What is the definition of Space Law? Space Law, the laws applying to human activities in outer space, the law on space activities… What are we talking about? Is there a definition of Space Law? Let’s look at some definitions and let’s make remarks on this multidisciplinary approach.
First remark: there aren’t any environment where law doesn’t apply
A few years ago on TV, someone proposed to install banks in outer space, on satellites, in order to escape the application of the law. That person was wrong. In fact, outer space is not an environment where law does not apply. Some international treaties regulate activities in outer space. But there is a more fundamental reason for that. All human activities wherever conducted are subject to the law. Law applies to the all human activities. Outer space, whatever it is, is only a framework for human activities.
Speaking about the definition of Space Law, let’s go back for a moment to the basis of international law, with regard to the application of the law: States exercise two kinds of powers. On their territory, they exercise their territorial jurisdiction; over their nationals, they exercise their personal skills. On their territory, the States are sovereign, they have the territorial jurisdiction (which is the competence of common right), “the power over events and persons within the bounds of a particular geographic territory”, and which prevails in general on the exercise by the other States of the personal competence which they exert on the natural or legal persons of their nationality. If you’re in Austria, you’ll be subject to the Austrian law for most of your actions. There are, however, some areas for which the State of your nationality remains competent. This is the case, for example, of your personal family status. Private international law is the law that regulates conflicts of law or jurisdiction that may arise.
In areas that are not subject to the sovereignty of a State, no territorial jurisdiction is exercised. Only the personal competence is exercised. This is the case of the high seas or outer space, including the Moon and other celestial bodies. Strictly speaking, these spaces are not subject to this or that law. It’s the human activities that are subject to it. This is the reason why there is no environment where law doesn’t apply. More precisely, there is no area for human activity that is not subject to the law. The reason is that the law does not apply to the territory itself but to the human activity that takes place there. Whenever a human, physical or moral person conducts an activity somewhere, anywhere, the personal jurisdiction of that person’s State of nationality applies. The law of the State applies, it is as well of its domestic law as of the international law which is opposable to it. If a French woman is going to walk on the Moon, she will be subject to the French law because of the personal competence of France. This includes the domestic law but also the international law which obliges France and which France has to make enforced by its nationals.
Contrary to what is sometimes indicated, even if the treaties are agreements between States, the fact remains that the citizens of the States party to the 1967 Outer Space Treaty must respect its rules wherever they conduct their activities. In some so-called monist States it is the treaty itself that is part of the applicable law. In others known as dualistic, it is not the treaty itself, but the law of introduction of the treaty in internal order. The terms monism and dualism are used to describe two different theories of the relationship between international law and national law. Many states, perhaps most, are partly monist and partly dualist in their actual application of international law in their national systems. In dualist systems, international law must be translated into national law, and existing national law that contradicts international law must be “translated away”: it is the principle of “lex posterior derogat legi priori”.
The practical consequence, however, is the same. It can therefore be concluded that there is no environment where the law doesn’t apply. Once a human activity finds its place, it is subject to the law. If I go to the Moon, I remain subject to the personal jurisdiction of the State of which I am the national, in this case France. If I walk in the Sea of Tranquillity and meet someone there, the reports we could have are not ignored by the law, they are subject to the French national law if that person is French. Otherwise, conflict rules of private international law will apply. In any case, the law will apply as it already applies for example on the high seas. A problem could probably be raised, that of knowing what would happen if, instead of meeting an earthling I met a resident of the Moon or Mars or a resident of one of these extrasolar planets that we are discovering now. This hypothesis is interesting because it allows to highlight the notion of application of the law to outer space. When establishing the outer space treaties in the 1960s and 1970s, some jurists felt that humans could not legislate for celestial bodies. Not having made contact with other potential inhabitants of the universe, they could not establish a legal status that is applicable to all celestial bodies. It’s both true and false. In fact, humans legislating on celestial bodies, did not establish a status that is applicable to these bodies as such. They only govern human activities in these spaces and on these bodies. The law does not apply to outer space as such, it applies to human activities taking place in this environment.
This does not solve the problem of knowing what would happen if we met little green beings and if they would accept the basics of law as we know them. In particular, if they would agree to recognize the fundamental rule, the “Grundnorm” of Austrian-born jurist Hans Kelsen: “Pacta sunt servanda” (Conventions must be respected). He proposed to recognize this maxim as the foundation of any legal system. If I believe the writers of most novels and sci-fi movies, this would not be the case. A conflict would arise and the winner would establish the law. When one sees the current evolution of the international society and its increasing militarization, one can believe that in any case, our children or grandchildren, will have exploded the ground before the problem really arises. The law thus applies to the outer space in which humanity conducts activities, but can this activity be referred to as Space Law? What is the definition of Space Law?
Second remark: can we talk about Space Law?
What could be the definition of Space Law? The specificity of outer space and Space Law. The issue is traditional in all law schools. As soon as we start a course, in any field, we try to demonstrate that there is indeed a special area that can be referred to as “nuclear law”, “law of the sea” or “Space Law”. This explains why the course we are about to present is of the utmost importance. As with other areas of law, the definition of the concept of “Space Law” is in fact pedagogical. Space law does not exist as such, it is a practical name for all legal rules and practices relating to outer space activities. The question of whether this activity has a specificity sufficient to be able to be the object of a particular teaching is rather relative, it depends on the appreciation that one can make of it. Different criteria can be selected. We can rely on the form of the law or its particular methods and, for example, on the organizations that develop it, or more generally, on the specificity of the environment that the law intends to govern. Certain provisions are indisputably Space Law, as is the case with texts prepared by COPUOS and adopted by the UN General Assembly on its proposal. The five treaties and resolutions of the General Assembly on the subject.
But if these provisions constitute the heart of Space Law that is taught in law schools, they are certainly not the only ones to be classified under this title. Launch contracts, contracts for the provision of space services, rules of national law that organize space activities, rules of national law that create and organize space agencies… are also “Space Law” even if their specificity is probably less obvious. In fact, if we talk about Space Law, that is to say, it constitutes a discipline in itself, it flows from the specificity of the environment in which the activities it governs take place. The essential feature of the outer space environment is its dangerousness. This peculiarity has important consequences for both public space law and private space law. On public law, it leads States to accept particular rules especially with regard to liability and the obligation of control (liability and responsibility). On private law, this dangerousness has the effect of leading operators to accept or require in their contracts and agreements, special clauses such as exclusion clauses or distribution of responsibility which are special clauses.
This type of contract has been known for maritime activities when the sea was an unknown and sometimes very dangerous area. The maritime contracts took account of this dangerousness and led to a very specific risk sharing between the various parties involved. The evolution of the environment and navigation techniques has allowed these contracts to become standardized and closer to conventional transportation contracts. We will witness the same evolution concerning outer space. As long as space transport leads to significant risks, much larger than those of other means of transport, it will require special rules, rules of law for space transportation. When, in a few decades, space transportation will become as safe as air transport today, these special rules will no longer be necessary, the rules of space transport will be closer to those of transport law in general. From a certain point of view, it can be said that the law concerning space transportation will become a chapter of transport law in general. It will be too little different to be the subject of a particular teaching.
The second particularity of the outer space environment is that it dominates the Earth and therefore has a very important strategic aspect. Given this, the outer space environment and therefore Space Law are necessarily subject to a fairly strict control of the States. We know that the freedom of exploration and use of outer space is conferred by treaties on States and not on nations or countries and even less naturally on private companies or natural persons. It is not surprising therefore that the compromise of the 1960s concerning private activities foresees the possibility that they take place but under the very strict responsibility of a State, after authorization and under continuous surveillance. While the fall in the dangerousness of space activity may lead to a normalization of private law, it is less certain that its strategic importance will change profoundly. There is therefore a chance that the specificity of Space Law with regard to State control, will be largely maintained.
Third remark: what is the scope of Space Law? The definition of Space Law?
How to define the law of outer space? What is the definition of Space Law? Is it the law of activities in outer space? Is this the law that applies to space objects? Is it more broadly the law that applies to outer space activities? In reality, we must retain a rather broad pedagogical definition rather than a scientific or strictly legal one. A contract to supply a part or apparatus that will have to go into outer space is certainly part of Space Law, but it is not an activity in outer space. This contract is part of Space Law because it is marked by the specificity of the environment. In particular, the exemption clauses will be much more important than in a supply contract for the automobile for example. It is also a supply contract but has a specificity that leads it to entry the Space Law category.
In reality, when talking about the definition of Space Law, strictly speaking, there is no “Space Law” as such. It would be difficult to delimit it. There are activities in outer space, there are also space activities that include activities that are actually conducted from the ground or even on land even if they use equipment that is in outer space. During the work led to the French Conseil d’État or Council of State, jurists were confronted with this problem. They wanted to be sure that the law they were writing allowed the State to control all “national activities in outer space” as set out in Article VI of the 1967 Outer Space Treaty. The exercise was difficult. Almost all “space activities” and even “activities in space” do not imply that the people who engage in them are themselves in outer space. It was therefore necessary to distinguish between “space operations” and “uses” or “space applications”.
To launch a satellite, to modify its orbit, and to emit from outer space are “space operations”. Instead, using a GPS receiver in a car or to receive a TV show are not “space operations” but “space applications”. Naturally, between the two, there may be less clearly defined activities. Both can be considered as belonging to Space Law, but it should also be noted that their legal status will be very different. Only “space operations” will require a precise control of the State, the “uses” or “applications” may be conducted much more freely, the obligation of authorization and control of Article VI of the Outer Space Treaty only applying to the first and not to the seconds. The same is true of the rules on liability, the rules do not have to be the same for both kinds of activities.
Fourth remark: Space Law is a multidisciplinary activity
Conceived in this way, Space Law is defined by the environment to which it applies and not by the method it retains or by the people who are subject to it. Space Law is therefore a multidisciplinary or rather transdisciplinary activity. There is a public international Space Law that concerns States, a private international Space Law that regulates conflicts of laws or jurisdiction between the various internal space laws. There is a space contract law, there is a space environmental law, a space law concerning intellectual property and security rights, the protection of individual liberties or a space criminal law. There are mining space national laws and soon, there might be a space traffic law. All these laws are in fact more or less distinct chapters of Law in general, they are “lex specialis” of each of these laws. They respect the classical methods and the general principles while integrating this or that specificity, due to the particular environment in which these activities take place. From this point of view, it can be said that Space Law does not exist, but that there are rights in outer space or, more precisely, that there “space aspects” in most areas of law. From an educational point of view, on the other hand, it is useful to study and teach Space Law as a whole, that is, to examine from the point of view of all the juridical domains how outer space specificity affects each of the areas of law. The difficulty is great for Space Law lawyers, especially for practitioners who must be law generalists but outer space specialists. Let’s take a few examples.
Public international Space Law. It is of course public international law. To the extent that outer space is, like the high seas, a common space, a “res communis”. The basic rules that govern it are international rules, public international law. Naturally, all the rules of international law in general apply in principle to outer space. Article III of the Outer Space Treaty makes explicit reference to it. This is the case in particular of the United Nations Charter, but also of all the other rules. However, here also applies the principle “lex specialis derogat legi generali”. From this point of view, the very interesting remarks that have been developed by the work of the United Nations International Law Commission on the fragmentation of international law are fully applicable. As part of international law, international space law is a lex specialis and may therefore differ from general law. To take an example, States are not responsible for the activities of their nationals; but concerning Space Law, they are responsible according to both Articles VI and VII of the 1967 Outer Space Treaty and the 1972 Convention on International Liability for Damage Caused by Space Objects. The fact that Space Law is part of general international law also has the advantage that if there are any gaps in the special law, it is the general law that will apply (the gaps are much less numerous). The lex specialis, here Space Law, must use general international law to supplement the points it does not itself.
Let’s also look at the example of the commercial law applying to outer space. Commercial law that applies to outer space activities is a part of commercial law in general. It is marked by the specificities of the outer space environment and spatial activity in general. Apart from these specificities, the common law applies. We can take all the areas of law. There is no doubt that the greatest specificity is in public international space law, but Space Law is in fact much broader and is found in all areas of law.
To conclude, let’s note the difficulty to practice and therefore to teach Space Law. Space lawyers must have a very broad knowledge. Most areas of law have implications in outer space. It is therefore necessary for the Space Law specialists to have knowledge in all these areas. This difficulty is heightened by the fact that “space lawyers” must also be open to the specificities of the environment and therefore have a solid general technical knowledge. They must be able to understand the problems of engineers and scientists who conduct their activities in outer space. The difficulty is great but worth it. What a subject! It inspires so much enthusiasm among all, whatever their age. We all have, I think, encountered the astonishment and interest of people who are told that we work in the area of Space Law: “I didn’t know there were law applying to outer space” and then come the many and varied questions. Like “Who owns the Moon?” or “Who is responsible in the event of an accident?” or “How do we limit space debris?” to take only a few more obvious examples.
In addition to the originality of Space Law, the rules applying to outer space are very advanced. If one compares with general international law and the law of the sea in particular, one has to recognize that in these areas, the law is weak, unambitious and often not very effective. At sea, most often, there is a big mess. States are so incapable of taking the necessary protective measures together that they are reduced to entrusting them to the riparian States (riparian water rights, or simply riparian rights, is a system for allocating water among those who possess land along its path). It is impossible to regulate fishing internationally? Outer space is not anarchic like the high seas. State responsibility plays a central role.
Concluding on the definition of Space Law, let us have the wisdom to preserve it so that outer space activities are indeed conducted for the benefit of all States, regardless of the stage of their economic or scientific development; as provided for in Article I of the 1967 Outer Space Treaty which states the following: “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. 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. 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”. That is what we can say about the definition of Space Law.