Space law is that body of regulation, which oversees space-related activities, comprising both international and domestic agreements, rules, and principles. Parameters of space includelude space exploration, liability for damage, weapons use, rescue effortsenvironmental preservationtion, information sharing, new technologies, and ethics.[1]“Space law addresses a variety of matters, such as, for example, the preservation of the space and Earth environment, liability for damages caused by space objects, the settlement of disputes, the rescue of astronauts, the sharing of information about potential dangers in outer space, the use of space-related technologies, and international cooperation. A number of fundamental principles guide the conduct of space activities, including the notion of space as the province of all humankind, the freedom of exploration and use of outer space by all states without discrimination, and the principle of non-appropriation of outer space.”[2]
Other fields of law, such as administrative law, intellectual property law, arms control law, insurance law, environmental law, criminal law, and commercial law, are also integrated ie-law space law.[3]
The foundations of this law were set back to dates as back as 1919, with it being recognized internationally as well. In addition to this, each country’s sovereignty over the airspace directly above their wasritory, was discussed and later strengthened at the Chicago Convention in 1944. “The onset of domestic space programs during the Cold War propelled the official creation of international space policy (i.e., the International Geophysical Year) initiated by the International Council of Scientific Unions. The Soviet Union’s 1957 launch of the world’s first artificial satellite, Sputnik 1, directly spurred the United States Congress to pass the Space Act, thus creating the National Aeronautics and Space Administration (NASA).[3][6] Because space exploration required crossing transnational boundaries, it was during ththata where space law became a field independent from traditional aerospace law.”[4]
Development of Space Law
Since the Cold War, the Treaty on Principles Governing the Activities of States in the Expl ation and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty”) and the International Telecommunication Union have served as the constitutional legal framework and set of principles and procedures constituting space law.[5]In addition to this the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), alongside its Legal and Scientific and Technical Subcommittees, were in charge for pondering over the matters concerning international space law and policy. The United Nations Office for Outer Space Affairs (UNOOSA) serves as the secretariat of the committee and is promoting Access to Space for All through a wide range of conferences and capacity-building programs.[6] Challenges that space law will continue to face in the future are fourfold—spanning across dimensions of domestic compliance, international cooperation, ethics, and the advent of scientific innovations.[7] Furthermore, specific guidelines on the definition of airspace have yet to be universally determined.[8]
Shortly after the launch of the first manmade satellite in 1957, the United Nations (UN) took the lead in formulating international rules governing space activities. The five international conventions (the 1967 Outer Space Treaty, the 1968 Rescue Agreement, the 1972 Liability Convention, the 1975 Registration Convention, and the 1979 Moon Agreement) within the UN framework constitute the nucleus of space law, which laid a solid legal foundation securing the smooth development of space activities in the next few decades. Outer space was soon found to be a place with abundant opportunities for commercialization. Telecommunications services proved to be the first successful space commercial application, to be followed by remote sensing and global navigation services. In the last decade, the rapid development of space technologies has brought space tourism and space mining to the forefront of space commercialization. With more and more commercial activities taking place on a daily basis from the 1980s, the existing space law faces severe challenges.
The five conventions, enacted in a time when space was monopolized by two superpowers, failed to consider the commercial aspect of space activities. While there is an urgent need for new rules to deal with the ongoing trend of space commercialization, international society faces difficulties in adopting new rules due to diversified concerns over national interests and adjusts the legislative strategies by enacting soft laws. In view of the difficulty in adopting legally binding rules at the international level, states are encouraged to enact their own national space legislation providing sufficient guidance for their domestic space commercial activities. In the foreseeable future, it is expected that the development of soft laws and national space legislation will be the mainstream regulatory activities in the space field, especially for commercial space activities.
The Legal sub-committee of the Convention on International Liability for Damage Caused by Space Objects measured carefully and concluded The Liability Convention for the year 1963 till 1972. The General Assembly received the Agreement in 1971 as “Resolution XXVI”. In effect to this, the Convention came into force in the year 1972. Article 7 of the Outer Space Treaty the Liability Convention provides that a launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft, and liable for damage due to its faults in space.[9] In addition to this, The Convention also stipulates on measures for the reimbursement of claims for damages.
The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, was principally based on the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. The same was implemented and approved by the General Assembly in its1962 Resolution XVIII, with adding a few more new provisions. The three reservoir Governments (The Russian Federation, the United Kingdom, and The United States of America), opened up to sign the Treaty in January 1967. The same came into force in the year October 1967. “The Outer Space Treaty provides the basic framework on international space law, including the following principles:
- The exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind,
- Outer space shall be free for exploration and use by all States,
- Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means,
- States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner,
- The Moon and other celestial bodies shall be used exclusively for peaceful purposes, Astronauts shall be regarded as the envoys of mankind,
- States shall be responsible for national space activities whether carried out by governmental or non-governmental entities,
- States shall be liable for damage caused by their space objects; and
- States shall avoid harmful contamination of space and celestial bodies.”[10]
These Treaties so enforced and brought into existence are one of the most noteworthy and substantial legal-based treaties. The same which was a landmark achievement achieved in the second half of the twentieth century. All these Treaties have been adopted by the United Nations General Assembly. The Outer Space Treaty set forth the fundamental practicalities of international management and obligations of space activities. It therefore recognized the structure and outlined the current legitimate legal system of outer space and celestial bodies.
Summary of Key Principles of Outer Space Treaty
Currently, the Treaty has accepted 25 signatures and 99 ratifications so far. “From among several preambular paragraphs of the Treaty, two paragraphs should in particular be recalled since they spell out the purposes for concluding the Outer Space Treaty in an outstanding manner: the desire “to contribute to broad international cooperation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes”; and the belief “that such cooperation will contribute to the development of mutual understanding and to the strengthening of friendly relations between States and peoples”. Both adequately reflect the historical conditions of the origin of the Outer Space Treaty, which was not only a response to the scientific and technical needs of that epoch, but also a substantive contribution to a détente in the cold war.”[11] “From the language of the first three articles of the Outer Space Treaty the following elements can be derived:
- Recognition of the common interest of mankind in the exploration and use of outer space, including the Moon and other celestial bodies, as an area for space activities of all countries, without any difference in their economic and scientific development; such exploration and use having become “the province of all mankind”,
- Recognition of the freedom of outer space, including the Moon and other celestial bodies, for exploration and use by all States, on a basis of equality and in accordance with international law,
- Stipulation of free access to all areas of celestial bodies,
- Recognition of the freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and promotion of international cooperation in such investigation,
- Renunciation of national appropriation of outer space, including the Moon and other celestial bodies, by any means; and
- Confirmation of the applicability of international law, including the Charter of the United Nations, to activities in the exploration and use of outer space, the Moon and other celestial bodies, in the interest of maintaining peace and security and promoting international cooperation and understanding.”[12]
The uses of outer space not only yield great rewards for humankind but also present us with serious risks due to the ultra-hazardous nature of space exploration.[13] This is aptly illustrated by the lives lost in the space shuttle Challenger (1986) and Columbia (2003) disasters. One such risk associated with the use of outer space is collisions that occur in space between man-made space objects and man-made space debris. Collisions of this kind can cause injury to persons, damage to functioning spacecraft and satellites, the creation of additional space debris and the de-orbiting of objects and their uncontrolled return to the earth.[14]
Considering these risks, the legal regime relative to outer space does not adequately manage state liability for space object collisions occurring in outer space.[15] Article VII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon, and Other Celestial Bodies (Outer Space Treaty),[16]‘provides for comprehensive international state liability for damage arising from the launch of a space object’.[17] The Outer Space Treaty is a framework convention under which sits the Convention on International Liability for Damage Caused by Space Objects (Liability Convention).[18] The Liability Convention ‘expands on this general principle of international state liability for damage resulting from a space object’.[19] “Like any typical liability regime, the Liability Convention focuses on causation and damage. In addition to requiring the elements of causation and damage, Article III, which imposes liability, curiously requires proof of fault for liability to be assigned to a state and thus provide a claimant state with a right to compensation.”[20] Article III states:
“In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.”[21]
In my opinion the Treaty is a bit underdeveloped, in the sense that, for example: there is a clear absence of clarity in Article III, as well as the conventional law of liability. This pushes one to rely on general principles of international law. Consequently, as it presently stands, the Liability Convention’s position on fault, as stated above, is to be construed in relation to the regime of state responsibility. Here the fault is pertinent to note at the level of essential rules. Questionably, the primary fundamental regulation that comprises a standard fault in due diligence. Soft law guidelines do not explicitly tell us anything in relation to fault, but where their use may lie is in the establishment of guidelines in relation to standards of care and acceptable behavior in space.
[1] "Space Law". United Nations Office for Outer Space Affairs. (Retrieved from: Space Law (unoosa.org)). [2] Ibid. [3] Research paper written by: Gabrynowicz, Joanne Irene (2004). "Space law: Its Cold War origins and challenges in the era of globalization". Suffolk University Law Review. Retrieved from: Hein online. [4] Space law - Wikipedia [5] The Outer Space Treaty, by Robert. Wickramatunga, www.unoosa.org. Retrieved 14/03/2022. [6] history.nasa.gov. Retrieved from: history.nasa.gov [7] Jacques, Arnould (2011-09-15). Icarus' Second Chance: The Basis and Perspectives of Space Ethics. ISBN 9783709107126. [8] Ibid. [9] Liability Convention (unoosa.org) [10] The Outer Space Treaty (unoosa.org) [11] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (un.org) [12] Ibid. [13] See generally Beer, ‘The Specific Risks Associated with Collisions in Outer Space and the Return to Earth of Space Objects: The Legal Perspective’, 25 Air and Space Law (ASL) (2000) 42, at 42. [14] See generally United Nations Office for Outer Space Affairs, Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space (Debris Mitigation Guidelines), January 2010; Beer, supra note 1, at 42; Punnakanta, ‘Space Torts: Applying Nuisance and Negligence to Orbital Debris’, 86 California Law Review (2012– 2013) 163, at 164, 171. [15] F. Lyall and P.B. Larsen, Space Law: A Treatise (2009), at 108–109. [16] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty) 1967, 610 UNTS 205, Art. VII. The status of the Outer Space Treaty as of 1 January 2017 is 105 ratifications: 25 signatures. [17] Kerrest and Smith, ‘Article VII’, in S. Hobe, B. Schmidt-Tedd and K.U. Schrogl (eds), Cologne Commentary on Space Law, vol. 1: Outer Space Treaty (2009), at 128. [18] Convention on International Liability for Damage Caused by Space Objects (Liability Convention) 1972, 961 UNTS 187. The status of the Liability Convention as of 1 January 2017 is 94 ratifications: 20 signatures and three declarations of acceptance of rights and obligations. [19] Kerrest and Smith, supra note 13, at 129. [20] State Liability for Space Object Collisions: The Proper Interpretation of ‘Fault’ for the Purposes of International Space Law | European Journal of International Law | Oxford Academic (oup.com) [21] Liability Convention, supra note 14, Art. III.
