MarIus

1.2 History and background

In the 20^th century two groundbreaking technologies rose forth: aviation and the modern use of rockets. The Wright-brothers achieved sustained and controlled flight in 1903, and started a new era of science, transportation, and warfare.^{(1) Tom D. Crouch, “Wright flyer of 1903”, Encyclopedia Britannica. https://www.britannica.com/topic/Wright-flyer-of-1903. Last accessed May 13th 2024.} The early work on modern rocketry was inspired by visions of humankind flourishing outside terrestrial boundaries, often influenced by political and idealist motives with roots in philosophy. One such pioneer of modern rocket science was Konstantin Tsiolkovsky.^{(2) Glenn H. Reynolds and Robert .P Merges, Outer Space: Problems of Law and Policy (Milton Park, Oxon: Routledge, 2019), 1.} Tsiolkovsky, a Russian, often referred to as the father of human spaceflight^{(3) “Konstantin Tsiolkovsky”, Science & Exploration, European Space Agency. https://www.esa.int/Science_Exploration/Human_and_Robotic_Exploration/Exploration/Konstantin_Tsiolkovsky. Last accessed May 20, 2024.}, believed space to be a domain in which the human species could free itself from the limitations and injustices of a world where resources were very unevenly distributed. This broadcasted line of thinking was noticed by some: In 1917, the Bolsheviks seized power of the Russian Empire and started a new era of politics and way of living. Tsiolkovsky’s values proved a good fit amongst the leaders of the newly forged Soviet Union. They viewed the novel rocket science as an important part of developing the union, and thus of spreading communism.^{(4) Reynolds and Merges (2019), 2.}

In 1932 Czech jurist and university teacher Vladimir Mandl wrote his famous treatise “Space Law: A Problem of Space Flight”. The work was heavily inspired by Dutch philosopher and legal scholar Hugo Grotius and his work Mare Liberum; “Freedom of the High Seas.^{(5) Hugo Grotius, Mare liberum sive de iure quod Batavis competit ad Indicana commercia dissertatio. Leiden: Elzevier, 1609; Hobe (2019), 40.} Mandl, having a background in air law, rightfully pointed out the genesis of new issues as a result of the potential launch of rockets into outer space.^{(6) Peter Jankowitsch, “The background and history of space law”. In Handbook of Space Law, ed. Frans von der Dunk, Fabio Tronchetti (Northampton: Edward Elgar, 2015), 1.}

Some 20 years after World War I, the world was thrown into a second war, this one more devastating than any previous or subsequent conflict. Here, the development of the V2-rocket, forerunner to modern rocketry, demonstrated the immense potential of rocket science. Although a terrifying weapon – built by the coerced labor of concentration camp prisoners; thousands of whom died during its construction – the V2-rocket was nonetheless a scientific breakthrough, and a large number of them were captured and used in the following space exploration programs of the Soviet Union and the United States.^{(7) “V2 rocket”, Encyclopedia Britannica. https://www.britannica.com/technology/V-2-rocket. Last accessed May 20, 2024.} The subsequent evolution of rocket technology would soon be intertwined with yet another monumental scientific achievement: the splitting of the atom. Despite on one side displaying a huge potential as an energy source, the sinister other side of the nuclear marvel revealed an unparalleled destructive potential. The age of the atom had dawned, and soon with it, an ever-more escalating nuclear arms race between the United States and the Soviet Union. In the aftermath of the foregoing brutal world war, a cold war between these major superpowers would push the boundaries of human ingenuity further than ever before; this time aiming for the stars.^{(8) Jankowitsch (2015), 3.}

In the fall of 1957, the Soviet Union’s successful launch of Sputnik I into Earth orbit marked the beginning of the space age. Yet again, the marvelous achievement of placing a man-made object into controlled orbit had a darker side: the potential of space becoming a new front in the nuclear arms race.^{(9) Ibid.} Realizing what this could lead to, the global community raised their voices, calling for the peaceful use of outer space. There were other issues as well, such as the ramifications in international law following the existence of satellite technology. For instance, following the launch of Sputnik I, there were major concerns addressed regarding violations of airspace sovereignty.^{(10) W. McDougall, “… the Heavens and the Earth: A Political History of the Space Age 185-189 (1985)”. In Reynolds and Merges (2019), 4-5.} There were also concerns regarding the scope of reconnaissance potentially being conducted by such satellites, exemplified by the influence these debates had on U.S strategy at the time.^{(11) Ibid.}

In the late 1950’s, a response to the various concerns and issues following the intersection of the newborn space age and developing cold war would eventually manifest itself through the forming of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS).^{(12) Established as an ad hoc committee in 1958 through Resolution 1348 (XIII) and made permanent in 1959 through Resolution 1472 (XIV), both available online: https://www.unoosa.org/pdf/gares/ARES_13_1348E.pdf and https://www.unoosa.org/pdf/gares/ARES_14_1472E.pdf. Last accessed March 10, 2024.} Established to govern the exploration and use of space for the benefit of all humanity, the Committee faced the difficult task of navigating the line between cooperation and rivalry between the various factions engaged in the space realm. The aim was to create a framework that would keep space as a realm for peaceful exploration and scientific growth, free of the hazards of armed confrontation and nuclear war.^{(13) Jankowitsch (2015), 4.} The early events of the space race thus worked as a catalyzer; highlighting the need for international agreements to prevent space from becoming another battleground.^{(14) Ibid. 2.}

Subsequently, in the 1960’s and 70’s the COPUOS developed the corpus juris spatialsis – “the body of space law” – as we know it today, through three identified phases. The first phase consisted of a series of non-binding UN resolutions and declarations, laying the groundwork for the second phase.^{(15) Frans von der Dunk, “International space law”. In Handbook of Space Law, ed. Frans von der Dunk, Fabio Tronchetti (Northampton: Edward Elgar, 2015), 38.} The second phase is often referred to by the entry of the space treaties, notably the Outer Space Treaty of 1967, which built on the work of the previous phase and imposed binding obligations upon the Parties to them.^{(16) Ibid. 39.} In the third phase, beginning shortly after the fifth and unsuccessful space treaty [the Moon Agreement of 1979], non-binding resolutions became once more the instrument of the COPUOS, and virtually continues to be so presently.^{(17) Ibid. 41-43.} No space treaties has since been adopted.

In addition to non-binding instruments, the legal sphere of space activities has since the last UN treaty seen an increase in other instruments and agreements, specifically national legislation and multilateral agreements. Numerous countries now have legislation on space activities, four of them specifically regarding space resource activities.^{(18) Masson-Zwaan and Sundahl (2023), 389.} Furthermore, multilateral agreements such as the U.S Artemis Accords are becoming a notable force in shaping the space industry. These unilateral and multilateral instruments constitute a shift from the consensus-based instruments of the COPOUOS and are arguably reflected by the political influence of the countries behind them. The interpretation of the existing legal framework with regards to ownership of natural resources is a central development. Some States are now stipulating such rights to ownership.^{(19) See e.g U.S Space Resource Act (n. 7), § 51303.} The view on the interpretation of the non-appropriation principle with regards to ownership of natural resources in space has been made clear by a number of States, possibly contributing to a shift in its legal implications.^{(20) As shown in section 2.6.3 on Developments in the UN, infra.}