By: Colsen Centner
September 19, 2022
In 1969, Neil Armstrong’s first steps on the moon and famous proclamation “[t]hat’s one small step for man, one giant leap for mankind” inspired the human race with confidence and excitement for the future of space travel. Ever since NASA’s maiden mission, countries around the world have exponentially increased government spending on space programs, including $92 billion being invested worldwide in 2021. In addition to the government sector, significant capital has been invested in private companies who have developed technology to send paying customers to space, for a hefty price albeit.
However, the remarkable technological advances that have been made in the space industry do not come without concern. Namely, with increased public space travel in addition to continued government investment, how will international space laws adapt to govern everything from private experiences to military space activities? While in the past there have been five prominent sources of law governing international space law, the most recent of these was enacted in 1979 and is ill-suited to answer important questions both now and in the future.
To supplement pre-existing bodies of international space law, McGill University in Montreal, Canada, created the McGill Manual on International Law Applicable to Military Uses of Outer Space (“MILAMOS”). While MILAMOS has yet to be adopted by any governmental entities, the hope is that it will serve as a comprehensive reference resource, with similar rules eventually being adopted into international space law. However, unlike with many other international treaties, those pertaining to international space law have not historically resulted in agreements being reached by the countries at the forefront of the space arms race. The Moon Treaty, for example, forbids the establishment of military bases, the testing of any weapons, and the conduct of military operations on the moon. The Agreement was entered into force in 1984, but has yet to be ratified by four of the five countries that are investing the most amount of money into space programs. Further, the Moon Treaty has only been ratified by 18 countries, none of which has successfully completed a trip to the moon, ironically enough.
There has been much legal debate over why international space laws haven’t been ratified at the same success as, say, the laws of the sea, but the Moon Treaty and others like it were doomed by their own uncertainties. Like the shortcomings of the Moon Treaty, MILAMOS suggests idealistic standards that may be effective in principal but are not tailored to convince leading nations to consider ratifying or abiding by its rules. Ambiguity can be found in the first two chapters of proposed rules, which do not clarify whether the rules outlined in MILAMOS are to be all encompassing, or if they are to merely supplement pre-existing rules from the Moon Treaty and other classic sources of international space law. If the rules are to be interpreted as additions to pre-existing international space laws, Rule 128—which allows the “use of natural resources of outer space in carrying on … military space activities”—would conflict directly with the Moon Treaty which does not allow such activities. If MILAMOS is to be interpreted as a replacement to pre-existing international laws relating to the military uses of space, its’ scope must be increased, and rules expanded to clarify what would otherwise be guidelines to govern a very limited number of legal situations.
However, any potential shortcomings or ambiguities of MILAMOS are far from the central reason that an all-encompassing international space treaty will not be agreed to any time soon. Because of the incredible innovation and investment that the space sector has seen in the last five years, the lack of one official, governing agreement has left most countries waiting to see what future steps the big three—Russia, China, and the United States—will take in what is becoming a race to space supremacy.
While the level of technological advancement in space that mankind can accomplish is still relatively unknown, one thing has continued to become increasingly clear; without an international agreement or treaty limiting a nation’s actions in space, once a significant legal issue arises, judges, scholars and lawyers will have nowhere to turn to seek a quick and just resolve. Whether this prospective issue concerns space military operations or increased space debris problems, the lack of clarity concerning how space will be governed in the future continues to be cause for alarm as more and more companies and nations prepare to enter the space sector.
MILAMOS’ concentrated efforts are far from perfect, but at least they serve as a tool to further the conversation about the lack of adequate laws governing the space sector, and the need for nations to consider such laws in the future. While convincing nations that have poured billions of dollars into investment in the space industry to develop and ratify a treaty is no easy task, it is necessary to preserve continued international peace beyond the Kármán line.
