New Hampshire Bar Journal
2011 Spring, Pg. 62.
International Space Law: An Overview of Law and Issues
New Hampshire Bar JournalVolume 52, No. 1Spring 2011International Space Law: An Overview of Law and IssuesBy Michael J. ListnerINTRODUCTION
The space age has brought with it the excitement and drama of exploration and compelling tales about the people and technology that have made it possible. From the advent of space flight beginning with Sputnik, then with flights to the moon and the continuing use of the International Space Station, spaceflight has taken the center stage on many occasions. Less obvious is that there is a legal environment in which these activities take place.
This article discusses international space law in two parts. First, it covers the basics of international space law, including its sources, followed by a brief introduction of some of the issues and challenges that have developed in the jurisprudence of outer space and how they are being addressed. This article is not a comprehensive discussion of space laws nor does it discuss the origins or the policy decisions that led to their adoption.
THE FIVE SPACE LAW TREATIES
Space law is a creature of international law(fn1), which is a combination of customs and treaties.(fn2) An example of customary space law is the principle of free passage in space established when the USSR launched Sputnik into orbit and crossed over territories other than its own without protest from those countries.(fn3)
Most of the fundamentals of international space law were devised by the Legal Sub-Committee of the UN Committee for the Peaceful Uses of Outer Space (UNCOPUS).(fn4) Those fundamentals are that no nation can make territorial claims to outer space and celestial bodies within it; that nations have free access to space; that all nations are free to conduct scientific investigation in space; that national rights to space objects launched by them are preserved; and that nations will cooperate in rendering assistance to crews of spaceships in emergen-cies.(fn5) These principles form the basis of the founding five treaties that are the framework of international space law.(fn6) These treaties are:
1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies;(fn7)
2. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Space Objects Launched into Outer Space;(fn8) 3. Convention on International Liability for Damage Caused by Space Objects;(fn9) 4. Convention of Registration of Objects Launched into Outer Space;(fn10) 5. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.(fn11)
THE OUTER SPACE TREATY OF 1967
The primary treaty governing the law of space is The Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies or more commonly known as the Outer Space Treaty of I967. (fn12) The Outer Space Treaty was created shortly after UNCOPUS set forth its fundamentals governing the use of outer space and incorporates and expands upon those fundamentals and serves as the parent for the subject matter of the other four space law treaties.(fn13)
The overriding principle of the Outer Space Treaty is that space is the common heritage of all mankind and that all nations have access to space and the resources contained within it,(fn14) and that the territory in outer space, on the moon or other celestial bodies cannot be claimed by any nation.(fn15) This prohibition does not extend to private individuals or legal entities.(fn16)
The Outer Space Treaty requires that space be used for peaceful purposes.(fn17) There are several interpretations(fn18) of what "peaceful purpose" means. The predominant interpretation of "peaceful purposes" is that the establishment of military installations, fortifications, maneuvers or the testing of weapons are forbidden.(fn19) The presence of military personnel is permitted so long as they are engaged in peaceful activities, nor does the Outer Space Treaty prohibit the placement of equipment or facilities that are used for peaceful exploration."(fn20)
The Outer Space Treaty specifically bans the placement of nuclear weapons or any other weapon of mass destruction in the orbit of Earth or on any celestial body.(fn21) It does not specifically address the placement of non-nuclear weapons or those that are not capable of causing mass destruction.(fn22)
The Outer Space Treaty requires that a nation or State take responsibility for its activities in space or for the activities of nongovernmental entities that are under its jurisdiction as well as detailing the nature of objects launched into space and the nature of any activities performed in space,(fn24) and it imposes liability for any damages caused by a space object on Earth or to another State's property in the course of any space activity.(fn25)
The Outer Space Treaty also states that any space object launched continues to be the property of the State who launched it regardless of whether it lands in sovereignless territory or the territory of another State.(fn26) This precept of the Outer Space Treaty follows a similar principle of customary maritime law where there is no right of salvage to federal warships unless expressly abandoned.(fn27)
The Outer Space Treaty obligates States to preserve the environment of outer space in the course of their activities,(fn28) as well to allow other States to observe its space activities(fn29) and the duty to disclose the nature of its space activities.(fn30)
THE RESCUE AGREEMENT OF 1968
The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space [the Rescue Agreement] expands on the duties introduced in the Outer Space Treaty to render assistance to astronauts in distress.(fn31) The Rescue Agreement delineates the requirements of a State to come to the aid of astronauts in distress.(fn32) The Rescue Agreement also reinforces the principle that a spacecraft continues to belong to the State that launched it and requires that any spacecraft recovered by another State in the course of a rescue be returned.(fn33)
THE LIABILITY CONVENTION OF 1972
The Convention on International Liability for Damage Caused by Space Objects [the Liability Convention] expands the principles of liability for damage caused by space objects introduced in the Outer Space Treaty.(fn34) IWo scenarios are envisioned by the Liability Convention: 1) a space object causes damage to the surface of the earth or an aircraft in flight; or 2) a space object causes damage some place other than the surface of the earth, i.e. outer space or another celestial body.(fn35)
The first scenario holds a State strictly liable for any damage caused by a space object launched even in the face of circumstances that are outside its control.(fn36) If more than one State is responsible for the launch of the space object, then both States will be held joint and severally liable for damage caused.(fn37) Canada exercised its rights under this scenario when Cosmos 954(fn38) belonging to the USSR fell from orbit on January 24, 1978, and contaminated Canadian territory with debris from its onboard nuclear reactor.(fn39)
A State can be absolved from strict liability if it can show that a claimant was grossly negligent or had the intent to cause the damage sustained.(fn40) A State will not be exonerated in cases where its activities do not conform with international law (fn41)
The second scenario holds a State liable only if it can be shown that it was due to the fault of the State or States as the case may be.(fn42) It is under this scenario that a cause of action could be initiated in the matter of the collision between Iridium 33 satellite and the purportedly derelict Russian satellite Cosmos 2251(fn43) on February 10, 2009.
A State that has been damaged under either of the two scenarios can seek compensation under the Liability Convention without exhausting remedies locally available; however, if a claimant is in the process of pursuing remedies outside of the Liability Convention, it cannot pursue a claim under the Liability Convention until it completes that process.(fn44)
The Liability Convention does not specify a method or formula to determine what compensation is due to a claimant, but it does require that compensation be determined according to international law and the principles of justice and equity.(fn45 )Equitable compensation was negotiated between Canada and the USSR in the Cosmos 954 incident without the need of third-party intervention. The settlement of the claim was formalized though a diplomatic protocol signed in Moscow.(fn46)
The Liability Convention provides a means of third-party arbitration if agreement on compensation cannot be reached between the two parties. Under the Liability Convention, a Claims Commission can be formed at the request of either State. The determination of the Claims Commission is binding.
The Claims Commission consists of a representative from the launching State, a representative from the claimant State, and a chairperson chosen jointly by the two.(fn47) Either may request that the Secretary General of the UN appoint a chairperson if the two States involved cannot agree on the appointment within four months of the creation of the Claims Commission,(fn48)
THE REGISTRATION CONVENTION OF 1975
The Convention on Registration of Objects Launched into Outer Space [Registration Convention] builds on the principle of the Outer Space Treaty concerning the registration of objects launched by a State.(fn49) The impetus behind the Registration Convention is to ensure the peaceful use of outer space by creating a duty for States to create a registry of spacecraft that it launches and to make that registry available for public inspection.(fn50)