With this new Space Law article on Space Legal Issues, let’s have a look at the laws of space and outline the field of international space law and explain its main principles, focusing on the five UN space treaties. It will present the international law‐making process and examine the ability of existing international legal instruments to address current and future space activities and challenges.
The laws of space
Space law emerged soon after Sputnik 1 was launched into outer space in 1957. Several legally binding international instruments (treaties) governing the use of outer space for peaceful purposes have been adopted within the framework of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), with the 1967 Outer Space Treaty (OST) at its core.
The OST contains the basic rules that define the behaviour of States in conducting activities in outer space, and has resulted in more than sixty years of peaceful cooperation in space that benefits humankind as a whole. Four subsequent treaties elaborate on the basic principles of the OST (the Rescue and Return Agreement of 1968, the Liability Convention of 1972, the Registration Convention of 1976, and the Moon Agreement of 1979). The framework is complemented by a number of UN resolutions containing sets of principles that address, for example, remote sensing, the use of nuclear power sources, or the particular needs of developing countries.
The increased use of outer space by public and private entities and the growing dependence of States on critical space infrastructure has made outer space contested, congested, and competitive. Exciting new opportunities loom on the horizon, but challenges also become apparent. The continued sustainable and peaceful use of outer space is at stake, and the international legal community needs to address these issues. As a consequence, the legal framework is constantly evolving (through the adoption of multilateral cooperation agreements, international guidelines in the form of soft law and national legislation).
Province of all mankind, benefits and interests of all countries
Article I of the OST, when studying the laws of space, 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 and shall be the province of all mankind. The scope and meaning of the words “for the benefit and in the interests of all countries” are not defined. They do not apply to outer space itself, but to its “use and exploration”.
These concepts are also not defined, but can be seen in contrast to the word exploitation that is used in the 1979 Moon Agreement, along with the concept of the “common heritage of mankind”, as opposed to the “province of all mankind” concept used in the OST. There are many vague concepts here, but the essence is that the use and exploration of outer space must in some way be beneficial for all, and not just for a handful of spacefaring nations.
Freedom of exploration and use, and peaceful use of outer space
Article I of the OST also states that outer space, including the Moon and other celestial bodies, shall be “free for exploration and use” by all States. This is a cardinal principle of space law, but the freedom is not absolute; it is limited by certain qualifications. Use and exploration must take place on the basis of equality and irrespective of the degree of economic or scientific development of states; there must not be any discrimination; there shall be free access to all areas of celestial bodies; and activities must be in accordance with international law.
The latter principle is also embodied in Article III of the OST, which makes both international law and the Charter of the UN applicable to space activities. This demonstrates that space law is not isolated, but is a special branch of international law. Article IV of the OST provides that nuclear weapons and weapons of mass destruction are strictly prohibited, and that the celestial bodies may only be used for “exclusively peaceful purposes”.
Non-appropriation and non-sovereignty – The laws of space
Article II of the OST states that 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. This non-appropriation principle is another cardinal principle of space law, and it means that no State can exercise sovereignty over any part of outer space or any celestial body. Sometimes private actors argue they are not bound by this principle, but this is not correct. Citizens derive rights from their State, and when a State agrees not to do certain things, its citizens cannot frustrate that by their individual actions. Another question is whether space resources that may be present in or on celestial bodies can be owned, even if the celestial body itself cannot be.
This is important, when studying the laws of space, for the emerging “space mining” industry and it is generally thought that under the OST, extracting, harvesting, processing, and selling space resources do not fall under the non-appropriation principle. The case is different for the 1979 Moon Agreement, which requires setting up an international regime to manage resource activities and says that space resources are the “common heritage of mankind”, but very few parties have signed that treaty. In the face of this legal uncertainty, some states have enacted national laws to provide clarity for their industry. At the international level, COPUOS and some other entities are also discussing this matter.
State responsibility for space activities by non-governmental entities
Article VI of the OST states that national activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require “authorization and continuing supervision by the appropriate State Party to the Treaty”. National activities are usually interpreted as activities by a State’s nationals, such as individuals and companies.
States are free to decide whether they wish to authorise and supervise only activities by their nationals within their territory, or also activities by foreigners within their territory, or even activities by their nationals in other countries and international areas. States are also free to decide how they wish to exercise this obligation. With the ongoing trend of privatisation and commercialisation, more and more States do so by adopting national space legislation. COPUOS has issued guidelines for States wishing to create national legislation.
State liability for damage caused by space objects
Continuing with the laws of space, Article VII of the OST provides that launching States are internationally liable for damage caused by their space object to another State or its persons or property. This is further elaborated in the 1972 Liability Convention. A launching State is defined in the Liability Convention as a State that: (1) launches a space object; (2) procures the launching of a space object or (3) launches a space object from its (a) territory or (b) facility. The definition of a launching state was made broad intentionally, and implies that several States can qualify as launching State of a particular object. This way, a State that suffers damage can easily identify where to present its claim for compensation: it is a “victim-oriented approach”.
For damage on Earth or in the air, liability is absolute, meaning that no proof of fault is required. For damage in outer space, on the contrary, liability is based on fault. The difference between international responsibility and international liability can be confusing (in some languages there is only one word for both concepts, such as the French responsabilité or the Spanish responsabilidad). Responsibility can be seen as “due diligence”: States must take care that their entities conduct space activities while respecting the rules that the State itself follows. Liability comes into play when damage has occurred as a result of a space activity. Damage must be caused by a space object, which raises the question of how to define a space object.
The 1972 Liability Convention provides that “the term space object includes component parts of a space object as well as its launch vehicle and parts thereof” which is not a very precise definition. Generally, space object is understood to mean man-made objects launched into outer space. Questions may arise as to whether space debris is still a space object, or whether a satellite signal is a space object. Private entities cannot be held directly liable, and they can also not present a claim on their own; a claim must be addressed by one State to another State. So far, there is no case law concerning liability for damage caused by space objects. The liability under the Convention is unlimited, but States often introduce a cap on the liability, combined with mandatory liability insurance for their private entities in national law.
Jurisdiction and control, ownership of space objects and registration
Article VIII of the OST provides that a State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body, and ownership of objects is not affected by their presence in outer space. This is further elaborated in the 1976 Registration Convention. Objects must be registered nationally and also with the UN. Only a launching State may register a space object. This means that the State of registry is always a launching State, but not necessarily the only one; this is important because launching States can be held liable for damage. A station or installation constructed in space or on a celestial body is owned by the State of registry, which has jurisdiction over it.
Avoidance of harmful interference and harmful contamination
Concluding with the laws of space, Article XI of the OST provides that States must have due regard for each other’s activities, must avoid both the harmful contamination of outer space and adverse changes to the environment of the Earth, and that their activities must not cause harmful interference with the activities of other States. This article is often seen as the link to the issue of space debris mitigation and remediation, but it does not contain a clear legal obligation to not pollute space (mitigation) or to clean up debris (remediation).
Debris mitigation guidelines are contained in soft law instruments, such as the UN guidelines of 2007. Debris remediation, also called “active debris removal” (ADR) is not yet regulated, although the technology is being developed and a sense of urgency about cleaning up space is becoming apparent because it is essential to keep outer space sustainable for use by future generations. As far as “backward” and “forward” contamination are concerned, soft law principles of planetary protection are developed by COSPAR. These are the laws of space.