16 February 2023

A Dormant Struggle Reaches Critical Mass

Why Europe Can And Must Lead The Way In Preserving The Constitution Of International Space Law

A single market moment for space” proclaimed EU Commissioner Thierry Breton in the European Space conference last month. He warned against regulatory fragmentation in this sector, professing that unified ‘EU space law’ with common rules on ‘safety, security and sustainability’ is needed. These comments followed the creation of the EU’s new EUSPA (EU Agency for the Space Programme), and partnerships with the European Space Agency (ESA) to strengthen European space capabilities and regulations. While the ‘single market for space’ in Europe certainty will go some way, as the original single market did, to establishing the groundwork for a vibrant legal regime, harmonisation for space law is not a new idea. In fact, even more fundamental provisions of a world ‘Space Constitution’ have long existed, but remain unutilised.

Developments in Europe and beyond mark a changing landscape of (constitutional) space law – an unsustainable upsurge in the numbers of satellites and resulting light and debris pollution, the entry into the market of new actors with conflicting interests, and the fragmentation of domestic systems’ approach to space law mean that the current quasi-constitutional system is under the immense risk of being entirely disregarded. Without any party building upon the foundations laid out by the Outer Space Treaty, its principles, though noble in their spirit, will remain too broad and undefined to lead to any meaningful utilisation – illustrated clearly by the predictable issue of space debris. Therefore, the dramatic expansion of the legal scope of European space law could not have come at a more critical time.

For the sake of the future, there are good reasons to keep a constitutional basis to space endeavours. We have to discuss ways of doing so now. Europe appears willing, and I would argue should, lead the way.

The Space Constitution

The 1967 Outer Space Treaty, along with several other treaties, together established a quasi-constitutional treaty system that laid down the unique and founding principles, further augmented by subsequent explanatory General Assembly resolutions, that were meant to govern future space exploration and exploitation. They include the declaration of space as province of all mankind, that outer-space and celestial bodies are not subject to national appropriation, and designation of astronauts as envoys for humanity. Though controversial in their exact interpretation, they fundamentally espouse space as being an area for all mankind to benefit from, and attributes responsibility to state actors to preserve this. They form an obvious basis from which future and more specific regulatory measures can be derived – and indeed, all even medium-capacity space-faring nations have ratified at least the Outer Space Treaty. But due to lack of space activities for which regulation was needed, development of space constitutionalism has never really occurred beyond the provisions of the Outer Space Treaty – leaving the system wholly under-developed.

Until recently, then, there was admittedly little reason to care about space constitutionalism; there was no real need for it. But given the enormous expansion of actors and activities (especially satellites), space is no longer the concern of only the most powerful states. Due to their design around only few states and few activities, these treaties and their principles are unquestionably outdated – and as a result, their influence upon developing norms has waned substantially. It is now that norms are developing, and two sides have emerged in this active struggle: between many varied proponents of the (deepening of) constitutionalisation of space law and regulation, on the one side, and those arguing for fragmentation on the other; where no cohesive international system applies and domestic rules are entirely unharmonized. Private undertakings, and some up-and-coming states, particularly resist this constitutionalism, as it imposes heavy restrictions on their (economically driven) activities, and the theoretical economic benefits their absence brings.

The Turning Point – Why Care Now?

Unlike when the Space Constitution was formed, private companies, and not states, will be the primary force of industry expansion in the coming decades. Private enterprise is increasingly prominent, and now accounts for around 76% of investment in what is now an approximately 469  billion USD per annum industry in 2022, with projected growth into the trillions of dollars by 2040. Notable part of this is driven through the interests of high net-worth individuals.

Private undertakings are squarely on the ‘anti-constitutional’ side for the obvious reason that greater regulation restricts their activities. To take the biggest individual space-faring player, the terms of use of Elon Musk’s Starlink services, for example, essentially reject the Outer Space Treaty and thus the principles of space constitutionalism entirely, by refusing to recognise any kind of earth-based regulatory authority (point 12) – suggesting a system not for mankind, but for feudal-style private ownership of the entire extra-terrestrial realm. Certainly, there are some strong economic arguments against the imposition of fundamental principles that are too strict or burdensome. Indeed, the lack of certainty regarding what is and is not permitted to be appropriated in space (and thus, the potential profitability of such endeavours) arguably stifled private investment into space for many years.

Though no longer space-hegemons, nation-states are far from irrelevant. The (partially) unified African Space Agency was crystallised only in the past few days, and many other countries have either very recently created their own national space laws, or now have these on their legislative agenda. At least 90 countries now operate in space in some capacity. While some of them indicate at least some acceptance of an internationally governed space sector, not all of them do, or have indicated they will. China’s space policy is notable both in its ambition and ambiguousness: sometimes seemingly advocating space principles, but often not. Russia’s policy appears even more obstructive. The US implemented a law that is explicitly designed to ensure all US-based actors comply with the letter of the Outer Space Treaty – a good first step, though its quasi-militarisation could certainly be considered awkward. Greater participation of all types of actors is certain, given the continuously lowering economic barriers of entry into the industry, and its increased importance for the modern world. Costs of launching one kilogram to space is now a fraction of what it was, and this will continue to fall.

Thus, while the industry is still in its infancy, the legal architecture of space governance – whether bound by the aforementioned fundamental principles, or entirely fragmented – will be decided not in the far future, but in the coming few years. The stage is thus now being set for a showdown on whether the quasi-constitutional system of space law survives and expands to preserve the long term, or is side-lined in favour of the short-term interests of individual actors. Whichever system is established may see us far into the future. It is therefore now that the necessary international regulation, norms and customs can (start to) be assembled.

Europe: A Potential Champion of Space Constitutionalism?

Only last year, the EU created EUSPA (EU Agency for the Space Programme) with Regulation 2021/696, along with a Financial Framework Partnership Agreement between the ESA, EUSPA and the European Commission. The strengthening of the EU-ESA cooperation into a more homogeneous European space sector is a very high priority for both parties. Further, though emphasis was not entirely unanticipated, the Ukraine war has highlighted the urgent need for regional security and defence enhancement. The Commission, along with EU Common Foreign Security Policy High Commissioner Josep Borrel, have identified space-based capabilities, such as satellite surveillance and communications, as integral to this. Accordingly, a consolidated EU space strategy for security and defence will follow later in 2023. This is likely to dramatically expand the scope of the EU’s space strategy as a cornerstone of its own regional autonomy by facilitating critical digital and military capabilities. Dramatic developments in the reach and involvement of the Union in this area may therefore be imminent. Indeed, almost all EU member states are already party to the Outer Space Treaty; meaning there is great potential for broader, harmonised constitutional development within both the international and EU legal frameworks.

The stance of the Union regarding the constitution of space law is promising, but currently ambiguous. Article 4(1) of Regulation 2021/696, which lays out general principles, states that the Union should “[support] global initiatives including with regard to sustainable development and raising awareness of space as a common heritage of humankind.” There is not, currently at least, any specific initiative to put this into practice – but it is clear that this is an option. Paragraph 14 of the regulation preamble states “[the Commission should promote] responsible behaviour […] including reducing space debris proliferation [and] explore the possibility of the Union’s acceptance of the rights and obligations provided for in the relevant UN Treaties and Conventions and make, if necessary, appropriate proposals.” The option of adhering to the constitutional principles of space law thus remains unimplemented, but possible. Indeed, unlike some of the actors mentioned in the previous section, Europe has not undertaken any activities which flagrantly contravene the spirit of the space constitution.

The EU, under the provisions of Regulation 2021/696, has the opportunity to make a bold first step in adding substance upon the bony constitutional frame of space law. The form does not necessarily matter; whether it be through bilateral standards agreement, explicit interpretation of the Outer Space Treaty, expression of international custom, or the setting of norms of responsibility via the EU’s considerable regulatory reach and partnership with emerging space actors, it is clear that some form of international regulation is needed. This is not to say that Europe should in any way suffocate its own space industry with regulation, but rather actively foster international consensus to meaningfully implement the fundamental space constitutional principles.

Another tragedy of the commons? Space debris

We do not have to ponder hard to think of examples where greater adherence to such constitutional principles would aid Europe and humanity. Removal of space debris is something that only seems feasible with a system at least partially centralised for the purpose of attributing responsibility.

Elon Musk’s Starlink system alone plans to have over 40,000 satellites within its constellation once completed. In the next ten years, it is projected almost 200,000 additional satellites will be launched. It seems overwhelmingly unlikely that a fragmented space law without guiding fundamental principles will not simply replicate a tragedy of the commons as so many instances on Earth as regards the environment have. Though, as mentioned, unnecessary regulation of space may lead to stifling of progress, including in Europe, far more stifling would be rendering parts of earth’s orbit inhospitable to satellites, and any other vehicle – whether European or otherwise.

While there is no explicit requirement for any launching state (and via strict liability, undertakings that launch from its territory) to ‘clean up’ their own orbital debris, such a notion can (and should) be read into Article IX Outer Space Treaty which states that actors must ‘avoid contamination’ and ‘harmful activities’. Without more useful interpretation of (and adherence to) space constitutionalism and the Outer Space Treaty, there is essentially zero existing incentive for any individual actor to mitigate this damage without further regulation. It is far from self-evident that a fragmented and entirely uncentralised system will preserve any of these principles, and yield the results required; especially if humanity’s record of action on the environment is anything to go by.

Concluding remarks

As the first chapter of ESA Director General Josef Aschbacher’s agenda 2025 makes absolutely clear, “the time for Europe to act is now”. But this goes beyond relevance merely for Europe. Strengthening of the EU-ESA partnership should be unreservedly embraced; but it should not stop there – the issues of space relevant to the whole world are something Europe can significantly influence for the better. With its emerging abilities in production, its regulatory reach, and with a rule of law record better than anywhere else, Europe is in a unique position to make a stand in retaining the fundamental principles laid down in the Space Constitution. Unlike other actors mentioned, Europe has (so far) not acted with the same ambivalence as regards space constitutionalism – but it does appear hesitant. If there is to be a champion of space constitutionalism, there is simply no other actor the world can turn to with any confidence. Far from acting in exclusively its own interest, utilising its competences to their fullest extent would help ensure that the benefits of space are not inclusively for industrialised, rich nations – but for all; as the Outer Space Treaty originally intended.

In any case, the conclusion for keeping some notion of space constitutionalism is obvious even from only an orbital-environmental standpoint. No doubt, similar instances shall certainly arise in future, and to counter this, Europe can take several steps;

  1. The EU-ESA partnership strengthening should be welcomed, but not stop there – agreements on fundamental principles with emerging space-faring nations must also be made. 
  2. The Commission must utilise the provisions of the treaties and Regulation 2021/696 to build adherence to the constitution and general principles enshrined in the Outer Space Treaty. 
  3. The European space institutions should consolidate all their connections to establish a more cohesive regime for international space law’s fundamental principles. 

Space endeavours have an unparalleled ability to capture the best of the spirit of humanity, and preserve cooperation even