Space Law: the final frontier. These are the voyages of the starship Space Law. Its mission: to explore strange new worlds. To boldly go where no lawyer has gone before.
Space Law is a component of international law. International law is based on treaties developed by committees or conferences which inexorably defer to two absolutes: (1) the language, attempting to be all things to all people, will be both wording and awkward; and (2) treaties are not law at all anywhere in the world (or off of it) until and unless it is adopted into the law of each of the 200 states on this planet (a process often referred to as “ratification”), and then it is enforceable only within the territorial limits of those states.
And space law introduces a novelty to jurisdictional issues in that it purports to govern conduct outside of Earth's atmosphere.
That has not stopped the international law community, with the best of intentions, from publishing several significant space law treaties.
1967: Outer Space Treaty
Like virtually all international law treaties, this one has a very long name (“Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies”) and lofty but somewhat naive aspirations.
It’s preamble refers to the “common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes” and that the “exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development”.
The Outer Space Treaty is considered the granddaddy of space law. Several of its component parts have been expounded upon in subsequent treaties specific to certain issues (for example, the Rescue Agreement).
The pith and substance of the Outer Space Treaty waxes very eloquent. Article 1, 4 and 7 read as follows:
“The exploration and use of outer space, ... the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
“Outer space, ... the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.”
“States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.”
“Each State Party to the Treaty that launches or procures the launching of an object into outer space ... and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space.”
All of the superpowers have signed and ratified the Outer Space Treaty. In fact, as of January, 2007, 98 states and ratified the treaty and a further 27 have signed it but had yet to ratify it domestically.
Some kooks have claimed that because the Outer Space Treaty only applies to governments, they have staked claims to the sun and the moon. One enterprising American even started selling lots on the move for one dollar per acre. Another individual, apparently from the United Kingdom, sent a demand letter to the United States 1962 saying he had ownership rights in the Moon and he would hold the United States responsible for any damages caused by American space missions. Not to be undone, a Yemen trio allegedly sought injunctive relief against NASA for their Mars mission, alleging that Mars had belonged to their ancestors for 3,000 years.
1972: Liability Convention
The liability convention has been ratified by 84 states and signed by a further 24 as of January 2007.
The basic law of the liability convention is at Article II and III:
“A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight.”
“In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.”
The liability convention adds a few little niceties as traditional barristers are familiar with such as a one-year limitation period, an international arbitration process, and this:
“Nothing in this Convention shall prevent a State, or natural or juridical persons it might represent, from pursuing a claim in the courts or administrative tribunals or agencies of a launching State.”
1979: Moon Treaty
The Moon Treaty has been an abject failure, signed and ratified by a handful of smaller nations which do not, in any event, conduct any space exploration. These include Australia, Austria, Belgium, and Mexico.
A science fiction-like conspiracy theory exists in international law that a society known as “L5” lobbied the US government to reject the Moon Treaty in 1980, denying the Treaty with the support of the superpower, and effectively killing it. It has been reported that L5, an organization devoted to extraterrestrial colonization, was vehemently opposed to the Moon Treaty’s prohibition against private property rights in outer space.
The Moon Treaty is still on the books and available for signature. Although it is called the Moon Treaty, the proposed treaty is far more extensive purports to apply to all “celestial bodies within the solar system”.
In essence, the Moon Treaty purports to prohibit the use of “celestial bodies” for military purposes and that further, “use of ... celestial bodies ... shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development”; hence, the L5 objection.
Further, article 11of the Moon Treaty is unequivocal:
“The moon and its natural resources are the common heritage of mankind”;
“The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means”;
“Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person”; and
“The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof.”
There are two other international space law treaties:
The Rescue Agreement, with a self-explanatory formal title of “Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched Into Outer Space” has been ratified by 89 nation-states and signed by a further 24; and
The Registration Agreement, which also has a self-explanatory formal title: Convention on Registration of Objects Launched Into Outer Space”, and which has been ratified by 49 nation-states and signed by an additional 4.
At the international treaty level, space law appears to be at a crossroads.
As with all things related to international law, the smokes and mirrors of politics and commercial interests makes it difficult to discern or discuss the real issues but what has been expressed publicly is that the present space law treaties are outdated. Some wish for international law groups to focus on a new contemporary and comprehensive convention reflects the reality of space exploration in the new millennium.
Beneath the level of global agreements or treaties, lies an active sublevel of bilateral agreements between states or states and international organizations.
The European Space Agency has been very active in developing bilateral agreements.
The United States has a bilateral agreement with China, dated 1988, which essentially has them agreeing to the Liability Convention between themselves.
There is another ad hoc bilateral agreement between Canada and the USSR in regards to damages of $3 million as a result of the disintegration of a Soviet satellite over Canada in January 1978.
At the national level, many countries have domestic space law, some of which implements international treaties that they have ratified (such as establishing a registry pursuant to the Registration Agreement), and others to create a national space agency for policy (such as the Canadian Space Agency Act).
The United States of America is by far the world leader in space exploration. Since 1958, it has had a National Aeronautics and Space Act creating a civilian agency (NASA) but also provides that:
“Activities peculiar to or primarily associated with the development of weapons systems, military operations, or the defense of the United States (including the research and development necessary to make effective provision for the defense of the United States) shall be the responsibility of, and shall be directed by, the Department of Defense”.
Another fundamental principle enunciated in that American piece of legislation is to “seek and encourage, to the maximum extent possible, the fullest commercial use of space”.
Some industry-specific international agreements are gaining importance such as the Russian satellite communication organization known as “Intersputnik”.
Space law is in its infancy. There are some substantial treaties providing a foundation for future growth, as summarized above. The United Nations hosts a permanent space law committee which meets annually.
The issues yet to be resolved are significant:
- What are the legal ramifications of space tourism?
- At what point in the sky does air law end and space law start?
- For legal purposes, is a space ship just an airplane until it leaves the atmosphere?
- When issues arise from geostationary orbit? What happens if a crime occurs on the international space station? What laws apply? Who has jurisdiction?
- Since current space law discourages national or commercial ownership of outer space, can a company or a nation nonetheless exercise ownership of a ship placed in orbital location in the geostationary orbit?
- Are there any legal issues arising from the use of nuclear power in outer space or the dumping of radioactive or other waste materials in outer space?
References and further reading
- The Report of the Legal Subcommittee of the United Nations Office for Outer Space Affairs, 46th session, held in Vienna, Austria March 26-April 5, 2007 (unoosa.org/pdf/reports/ac105/AC105_891E.pdf)
- McGill University, Faculty of Law, Institute of Air and Apace Law, mcgill.ca/iasl/
- United Nations Office for Outer Space Affairs, unoosa.org
- intersputnik.com
- Re lots on the moon for sale, spacefuture.com/archive/lunar_real_estate_buyer_beware.shtml and lunarembassy.com/
- 'Get Off Mars, It's Our's!' Yemeni Men Tell U.S., Reuters, July 24, 1997