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The International Law of Outer Space: Regulating the Infinite

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Subsequent to the launch of Sputnik 1, the first artificial satellite, there has been an upsurge in the development of tools and technology for space travel, exploration and exploitation. Post-Sputnik period had also seen a great demand for regulating the conditions for peaceful and equitable exploitation of the abundant resources and possibilities offered by outer space. The States holding a stake in the peaceful use of outer space resources sought to resolve the conundrum by coming together under the aegis of the United Nations. The period between 1960 and 1990 saw the codification of various declaration and principles, which culminated in the formulation and signing of the Outer Space Treaty in 1967.[1] The Outer Space Treaty has been supplemented subsequently by five major agreements- the Liability Convention,[2] the Registration Convention[3], the Rescue Agreement[4] and the Moon Agreement[5], along with minor agreements specific to the development of telecommunications technology and remote sensing.

The broad principles outlined in the above agreements cover issues such as sovereignty, exploration, use, jurisdiction, responsibility, liability and cooperation. It is essential that we analyse these agreements in the light of the above issues in order to fully understand the legal regime governing outer space.

Sovereignty, Exploration and Use

The rule of usque ad coelum which provides for unrestricted state sovereignty over its territorial airspace, failed to remain feasible on account of space exploration. The sovereignty of state, thereafter, has been limited to the height where airspace meets space itself.[6] As such, the fear of the foregoing potentially valuable sovereign rights has prevented any agreement on the delimitation of outer space.[7]

Owing to the constant uncertainty and failure to delimit, the States have applied the international law principles of res communis in order that no portion of outer space may be appropriated to the sovereignty of individual states.[8]

The Outer Space Treaty, while not providing for delimitation, provides a framework for the exploration and use of outer space, keeping in mind the benefit and in the interests of all countries.[9] The treaty permits only peaceful exploration and use of resources in outer space, prohibiting the placement of any object carrying nuclear weapons or any other kind of weapons of mass destruction, in the orbit around the Earth along with a ban on the installation of such weapons on celestial bodies or in any other manner in outer space.[10] While aggressive military activity is banned, the treaty permits the use of military personnel for scientific and peaceful purposes.[11]

The Moon Agreement provides for the demilitarisation of moon and other celestial bodies and reiterates most of the principles contained in the Outer Space Treaty.[12]Exploration and use of moon and other celestial bodies is to consider these resources as common heritage of mankind[13], to be used for the benefit of all mankind[14] and not subjected to national appropriation by any means. No private rights of ownership exist over the moon or any part of it or its natural resources.[15]

The Moon Agreement goes further to provide a comprehensive framework for the establishment of an international regime regulating the exploitation of the resources[16] of the moon, as and when it becomes viable.[17] A moratorium on exploitation has been placed till then, although not on ‘exploration and use’ such as the collection of samples and their removal.[18] The predominant reasons for the establishment of such a regime have been listed as under-

(a) The orderly and safe development of the natural resources of the Moon;

 (b) The rational management of those resources;

 (c) The expansion of opportunities in the use of those resources;

 (d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon, shall be given special consideration.[19]

One of the most predominant features of both the Moon Agreement and the Outer Space Treaty has been the principle of equality in the exploitation of resources.[20] In line with these principles, the Declaration on International Cooperation in the Exploration and Use of Outer Space[21] provides for international cooperation for the benefit and interests of developing countries and countries with incipient Space programmes stemming through the cooperation of countries with advanced capabilities. Such resolutions form state practice and opinio juris in many cases, thereby constituting ‘instant’ custom.[22]

Responsibility, Jurisdiction and Liability

The responsibility of national activities in outer space, the moon and other celestial bodies, whether being carried out by governmental agencies or non-governmental entities, is to be borne by the relevant State parties.[23] The State(s) shall also bear the responsibility for compliance with the treaty.[24]The activities of non-governmental agencies require authorisation and continuing supervision by the appropriate State party to the Treaty and in case, the activity is being carried out by an international organisation, by both the international organisation and the member states.[25]The same principle applies in case of national activities involving the use of nuclear power sources in outer space.[26]

Prior to the launch of a satellite, the launching state is to ensure that a thorough and comprehensive safety assessment is conducted and made publicly available and where a space object malfunctions, with the risk of re-entry of radioactive materials to the Earth, the launching state is duty bound to inform the State affected and the UN Secretary General and respond quickly to requests for further information.[27]

The jurisdiction and liability with respect to a lunched object lies with the launching state.[28]As such, States are made responsible for any damage caused to other State(s) by their space objects.[29]On the surface of the Earth or to aircraft in flight, the liability for damage caused by a space object is ‘absolute’ in nature,[30]whereas, for damage caused elsewhere to persons or property on board a space object entails a fault liability.[31]The payment of compensation in case of damage caused by space objects has to be in accordance with international law and with due regard, to the principles of justice and equity[32].

Miscellaneous

The Registration Convention, while defining ‘launching state’[33] simply requires the registration of space objects and allied information such as purpose, location etc. with the U.N. Secretary General[34]. Legal framework for the provision of emergency assistance to astronauts, as well conditions for search and rescue guaranteeing prompt return are provided under the Rescue Agreement.[35]

The effectiveness of the legal regime of outer space has been most notable in the field of telecommunications and remote sensing, based upon the reconciliation between the freedom of information and state sovereignty. Though the formulation of treaties and conventions codifying international space law had been phenomenal, state participation remains low with most South Asian and African countries not participating or remaining passive participation, as scientific and technological development in these countries remaining low.[36] The rapid progress in the space programmes in the West as well as the emerging ones in India and China calls for a more exhaustive and efficient legal regime.

by Siddhartha Singh

 

  1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and other Celestial Bodies, Jan. 27, 1967, 610 U.N.T.S 8843 , [hereinafter called the Outer Space Treaty] (https://treaties.un.org/doc/Publication/UNTS/Volume%20610/volume-610-I-8843-English.pdf) (accessed 27 January  2015)
  2. Convention on International Liability for Damage Caused by Space Objects, March 29, 1972, 961 U.N.T.S. 187 , [hereinafter called the Liability Convention] (http://www.unoosa.org/pdf/publications/ST_SPACE_061Rev01E.pdf) (accessed 29 January  2015)
  3. Convention on the Registration of Objects Launched Into Outer Space, Jan. 14, 1975, 1023 U.N.T.S. 15, [hereinafter called the Registration Convention] (http://www.unoosa.org/pdf/publications/ST_SPACE_061Rev01E.pdf) (accessed 29 January  2015)
  4. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched Into Outer Space, Apr. 22, 1968, 672 U.N.T.S 9574, [hereinafter called the Rescue Agreement]  (http://www.unoosa.org/pdf/publications/ST_SPACE_061Rev01E.pdf) (accessed 29 January  2015)
  5. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, U.N. Doc. A 34, 46, [hereinafter  called the Moon Agreement] (http://www.unoosa.org/pdf/publications/ST_SPACE_061Rev01E.pdf) (accessed 29 January  2015)
  6. MALCOLM N. SHAW, INTERNATIONAL LAW, at 543 (6th ed. 2008),[hereinafter  SHAW] (http://www.academia.edu/3386070/Malcolm_N._Shaw_-_International_Law_6th_edition_2008 ) (accessed 30 January  2015)
  7. Id. at 544.
  8. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, U.N.G.A. Res. 1962 (XVIII), 1963 (http://www.unoosa.org/oosa/SpaceLaw/gares/html/gares_18_1962.html) (accessed 31 January  2015)
  9. Outer Space Treaty, supra note 1, art. 1.
  10. Outer Space Treaty, supra note 1, art. 4.
  11. Id.
  12. SHAW, supra note 6, at 548.
  13. Moon Agreement, supra note 5, art. XI.
  14. Moon Agreement, supra note 5, art. IV.
  15. Moon Agreement, supra note 5, art. XI.
  16. Moon Agreement, supra note 5, art. XI(2).
  17. Moon Agreement, supra note 5, art. XI(5).
  18. Moon Agreement, supra note 5, art. XI(4).
  19. Moon Agreement, supra note 5, art. XI(7).
  20. Outer Space Treaty, supra note 1, art. 1; Moon Agreement, supra note 5, art. II.
  21. U.N. GAOR, 51st Sess., Supp. No. 122., U.N. Doc. A/51/122 (1996)(http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/51/122) (accessed 31 January 2015).
  22. BIN CHENG, UNITED NATIONS RESOLUTIONS ON OUTER SPACE: ‘INSTANT’ INTERNATIONAL CUSTOMARY LAW, 5 IJIL, 23(1965).
  23. Outer Space Treaty, supra note 1, art. 6.
  24. Id.
  25. Id. See BIN CHENG, ART VI OF THE 1967 TREATY REVISITED, 1 Journal of Space Law, 7 (1998).
  26. Principles Relevant to the Use of Nuclear Power Sources in Outer Space, U.N. GAOR, 47th Sess., Supp. No.68, U.N. Doc. 47/68 (http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/47/68) (accessed 31 January 2015)
  27. Id.
  28. Outer Space Treaty, supra note 1, art. 8.
  29. Outer Space Treaty, supra note 1, art. 9.
  30. Liability Convention, supra note 2, art. II.
  31. Liability Convention, supra note 2, art. III.
  32. Liability Convention, supra note 2, art. XII.
  33. Registration Convention, supra note 3, art. I.
  34. Registration Convention, supra note 3, art. II.
  35. Rescue Agreement, supra note 4, arts. 1-2.
  36. J-A van Wyk, Overview of the Implementation Status of the Five United Nations Treaties on Outer Space in African Countries, 12, African Skies, 90, 91-93 (2008) (http://www.saao.ac.za/~wgssa/archive/as12/van_wyk.pdf) (accessed 31 January 2015)