Current usage of space is increasing in high speed. The actors involved and the areas of usage are changing fast. In addition to the new states in space, it is mostly the non-state actors that are active in space are worth attention[1]. High technology involvement in space research and high expenses has led to this change in the actors involved in space. Due to these high expenses and know-how involved in the fast-changing sector states also encourage the involvement of non-state actors. However, the concentration among a few actors is the major source of concern. It is also the basis of the argument that there is a need for international competition rules in space.
Legal Framework
The legal framework in space consists of international treaties where the states are the only addressee. The existing treaties are: 1967 Outer Space Treaty (OST), 1968 Rescue Agreement, 1972 Liability Convention, 1975 Registration Convention and the 1979 Moon Agreement. The constraints with the current structure are that there are limited number of parties to these treaties especially for the Moon Treaty. Moon Treaty is especially important because of Article 11 that states that “The moon and its natural resources are the common heritage of mankind”. And also, article 4: “The exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development…”.
As for the OST, some principles are considered as customary law but it is still problematic due to different interpretation by some states, especially for the “non-appropriation principle” under OST Article II: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.…”. “Benefit sharing principle” under OST Article I: “… shall be carried out for the benefit and in the interests of all countries, shall be free for exploration and use by all States without discrimination of any kind, facilitate and encourage international co-operation in such investigation…”.
Current structure is regulated under international law and does not cover the economic or/and commercial usage of the space. The framework is among states and there is no legislation for non-state actors that are currently benefiting from space. Involvement of non-state actors are through OST Article VI where it is not openly stated, but from the wording that non-government entities can be involved: “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, ... The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty...”. As stated in the relevant article the responsibility is on the state and the basis for the authorization for the non-state actor is through national authorization either through licensing or other means by the state. However, the non-state actor is benefiting from this opportunity and it has to be considered both from the other principles such as “benefit sharing” or from the competition law perspective for the possible effects on competitors and consumers.
Current Situation
With the involvement of non-state actors and increase in their numbers, there is a growing lunar economy and profit making from space yet, the existing legal framework cannot keep up with the development. Treaties were drafted according to the usage and the technology in 1960s, where the addressee were only the states, when there was no non-state actor involvement in space. The legal gap is and will be causing problems to other states, non-state actors as competitors, and/or customers/consumers. For example, from competition law discussions a non-sate actor can be a monopoly in space, there might be different situations for potential abuse of dominant positions in space where anticompetitive behavior may be or already is affecting the functioning of the market. As mentioned above, non-state’s involvement in space is through OST article VI as a relationship between a national state where the responsibility is still on the state. But the non-state actor’s usage of the space is like functioning in a market and is benefitting from it and it is problematic. There are also other areas of usage by the non-state actors such as international investment law that support the argument that there is a need for new legislation that takes into consideration of the involvement of non-state actors, and also the parties that will be affected from the usage. In addition, the changes in the concept of space like space becoming a market for the scope of competition law or space becoming an area where private investment is made needs to be considered to have an effective and functioning mechanism for states, investors, non-state actors or consumers both for their rights and obligations.
To set an example to show the potential problem how the usage of space by non-state actors cannot be dealt with the existing framework, “competition law” will be an example.
Competition Law
Issues related to competition in space are dealt by applying the national competition laws either in the national level or through the extraterritorial application of the national competition laws.
For example, as one of the important non-state actors in space today, SpaceX has entered the space market at the end of a long legal battle based on US antitrust laws against challenging the exclusivity deal that was given to United Launch Alliance; which was formed as a joint venture in 2006 by Boeing and Lockheed; by United States (US) Air Force to exclusively to launch vehicles in 1998. Later SpaceX had its own licenses for high number of satellites in low earth orbit (LEO) from the Federal Communications Commission (FCC). One more point to keep in mind is that the principles in the current legal framework of space law especially from OST such as: “benefit sharing principle” or “non-appropriation principle” will not be asserted in the application of national competition rules. For this reason, also it is important to consider possible international competition law solutions.
One other possibility of applying national competition laws for space actions is the extraterritorial application these of laws. This has been an issue for a long time and was widely discussed in the GE/Honeywell and Boeing/McDonnell Douglas mergers, especially since different approaches and outcome from the United States and the European Union. Exterritorial applications from the UNCTAD definition from the “Developing Country Experience with Extraterritoriality in Competition Law” is “the competence of a state to apply its laws to foreign entities in relation to their, often purely foreign, conduct”. Application of competition laws extraterritorially and the required criteria changes from state to state. The US applies the Sherman Act and the Clayton Act extraterritorially based on “effects doctrine”.
Other states also followed on the extraterritorial application, but is that the solution? In addition to being problematic due to different outcomes, there will be limited applicability since it will not be a solution for many states or their citizens that will be affected. Extraterritorial application of national competition laws is not a solution for the prospective problems from space usage by non-state actors. It will not be a solution to protect the space market as a market for all countries, other non-state actors and affected parties. As mentioned above, where there is no regulation in the existing treaty framework on the current use of space by non-state actors, space through the usage and the consequences it creates has become market in terms of competition law. And the problems cannot be solved by application of national competition laws or with their extraterritorial application.
Another concern is the development of “national space law” by some nations such as US, United Arab Emirates (UAE), Japan, Luxembourg and Russia or small group country collaboration such as the Artemis Accords. Development of the area either nationally or among fewer states where there is still no international framework or agreed interpretation of the existing principles especially for the involvement of non-state actors might add to the existing problems. Even more problematic if there are also the states that are already have non-state actors authorized by them.
To clarify with an example: There are different approaches to the existing principles such as OST Article II “non-appropriation principle”. Under the US, Luxembourg or Artemis Accords space resources are capable of being appropriated by non-state actors. Unlike some other views to the contrary, they are taking the “freedom to use outer space” principle from a wider angle and have provisions in their national space law for commercial exploration etc.
The Luxembourg the Space Resources Law, 2017, article 1, Artemis Accords Section 10 deal with this issue. To give an example under the US Commercial Space Launch Competitiveness Act, § 51302: “The President, acting through appropriate Federal agencies, shall ‘(1) facilitate commercial exploration for and commercial recovery of space resources by United States citizens;… ‘(3) promote the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government. ‘‘. And at § 51303 “A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.’’.
Where many states are at the phase of drafting national space law legislation, it is again timely to agree on a road map on the international development of space usage by non-state actors.
Solution
“Global Space Governance” is needed. Particularly for competition law issues in space, there is a need for international competition framework and maybe an authority for all of the applications.
A global international forum is also needed. Existing platform can be the initial step or a new international body can be created. The development can also be gradual, initial stages can be at an existing body with the existing rules by extending to the space area and later form an independent authority and rules for space.
When looked at the existing forum or rules:
Possibility of having international competition rules and an authority has been discussed under the World Trade Organization (WTO) but have failed. This path can still be considered if international competition rules need to be considered in a broader topic, independent of specifically space discussion. United Nations Trade and Development (UNCTAD) is another option for drafting the framework, its role although was at the national level in “the Model on Competition” can set an example.
There are also other areas that can set an example in the development of these shortcomings for example the area of Law of Sea and United Nations Convention on Law of Sea (UNCLOS), International Maritime Organization (IMO), International Seabed Authority (ISA), International Telecommunications Union (ITU) as an organization. Competition in digital markets can be another area to look at especially UNCTAD’s work on “Global Competition Law and Policy Approaches to Digital Markets”.
Development of the framework of international competition law in space should also consider the dynamics of space, take into consideration the importance of innovation. Flexibility in legislation is needed, the legal provisions should not be hindering innovation. As a starting point agreeing on that the space is a global common and setting common definitions such as what constitutes a dominant position is important. Otherwise, with the current pace of usage of the space, broadcasting, mining, tourism, agriculture, medicine via non-state actors the disputes will increase and trying to solve them with the current legislation or by national legislation that are not drafted for the usage of space by non-state actors will not be the solution and will add to the disputes.
May the force be with you and the law with the space. :)
General argument about the commercial usage of space non-state actors was discussed in another lexpera post: 07/03/2024, “Uzayın Devlet Dışı Aktörler Tarafından Ticari Kullanımı ve Yasal Düzenleme İhtiyacı” (Commercial Use of Space by Non-State Actors and the Need for Legal Framework): https://blog.lexpera.com.tr/uzayin-devlet-disi-aktorler-tarafindan-ticari-kullanimi-ve-yasal-duzenleme-ihtiyaci/, and some aspects were presented at the 1st International Space Law and Technologies Symposium, “Devlet Dışı Aktörlerin Ticari Uzay Faaliyetlerinin Hukuki Çerçevesinin Oluşturulması: Rekabet Hukuku Kuralları Önerisi” (Establishing a Legal Framework for the Commercial Use of Space by Non-State: Proposal for Antitrust Rules): https://isltech.sempozyum.duzce.edu.tr/. ↩︎
