COVER STORY • The Future of Space as Global Commons • 5T

he Future of Space as Global
Commons from the Perspectiveof International Law

By Setsuko Aoki

Space as a Domain for Dual-use Purposes
More than six decades have passed since the first successful
launch of an artificial satellite, Sputnik I, and today there is no place
on Earth where the benefit of the utilization of space has not been
provided. Without a variety of communications satellites, we cannot
enjoy 24-hour automatic teller machine (ATM) services. Nor could
there exist car navigation systems, High Frequency Trading (HFT)
markets, or Google Maps without global positioning, navigation andtiming (PNT) satellites such as US GPS constellations. Further, fordisaster mitigation and climate change observation, the combinationof application satellites play a pivotal role. Outer space has truly
become a domain which provides safety, welfare and wealth tohumanity.
Research and development of outer space started, however,primarily for military purposes just after World War II. While it was
not until 1978 when US President Jimmy Carter officiallyacknowledged the use of military satellites, it was an open secret thatboth the United States and the Soviet Union extensively relied on
various space assets for their national security. Without such reliable
satellite monitoring systems, so-called “national technical means ofverification” (e.g., Article 12 of the 1972 ABM Treaty and Article 10 of
the 2010 New START Treaty), a series of US-Soviet/Russia nuclear
arms control agreements could have never been successfully
adopted. During the Cold War, approximately 75% of all satellites
worldwide were operated exclusively for military purposes. Outer
space was far more military-focused than the high seas, another area
beyond the limits of national jurisdiction of any State.
The ratio has since decreased to about 20% today, but it does notmean the decreased importance of the military aspects of space use,
for this is only caused by the disappearance of the dichotomy ofmilitary and civil/commercial use of space. GPS satellites originallydeveloped for the precision targeting of ballistic missiles are now
also widely contributing to land, sea and air civil traffic management,
and private high-resolution remote sensing satellite data iscommercially available for the armed forces. Outer space is a highly
dual-use domain, critically important both for military/security andcivil/commercial purposes.

Space Activities Carried Out by an Exclusive ClubAny new domain needs a world order for maintaining peace and
20 Japan SPOTLIGHT • July / August 2018

Author Setsuko Aoki

security. Outer space is no exception, but the uniqueness of space
activities including its strongly embedded dual-use nature makes theway of international rule-making also rather peculiar.
If “spacefaring nation” is defined as a State that owns/operates atleast one satellite, even today only about 70 States belong to thiscategory. Then, as of 2018, only 10 countries have launching sites
and their own rockets within their territories, and enjoy
independence in deciding when to launch what through outer space.
They may be called autonomous spacefaring States. When it comesto independent human space activity, the number is even more
limited — only three: Russia, the US and China. Coincidentally ornot, it is these three countries that have explicitly demonstrated theiranti-satellite (ASAT) capabilities.
It may well be said that full-fledged space activity is more or lessreserved for the exclusive club members. While the benefit of spacebased data and information is shared with all of humankind, only theclub members can truly decide the direction of space activity, which
inevitably involves the direction of future space law and order.

Coordination of Freedom & Common Interests
in Space Activities
International space law has been developed in the Committee on
the Peaceful Uses of Outer Space (COPUOS) of the United Nations
General Assembly. Among the five treaties adopted up until now, it is
the 1967 Outer Space Treaty that provides the basic principles ofinternational space law. These include: 1) the right of any State to
conduct an exploration and use of outer space (freedom of space
activities); 2) the obligation to explore and use outer space for the
benefit and in the interests of all countries; 3) the prohibition of thenational appropriation of outer space (non-colonialization); 4) the
prohibition of weapons of mass destruction (WMD) placed in orbit
around Earth or otherwise stationed in outer space; and 5)
substantial non-militarization of the celestial bodies. It is difficult tostrike a balance between the pursuit of freedom and common
interests in the exploration and use of space. But by the end of the20th century, this has been in most part addressed in increased
internationally cooperative space projects and open and free spacebased data services.
As for the fruit of space activities, interestingly it is often moreclearly appreciated in developing countries, because one
communication satellite can make a difference in the life standards ofhttps://www.jef.or.jp/journal/

COVER STORY 5

the citizenry in a remote area compared with a country where
terrestrial communication networks have been fully developed. This
explains the bigger responsibility of spacefaring nations to share theresults of space application, and in fact exclusive club members havebeen actively engaging in many cooperative projects. Those States
have various motivations for such cooperation including marketing
their space business, space diplomacy and not making “space
divide” an issue between spacefaring and non-spacefaring nations.
To a certain degree, this applies. However, the history of spacecooperation seems to indicate that the purely good intentions todiffuse space benefits to humankind should not be underestimated.
In this respect, the UN Office for Outer Space Affairs (UNOOSA) has
been effectively working as a driving force to facilitate benefit sharingof space activities.

Non-legally Binding Recommendations
over Legally Binding Treaties
As mentioned above, up until now there have been only fivetreaties made in the COPUOS: 1) the 1967 Outer Space Treaty, 2) the1968 Rescue and Return Agreement, 3) the 1972 Liability
Convention, 4) the 1975 Registration Convention, and 5) the 1979
Moon Agreement (Chart 1). Since then, for about four decades, no
new treaty or legally binding agreement between States in a written
form has been adopted at the UN.
Why is the number of UN space treaties so small? The simple
answer is that this is a result of the consensus system taken since
1962 in the COPUOS. The more member States, the more difficult it
is to accomplish a consensus. When the fifth and last treaty was
opened for signature in 1979, the number of COPUOS members was
47. As of 2018, it is 87. In addition, during the Cold War, a legallybinding agreement was possible so long as the US and Soviet Union
thought it beneficial to each side. This condition has long since gone.
As the States belonging to the exclusive club can adopt their own
treaties, such as the 1988/1998 International Space Station
Agreement, this stalemate does not seem to have substantiallycompromised their space activities. On the contrary, it may be said
CHART 1UN space treaties
Number ofstates parties

Signature/entry into force

Name of the treaty

1967

Outer Space Treaty (OST)

107

1968

Rescue and Return Agreement

96

1972

Liability Convention

95

1975
1976

Registration Convention

67

Moon Agreement

18

1979
1984

Source: Compiled by the author based on document (A/AC.105/C.2/2018/CRP.3, April 9,2018) from the UN Office for Outer Space Affairs (http:www.unoosa.org/)that such stalemate is less inconvenient than the cases where
stringent rules proposed by non-spacefaring nations are made into a
treaty. In some respects, not only a consensus system, but also, or
more inherently, the unique nature of space activities may better
explain the reason for the paucity of legally binding international
space law.
Since the 1980s, non-legally binding UN General Assembly
resolutions and COPUOS guidelines have been adopted to address
new issues, ranging from the data distribution rules of remotesensing satellites to the safe use of nuclear power sources necessary
for deep space exploration, to further enhancing registering systemsof space objects, and to space debris mitigation measures.
Because such non-legally binding instruments arerecommendatory and international responsibility is not imposed if aState does not abide by the rule, consensus building is possible.
Legally binding or not, spacefaring nations are to observe
international instruments, because these rules are assessed to beeffective to promote safe and stable use of outer space.

Space Debris Mitigation
Currently, the biggest challenge concerning space as a global
commons seems to be increasing space debris, which will threaten
the safe, stable and sustainable use of space in the future (Chart 2).
Thus, international rule-making in combating debris is important toconsider the future rules for outer space. The 2007 COPUOS Space
Debris Mitigation Guidelines was also made as a non-legally binding
instrument.
Since the 1990s, the space community has warned that urgent
measures should be taken to limit the production of new spacedebris as much as possible. However, effective unilateral andvoluntary efforts were not much expected due to the inevitably
increased cost of space operations should such mitigation measures
be taken. Then the Inter-Agency Space Debris Coordination
Committee (IADC) was established in 1993 to collectively tackle
space debris issues. Member agencies (as of 2018, 13 space
agencies including one international intergovernmental organization)
are implementing technically-based IADC space debris mitigation
guidelines.
IADC guidelines were first adopted in 2002, and as a working
document it has been amended and supplemented in accordancewith newly identified knowledge and technologies. This shows
another merit of non-legally binding instruments — being flexible
enough to adjust new realities.
Space has ever been congested due to the increased number ofactors, both States and private entities. This makes the role of
COPUOS more important. Once rules have been adopted in the UN,
even if they are non-legally binding, all UN Member States are under
the political/ethical obligation to implement them, in contrast to the
IADC guidelines applicable only to a small number of space agencies.
Thus, the 2007 COPUOS Guidelines, modelled on the IADC
guidelines and applicable to more than 190 States, was much
welcomed as a truly effective instrument to mitigate space debris.
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CHART 2

Catalogued space objects by Space Surveillance Network (SSN)
20000

18000
16000
14000
12000
10000
8000
6000
4000
2000
0

2004

2005

Year

Number of
catalogued
space objects

2006

2007

2008

2009

2004

2005

2006

2007

9148

9233

9428

9948 12456 12743 15090 16108 16530 16596 16994 17063 17729 18640 18835

2008

2010

2011

2012

2009

2010

2011

2013

2012

2014

2013

2014

2015

2016

2015

2016

2017
2017

2018

2018

Source: Compiled by the author based on information from The Orbital Debris Quarterly News by the NASA Orbital Debris Program Office , etc.
(https://www.orbitaldebris.jsc.nasa.gov/quarterly-news/newsletter.html)

Currently, exchanging information on the measures taken for debris
mitigation has been included in the agenda items of the COPUOS
Legal Subcommittee (LSC). This may be said to be a benign
reporting system which could be developed into a more systematic
monitoring in the future.
In implementing the COPUOS Guidelines, another aspect has to bementioned. For the concrete implementation of these somewhat
abstract guidelines, reference to the latest version of the IADC
guidelines and other supporting documents is needed, for practicalmethods are specified there. In fact, the last part of the COPUOS
Guidelines explicitly requests referring to IADC documents. Moreconcrete and practical measures provided by the IADC have beenthus truly universally carried out through COPUOS.

New Activities, New Challenges in International
Space Law
Nearing the end of the second decade of the 21st century, space
activities have certainly entered a new stage. This is already felt in atleast three areas. First, private venture companies can now develop
space transportation vehicles including those for manned flight.
Previously, the capability of R&D of advanced launch vehicles was
only in the hands of governmental agencies. Still embryonic, privatecompanies will have independent capabilities to develop various
space vehicles and embark on the exploration of Mars and beyondon their own. In this connection, space tourism, not only sub-orbital
flights but also orbital flights, will be a travel option for ordinary
travelers by about the 2030s. Second, the first phase of a more
futuristic activity, commercial space resources exploitation andutilization, has just started as exploring and prospecting a desirable
asteroid and pertinent place on the Moon. Third, new types ofon-orbit activities are now being developed both by governmental
22 Japan SPOTLIGHT • July / August 2018

and non-governmental actors. These include active debris removal(ADR) and on-orbit satellite servicing (OOS) such as refueling andrepairing a target satellite. Both ADR and OOS are ideas to use space
more economically, efficiently and reasonably, and OOS will be one
way of debris mitigation as well.

Space Resource Mining & International Space Law
Finding
From the international law perspective, the second and third areasof activities are more important, as they require finding, making andmaybe changing international space law for giving new activities
legal certainty and predictability. Without predictable legal
consequences, private actors cannot get a full investment, andgovernmental agencies will be hesitant to pursue such activities
beyond the experimental phase.
In fact, for the second area, the national acts of the US (2015) andLuxembourg (2017) were adopted for clarification purposes. The US
act acknowledged a US citizen’s right to possess, own, transport,
use, and sell space resources obtained from celestial bodies, and the
Luxembourg act provides that space resources can be appropriated.
There is no explicit rule to prohibit or permit space resource mining
in the Outer Space Treaty, which only prohibits the appropriation of
the soil of celestial bodies.
From here, two interpretations are possible. As space resource
mining is not banned, the private mining business is lawful as longas it is authorized and supervised by its national State that abides byinternational space law. Obviously, the US and Luxembourg take thisview. The other interpretation is that without an explicit banningclause, further research on relevant laws is needed before concluding
whether it is lawful or not. In this case, in addition to the efforts tofind a customary rule on this matter, the related provisions of the UN

COVER STORY 5

space treaties should be carefully interpreted, including the meaningof the freedom of “use” of outer space if it contains selling resources
for economic gain.
Since 2017, “general exchange of views on potential legal models
for activities in the exploration, exploitation and utilization of spaceresources” has been discussed in the COPUOS/LSC. An early
resolution of differences seems difficult as this entails a fundamental
difference in attitude to international law, if it is made as a prohibitive
rule or a permissive rule. But, fortunately, as it may be decades
before resource mining starts, it is expected that discussions in andoutside the UN will result in a reasonable solution coordinating theprinciple of freedom and public interests in space activities.

New Rules Needed for ADR & OOS
As outer space is an international area, national jurisdiction andcontrol is exercised by the State of registry of a related space object(objects made on Earth and launched into outer space). That was
decided by the 1967 Outer Space Treaty, and elaborated by the 1975
Registration Convention. Registration plays a similar role tonationality, while it has to be noted that space objects are notformally given nationality, different from the case of ships andaircraft. It only implies that national registration (first phase) istantamount to nationality and UN registration (second phase) makes
it clear who registered what, and which kind of a satellite is orbiting
where for what purpose. Note that furnished information under theRegistration Convention remains unsatisfactory to truly identify asatellite, but the idea of the UN registration is the identification of aspace object.
Is space debris a space object? Yes, certainly. Space debris
consists of orbital stages of a rocket, satellites whose mission
capabilities have been terminated, and their fragments, and by thevery notion of a space object, space debris cannot be anything but aspace object. This means that without the consent of the State ofregistry, any ADR is not legally permitted. It may be thought that thiswould not be a problem, for ADR will not be carried out without arequest from the private owner of the debris concerned based on theprior consent of the State of registry. But a State does notnecessarily appropriately supervise its private actors. There is always
a possibility that an ADR will take place without the consent of theState of registry which is supposed to exercise jurisdiction. Worse,
there are satellites not registered in the UN registry at all, with theratio as much as 30.5% as of 2004, according to a UN study (A/AC.105/C.2/2005/CRP.10 (14 April 2005), pp.1-2). With the 2007
General Assembly resolution on enhancing space objects
registration, and the increased number of contracting States to theRegistration Convention, 67 States as of 2018, the problem has been
alleviated to some extent, yet the fundamental issue remains.
Moreover, there must be many cases where the State of theregistry of a fragment of a former satellite cannot possibly be
identified even if the satellite had been registered. Debris more than
10 centimeters in diameter is said to be capable of destroying afunctioning satellite, and there must certainly be a demand to remove

such debris. However, there is no means to get consent from theState of registry of that object. Further, it has to be seriously taken
into consideration that ADR technology could amount to ASAT
technology. Similar issues are to be found in OOS, for refueling andrepairing space objects entail part of ASAT technology, though there
may not be a problem in identifying the State of registry of the target
object.
The international community needs to find, and to some extent
make, new rules to solve any legal uncertainty on the operational
ADR and OOS. These rules should include: 1) how to end thejurisdiction and control exercised by the State of registry when it
cannot be identified anymore; 2) how to determine how a Stateshould exercise jurisdiction and control as well as responsibility overa non-registered space object; 3) when a volunteer actor can remove
debris without the consent of a State of registry if that debris poses
an unacceptable threat to the normal operation of functional space
objects; and 4) the confirmation of the obligation of an actor not torelease more than a reasonable amount of debris.
Currently, there is no clear legal obligation banning the release of
unreasonable amounts of space debris. It has to be noted that a
Chinese ASAT test that scattered more than 3,300 pieces of orbital
debris cannot be criticized as an internationally wrongful act. The
Outer Space Treaty only prohibits placing or stationing a WMD inouter space. Thus, a new legal norm is needed not to cause harmful
effects on any other space object, and through them to the State ofregistry of that space object. For this purpose, it has to be clearly
determined which State holds jurisdiction and control over a space
object with or without registration.

Conclusion
To maintain the future of space as global commons, the mosturgent matter is mitigating debris. For that purpose, the COPUOS
and IADC guidelines are efficient to a certain degree, and space law
rules on ADR and OOS are being considered. But in making rules on
ADR and OOS, which forum will be possible, and what form of
instruments is desirable? The answer to the latter is easier. Making atreaty seems impossible in the near future, but non-legally binding
UN resolutions or guidelines would be a possible target. As for theselection of the forum to make rules, while taking time to build aconsensus in the UN, important norms should be discussed in the
COPUOS to make them universally applicable. Detailed descriptions
about rules, such as the degree of care needed in releasing debris,and more technically-focused standards, may be made in the IADC,
ISO or other entities. The importance of the COPUOS should beunderlined. It helps striking a fine balance between the freedom ofspace and the pursuit of common interests and benefits to all
humanity. As the number of autonomous spacefaring nations is
considerably restricted, the role of the COPUOS is critical.
Setsuko Aoki is a professor of law at Keio University Law School, a memberof the Committee on National Space Policy of the Cabinet Office of Japan since
July 2012, and vice president of the International Institute of Space Law (IISL).

Japan SPOTLIGHT • July / August 201823