Space Law; Explored

by LMS-Graham on April 2, 2012

Space. The final legal frontier.

Dramatic openers apart, the statement above can be said to be true. Man has been enacting laws from the ‘dawn of time’, aiming to legislate for almost any situation we might encounter. It was not until the very end of the second millennia that we turned our attention to matters of outer space.

Before continuing it is prudent to mention at this juncture that Public International Law is an extremely vast subject and as such the following will not be an exhaustive study. Instead, it will attempt to focus in on some contentious issues and highlight the key points therein.

In the 1960s it became apparent that the US and USSR race to the moon was becoming more and more likely. The United Nations, worrying that this would then trigger a claim over the territory of the moon sought to ensure that this could not happen. The General Assembly of the UN made a declaration on the legal principles of outer space and its exploration in 1963. After some development, this became part of international law after being codified into treaty form.

The Outer Space Treaty provided the basic framework for an international space law and laid out the following principles:

  • The exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind
  • Outer space shall be free for exploration and use by all States
  • Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means
  • States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner
  • The Moon and other celestial bodies shall be used exclusively for peaceful purposes
  • Astronauts shall be regarded as the envoys of mankind
  • States shall be responsible for national space activities whether carried out by governmental or non-governmental activities
  • States shall be liable for damage caused by their space objects
  • States shall avoid harmful contamination of space and celestial bodies

These principles have not changed since their ascent into the legal stratosphere. In fact, further to their change, certain provisions have been elaborated upon and their legislature extended. What’s more is that these principles have also become part of customary international law given their universality and widespread ratification.

This essay will form three parts, which this writer sees as the most important elements in this developing and intriguing area of International Law. The first two parts will be the most substantive and of most interest, with the third being a summary of other areas of concern. Part one will seek to address the issue of ownership and territorial claims in Outer Space. The second shall seek to address the issues surrounding the militarisation of Outer Space.

Outer Space: Ownership and Sovereignty in Lunar and Celestial Bodies

There are a plethora of websites, which offer to sell property rights in lunar and other celestial real estate. These have become ever more popular in the modern ‘e-commerce’ era and given the looming holidays it can be presumed that a number of individuals will be receiving a gift of a star or acres of land on the Moon or even Mars.

This was highlighted in 2008 when a UK hotel chain announced its plans to build, within twenty-five years a hotel on the moon. The company claimed that it had bought an option to purchase a 43,500 square foot sit on a defined area of the moon. This was the first claim by a large corporation to have a contractual right to land on the moon. A summary of other plans are:

Hotels in space are not a new idea. The first sold proposal came from Hilton International in the 1960’s, its intention being to build an orbital hotel out of spent launcher fuel tanks. Others have followed. At present Bigelow Aerospace have plans for an inflatable orbital hotel. The Galactic Suite Project, operating out of Barcelona, proposes a chain of orbital hotels at circa 300 miles up.

Although the ideas highlighted in the journal above are fraught with the technical difficulties of getting them off the ground, they are however, not out with the law.

The claim by Premier Inn was that they had a real right to a section of land on the moon. As stated above, the Outer Space Treaty strictly forbids states from claiming any sovereign right, i.e. ownership of any part of any lunar or celestial body. The principle being that, if a state cannot make claim to property, then a private claim is impotent given that there is no legal recourse to assert their purported right.

To date, there has only been one attempt to try and assert ownership of a celestial body. The American case of Nemitz v The United States of America considered the legality of an individual claiming his ownership over an asteroid. The surrounding facts of the case were:

Asteroid 433, known as Eros, is a sub-planetary body located in the asteroid belt between Mars and Jupiter although occasionally it comes inside the orbit of Mars. Eros is some 13 x 13 x 30 km in size and is one of the few asteroids having a diameter greater than 10 km … NASA determined to investigate Eros and the probe NEAR Shoemaker was launched in 2000 … In the meantime Gregory Nemitz, a US citizen, registered a claim to Asteroid 433, Eros, with the Archimedes Institute … NASA decided to land the probe onto the asteroid … four days thereafter (its landing) Nemitz sent a bill to NASA for $20 both as a parking fee and to cover storage of the probe for 100 years…

What followed was the exchange of letters and after it became clear that no payment would be forthcoming, Nemitz initiated court proceedings. He failed in the court of first instance and in his appeal. The ratio for the court rejecting his ownership rights was based on the international law concept that there can be no ownership of natural objects in space. In effect re-affirming the position of customary international law in a national court.

The Board of Directors of the International Institute of Space Law release a statement on celestial body sales in 2004 as a means to clear the issue up among the public at large. The most resonating section of this statement being:

Therefore according to international law, and pursuant to Article VI (Outer Space Treaty), the activities of non-governmental entities (private parties) are national activities. The prohibition of national appropriation by Article II thus includes appropriation by non-governmental entities (i.e. private entities whether individuals or corporations) since that would be a national activity. The prohibition of national appropriation also precludes the application of any national legislation on a territorial basis to validate a ‘private claim’. Hence, it is not sufficient for sellers of lunar deeds to point to national law, or the silence of national authorities, to justify their ostensible claims. The sellers of such deeds are unable to acquire legal title to their claims. Accordingly, the deeds they sell have no legal value or significance, and convey no recognized rights whatsoever

What is interesting however, is the Note attached to the same statement. That is to recognise the activities by private parties on the Moon and other celestial bodies as being within the legal framework of Outer Space. It is expressly allowed for states and private entities to enjoy peacefully these bodies.

The Moon Agreement essentially brought other principles into the law of outer space. The most important of which is the Charter of the UN. Most importantly Articles 2(4) and 33(1). These are embodied in the Moon Agreement as such:

Any threat or use of force or any other hostile act or threat of hostile act on the moon is prohibited. It is likewise prohibited to use the moon in order to commit any such act or to engage in any such threat in relation to the earth, the moon, spacecraft, the personnel of spacecraft or man- made space objects.

An underlying principle that runs through all of the resolutions and treaties is that the moon and other celestial objects of outer space are the common heritage of mankind. Similar to the ideology pertaining to the law of the Arctic it means that no state could ever annex Outer Space as their own, given that it could be described as being owned jointly and severally by the world at large and the future residents of Earth. The former rationale would seem, to this writer, to be of particular use with regards to sovereignty in outer space.

The usefulness of this comes to light when addressing the issue of claims of terra nullius (defined as being territory over which there is no sovereign) although the doctrine of res communis (Territory not capable of sovereign control). It is widely recognised in the international community that outer space comes under the bracket of res communis.

That isn’t however, likely to stop a state from trying to assert a claim under the auspice of terra nullius. For a claim to be asserted under this it is required to be proven that there is “effective occupation” of the territory. This was developed in the landmark case of Eastern Greenland in which two elements were required to fulfill effective occupation. These are that: the intention and will to act as sovereign (animus occupandi) and some actual exercise or display of such authority.

Obviously should a state attempt to make claim to a territory in outer space using the aforementioned rule of international law; it would be met with instant objection based on the treaties (it is more than likely to have signed up to, given the number of subscribers) and the doctrine of res communis. This writer includes this section simply in the interest of a complete discussion on the topic.

Outer Space: Militarisation

Highlighted already are the provisions of the Outer Space Treaty. However, we shall now look more closely at the provisions contained therein relating to the use of force and military operations in space.

States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.

The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.

This is regurgitated here to highlight the fact that even in the early 1960s, the UN, including all of the permanent members of the Security Council sought to negate the risk of the use or threat of force; either in or via outer space. Obviously this was amid the Cold War and the political climate of distrust between parties, ergo by seeking to legislate against this possibility it allowed to keep the global community secure.

There have been however a number of controversial plans to use outer space as a launch pad for military measures. Probably the most famous of these was the American defence plan aptly nicknamed ‘Star Wars’. The essence of this plan (announced by President Reagan in the 1980’s) was that the United States of America would deploy ballistic missiles into outer space, which it claimed had the purpose of shooting down any nuclear device fired towards its territory.

Obviously these plans went against the grain of the current laws of outer space and as such never managed to materialise. However, the idea has never truly disappeared, instead it has been reborn a number of times with an equal number of names.

In 2006 the American government, under the Bush administration pushed hardest for a new discussion on the practicalities of their proposed missile defence system. This was off the back of their revised National Space Policy, and its main aim was to open discussion on the lawfulness of the deployment of conventional weapons in outer space

. The main point they had was that their proposals were to allow the station of ‘conventional’ weapons in orbit around Earth. A technical point rather than a contentious legal argument. The US also tried to persuade at length that any weapons stationed in such a way would only be capable of attacking airborne targets; i.e. for the sole purpose of shooting down potential weapons of mass destruction.

The US also sought to use the threat of dissident countries such as Iran and North Korea as the type of countries that posed a threat, and claimed that their system would essentially form a ‘safety net’ for the benefit and in the interest of all countries.

Their attempts to persuade the consensus of the General Assembly that their proposals benefits outweighed their risks were ultimately unsuccessful. In this writers opinion that may have been how quickly political allies and enemies can change. Given the initial system was designed to defend against the USSR, who would now be protected by it.

Before moving on, it is worth noting the recent developments in the technology of this concept. The US announced in February this year that it managed to successfully shoot down a missile, by firing a focused laser beam at it from orbit. This was achieved by firing from the laser beam from an in-flight airplane. It has been mooted that a way to circumvent the Outer Space Treaty and still use the missile defence system, then there is the possibility of having constantly patrolling aircraft capable of firing this laser beam. The obvious drawbacks from that strategy would be the ultimate cost; both in financial terms, but also to the environment.

It is worth noting here that in both the Outer Space Treaty and in the Rescue Agreement astronauts are defined as being envoys of mankind in outer space. The reason for highlighting this in this section is due to the normal selection policy for those in a state’s space program. Normally those chosen to become astronauts are selected from that state’s Air Force and as such, is part of that county’s military. By stating in the Outer Space Treaty that they are mankind’s envoy, the UN cleverly neutralises any person who accelerates out of the Earth’s atmosphere, reducing the risk of Governments attempting to use them for military exercises.

Outer Space: Other Areas of Concern

The main other areas worth discussing in this text would be the issues surrounding: Space debris, Space Tourism and launching of satellites.

The issue of Space debris is of ever increasing importance, as the collision of a satellite into a rocket body in 1996 highlighted this emerging problem. Scientists had previously estimated the chances of a collision between two large objects in space to be one in every 30,000 years.

If we look to the text of the Outer Space Treaty we can get some direction on the issue.

Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air or in outer space, including the moon and other celestial bodies.

The major significance of this section being that each state must act to ensure that any debris or ‘space garbage’ released by its activities in outer space should at the very minimum be limited and should also be counter acted. In the example above satellite (named Cerise) was a French satellite and the rocket that it collided with was also French. Luckily so. If it had been launched from another country, then there would have been all number of issues to contend with in order for a successful Tort claim for the damages.

States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment.

The above article is probably aimed more at instances of bio/chemical hazards caused by any experimentations that could contaminate Earth in any way and is included to illustrate the responsibility of state’s to ensure that any testing of this type does not cause hazard. Given the strict wording of the article it would be constitute a strict liability tort.

Another issue for the law of outer space, is the launching of satellites. This is generally dealt with more in the private sector but is nonetheless strictly legislated for and a number of checks must be made and hurdles overcome before any launch can be made. The provisions are contained within the Registration Convention and involve a potential launch company / state acquiring (from a UK perspective): An outer space license, after consulting  European directives – get a license under those, get a license under Telecommunications Act. Compliance must also be met with competition laws, insurance laws and finance sought.

Lastly is the growing arena of ‘space tourism’. Although this area of the tourism industry is attracting more and more publicity and credence in the media. It is still to be established as a real and workable industry. The main problem being that currently there is no real infrastructure to accommodate such travel. As highlighted earlier, no state or private entity can assert ownership over a natural body in space and as such building a hotel that would be long-lasting and commercially viable, in the long term is not possible under the current law. The alternative being to build an International Tourist Space Station. The problem with that being that it would have a finite number of years and the costs would be too great for it to become a reality in the relative future. As such, it may become something that the generations to come can enjoy.

To conclude fully it must be re-stated that this is not an exhaustive study of the key concepts within the area, this writer is constrained on words. However it has been attempted to surmise the main legal concerns with regards outer space. Those being the problem with ownership, militarisation, debris, satellites and tourism.

It is probably clear by now that although dealt with separately, these issues do overlap quite extensively. It is this writers opinion that in order to overcome hurdles regarding establishing a space tourism trade and to promote creating new economies in a new realm, then it would seem that an in-depth review of the laws should be scheduled.

As it stands the law relating to outer space is very restrictive, at the time of creation that was possibly needed. Today however, we have the technology to move forward rapidly and create new ventures and capital streams that will be for the benefit of mankind. So could relaxing the laws in relation to, perhaps ownership of small sections of the moon actually be for the common heritage of mankind? It could, but it’s without change, it will remain within the realm of science fiction.

Bibliography

Text Books

Ian Brownlie, Principles of Public International Law, (7th edition OUP, Oxford 2008)

Antonio Cassese, International Law, (2nd edition OUP, Oxford 2005)

Malcom N. Shaw, International Law, (5th edition CUP, Cambridge 2003)

David Harris, Cases and Materials on International Law, (7th edition Thomson Reuters, London 2010)

Ian Brownlie, Basic Documents in International Law, (5th edition OUP, Oxford 2002)

International Documents

Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, U.N.G.A. 1962 (XVIII) (13 Dec. 1963) (adopted unanimously)

Treaty on Principles Governing the Activities of States
in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (adopted 19 December 1966, entered into force 10October 1967) 610 U.N.T.S 205 (Outer Space Treaty)

“Statement by the Board of Directors of the International Institute of Space Law (IISL) On Claims to Property Rights Regarding the Moon and other Celestial Bodies” <http://www.iislweb.org/docs/IISL_Outer_Space_Treaty_Statement.pdf> accessed 16 December 2010

Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, U.N.G.A. 34/68 (adopted 5 December 1979, entered into force 11 July 1984) (Moon Agreement) art 2

Charter of the United Nations, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, (adopted June 26 1945, entered into force Oct 24 1945)

Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, U.N.G.A. 2345 (XXII) (adopted 19 December 1967, entered into force 3 December 1968) (Rescue Agreement)

Executive office of the US President, ‘U.S. National Space Policy’, 10 October 2006, <http://www.fas.org/irp/offdocs/nspd/space.pdf> accessed 16 November 2010

Convention on International Liability for Damage Caused by Space Objects, U.N.G.A. 2777 (XXVI) (adopted 29 November 1971, entered into force 1 September 1972)

Convention on Registration of Objects Launched into Outer Space, U.N.G.A. 3235 (XXIX) (adopted 12 November 1974, entered into force 15 September 1976)

Cases

Nemitz v The United States of America 126 Fed App 343

Eastern Greenland Case, Denmark v Norway, P.C.I.J. Series A/B, No. 53 (1933)

Legislation

Telecommunications Act 1996

Journal Articles

F Lyall, ‘Lunar Estates’ S.L.T. 2008, 40, 276-277, 276

M Bourbonniere and R.J Lee, ‘Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict’ E.J.I.L. 18, (2007), 873-901, 874

P Rohan, ‘The Final Frontier’ L.S.G. 2001, 98(48), 20-21, 21

C Joyner, ‘Legal implications of the concept of the common heritage of mankind’ I.C.L.Q. 1986, 190

M Bourbonniere, ‘Law of Armed Conflict (LOAC) and the Neutrilisation of Satellites or Ius in Bello Satellitis’ C & S Law 2004, 9 (43)

D Irimies, ‘Promoting Space Ventures by Creating an International Space IPR Framework’ E.I.P.R. 2011, 34

News Articles

J Sibun, ‘Fancy staying on the moon? Try Premier Inn’ The Telegraph (London 22 May 2008) http://www.telegraph.co.uk/finance/newsbysector/retailandconsumer/2790355/Fancy-staying-on-the-moon-Try-Premier-Inn.html> accessed 16 December 2010

‘Q & A: US Missile Defence’ BBC Online (23 February 2007)

<http://news.bbc.co.uk/1/hi/world/americas/696028.stm> accessed 16 November 2010

E McAskill, ‘US ‘Star Wars’ lasers bring down ballistic missile’ The Guardian (London 12 February 2010) <http://www.guardian.co.uk/science/2010/feb/12/star-wars-laser-ballistic-missile> accessed 17 November 2010

C Fry, ‘CO2 prolongs life of ‘space junk’ BBC Online (5 May 2005) <http://news.bbc.co.uk/1/hi/sci/tech/4486049.stm> accessed 17 December 2010

About the author

Graham Kerr is a recent LLB Graduate, currently in the midst of setting up Legal Media Solutions a company aiming to help small legal firms with IT solutions and is currently setting up a new program developed specifically to help those trying to find a Traineeship in Scotland.

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