A Space Law Primer for Colorado Lawyers—Part 1: International Space Law, 0318 COBJ, Vol. 47, No. 3 Pg. 48
| Author | SKIP SMITH, J. |
| Position | Vol. 47, 3 [Page 48] |
SPACE LAW
SKIP SMITH, J.
International and national space laws impact many Colorado companies. This article addresses international space law. Part 2 will address U.S. national space law.
Space law is the collection of international and national laws governing space-related activities. Space law addresses a wide assortment of matters, such as the freedom of use and exploration of outer space by all nations, protection of the space and Earth environments, liability for damages caused by space objects, dispute resolution, rescue and return of astronauts and space objects, sharing of information about potential hazards in outer space, prevention of harmful interference, use of space-related technologies, licensing of satellite launches, and international cooperation.
Why is space law relevant to Colorado lawyers? It’s simple: Colorado has the second largest aerospace economy in the United States, with more than 400 aerospace companies and over 25,000 private aerospace workers.1 Colorado is home to Lockheed Martin Space Systems Company (satellite launch and manufacture, earth observation and exploration, human space fight, planetary and asteroid exploration); Ball Aerospace (satellite manufacture, astrophysics and planetary science, instruments and technologies, earth science); United Launch Alliance (satellite launch); EchoStar (the world’s fourth largest commercial satellite feet of 25 satellites); Digital Globe (owner and operator of earth remote sensing satellites); Sierra Nevada Corporation Space Systems (space technologies, spacecraft systems, space exploration systems); and many midsize and small subcontractors and suppliers of space goods and services.
Colorado is also the home of Air Force Space Command (military space), a National Oceanic and Atmospheric Administration Laboratory (civil space), the National Center for Atmospheric Research (a federally funded research and development center), and the Space Foundation (space education).
Additionally, Colorado is one mile closer to space than most other places! In short, many Colorado companies are involved in space activities, so Colorado lawyers are well-served by understanding the legal environment within which these companies operate. This two-part series will review the primary components of space law: international space law (part 1) and U.S. national space law (part 2).
The Venn diagram on the next page shows one way of looking at space law. The first component is international space law—mainly treaties and other international agreements. The second piece is domestic space law—many nations have developed detailed laws and regulations applicable to space activities, and the United States is clearly the leader in this effort.2
The United States has many laws specifically aimed at space activities, such as the Commercial Space Launch Act of 1984, as amended,3 the Land Remote-Sensing Policy Act of 1992,4 the U.S. Commercial Space Launch Competitiveness Act,5 and the Inventions in Outer Space Act.6
The third component is a large body of laws that were developed over centuries for other applications that now are being applied to space-related activities. For example, contract law governs contracts for the manufacture of satellites and for the launch of those satellites. Normal principles of contract drafting and interpretation apply to each of these transactions, which typically far exceed $100 million each.
The pyramid shows another way of looking at space law, with international and national space law as its foundation, upon which rest the many other legal principles and laws that impact space activities built on this base. Government and commercial contracts are a major aspect of space business. Many of the companies involved in space activities are government contractors. Dispute avoidance and resolution is a major part of space business and very often involves international dispute resolution forums such as the International Chamber of Commerce. Financing and insuring space-related activities are critical activities and are not that different from financing and insuring other large-dollar, high-risk business ventures.
The Five Major Space Treaties
There are five major outer space treaties that all came out of the United Nations in the late 1960s and 1970s. During this period, space-related issues generally involved two blocks of nations: those led by the Soviet Union and those led by the United States. The lack of subsequent development of international space treaties within the United Nations is likely due to the end of the Cold War and the increasing number of space-faring nations. In many ways, negotiations between two primary blocks, with relative parity in space power, was easier. Negotiations now must occur among the many space powers including, but certainly not limited to, the United States, Russia, China, Europe (with its own internal divisions), India, and Japan. Developing countries also have considerable weight within the U.N. system, where each country has one vote.
Within the United Nations, the Committee on the Peaceful Uses of Outer Space (COPUOS) was instrumental in establishing the five treaties. COPUOS has two bodies: the Scientific and Technical Subcommittee and the Legal Subcommittee, both of which were established in 1961.7
The Outer Space Treaty
The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,8 is best known simply as the Outer Space Treaty. It has 105 parties, including all of the space powers.9 This treaty was based mainly on an earlier Declaration that was adopted by the U.N. General Assembly in 1963. The Outer Space Treaty entered into force in 1967.
The Outer Space Treaty is the “Magna Carta” of space law. It establishes broad, general principles for the use and exploration of outer space. This Treaty establishes the basic rights, duties, and responsibilities of nations with respect to conducting activities in space. In general, the Outer Space Treaty establishes a legal regime that is favorable to commercial activities in space. It recognizes the legitimacy of activities by private enterprise in outer space, although nations bear responsibility and liability for the space activities of their non-governmental agencies.[10] Furthermore, the Treaty calls for space activities to be conducted with due regard to the corresponding interests of other parties, and if an activity may cause harmful interference with the outer space activities of other parties, consultation should occur before the activity may proceed.11
Article I establishes that the exploration and use of outer space shall be conducted “for the benefit and in the interests of all countries . . . and shall be the province of all mankind.” This “common interests” principle must not be confused with the “common heritage of mankind”12 concept discussed below.13 The common interests principle is inherently vague and imposes no requirement for direct sharing of benefits in any specifc manner; it requires only that space activities be beneficial in a very general sense.14 Notwithstanding, history has shown that practically every nation has benefited in some manner from the exploration and use of space. These benefits include the availability of weather and other remote sensing information from satellites, access to international and domestic telecommunication satellites, universal use of global positioning information, and increased knowledge about our universe.15 All of these benefits have been realized by developing countries without their risk of investment capital.
Article I also establishes the principle of the freedom of exploration and use of outer space. As with the freedoms of the high seas,16 the freedom of use of outer space must be exercised with regard to the interests of other states so that their exercise of such freedoms is not unreasonably denied. Otherwise, there would be no meaning to the freedom-of-use provision. In application, the freedom-of-use-principle probably has been the most important principle in the Outer Space Treaty. It has created a legal environment within which many governmental and non-governmental space activities have been able to flourish.
Article II establishes that outer space is “not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”17 The purpose of the non-appropriation clause was to implement the freedom of use principle. Appropriation is inconsistent with freedom of use. This clause also furthers the common interests principle because appropriation of an area may only benefit the appropriator.
Article III extends the U.N. Charter and international law, in general, to space. It beckons nations to conduct space activities “in the interest of maintaining international peace and security and promoting international co-operation and understanding.”18 The general extension of international law to space is very important. Because of Article III, gaps in the space treaties may be filled by principles of customary international law and other international law principles. For example, principles of self-defense and the law of armed conflict are well-defined in other domains, and they may be applied with respect to space.
Article IV addresses arms control issues in space. Nations may not place nuclear weapons or other weapons of mass destruction in earth orbit, on celestial bodies or in other areas of outer space, and the Moon and other celestial bodies are to be used “exclusively for peaceful...
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