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Space law

Space may become the new Wild West

No state can lay claim to space. But adventurous billionaires and other private parties dreaming of space are currently challenging the treaties which have, until now, regulated obligations and rights in space. Researcher at SDU is helping to sort out the legal mess in space.

By Susan Grønbech Kongpetsak, , 4/26/2021

In April 60 years ago, the world was euphoric. The first human had been in outer space, and with Yuri Gagarin’s 108-minute orbit around the Earth, it was as if the future had landed on our planet. And the space race went into full throttle.

Since then, humanity’s fascination with space and the development of technologies that can take us out there have progressed with giant strides.

Today we are on the threshold of a whole new chapter in the Space Age. Private companies such as Elon Musk’s SpaceX, Jeff Bezos’s Blue Origin and Sir Richard Branson’s Virgin Galactic are well under way in the development of private spacecraft for both tourism and space mining.

Space is full of grey zones

However, development has stalled in one respect. The treaties that regulate the rights and obligations of nations and individuals in space have been around for decades. Still, the world community doesn’t have that much urge to update them.

So says Danny Johansen, who researches the legal framework for the presence of individuals in outer space.

– The fact that space law is full of grey zones and leaves room for interpretation is becoming an increasingly bigger challenge. The basic treaties for space travel date from the beginning of the Space Age, when only a few nations were capable of entering space and the Cold War permeated all negotiations, he says and states:

– Today, many private parties and nations have space plans, but the regulations aren’t being updated accordingly.

Risk of conflict

Danny Johansen from the Department of Law at University of Southern Denmark is one of the very few jurists in Denmark who is trying to sort out the legal mess in space. A PhD fellow, he is committed to finding solutions to:

1. How the world community should relate to space mining.

2. Compensation and insurance when private parties start travelling into space.

3. The hurdles and inconsistencies that exist between EU legislation on free movement and international law in space.

Danny Johansen and his space law peers are concerned that space may become the new Wild West with a first-come-grab-all situation.

And that development comes with an inherent risk of a high level of conflict between nations, private companies and others who want to become part of today’s space race.

While we space jurists insist that the legal mess in space must be dealt with, the states prefer vague treaties that allow them to decide as much as possible themselves.

Danny Johansen, PhD fellow

– The existing treaties are vague and very open to interpretation. And while we space jurists insist that the legal mess in space must be dealt with, the states prefer vague treaties that allow them to decide as much as possible themselves, Danny Johansen explains and elaborates:

– The most clear-cut example is that the world community has not even agreed on where outer space begins and airspace ends.

–The states are reluctant to relinquish some of their sovereignty in that area because it means they will lose control of some of their airspace, and of course they want to keep the delimitation as high up as possible.

Space is extremely lucrative

The most urgent matter, however, is to find solutions on how to legally deal with mining in space. Otherwise, we will be seeing a lot of hassle in the next few years, as Danny Johansen puts it.

– Space is already being privatised. For example, Elon Musk is well underway with his plans for a colony on Mars in 2050, and both the USA and Luxembourg have introduced legislation that allows them to extract and sell celestial natural resources.

– Space is extremely lucrative because there is an abundance of resources available. Outer space can cover years of consumption of, for instance, cobalt, which is used in mobile phones, and helium, which is used in medicine, he explains.

We quite simply need to examine the long-term – and possibly negative – ramifications of the development that is underway, because these areas can quickly turn political or into conflicts.

Danny Johansen, PhD fellow

But the advanced plans for space mining challenge the first outer space treaty from 1967, which defines a set of common principles for the utilisation of space resources by the nations of the Earth.

At the end of the day, will all mankind and all nations benefit from having private individuals mining minerals on Mars, for example?

How will this impact the economies of the countries that mine and sell similar minerals today? And how will research conducted in space be affected if we start mining the resources out there?

Learning from other treaties

– We quite simply need to examine the long-term – and possibly negative – ramifications of the development that is underway, because these areas can quickly turn political or into conflicts.

– At the same time, private parties find the nebulous treaties for outer space difficult to juggle, Danny Johansen states and emphasises:

– In my PhD I am trying – among other things, by learning from other international treaties and how Western countries and corporations cooperated in their then colonies – to find a number of means that allow the world community to better deal with the fact that private parties on a large scale are heading into space.

Space tourists are tricky business

Mining in space isn’t the only issue causing headaches among space jurists. The plans of private billionaires to launch the first tourists into space will soon challenge the current treaties on space travel.

– Tourists in space are – from a purely legal point of view – tricky business. They do not exist in the current outer space treaties, so they present a challenge to the principles of the treaties in many different ways.

– The US has introduced some legislation, which is primarily about disclaiming any legal responsibility, as participants in spaceflights are informed about all of the risks involved in venturing into space, explains Danny Johansen from the Department of Law at SDU and asks:

– But are we really going to start launching tourists into space without having sorted out the duties in terms of liability and damages?

Space travel

The basic principles of space travel are based on five treaties. The key principles are:

· Outer space shall be free for exploration by all states and not subject to national appropriation by claim of sovereignty.

· Private individuals may only travel in space with the permission of a state.

· States that launch objects into space are liable for damages that their objects inflict on other states or persons.

· International law also applies in space.

· There is a duty to help astronauts in distress.

· States must notify the UN when launching objects into space.

Source: Danny Johansen’s Master’s thesis: ‘Law, Universe and Everything’

In other words, there are plenty of legal challenges to address for Danny Johansen and his space law peers. But perhaps the growing problems with space debris will solve some of the challenges of private parties entering space?

– The outer space around the Earth is gradually so full of debris from space hardware and satellites that within a few decades we will have drowned ourselves in so much space debris that it will be nearly impossible for more rockets and satellites to pass through it, says Danny Johansen and elaborates:

– There is a dire need for a number of measures to clean up the space debris and introduce requirements that waste in space be reduced if the many private companies’ and nations’ plans in space are to be realised.

Meet the researcher

As PhD fellow at the Department of Law at SDU, Danny Johansen is part of the research group for international law and examines the issues of international law in the increasing privatisation of outer space.

Contact

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Editing was completed: 26.04.2021