Space: the final stake-out

As the Philae probe touched down on the surface of a comet more than 300 million miles away on 12 November, the world looked on in awe. And for one small group of people with a highly specialised profession the landing was especially exciting. Space lawyers say the comet landing is a “big deal” for them, as it gives added purpose to their work.

Space law expert Frans von der Dunk explains the landing has meant long-debated questions about laws related to human activity in space “have now moved from the theoretical into reality”.

He says it has brought the commercial mining of materials found on comets and asteroids a step closer, and it’s now “imperative” that the international community resolves how to handle the legal issues it brings up.

Von der Dunk is one of the small but growing number of legal experts worldwide who deal with laws related to everything humans do in outer space.

This relatively young area of law is fast growing in importance and, although some legislation already exists, it’s now having to take giant leaps to accommodate things like the potential mining of asteroids and the increasing interest in space tourism.

As interest in using outer space grows, so does demand for specialist knowledge in space law. At Sunderland University, space law has been a part of its undergraduate law degree since 2010.

Chris Newman, reader in law at the university, designed and now teaches the space law module. He compares the issues lawyers face in regulating space exploration today to those with the internet 25 years ago.

“I’m quite passionate about this area of law. It can seem at first to be a little cranky, a little eccentric, but there are actually real legal issues that have yet to be resolved,” he says.

He adds that though there’s still only a “handful” of space lawyers, it’s a growing number. “Some say this area of law is very niche. I like to call it pioneering.

“The comet landing was exciting for me as a space lawyer because it pointed the way towards landing on asteroids, to the possible exploitation of space as a resource, and the problems that that will bring with it.

“You’ve got issues of planetary protection and, coming from an environmental thrust, should we really be dropping metal objects on unspoiled atmospheres? There are a number of planetary protection measures in place already to minimise our infection of other worlds, but it’s still an issue that regulators think of.”

It has been said that the final frontier for space law is the mining of asteroids for resources, and though it may sound like science fiction, ventures like Planetary Resources have been making the news with ambitious plans to do exactly that.

Planetary Resources, a company backed by investors like filmmaker James Cameron and Google CEO Larry Page, was formed in April this year and has outlined an ambitious plan to extract resources from near-Earth asteroids.

Google itself took a 60-year lease on a Nasa airfield next to its Silicon Valley headquarters this month, announcing that the area would be used for research into “space exploration, aviation, rover/robotics and other emerging technologies”.

Activities like this have fuelled speculation about a Wild West scenario developing in outer space, with private companies battling over resources.

According to space lawyer Michael J Listner, no one has yet completely resolved sovereignty laws for outer space and its exploration by private corporations. He writes in Space Safety Magazine that part of Planetary Resources’ plan “leads into uncharted waters and potentially falls outside the current body of space law”.

“The crux of the debate is whether an exception that allows private ownership exists.”

These plans bring up questions about whether a private corporation would be able to claim ownership of an asteroid or of any materials extracted from it. Although the 1967 Outer Space Treaty explicitly states that countries can’t claim sovereignty over an asteroid, lawyers are now asking whether private corporations might be able to.

“The crux of the debate is whether an exception that allows private ownership exists within the Outer Space Treaty,” writes Listner.

But Newman says the ownership issue is “fairly well established in international law”.

“The Outer Space Treaty is quite clear that no state can make a claim of ownership. And private ownership – well, how would you enforce private ownership? You’d enforce it by going into a national court. So by prohibiting national appropriation, you’re prohibiting private appropriation as well.”

Planetary Resources claims that asteroids aren’t covered by the 1967 treaty. But whether or not they would be able to claim ownership, Newman says Planetary Resources’ plans “sound grandiose but actually the technical and financial reality is quite a long way away”.

Right now, he says one of the main issues preoccupying space lawyers is that of deciding who’s responsible for clearing up the large amount of space junk floating around in orbit.

“This is already a problem now, and a danger now,” he says. “Given the amount of debris there is, there is an almost an inevitability that some of it’s going to crash into working satellites.”

He says that after 50-60 years of space activity, earth’s lower orbit is getting very congested with space debris, like old satellites that no longer work or that broke in the launch stages.

“The temptation, because space is so colossally big, is that we can do what we like in it,” he says. “Well actually, the bits of space we can reach aren’t that far away, and we’ve been busy polluting them.”

Newman explains that there is legislation that assigns liability for the objects, but then there’s no requirement to remove the objects from outer space.

“So they’re up there floating around, but there’s no requirement to get rid of them,” he explains. “There are also guidelines designed for future launches to limit space debris, but one of the big problems is the stuff that’s already up there. How do we get it down?”

Newman says that getting rid of space debris is a risky business that throws up all kinds of questions for lawyers, as it could potentially cause an international dispute.

“There might be a danger that when you try to remove one piece of debris, you damage another satellite,” he says. “There are technological issues with taking them down, but also legal and political issues because that debris belongs to someone. And there’s a whole range of political sensitivities behind that.”

 In 2009 a defunct Russian satellite collided with an American weather satellite

Although there have been no actual legal disputes based on human activity in space yet, Newman says there have been a couple of “international incidents”. In 2009 a defunct Russian satellite collided with an American weather satellite, causing damage. And in 2007 the Chinese actually used one of their satellites to intentionally hit another satellite to demonstrate that it could be done.

“China were heavily criticised for creating more debris and for not behaving responsibly, but nothing happened, because there’s no mechanism in place for dealing with it,” says Newman.

He says that in future there are going to be a lot of challenges for space lawyers when creating new legislation, and the biggest will be getting international consensus now that more countries are becoming interested in space exploration. Just getting off the starting blocks, he says, is a real challenge when it comes to creating space legislation.