In January, United States company Swarm Technology succeeded in launching their prototype satellites — each smaller than a loaf of bread — into orbit.
With hundreds of satellites launched every year, Swarm’s success would have been otherwise unremarkable, except for one fact: they had been denied launch approval by US authorities.
The company went ahead anyway.
Professor Melissa de Zwart, the dean of law at Adelaide University Law School, said Swarm took the not unusual step of going through a broker in order to launch.
“Nobody seems to be able to quite explain why or how, the launch actually happened from India,” she said.
“So this is the first example that we have of what is loosely termed an unauthorised launch.”
Swarm’s satellites have the potential to damage others that make up the global communications network orbiting Earth, and other objects in the increasingly crowded territory of low earth orbit.
But working out who would be liable in such a scenario opens up more questions than answers.
The limits of space law
Swarm’s activities are part of a growing commercial focus on space, with some companies interested in satellite technology and others wanting to mine resources on asteroids, or even the Moon.
The launch of the SpaceX Falcon Heavy earlier this year, which included a dummy payload of a red Tesla Roadster bound for Mars, demonstrated the increasing speed of the new space race.
Even Australia is looking to get in on the act, with the Federal Government currently revising the Space Activities Act 1998 and announcing in 2017 the launch of a space agency.
But Professor de Zwart said international laws and regulations governing this activity are still playing catch-up.
“Given that the vast uptake in commercial space has happened in the last five to 10 years, there is a significant lag,” Professor de Zwart said.
Space today is covered by a lattice work of international agreements signed mostly in the 1960s and 70s.
This began with the Outer Space Treaty, signed in 1967, which set out the fundamental principle that activity in space should be for the benefit and interest of all countries.
“Space is a unique thing from a legal characterisation,” said Professor Steven Freeland, a dean of law at the University of Western Sydney.
“From the earliest time that Sputnik went up in 1957, it was agreed that national law would not apply to space, but instead we would own space together as a common area.
“There is this notion that space cannot be appropriated.”
But these treaties were drafted at a time when no-one imagined smaller nations, let alone companies, would have the capabilities to regularly go into space for commercial purposes.
And so this gap is partially covered by national laws that dictate the activities of each country’s citizens and companies in space.
Under international law, countries are liable for any damage in space caused by a company from that country.
It is up to nations to control and regulate the space activities of domestic operators, and outline who will be liable to obtain insurance and licenses.
Sometimes this means a company will agree to pay for any damage they cause in space, to indemnify their government.
The launch by Swarm Technology, according to Professor de Zwart, falls into this grey area between national and international law.
“Even though that was unauthorised under US domestic legislation, because they are a US corporation, the US government will be liable under the international law for any damage caused by the operation of those [satellites],” she said.
“They [Swarm] could be found liable under of course the domestic law. That would require the US regulators to implement that.
“I think at the moment there is a fair bit of scrambling going on to find whatever the missing bit of paper is that would make it all legitimate.”
Space law in the future
The rapid commercialisation of space expected over the next few decades presents two major challenges for law, according to Professor Freeland.
The first will be how to regulate the militarisation of space, and reign in the use of GPS-guided bombs and satellite technology used for targeting and spying in major conflicts.
Crafting regulations to reduce the impact of space debris will a major challenge for space law. (Getty Images: Auscape/UIG)
Professor Freeland said this will require laws and clear rules that restrict weaponisation and prevent conflicts in space.
The other issue is the proliferation of debris in low earth orbit like abandoned rocket stages, dead satellites and smaller objects, otherwise known as ‘space junk’.
“At the moment we have voluntary codes — we need to ramp up the laws to somehow manage the pollution that we are causing in space,” Professor Freeland said.
“The more junk we have in space, the more difficult it will be ultimately to engage in space activities, because once something is in space it’s there for a long time, and it’s travelling at very fast speeds.
“So even if it’s a really tiny object, its kinetic energy is such that if it collides with something it will destroy it.”
Professor de Zwart said the issue will become even more urgent as more companies like Swarm Technology look to join the space race.
“Space law is … groaning with age, as it were,” she said.
“Unless the domestic laws move very quickly to keep up with it, you will have more and more launches of this kind.”