Space Law 101 for beginners - An Introduction to Space Law

Space Law and the Space Treaties

This post x-rays the provisions of the major space treaties

SPACE LAW

Anne Agi

12/4/2021 12 min read

WHAT IS SPACE LAW?

Space Law is defined as the body of laws governing space-related activities, encompassing both international and domestic agreements, treaties, principles, conventions, General Assembly resolutions as well as rules and regulations of international organisations. It is that branch of international law/existing legal systems on earth which relates to outer space or which governs space-related activities, including space exploration, liability for damage, weapons use, rescue efforts, environmental preservation, information sharing, new technologies, and ethics, encompassing both international and domestic agreements, rules, and principles.

International Space Laws/Treaties

The body of space law is really international law. The international law rules and principles of Space Law are embodied in 5 international treaties, a set of principles governing outer space which have been developed by several nations.

These 5 Space Treaties are:

a.)      The Treaty on Principles Governing the Activities of States in the exploration and Use of Outer Space, including the Moon and other Celestial Bodies Oct 10, 1966 (The Outer Space Treaty).[1]

b.)      Agreement on the Rescue of Astronauts and Return of objects launched into outer space entered into force December 3, 1968 (The Rescue Agreement).[2]

c.)      Agreement governing the activities of states on the moon and other celestial bodies entered into force July 1984 (The Moon Agreement).

d.)      Convention on International liability for damage caused by space objects entered into force October 9, 1973 (The Liability Convention)[3] and

e.)      Convention on the registration of objects launched into outer space entered into force September 15, 1976 (The Registration Convention).[4]

Of the five space treaties, four of them are pretty widely ratified and the last one, the Outer Space Treaty (called the Magna Carta of space law), is not quite as popular but is really the document that all space lawyers turn to when we consider anything that happens in space.

1.    ‘The Outer Space Treaty’: The Treaty on Principles Governing the Activities of States in the exploration and Use of Outer Space, including the Moon and other Celestial Bodies 1966, is otherwise known as the Outer Space Treaty (OST). The treaty was considered by the UN Legal Subcommittee in 1966 and agreement was reached in the General Assembly in the same year (resolution 2222 (XXI)). The treaty was opened for signature on January 27, 1967, in the United States of America, the United Kingdom, and the Soviet Union and the treaty was entered into force on October 10, 1967. According to the United Nations Office for Outer Space Affairs database, as of January 1, 2020, 110 countries globally are parties to the treaty, with 19 of them being African countries; while another 23 have signed the treaty but have not completed ratification (with 10 out of which are African countries). It is the most widely considered space treaty in the continent being that 53 percent of countries in Africa have either signed or ratified the treaty.[5]

This Treaty is the foundation of international space Law for signatory nations. The Treaty contains the principles on space exploration as follows:

-       Space activities are for the benefit and must be in the interest of all nations, and shall be the province of all mankind. (Art I, para 1, OST).

-       Any country is free to explore the orbit and beyond. (Art I, para 2, OST).

-       There is no claim of sovereignty in space. Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. (Art II, OST). No nation can own space, the Moon or any other celestial body.

-       States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner. (Art IV, para 1, OST).

-       The Moon, planets and other celestial bodies can only be used exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. However, the use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. (Art IV, para 2, OST)

-       Any astronaut from any nation is an envoy of mankind and a signatory State must provide help to astronauts when needed, including emergency landings in a foreign country or at sea. (Art 5, para 1, OST). In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties. (Art V, para 2, OST).

-       States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the moon and other celestial bodies, which could constitute a danger to the life or health of astronauts. (Art V, para 3, OST).

-       Signatory States are each responsible for their national space activities, including private commercial endeavours (carried out by non-governmental entities) and must provide authorization and continuing supervision. (Art VI, OST).

-       Nations are responsible for damage caused by their space objects and must avoid contaminating space and celestial bodies. (Art VII, OST).

-       All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may betaken to assure safety and to avoid interference with normal operations in the facility to be visited. (Art XII, OST).

In Article IX, the OST talks of the contamination of outer space and imposes obligations on states to adopt appropriate measures to prevent changes to the space environment. In conjunction with Article IX, Articles I, III and IV of the OST outline the core environmental protections and the importance of maintaining the space environment and protecting it from space debris and nuclear contaminants.

Article IX also provides that “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’. Nigeria acceded on November 16, 1967.

2.   ‘The Rescue Agreement’: The Agreement on the Rescue of Astronauts and Return of objects launched into outer space otherwise known as the ‘Rescue Agreement’ (RA), entered into force on December 3, 1968. The Agreement, elaborates on elements of articles 5 and 8 of the Outer Space Treaty. Signatories agree to take all possible action to help or rescue astronauts and, if applicable, return them to the nation from which they launched. (Article 2, RA). Additionally, signatories agree to help return to the sponsoring nation any space objects that land on earth outside of the country from which they were launched. (Article 5(3), RA).

3.   ‘The Moon Agreement/Treaty’: This is the Agreement governing the activities of States on the moon and other celestial bodies which entered into force on July 1984. The agreement states that celestial bodies can only be used for peaceful purposes, (Article III, MT), that the exploration and use of the Moon shall be for the province of all mankind and shall be carried out for the interest and benefit of all nations (Article 4(1), MT) and are a common heritage of mankind (Article 11, MT); that they should not be contaminated, that the United Nations should always be made aware of any station on a non-earth body, (Article 5(1), MT); and that if resource mining on the Moon becomes feasible, an international regime must be established to govern how these resources are obtained and used. (Article 11(5), MT). The United States is not a signatory to the Moon Agreement. The controversial issue is the international regime to govern the exploration and exploitation of resources which maintains that the Moon is the Common Heritage of Mankind and insists on the equitable sharing of benefits derived from the exploitation.

This agreement is a compromise between developing countries and space-faring nations as it accepts the principle of the common heritage of mankind (CHM) along with the confirmation of the freedom of scientific investigative exploration and use of the Moon.

The Treaty reinforces Article 7 of the Outer space Treaty (OST) on the use of the Moon for peaceful purposes only and the aid of astronauts.

The MT gives us guiding principles on the activities of sovereigns in space. There is the language in the treaty about the use of outer space for exclusively peaceful purposes. While this sounds beautiful, the knotty issue is in the interpretation of what it means to use space for peaceful purposes. It has been virtually explained that peaceful purposes only prohibit aggressive use of military force: as long as a State is not engaged in naked aggression, then it is peaceful in its use of outer space. The same definition applies on the surface of the earth. There is another restriction, an absolute prohibition on the stationing of weapons of mass destruction in orbit. (Article 3(4), MT). There is therefore an interesting demilitarization of space.

4.   ‘The Liability Convention’ (LC) is the Convention on International liability for damage caused by space objects. It entered into force on October 9, 1973. 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 Convention also provides for procedures for the settlement of claims for damages.(Article II, LC). This Convention generally outlines international tort Law in Space and expands the principles of liability for damage caused by space objects introduced in the OST.

Two scenarios are envisioned by the Liability Convention (Article IV LC):

a.      Where a space object causes damage to the surface of the earth or an aircraft in flight; and

b.      Where a space object causes damage to some place other than the surface of the earth i.e. outer space or another celestial body. (Article III, LC).

In the first scenario, a State is held strictly liable for any damage caused by a space object launched even in the face of circumstances that are outside its control. If more than one State is responsible for the launch of the space object, then the States concerned would be held jointly and severally liable for damages.

In the second situation, fault-based liability is applicable.

Under the Convention, there are limited principles of exoneration: Gross negligence or complicity of the other party has to be proved. The Convention provides for a well-defined claims procedure, diplomatic negotiation and a Claims Commission.

5.   The Registration Convention (RC): This is the Convention on the registration of objects launched into outer space that entered into force on September 15, 1976. This Convention provides for the registration of all space objects by empowering the United Nations’ Secretary-General to open and maintain a space objects register of all space objects as well as nations operating a national registry. To this end, a space object must be registered either with the national registry or register kept by the UN Secretary-General. (Article II and II, RC). The register serves to identify the space object and links it to its State of origin/jurisdiction and monitors its activities. Registration contributes to the minimization of weapons being placed into orbit and the peaceful handle of outer space given the difficulty to identify a spacecraft otherwise. Registration establishes a link between a space object (and any personnel aboard) and a particular state for the purposes of jurisdiction, control and the return of astronauts set out in Arts V and VIII of the OST.”However, the implementation of the Convention is highly influenced by the reluctance of the states to disclose their real mission, especially in the case of military purposes, and this leads to widespread mistrust and insecurity. This reluctance is enhanced by the term “as soon as practicable” that refers to the responsibility of states to send particular information as to a space object which they have registered, which leaves a small “window” to send the information after the launch.

All the above treaties govern sovereigns in space but there is none that directly governs the activities of humans in space. This is, however, not to say that there is no type of criminal law that applies in space right now against individuals, or that space is a lawless place. This is because even though the treaties that exist govern countries and the activities of countries, they also provide another dimension. The treaties also make States responsible for the activities of their nationals. (Art VI, OST, for example).

To this end, most States have domestic regulations where they carefully watch and regulate the activities of those who plan to launch rockets and objects into space from their jurisdiction. Recently, NASA astronaut Anne McClain was accused of illegally accessing her spouse’s bank account during her stay on the International Space Station, bringing up a variety of legal issues and questions as to how to litigate a crime committed in space. NASA is currently investigating the matter.

CASE LAW: APPLICATION OF THE RESCUE AGREEMENT AND THE LIABILITY CONVENTION

The Cosmos 954

Cosmos 954 was a Soviet Radar Ocean Reconnaissance Satellite (RORSAT) powered by an on-board nuclear reactor. Its mission was to search for and track a US Naval Task Force. It fell from orbit on the 24th day of January, 1978 and contaminated Canadian territory with debris from its board nuclear reactor.

Canada’s Department of External Affairs referred to Article V of the Rescue Agreement in its first formal communiqué with the Embassy of USSR on February 8, 1978 concerning the crash of the Cosmos 954 on Canadian territory. Canada fulfilled its duties under Article V of the Rescue Agreement to inform the USSR that it had identified the debris as coming from Cosmos 954.

The Canadian Government also claimed the sum of $6,041,174 Canadian dollars but settled for $3,000,000 Canadian dollars for the damage caused by the Cosmos 954. The Canadian government also reserved the right to be compensated for additional damages that may occur in future because of the incident, any costs incurred should a Claims Commission need to be established under the Liabilities Convention and any awards made by the Claims Commission.

UNGA RESOLUTIONS ON OUTER SPACE

In addition to the treaties discussed above, the UNGA has also adopted 5 Resolutions in relation to Outer Space. These Resolutions also establish a number of principles and include:

-        Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space (The "Declaration of Legal Principles").[6]

-        The 1982 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (The "Broadcasting Principles").[7]

-        The 1986 Principles Relating to Remote Sensing of the Earth from Outer Space. (The "Remote Sensing Principles").[8]

-        The 1992 Principles Relevant to the Use of Nuclear Power Sources in Outer Space (The "Nuclear Power Sources" Principles)[9] and

-        The 1996 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the interest of All States, taking into particular Account the needs of developing countries (The "Benefits Declaration").[10]

In addition, in recent times, there have been 2 additional resolutions:

-        The 2002 Hague Code of Conduct Against Ballistic Missile Proliferation. Consequent upon a growing concern over the spread of ballistic missiles the Hague Code of Conduct was adopted by over 90 States at a Conference convened to adopt the said protocol. The Code which calls upon States to ratify, accede to or otherwise abide by the UN treaties seeks to curb the proliferation of ballistic missiles and other weapons of mass destruction, which may include, which may include space launch vehicle programmes.

-        In addition is the recently adopted UN Resolution on application of the Concept of the Launching State intended to inter alia improve the stability and reliability of the current framework for space flight and transportation.[11]

Apart from the international instruments above, there are several bilateral agreements between States (like the ISS Agreement, The Artemis Accord) and many States have their national legislations governing space-related activities.

References

[1] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). Nigeria acceded to the Outer Space Treaty on 14 November 1967; see https://treaties .un.org/Pages/showDetails.aspx?objid=0800000280128cbd; http://www.state.gov/t/isn/5181 .htm#signatory (last visited 9 February 2016).

[2] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (hereafter Rescue Agreement), London/Moscow/Washington, done 22 April 1968, entered into force 3 December 1968; 672 UNTS 119; TIAS 6599; 19 UST 7570; UKTS 1969 No. 56; Cmnd. 3786; ATS 1986 No. 8; 7 ILM 151 (1968). Nigeria acceded to the Rescue Agreement on 23 March 1973; see https://treaties.un.org/Pages/showDetails.aspx ?objid=080000028012504f (last visited 9 February 2016).

[3] Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). Nigeria acceded to the Liability Convention on 29 December 2005; see https://treaties.un.org/Pages/showDetails.aspx?objid=08000002801098c7 (last visited 9 February 2016).

[4] Convention on Registration of Objects Launched into Outer Space (hereafter Registration Convention), New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975). Nigeria acceded to the Registration Convention on 6 July 2009; see https://treaties .un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIV-1&chapter=24&Temp= mtdsg3&lang=en (last visited 9 February 2016).

[5] Nelly-Helen Neji Ebruka, #SpaceWatchGL Opinion: African States’ and International Space Treaties

https://spacewatch.global/2020/08/spacewatchgl-opinion-african-states-and-international-space-treaties/ Accessed 2nd September, 2020.

[6] General Assembly resolution 1962 (XVIII) of 13 December 1963

[7] General Assembly resolution 37/92 of 10 December 1982

[8] General Assembly resolution 41/65 of 3 December 1986

[9] General Assembly resolution 47/68 of 14 December 1992

[10] General Assembly resolution 51/122 of 13 December 1996

[11] Momoh, W., ‘An Overview of Nigerian Space Activity & Space Law, African Skies, Vol. 12, p.104 http://adsabs.harvard.edu/full/2008afrsk..12..104m

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