As opiniões expostas neste artigo vinculam exclusivamente os seus autores.
Nearly all of mankind’s greatest achievements are underscored by a willingness to push the boundaries of what is perceived to be accepted. The continued development of international space law stands as a materialization of this notion, as the ability to venture into outer space has continuously changed the dynamics of international relations.
For the sake of coherence, let us broadly perceive international space law as an emerging branch of (public) international law comprised by a subset of rules, rights and obligations «(…) established to provide guidance and regulation over the exploration and use of outer space and all bodies found therein by persons on or from Earth» (Keefe, 1995). However, heeding Zhukov & Kolosov’s (2014) argument, activities such as exploration and usage cannot be solely restricted to outer space, as they can be conducted on Earth. Moreover, these activities can be connected with the launching of a space object and/or its operation and/or its return to the ground. The main point is that international space law can be understood in terms of the area where activities take place (i.e., outer space), in terms of the nature of those activities (i.e., outer space activities) or even in terms of both these conceptions concurrently.
Historically, there was never a pressing urge to widen the scope of legal regulations outside those of planet Earth. But just as international law governs international relations, a novelty set of rules and principles is needed to oversee the international outer space exploration activities, not to mention the various celestial bodies (of which the most notable is the Moon). For instance, while international law of the sea or the air took over centuries to arise and take shape, space law has come into being almost before our eyes (Zhukov & Kolosov, 2014).
As Blount (2011) so forthrightly puts it, international space law is a product of the Cold War. In 1957, the USSR launched the first artificial satellite («Sputnik-1») to successfully orbit the Earth, signalling mankind’s first «smaller» step into the unknown. This achievement ushered in the «Space Age», an era of continuous outer space exploration that further deepened (albeit informally) the confrontation between the Americans and the Soviets. The classic narrative centred on these two symmetric but antagonistic superpowers’ mutual perceptions of their technological and military/strategic superiority following «Sputnik-1» inevitably led international space law to be designed to address the international community’s concerns for peace and security risks in the bipolar setting. Ultimately, this setting would also encourage a «marathon» for the Moon, won by the United State’s «Appolo 11» mission twelve years later.
Given the geopolitical context, international space law laid out the legal foundations of a regime keen on promoting the «neutral» exploration of outer space, aiming to reduce the likelihood of conflict in this new arena (Blount, 2011). Sharing in von der Dunk’s (2015) astonishment, «(…) the two antagonistic superpowers, in spite of their Cold War rivalry, not only led these developments, but were actually able to arrive at a general understanding that outer space should remain outside of the arms race as much as possible and by contrast should remain free and open for (in particular) scientific exploration, and finally that international law was to play a crucial role in guaranteeing such an outcome».
The current body of international space law (corpus juris spatialis internationalis) stoutly envisions a new world order predicated on the notion that all of mankind could peacefully cooperate toward the common good through the peaceful usage of outer space and by equally benefiting from what is found in it (Keefe, 1995). This idealistic rationale is scattered throughout five main agreements (referenced here only, for simplicity): (1) the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies («Outer Space Treaty», 1967), (2) the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space («Astronaut Agreement», 1968), (3) the Convention on International Liability for Damage Caused by Space Objects («Liability Convention», 1972), (4) the Convention on the Registration on Objects Launched into Outer Space («Registration Convention», 1975), and (5) the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies («Moon Agreement», 1979).
The Outer Space Treaty (1967) is often regarded as the cornerstone of international space law, a «constitution for space» of sorts (Blount, 2011; von der Dunk, 2015). This treaty sets out the core principles concerning general outer space exploration and usage, many of which have evolved into rules of customary law. Still, several jurists have criticized the ambiguities around the terms in the corpus juris spatialis internationalis (perhaps intentional omissions), as certain keywords are not clearly defined and various provisions concerning the settlement on celestial bodies lack a clear legal framework (Keefe, 1995). Perhaps the most noteworthy example of this claim pertains to the fact that none of the above-mentioned treaties seems to define the term «outer space», despite dealing substantially with it, leaving it up to customary law to «fill the gaps».
The absence of new outer space treaties might signal that states in the international community are not yet ready to take on the responsibilities attached to the benefits of outer space exploration (Venkata Rao & Abhijeet, 2017). There have been, however, several resolutions from the United Nations General Assembly concerning various aspects of international space law (although addressed collectively hereinafter). Despite their importance in solidifying key aspects of law, there is an interesting discussion on whether they are obligatory or amount to mere recommendations. Since the General Assembly does not possess the competence to adopt precepts of international law, one could argue that its resolutions do not possess any de facto legally binding force.
Notwithstanding, the predominance of the United Nations cannot not be disregarded, as it «(…) performs a definite role not only in the process of the formulation of the rules of international space law, but also in the process of their implementation» (Zhukov & Kolosov, 2014). Almost immediately following «Sputnik-1»’s launch, the United Nations saw the need for future regulation in outer space, establishing an ad hoc committee (the Committee On Peaceful Uses of Outer Space) to assess the challenges facing the then «infant» international space law (Keefe, 1995).
As previously established, international space law was conceived amidst the geopolitical architecture of the Cold War. Almost thirty years after its end, it is not unreasonable to wonder what the implications for this body of law have been. Perhaps the most glaring shift has been the need to govern the relations between traditional actors (i.e., states) and emerging ones (i.e., private sector actors). After the fall of the Berlin Wall, «[s]pace went from being a two-player game with both players starting from the same point and nearly equally matched, to a multiplayer game with one leading player and many other various points of a spectrum of capabilities» (Johnson-Freese, 2009 [quoted in Blount, 2011]).
Venkata Rao & Abhijeet (2017) maintain that exploring outer space is no longer a venture solely focused on the bipolar notion of «competition», but instead a necessary economic resource for building and maintaining terrestrial infrastructures, as it progressively intertwines itself with various crucial human endeavours related to communications, weather forecasting, navigation systems, defence mechanisms and, perhaps more worrisome, military activities, to name but a few. The emergence of new technologies also warrants a new approach to international space law, as many of the previous technical and scientific regulations and frameworks were not covered by the existing outer space treaties (von der Dunk, 2015).
The number of ambitious commercial space activities and industries by both states and private actors has increased seemingly quickly (Latimer Martinez, 2021). But while «(…) maintaining security in a world with a wider and more disparately situated set of actors has become increasingly challenging» (Blount, 2011), international space law has proven able to continuously adapt and update itself to various ever-changing circumstances.
The existing treaties and remaining legal instruments have ushered in a (mostly) clear and safe regulatory framework for international space law. Alongside landmasses, oceans and airspaces, outer space represents yet another realm mankind has dared to explore (von der Dunk, 2015). Nevertheless, various challenges are certain to obstruct the overall consensus and effectiveness surrounding forthcoming international agreements, whether they be «(…) the development of an independent economic structure, space-specific laws, a new culture (…) [or] potentially even new species» (Latimer Martinez, 2021).
José Tomás Simeão
Mestrando em Direito – Especialização em Direito Internacional e Europeu
Nova School of Law
Bibliografia
Blount, P. J. (2011). Renovating Space: The Future of International Space Law. Denver Journal of International Law & Policy, 40(1), 515-532.
Keefe, H. (1995). Making the Final Frontier Feasible: A Critical Look at the Current Body of Outer Space Law. Santa Clara High Technology Law Journal, 11(2), 345-371.
Latimer Martinez, K. (2021). Lost in Space: An Exploration of the Current Gaps in Space Law. Seattle Journal of Technology, Environmental & Innovation Law, 11(2), 322-349.
Venkata Rao, R., Gopalkrishnan, V., & Abhijeet, K. (Eds.). (2017). Recent Developments in Space Law: Opportunities & Challenges. Springer Nature.
von der Dunk, F. (2015). International space law. In F. von der Dunk & F. Tronchetti (Eds.), Handbook of Space Law (pp. 29-126). Edward Elgar Publishing Limited.
Zhukov, G., & Kolosov, Y. (2014). International Space Law. Statut Publishing House.