On the 24th of September, the Japanese Hayabisa2 space mission became the first to land Rovers on the surface of an asteroid. The two successful probes, MINERVA-II 1A and 1B, have safely executed their first movements and captured surface level photographs of the asteroid. Soon after, the now dead German asteroid rover MASCOT touched down with a series of monitoring equipment for a brief exploration. While certainly an incredible step forward in the human exploration of space, the capabilities for this technology begin to reignite the lingering legal questions concerning space resources and their future use.

These lingering legal implications were summarized nearly a year ago in a blog post by Barrett Lingle, JETLaw’s Senior Development Editor. In her work to mark the fiftieth anniversary of the Outer Space Treaty, Lingle questioned the current legality of human settlement on mars and the exploitation of asteroid based resources in the facilitation of such settlement. The current regime, steeped in Cold War and Anti-Colonialist politics, places a premium on the independence of space by preventing the national appropriation of celestial bodies, and going so far as to declare space “the province of all mankind.”  While an admirable goal and certainly one that may encourage collaborative exploration of space, the question remains as to how countries plan to tackle the inevitable issues of stellar disputes. Though focusing on issues of resource regulation in space, Lingle concluded with the assertion that though no international framework of rulemaking existed, it was clearly the time to begin forming a solution. Nearly a year later, how far has the development in international space law come and where are we headed?

As of 2018, a comprehensive international framework for outer space regulation and dispute settlement is still non-existent. The broad strokes of the Outer Space Treaty are still the governing principles of space and the refinement and interpretation of said principles has been largely left to individual Nation States. Following in the footsteps of the U.S. Commercial Space Launch Competitiveness Act, Luxembourg became the second country to push at the seams of the Outer Space Treaty by passing a space resource appropriation law. Similarly, the announcement on the development of a U.S. Space Force, though not an explicit violation of the treaty, does appear to be in opposition to a peacefully shared Outer Space. A recent hole discovered in the International Space Station have led to theories ranging from dangerous space debris to sabotage. Without a means of resolution, similar issues will likely grow exponentially with the continued emergence of human space capabilities.

Multiple solutions have been put forth to ease the stress development is putting on the Outer Space Treaty. In 2008 Russia and China jointly submitted a proposal for an international treaty banning the deployment of weapons in outer space; the U.S. opposed the multilateral proposal, arguing the treaty was fundamentally flawed. In 2011, the Permanent Court of Arbitration created the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities as a means of applying Space specific knowledge and expertise to Space centered dispute resolution. In 2014 The Hague International Space Resources Governance Working Group, was established with the purpose of recommending a comprehensive space policy to the United Nations. In 2017 the Working Group released a draft of their Building Blocks for the Development of an International Framework on Space Resource Activities that is open for public comment until October 15th. Within the draft proposal itself one can clearly see the impact of the Outer Space Treaty and its desire for a free Outer Space and the utilization of space resources for the good of all mankind. Of note are Section 12 calling for a voluntary sharing of benefits arising from space resources, Section 13 calling for a system of space registration and information sharing, and section 18 calling for a dispute settlement system similar to the Permanent Court of Arbitration’s Optional Rules. It is the hope that this publicly and internationally created proposal will succeed where other measures have so far failed.

It is inevitable that the progression of space regulation and law will be measured against the speed of mankind’s outer space accomplishments. Despite the success and development of international space programs, the future of space jurisprudence remains as unfulfilled as the plans to become an interplanetary species. Perhaps Lingle was correct and an international framework will be left unfinished until an asteroid is mined, but the use of space would be better facilitated with a system in which explorers can go forth with confidence.

Matthew JP Horton


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