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Watch this space

Watch this space

By Benjamin Hofmann


As new parties look to the final frontier, there is a need for experts in this special area of international law. Space law is not a new concept, however, the need for experts in space law continues to grow as new parties rapidly enter the industry of the final frontier. Space and its related activities are regulated by international law and in some countries, legislation. With the increase of commercial entrants to the industry, the legal issues and need for expert advice extend beyond the traditional domain of government. Universities have realised this need, with many now offering study areas in space law. Space industry While humans have been sending objects to space since the 1950s, it is only recently that those involved are likely to be something other than government representatives. Commercial spaceflight refers to all types of space operations undertaken by non-government participants, many of which are driven by the involvement of prominent entrepreneurs. The financial backing they provide has allowed commercial space operators to realise certain activities that governments may not budget for, or that were once thought to be simply unachievable. Richard Branson’s Virgin Galactic is perhaps the best known operator in the space tourism industry, with Blue Origin and its founder Jeff Bezos (creator of Amazon.com) focused on the same outcome. Space X, founded by Elon Musk, known for Tesla and PayPal, has taken a different path; while developing a tourism product, it currently has the tender to provide the United States with resupply craft for the International Space Station (ISS), along with an agreement to carry US astronauts to the ISS in the future. The Mars One program differs substantially; not only is it financed by private investors who buy shares, but its focus is to establish a permanent human settlement on Mars. These examples illustrate what is likely the biggest shift in the space industry in recent times, highlighting the need to consider the current space law. Space law International law exists for the overarching regulation of space, provided by way of the United Nations Office for Outer Space Affairs Legal Subcommittee and five treaties. While these treaties cover issues including the rescue of astronauts and the freedom of exploration, they all came into existence between 1967-79. Significant development of space-related technology since that time has resulted in activities and capabilities receiving little to no regulation. International law has simply not kept up with the rapid evolution of the uses of space. Some countries have also introduced legislation to govern national space activities to ensure the country’s adherence to both international space law and customary international law. The US, for example, introduced legislation to govern the operation of commercial spaceports and the spacecraft operating from them. As a result of the inadequate international law, there are a number of frequently debated legal issues for space lawyers and scholars. Like a great deal of international law, space law is vague in many areas, perhaps in an attempt to ensure its relevance for many years and in many different situations. This, however, comes with its own issues. Not only are lawyers required to interpret the law in light of today’s space environment, but they must also advise parties on the application of the current law as it relates to future space activities – activities that require planning and budgeting today, but will not eventuate for many years. Such a vagueness becomes more of a concern when the law is relatively old, as is the case with international space law. That is, it does not touch on some uses of space and capabilities that currently exist for the simple reason that they were not considered possible when the law was created. Perhaps one of the longest debated topics is that of the altitude at which the space boundary begins. While some general consensus exists among countries, it is by no means written into the law. This means that at international law, countries may not know, or may dispute the legal upper-limit of their nationally controlled airspace. Other issues of particular importance today and into the near future include: colonisation of celestial bodies mining of space-based resources militarisation of space intelligence gathering from space space debris with its potential liability concerns. In light of the advancement of the use of space since the creation of the UN treaties, there is clearly a need to review the current, inadequate, international law. Education has not only increased awareness of this hotly debated area of law, but it has also allowed for more informed and innovative discussion about its reform. With the growing presence of commercial parties in the space environment, along with the ever-present desire of humankind to explore new horizons, the need for space lawyers is only going to become more commonplace. Be sure to watch this space . . . Benjamin Hofmann is an external law student at the University of New England and a member of the YL Editorial Committee.

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