance market, from the insurers’ point of view, aims first of all at limiting the occurrence of risks, or at limiting as much as possible their harmful effects (and at compensating) when the damage occurs.
It is also essential to comply with international rights as there can’t be any space activity if there is a risk of war or geopolitical instability. The more we enter an economical area, the more we need to have a legal jurisdiction to keep things together or to forecast what may happen.
It’s important to establish standards and principles based on a mutual agreement although we are competing against each other. Cooperating is hence essential so as to be able to determine certain common standards. If we want to develop a new activity we must aim to have international regulations or standards. This effort has to be done on a European level between governments and national space agencies, the European Space Agency (ESA), and also the EU – all of them sharing jurisdiction on space activities. Each one is able to find its own footing all whilst coordinating themselves instead of dividing them strengths add up.
There are collaborations at every level as well as international considerations on the prevention of debris, space traffic management and space situational awareness (to prevent collisions between space objects). A dialogue is being established to set up a code of conduct in space all while taking into consideration the protection of government information in all circumstances.
How to balance the need to promote innovation and exploration in the space industry with the need to ensure safety and sustainability?
Innovation implies an investment in the necessary resources (capital, human and technical skills, etc.) to be able to insure a return on investment. Exploration first requires an extensive amount of research. To do so, there are regulations like the ones from LOS (Space Operation Act) in France that allow during the process to certify all undergoing research systems to be up to date on technical regulations. Indeed, it would be useless to invest time and money in an innovative project that you can’t operate as it won’t be in accordance with the licensing regulations when ready to fly.
To the extent that technical regulations are transparent, comprehensive and predictable, they automatically favor innovation as the framework is already set.
In terms of sustainability, most of the current regulations include the management of space debris that could come crashing down to earth or generate orbital collisions. The economical space actors also have an interest that these activities become regulated. There isn’t any use in sending out a constellation if it ends up getting destroyed by space debris!
Thus meaning that we have to stay vigilant and ensure that the private sector is involved in the elaboration of future regulations, which is already the case of France, Europe and the major western powers. Earlier this year, the French economical and financial minister in charge of space published on his website a consultation of space actors for the evolution of technical regulations. The European Union has also shared a similar dialogue. It’s important to recall that space jurisdictions have either been one step ahead or on the contrary having to better adapt to the evolutions and economical needs of society – which includes sustainability and innovation…
How do you see space regulation evolving in the coming years?
In line with the current efforts being made, the establishing of new laws are being done all whilst respecting the 1967 treaty. Regardless, there are now new challenges, being technical and jurisdictional. These are very interesting for legal experts, like for example in-orbit services: we are developing a right for assistance and rescue in space. Which is beneficial not only for the environment protection but also for economical operators as the systems will be reparable and replenished all whilst being in orbit.
This will therefore generate new activities and change contractual relationships. In the sense where we will be seeing contracts being solely executed in space. This implies a correct conduct from the shareholders engaged in these works and their procedures. This will help us structure even further the notion of jurisdictions in space. To this day, the errors are due to actions being taken from earth and not in space. We are in an evolution of space rights which takes more into consideration the maturity and autonomy of operators acting as aliens!
