Public International Space Law

Based on the mentioned basic Public International Space Law principles, the 1967 Outer Space Treaty provided a legal framework whose enlargement was made possible by subsequent treaty texts. All these provisions form the corpus juris spatialis or the fundamental law governing space activities.

Assistance and rescue

Even before technical advances made it possible to send astronauts to the Moon, the 1968 Astronaut Rescue Agreement codified the principles contained in the Article V of the 1967 OST relating to their legal status and Article VIII concerning that of space objects. It grants protections to astronauts in distress who are described as “envoys of humanity” and requires States Parties to take all possible measures to assist and rescue an astronaut in the event of an accident, distress, emergency or forced landing, as well as to hand over the crew to the representatives of the launching authority.

The Agreement also provides for the recovery and return of objects launched into space, including dangerous or deleterious objects, as well as measures that the launching authority must take immediately to eliminate any possibility of danger or harm. Finally, let’s note, as for other space conventions, the central role played by the Secretary-General of the United Nations, particularly in centralising and disseminating information.

Control and registration in Public International Space Law

In view of the growing number of space objects launched into space and the damage that such devices could cause, the need for a public international space law system to ensure their identification, and to facilitate the implementation of the 1972 Liability Convention, has imposed itself. The Treaty lays down principles in which the launching State retains jurisdiction and control over space objects and personnel on board (Article 8). The Convention of January 14, 1975 supplemented the registration system that had operated in the United Nations Secretariat since the adoption of Resolution 1721 (XVI) of December 20, 1961. It established effect of the proceedings on the manner in which the UN Secretary-General is informed of States’ activities in outer space, including through the establishment of national registers and a central register maintained at the United Nations.

With a view to the implementation of the jurisdiction, the Convention defines the launching State. It also provides for a procedure to identify objects that are likely to cause harm to a State Party or its nationals, natural or legal persons. To give an example, the parties which cooperated in the development of the International Space Station (ISS) have incorporated registration provisions into the 1988 Washington Agreements, according to which “each party will separately register its own module, and thereby retain jurisdiction and control of the objects he inscribes on his register”. However, the Convention does not provide a solution to possible conflicts of jurisdiction over such an inhabited, multinational station. Finally, it should be noted that the Convention has become more important in recent years because of the worrying problem of space debris.

International responsibility of States

The principle of international liability of States encompasses two different concepts: political responsibility and the legal responsibility of States.

The political responsibility of States arising from Article VI of the Outer Space Treaty, which imposes on any signatory State “the international responsibility for national activities in outer space, including the Moon and other celestial bodies, government or non-governmental entities” (a provision eventually joined by the USSR which, during the negotiation of the Treaty, wanted to prevent private companies from engaging in activities space). The Treaty subjects these commercial activities to the authorisation and continuous surveillance of the States concerned.

The legal responsibility of States whose fundamental principles have been laid down in Article VII of the Outer Space Treaty and implemented by the 1972 Convention on International Liability for Damage Caused by Space Objects. It lays down a certain number of rules, some of which fall under the objective liability for risk. This is the case of the provisions of its Article 2, which establishes the absolute international responsibility of the launching State for damage caused by space objects on the surface of the Earth or to aircraft in flight.

On the contrary, in Article 3, the responsibility of launching States, in the case of damage caused elsewhere than on the surface of the Earth to persons or property on board a space object of a another launching State, is a simple responsibility for fault whose foundation must be proved. However, the launching State is not absolutely liable if the accident is the result of gross negligence or intent to cause injury on the part of the requesting State, unless the damage results from a launching State that does not comply with international law.

The launching State is defined as a “State that makes or initiates the launch of a space object or a State whose territory or facilities are used for launching a space object”. For space projects with more than one launching State, that is, when the launching State is different from the launching State, the Convention provides for joint and several liability (it should be noted that although the launching State may be either the one that supplied the satellite or the one that launched it, and therefore jointly and severally liable, the Convention did not provide for the person who made the satellite).

Requests for reparation are made through the diplomatic channel (thus against the States and not against the entities causing the damage). If a settlement cannot be reached, a Claims Settlement Board will be established to determine the merits of the claim for compensation and the amount of compensation to be paid. This will be determined “in accordance with international law and the principles of justice and equity”.

Use of nuclear power sources in Public International Space Law

These questions of responsibility are not purely theoretical if one remembers that various space objects have disintegrated in the atmosphere during unplanned “re-entries”, some of which, having caused damage, have given rise to compensation. For example, the case of Kosmos 954, which on January 24, 1978 disseminated a large amount of radioactive debris over a large area in northern Canada, was settled under a Soviet-Canadian Memorandum of Understanding. As a result of this case, the Canadian delegation referred to the Legal Subcommittee a draft of the Principles for the Use of Nuclear Power Sources in Outer Space, which after fourteen years, was agreed upon at COPUOS and adopted at the December 1992 General Assembly.

All of these principles, contained in resolution 47/68 of December 14, 1992, have the primary objective of limiting the use of these sources of nuclear energy in space to missions that could not be operated by other sources of energy (usually distant missions). They are also intended to supplement the applicable international law standards in this area in order to ensure the safety of nuclear power sources in outer space and to fill the gaps in the existing law, particularly with regard to notification and liability.

In particular, the launching State shall ensure that a comprehensive and detailed safety assessment is carried out according to specific criteria (Principle 3) and inform the States concerned in due time of the impending re-entry into the Earth’s atmosphere of space objects. In addition to these security measures and the return notification, the resolution includes specific provisions on state assistance, liability and redress. Given the rapid changes in technology in this area and radiation protection standards, a review process was put in place two years after the adoption of these principles.

State activities on the Moon

The 1967 Outer Space Treaty makes no distinction between the exploration and use of outer space and those of the Moon, except for military uses. Given the new perspectives offered to humanity by the conquest of the Moon, the adoption of specific rules for the activities of States on the Moon has been made necessary. The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of December 18, 1979 incorporates principles of international law, taking into account the Charter of the United Nations and the Declaration on the Principles of International Law concerning Friendly Relations and cooperation between States of 1970.

The Agreement extends and clarifies the principle of peaceful use, the concept that space is “the prerogative of all mankind” of the 1967 Treaty, declaring in particular that “the Moon and its natural resources constitute the common heritage of humanity” (Article 11). This new concept finds expression in particular in paragraphs 5, 6 and 7 of the same article, which calls on States Parties “to establish an international regime, including appropriate procedures, governing the exploitation of the Moon’s natural resources when such exploitation takes place”.

Thus the Moon Agreement, like the 1982 Law of the Sea Convention, applies the principle of the common heritage of humanity to the Moon and its natural resources. Although both the USSR and the United States of America were in favour of this principle in 1979, they are now in a position of withdrawal from a text they consider too abstract and this restricts their options and goals. It should therefore be noted that although it has been signed and ratified by a dozen States and entered into force in 1984, no State with space capabilities has ratified or incorporated it into its domestic law.

Since the time of great discoveries and especially the first steps on the Moon, space activities have continued to multiply and become ubiquitous in our daily lives. We have indeed moved from the era of research and the discovery of space to that of commercial exploitation. This passage was also accompanied by a de facto militarisation of space. Practical civilian applications of space can be broadly grouped around four major poles: launching, communication, Earth observation and space experiments.