1.1 Definitions

Definitions used in this article are as follows: ‘outer space’ is referred to here as the region beyond Earth’s atmosphere that begins when an altitude of 100 km above Earth’s sea level is reached.⁹ The term ‘Earth system’ refers to Earth’s interacting physical, chemical and biological processes. This system also consists of the land, oceans, atmosphere and poles. ‘An orbit’ is defined as a regular, repeating path that one object in space takes around another one. An object in an orbit is called a ‘satellite’. A satellite can be natural, like the Earth or the Moon, and many planets have moons that orbit them. A satellite can also be human-made, like the International Space Station (ISS).

Planets, comets, asteroids and other objects in the solar system orbit the sun. Most of the objects orbiting the sun move along or close to an imaginary flat surface. This imaginary surface is called the ‘ecliptic plane’.¹⁰ ‘Celestial bodies’ are masses of natural matter located at or above an altitude of 100 km above Earth’s sea level. This term includes primarily planets, stars, natural satellites, comets, stars and asteroids.¹¹ ‘Space debris’ is defined as ‘all non-functional, artificial objects, including fragments and elements thereof, in Earth orbit or re-entering into Earth’s atmosphere. Human-made space debris dominates over the natural meteoroid environment, except around millimetre sizes’.¹² ‘Interplanetary contamination’ refers to biological contamination of a planetary body by a space probe or spacecraft, either deliberate or unintentional. Planetary protection experts frame contamination in terms of ‘forward contamination’, which refers to the transport of Earth-based microbes to other celestial bodies, and ‘backward contamination’, which refers to the possibility that extraterrestrial microbial life returned by a space mission could propagate on Earth.

1.2 Defining and introducing the ‘cosmolegal’

The proposed term ‘cosmolegal’ merges cosmology – a branch of astronomy that involves the scientific study of the large-scale properties of the universe as a whole – with law, to develop a different understanding of politico-juridical space, which is ordinarily Earth- and human-centric.¹³

The ‘cosmolegal’ seeks a shift in the legal imagination and understanding of the cosmos, not least by displacing the idea that the human is the central actor or apex owner of the Earth system and beyond. The proposed term recognizes that the human is only one actor in the ‘cosmos’. In operating this displacement and shift of focus, the cosmolegal also counters the inter-national aspect (the reduction of international law to its cartographic and terrestrial history and to its function as a regulator of matters between states) of current global legal architectures. Incursions into outer space, combined with ongoing challenges in the Earth system, such as global warming, mean that there is already a ‘cosmic’ and/or complex, unpredictable and planetary scope to issues that are already an inextricable part of human life. In contradistinction, then, to the current state-centric assumptions of international law, the proposal for a cosmolegal approach to lawmaking necessitates the participation of a far wider range of actors, requiring more inclusive and transdisciplinary processes that do not rely primarily on state-level decision-making.¹⁴

The cosmolegal proposal also relies, in part, on the conceptualization of an agency that extends beyond the self-reflexivity and intentionality of humans to include all non-humans or what/who humans have considered to be non-human.¹⁵ Accordingly, ‘anything’ that has capacity to affect anything else (material or biological) is agentic. One consequence of this viewpoint is that the cosmolegal does not attempt to provide a complete picture of world dynamics. Rather, it leaves a space of disjunction for future contingencies and uncertainties on Earth and in outer space, such as the unpredictable consequences of human activities there. The cosmolegal responds to the fact that reality is dynamic and unpredictable, as is the unknowable.¹⁶

The main hypothesis of this article, then, is that international legal responses to the increasing commercial activities in outer space require a new approach to law, grounded in an ontology of the cosmos. This need reflects tensions between the ontological assumptions of existing law and the nature of space itself, but also the uncertain and varied interpretations of existing laws and principles. Ambiguous (or even missing) definitions of what constitutes pollution in outer space and even of the ‘global commons’,¹⁷ leave open overly capacious margins for interpretation by individual states.

Detailed study of the meaning of the legal interpretation and/or enforceability of international law is beyond the scope of this article, however. The article focuses on the impact of human (or anthropogenic) impacts on the Earth system and the outer space environment – and the objective is to address the question of anthropocentrism in international law, its insufficiency for the regulation of outer space and how ‘cosmic’ legal thinking might offer a move away from the primacy of the human while embracing the uncertainty (as well as the agency) of the cosmic more-than-human environment. Current human knowledge does not have a complete understanding of how known and unknown configurations of outer space function. It is difficult (likely impossible) to capture all the unknowns of the cosmos in anthropocentric, anthropogenic international law, which emerges from particular forms of self-organization of the human species. The cosmolegal thus recognizes the particularity of international law, and characterizes it as a highly specific system that forms just one part of Complex-Adaptive Systems (CAS) and, even more broadly, as interrelating with Complex-Physical Systems (CPS).

CPS are systems that have fixed components and rules of operation, but can still have unexpected behaviours, which in turn can create new rules of operation and even new systems.¹⁸ (For instance, a climate system comprising of natural elements and operating under laws of atmospheric chemistry and physics can produce unexpected weather patterns/systems.) CAS, in contrast, are comprised of agents that have the capacity to learn and to adapt their behaviour to the behaviour or actions of other agents in the system. An example of a Complex-Adaptive System is a stock market in which agents buy and sell shares, and shift their strategies according to market conditions. This continuous learning and adaptation produces emergent patterns in the stock market, which in common terminology are called ‘bubbles’, ‘crashes’ and so on. In both, CAS and CPS, a rather small shift in initial conditions can have disproportionate outcomes.¹⁹ While these are mere models because humans do not yet have a fundamental theory or understanding of the ‘universe’, ongoing research and experience points to a conclusion: that even when the underlying rules for a system are simple, the behaviour of the system as a whole can be arbitrarily rich and complex. For instance, ecological or societal shocks do not always lead to an emergence of new solutions. Rather, both the systems in question and the anthropogenic regime actors (in this case, international law and lawmakers) recalibrate their practice. In such a process, the dominant practice becomes undermined because of societal or environmental changes (eg the exponential growth of space debris; rapid technological innovation; more human actors in outer space; climate change), and the novel practice eventually either fills the vacuum, or emerges as an entirely novel thread of thinking and practice.

In current space governance, the anthropogenic and anthropocentric novel, emergent and potentially dominant practice, however, does not have all the necessary societal, ecological, even cosmic understanding. Nor does it consider all interests and possible outcomes. As will be discussed below, this lack of consideration is evident in some current regime proposals for outer space, such as the Artemis Accords,²⁰ which promote human settlements on other planets but do not account for the potential mid- and long-term outcomes of such an action. Meanwhile, phenomena such as space debris and/or climate change have an impact on multiple societal sectors and production practices, and as a consequence can gradually diminish the feasibility of current practices and production models, including international law.

2.1 Orbital debris and commercial activities in space

The cultural, legal, political, economic, infrastructural and logistical processes of the contemporary space race have measurable environmental footprints on Earth and in outer space. Human-made infrastructures in space are linked to Earthly infrastructures, and both are products of interlinked geopolitics, socio-scientific-technological progress, economic interests and structural path dependencies, all of which, in turn, have contributed to environmental degradation.

The environmental impacts of activities in space unfold on multiple scales: local and stratospheric emissions from space launches; the placement of outer-space-related infrastructure in so-called peripheral places; and so on. The role of dominant political, economic, security and other legal and policy decision-making processes in determining whether the use of such infrastructure supports socio-environmentally constructive or destructive practices has yet to be determined. Indeed, in a recent presentation, outer space lawyer Joanne Wheeler referred to the sector narrative of ‘move fast and break things’.²¹

Importantly, space debris²² has an impact on the fragility of the outer space environment and is qualified as contamination strictu sensu.²³ Currently, there are multiple uncertainties in outer space governance and these concern: the accelerating activities of non-state actors in outer space; rapid technological advances allowing for ‘faster and cheaper’ access to the orbits (and beyond) and resulting environmental damage such as space debris; the question of the application of international and national laws to the future settlements on celestial bodies; and the ongoing commercial activities in space. Meanwhile, such activities focus on a utilitarian approach to space, while the roles of due diligence and responsibility, as these are enshrined in current laws (international and national), are still being debated and remain unsettled.

Increasing numbers of launches for the purpose of space commercialization or for mining asteroids and celestial bodies runs certain risks. Such activities, for example, could break up asteroids, damage other satellites and spacecraft, potentially harm astronauts, and even affect and endanger life on Earth. Earth orbits do not have a limitless capacity.²⁴ Functional spacecraft share the near-Earth environment with natural meteoroids and with orbital debris generated by past space activities. Natural meteoroids orbit the Sun and rapidly pass beyond the near-Earth region (or burn up in the Earth’s atmosphere), resulting in a fairly continual flux of meteoroids affecting spacecraft in Earth orbit.²⁵ Artificial debris objects (including non-functional spacecraft, spent rocket bodies, mission-related objects, the products of spacecraft surface deterioration, and fragments from spacecraft and rocket body breakups) orbit the Earth and remain in orbit until atmospheric drag and other perturbing forces eventually cause their orbits to decay in the atmosphere.²⁶ Since atmospheric drag decreases as altitude increases, ‘large debris in orbits above about 600 km can remain in orbit for tens, thousands, or even millions of years’.²⁷ When satellites retire from use, some will remain in orbit, adding to space debris.²⁸ In addition, in the upper atmosphere the increase of carbon dioxide (CO2), resulting from growing greenhouse gas (GHG) emissions, contributes to global cooling.²⁹ The decrease in thermospheric density³⁰ caused by an increase in CO2 concentration also reduces the amount of atmospheric drag that an orbiting object experiences, and hence allows for a longer orbital lifetime.³¹ An exponential growth in the debris population in Earth orbit poses a threat to the continued utilization of space, while satellites for information relating to climate change and anthropogenic effects on the planet monitor half of the 50 Essential Climate Variables (ECVs).³²

Meanwhile, clear legal mechanisms to regulate space debris prevention, mitigation and remediation – including issues that might arise from implementing debris removal mechanisms – have yet to be developed. In addition, various international legal regimes, such as international environmental law and outer space law, need to receive a ‘cyclical and interconnected’ treatment that could reflect the complex nature of the CAS and CPS that form and emerge from the interconnectedness between the Earth system and outer space. This complexity and emergence needs to become reflected in legal thought and practice.

Global concerns for the protection of the outer space environment are not new. In 1959, the United Nations General Assembly established the UN Committee on the Peaceful Uses of Outer Space (‘UN COPUOS’) as a permanent body, which had 24 members at the time, and reaffirmed its mandate in resolution 1472 (XIV).³³ COPUOS has also been a forum for debates on legal mechanisms relating to space debris mitigation, which also resulted in a 2007 compendium of space debris mitigation standards that have been adopted by states and international organizations.³⁴ The aim of the compendium is to inform states of the current instruments and measures that have been implemented by states and international organizations. However, the general orientation of the compendium concerns the use of outer space for the benefit of ‘humanity’ and of state and non-state actors, rather than addressing the protection of the space environment as an end in itself.³⁵ Furthermore, the status of the compendium is that of a ‘soft law’ set of guidelines, which are yet to be incorporated and interpreted by all states. This voluntarism is problematic: legal scholars have identified the lack of enforcement mechanisms of voluntary guidelines, and some suggest ensuring compliance through state-enforced legislation and regulations.³⁶ Furthermore, the guidelines will need to continue adapting to increasing understanding of the interconnectedness between the Earth system, the near-Earth environment, and beyond.

One of the impacts of orbital pollution is the potential destruction of functional satellites, which are necessary for the monitoring of various processes in the Earth system. Orbital space is used to, among other things, monitor a complex set of phenomena driving climate change.³⁷ Indeed, space activities are increasingly indispensable to humanity. Orbiting spacecraft serve vital roles as communications links, navigation beacons, scientific investigation platforms, and providers of remote sensing data for weather, climate, land use and national security purposes.³⁸ Each space mission and other observations and measurements provide models to better understand and predict how the biosphere, hydrosphere and atmosphere work and interact.

Despite the existence of the UN COPUOS and other relevant intergovernmental bodies, the international community has yet to define even the terms ‘exploration’ and ‘utilization’ as they apply to space and space resources.³⁹ Existing treaty law that governs human activities in outer space does not explicitly provide for the environmental protection of space. Space debris has not been defined, nor has its production been prohibited. However, as orbital populations increase, space debris increases, while certain states and their commercial operators are benefiting significantly, as is evident from the large constellations with strategic market barriers, which will pose significant problems for future actors seeking to operate in the orbits.

The hierarchy of current global regulation as relating to outer space activities is as follows. First, at the level of international organizations, the abovementioned Space Debris Mitigation Guidelines of the UN COPUOS provide important provisions for responsible behaviour and objectives for mitigating the generation of space debris. However, these guidelines are voluntary and not legally binding, although some spacefaring states have voluntarily integrated non-binding, international space debris mitigation measures into their national space laws and technical standards as mandatory requirements.⁴⁰ The guidelines can be coded into contracts and included in licensing, for instance, at the level of national agencies and laws. Second, international practice and standards (such as the Inter-Agency Space Debris Coordination Committee (IADC),⁴¹ the International Organization for Standardization (ISO),⁴² and the International Telecommunication Union (ITU)⁴³ Radio Communication Sector (ITU-R))⁴⁴ further elaborate (in line with UN guidelines) requirements and methods for space debris mitigation. These are also voluntary, and therefore, not legally binding. Third, national space agencies’ policies and – rarely – government policies⁴⁵ set requirements and methods for debris mitigation. These requirements are mandatory for Agency projects and/or for governmental entities. They may be extended to non-government entities, via, for instance, procurement contracts. National space legislation can⁴⁶ (but does not always) include space debris mitigation provisions to for example recall set principles, requirements or methods. If there are such space debris mitigation measures, then they become legally binding.

The Outer Space Treaty (1967) (‘OST’),⁴⁷ or the Magna Carta of outer space law, imposes binding obligations on states that have ratified the treaty. States have a duty under Article VI of the OST to authorize and to continuously supervise all activities in outer space conducted by both government and private entities. However, because there are no mandatory international guidelines or standards regarding the creation of space debris, no existing standards can be used to assess fault for the purpose of establishing international liability under Article III of the Convention on International Liability for Damage Caused by Space Objects (‘Liability Convention’).⁴⁸ Under the OST regime states can be held liable for damage caused by space objects to other space objects. When damage is caused to other space objects in outer space (Article III) or to persons or to property on the Earth or to aircraft in flight (Article II), liability is fault-based. But autonomous operations raise other barriers to the attribution of responsibility and liability for such activities.⁴⁹

Another applicable instrument is the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space (‘Rescue Agreement’).⁵⁰ The central concern of the Rescue Agreement is the recovery and return of space objects, usually space debris. In addition, Articles II and III of the Registration Convention⁵¹ provide that space objects have to be registered in a national register and also appear on a register maintained by the General Assembly. Article IV requires that data describing the name of the launching state(s), the designator of the space object, the date and territory of launch and the general function of the space object, as well as basic orbital parameters of the space object (including nodal period, inclination, apogee and perigee)⁵² are provided. While the orbital region is important because the debris flux encountered by a spacecraft varies greatly with orbital altitude and, to a lesser extent, orbital inclination,⁵³ these data do not provide an assessment of the functionality and current status of the space object and, thus, cannot serve as absolute criteria to determine its eligibility for removal.

Furthermore, the current legal framework does not provide clear standards to decide on whether an object constitutes space debris. What should the criteria for defining a space object as debris be: its functionality or its controllability? As it stands, space debris is defined as being all non-functional, artificial objects, including fragments and elements thereof, in Earth orbit or re-entering into Earth’s atmosphere. With regard to controllability, for example, the law could be aimed at prioritizing the removal of objects which cannot be attributed to a state registry – for example, because their origin cannot be identified – which would be the case for the majority of small debris fragments. Overall, the ongoing proposals for the ‘what to do with space debris’ problem have focused on: prevention, removal, monitoring and tracking. All of these measures require direct engagement with the industry as well as transdisciplinary expertise.

2.2 Proposals and approaches

3.1 Plural knowledges and space narratives

With respect to the current state of the art, the cosmolegal emerges from the ‘law-beyond-the-human’ and ‘posthuman’ approaches, as well as from complex systems thinking.⁸⁹ An interrelation of various subsystems in one complex system model cannot easily be addressed by conventional law and policymaking. Traditional disciplinary approaches are accustomed to addressing each ‘area’ individually in detail.

Importantly, for cosmolegality, scholarship addressing agencies of the non-human cannot ignore other ontologies, which include Indigenous scientific knowledge. Increasingly, scientists from historically marginalized backgrounds are pointing out the influence of the ‘western white male’ tradition in fields such as cosmology.⁹⁰ Science and Technology Studies (STS) and other approaches have also been discussing the role of science in maintaining and promoting existing dominant hierarchies.⁹¹

Indigenous peoples’ traditional knowledge has become a reference in various reports on Sustainable Development Goals (SDGs) and the Earth system. However, researchers often re-essentialize or romanticize traditional ecological knowledge (TEK) without an acknowledgment that ‘Indigenous peoples’ are not a monolithic constant: for instance, terminology such as ‘Indigegogy’ is largely situated in North America. (Indigegogy is a term coined by Cree Elders Peggy and Stan Wilson⁹² to frame Indigenous knowledge, literature and scholarship and decolonial Indigenous practice.) While institutions such as NASA have adopted initiatives including NASA’s Indigenous People’s Capacity Building Initiative (which assists Indigenous communities’ use of satellite remote sensing for natural and cultural resource management),⁹³ in the dominant and ongoing debates on the future of outer space law, Indigenous voices have not been included. The dominant discourse amounts to, in effect, a discourse of ‘outer space colonialism’: Mars, the Moon, and other planets are somehow assumed to be inherently available for the use of (‘advanced’) humanity.

The ‘colonizing’ of outer space evokes the frontier-focused (colonial) history of international law and the outdated construct of the ‘openness’ of empty spaces or res nullius.⁹⁴ While colonialism as such has been outlawed in modern international law, imperial semantics persist.⁹⁵ In response, some astronomers have warned against the use of colonial frameworks in relation to other planets.⁹⁶ The marginalized status of Indigenous peoples as non-state actors in international law has ongoing implications at the level of inter-governmental decision-making.⁹⁷

Importantly, however, this article cannot properly engage with or represent various Indigenous knowledges and sciences. That work needs to be done by Indigenous scholars and practitioners. Here is but one example in the Siberian context in order to draw out some implications for the cosmolegal.

In some Siberian traditional approaches, the universe is multi-structural and multidimensional.⁹⁸ It is comprehended in two main projections – vertical and horizontal, which quite often appear in a ‘mixed’ way, forming a single structure and a third spacetime dimension.⁹⁹ East of Yakutia, in the easternmost federal subject of the Russian Federation, Chukotka, the complex ethno-astronomical data of the traditional knowledge of Chukchi people has been essential to sea and tundra navigation. Their reliance on outer space for navigation across featureless terrains has resulted in an epistemic relationality that can range from more traditional forms of navigation to current uses of satellite data to monitor climate change.¹⁰⁰ Both ways of knowing, importantly, can be impeded if the LEO is overwhelmed with space debris.¹⁰¹ In this instance, the cosmos is an aid for survival and not a place to be ‘dominated’ or colonized.

This very brief and general overview of complex and intertwined literatures points in the general direction of how cosmolegality might be explored and developed. Central to these various literatures for present purposes is the fact that non-western scientific and traditional knowledges, as well as some western scholars, have moved from immanent critiques of law towards attending to its difficulties in recognizing non-human agentic significance and its implications for the generation of posthuman laws. The cosmolegal would be a contribution to this broader set of developments, drawing on self-reflective theoretical and methodological approaches critical of modern law.

Simply put, anthropogenic and anthropocentric law is designed to regulate human behaviour and is built on assumptions about how human beings behave and demonstrate agency, while non-human ‘objects’ are not recognized as having agency. Yet, to the extent that non-human beings, things or processes are not under total human control and act in unpredictable ways, with generative agency of their own, old assumptions about the uniqueness of human agency can no longer apply. The implications of this are more radical than the implications of approaches such as ‘rights of nature’, as rights discourses imply that some right has to be claimed, fought for and granted by a human agent. Bringing this argument into contact with the multiple complexities presented by outer space and by the agentic significance of planetary and extra-planetary forces leads to the need for something like the cosmolegal approach.

3.2 The role of transdisciplinary thought and practice

The cosmolegal requires the ‘undoing’ of current boundaries between the natural and social sciences. As scholars point out, scientists are situated in social settings that influence knowledge production concerning ‘nature’.¹⁰² A reference to physics provides just one example of the necessary dissolution of currently assumed disciplinary boundaries.¹⁰³

Physics requires social theorists to grapple with the unknowability and indeterminacy of the cosmos. Following Nancy Cartwright¹⁰⁴ among others, Isabel Stengers suggests that quantum mechanics prevents humans in principle from having exact knowledge of every particle. We must therefore treat particles as if they were independent of our interaction with them. Stengers argues that the limits of our knowledge in quantum mechanics are similar to the limits of knowledge of what another person is feeling and thinking.¹⁰⁵ She argues that her construct of the ‘cosmos refers to the unknown constituted by these multiple, divergent worlds, and to the articulations of which they could eventually be capable’ rather than to a particular territorial, geometric or geographic cosmos.

Idealizing assumptions about the world’s knowability and determinability according to ‘laws’ that humans perceive (and create) leads to frustration with the limits imposed by external forces. Stengers’ vision positions science as merely one of many ‘interests’, which are constantly being negotiated.¹⁰⁶ Unknowability, multiplicity and divergence would be central to cosmolegality’s methodological and epistemological commitments. The natural (or social) sciences cannot assume a ‘God-like view’.¹⁰⁷ The cosmolegal operationalizes this affirmation, and is aligned with increasing scholarly interest in critical approaches to anthropocentrism arising from the circumstances of climate change and environmental degradation more generally, which demands reflexivity in relationships between human and non-human. Therefore, the trans-disciplinarity called for here is not an assumption that other disciplines or sciences are more ‘practical’. There is already a dominant narrative of ‘practical’ works that get ‘things done’ emanating from forms of management in governmental, military or commercial sectors. Rather, such trans-disciplinarity requires a self-reflectivity and the displacement of specific interests identified as somehow being crucial to human nature: ownership, exploitation, utility.¹⁰⁸

Concerning the relationships between outer space, transdisciplinarity and, specifically, Indigenous knowledges, cosmolegality does not assume that ‘Indigenous’ peoples or knowledges have no interests in commercial activities. Such assumptions have been complicit in colonial impositions, which have often sought to essentialize Indigenous knowledge, and to produce a frozen rights approach to Indigenous practices to prevent economic competition with settler communities.¹⁰⁹ The theme of Indigenous ontologies and ecology is incredibly significant in the current calls for and development of environmental regulation in outer space. However, Indigenous knowledge cannot be treated either as monolithic, or as a ‘tool’ for non-Indigenous scholars and practitioners to advance their specific arguments and/or interests. That is not why it is a reference for cosmolegality. It stands as a source of particular knowledge that is helpful in ongoing human attempts to understand the ‘cosmos’, as it is important to: (1) acknowledge that such knowledge predates western theoretical approaches of ‘posthumanism’,¹¹⁰ ‘new-materialisms’¹¹¹ and so on; (2) emphasize that this knowledge, like any other, has not been static since its inception; and (3) acknowledge that these very contradictions and debates are products of colonialism.

Transdisciplinarity here means the de-colonization of international law, as much as it means an engagement with other disciplines and ontologies. In this sense, space is not just the new frontier, but is also a reminder of already present existential problems of humanity and ongoing studies of ‘human nature’. Such questions, however, are beyond the scope of this article.