Lightyears behind : potential solutions for the interpretative ambiguities left by Article VI of the Outer Space Treaty

Abstract

Humanity may just be touching the edges of our own Solar System but space immediately outside of Earth – the orbital planes– is growing congested with space objects. The steady evolution of non-governmental space entities such as SpaceX has already contributed significantly to the space object population and this number is only expected to grow as constellations of thousands of privately owned satellites become more profitable activities. While the commercialisation of space has seen great leaps, the accompanying space law has only undergone small steps. Article VI of the Outer Space Treaty is central provision in international space law outlining State responsibility for non-governmental entities in outer space. The manner in which the due diligence obligations under Article VI have been interpreted in such a way that the current status quo carries a considerable risk of the outer space environment suffering from a “tragedy of the commons” in the shape of an unstoppable chain reaction of cascading, ultra-hazardous space debris. In light of this impending catastrophe and the growing need for sustainability in outer space, States will soon have to adopt near-universal standards of space traffic management and space debris remediation. Space law scholarship has frequently suggested that a central regulatory authority in the shape of the International Civil Aviation Organisation is the potential solution with the greatest chance of protecting the outer space environment from unsustainable practices. Opponents to a central regulatory authority advocate instead for a “bottom-up” approach to developing legal norms in space. Ultimately, this study will propose that the interpretation of due diligence under Article VI should be updated to reflect an obligation to conduct space traffic management and space debris remediation.