Filling the Vacuum: Adapting International Space Law to Meet the Pressures Created by Private Space Enterprises.

• Author: Yuan, Alda

1. Introduction II. The Proliferation of Private Actors Strains the Legal Framework and Presents an Existential Threat to Space A. From Public to Private B. The Legal Framework of International Space Law and its Deficiencies i. Venue and Regulation Shopping ii. Coordination Problems iii. Territoriality C. Non-state Actors Introduce Practical Challenges that Endanger the Future of Space Travel III. Space is a Global Commons Under Customary International Law A. Customary International Law Emerges Based on the Settled Practice Of States and Opinio Juris B. Preservation of Space as the Province of All Humankind has Become Customary International Law i. Space is a Global Commons ii. State Practice iii. Opinio Juris IV. Private Actors are Analogous to New States and Subject to Customary International Law V. Customary International Law Should Apply Directly to Private Actors A. Extending Legal Duties to Private, Non-state Actors B. Existing Models of International Regulation and Coordination Don't Address the Unique Problems Presented by Space Law C. Other Proposals Do Not Offer Long Term Solutions VI. Conclusion I. Introduction

   The date is June 4th, 2033. Several hundred kilometers above the surface of earth, a two-ton spacecraft approaches a defunct satellite previously operated by the United Kingdom. The unmanned mission by an Indian company intends to retrieve the satellite more than thirty years after it rocketed into space. The last ten years had been tough on the satellite. In 2025, a bolt smashed into its instruments, cracking off half the solar panels. (1) Three years later, several smaller fragments struck the satellite, tearing holes in the exterior. These impacts left the satellite in tatters and destroyed the debris shields it possessed, leaving it vulnerable to catastrophic damage.

   As the spacecraft approaches the battered satellite, a piece of jagged metal just under 10 centimeters in diameter streaks through lower earth orbit at speeds up to 16 km/s. (2) When the chunk of metal hits the satellite with an impact velocity of 10 km/s, (3) passing through one of the holes in the shield created by a previous impact, the old spacecraft smashes into millions of pieces, creating a destructive cloud of debris. (4) The private company's spacecraft is laced apart, and the resulting debris joins the remains of the satellite in orbiting the earth. The impact and destruction of both of these crafts create so many projectiles; it leads to a rapid escalation of the cascade effect known as the Kessler Syndrome. (5)

   Soon enough, a significant proportion of spacecraft in lower earth orbit are destroyed, rendering a whole layer of space useless due to the presence of a debris belt. (6) Not only does this severely curtail the ability to launch other spacecraft, the collision causes billions of dollars in damage. The majority of artificial satellites are located in lower earth orbit. (7) So, in addition to disrupting communication, bankrupting companies, and curtailing many nations' security capabilities, the destruction of so many satellites and spacecraft might lead to other complications.

   Flights are grounded as air traffic control systems fail. (8) Credit cards can no longer be processed, so most transactions have to take place with cash or check, disrupting economies across the world. Consumer GPS location services are disrupted. Many spy satellites go offline. (9) Additionally, some of the debris begins to fall out of the atmosphere, including the nuclear power systems of several large spacecraft, which break up upon reentry. (10)

   The risk of such a collision is very real. As described above, such an event could lead to the destruction of a significant portion of artificial satellites and curtail our ability to launch replacements, severely restricting our ability to use spacecraft for communication, security, and financial transactions. Cutting off access to space in this would also contravene international treaties that decree space is to be preserved as the 'province of all [hu]mankind.' (11)

   The existing international space law regime does not properly accommodate the types of coordination, cooperation, and regulation necessary to prevent a catastrophic disaster of this sort. This is especially so given the rise of private corporations in space, which were not contemplated as actors when nation-states laid the framework of international space law in the 60s and 70s. In the modern era, private corporations have both the technological capacity and the incentive to access space. (12) Private corporations are not signatories to international treaties and are not widely understood to be directly bound by the responsibilities and duties within them. They cannot be relied upon to take preventative measures or cooper ate with others who might be competitors. Yet cooperation and prevention are crucial because existing cleanup technology is not up to the task of a catastrophe scale event. (13) Just one major misstep could present an existential threat to our ability to access space. (14)

   Additionally, if commercial enterprises are permitted to precede law into space, this will lead to a perverse outcome in which parties not subject to international law will be able to shape and guide its formation. (15) International law is often decentralized, both in development and enforcement. Practice helps determine what international laws mean, (16) especially as there is often no central body with the ability to issue authoritative interpretations. Thus, non-state actors may play a large role in interpreting and shaping international space law. Even a single rogue corporation may contravene the long practice of space-faring states, establishing a precedent that usurps the consensus of states. (17) This problem is all the more salient as private corporations become the primary actors in outer space and, indeed, as they take on some of the functions of states. Further, there may soon come a point when non-state actors are no longer bound by territoriality. An international legal framework for space that considers only land-bound nation-states is not equipped to deal with a reality in which spacecraft could be designed, manufactured, and launched from an extraterrestrial body such as the moon.

   This paper argues that if space is to be preserved for the use of future generations, legal duties must attach directly to the private non-state actors that seek to operate in space. Fortunately, the theoretical "head of power' already exists. The Outer Space Treaty, often referred to as the Magna Carta of space, (18) declares space should be preserved as the 'province of all [hu]mankind,' (19) and this principle now has the status of customary international law. Normally, international law applies only to states, but this should be overcome by analogizing private corporations operating in space to new states to hold them accountable to customary international law. This can be justified because 1) there is an existential threat to 2) a global commons established by a principle of customary international law, and 3) private non-state actors will be entering a vacuum of sovereignty in a way that is analogous to the creation of new states.

   Parts II-IV will expand upon each of these factors. Part II will explain the rise of private corporations in space, how the existing legal regimes fail to account for this, and explore how these problems threaten space travel. Part III will discuss how space is a global commons to be preserved as the province of all humankind as a matter of customary international law. Part IV will argue that private non-state actors in space operate a vacuum of sovereignty and their ability to alter the interpretation of international law justifies the analogy to new states such that they should be subject to principles of customary international law

   Finally, Part V pulls all of these factors together, discusses some other proposals to address the next stage of space exploration, and argues that extending legal duties to private non-state actors is the first step of a long-term solution.

2. The Proliferation of Private Actors Strains the Legal Framework and Presents an Existential Threat to Space

   On May 30th, 2020, NASA astronauts Robert Behnken and Douglas Hurley left earth for the International Space Station. (20) The astronauts launched into space on a Falcon 9 rocket, developed and built by SpaceX, a private corporation. (21) This marked the first time in the history of human space exploration that a private company has ferried NASA astronauts to space. (22) It represents a key inflection point in the privatization of space exploration.

   The underlying legal framework for the existing space law regime arose in the 1960s and 70s. (23) It was built to accommodate a world in the midst of the Cold War, where only a handful of state actors had the capacity to access outer space. (24) More than half a century later, the challenges and goals are very different. (25) Space is no longer an arena for struggle between the world's two great political hegemonies. In fact, even as the public representatives of nation-states are increasingly collaborating, they are being displaced by private actors with commercial interests. (26)

   The nation-states that gathered in the 60s to develop legal systems to govern activity in outer space were primarily concerned with securing space as a non-military zone to be used for peaceful purposes and preventing the appropriation of 'celestial bodies' as national colonies. (27) International space law is therefore not adapted for the concerns and risks stemming from the proliferation of private non-state actors in space, leaving loopholes that make it difficult to regulate and coordinate private activity in space. This challenges the viability of international space law and creates practical challenges that could endanger space exploration for all.

   1. From Public to Private

      The collapse of the...