International law beyond the Earth system: orbital debris and interplanetary pollution
Elena Cirkovic Helsinki Institute of Sustainability Science (HELSUS), University of Helsinki

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The ongoing environmental degradation of outer space is unpredictable and disruptive. A new understanding of the cosmic and post-anthropocentric politico-juridical space – or the ‘cosmolegal’ – might provide an alternative framework. The ‘cosmolegal’ argument responds to the ‘cosmic’ need to rethink the anthropogenic self-understanding of humanity’s law because humanity has been approaching the ‘infinity’ of space with a legal consciousnesses firmly rooted in terrestrial human values. This approach needs to change due to the unknown and known consequences of the rapidly expanding human presence in outer space.

I will put some trust in preceding navigators – there snow and frost are banished; and, sailing over a calm sea, we may be wafted to a land surpassing in wonders and in beauty every region hitherto discovered on the habitable globe. Its productions and features may be without example, as the phenomena of the heavenly bodies undoubtedly are in those undiscovered solitudes. What may not be expected in a country of eternal light? I may there discover the wondrous power, which attracts the needle and may regulate a thousand celestial observations that require only this voyage to render their seeming eccentricities consistent forever. I shall satiate my ardent curiosity with the sight of a part of the world never before visited, and may tread a land never before imprinted by the foot of man.

(Frankenstein, or the Modern Prometheus by Mary Wollstonecraft (Godwin) Shelley (1817))


In 2019, the Israeli lunar lander Beresheet attempted to touch down on the Moon and crashed into the surface. Beresheet carried a tiny capsule on board filled with dehydrated tardigrades. Tardigrades, known colloquially as water bears or moss piglets, are a phylum of water-dwelling eight-legged segmented micro-animals known to withstand very extreme environments.1 It was not likely that these life forms would have contaminated the Moon, as the tardigrades were exposed to vacuum, temperature cycling and radiation. This incident, however, reopened a long-debated question: who should have a say in what we send to space? What is the current hierarchy of objectives and interests of human activities in outer space? Or, what is the dominant purpose of human activities in outer space?2 How do we observe, define and understand these aspirations? And what is the relevance of current international legal regimes in monitoring ongoing and future anthropogenic activities in outer space?

Techno-scientific advances are combining with the intensifying privatization of human activities in outer space, including private companies launching satellite constellations, planning future microgravity platforms and human settlements,3 space tourism and asteroid mining.4 The anthropogenic contamination of space takes several forms. Near-Earth space is becoming cluttered with space debris, whether probes sent by governments for strategic purposes or test equipment launched by a growing number of commercial companies. Solar system exploration raises the possibility of contaminating planets other than the Earth – and planetary satellites within the solar system – by terrestrial organisms. Such exploration also includes the possible contamination of the Earth by materials returned from space carrying extraterrestrial organisms. While it seems that the risk posed by returning a potentially dangerous biological entity (eg, a virus-type, microorganism, etc.) is quite low, and while if such biological entities exist they would likely be killed in a sterilization process,5 the effects of extraterrestrial organisms on Earth are still unknown.

As human activities cause further environmental degradation, the results – such as orbital debris, or interplanetary contamination – can be unpredictable and disruptive.6 A new understanding of the cosmic and post-anthropocentric politico-juridical space, or the ‘cosmolegal’,7 could provide an alternative framework for the regulation of human activities in outer space.

The ‘cosmolegal’ argument responds to the ‘cosmic’ need to rethink the anthropogenic self-understanding of humanity’s law. In short, humanity has been approaching the ‘infinity’ of space with a legal consciousnesses firmly rooted in terrestrial human values, and this approach has to change if law is adequately to respond to the unknown and known consequences of human presence in outer space. The term ‘cosmolegal’ merges law with cosmology – a branch of astronomy that involves the scientific study of the large-scale properties of the universe as a whole.8

This article is divided into two main substantive sections. In Section 2, ‘Beyond the Earth system’, the article introduces the lex lata applicable to orbital debris and interplanetary contamination. It also refers to ongoing proposals for mining asteroids and celestial bodies. In Section 3, ‘Cosmolegality’, the article introduces a conceptual framework for an ontology of law and human self-understanding that is necessary for legislating outer space.

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.


We do not (yet) have a system of rules and norms that adequately represents ‘our’ universe – and it is almost certain that modern international law cannot satisfy the requirement for such a system. Nevertheless, since global society has identified international law as a tool for guiding the behaviour of states, it is important to address the current basic and more complex variations of international law addressing outer space. Current global law is anthropogenic and inter-national – not cosmic, and nor indeed can it ever be. The current paradigm is too limited for the complexity and unpredictability of what faces it.

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

2.2.1 Space Sustainability Rating (SSR)54

There are several ongoing attempts to address the issue of environmental pollution in orbital space and to foster global standards in waste mitigation. For instance, the World Economic Forum has chosen a team led by the Space Enabled research group at the MIT Media Lab, together with a team from the European Space Agency (ESA), to launch the Space Sustainability Rating (SSR), a concept developed by the Forum’s Global Future Council on Space Technologies.55

Currently in its early implementation stages, SSR aims to promote mission designs and operational concepts that avoid an unhampered growth in space debris. It promotes a future where environmental review would be taken into consideration during the early stages of design and development – an important idea since several companies are planning to launch mega constellations of satellites, activities that will increase spacecraft in orbit.

The SSR concept aims to create a voluntary system of regulation that operates on the basis of ‘encouragement’, aiming to ensure long-term sustainability by encouraging more responsible behaviour among countries and companies participating in space. It operates on the premise that it can create an incentive for companies and governments operating satellites to take all the steps they can to reduce the creation of space debris.56

Indeed, satellite operators have the capacity to design their satellites to produce as little waste as possible in Earth’s orbit – and the responsibility to do so. It is certainly the case that when satellite operators design their satellites, they can choose which altitude to use, and for how long their spacecraft will operate, which are important factors in mitigating risks: the same piece of debris that could cause serious damage to one type of spacecraft might do little harm to a spacecraft with a different configuration or orbital attitude. While there are uncertainties surrounding estimations of risk, there are efficient algorithms that can help to reduce uncertainties – especially Gaussian uncertainty distributions57 with other restrictions such as short encounter times.58 From the law and policy perspective, ongoing learning and decision-making requires close collaboration with other disciplines in the outer space sector.59

2.2.2 Planetary protection

‘Planetary protection’ is an approach that proposes to prevent contamination between Earth and other bodies in the context of space exploration missions. To ensure that scientific investment in space exploration is not compromised by cross-contamination, special care needs to be taken by all actors and stakeholders. The Committee on Space Research (COSPAR)60 has accordingly concerned itself with questions of biological contamination and spaceflight since its very inception. The COSPAR voluntary guidelines61 dictate how much biological material can be sent into space based on the destination. COSPAR maintains and promulgates this policy on planetary protection for the reference of spacefaring nations, both as an international standard on procedures to avoid organic-constituent and biological contamination in space exploration, and to provide accepted guidelines in this area to guide compliance with the wording of the OST and other relevant international agreements. COSPAR guidelines are not binding in international law. Generally, the basic mandate of planetary protection is to avoid biological and organic contamination of outer solar system bodies, in particular icy moons; to avoid jeopardizing the search for extraterrestrial life, precursors and remnants; and to protect Earth and its biosphere from extraterrestrial sources of contamination. The process of determining planetary protection regulations for a specific mission depends on the target body (eg Mars or the Moon); the type of encounter (eg orbiter or lander); and the specific goals (eg to see if the target body has/had life). Each mission presents unique contamination challenges and therefore has different requirements.

The importance of the Beresheet case, cited at the beginning of this article, is that it brought to light the lack of specific provisions for the activities of non-state actors, even if the ultimate responsibility rests with the launching states. In the Beresheet case, because the launch occurred in Florida, the US Federal Aviation Administration (FAA) had to approve the launch vehicle. The FAA reviews payloads that are being launched when it gives out licences, but the agency allegedly did not know about the tardigrades. Furthermore, in accordance with OST Article VI, it is the US State Department’s responsibility to make sure the US, and entities within the US, adhere to the OST. Israel also had the responsibility of approving the payload, since the lander was built and operated by an Israeli non-profit called SpaceIL. In accordance with current international law, the Beresheet activity was legal. However, that is precisely the problem: the case demonstrates that law needs to evolve with the increasing activities and the plurality of objectives in space pursued by both state and non-state actors. While Article I OST allows for space exploration and the use of outer space, including the Moon and other celestial bodies, it is not clear that this specific mission was carried out for the benefit and interest of all countries, and while Beresheet was a private enterprise, under Article VI of the OST, Israel could have been held responsible for any damage caused by the Israel-based private company: Israel was the launching state, as defined by the 1972 Convention, as was also the US.

While Article IX of the 1967 OST specifies that states parties to the treaty shall conduct exploration so as to avoid harmful contamination, the ‘harmful contamination’ in this case is unclear, as the tardigrades most likely did not survive their destination.62 In addition, it is not clear that tardigrades in a cryptobiotic state on the Moon would cause potentially harmful interference with ‘activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies’.63 The problematic nature of the Beresheet action resides precisely in the uncertainty involved and in the fact that the choice to include tardigrades was allegedly a private decision.64 In a hypothetical future case, Earth organisms could impact upon and/or even erase traces of extraterrestrial life. Similarly, humans do not yet know what would happen if alien organisms were to be introduced into Earth’s biosphere. Would a close relationship be obvious to all, or would extraterrestrial life be so alien as to be unnoticed by both Earth organisms and human defences – and with what implications?

For now, NASA, for instance, checks biological materials being sent on each mission to the lunar surface, and while this oversight is not mandated by international law, most space-faring nations adhere to the policy of planetary protection under guidelines established by COSPAR. What, however, do such activities imply for the future of interplanetary protection? In an attempt to address the potential implications of the evolution and intensification of human space exploration, NASA recently adopted the Artemis Accords, which it proposed in 2020 to establish a common set of principles to govern the civil exploration and use of outer space.65 The Accords need to be taken into consideration as emergent and relevant state practice since the document is intended to be a tool to reinforce a specific interpretation of certain provisions in OST,66 especially Article IX.67 Additionally, in order to directly affect the interpretation of the OST, the practice in question should also be shown to establish the agreement of the parties of the OST as per the Vienna Convention on the Law of Treaties (VCLT).68 However, the discrepancy between the signatories to the Artemis Accords (eight at the time of this writing) and the parties to the treaty that the Accords aim to interpret (OST: 110 states) is wide, and at the moment they are non-binding.

A section of the operative paragraphs of the Artemis Accords aims to progress international space law by promoting interpretations of the OST concerning lunar heritage protection, space resource extraction, and the separation and coordination of space activities to avoid collision or interference (‘deconfliction’ of space activities). Section 9 of the Accords states that signatories: ‘intend to preserve outer space heritage, which they consider to comprise historically significant human or robotic landing sites, artifacts, spacecraft, and other evidence of activity on celestial bodies in accordance with mutually developed standards and practices’.69 There is no mention of the lunar environment as requiring protection in and of itself.

In this respect, the Accords stand in contradiction to the Moon Agreement, which has only 19 signatories. The Moon Agreement70 reaffirms and elaborates on many of the provisions of the Outer Space Treaty as applied to the Moon and other celestial bodies, providing that those bodies should be used exclusively for peaceful purposes, that their environments should not be disrupted, and that the United Nations should be informed of the location and purpose of any station established on those bodies. In addition, the Agreement provides that the Moon and its natural resources are the common heritage of mankind and that an international regime should be established to govern the exploitation of such resources when such exploitation is about to become feasible. The US has neither signed nor ratified the Moon Agreement. Australia, one of the parties to the Moon Agreement, has.

Signatories to the Accords also: ‘affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty’.71 This arguably does not clarify but further obfuscates the meaning of ‘extraction’ and its relationship to ‘national appropriation’, because the document does not specify how private actors intend to use the resources. The Accords rely on the Lotus dictum,72 whereby they do not expressly state that space resource extraction is legal, but that such activity would not amount to national appropriation (as prohibited under Article II of the OST).

The Accords provide detailed guidance on the establishment and operation of ‘safety zones’ around lunar installations. In these ‘safety zones’ lunar activities would be subject to specific notification and coordination procedures to reduce the risk of collisions or interference. However, arguably this approach potentially runs counter to the principle of non-appropriation of celestial bodies under Article II of the OST. The meaning of ‘safety zones’ is not yet clear and nor is whether it would imply a de facto appropriation by a state of a ‘zone’ (for example, a delineated zone on the Moon’s surface). Furthermore, Article I, paragraph 2 of the OST provides that: ‘[o]uter space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind’, and it is not clear what this would constitute in the ‘safety zones’, or indeed in respect of any other form of occupation of the lunar surface below and around equipment or with respect to installations on the Moon.

The role of settlements on other planets is also increasingly unclear in the context of mining asteroids and celestial bodies.73 In contrast to the greater understanding of outer space as a vulnerable environment, the economic interest in the mining of asteroids and celestial bodies focuses on the new delineation, ownership, privatization and extraction of space resources. For instance, the Luxembourg Draft Law on the Exploration and Use of Space Resources74 makes a link between the exploitation of space resources and that of resources on the high seas, stating ‘There is an even closer analogy in legal terms between space and the sea’ (Article 1). It continues, ‘Space resources are appropriable, in the same way as fish and shellfish are, but celestial bodies and asteroids are not, just like the high sea is not’. The same norms of non-appropriation are recognized in UNCLOS in res communis areas, where states and private entities have free access to common areas but cannot appropriate them. (The US has not ratified UNCLOS.) While the OST prohibits the ownership of celestial bodies, it does not explicitly mention the potentially extracted resources, which the Luxembourg law interprets as ‘Les resources de l’espace sont susceptibles d’appropriation’.75

Similarly, the US Space Resource Exploration and Utilization Act of 201576 represents an example of emergent national policies and laws promoting the exploration, exploitation and utilization of space resources. Nevertheless, while the enactment of national law may complement international space law and might facilitate its development, such national law still needs to comply with the international obligations of the state, and both Luxembourg and the US are party to the OST.

To reiterate, in accordance with lex lata, states have international responsibility for the space activities of ‘national’ private entities. Additionally, ‘launching states’ are liable for any damage caused by their space objects on/to the surface of the Earth or to aircraft in flight and for any damage caused in outer space to the extent that the damage was caused by the fault of the launching states. These international obligations have two important implications for commercial space ventures, particularly during the launch, transit and return segments of commercial space mining ventures. Ideally, ventures should comply with the provisions of the OST, and the ‘appropriate’ state would presumably take steps in its ‘continuing supervision’ of the activity to ensure this compliance.

The legality of all aspects of a commercial space mining venture must be assessed, and most notably, the effects of the freedom of exploration and use and the principle of non-appropriation on the exploration and extraction segments of the operation, as well as of the ‘province of all humankind’ and ‘common heritage of humankind’ doctrines on the exploitation segment.77

Concerning the latter, commercial prospecting, exploration, utilization and extraction of resources in outer space, as the common heritage of humanity, needs to be conducted for the benefit and in the interest of all humanity, as per Article I of the OST. This means that any granting of exclusive property rights for exploration and extraction activities is prohibited. However, there is an element of ambiguity regarding obligations – if any – for the dissemination of the prospecting and exploration data and of the materials extracted from celestial bodies. This ambiguity also includes the lawfulness of physically removing materials from celestial bodies for the purpose of commercial exploration and extraction. These activities are relevant to the issue of interplanetary contamination as they could result in adverse effects through contamination by the introduction of extraterrestrial materials to the environment on Earth.

The legal authorization of space needs to be compatible with the OST and with general international law. Instead of continuing the pursuit of state and commercial interests, if the outer space environment is to be approached with long-term sustainability in mind, a novel approach to international thinking is required. Such an approach would demand a step away from inter-national approaches and towards planetary and even cosmic framings, or, as is proposed below, a movement towards the cosmolegal.


In the previous section the discussion of space commercialization focused on its relationship to the current law. Another aspect of thinking about space law evokes what could be termed the ‘value of space’, as an extension of debates on Earth concerning the ‘value of the Earth system’ in contrast to ‘commercial profit’.

Outer space prompts human imaginaries of old concerning new worlds to be discovered and settled, adventure and futurism.78 This approach, as some have argued, stands in contrast to the ‘global commons’ approach to outer space and to other domains such as the deep seas. Cosmolegality, however, moves in a different direction.

Scientific, technological, and futuristic imaginaries and innovation do not have to carry negative connotations, and their overarching objectives can differ, reflecting the drives of scientific research, human curiosity and the expansion of knowledge to uses of ‘space for Earth’ or even ‘space for space’ in the context of potential settlements and other infrastructure. Thus far, these uses have been framed in economic terms.79 These uses focus on commercial profit, as was the case in some earlier approaches to space as a vast vacuum that can be used for anything: from the disposal of nuclear waste to the exploitation of energy supplies.80

In the face of this overwhelmingly ‘commercial space age’, the cosmolegal asks for the dislocation of international law from its distinctly local and territorial inter-national status and into the cosmos. While such a direction of travel might appear to be like a science fiction novel or proposal, it is fact that human activities in space are ongoing and intensifying and that what once seemed to be an imagined future is now a growing reality. The ‘cosmolegal’ addresses the ‘commercial space age’ with a normative proposal that seeks to extend ecological concerns to outer space.

Cosmolegality’s main critique addresses the fact that international law’s reliance on national sovereignty as the apex of not only planetary but now also cosmic power amounts to a reliance on an inapt, troublesome legal fiction. While the doctrine of sovereignty has a long history, contemporary national sovereignty purports to survey, to observe, to take in, and to archive, from a super-terrestrial height, the whole Earth and now, increasingly, the cosmos itself, in the service of market and military imperatives. This shift towards overseeing the cosmos consolidates state power, expressing an apparently illimitable sovereignty of the sovereign.81

Space law’s ongoing reliance on the existing structures of international law merely reinforces and extends the reach of the anthropocentric foundations of such sovereignty and of the practice of international law. And while there have been efforts to integrate other onto-epistemologies into international law, such as the traditional knowledge of Indigenous peoples, there has been no ‘unsettling’ engagement that disrupts its basic premises.82 Against this problematic ‘settlement’, the cosmolegal seeks to go beyond human laws to imagine and (in time) to develop a more-than-human/non-human law on planetary and cosmic scales, drawing on the complex systems approaches and engagements with ‘posthuman’ law.83

In addressing the question of how international law might extend into orbital and interplanetary space, which is governed by a different spacetime,84 the cosmolegal proposal does not imply that ‘planets’ or ‘asteroids’ would have the agency of humans – after all, agency does not require cognition.85 The cosmolegal challenges the current construction of distinctions and disparate attributes of the world – including the construction of agency. The inter-planetary domain’s apparent fracturing and subject-object division in human understanding, practice and regulation does not stem from its own inherent multiplicity, but rather from a reductive human understanding thereof. Accordingly, the cosmolegal, instead of being the mirror of a permanently split human subjectivity, would recognize and respond to the indeterminate nature of the world ‘beyond’ law, embracing the actuality of a materiality that is not defined by strict binaries of subject–object and human–non-human. The cosmolegal hypothesis is that law’s current presentation as performing and enacting interventions based on reasons in mental operations, or on incentives in utility calculations, or on moral decisions, is still too anthropocentric. Cosmolegality requires a different ontological approach86 and recognizes the possibility of many co-present variables.

Is it possible, however, to think beyond one’s own subjectivity? Arguably, the ‘agency’ of the non-human could also determine its capacity to impact the human. Opening up possibilities for a rethinking of the world of lawmaking in this direction is necessary because new activities (such as the mining of asteroids and celestial bodies), which continue to extend the borders of current international law into the cosmos, are becoming possible – along with the concomitant risks of unintended or unexpected reactions of various other-than-human environments. Is it safe for humans to settle Mars? Will humans bring other species to extraterrestrial settlements? What are the ethical implications of this? Again, the objective of cosmolegality is not to argue against the possibility of human species moving to other planets. Rather, it insists that human self-perception and relevant anthropogenic laws of societal organization will have to reckon with more than just human interests. The space environment is always reacting, and this is already evident in the congestion and increased risk of activities in Earth’s orbits. The question is: what is overlooked when space is constructed as a passive empty receptacle of human agency and its products.

Narrow doctrinal speculation carries significant risks.87 Therefore, the development of future-oriented space norms requires strong transdisciplinary cooperation. Even if the learning curves are steep, they are necessary.88

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.


The possible and indeed immanent future of humanity in outer space is an exciting prospect. There is no need to create a binary for and against space exploration, as this is not only a moot point, but also yet another determinist assumption concerning what is possible. Humanity as a multi-planetary species112 proposition, as such, is not the primary object of critique of this article and its proposals. The question, however, is: how and for what overall objective?

At the moment, as in previous historical instances where humanity has grappled with what was an unchartered territory, the sovereign state together with technology and commercial actors remain the dominant drivers of outer space exploration.

However, unlike the Earth system, outer space is still not an inherently friendly environment for human survival, and many variables are unknown. Nikola Tesla said that ‘[l]ife is and will ever remain an equation incapable of solution, but it contains certain known factors’.113 The combination of the known and the unknown has always been present in human thought, and as humanity continues to approach spaces beyond the Earth system, the applicable ‘rules of behaviour’ and their underlying ‘knowns’ will need to change accordingly. The central argument of this article is critical and normative and explicitly recognizes the complex web of active bodies and materials involved in understanding the actualities of the challenges facing all of life.

The cosmolegal should not be read as a policy or lawmaking proposal. There are too many obstacles to academic proposals for it to be such. Nevertheless, the cosmolegal points towards an alternative imaginary as a thought experiment and as a gesture in a decolonial exploratory direction. Normative and hypothetical arguments should precisely remain so because any prediction in social sciences and humanities is a pretence rather than something akin to an experiment that can be replicated or falsified. There are no concrete outcomes to this thought experiment, which is nevertheless rooted in a description of current gaps and contradictions in modern legal thought and practice.114 There is a practical need for further studies of the complex area of the public and private activities beyond the Earth system, and it is important to acknowledge that there are too many ways that the cosmos could be understood, and that there are too many sequences of percepts that one could have of the world. It is not possible to anticipate them all, and inclusion – genuine epistemic justice – remains centrally important.

Above all, at an immediate practical level, the cosmolegal proposal points to the urgent need for further studies of the complex area of public and private access to outer space and what these categories might even mean in a completely different spacetime, a spacetime completely unlike the international law spacetime that space law currently draws upon. The cosmolegal is an invitation to an overtly decolonial, posthuman and imaginative engagement with space as a site of multiple agencies and an assemblage of multiple ways of knowing – and not knowing.

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    However, there are more recent proposals that this should be 80 km. See

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    ‘For Educators’ (n 9).

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    Cirkovic, supra (n 6).

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    The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes. The Accords were signed on 13 October 2020 by the directors of the national space agencies of eight countries: the United States, Australia, Canada, Japan, Luxembourg, Italy, the United Kingdom and the United Arab Emirates. Ukraine, South Korea, New Zealand and Brazil have also become signatories, and the Accords remain open for signature indefinitely.

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  • 28

    Ideally, satellites would gradually drift down to lower orbits and burn up in Earth’s atmosphere. However, the higher the orbit a satellite is operating in, the longer it takes to move down and burn up.

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  • 30

    The thermosphere is the layer in the Earth’s atmosphere directly above the mesosphere and below the exosphere.

  • 31

    For a concise explanation of space debris for the general public see

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    Compendium of space debris mitigation standards adopted by states and international organizations A/AC.105/C.2/2016/CRP.16. See also

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    See, for instance a multinational

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    The term ‘space resource utilization’ refers to either in-situ resource utilization or commercial appropriation of space resources.

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    See also

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    National Standard of the Russian Federation, ‘Space Technology Items. General Requirements for Mitigation of Near-Earth Space Debris Population’ (GOST R 52925-2018, adopted by the Rosstandard Order No. 632-st of 21 September 2018).

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    Inter-Agency Space Debris Coordination Committee (IADC): Homepage: <> accessed 1 July 2021.

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    The International Organization for Standardization (ISO) at <> accessed 1 July 2021.

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    The International Telecommunication Union (ITU) at <> accessed 1 July 2021.

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    For instance, in the US, the FCC regulates satellite operators, mainly through governing the use of the radio spectrum shared with terrestrial broadcasters, while the Federal Aviation Administration authorizes rocket launches.

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    The Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187 (entered into force 1 September 1972) [Liability Convention] is unique in international law, being the only fault-based liability regime. ‘The Liability Convention was considered and negotiated by the Legal subcommittee from 1963 to 1972. Agreement was reached in the General Assembly in 1971 (resolution 2777 (XXVI)), and the Convention entered into force in September 1972. Elaborating on Article 7 of the Outer Space Treaty, the Liability Convention provides that a launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft, and liable for damage due to its faults in space. The Liability Convention also provides for procedures for the settlement of claims for damages.’

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    Jon McCarthy first defined the term artificial intelligence to describe machines that could ‘think’ autonomously.

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  • It is important to understand the distinctions between ‘autonomous’ technologies, and their purpose. This includes the level of autonomy that certain relevant technologies (deep-sea, outer space, warfare) have and how much of it is dictated by human programming. Machine Learning was discussed by

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  • See:

    European Space Agency, Advanced Concepts Team website <> accessed 16 April 2020:

    ‘In order to explore beyond the near-Earth environment and to the wider solar system, autonomous spacecraft (satellites, rovers, etc.) are required that can perform intelligent decision making and can adapt to unpredictability in the environment. This has motivated several projects into the design of robotic controllers for pinpoint landing, spacecraft rendezvous and docking, and satellite formation, typically using an Evolutionary Robotics approach or, more recently, machine learning. We also perform research into the automation of space mission design, the development of new learning algorithms, and natural language processing. Projects in these areas have led to contributions relevant to the wider AI community’.

  • 50

    Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 22 April 1968, 672 UNTS 119 (entered into force 3 December 1968) [Rescue Agreement].

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    Convention on Registration of Objects Launched into Outer Space, 6 June 1975, 1023 UNTS 15 (entered into force 15 September 1976) [Registration Convention]. See also

    For updates,

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    For general understanding of classic orbital elements, see for example the

    US Federal Aviation Administration (FAA)’s guide to orbits <> accessed 1 July 2021.

  • 53

    M Rathnasabapathy, D Wood, F Letizia, S Lemmens, M Jah, A Schiller, C Christensen, S Potter, N Khlystov, M Soshkin, K Acuff, M Lifson and R Steindl. ‘Space Sustainability Rating: Designing a Composite Indicator to Incentivise Satellite Operators to Pursue Long-Term Sustainability of Space’, 71st International Astronautical Congress (IAC) – The CyberSpace Edition, 12–14 October 2020 <> accessed 1 July 2021.

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    MIT Media Lab, Space Enabled Research Group, ‘Space Sustainability Rating (SSR)’ <,collisions%2C%20and%20unsustainable%20space%20operations> accessed 1 July 2021.

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  • 55



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    Rathnasabapathy et al., supra (n 53).

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    In theoretical mathematics, the branch of study concerned with probability is termed probability theory. In probability theory a normal (or Gaussian or Laplace–Gauss) distribution is a type of continuous probability distribution for a real-valued random variable. In probability and statistics, a random variable is a variable whose values depend on outcomes of a random phenomenon. The lack of recognition, in law, of possibility for random behaviour/uncertainty, is one of the disciplinary impediments in addressing phenomena such as the exponential growth of space debris.

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  • 60

    The Committee on Space Research (COSPAR) was established in 1958 by the International Council for Scientific Unions (ICSU) in order to, inter alia, promote scientific research in space on an international level, with an emphasis on the free exchange of results, information and opinions

    <> accessed 1 July 2021

  • 61

    Responding to concerns raised in the scientific community that spaceflight missions to the Moon and other celestial bodies might compromise their future scientific exploration, in 1958 the International Council of Scientific Unions (ICSU) established an ad-hoc Committee on Contamination by Extraterrestrial Exploration (CETEX). In 1959, this mandate was transferred to the newly founded Committee on Space Research (COSPAR), a transdisciplinary scientific committee of the ICSU (now the International Council for Science). COSPAR continues to provide an international forum to discuss matters of ‘planetary quarantine’ and later ‘planetary protection’. It formulated a COSPAR Planetary Protection Policy with associated implementation requirements as an international standard to protect against interplanetary biological and organic contamination, and after 1967 as a guide to compliance with Article IX of the OST.

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    Daley, supra (n 1).

  • 63

    Outer Space Treaty, art IX, Jan. 27, 1967, 610 U.N.T.S. 205 (entered into force 10 October 1967).

  • 64

    This is not the first time that a private entity has sent something into space without explicit permission. In January of 2018, a US aerospace start-up called Swarm launched four tiny satellites into space on an Indian rocket that lofted a total 31 payloads. Swarm had been denied a licence by the Federal Communications Commission (FCC), which expressed concern that the satellites were too small to track in space. But Swarm defied the FCC and launched its satellites anyway. In response, the FCC fined Swarm, and the company vowed to follow all proper licensing procedures in the future. For a view stressing the need for state authorization of private activities in space see

    Mayence JF , '‘Granting Access to Outer Space: Rights and Responsibilities for States and Their Citizens’ ', in F von der Dunk (ed), National Space Legislation in Europe: Issues of Authorization of Private Space Activities in the Light of Developments in European Space Cooperation , (Martinus Nijhoff Publishers , 2011 ) 74.

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  • 66

    Outer Space Treaty, art II, Jan. 27, 1967, 610 U.N.T.S. 205 (entered into force 10 October 1967).

  • 67

    Article IX reads in full: ‘In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.’

  • 68

    United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p 331.

  • 69

    The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids, Section 9, p. 4. NASA <>.

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  • 70

    Agreement Governing the Activities of States on the Moon and the Other Celestial Bodies [1979] UNGA 91; A/RES/34/68 (5 December 1979).

  • 71

    Outer Space Treaty, art II, Jan. 27, 1967, 610 U.N.T.S. 205 (entered into force 10 October 1967).

  • 72

    In Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), General List No. 141, International Court of Justice (ICJ), 22 July 2010,

    Judge Simma argued that a strict binary approach of ‘what is not prohibited is permitted’ stems from the outdated, nineteenth-century positivist approach of the Lotus case, which is excessively deferential towards State consent. See,

    S.S. ‘Lotus’, France v Turkey, Judgment, Judgment No 9, PCIJ Series A No 10, ICGJ 248 (PCIJ 1927), (1935) 2 Hudson, World Ct Rep 20, 7th September 1927, League of Nations (historical) [LoN];

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    Permanent Court of International Justice (historical) [PCIJ].

  • 73


    The Hague International Space Resources Governance Working Group, ‘Draft Building Blocks for the Development of an International Framework in Space Resource Activities’ <>.

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    For a critical legal perspective see,

    arguing that the current structure of international legal framework allows extraterritorial land grabs by granting states extraterritorial exploitation rights – or ‘the turning of the deep seabed and outer space into realms of commercial exploitation’.

  • 74

    Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace [Law of July, 20 2017 on the Exploration and Use of Space Resources], Mémorial A, n° 674, July 28th 2017.

  • 75

    In the unofficial

    English translation Article 1 reads as ‘Space resources are capable of being owned’ <> accessed 1 July 2021.

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  • 76

    The text of the

    Space Resource Exploration and Utilization Act is available from <> accessed 1 July 2021.

  • 77

    Current outer space law enshrines the collective exploration and exploitation of outer space through the concept of ‘province of all mankind’ (art I of the OST), as well as adopting a collective exploitation regime for the Moon and the celestial bodies, at least in principle (art 11 para 5 of the 1979 Moon Agreement). Article 11(1) of the Moon Agreement stipulates that ‘The Moon and its natural resources are the common heritage of mankind’. For proposals supporting extractive activities in outer space, see

    M Wall, ‘Asteroid-Mining Project Aims for Deep-Space Colonies’, (Jan. 22, 2013, 12:01 AM) <>;

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    ‘Asteroid Mining, Deep Space Industries’ <> accessed 1 July 2021.

  • 78

    Cirkovic E , '‘The Cosmolegal: Overcoming Hyperbole’ ', in P Goodrich, D Gandorfer & C Gebruers (eds), Research Handbook on Law and Literature , (Edward Elgar Publishing, 2021 ).

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  • 79

    Feichtner, supra (n 73). See also,

    M Weinzierl and M Sarang, ‘The Commercial Space Age is Here’ (February 12, 2021) Harvard Business Review <>

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  • 80

    Feichtner, supra (n 73).

  • 81

    Derrida J Bennington Geoffrey , The Beast and the Sovereign , (University of Chicago Press , 2008 ) 215.

  • 82

    Cirkovic, supra (n 6).

  • 83

    Grear A , '‘Introduction: “Staying with the Trouble” – Environmental Justice for the Anthropocene–Capitalocene’ ', in A Grear (ed), Environmental Justice , (Edward Elgar Publishing, 2020 ).

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  • 84

    In physics, spacetime is any mathematical model, which fuses the three dimensions of space and the one dimension of time into a single four-dimensional manifold. Spacetime diagrams can be used to visualize relativistic effects, such as why different observers perceive differently where and when events occur.

  • 85

    Bennet J , Vibrant Matter , (Duke University Press, 2010 ).

  • 86

    Burton I, Dube OP, Campbell-Lendrum D, Davis I, Klein RJT, Linnerooth-Bayer J, Sanghi A & Toth F , '‘Managing the Risks: International Level and Integration across Scales’ ', in CB Field, V Barros, TF Stocker, D Qin, DJ Dokken, KL Ebi, MD Mastrandrea, KJ Mach, G-K Plattner, SK Allen, M Tignor & PM Midgley (eds), Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation , (Cambridge University Press , 2012 ) 393 -435 A Special Report of Working Groups I and II of the Intergovernmental Panel on Climate Change (IPCC).

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  • 87

    Cirkovic, supra (n 6).

  • 88
    There are already many examples of transdisciplinary works on outer space, as academics, practitioners, the private sector and civil society are coming together to learn from each other in order to make concentrated proposals regarding pollution in outer space. The upcoming Satellite Constellations 2 Workshop SATCON2 has three objectives:
    1. Define and quantify resources, metrics, and collaborations needed to implement the SATCON1 recommendations, many of which will require substantial effort and funds to address.

    2. Engage astronomers and satellite operators collaboratively in exploring policy frameworks and developing policy points for operations in low Earth orbit (LEO).

    3. Increase the diversity of stakeholders and perspectives working to address both the challenges and the opportunities for astronomers, satellite operators, and all of humanity that are created by the industrialization of space.


  • 89

    Cirkovic, supra (n 6).

  • 90

    JD Martin, ‘Prestige Asymmetry in American Physics: Aspirations, Applications, and the Purloined Letter Effect’ (December 2017) 30(4) Science in Context.

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  • 91

    Blanco E & Grear A , '‘Personhood, Jurisdiction and Injustice: Law, Colonialities and the Global Order’ ' (2019 ) 10 (1 ) Journal of Human Rights and the Environment : 87 117.

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  • 92

    P Wilson and S Wilson, ‘Indigegogy’ (2015) [Keynote Presentation at Chiefs of Ontario, Charting Our Own Path Forward Education Symposium, Thunder Bay, ON]. Retrieved from <>.

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  • 94

    Cirkovic E , '‘Self-Determination and Indigenous Peoples in International Law’ ' (2007 ) 31 Am. Indian L. Rev : 375.

  • 95

    Casumbal-Salazar I , '‘A Fictive Kinship: Making “Modernity,” “Ancient Hawaiians,” and the Telescopes on Mauna Kea’ ' (2017 ) 4 (2 ) Native American and Indigenous Studies : 1 30.

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  • 96

    RF Mandelbaum, ‘Decolonizing Mars: Are We Thinking About Space Exploration All Wrong?’ (2018) Gizmodo <>.

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    See also

    C Prescod-Weinstein, L Walkowic, S Tuttle, B Nord and HR Nielson, ‘Reframing Astronomical Research through an Anticolonial Lens – for TMT and Beyond’ (2020) <>.

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  • 97

    Cirkovic, supra (n 6).

  • 98

    For Inuit and Chukchki Starlore see the research report at


  • 99

    Kosarev MF , '‘The System of the Universe in Pagan Siberian Indigenous Peoples’ 1999 ' (1999 ) 17 (6 ) Astronomical & Astrophysical Transactions: The Journal of the Eurasian Astronomical Society : 449 58.

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  • 100

    For a detailed study of the Yakutia and Sakha regions see

    L Yurievna Pisareva, ‘Transformations of Coastal Arctic Communities in the Russian Far East: Facts, Thoughts and Reflections’ (2020) Espaces et sociétés arctiques <>.

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  • 101

    For example, in eastern Siberia the skylore of the Cosmic Hunt interprets Orion as the hunter pursuing the reindeer associated with the Pleiades or Cassiopeia. The nearest parallel is found in a version much further to the west among the Sami, in which the hunter is again Orion and the animal being pursued is an elk or reindeer in Cassiopeia. The association of hunters with Orion or with the Pleiades is a feature shared by Yakut, Nganasan, Evenk and Chukchi–Inuit versions. In contrast, among the Evenk the animal pursued is a mountain sheep, while the three hunters are associated with the Pleiades. Similarly, in one of the Nganasan versions, the Pleiades are hunters who catch the reindeer with a net. See

    Y Berezkin, ‘The Cosmic Hunt’ (2005) 31 Folklore 79100, <>.

  • 102

    Jasanoff S , The Ethics of Invention: Technology and the Human Future , (W.W. Norton and Company, 2016 ).

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    Feynman RP , Quantum Electrodynamics , (Penguin , 1985 ) 10.

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    Cartwright N , How the Laws of Physics Lie , (Clarendon Press, 1983 ).

    Cartwright N , Nature’s Capacities and Their Measurement , (Oxford University Press, 1989 ).

  • 105

    Stengers I , Cosmopolitiques, vol. 1, La guerre des sciences , (La Découverte, 1996 ).

  • 106

    Stengers I , Au temps des catastrophes. Résister à la barbarie qui vient , (La Découverte, 2009 ).

  • 107

    Jasanoff, supra (n 102).

  • 108

    Cirkovic, supra (n 78).

  • 109

    In Canada, see the Van der Peet case, R. v Van der Peet [1996]. Critics of the Van der Peet test also point out that the test situates Aboriginal cultural practices in the past. Critics argue that both the ruling and the test rely on the notion that Aboriginal cultures and traditions are static and unchanging, and ignore the inherently dynamic, adaptive nature of culture. Legal experts and Aboriginal leaders have further criticized the court system for being ethnocentric and failing to apply the same criteria to non-Aboriginal populations. To do so would mean that only pre-contact European practices, for example, would be considered integral to Euro-Canadian culture.

  • 110

    Braidotti R , The Posthuman , (Polity Press, 2013 ).

  • 111

    For instance,

    Actor Network Theory (ANT) B Latour , Reassembling the Social: An Introduction to Actor-Network-Theory , (Oxford University Press, 2005 ).

    or other strands of posthumanist thinking, such as new materialisms (see for instance the seminal work on the topic,

    Barad K , Meeting the Universe Halfway , (Duke University Press, 2007 ).

  • 112

    Musk E , '‘Making Humans a Multi-Planetary Species’ ' (2017 ) 5 New Space : 46.

  • 113

    Tesla N , '‘A Machine to End War’ ' (1935 ) Liberty , February : 5 -7.

  • 114

    It is worth revisiting, in the conclusion, the seminal exposition of critical legal methodology by Duncan Kennedy in ‘A Semiotics of Critique’ and especially the guidance given in the Coda ‘There are four steps to follow as one gets ready to do some critical theory within law […]. First: Identify a distinction that drives you crazy when it is trotted out to justify things you can’t stand, and that you feel people don’t really believe in except when they need it to justify those things (to take an example at random, the distinction between adjudication and legislation). Second: Find in each half of the distinction the things, traits, aspects, qualities, characteristics, or whatever that were supposed to be located in the other half, and vice versa. […] Third: Put the question of whether the distinction you have just destabilized corresponds to a real division in reality on hold, suspend it, or put it in parentheses or in brackets […] – turn your eyes away from it, and instead try to figure out why the people who use the distinction work so hard to maintain belief in it in the face of their own doubts, which you can intuit by imagining that they are just as capable of destabilizing it as you are. Fourth: Trace the consequences of the distinction by hooking it up to one or many of the organicist, antinomian, paranoid structuralist, and semiotic moves discussed above. My own project, subject always to critical unravelling per supra, has been to ask about the distributive consequences of liberal distinctions, that is, to ask how belief in them contributes to inequality, domination, alienation, and unhappiness, in different measures for different people, for some much more than for others. Good luck’ (footnotes omitted) in

    Kennedy D , '‘A Semiotics of Critique’ ' (2001 ) 22 Cardozo Law Review : 1147, at 1189.

Contributor Notes

Email: The author’s research has been funded by the Arctic Avenue Grant, University of Helsinki and Stockholm University.