Can Space Law apply on Earth? When I tell people about my interest in Space Law, they are usually surprised. They ask me what is Space Law and I try to give a simple definition. Recently, I have asked myself if Space Law could apply on Earth and the answer is of course: yes!
In this new Space Legal Issues article, let’s study the case of Space Law applying on Earth; we will exclusively focus on the Magna Carta of Space Law, what is at the basis of what is called corpus juris spatialis: the 1967 Outer Space Treaty, or “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”.
What is Space Law?
Space Law is the body of laws, agreements and treaties that govern outer space. Worldwide leaders must grapple with how to regulate activity in space. Space Law covers issues like rules for exploration, weapons use, and damage for liability, rescue efforts for astronauts in distress, environmental regulations, and records of space activity.
Space lawyers draft international treaties and national laws. They advise lawmakers about good policy and whether to enter international agreements. Space lawyers may even help negotiate these agreements. They help government entities and even private companies engaging in space exploration comply with existing laws and treaties.
Because of the nature of space law, space lawyers engage in a great deal of policy making. They might spend the bulk of their time drafting proposals or advocating for certain policies. Space lawyers must also understand enough science to give their clients educated advice.
The Outer Space Treaty
On December 19, 1966, the United Nations unanimously adopted a treaty, opened for signature on January 27, 1967, declaring that the exploration and use of outer space must be carried out in the interest and for the good of humanity, any discrimination between States being excluded. Outer space, including the Moon and other celestial bodies, will be free and accessible to all States and cannot be the subject of national ownership. Adopting these basic principles, it establishes that any action by States in outer space must be in accordance with international law (including the Charter of the United Nations of 1945, the foundational treaty of the United Nations) not only in the interest of maintaining international peace and security, but also to foster international cooperation and understanding.
Among the broad general principles that should govern the space activities of States, the use of outer space for peaceful purposes, mentioned in the Preamble to the Outer Space Treaty and in several of its provisions, has been in fact, several times since 1957, stated in previous General Assembly resolutions of the United Nations (in 1957, 1958, 1959, and more particularly in 1961). Already, the signing of the Moscow Treaty in 1963, prohibiting nuclear experiments in the air, water and space, represented an important relaxation with regard to the political relations between the U.S.S.R. and the United States of America. The desire for co-operation has also been reflected in other events such as the agreement of 1962, reiterated in 1963 between the U.S.S.R. and the United States of America for the peaceful co-operation in the fields of meteorological satellites, telecommunications and the establishment of magnetic field maps. As a result, two important resolutions were adopted by the U.N. General Assembly in 1962 and 1963.
The result of this spirit of cooperation was also reflected in the same year by the adoption by the General Assembly of the United Nations of an important resolution on the question of disarmament general and complete (1963). In this resolution, the General Assembly refers to a previous resolution of 1961 and emphasizes its decision to take measures to prevent the arms race from spreading to outer space. It is the famous resolution “no bombs in orbit”.
In 1965, the United States of America delegation to the United Nations declared that “before the human beings Moon landed, the U.N. should set forth international rules governing the exploration of celestial bodies”. Before the opening of negotiations on the Outer Space Treaty, the United States of America was already thinking more about a treaty on celestial bodies, than a specific convention on outer space. It is in this sense that on May 7, 1966, President Johnson emphasized the need for immediate action “to ensure that the exploration of the Moon and other celestial bodies serves only peaceful purposes” and “to be sure that our astronauts and those of other countries will be able freely to proceed to the scientific study of the Moon”. The President of the United States of America suggested that the United Nations adopt a treaty governing the exploration of the Moon and other celestial bodies and, among the principles retained for inclusion in this treaty, it was intended that “no country should be allowed to place weapons of mass destruction on a celestial body” and that “weapons tests and military manoeuvres should be prohibited”.
Animated by the same concern, to “take practical steps towards the conquest of the Moon and other celestial bodies and, first and foremost, adopt provisions to prohibit the use of the Moon and other celestial bodies for military activities”, the U.S.S.R. also tabled a draft treaty on “the legal principles to govern the activity of states in the field of exploration and conquest of the moon and other celestial bodies”, which, with respect to military uses, contained the following provisions: “All states must use the Moon and other celestial bodies exclusively for peaceful purposes. The Moon and other celestial bodies shall not be constructed with military bases or installations, including facilities containing nuclear weapons or other types of weapons of mass destruction”. Thus, from 1965 to 1966, the two Great Spatial Powers agreed on a number of principles to govern the activities of States, mainly on the Moon and other celestial bodies.
The Outer Space Treaty (1967), concluded within an extremely short period of time (six months), was in fact a bilateral agreement between the two Great Spatial Forces and then imposed on the other States that were not materially prepared and at the time, did not master the technical data. This is an important historical fact that should be kept in mind.
Can Space Law apply on Earth?
Paragraph 1 of Article I of the Outer Space Treaty states that “The exploration and use of outer space, including 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”. This first paragraph is pretty clear: outer space, whether it is for exploration or use (utilisation?), shall be carried out for the benefit and in the interest of countries. Considering the fact that countries only exist today on Earth, that the International Space Station (ISS) is not a country but an intergovernmental cooperation, Space Law applies on Earth.
Paragraph 2 of Article I of the Outer Space Treaty adds that “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies”. Again, a reference is made to States, which for now, only exist on Earth.
We should add that projects such as Asgardia, also known as the Space Kingdom of Asgardia, a micronation formed by a group of people who have launched a satellite into Earth orbit (the Asgardians have adopted a constitution and intend to access outer space free of the control of existing nations), are not States, since certain criteria are not respected: 1) a defined territory; 2) a permanent population; 3) a government; and 4) a capacity to enter into relations with other States.
Paragraph 3 of Article I of the Outer Space Treaty concludes that “There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation”. Again, States appear to be the main actors of activities conducted in outer space.
Article V of the Outer Space Treaty declares that “States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle”. What happens if an astronaut lands on the territory of a State or on the high seas? The State of registry of their space vehicle can ask that those “envoys of mankind” shall be safely and promptly returned. This means that Article V of the OST can be invoked while on Earth, for a situation that is happening on Earth. Space Law could be used against a State (like North Korea for example), on Earth, if that particular State (North Korea) was to refuse to safely and promptly return the astronauts to the State of registry of their space vehicle (the United States of America for example).
Article VII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies announces that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, 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, including the Moon and other celestial bodies”.
Let’s imagine that State A was to launch an object in outer space and that an accident was to happen on the launch pad (like it happened in Brazil in 2003: the 2003 Alcântara VLS accident); scientists from State B (working on the object that was about to be launched) are killed, and houses and facilities from State C are damaged (like it happened in China in 1996: the Long March 3B rocket failed while being launched from the Xichang Satellite Launch Center in China, and the rocket veered off course immediately after lift-off and struck a nearby village, killing at least six people). Space Law would apply, and Article VII of the Outer Space Treaty could be used by States B and C against State A; this would be a Space Law case applying on Earth.
Can Space Law apply on Earth? Article VIII of the founding principles of Space Law notably enounces that “Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return”. What if France was to refuse to return the part of the SpaceX capsule that was found on the foreshore of a French island in Britany? Space Law could be invoked and the United States of America could act against France on the basis of Article VIII of the Outer Space Treaty (Space Law) even though the component has never left the Earth. Space Law would apply on Earth.
Article IX of the aforementioned Treaty notably states that “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”. What if Neil A. Armstrong, Edwin E. Aldrin Jr., and Michael Collins had infected the Earth after coming back from their mission? Space Law would have apply, even though “appropriate measures for this purpose” should have been defined by the United Nations.
Can Space Law apply on Earth? Concluding remarks!
Can Space Law apply on Earth? Among all the aforementioned articles, Article VII of the Outer Space Treaty, regarding the application of Space Law on Earth, is the most important one. A State can be internationally liable for damages caused by objects intended to be launched in outer space, even though those objects have never left Earth. What would be interesting is to think about the definition of launching or procuring the launching of an object into outer space.