The fact that this part of international law is essentially unknown, and any broad knowledge of the relevance of outer space for our everyday lives and future is on a relatively low level, was the inspiration and reasoning for my choice to create this article about international space law. As a result, the majority of people are ignorant that many essential services, such as telephony, communication, navigation, and other technologies, are now directly dependent on and related to space. Space affects us all, Because of the immense expanses of outer space, which are also exploited for military reasons, it is critical to establish an acceptable legal system that preserves the rule of law and prohibits monopolization and national ownership of space. Exploration and use of space should be regulated to preserve the interests and benefits of all countries, preventing a few select countries with both the technology and the power to occupy and impose the divide et impera concept.
LEGISLATION REGULATING THE EXPLOITATION OF OUTER SPACE
2.1 Partial Test Ban Treaty, 1963
The “Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water”, also referred to as the Partial Test Ban Treaty (PTBT), Limited Test Ban Treaty (LTBT), or Nuclear Test Ban Treaty. The partial test ban treaty currently has 117 parties, including the United States. Countries are known to have tested nuclear weapons, but which have not signed the treaty are China, France, and North Korea. The Partial test ban treaty is not a UN space treaty however it is the first multilateral treaty that contains specific international legal obligations on the usage of space by countries. It requires countries to prohibit and prevent the testing of nuclear weapons in space by their agencies and nationals (Article 1). Since this requirement is not repeated in other UN space treaties, only the parties to this treaty are prohibited from testing such weapons in space. OST prohibits the deployment of weapons of mass destruction in space and stipulates a complete demilitarization of celestial bodies. Consequently, this inherently also prevents the testing of nuclear weapons on celestial bodies.
2.2 Outer Space Treaty of 1967
The ‘Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies’, also referred to as ‘Outer space treaty (OST)’ or ‘Magna Carta of Space’; is the primary and basic legal instrument governing the law of outer space. It was created after UNCOPUOS presented its basic principles governing the usage of outer space and was built upon those foundations. Since its creation in 1967 it has been ratified by 102 countries, 27 countries have signed the treaty but have yet not completed ratified it. The last country to accede to the treaty was Azerbaijan.
Hereafter is a list of the principles presented in OST:
- Outer space is “the province of all mankind” and serves as the parent for the subject matter of the other four space law treaties
- Outer space is used for peaceful purposes
- Placement of nuclear weapons or any other weapon of mass destruction in the orbit of Earth or on any celestial body is strictly prohibited
- States are required to render assistance to astronauts in distress whether, in space, the high seas, or within the territories of another nation, and are obliged to inform others of conditions that may prove hazardous to astronauts
- States are required to take responsibility for the activities in outer space of non-governmental entities that are under its jurisdiction, as well as detailing the natures of objects launched into space and the natures of any activities performed in space, and to furthermore impose liabilities for any damages caused by a space object on Earth or to another State’s property in the course of any space activity
- Any object launched continues to be the property of the State that launched it regardless of whether it lands in the sovereign territory or the territory of another State.
- States are obliged to preserve the environment of outer space in the course of their activities and allow other states to observe its space activities and also duly disclose the nature of its space activities.
In the 1960s there were concerns that UN treaties and principles would develop under the prevailing influences of the US and USSR, as at that time they were the most (and only) powerful and influential countries, although the power should have been diffused in the manner of a multipolar world.
OST proves that the UN was aware of the possible consequences if a res nullius regime concerning outer space were to be permitted, and this was the initial focus of the drafters of the OST. The drafters rejected the concept of res nullius which would have treated outer space as “unclaimed territory” available for conquest since it belonged to no one. This would inevitably have led to the national appropriation of the celestial bodies and the rejection of the rights of others. Similar regimes regarding colonialism that took place from the 15th until the early 20th centuries, brought mankind to the 1st World War and this could be repeated once more, but this time with the possibility of even more severe consequences, due to the possible use of weapons of mass destruction, such as nuclear weapons in outer space. Therefore, it was of utmost importance that the UN endeavored and succeeded in enforcing with mutual recognition a basic legal framework of international space law and applying the principle res communis omnium – all entities, individual or corporate, and nations have common access to the resources and are precluded from making any claims of ownership. The question is whether this legal regime is still appropriate after 60 years.
2.3 Rescue Agreement of 1968
The ‘Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space,' also known as the ‘Rescue Agreement,' is a treaty between the United Nations and the International Space Station.; is an international agreement that expands on those duties introduced in Article 5 of the OST for rendering assistance to astronauts in distress. It does not include any provisions that would directly affect the exploitation of outer space. Since its creation in 1967 it has been ratified by 92 countries, 24 countries have signed the treaty but have yet not completed ratification. The agreements have also been signed o by two international inter-governmental organizations – the ESA and the European Organisation for the Exploitation of Meteorological Satellites. The Rescue Agreement delineates the requirement of a state to come to the aid of astronauts in distress and reinforces the principle that a spacecraft will continue to belong to the State that launched it and requires that it must be returned in the event of a rescue.
2.4 Liability Convention of 1972
‘The Convention on International Liability for Damage Caused by Space Objects, also known as the Space Liability Convention’, also referred to as the ‘Liability Convention’; is a treaty that expands on the liability rules for damage caused by space objects created in the OST (articles 6 and 7). Since its creation in 1972 it has been ratified by 89 countries, 22 countries have signed the treaty but have yet not completed ratification. The agreements have also been signed by two international inter-governmental organizations – the ESA and the European Organisation for the Exploitation of Meteorological Satellites (hereafter EUMETSAT) and the European Telecommunications Satellite Organisation (hereafter EUTELSAT).
Liability convention is the only convention in Corpus Iuris Spatialis Internationalis that constitutes provisions for the settlement of disputes. It establishes a system for claiming compensation for damages caused by a space object. The convention envisages two scenarios. In the first scenario, a space object causes damage to the surface of the earth or an aircraft in flight. In this scenario, the state is strictly liable for any damage caused by a space object launched even in the face of circumstances that are outside its control (strict liability). In the case of more than one state being responsible for the launch of the space object, then both states will be held jointly and severally liable for any damage caused. The strict liability of a State can be absolved in the case where it can prove that a claimant was grossly negligent or had the intent to cause the damage sustained. In the second scenario, when a space object causes damage elsewhere than the surface of the earth (i.e. outer space or another celestial body). In this case, the state can be liable only if it can be proved that it was due to the fault of the state or states.
Liability convention is the first and foremost mechanism for dispute settlements relating that to space activities. Although the convention does not directly affect the exploitation of outer space, it is of key importance nevertheless. It provides legal certainty for all possible investors. However, there are some deficiencies that deserve special attention. To name only a few e.g. “the decision shall be final and binding if the parties have so agreed” (Article 19), which means the decision might only have the status of an advisory award. Moreover, only countries that are party to the convention, can act on behalf of natural or juridical persons who have suffered damage, which means that countries have the discretion to initiate action for their claims. For the above-stated reasons and besides this, some are not mentioned, such as the Permanent Court of Arbitration (hereafter PCA) that adopted the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (Outer Space Rules) to address lacunae within the existing dispute resolution mechanisms of international space law.
2.5 Registration Convention of 1975
‘The Convention on the Registration of Launched Objects into Outer Space’, also referred to as the ‘Registration Convention’; is a convention built on the principle of the OST that requires states to furnish to the UN details about the orbits of each space object. Since its creation in 1975 it has been ratified by 60 countries, 5 countries have signed the treaty but have not as yet completed ratification. The agreements have been signed also by two international inter-governmental organizations – the ESA and the European Organisation for the Exploitation of Meteorological Satellites. Furthermore, the Registration convention elaborates on Article 8 of the OST and extends its scope and practical effect. The rationale of this convention is the preservation of outer space for peaceful purposes which could be overseen by a complete registry of spacecraft. As such, the registry would help to minimize the possibility of weapons of mass destruction being furtively put into orbit. Secondly, it is impossible to identify a spacecraft that has caused damage without an efficient system of registration, which would deter the holding of a state liable for damages caused by a spacecraft whose ownership could not be determined.
2.6 Moon Agreement of 1979
‘The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies’, also referred to as the ‘Moon Treaty’ or ‘Moon Agreement’; is an international treaty that turns the jurisdiction of all celestial bodies (including the orbits around such bodies) over to the international community. It refers specifically to the Moon and other celestial bodies. It is known as the final and most “controversial child of OST.” Since its creation in 1979, it has been ratified by 15 states of which none are engaged in manned space exploration nor have any plans to do so. Therefore, the Moon Agreement is de facto a failed treaty.
The main principles contained in the Moon Agreement include:
- Prohibition of the use of force and all hostile acts and the requirement that the Moon and other celestial bodies are used exclusively for peaceful purposes. (Article 3)
- The exploration and use of the Moon and other celestial bodies are to be conducted without discrimination of any kind, irrespective of the degree of economic or scientific development. (Article 4)
- The prevention of disruptions to the lunar environment and those of other celestial bodies by adverse changes or harmful contamination. (Article 7)
- The Moon and other celestial bodies and their natural resources are the “common heritage of mankind” (lat. Res communis humanitatis)
- the establishment of an international regime to govern the exploration and exploitation of natural mineral resources on the Moon and other celestial bodies.
It evolves the concept of non-appropriation by nations from the OST being the “province of all mankind” (lat. Res Communis Omnium) to the “common heritage of mankind” (lat. Res Communis Humanitatis) and closes the loophole for business entities in terms of laying claims to the moon or other celestial bodies, and also extends that prohibition to resources. The same regime is enforced on the deep seabed in the UN Convention on the high seas. On one hand, it theoretically prevents business entities from claiming extra-terrestrial natural resources, but on the other, it does not prohibit their extraction. Moreover, it implies a principle where apportionment of the profits gained must be given to the less developed countries.
Finally, the Moon Agreement was a result of the conflicting positions of the US and the USSR. There was a common denominator that the legal issues concerning the Moon should be regulated by an international treaty. Mainly, the US wanted to force states to supply a maximum level of information on all levels of their activity and refused the proposition about establishing an international regime for exploitation. The USSR rejected the proposition of the US and demanded an appropriate legal regime before the start of exploitation. Eventually, all this led to the superpowers refraining from ratifying the Agreement.
FUTURE REGIME IN OUTER SPACE
3.1 International Space Law de lege fereda
This subchapter offers a few speculations about de lege fereda – future outer space activities regarding the role of legislation and how the law concerning outer space might evolve and what could be the more important factors during this process. Even before the Cold war was about to finish, many of those who were involved in preparing the legal framework for international space law had begun to realize that this kind of framework would deter the commercial development of outer space. However, in the 1960’s it seemed impossible that artificial satellites would be placed in orbit before the millennium to provide services such as remote sensing, weather prediction, direct television broadcasting, telecommunications, global positioning systems, and even human habitation at permanent space-stations (i.e. space settlements). In contrast, already in 1964, there were speculations that outer space exploration and possible commercialization would not rely solely on existing scientific organizations specializing in terms of their professional fields, but also other organizations, professionals whose fields would be indirectly connected to outer space. This has already evolved up to a certain extent; however, there is still a lot of space for improvement. This is especially true for smaller countries that are otherwise unable to attain space activities for themselves. The modern era of globalization, which is being followed by an increase in the transborder movements of people, goods, and services, requires the harmonization and unification of the respective domestic legislation. Outer space activities and related activities have become a part of this global process and de lege fereda will have to adapt appropriately. Consequently, Galloway’s opinion “The task of formulating space law in the 21st century is different from that which suddenly skyrocketed beyond the Earth when Sputnik 1 was orbited” adequately describes the current situation. Summa summarum, there are two main factors that contributed to the current situation. Firstly, UNCOPUOS decisions are made by consensus. On the one hand, this means countries have to formulate universal acceptance but on the other hand, it also results in vague and limited abstract terms (lack of precise definitions which lead to huge issues and leaves room for speculations and misinterpretations), as the outcome of UNCOPUOS is often reduced to the lowest common denominator. Secondly, the pace of technological developments and scientific discoveries in space science is much faster than the progress of international space law. This results in the arising of new questions that have not as yet been considered by the legislation. In this aspect, the 1996 Declaration on Space Benefits plays an important role, since it improves the general situation of relative backwardness regarding developing countries. However, the main aim of this declaration was to establish a regulatory framework that would further the proliferation of space technology and the sharing of the benefits derived from space activities. Interestingly, during the drafting of this declaration the developing states softened their requests and therefore the final text is relatively different from the initial goals. The provisions constitute a legal framework under which any exploration and usages of outer space should be carried out in the interest of all countries. Once more, this underlines the freedom of exploration and the use of outer space, but in addition, also reminds space-competent countries to conduct their activities for the benefit of all states. Moreover, this also emphasizes international cooperation, which encourages space incompetent countries to cooperate in joint projects. Furthermore, growing economic uses of space technology and privatization are leading to the wider applications of private international law which will have to be supported by appropriate procedures for dispute settlements. The establishment of an efficient dispute settlement mechanism for the settlement of legal disputes arising concerning space commercialization was also addressed at the already mentioned UNISPACE III conference. Inter alia, neither the Liability Convention nor any other treaties of Corpus Iuris Spatialis Internationalis provide efficient dispute resolutions for private entities. Thus, the Alternative Dispute Resolution (hereafter ADR) rules are also becoming more and more important for dispute resolution in international space law. As mentioned before, on December 6th, 2011, the Administrative Council of the PCA adopted the Optional Rules for the Arbitration of Disputes Relating to Outer Space Activities (Outer Space Rules) to address lacunae within the existing dispute resolution mechanisms of international space law. Outer Space Rules have a voluntary and binding dispute resolution mechanism adapted to the uniqueness of outer space and available to all parties engaged in respective economic activities in outer space. Furthermore, recognition and enforceability of arbitral awards are granted in all signatory countries of the New York Convention. Flexibility is ensured by the possibility of modifying arbitral procedures if so agreed by the parties. Lastly, parties to arbitration can also choose their arbiters (i.e. decision-makers) and thus preserve a high level of confidentiality, due to the fact that hearings and awards do not need to be published. “The Treaties were possibly one of the first true attempts at forming a worldwide society that would work together to achieve a goal,” it is worth noting. Space, unlike landmasses on Earth, would not be split by conquest and colonialism. Rather, the vision for space was for humanity to work together to improve the lives of all people by exploring and perhaps using space resources for the common good, in the spirit of cooperation and harmony.” But all this has led us to the point where scientific discoveries and technical development have surpassed the slow process of evolving international space law.
3.2 Exploitation of Outer Space for Military Purposes
Initially, the world community urged that space should only be used for peaceful purposes and the benefit of mankind. This is also reflected in OST, which in Article 4 prohibits weapons testing, the stationing of weapons of mass destruction (including nuclear weapons), the holding of military maneuvers, and also the establishment of military bases in space. In this regard it is important to consider the fact that, despite the claims of the US and USSR at that time, that space should serve only for peaceful purposes, both countries were already developing and launching satellites with military objectives. The fact is also that early space programs were intended for military considerations and less for civil or scientific ones. The reasons for such actions also lack precise definitions, which have resulted in a variety of interpretations. E.g. the relevant space treaties never precisely defined “peaceful”. Consequently, some nations interpret “peaceful” as non-aggressive, whereas others as non-military. Therefore, it is impossible to say for certain whether weapons are already in space. Once science fiction, now it could soon become a reality. Nevertheless, the international community and most of all the UN and UNCOPUOS have to intervene and prevent any space arms race.
As a result, the exploitation of outer space has all along been driven by forces from two directions – one in the efforts toward the prevention of an arms race in outer space (hereafter PAROS) and the other secretively in favor of outer space militarization. The purpose of PAROS was to respond to the lack of a multilateral agreement that would prohibit the deployment of weapons other than weapons of mass destruction in outer space, but it barely lasted a year after it was founded in 1994. Nowadays, the majority of space objects launched in space have a dual purpose. On the one hand, they carry out civilian (i.e. commercial activities), on the other also military activities. Outer space is mainly used for GNSS, which had soon been identified as a potential benefit of outer space. Today, the satellite business is the most important commercial space activity. Satellites in orbit, for example, make communication between distant sites on Earth easier. On top of that, satellites have become “the eyes, ears, and nerves of today’s military forces”. This is so true that if a space power's satellites were to be destroyed, its military capacity would be drastically curtailed. The importance of satellites for military operations in battle was for the first time indisputably demonstrated during the Gulf War in 1991, e.g. operation Desert Fox and all future military operations, which can be directly linked to on-orbit assets. Furthermore, space capabilities have become an integral part of warfare to provide weather, warnings, navigation, communication, and intelligence information. However, OST bans weapons of mass destruction (i.e. nuclear, chemical, biological weapons) and the Partial test ban treaty prohibits countries from using outer space for nuclear explosions. More elaborate on this topic is the Moon Agreement in Article 3 “Any threat or use of force or any other hostile act or threat of hostile act on the moon is prohibited. It is also forbidden to utilize the Moon to perform any such conduct or to pose a threat to the Earth, the Moon, spacecraft, or the people of spacecraft or man-made space objects.” In addition, the Comprehensive Nuclear-Test-Ban Treaty extends on the Partial Test Ban Treaty by an effort to prevent nuclear proliferation and establishes a far-reaching verification regime that includes a global network of sophisticated monitoring systems, as well as on-site inspection of tests to deter and detect violations, which would be conducted by The Comprehensive Nuclear-Test-Ban Treaty Organization. Due to the non-ratification of a few countries, the treaty has not yet entered into force. When considering the strategic importance of the matter, theories are observing that space law, including the Partial Test Ban Treaty, Outer Space Treaty, Treaty on the Limitation of Anti-Ballistic Missile Systems (hereafter ABM Treaty), and the Moon Agreement, was developed to “permit, indeed to endorse, the arms race, including the militarization of space”. This brings us to the de facto regime of divide et impera, where space-competent countries will have a crucial advantage over others. Since many of those space-competent countries interpret “peaceful” as non-aggressive another question appears Quis custodiet ipsos custodes? The best answer for this might be the name of the article presented at the 2008 UNIDIR conference presented by Wang Daxue, “Do not duplicate historical mistakes”.
International space law is one of the fields of international law that will be at the center of attention in a matter of a few decades. The concept of exploiting outer space is tangled with so many different factors, such as scientific discoveries and technological advancement, international relations, private entities, etc. This paper has elaborates on the legal regime of de lege lata in outer space is obsolete and inappropriate, especially in the light of the growing number of scientific discoveries and rapid technological development over the last few decades has been proved and thoroughly elaborated on. It might seem exaggerated to describe the current regime as “inappropriate” since the current situation can be best described as “The law is not perfect, but it is there.” Notwithstanding, improvements seem inevitable to foster development. This paper also elaborates on possible considerations and suggestions that shall be focused on while framing a future regime to regulate the exploitation of outer space.
Moreover, education is also important for teaching ourselves and future generations about ethical considerations that apply in outer space. Possibly the next generation will be the first to establish permanent settlements outside this planet.
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ASHWIN RATHAN KUMAR B
5th year, Alliance School of Law,
Alliance University, Bangalore.