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The Law of Outer Space

Written by: Kapil Raina - 4th Year Law Student, D.E.S. Law College, Pune
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The initiation of space exploration and subsequently its advancement unexpectedly sparked off another field of law known as the law of outer space or the space law. Space law is an area of law that helps in governing activities in outer space and the effects arising out of such activities in relation to mankind. It is very difficult to arrive at a uniform definition of outer space but according to Federation Aeronautique Internationale, the Karman Line situated at an altitude of 100 km is regarded as the distinguishing factor between aeronautics and astronautics as far as the boundary is concerned. The United States limits the same boundary to 80 km and in case of re-entry, it’s 120 km. The United Kingdom differentiates between airspace and outer space as the highest point at which an aircraft can fly. Space law is an integral part of international law and is governed by the UN. In 1958, upon the request of U.S. President coupled with Soviet Premier, the UN created a Committee on the Peaceful Uses of Outer Space, better known by the name “COPUOS” to look into the legal intricacies related to activities in the exploration of outer space. United Nations Office for Outer Space Affairs (UNOOSA), in particular, is dedicated towards defining the scope and extent of space law, at present. The office is responsible for assisting developing countries in using space technology for development and for supporting inter-governmental discussions in the Committee as well as its Subcommittees namely Scientific & Technical Subcommittee and Legal Subcommittee.

The basic structure of space law is dependent upon five UN Treaties and another five sets of Principles adopted by the UN. Although there are innumerable resolutions to this effect but the principles and treaties mentioned below provides for the most significant and substantive portion of space law.

Un Principles
Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, 1963
Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, 1982
Principles Relating to Remote Sensing of the Earth from Outer Space, 1986
Principles Relevant to the Use of Nuclear Power Sources in Outer Space, 1992
Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, 1996

Un Treaties
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968
Convention on International Liability for Damage Caused by Space Objects, 1972
Convention on Registration of Objects Launched into Outer Space, 1976
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1984

UN Considering its resolutions of 1947, 1961 and 1962 which condemned any threat to peace, breach of peace or any act of aggression in relation to outer space, adopted certain principles namely “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, 1963”, that formed the base of nearly all the treaties. The declaration provided that the exploration of outer space should be based upon the principle of equality and it should be in conformity with the UN Charter as well as International law. The exploration should be in the interest of mankind and should promote international cooperation and understanding. Since national appropriation can’t be effected by any means, the benefit accrued should be used as per the principles of equality and natural justice keeping in mind the special status of developing countries. Principles 7, 8 and 9 of the same declaration talk about registration of space vehicles, liability of Launching State and safety of astronauts, respectively, which later on proved to be the guidelines for the creation of various treaties.

Taking into account the earlier declaration and other resolutions which called upon States to refrain from placing in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967” was effected with a view to legalize the earlier declaration. The treaty incorporated all the principles declared earlier and further provided for the peaceful use of outer space. Article 4 of the treaty binds the State Parties not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction. And the establishment of military bases and the conduct of military maneuvers on celestial bodies shall be forbidden. Article 11 signifies that in order to promote international cooperation, the Secretary-General of the United Nations and the international scientific community should be informed by the State, of the nature, conduct, locations and results of the exploration. Representatives of other States are also allowed on space stations and installations on the basis of reciprocity as per Article 12 of the treaty. Article 5 regards astronauts as envoys of mankind and directs State Parties to render them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party. In case of such a landing, the astronauts should be safely and promptly returned to the State of registry of their space vehicle.

Recalling Principle 9 of the Declaration of 1963 and Article 5 of the Treaty of 1967 which promoted the safety and security of astronauts, another treaty named as “Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968” came into existence. The Treaty provided that in case of an unintended landing, all necessary steps should be taken by State Parties in order to rescue astronauts and a notification to this effect should be sent to the Launching authority as well as the Secretary-General of the United Nations at the earliest. Launching authority means the State or entity responsible for the launch. If the spacecraft had crash landed on high-seas, those State Parties which are in a position to extend necessary assistance should take all possible steps to ensure speedy recovery. Any component part found beyond the territory of the Launching State should be returned to the Launching State upon prior request to furnish “identifying data”. Assistance should be provided to eliminate any danger or harm where the space object or the component part carries “hazardous or deleterious” properties. The Launching authority is made liable to pay for the expenses incurred in order to fulfill obligations relating to recovery and return.

The next draft “Convention on International Liability for Damage Caused by Space Objects, 1972”, was formulated in response to the significance given to Principle 8 of the Declaration of 1963 and Article 7 of the Treaty of 1967. The liability to compensate for the damage done is absolute in nature and the parties are jointly liable to pay for the amount. If damage is caused to another aircraft in flight, the question of liability depends upon the degree of negligence as well as fault on the part of both the space objects. It is pertinent to note that this convention expressly excludes the nationals of Launching State and foreign nationals whose States are participating in the activity to claim compensation for any damage caused although local remedies may be available. In order to claim compensation, a claim should be presented to the Launching State within one year from the date of damage through “Diplomatic Channels”. If no settlement is arrived at, a Claims Commission comprising of three members namely a neutral Chairman, a member elected by claimant and another by the opponent, should be formed. The commission is free to agree on any procedure it finds appropriate and should decide on the merits of the claim and amount of compensation. The decision or award should be final and binding, if the parties have earlier agreed so. The working of Claims Commission is very much similar to the working of an arbitral tribunal, the only difference being the binding nature of arbitral award. Expenses too are borne equally unless otherwise agreed upon by the parties or decided by the Commission. An exception to the general rule would be exoneration in case of damage being caused due to gross negligence on the part of the claimant State. The main purpose of this convention is to fully restore a person to its previous state as if no damage had been caused.

Principle 7 of Declaration of 1963 and Article 8 of Treaty of 1967 talks about the rules regarding jurisdiction and control exercised by any State over the space object, which is particularly based on the place of registry of the space vehicle. Further, the “Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968” as well as the “Convention on International Liability for Damage Caused by Space Objects, 1972” bears no relevance if the space object concerned is not registered. “Convention on Registration of Objects Launched into Outer Space, 1976” provided a solution by formulating rules and regulations regarding registration of space objects. It purports that the Secretary-General of the UN is required to register all the space objects launched into the space.

And for the purpose of registration, the following information should be provided:
1. Name of Launching State(s)
2. Appropriate designator or registration number
3. Location of launch
4. Date of launch
5. Basic orbital parameters
6. And general function of space object

In case of more than one Launching State, it should be the duty of the Launching States to determine the State of registry through mutual agreement. Every State of registry should keep a track of its space object and inform the Secretary-General of its various activities in space. When a space object makes a safe landing, the Secretary-General should be informed of its landing and the end of space activity. This has to be recorded in the register maintained for the purpose of registration, which is openly accessible for all.

By the end of mid 70’s, the elementary laws relating to the exploration of outer space were almost done with. With the launch of various Satellites, technology advanced to new levels and the need of the hour was to formulate rules regarding telecommunication. Telecommunication means the sending and receiving of messages over a distance through encoded signals. In the early 80’s, certain principles namely “Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, 1982” were adopted by the UN. It stated that International Direct Television Broadcasting should be in conformity with the UN charter, International law & other UN treaties and should respect the sovereign rights of the State while following the principle of non-intervention. Every State has an equal right to conduct activities and should promote “mutual exchange of information and knowledge” in order to improve quality of life. Special consideration should be given to developing countries by providing assistance in social, economic and educational development.

All States are free to enjoy benefits without any discrimination and in case of dispute, established procedures for amicable settlement of disputes earlier agreed upon by the parties should be adhered to. Principles 14 and 15 say that consultations and agreements between States should be in conformity with the relevant instruments of International Telecommunication Union (ITU) and any complexity arising out of the unavoidable overspill of radiation should be subjected to the same instruments. International Telecommunication Union, based in Geneva, is a leading UN agency for information and communication technologies (ICT). The role of ITU can be well understood in the light of its three core organs, namely Radiocommunication (ITU-R), Standardisation (ITU-T) and Development (ITU-D). “Radiocommunication” manages the ‘radio-frequency spectrum and satellite orbit resources’. “Standardization” works on qualitative grounds and is best known for its ‘standards-making’ efforts. “Development” is established to help spread equitable, sustainable and affordable access to information and communication technologies. ITU comprises of 191 member states and more than 700 sector members and associates.

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967 was effected with a view to legalize the Declaration of 1963. The treaty was an elementary step towards the formation of space law and governed activities in relation to outer space only, although including moon and other celestial bodies. Now, legislation was required exclusively to protect moon and other celestial bodies which are probably in the reach of human being. “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1984” resolved the situation. The agreement aimed at promoting international security, peace and cooperation. Moon should only be used for peaceful purposes and any hostile act on the moon is prohibited. Objects carrying any kind of weapons of mass destruction are not allowed to be placed in orbit around the moon. Secretary-General should be informed of the activities concerned with the exploration of moon.

Information should be provided to the Public and International Scientific Community on the time, purposes, locations, duration and orbital parameters in respect of a mission. Samples of minerals on moon can be collected by State Parties and should be provided to interested parties on equitable grounds without disturbing the environmental equilibrium on moon. Certain areas on moon which bear importance to scientific research and investigation are declared as “International Scientific Reserves” upon the request of State Parties in consultation with the competent bodies of the UN. Exploration may be pursued on the surface of moon or beneath it by establishing manned or unmanned stations. Article 11 regards the moon and its reserves as the common heritage of mankind and directs the State Parties to establish an international regime in order to govern the use of natural resources on the surface of moon. The international regime should work for the safe development and rational management of those resources. Article 15 provides for the remedy in case of breach of obligations by one State Party in respect of the other. Disputes should be resolved through peaceful means and Secretary-General may intervene to provide appropriate remedy if consultations fail. For the purposes of this agreement moon should include other celestial bodies within the solar system.

This marked the end of the treaty formation as far as the substantive portion of space law is concerned. It is significant to note that every treaty is open for signature by all States. Amendments to the treaties may be proposed by any State Party after the limitation period is over. As a matter of right every State Party is eligible to give a notice of its withdrawal which should be effected within one year from the date of receipt. The treaties are available in Arabic, Chinese, English, French, Russian and Spanish texts and a certified copy of the treaty is required to be sent to each acceding State by the Secretary-General of the United Nations.

Resolution of 1974 recommended that the Legal Sub-Committee should deal with the legal implications of remote sensing of the Earth from space. The term “remote sensing” means the sensing of the Earth’s surface from space by making use of the electromagnetic waves emitted, reflected or diffracted by the sensed objects, for the purpose of improving natural resources management, land use and the protection of the environment. Later on, resolutions from 1975 to 85 aimed at the drafting of legal principles which resulted into the formation of “Principles Relating to Remote Sensing of the Earth from Outer Space, 1986”. The draft dealt with general rules and regulations with reference to remote sensing. It purported to promote the protection of Earth’s natural environment and mankind from natural disasters. Remote sensing activities should be carried out for the benefit of mankind and special consideration to be given to developing States by way of technical assistance. Remote sensing activities should be carried out in conformity with international law, UN charter, Treaty of 1963 and relevant instruments of International Telecommunication Union.

After remote sensing was dealt with, need was felt to frame rules as to the governance of nuclear power sources in outer space and on board space objects. Recognizing the very fact that it is required to use nuclear power sources in space missions because of their compactness & long life and considering the report of the Committee on the Peaceful Uses of Outer Space which purported the same, “Principles Relevant to the Use of Nuclear Power Sources in Outer Space, 1992” were adopted by the UN. The principles laid down rules for the safe use of nuclear power sources in outer space in order to minimize the risks involved. The rules formulated in Principle 3 are the most significant and can be broadly categorized under the heads ‘General Goals’, ‘Nuclear reactors’ and ‘Radioisotope generators’. General goals refer to the protection of individuals and the biosphere against ‘radiological hazards’. The design and the construction of the nuclear power source systems should be in conformity with the principle of ‘general concept of defense-in-depth’.

The term, “ ‘general concept of defense-in-depth’ when applied to nuclear power sources in outer space refers to the use of design features and mission operations in place of or in addition to active systems, to prevent or mitigate the consequences of system malfunctions “, is defined in the document itself. Nuclear reactors may be operated on interplanetary missions, in sufficiently high orbits and in low earth orbits, if they are stored in sufficiently high orbits after the operational part of their mission. ‘Sufficiently High Orbit’ refers to an orbital lifetime long enough to decay the fission products. Radioisotope generators may be used for interplanetary missions but should be protected by a containment system. These generators are used to generate energy through break up of isotopes (isotope is a form of an atom having a different atomic weight from other forms of the same atom but similar chemical structure), which can be dangerous at times.

So, a highly protective containment system is required. As far as protection from radiation is concerned, the recommendations of the International Commission on Radiological Protection (ICRP) should be adhered to. ICRP was initially founded by the International Society of Radiology in 1928 and was then named as the ’International X-ray and Radium Protection Committee’. The Commission was established to provide recommendations and guidance on all aspects of protection against ionizing radiation. A state is required to analyze the safety of all by ensuring that assessment is conducted as per the rules in Principle 3. This declaration also incorporates principles relating to international responsibility, liability & compensation, re-entry, assistance & consultations and amicable settlement of disputes, which are very similar to the previous treaties and principles.

To end with, UN emphasized on promoting international cooperation to a new level and expressly adopted principles namely “Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, 1996”. The principles declared that all states should promote international cooperation on equitable and mutually acceptable grounds which should be in conformity with the International law, UN charter, Principles adopted by the UN and the aforementioned Treaties. International cooperation should be carried out for developing space science & technology and facilitating the exchange of expertise as well as technology depending upon the ‘space capabilities’ of the state parties.

It can be concluded that the elementary portion of space law is basically structured upon the very firm objectives of United Nations. The sole aim of United Nations in relation to space law is to promote international cooperation, understanding and security in the exploration of outer space. Every State bears international responsibility towards its space activities and if damage is caused due to negligence, the claimant State can invoke absolute liability on the part of the other State. Special consideration should be given to developing States without any discrimination on the basis of principles of equality and natural justice, because of the special status they hold. Mutual assistance to States in distress should be provided by other State Parties to the treaty who are in a position to do so. Every treaty or principle should be in conformity with the UN Charter and principles of International law. The above mentioned principles are incorporated in every draft in one way or the other upholding the very firm stand of the United Nations.

Bibliography
International Law, Malcolm Shaw, Cambridge Publication, Fifth Edition
United Nations Office for Outer Space Affairs - www.unoosa.org
International Telecommunication Union - www.itu.int
International Commission on Radiological Protection - www.icrp.org
Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, 1963
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968
Convention on International Liability for Damage Caused by Space Objects, 1972
Convention on Registration of Objects Launched into Outer Space, 1976
Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, 1982
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1984
Principles Relating to Remote Sensing of the Earth from Outer Space, 1986
Principles Relevant to the Use of Nuclear Power Sources in Outer Space, 1992
Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, 1996

The author can be reached at: kapilraina@legalserviceindia.com / Print This Article

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