On October 14, 2016 Niklas Hedman, the Chief of the Committee, Policy, and Legal Affairs section for the United Nations Office for Outer Space Affairs (“UNOOSA”) gave a speech at the American Society of International Law (“ASIL”). During his talk, he discussed the events of the 59th session meeting of the Committee on the Peaceful Uses of Outer Space (“COPUOS”). This committee deals with regulations that impact peaceful and civilian use of outer space.
Hedman emphasized the challenges that a shifting agenda have created for COPUOS. This committee intends to shift their focus to a more theoretical agenda so that policies can be created more proactively than reactively. However, COPUOS has faced challenges in building consensus since geopolitics play a highly impactful role.
In the past, COPUOS has struggled to implement theoretical regulations. Necessary, reactive laws have been easier to generate out of necessity. Some laws that COPUOS has been successful in implementing include laws that regulate satellite registration and launches. To generate its unified body of satellite registration law, COPUOS has been able to look at current practices and harmonize those practices with its model registration laws.
Proactively creating and codifying law has been more challenging. Without the driving force of necessity or the guidelines of current practice, consensus can be difficult to reach. For example, after forty years of debate, there is still no consensus on where air space ends and outer space begins. Despite the political challenges of creating laws proactively, UNOOSA has had some success aggregating legal approaches of various states and providing model national space legislation as a form of soft law to guide emerging practices and in dealing with pressing practical issues like asteroids.
Given previous challenges, UNOOSA is cautiously optimistic about its new strategy. As part of its annual meeting, UNOOSA members discussed improving space traffic management law, developing guidelines for small satellite activities, and creating guidelines for exploration, exploitation, and utilization of resources mined in outer space.
There is no defined set of laws for space traffic management. On the intergovernmental level, COPUOS is hoping to fill this gap by exploring the necessary mechanisms for a comprehensive orbital law. This will impact the role states play as they register and launch satellites into space.
Small satellite activities also create issues based on satellite registration and liability. Moreover, there must be consensus on whether a separate satellite regime is necessary. This step could be beneficial because smaller satellites present unique opportunities and challenges. Small satellite activities can be a gateway for developing space programs. However, some small satellites are non-maneuverable and create significant issues in determining liability for collisions and space debris.
Finally, COPUOS will explore emerging state practice in exploration, exploitation, and utilization of resources mined from celestial bodies. This responsibility, however, is the most ambitious and perhaps the most controversial. While the UN may issue model guidance, states have begun creating laws to regulate the exploitation of resources on celestial bodies. For example, the US passed the Space Launch Competitiveness Act, which recognizes the right of citizens to own asteroid resources they obtain. The Space Launch Competitiveness Act, which became law in 2015, was passed to encourage the development of the commercial space industry and encourage private sector investment by creating a pro-growth environment.
By dealing with topics that require consensus, Hedman says, COPUOS will be better able to address one of the thematic objectives from its conference: it will be able to enhance the legal regime of outer space governance and develop better strategies to fill gaps in current legislation. However, in order to move from disparate actors to consensus-built law, COPUOS has a long and difficult trajectory.