Outer Space Treaty: Trump's next dump

DW: We're at the UK Space Conference in Manchester, so let's start here. What's the situation for the UK in terms of its space activities and space law?

Christopher Newman: I think we're going through a period of accelerated growth. Up until a few years ago the UK space involvement was substantially less than it is now. Then we realized space was an area where we could really grow. And part of that is having a healthy regulatory framework.

With the [UK's] Outer Space Act 1986, we have quite an old and venerable piece of legislation that was brought in at a time when we were right at the start of direct satellite broadcasting, and that was the contemplation of the legislation there. So we had a piece of legislation that was designed to do a very specific job. It was designed to relieve the UK taxpayer of liability for UK space activity.

That's because the [international] Outer Space Treaty imposes liability on the state - ultimately the UK government is responsible for UK space activities, whether they're licensed or not. So the reason they introduced the 1986 Outer Space Act was to relieve themselves of that liability and require third-party liability insurance for all sorts of space activity. 

The Outer Space Treaty turns 50 in October. It was very much shaped by the political landscape of the time. Perhaps you could describe that for us?

First and foremost, it's a security treaty. It's designed to make sure two superpowers [namely, the USA and Soviet Russia] don't move out into space and take with them conflicts that were here on Earth. So it was designed very much as a treaty to limit imperialist expansion in outer space. So we have the creation of what we call "res communis land," making outer space the property of no one. So you couldn't have the superpowers landing on the moon and carving up bits of territory on the moon. It's not possible to own it, it's not possible to appropriate it by means of sovereignty or any other such device. So it was designed to deal with a binary power bloc, and a superpower budget. The people who drafted the treaty didn't have commercial space activity on their minds.

But some people say that doesn't matter, that even if you're a commercial space operator, if you launch from country X, country X is still ultimately responsible. Is that good enough, or do we now need a more commercial framework?

I think we're at a point now where we need to look at the entire governance network of space. One of the things the Outer Space Treaty definitely doesn't do is environmentalism. We have a huge problem of space debris and the sustainability of space activities. Yet there's very little mentioned in there on this. Article 9 of the treaty talks a little bit about it, but when it talks about environmental issues, it's really thinking about the Earth's environment and the protection of Earth from superbugs from space. It doesn't think about the space environment at all. There's a whole range of areas where the Outer Space Treaty is looking it's age. Whether it's revivified and renegotiated, or whether it's changed and the framework is replaced by something bespoke to the 21st Century, there is a genuine feeling that the Outer Space Treaty has shaped normative behavior, it has shaped space activity, but that it's time now, on an international level, to look at it.

Aside from the environmental aspects, the treaty also disallows military uses of space. And yet if we look at the US's GPS satellites, and even Europe's Sentinel satellites, they all do a bit of surveillance, there is a military element. That doesn't figure does it?     

Absolutely. It's almost the unspoken truth of space activity that there is a large swathe of it that is military and therefore almost beyond the reach of the Outer Space Treaty. So maybe it's time to try to pull a lot of that back into a legislative framework, rather than it happening unseen, as it were, beneath the shadows of the Outer Space Treaty.

So there's talk in the US about leaving the Outer Space Treaty. What's the situation there?

I think at the minute - and you only have to look at the political backdrop in the UK - big, overarching, international treaties are falling out of fashion. And so we have a situation where states, like the United States, are asking, "What's in it for us? Why are we staying in this treaty when it could be argued that it's inhibiting our space ambitions. We want to space mine."

The Outer Space Treaty is certainly open to broad interpretations as to whether mining is permitted or not. I think it probably is.

When you say space mining, you mean like a company like Planetary Resources mining an asteroid?

Yes. Landing on an asteroid and mining it - is that an act of appropriation? There's a real grey area there. And there are a number of space actors in America who are asking, "Is this something we want to be a part of, or do we want to strike out on our own and create a next generation normative behavior?"

I think the Outer Space Treaty is still a useful rallying point. It has shaped activity for 50 years, and the ground rules it's laid down have led to peace in space and space security, as it were. We would be very fooling to get rid of it altogether. I would be looking to re-examine certain parts of it, and especially beefing up the environmental provisions. If we're looking to shape normative behavior in decades, and we're going to be exploring planets and putting infrastructure in lunar or martian orbit, are we going to be replicating the bad behavior in those delicate environments as we've done on Earth?   

Dr. Christopher J. Newman is a reader in space law at the University of Sunderland. He was a speaker at the 2017 UK Space Conference in Manchester.