As both public and private initiatives are exploring the potential of permanent human settlement in outer space, the legal and regulatory challenges of space colonisation and of smart cities in space need to be tackled.

Human travel to and occupation of outer space are becoming an ever-closer reality. Companies such as SpaceX and Blue Origin have already made their plans of going to space public, whilst space agencies such as NASA and ESA have their own plans from the Artemis Program – aimed at returning to the Moon as a stepping stone to going to Mars – to the Moon Village, respectively.

Commercialisation and privatisation of outer space, together with technology advances, are playing a central role in the revival of human use of space, in what has been called the “New Space” – the convergence of new technologies with space activities, leading to constellations of small satellites mainly in low-Earth orbit (LEO) and of high-altitude platforms (HAPS), reusable launchers, and increasing use of space technologies and data in downstream innovative offers and in the Internet of Things (IoT). Notably, space technologies are set to play a central role in smart cities through satellite Earth observation, positioning and navigation and telecommunications.

More than that, though, new emerging technologies are leading the way to innovative space activities, including space mining, human tourism and permanent human occupation of outer space. This is set to bring a new range of challenges.

Permanent human occupation of outer space can be done in several ways, from space stations orbiting celestial bodies – such as the current International Space Station – to stations placed on the celestial bodies themselves. However, in all of them, the challenge of how to sustain human presence in the long haul needs to be tackled. This includes technical, architectural, engineering, social, cultural, health and medicine challenges relating to lack of or low gravity, oxygen and natural light, close-fitting living areas, among others.

But a prior challenge needs to be dealt with first: the one relating to knowing whether permanent human occupation of outer space is permissible. Indeed, the use and exploration of outer space are not performed in a legal vacuum: a set of international treaties – the UN Space Treaties – establish the main provisions relating to space activities. Drafted in the ‘60s and ‘70s, during the Cold War, they do not envisage or expressly address human settlement of outer space. They do, however, contain a set of rules that are important in this respect, notably the Outer Space Treaty and the Moon Agreement.

The Outer Space Treaty states that outer space is the “province of all mankind” and “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. It has been pointed out that outer space is a “res communis” and not “res nullius”, meaning that the creation of “colonies” in outer space is not legally possible. However, this then raises the issue of whether human settlement of space is at all possible.

The Outer Space Treaty does indicate that “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies”. It also indicates that “its exploration and use shall be carried out for the benefit and in the interests of all countries”. This points to the legal possibility of establishing human settlements in outer space. Indeed, this seems confirmed by other provisions of the Treaty, stating that “The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited” and “All stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity.

A discussion has been had on how to reconcile this possibility of permanent human settlement in celestial bodies with their nature as “province of all mankind”, given the impact that the establishment of a permanent station on the surface of a celestial body has on the ability of others to also use and explore that part of the celestial body, thus also raising the risk of such occupation being a “national appropriation” forbidden by the Treaty. Indeed, though it seems clear that the stations (buildings, constructions, bases, pods) on the celestial body would be subject to the existing ownership rules (note that jurisdiction and control over objects launched into outer space, and over any personnel thereof, are of the State that registered the space object, and that “ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body”), this ownership cannot extend to the underlying surface of the celestial body.

The Treaty does not address this issue and, thus, it can be argued that the establishment of an international set of rules and procedures, akin for instance to the ITU rules for spectrum and orbital slots, would be advisable. ITU rules contain a procedure for granting the right to use an orbital slot and spectrum for satellites in orbit, under which, once the satellite ceases to be operational, the slot is considered vacant and can be occupied by another satellite, thus avoiding what could be considered “appropriation” of that slot. However, this approach may raise some challenges when it comes to human settlements, which could be permanent. As such, as it stands today, only a limited number of (at least) better defined limitations to human settlements in outer space, notably celestial bodies, seem to exist, such as the right of access, as seen above, or the avoidance of harmful interference or the prohibition to station weapons of mass destruction.

However, these limitations do not seem to be enough to assess whether occupation is “national appropriation”. Several international cases have addressed the issue of sovereignty (whereby sovereign acts include legislative, administrative and quasi-judicial acts, with the exercise of jurisdiction and local administration being particularly relevant) and hence resorting to these cases may prove relevant in assessing, case by case, whether space human settlements are appropriating celestial bodies. In any case, and in general, no legal claims or de facto acts that could be seen as “national appropriation” (such as, for instance, refusing the right of access in violation of the Outer Space Treaty) would be acceptable. Cooperative endeavours and benefit sharing may also play an important role in ensuring that no single national legal framework and jurisdiction is being exercised in a space settlement in such a manner as to raising the risk of “national appropriation” of the underlying surface (for instance, without collaborative multilateral agreements being set in place). An important approach in this point is the contractual framework (notably the intergovernmental agreement) governing the International Space Station, where each module is subject to the jurisdiction of its State and with intellectual property and criminal matters, among others, also being expressly addressed.

In this respect, a note shall be made: the UN Space Treaties are directed at States (and, in some cases, also apply to international organisations) but this shall not be interpreted as meaning that private companies going to space are not subject to these limits – indeed, private space activities are subject to national authorisation and supervision, and States are, in very broad terms, internationally responsible (and liable) for the activities of private entities under their jurisdiction. This means that a private occupation of outer space could also raise the risk of it being considered “national appropriation” by the country of the private entity. Ensuring that such private human settlements are duly authorised and supervised in line with the Outer Space Treaty is thus essential to mitigate risks of a potential “national appropriation”.

The Moon Agreement contains more specific provisions when it comes to the use and occupation of outer space, especially with relation to space mining, an important first step for the sustainability of human settlements in outer space. Notably, it states that “Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the Moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the Moon or any areas thereof”.

Note that the Moon Agreement prohibits not only appropriation of celestial bodies but also of mineral resources thereof. Despite this, the Moon Agreement has been ratified by an extremely low number of States and, thus, is not binding for most of the current space-faring nations. Such is so that countries such as the US and Luxembourg have already approved laws covering space mining and allowing the recovery and use of space resources.

The Building Blocks for the Development of an International Framework on Space Resource Activities, drafted by The Hague International Space Resources Governance Working Group, contain a set of best practices for a future international framework on space mining, under which “priority rights” for mining in a pre-determined location and for a maximum period of time should be set up and the benefits arising from the use of space resources should be shared, which could include, for instance, exchange of information, joint ventures and capacity-building actions, as well as an international fund. Notably, the document proposes that resource rights over the mined materials, as well as to products derived therefrom, can be lawfully acquired.

Note also that the UN Committee on the Peaceful Uses of Outer Space (COPUOS), in 2018 (UN Doc. A/63/20, para. 180), mentioned that “the new prospects for the colonization of the Moon and the use of the Moon as a base for exploring deep space raised the need for a frank discussion on whether the Moon Agreement still held valid solutions on those issues or whether it needed to be revised in order to adapt to the new frontiers of space law, taking into account the precedent-setting value of the United Nations Convention on the Law of the Sea [UNCLOS] and other international legal instruments concerning areas beyond national jurisdiction”. In this regard, a regime akin to the UNCLOS which governs mineral resources from the deep-seabed beyond national jurisdiction may indeed be an interesting precedent for space activities. As of today, however, legal rules for space mining are national and no international binding framework exists.

The status of humans living in space settlements is another issue that needs to be tackled, notably if they are to be considered astronauts under the Outer Space Treaty (where astronauts are considered “envoys of mankind”) and be entitled to the protections especially under the Rescue Agreement (Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space). Once again, though the Moon Agreement indicates that “any person” on the Moon (and other celestial bodies) is to be regarded as an “astronaut”, this Treaty was not widely accepted. Citizenship is also another issue that will have to be addressed once human beings are born in space settlements.

As it results from the above, several legal challenges exist for the creation of human settlements in outer space.

But another challenge is particularly relevant: the challenge of the specific provisions applying to the daily governance of space human settlements, as well as of the enforcement mechanisms of such rules. Because these new human communities will face specific social, economic and other challenges different from the ones we face on Earth, new rules will have to be devised that may have no parallel to what we have today in a life-sustaining planet as our own. Nevertheless, any such rules would have to be compliant with international space law, whilst international guidance (such as the UN Guidelines for the Long-term Sustainability of Outer Space Activities) may also play a relevant role in this respect.

Specifically, when it comes to the legal provisions applying to space settlements, no wheel-inventing is needed for many issues, not the least when it comes to resorting to new technologies for the operation of settlements in outer space. Even so, unlike human cities on Earth, the use of technologies in outer space is a condition for their installation, management and survival. It may even be a condition for meeting the emotional and social needs of their inhabitants through virtual reality. Without technologies, permanent human settlement in space would not be feasible. Cities in space will necessarily be smart cities.

When it comes to cities in celestial bodies, ensuring their “smartness” requires however a set of concerted efforts that goes beyond the installation of smart stations on the surface of the Moon or Mars. For instance, placement of constellations of satellites on orbit of the celestial bodies would be essential for ensuring remote sensing of the celestial bodies and collection of Big Data, providing telecom services needed for IoT and M2M communication and providing positioning and navigation for transportation. Such is so that, for instance, ESA has launched the “Moonlight Initiative” aimed at placing a constellation of telecommunications and navigation satellites around the Moon.

Artificial intelligence, robotics and 3D printing, on their turn, will be essential for space mining, construction and general operation of space cities, whilst also playing a central role, together with nano- and biotechnology, in agricultural efforts such as cellular agriculture. New technologies, including wearables, will allow the monitoring of the health of the human settlers, collection of relevant data and response to the new health challenges arising from living in Space. Technologies will also ensure that smart cities are environmentally sustainable, that materials and resources are efficiently reused within a space circular economy, and that no harmful contamination of outer space occurs, as required by the Outer Space Treaty. The development of a space economy in and among space cities may benefit from the use of cryptocurrencies and the use of blockchain will ensure, for instance, the tracking of resources from space mining as well as the management of the cities through decentralized autonomous administration, whilst satellites orbiting the celestial bodies can be used as nodes in the chain.  

Digitalisation, automation and connectivity are, thus, fundamental building blocks of smart cities in outer space and may bring a new set of challenges that may require a new or at least adapted approach. For instance, cybersecurity concerns will be central in all aspects of a space smart city and will most probably have to apply to sectors and areas not currently covered by Earth-bound legislation (for instance, construction of the space stations which increasingly relies on robotics), whilst data privacy and sharing may require a revised approach if necessary for ensuring the monitoring and safety of human cities in adverse outer space conditions and compliance with Outer Space Treaty provisions in carrying out space activities “for the benefit and in the interests of all countries”. Sector-specific frameworks applicable to sectors such as transportation, energy, health, banking, food, telecommunications, construction (including construction materials), among others, may have to be devised (with new services having to be regulated, such as oxygen provision and spacesuits supply) or, to the extent that Earth-defined laws are to be extended to space smart cities, then they may have to be revisited – always bearing in mind that such application shall not translate into “national appropriation” of the underlying surface.

All in all, policy, legal and governance frameworks will have to be set up or re-assessed for smart cities in outer space in order to ensure their secure, safe and social environmental sound construction and governance, whilst ensuring that outer space and celestial bodies remain “the province of all mankind” and are not nationally appropriated. Only then can we ensure that humans do become a multi-planetary species “for the benefit and in the interests of all countries” – and humans.

Helena Correia Mendonça

Helena Correia Mendonça

Consultora Principal | Vieira de Almeida
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