The Final Frontier: How Should We Govern Space Exploration?
By Camila P. Eljuri, Global High School Fellow (Unidad Educativa Particular Rosa de Jesús Cordero ‘23)
The non-appropriation principle substantiates the legal framework that surrounds space exploration. After all, space is a res communis omnium (heritage belonging to all humankind). The Outer Space Treaty, in Article II, establishes that outer space is not subject to national appropriation by any means. While all the international subjects that constitute the Corpus Juris Spatialis (Body of Space Law) seem to agree on an ethical framework surrounding space activities for commercial purposes which, as long as it complies with the peaceful intent of international law and the legislation of the country that authorized such space activities (whether from public or private actors), legality and legitimacy remain fulfilled.
Beyond the medical space tourism promoted by companies like SpaceX, there are several examples of space exploration catalyzing technological and scientific developments. Galileo, Europe’s global navigation satellite, has allowed the agriculture sector to monitor and map the soil moisture level in specific areas, helping farmers make better decisions. Likewise, the Copernicus ultra terrestrial observing system has achieved pre-flood and wildfire warnings and risk assessments, providing information capable of saving lives. However, the ethical framework of space exploration weakens as we deal with instances where the end goal is solely commercial. For example, mining just the top 10 most cost-effective asteroids would yield a profit of about US $1.5 trillion. Since private corporations would heavily drive such operations, developing countries would be relegated from potential economic, scientific, and technological development as space innovation has evolved to a first come, first serve basis. Likewise, while ecosystems in space are not harmed by the greenhouse gas emissions associated with mining, space mining still destroys "pristine" settings that, at least in the case of asteroids, may have existed since the formation of the solar system. There will always be a portion of humanity that wants to leave space as it is, as shown in Kim Stanley Robinson’s Mars Trilogy. Policy exists to alleviate such concerns.
National policy governs space exploration. As established by the Outer Space Treaty in Article VII, regardless of whether a private or public actor conducts the quest, national legislation is liable for passing the appropriate regulations and assuming any potential damage. Nevertheless, the limitations for federal legislation arise within the unclear delimitation regarding what is legally considered the frontier between aerospace and outer space.
The interpretations based on scientific criteria place the limit of space air at the place where the atmosphere ends or at the boundary of the Earth’s gravitational field. Those based on functional criteria attend to the height at which the flight of an aircraft is possible or the lowest point at which it has been placed in orbit around the Earth. Those that meet zonal criteria consider that the airspace has a maximum limit of 90, 100, or 110 kilometers tall. A clear definition of what constitutes outer space is necessary for adequate jurisdiction, as the principle of consistency in international law makes it difficult for states to establish relevant policies for space regulation.
When I discussed this topic at a local Model of United Nations conference, my block suggested creating a new organ concerning international space law conflict resolution as the jurisdiction of the International Court of Justice (ICJ) under such matters remains limited. Our first aim with the statute of the new organ — which we baptized as the International Space Court of Justice — was to establish a clearly defined limitation for where aerospace ends and outer space begins so that international consensus no longer limits the jurisdiction of space law.
However, scholars such as Andrés Aucay from Universidad del Azuay have voiced their opinions regarding the limited necessity for new legislation. Space law enforcement conflicts between states will not be judged by the place where they occur but by the acts themselves. Hence, states will not be responsible for perpetuating acts in outer space but for the activities in which the right is violated, which the existing principles of public international law would regulate. However, the problem arises when private companies are the ones that handle space exploration tasks almost exclusively. Therefore, public international law may be insufficient, provided that the provisions of domestic law do not always imply regulations that limit the issuance of permits and facilitate inspection per international treaties.
A clear emphasis should be placed on the national policy under the state’s obligations with the Corpus Juris Spatialis (Body of Space Law) so states can be effectively liable for damage under the ICJ’s competence. Still, the priority remains to define outer space in the legal framework, given that the ethical considerations of science and technology development in space, such as the segregation of low-income states and the integrity of space as a non-renewable source, can not be legally enforced without a clear framework.
Special thanks to Carlos Sjostrand and Juan Pablo Moscoso for sharing their perspectives on the topic.
