Space Law was born from the development of space activities and the need to supervise them; since the launch of the first Sputnik artificial satellite on October 4, 1957, many problems had to be solved.
Given the international nature of operations, it is the United Nations, which, as early as 1958, created a Committee on the Peaceful Uses of Outer Space (COPUOS), which role was to study and develop a set of frameworks appropriate to this new form of activity. Soon afterwards, in the context of the Cold War, the United Nations – now coordinating centre for international cooperation activities in the field of outer space and for the formulation of the necessary international rules – elaborated five Treaties forming today the first component of corpus juris spatialis: the rights and obligations (legal duty to pay or do something) imposed on signatory countries/states.
I. The foundations of Space Law
The United Nations (A) has elaborated five multilateral Treaties (B) of a general character.
A) The United Nations
The United Nations is a multi-pronged international body with a global focus on both its missions and membership. Founded on October 24, 1945, succeeding the League of Nations and bringing together – with a few exceptions – all the countries/states on the planet, the United Nations aims at the “progressive development and codification of international law”. The Committee on the Peaceful Uses of Outer Space (COPUOS) has, through its Legal Subcommittee, pushed Space Law forward. In the light of the nature of the space environment, international law has progressively opened up to outer space, starting with the study of legal issues, then formulating legal principles to arrive at the incorporation of these principles into general multilateral Treaties. The adoption by the General Assembly in 1963 of the Declaration of the Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space was an important first step. In the years that followed, the United Nations developed five general multilateral Treaties incorporating and developing the concepts contained in the Declaration of Legal Principles.
B) The five United Nations treaties on outer space
1) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on January 27, 1967, entered into force on October 10, 1967;
2) Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space. Adopted by the General Assembly in its resolution 2345 (XXII), opened for signature on April 22, 1968, entered into force on December 3, 1968;
3) Convention on International Liability for Damage Caused by Space Objects. Adopted by the General Assembly in its resolution 2777 (XXVI), opened for signature on March 29, 1972, entered into force on September 1, 1972;
4) Convention on Registration of Objects Launched into Outer Space. Adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on January 14, 1975, entered into force on September 15, 1976;
5) Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. Adopted by the General Assembly in its resolution 34/68, opened for signature on December 18, 1979, entered into force on July 11, 1984.
We can consider that the 1967’s Outer Space Treaty, formally the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, provides a general legal basis for uses of space and provides a framework for the development of Space Law. The other four treaties focus on certain concepts of the Treaty.
The five United Nations treaties on outer space have been ratified by many countries/states and many others are following the principles. Given the importance of international cooperation in the use of outer space for peaceful purposes, the General Assembly and the Secretary-General of the United Nations invited Member States of the Organization which are not yet parties to the international treaties governing the uses of outer space to ratify or accede to them as soon as possible.
II. The main principles of Space Law
The status of outer space (A) should be distinguished from the regime of space activities (B).
A) The status of outer space
1) The non-appropriation principle
Outer space is the “preserve of all mankind” and the Moon and celestial bodies belong to the common heritage of mankind. They are thus insusceptible of national appropriation or even of territorial claim and each country/state has therefore a freedom of access and parking. As such, the claims of the countries of the Equatorial Zone in the geostationary-satellite orbit in 1976 (initiative of the Kingdom of Tonga: the “paper satellites”) have been categorically rejected by the international community.
“Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” – Article II, 1967 Treaty.
2) Free for exploration
All countries/states can use outer space without having to ask permission from the underlying countries/states in particular; this freedom includes the freedom to launch objects in space and the freedom of use of the orbits, the spatial navigation of scientific research… This has for example the consequence that remote sensing by observation satellites – which can have espionage objectives – is perfectly legal.
“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.” – Article I, 1967 Treaty.
3) Pacific use
Outer space must be used in accordance with the principles of international law and used only for peaceful purposes. As such, it is forbidden to put nuclear weapons or of massive destruction in orbit or to park them on the Moon and celestial bodies. These provisions do not necessarily imply a demilitarization of space, since strictly defensive programs are accepted (the problem arose in the 1980s over the US Ronald Reagan’s Strategic Defense Initiative (SDI) or “Star Wars”, a project, officially abandoned in 1993, of satellite network which would could have detected and destructed ballistic missiles launched against the United States of America).
“The States Parties to the Treaty undertake to put no objects carrying nuclear weapons or any other type of weapons of mass destruction into orbit around the Earth, not to install such weapons on celestial bodies and to do not place such weapons, in any other way, in outer space. All States Parties to the Treaty will use the Moon and other celestial bodies exclusively for peaceful purposes. On the celestial bodies are forbidden the development of bases and military installations and fortifications, the testing of weapons of all types and the execution of military manoeuvres. The use of military personnel for the purpose of scientific research or for any other peaceful purpose is not prohibited. Nor is the use of any equipment or installation necessary for the peaceful exploration of the Moon and other celestial bodies.” – Article IV, 1967 Treaty.
B) The regime of space activities
1) Liability of each country/state for activities conducted from its territory
This liability of the launching country/state is preventive – through the selection of launch authorizations – and targets the damage caused by spacecraft. It is an objective liability – without damage – for the damage caused on Earth or to the aircraft; on the other hand, it is based on fault for damages caused to another space project. This responsibility of the launching country/state is combined with the principle of the exclusive jurisdiction of the country/state of registration of objects. The country/state exercises the same type of powers over the space objects of its nationality as it exercises over the ships flying its flag. Astronauts are also subject to the jurisdiction of the country/state of registration of the space object and not to the country/state of which they themselves are nationals (specific conventions have been concluded for the International Space Station).
“States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.” – Article VI, 1967 Treaty.
“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.” – Article VII, 1967 Treaty.
2) Obligation to cooperate
In practice, this obligation to cooperate results in the commitment to facilitate the observation of astronautical flights, to facilitate the widest possible dissemination of the information collected by these flights and to open as far as possible the access of facilities. The astronauts – sent from Humanity – must help each other in space or on the Moon (or on Mars, as seen in Mars, a documentary and science fiction television series produced by National Geographic), in any situation of distress. Countries/States also have the obligation to participate in the rescue of astronauts in the case of accidents or distress, especially when returning to Earth (water landing or landing): the astronauts will also be repatriated to their country/state of origin and of course the registered gear will be handed over to the country/state of Registry.
“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 cooperation 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.” – Article IX, 1967 Treaty.