Regulating the final frontier

25 June 2020
The era of the space economy and space law has dawned

The space market is worth approximately $400bn. Fifty years ago, outer space was reserved for the most powerful of nations and the most dominant governments, but today there is a democratisation of space.

The commercial industry is closer to the cosmos and there is a growing interdependence between what is happening in space and on Earth.

There are five space treaties that have been negotiated since the 1960s, four of which have been widely ratified. However, the Outer Space Treaty is the Magna Carta of space law and the document that all lawyers turn to when considering anything in space. 

When Nasa astronaut Anne McClain was recently accused of illegally accessing her spouse’s bank account while aboard the International Space Station, this nevertheless brought up a variety of legal issues and questions about how to litigate a crime committed in space. Is outer space devoid of law? Is it a vast lawless domain?

Of course not. The treaties govern countries and the activities of countries, and it makes states responsible for the activities of their nationals, while creating domestic regulations so that nations carefully watch and regulate the activities of those who venture into space.

Space boundaries

This brings about the question of property rights. Where does space begin and if there is a dispute in space, who decides it.

Australia is the only country in the world that defines where space begins, declaring it as 100 kilometres up. However, where the air and the air law regime – governed by the International Civil Aviation Organisation – end and where space begins is a matter that the international community has not been able to agree on.

Australia is the only country in the world that defines where space begins, declaring it as 100 kilometres up

People either want to set limits, and set a height based on kilometres like Australia has done, or take the US' approach of considering use: What did you use? Are you launching a rocket intended to go into orbit? Or are you just launching a plane that is going to go high into the air. This is important because nations own the air over them.

Right now, space is for everybody. No nation can own property in space and no nation can make any territorial claim in space.

You need consent to fly over another country if you are in the airspace, but on the flip side of that, if you believe that you are in outer space, you can fly over any country without consent and engage in espionage legally.

Espionage is one part of the political military contest, but how else is space dealt with from a military perspective? With the recent establishment of the US' Space Force, we will likely see the same rules of war extended into outer space.

The language in the Outer Space Treaty about the use of outer space for exclusively peaceful purposes is aspirational, but the devil is in the interpretation: what does it mean to use space for peaceful purposes? 

The way that this has been explained is that peaceful purposes only prohibit the aggressive use of military force and as long as you are not engaged in open hostility, then you are peaceful in your use of outer space. Another restriction is the stationing of weapons of mass destruction in orbit, but it would be naive to believe that the military will be devoid of war.

The US founded its Space Force, a branch of the country’s armed forces, in December 2019. This is perfectly legal, depending on the course of action that the Space Force will take. 

At the end of the day, the Space Force is about manufacturing a bureaucratic and political constituency for orbit, while investing in spacecrafts that can defend themselves – and attack, if necessary – as well as in new space sensors to track enemy missiles and military habitants who are trained in the craft of zero gravity.

This means a great deal of money for private companies, with almost half a dozen defence agencies already funnelling millions into space startups that build everything from radar networks to high-tech materials. 

Satellite services

The majority of the money made in space is on the back of satellite-provided services. A significant increase in satellites from the approximately 2,300 operational satellites at present will bring various costs and benefits. 

The spur in investments in new satellite servicing businesses will continue to rise. We have seen a surge in venture capitalists directing millions of dollars towards small satellite companies, such as Spire, Capella Space, Hawkeye360 and Swarm. These are just a few of the firms that have reeled in massive amounts of cash and launched satellites. 

Each of these firms varies in their business models, from communicating with internet devices to tracking radio signals in order to gather radar data. This is all part of the cost of building and operating a spacecraft to enable the work they wish to do.

SpaceX and Boeing are officially in the final phase of their private space transportation service in cooperation with Nasa. Soon enough, both companies will have permission to start flying up wealthy tourists, who want to see the constellations, or corporate researchers who will aim to find clues to fix the Earth they just departed from.

There is uncertainty, but also the promise of new opportunities for the private sector and new influxes in revenue.

Space tourism is nearing existence with Richard Branson from Virgin Galactic stating that the firm has the capital to begin regular tourist trips to the edge of space; and although the seat on this flight costs $250,000, I doubt you will be served peanuts on your way up.

On 27 May 2020, Nasa launched astronauts into space from US soil for the first time since 2011; these astronauts voyaged to the International Space Station via a vehicle purchased from SpaceX.

Lunar ambitions

Nasa’s main focus is returning humans to the moon. Scientists say the fact that ice water has been discovered on the moon is the key to the future of the space economy. 

It is still unclear whether the US government can settle the conflicts between its dreams for space exploration and its willingness to alter the way in which Nasa does business. 

However, Nasa is continuing its efforts to bolster the space economy by hiring private companies to build vehicles that will carry scientific instruments to the moon. From an economic standpoint, this programme is likely to reinforce the knowledge of private companies when it comes to operations on the moon.

UAE space agency

In the Middle East, the UAE has big plans and even bigger aspirations. In 2014, the country established the UAE Space Agency. 

Pursuant to the UAE Space Policy that came into effect in September 2016, the goals of the Space Agency include developing a sustainable, competitive and innovative commercial space industry and establishing and expanding the UAE’s leadership in space, both regionally and internationally. The latter is evidence of the UAE’s understanding that movement into space is a global cooperation. 

The UN Office for Outer Space Affairs and the UAE Space Agency signed an agreement to increase collaboration on the long-term sustainability of space activities and promote the use of space for sustainable development. This highlights the UAE’s calculated thinking in propelling itself among the leading nations in space exploration and cementing its position in the space revolution.

The UAE is reaching for the stars and is unwavering in its pursuit of them

The UAE Space Agency plans to launch the Mars probe Al-Amal, which means ‘hope’ in Arabic, on 14 July 2020, making it the first Arab nation to launch a mission to Mars. 

One can only imagine what an organisation of such indefatigability could potentially accomplish in the coming years. The UAE is reaching for the stars and is unwavering in its pursuit of them.

The trends that pilot the optimism towards the space economy are the same as those in the technology economy: the growing power and miniaturisation of transistors, solar panels and batteries, partly generated by the smartphone revolution of the last century; the rapid evolution of broadcast media, telecommunications, commerce and the internet; and the geopolitical tensions that have governments anxiously spending on space through the hiring of private companies. 

The voyage into space is not far, and the economy that will manifest from it has already proven to be significant. All in all, this is simply one small step for man, one giant leap for the private sector.


About the author

Abdulla Wasel​ is managing associate at Wasel & Wasel

 

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