Structuring the Governance of Space Activities Worldwide

• Citation: Vol. 48 No. 3
• Publication year: 2020
• topic: Aeronautics,Business of Law,Charity and Non-Profit Law,Civil Rights,Commercial Litigation,Bankruptcy and Insolvency,Construction Law,Contracts,Trust Law,Criminal procedure,Administrative Law,Environmental Law,Banking and Finance Law,Constitutional Law,Family Law,Trademark,Patent law,Intellectual Property,Insurance Law,Corporate / Commercial,Tax Law,Labor Law,Immigration Law,Criminal Law,Copyright law,Energy & Natural Resources,Entertainment Law,Federal,Health Law,Indigenous Law,Employment Law,Mergers and Acquisitions,Contracts law,Ongoing or Prospective Litigation,Personal Injury Law,Civil Procedure,Product Liability Law,Public Sector Law,Real Estate,Securities Law,Social Security,Technology,Transportation,Upcoming Legislation,Upcoming Regulations,Utilities,Wills, Trusts and Estates,Workers Compensation,Internet, Media and Communications,Consumer Law,Military Law

Structuring the Governance of Space Activities Worldwide

Frans G. von der Dunk^*

Table of Contents

I. Introduction................................................................................646

II. The Structure of Governance Under International Space Law: The Problems......................................................................647

III. The Structure of Governance Under International Space Law: The Solutions?...................................................................652

IV. Conclusion...................................................................................658

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I. Introduction

Outer space is widely considered to be something of a global commons, an international domain outside the jurisdiction of any country¹ that "belongs to no state and is, in law, as such not subject to appropriation, though its resources are."² This is also reflected by key provisions of the 1967 Outer Space Treaty,³ the most comprehensive convention on outer space and space activities, notably that "[o]uter 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"⁴ and that "[o]uter space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law . . . ."⁵

The governance of such a "global commons" therefore cannot follow from the authority of a single nation. Such governance requires a foundation in international law, read effectively international treaty law. While customary international law constitutes the other primary source of international law,⁶ due to its fluidity, as long as not codified, it would be rather ill equipped to offer something like a governance structure at the required level of precision.

It is through such a structure, that the substance of any limitations to the baseline freedom of activities ("exploration and use," in the terms of Article I of the Outer Space Treaty⁷ ) in outer space would be provided. The substance would come from international treaty law, such as the Outer Space Treaty itself, or in this context possibly also as coming from customary international law, general principles of international law,⁸ or any other relevant sources of international law.

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Consequently, as states are still the primary makers⁹ and breakers¹⁰ of international law, the core of the governance structure for outer space and activities conducted in that realm lies in the role that each state has to fulfill with respect to activities by other categories of legal subjects active in this "global commons," notably intergovernmental organizations and private sector entities. That role is essentially defined by a limited set of clauses of the Outer Space Treaty, some of which have been further elaborated, notably by the 1972 Liability Convention¹¹ and the 1975 Registration Convention.¹²

II. The Structure of Governance Under International Space Law: The Problems

The most important clause regarding the structure of governance under international space law emanates from Article VI of the Outer Space Treaty, which provides first that "States Parties to the Treaty shall bear international responsibility for national activities in outer space . . . whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty."¹³ In other words, states are required to ensure that private sector entities engaged in activities in outer space comply with the rules of the Outer Space Treaty, and by inference of all of international space law,¹⁴ to the extent they are "national activities" in outer space.¹⁵ Precisely for this purpose, Article VI also "require[s] authorization

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and continuing supervision by the appropriate State" of "[t]he activities of non-governmental entities in outer space."¹⁶

As for international organizations, Article VI furthermore provides that "[w]hen activities are carried on in outer space . . . by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization."¹⁷ Article XIII of the Outer Space Treaty, perceiving such organizations as offering a "framework" for states to conduct joint space activities, also requires that

[a]ny practical questions arising in connection with activities carried on by international intergovernmental organizations in the exploration and use of outer space . . . shall be resolved by the States Parties to the Treaty either with the appropriate international organization or with one or more States members of that international organization, which are Parties to this Treaty.¹⁸

Taken together, therefore, these clauses clarify that states always retain at least a residual responsibility for ensuring that intergovernmental organizations of which they form part will comply with international space law.

In short, states were bestowed with the task to act as supreme guardians of any relevant rules of international space law developed by them. Additionally, when or to the extent that other categories of entities were undertaking space activities, states were to be held more or less directly responsible if they somehow failed to adequately exercise this guardianship. This balance represents the cornerstone of all governance of outer space and space activities.

As for international organizations, this did not result in too many problems, partly because the amount of intergovernmental organizations truly active in outer space remained confined to more or less a handful of cases.¹⁹ On a more or less global scale this referred to INTELSAT²⁰ and INMARSAT²¹ prior to

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their privatization in the late 1990s and early 2000s,²² as well as INTERSPUTNIK²³ and INTERKOSMOS²⁴ ; on a regional scale this referred to ESA²⁵ , EUTELSAT²⁶ (prior to its privatization in the early 2000s), EUMETSAT²⁷ and ARABSAT.²⁸ In any event where such an intergovernmental organization might be accused of violating international space law, there was no doubt that the collective member states would be held directly responsible for such behavior.

As for private enterprise, however, things turned out to be more complicated. At the time the main space treaties were drafted in the late 1960s until mid-1970s, the participation of private entities in the space sector was basically limited to manufacturing hardware for use by governmental and some intergovernmental activity in outer space, rather than going into outer space themselves.²⁹ The fairly summary set of provisions of the key UN space treaties was seen as more than sufficient to deal with such participation, and to the extent any possible fundamental extension thereof to activities in outer space was foreseen, was simply expected to be sufficient to deal with those as

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well.³⁰ Starting slowly in the early 1970s and gathering pace with leaps and bounds throughout the 1980s and beyond, the private sector did engage itself more fundamentally in space activities—notably, at first, with satellite communications and launching, and next to some extent satellite remote sensing.³¹ However specific issues with this summary system of governance became apparent even in the realm of structure.³²

The lack of a clear definition of what comprised "national" activities in outer space conducted by private enterprise, in other words of which categories of private actors any particular state would be held responsible for, in combination with the closely related but separately arranged liability for damage caused by space activities, resulted in considerable confusion.³³ Regarding responsibility itself, Article VI of the Outer Space Treaty itself only (re)established the concept of state responsibility in the particular context of outer space activities while providing for a rather vaguely defined scope thereof by way of the concept of national activities in outer space.³⁴

First, it did not provide any details with respect to the consequences in law of a state having incurred such responsibility for violation of the rules of space law. Article III—as analyzed before effectively importing general public international law into space law specifically—allows reference to the general principles of public international law regarding state responsibility. This brings up another problem.³⁵ Under those principles, three standard forms of reparation redeem a State's responsibility: (1) restitutio in integrum; (2) compensation; and (3) satisfaction, in conjunction with cessation of any unlawful activities or promises to prevent recurrence in the future.³⁶ As compensation

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in many cases would be the logical version of reparation for an internationally wrongful act involving damage, the result would be an overlap with the concept of liability—as liability is precisely all about compensating for damage.

Second, therefore, as the conceptual dividing line between applying responsibility per Article VI—potentially giving rise to an obligation to compensate—and applying liability per Article VII and the Liability Convention, essentially doing the same has never been properly defined.³⁷ The two concepts allocate the respective accountability quite differently. Responsibility applies for national activities in outer space where liability for cases where the state qualifies as a launching state. The result is an absence of any certainty on the precise potential legal consequences of many categories of relevant activities.³⁸

Article VII of the Outer Space Treaty, as further elaborated by the Liability Convention, establishes liability for damage caused by space objects, attributing such liability to...