Legal regime sustainability in outer space: theory and practice

Larry F Martinez

doi:10.1017/sus.2019.21

Abstract

Non-technical abstract Sustainable access to outer space is increasingly threatened by growing orbital clouds of satellites and debris. A boom in competitively priced commercial rocket launches has lowered prices, prompting satellite operators to begin deploying thousands of satellites. Six decades ago, ‘hard law’ international treaties established governance for outer space designed for the few governmental space programmes. Today, non-governmental commercial entities are operating under voluntary ‘soft law’ rules of the road that expose the deficiencies of the original treaties to empower regulatory supervision of the expanding commercial orbital presence. This paper suggests how a ‘sustainable’ system of governance, required for sustainable space access and exploration, may be promoted by increasing the costs of non-compliance.

Highlights

By the second decade of the 21st century, access to outer space had become, in the oft-quoted words of Ambassador Gregory L
As the Shakti debris cloud demonstrates, an increasingly intensive use of outer space by a growing diversity of governmental and commercial entities has raised global concern for the challenges posed by space debris, and spectrum interference (i.e. ‘jamming’), and space traffic management for the long-term sustainability of the open access regime stipulated by the 1967 Outer Space Treaty (OST) and later agreements (UNOOSA, 1967, 2019)
This growing concern resulted in the 2010 decision by the United Nations Committee for the Peaceful Uses of Outer Space (UNCOPUOS) to form a Working Group on Long Term Sustainability (LTS) of Outer Space Activities, assigning it the task of formulating voluntary non-binding guidelines focusing on sustainable space utilization, space debris and space operations, space weather, and regulatory regimes (Martinez, 2018)

Summary

Introduction

By the second decade of the 21st century, access to outer space had become, in the oft-quoted words of Ambassador Gregory L. ‘jamming’), and space traffic management for the long-term sustainability of the open access regime stipulated by the 1967 Outer Space Treaty (OST) and later agreements (UNOOSA, 1967, 2019). This growing concern resulted in the 2010 decision by the United Nations Committee for the Peaceful Uses of Outer Space (UNCOPUOS) to form a Working Group on Long Term Sustainability (LTS) of Outer Space Activities, assigning it the task of formulating voluntary non-binding guidelines focusing on sustainable space utilization, space debris and space operations, space weather, and regulatory regimes (Martinez, 2018). The LTS Guidelines are non-binding, their adoption by the UNCOPUOS and consideration by the UN General Assembly’s 4th Committee, are evidence of a growing expectation at the highest levels of international policymaking that the LTS Guidelines could ensure that the evolving international legal regime for outer space includes enforceable ‘rules of the road’ to promote long-term sustainable access and use (Martinez, 2018)

Legal regime ‘sustainability’: higher transaction costs for non-compliance

National legislation as a source of international law

Common elements of national legislation

Findings

Closing observations