by Elizabeth Howell
plans to send swarms of robotic spacecraft
to mine resources from near-Earth asteroids,
as this artist’s illustration shows.
Credit: Planetary Resources
Because space is an area without defined boundaries, there are many questions about legal jurisdiction on spacecraft orbiting Earth and other celestial bodies.
Space-faring nations have agreed to a variety of policies and treaties that concern activities in space exploration.
As soon as humans reached for the stars, some reached for the law books. In the year after the Soviet Union launched Sputnik in 1957, the United Nations General Assembly created an ad hoc Committee on the Peaceful Uses of Outer Space (COPUOUS).
In 1960, the International Institute of Space Law (IISL), a nongovernmental organization, was created to promote international cooperation in the space law-making process. Today, several universities worldwide offer programs and degrees in space law.
The field of space law evolved to deal with questions such as property rights, weapons in space, protection of astronauts and other matters.
However, space law remains a challenging field to define. While there are treaties that have been voluntarily signed by many nations, technological advances mean that private companies can now take part in space exploration, and these entities may not be covered under some existing treaties (depending on one’s legal interpretation of them).
Also, national priorities change over time, and those priorities may not be reflected in treaties that were created decades ago.
The United Nations and the Outer Space Treaty
COPUOUS was established in 1958 and made permanent in 1959.
As of mid-2016, it has 77 members, including major space-faring nations such as,
• the United States (NASA)
• Russia (Roscosmos)
• the member states of the European Space Agency
The United Nations describes this committee as the “focal point” where international entities negotiate how to use space peacefully.
COPUOUS’ duties include exchanging information about space, keeping tabs on what government and nongovernmental organizations do in space, and promoting international cooperation.
COPUOUS also formed two subcommittees in 1962 to deal with legal issues, and scientific and technical developments; secretariat services are provided by the United Nations Office for Outer Space Affairs (UNOOSA).
COPUOUS is the force behind five treaties and five principles that govern much of space exploration.
The fundamental treaty is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, or simply the “Outer Space Treaty.”
It was ratified in 1967, largely based on a set of legal principles the general assembly accepted in 1962.
The treaty has several major points to it. Some of the principal ones are:
• Space is free for all nations to explore, and sovereign claims cannot be made. Space activities must be for the benefit of all nations and humans. (So, nobody owns the moon.)
• Nuclear weapons and other weapons of mass destruction are not allowed in Earth orbit, on celestial bodies or in other outer-space locations. (In other words, peace is the only acceptable use of outer-space locations).
• Individual nations (states) are responsible for any damage their space objects cause. Individual nations are also responsible for all governmental and nongovernmental activities conducted by their citizens. These states must also “avoid harmful contamination” due to space activities.
Treaties, principles and conferences
To support the Outer Space Treaty, four other treaties were put into place in the 1960s and 1970s to support peaceful space exploration.
These treaties (referred to below by their nicknames) are:
• The “Rescue Agreement” (1968), formed to give astronauts assistance during an unintended landing or when they are facing an emergency.
States are told they,
◦ “shall immediately take all possible steps to rescue them and render them all necessary assistance.”
• The “Liability Convention” (1972) outlines considerations if a space object causes damage or loss to human life. Its first article says,
◦ “A launching state shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight.”
• The “Registration Convention” (1975), drawn up to help nations keep track of all objects launched into outer space.
This United Nations registry is important for matters such as avoiding space debris. (For NASA, the United States Strategic Command gives real-time updates to the agency if space debris threatens a spacecraft or the International Space Station.)
• The “Moon Agreement” (1979), which gives more detail on the Outer Space Treaty for property rights and usage of the moon and other celestial bodies in the solar system (except for objects that naturally enter the Earth from these bodies, namely, meteorites).
This treaty, however, has only been signed by 16 nations, all of which are minor players in space exploration.
COPUOUS has also created five sets of principles to support these treaties.
• The “Declaration of Legal Principles” (1963), from which the Outer Space Treaty was created in 1967, lays down guiding principles, including the idea that space exploration is for the benefit of all humans.
• The “Broadcasting Principles” (1982) has to do with television broadcast signals. These principles include the idea of noninterference with other countries’ signals, the provision of information to help with knowledge exchange, and the promotion of educational and social development (particularly in developing nations).
• The “Remote Sensing Principles” (1986) concerns the use of electromagnetic waves to collect data on Earth’s natural resources. Remote-sensing activities are supposed to be for all countries’ benefit and should be carried out in the spirit of international cooperation.
• The “Nuclear Power Sources Principles” (1992) concerns how to protect humans and other species from radiation if a launch goes awry, or a spacecraft flying by Earth accidently crashes to the surface. It’s common for spacecraft exploring the outer solar system to use nuclear power sources for energy, since solar power is so weak out there.
• The “Benefits Declaration” (1996) says that space exploration shall be carried out for the benefit of all states. This was created two years before the International Space Station – an effort of 15 nations – launched its first two modules into space.
The United Nations has also held three UNISPACE Conferences since 1968 (a fourth one will take place in 2018.)
This is what each conference focused on or will focus on:
• UNISPACE I (August 1968): Progress in space exploration, international cooperation and creating an “expert on space applications” within UNOOSA.
The United Nations body then had several workshops in the 1970s on space applications such as remote sensing, telecommunications and cartography.
• UNISPACE II/UNISPACE 82 (August 1982): Peaceful exploration of space (specifically, how to avoid an arms race). Following the conference, UNOOSA worked more closely with developing countries to develop their space technology capabilities.
• UNISPACE III (July 1999): Protecting the space environment, giving developing countries more access to space and protecting Earth’s environment.
This led to the Vienna Declaration on Space and Human Development, with 33 recommendations for space-faring countries to follow. A follow-up report to the declaration was issued in 2004, five years after the conference.
• UNISPACE+50 (2018): Will celebrate the 50th anniversary of the first UNISPACE conference and focus on what COPUOUS should do now that more nations and nongovernmental entities are exploring space.
It should be emphasized again that the U.N. treaties are nonbinding, but there is a sort of international pressure by other nations when a nation strays from the principles.
There have been, however, some debates over the years about some of the major principles of space law.
While the ultimate interpretation of these matters is up to lawyers, here are some of the major questions:
Access to space
This is mostly regulated by country.
The Commercial Space Launch Act of 1984 covers launch situations by U.S. citizens. Uncrewed rockets heading for space and high altitudes must receive special permission from the Federal Aviation Administration (FAA) under FAA Regulation 101.
In most cases, licenses and permits must be issued from the FAA’s Office of Commercial Space Transportation, which examines aspects such as launch site and launch/re-entry vehicles.
The FAA is also working on guidelines to protect space passengers when tourism companies start operating.
Weapons in space
Perhaps the most famous effort at putting weapons into space was the United States’ Strategic Defense Initiative, sometimes nicknamed “Star Wars.”
President Ronald Reagan first announced it in 1983 by. Parts of the system were tested on Earth, but it was never completed. The concern was that the portions of the system with space weapons would violate the Outer Space Treaty.
With half a million dead objects floating in Earth orbit, some nations are now voluntarily taking measures to prevent more space debris – such as deliberately de-orbiting satellites to hit the Earth’s atmosphere.
Without careful care, some experts worry that space access will become restricted by debris, but it is unclear what the legal ramifications are. In 2007, China received international condemnation for deliberately destroying a satellite in Earth orbit, which led to a cloud of space debris.
In 2013, a piece of that debris damaged a Russian satellite.
In the United States, there are two major companies hoping to perform asteroid mining in the coming years:
• Deep Space Industries
• Planetary Resources
In 2015, the United States passed the U.S. Commercial Space Launch Competitiveness Act, which in a nutshell allows for U.S. citizens to exploit asteroids and other space resources, but not the land on which the resources sit.
While this makes resource hunting legal for U.S. citizens, some experts have said this could violate the Outer Space Treaty.
Boundary disputes and property rights
For the moment, the Outer Space Treaty says that space and celestial bodies cannot be claimed by other nations, but it is unclear how these provisions would apply to private companies.
The U.S. Commercial Space Launch Competitiveness Act (see above) does not allow for territorial claims.
But with nations talking about landing on places such as the moon and Mars, it is unclear how the exploitation rights and the property rights would work in the case of adjacent colonies.
Some suggest that Antarctica, a territory owned by no nation and used mainly for scientific purposes, could be a model to follow – but not everyone agrees.
Geosynchronous satellite slots
Satellites positioned roughly 26,000 miles (41,800 kilometers) above the equator have the same rotation period as the Earth.
This allows them to remain in approximately the same location above Earth for years while expending a minimum of fuel, making them useful for telecommunications signals.
These slots are limited and are regulated by the International Telecommunication Union.
In 1976, eight nations on the equator attempted to exert ownership over this space under the Bogotá Declaration, which was largely ignored, due to how property claims are handled under the Outer Space Treaty.
Nations agreeing to work together on a space project can experience problems from time to time.
In 2012, for example, a NASA planetary science budget cut led NASA to withdraw from the European-led ExoMars project, forcing the European Space Agency to seek another partner (which ended up being Roscosmos).
The most major international project, the International Space Station, has an international treaty (and various other provisions) governing its operations among the 15 member nations, covering situations such as crimes or proprietary rights.
In principle, each nation retains control over its own elements and personnel.
In most cases, however, damages cannot be claimed among the five major signatories on the station under a “cross-waiver of liability” clause on all contracts.