Reaching for the stars: new frontiers in the law

Outer space is closer than you may think. The widely accepted frontier is just 100 kilometres away – a daily journey for many of us in normal times.

Of course, commuting 100km straight upwards would be even more expensive than Southeast trains, but prices are falling: Elon Musk’s Falcon 9 rocket alone cut launch costs by a factor of seven. Commercial interest is growing accordingly.

In consequence, space law is getting closer, too. Frans G von der Dunk’s Advanced Introduction to Space Law is a tidily written – and tidily priced – introduction to the corpus that reminds us how close.

 In the author’s classification, the 1967 Outer Space Treaty, which is generally regarded as the foundational statute, forms only the first and innermost of four expanding concentric circles. The next layer is international law exclusively or comprehensively relating to space, such as the treaties running the Intelsat and Inmarsat satellite communications systems.

Then comes international law relevant to but not particularly focused on space activities, such as air law and IP law. Last is national space legislation, such as the UK’s Outer Space Act 1986, which covers the licensing of UK space activities.

As you might expect, potential conflicts abound. One, skipped over very quickly, is concerns about jurisdiction: where exactly is space? While the final frontiers are unlikely ever to be of concern to human lawyers, the nearer ones could well be very soon.

That 100km boundary, the Karman Line, is the conveniently rounded approximate height of an aeronautical phenomenon – the point at which the atmosphere is too thin to support winged flight, however fast you fly. However the Karman Line is not recognised in international law. The US, a significant space power, prefers a boundary 20km lower, possibly so that back in the 1960s, more of its X-15 rocket plane pilots could wear astronaut medals.

As it happens, most commercial space activity today takes place a good deal higher: GPS satellites, for example, orbit at about 20,000 kilometres and the most valuable astral real estate, the geostationary orbit, is 36,000 kilometres up.

But the boundary matters in law because this is where the principle established by the Paris Convention of 1919 concerning aerial navigation – that a state has jurisdiction over its skies – gives way to the 1967 Outer Space Treaty’s global commons.

By establishing property rights, the 1919 Paris convention was crucial to the development of commercial aviation. By contrast, the Outer Space Treaty, drafted at the alleged dawning of the Age of Aquarius, looks more like virtue signalling. It will be interesting to see how long that spirit survives when space is an affordable commute away.

Michael Cross is news editor at the Law Society Gazette