In 1961 the United Nations Office for Outer Space Affairs (UNOOSA) adopted Resolution 1721: International co-operation in the peaceful uses of outer space. The emerging field of space exploration required a legal regime that would facilitate the peaceful use of space between the public players in the international community. Essentially the five main treaties that evolved from this aimed to unite “space countries” and made no explicit mention of private entities (although at the time it must be understood that private venture into space was inconceivable and legal regimes were drafted to quell the rising military tensions between Russia and the USA). Resultantly, when existing outer space legislation was created, only government institutions were venturing into outer space. With today’s NewSpace environment and new stakeholders – particularly private companies – changes in legal approaches to both deep space and near-Earth activities are required.
Even more inconceivable is that despite humankind’s increasing ventures into outer space, both public and private in nature, none of the existing treaties has been amended to address the rise of private actors in space. The decades-old first-generation space laws were formed for a public policy intended for government use. During that era, private companies would operate in tandem with government-run agencies. Now the reality is that more private enterprises are launching space operations independent of their government institutions, which necessitates regulation of both private and public actors to solve issues such as limited launch permits, controlled operations licenses, questions of ownership and restriction of the spectrum and radio frequency allotments.
As a result of this lacuna, NewSpace enterprises may potentially ignore or even directly conflict the existing international space agreements. This can be seen in cases where private companies may escape liability due to treaties like the Outer Space Treaty (OST) ascribing liability for all governmental and non-governmental activities to the State. The existing provisions may also have the unintended effect of restricting NewSpace actors’ access to space resources, as is the case in jurisdictions where radio frequencies and spectrum allocation are granted to private companies at the discretion of the government.
According to the Secure World Foundation’s “Handbook for New Space Actors”, “a fundamental change is taking place in the space domain. The world is currently experiencing a rapid diversification and increase in the number of actors involved in space activities”. To this end, it is reported that at present, more than 70 States, commercial companies and international organizations are operating more than 2000 satellites in Earth’s orbit. This is indicative of the record number of countries and non-governmental entities investing in the space environment, the rationale being that space activities stimulate economic growth, deliver high returns on investment, generate new technologies and create jobs.
The space sector has long outgrown its initial status quo as an exclusive government expedition, bringing in massive commercial value for both private and public industry actors. In Africa, the space economy is valued at USD$7.37 billion and is estimated to grow up to USD$10.24 billion by 2024. As the African space economy is still under development and the legal landscape highly malleable, it is proposed that the continent takes this opportunity to develop a unique space jurisprudence, i.e. an institutional framework or so-called second-generation space laws that protect and include the role that NewSpace enterprises have to play in the development of an integrated African space economy. This can only be done by coordinating national space programs on the continent to make provisions for capacity building in NewSpace enterprises.
Of particular importance in capacity building would be the financing of private ventures, of which financial capacity is the most typical hindrance to accessing space on the continent. Pursuant to this, would be procedures for determining liability for damages caused by private actors as well as mechanisms promoting good space governance in necessitating social beneficiation of the ‘the common heritage of mankind’. It would also be required that there exist a continental awareness to respect the environmental integrity of outer space, which can frequently be mired by the commercially driven private actors. This can be achieved by instituting space debris mitigation guidelines for the de-orbiting of space debris and dysfunctional/decommissioned satellites, mandatory space traffic mechanisms for the avoidance of collisions that create space debris and the limitations on space objects launched to avoid congestion and promote equitable access to all African nations and all space-faring nations at large.
One proposal would be the facilitation of a Legal Advisory Project for NewSpace actors, such as that established by UNOOSA and Luxembourg in November of 2019, aimed at promoting awareness of legal and policy aspects as well draw the attention of authorities and private actors to topical space issues such as those briefly mentioned above. As government institutions are tasked with the responsibility of developing national space programs, coordination in this respect, overseen by a governing body like the African Union (AU) or the much anticipated African Space Agency, would ensure that NewSpace would continue to contribute to the “multidimensional interdependence that extends beyond the borders of Africa in the exchange of products and services”.
Such a project spans a 12 month period wherein there is a four-stage method aimed at (1) Baseline analysis of the existing national frameworks and their congruence with international law, (2) On-site legal advisory services (through a dedicated team of industry experts particularly space lawyers), (3) Follow up advisory services (aimed at addressing challenges and gaps in national frameworks as compared to international frameworks), and finally (4) An impact evaluation. The main aim of the UNOOSA/Luxembourg project is to support the universalization, adherence and implementation of the key components of a normative framework. This model can similarly be replicated on the continent especially pertaining to NewSpace actors. In light of a joint space agency, it necessarily follows that a coordinated approach to NewSpace enterprises would be worthwhile in fostering capacity building and growth of the African space industry.
It is a welcome development then that the inaugural NewSpace Africa Conference, to be held in Addis Ababa, Ethiopia on 9-11 November 2020, will attract leaders of national space agencies, the African Union Commission, NewSpace companies, representatives of National Ministries of Science and Technology and Communications, policymakers and government officials, satellite manufacturers and operators, venture fund representatives and investors, Earth observation companies/organizations, African tech hubs and many more.
Drawing from the preamble of the Outer Space Treaty, reference must be made to the desirability of engaging with multiple stakeholders. Throughout the Treaty, there is a general spirit of all-encompassing cooperation. The preamble declares that “cooperation will contribute to the development of mutual understanding and to the strengthening of friendly relations between states and people”. The remarkable aspect here is the reference to ‘people’ in addition to states, which indicates a desire on the part of the drafters to keep the scope of participation sufficiently wide enough beyond the confines of governments but to include private actors as well.
There is then a need to balance collective aspiration with legal development through consultation with stakeholders. It is commonly agreed that stakeholder engagement is a key characteristic of responsible innovation and good space governance. To this end, it would be the most auspicious opportunity for African space industry stakeholders to launch and spearhead an African Legal Advisory Project for NewSpace Actors as it is demonstrably clear that the pre-existing set of rules are gravely deficient, and new national frameworks must be determined to take full advantage of the influence that NewSpace enterprises will continue to have in the evolution of the African space industry.