Introduction to Space Law

Introduction to Space Law is a very interesting and crucial opportunity to get a glimpse into the vibrant and a young law in its nascent stage whereby it goes through overturns and highs through recent technological advancements.

Having an international backdrop, there is a lot of fragmentation in the law but is very crucial given the man’s expanding advent into the outer space arena.

Introduction

The outer space has been the subject of discussion for astrologers as well as scientists. History saw how revelations and conjectures about space led to heated differences with the religious beliefs that Copernicus and Galileo had to struggle a lot to put their point forward.

Centuries passed and the human race gained the ability to reach out to this outer space that lied above the heaven and also tried to conquer it. This ability was stimulated during the tense time of Cold War when two superpowers were fighting for global dominance. Both the United States and the Soviet Union had diplomatic interests in winning over the space.[1]

From that time when scholars started producing the literature for more penetration into space, today the mankind has a vast presence in that infinite space.[2] It necessitates a uniform law that can govern man’s actions and its consequences.

Background

During the middle of cold war that is during the 70s, there was an inclination towards space industrialisation. The vision was to alleviate Earth’s problems and solve the problem of despoiled habitation on this planet.[3]

But, wherever the reach of man is, the sustained legal system to govern his actions is required. Hence, the issues of sovereignty and the subject of sovereignty came into conflict. The issues of property come to be intertwined with that of sovereignty.

Talking about the latter one first, John Locke has been one of the biggest proponents of property as a natural right of the human being. He told that “Every man has a property in his own person: this nobody has a right to but himself”[4]

Now when the concept of sovereignty extends to a space reaching infinity, it creates absurd results. It started with the Convention on International Civil Aviation 1944[5] and later the proposal of John Cooper that the sovereignty would be extended as far as Earth’s gravitational influence exists.[6]

This propelled the need to launch satellites into space by the world powers to gain diplomatic superiority. This fact is evidenced through the tough rivalry that existed between the U.S. and the Soviet Union whereby they tried to launch their respective satellites.[7] This led to the treatment of the outer space as a common space with no concept of national sovereignty.[8]

This brings the concepts of res communis – something which belongs to all, contrary to res nullius – something that belongs to none. In the first case, it appears, the first occupant would become the sole owner, but which is unlikely to happen once the celestial body is in the reach of the humankind.[9]

The second principle thus appears suitable to the outer space as it did for the sea under the Hugo Grotius theory of the Law of the Sea.[10] Three distinct environments of the Earth, namely, air, water and land have the elements of the res communis, since for each of them there exists a treaty like International Civil Aviation Convention, Antarctic Treaty (an entire continent declared as res communis), United Nations Conference on the Laws of the Sea.

But, the problem is that for celestial bodies, the second principle is nowhere specifically made applicable. Thus, international law gradually developed over the outer space bringing it into its ambit slowly. Vazquez equates it with a “story of the evolution of the moral entity”.

Meaning of the Space Law

The phraseology of the term is self-explanatory. Space signifies the outer space from the Earth whereas the Law is “any system of regulations to govern the conduct of the people of a community, society or nation, in response to the need for regularity, consistency, and justice based upon collective human experience.”[11]

Since we are not talking about the space over one particular country over here, it is the space over the Earth as large, a huge element of international rules is also found. Thus, Space law is defined as a set of international and national rules and regulations governing human activities in and relating to outer space.[12]

Tronchetti thus recognises three important facets in the Space law.[13] It is showcased in the diagram below-

For Scope, scholars disagree on exactly where the outer space is supposed to begin some argue to set the altitude of 100 km above the sea as the standard, that is known as the Karman Line theory.

For Fragmentation, there are multiple treaties that would be discussed later. Hence, there is no single comprehensive document to contain the whole essence of the law.

For evolutionary nature, it is clear that the technology and advancement have changed the medium of school of thought in the past 40 years of history of the space law.

Sources of the Space law

As this law is evolutionary in nature along with being new too, the sources are also not that old and they are also in their nascent stage.

1. Municipal Legal System

There are particularly some space active states that have developed well-advanced laws governing the Outer Space.[14] This leads to influencing the international regime of space law since the jurisprudence is very new and young.

The evidence is gathered from the fact that during the maritime trades, English courts used to accept jurisdiction for disputes from maritime contracts irrespective of the origin. Similarly, US law can prove to be a strong influence in the development of general space law.[15] Example of the same would be the launch contracts and cross waiver of procurement that happens.[16]

2. Memorandum of Understandings

For conducting international space activities, MOUs have become a common feat whereby parties usually enter into such arrangements for mutual coordination. The best example is the introduction and operation of Global Mobile Personal Communications by Satellite (GMPCS) through an MOU.[17]

There is always confusion as to whether we can consider it a proper source of space law since many have doubts as to the abidingness of the document that calls itself as an MOU.[18]

3. UN Resolutions

General Assembly, the representative body of the United Nations issues resolutions which also end up being controversial.[19] The best example is how the General Assembly had to issue a resolution on one subject again and again, which shows that there is no binding effect in that resolution and it is not being followed.[20]

This is the chequered history with the UNGA Res. 1803 (XVII) that is, Permanent Sovereignty over Natural Resources, which was succeeded by Charter of Economic Rights and Duties of States (UNGA Res. 3281 (XXIX)).

Apart from the controversy, the Space resolutions are treated as sources for space law, as the General Assembly each year accepts the Report of the COPUOS and passes a resolution.[21] A various series of resolutions on the Space law and the subsequent obligations of the States has been passed by the General Assembly. They are –

1. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space.
   [22]
2. Principles Governing the Use by the States of Artificial Earth Satellites for International Direct Television Broadcasting.[23]
3. Principles Relating to the Remote Sensing of the Earth from the Outer Space.[24]

These are just a few indicators of the interest and contribution that the international community has shown towards the development of space law. They have adopted space law treaties from the ante- date as well. Examples include the International Cooperation in the Peaceful Uses of the Outer Space.[25]

Such repeated resolutions grant a normative character to such a sequence of resolutions. International Court of Justice has categorically laid down that such General Assembly Resolutions, though are not binding, provide evidence into establishing the existence of a rule or the emergence of an opinion juris.[26]

4. Public International Space Law

There are rapid technological advancements which have to be incorporated into the purview of the law very quickly as far as the evolutionary gambit of the law is concerned.[27] Generally for law in the international sphere, we can look at the International Court of Justice statute to know which are the sources into that court looks into for determining the issues.

It is mainly divided into four types-

1. International Conventions
2. International Custom
3. General Principles of Law
4. Judicial Decisions and Teachings of publicists

There can be other sources as well which are not included over here, thus the list for these sources of international law isn’t exhaustive.[28] But these sources do throw light on the nature of the origin that the space law may have.

As far as treaties are concerned, there are many prominent space law treaties that can be named. Some of the examples include-

1. Treaty on the principles of Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies (January 27, 1967).[29]
2. Agreement on the Rescue of the Astronauts, the Return of Astronauts and Return of Objects Launched into Outer Space (April 22, 1968).[30]
3. Convention on International Liability for Damage Caused by Space Objects (March 29, 1972).
   [31]
4. Convention on the Registration of Objects Launched into the Outer Space (November 12, 1974).[32]
5. Agreement Governing the Activities of States on the Moon and other Celestial Bodies (December 5, 1979).[33]

The first treaty, also in the short term, referred to as Outer Space Treaty (OST) is called the foundation for the space law in the international jurisprudence to take shape. The source for such treaties is the peaceful resolution by the way of cooperation by the States.

The cooperation takes place through mechanisms such as the Committee on the Peaceful Uses of the Outer Space (COPUOS), as mentioned hereinabove, which was established by virtue of the General Assembly resolution in 1958 (UNGA Resolution 1348 (XIII), December 13, 1958).[34]

Coming to Custom, to establish the validity of the same, there are two essential components that have to be fulfilled. First, the belief by the state has to be assessed that it is required by law as opposed to mere convenience to be fulfilled. Second, recourse to state practise also would have to be checked.[35]

One can also view the drafts so prepared by the International Law Commission, which produces two volumes of material on matters on its agenda. COPUOS and its constituent subcommittees’ proceedings[36] can also be viewed to have a look at what is the opinion juris.

General Principles of Law and Judicial Decisions along with authors’ writings are not much used in space law, since International Court of Justice has not given many judgments on this issue and we find domestic decisions only, but also the writings are of highly noted authors but they are yet only a part of the literature.

5. Soft Law

The concept of soft law comes into the picture, when the space law ends up doing self-regulation of the members that made up the law itself at the first place.[37] This aspect shows how the concept of space law is developing and how young and dynamic this framework of law actually is.

There are multiple examples that can be quoted for the purpose. They include- Memoranda of Understanding, Working Arrangements, Informal Standards, Recommendations, Resolutions, UN Space Resolutions et. al. are some of the mechanisms through which one can say that the law is still developing.

Such activities, no doubt, are supplementing the hard space law treaties and are also providing the flexibility to the process. It harbours efficiency and reliability in the space law regime. Many scholars vehemently argue that the doctrinaire concepts of law do a sheer disservice to the study of law.[38]

Conclusion

Space law is a growing entity in the gamut of international law. It is a vibrant canvass which gets coloured with different colours at different times. But it has a quick pace in terms of adjusting and adapting to the changes that are made to the paradigm in which the law works.

The law is vast also and covers humans in the forms of astronauts, has environmental regulations, controls commercial activities of say, telecommunication organisations, and celestial bodies, different other space objects.

It is so interesting as well, as every thinkable aspect of life comes within its purviews like Space tourism and Space Insurance, but for introductory purposes, this much information suffices the purposes.

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[1] Thomas Gangale, The Development of Outer Space 1 (ABC-CLIO 2009).

[2] Arthur C. Clarke, The Promise of Space 3 (Harper & Row 1968).

[3] Stewart Whitney, Space Political Economy: Integrating Technology and Social Science for the 1990s Third annual Space Development Conference, San Francisco (April 1984).

[4] John Locke, The True Original, Extent, and End of Civil- Government, http://www.constitution.org/jl/2ndtr00.htm (last visited December 31, 2019).

[5] A.G. Haley, Basic Concepts of Space Law 951 (Jet Propulsion 1956).

[6] John C. Cooper, High Altitude Flight and National Sovereignty, 4:411 Int’l L. Q. (1951).

[7] Walter A. McDougall, The Heavens and the Earth: A Political History of the Space Age 107 (Basic Books 1985).

[8] M.J. Peterson, The Use Of Analogies in Developing Outer Space Law 51 (International Organisation 1997).

[9] Modesto Seara Vazquez, Cosmic International Law 116 (Wayne State University Press 1965).

[10] Hugo Grotius, Mare Liberum 1609, http://socserv2.socsi.mcmaster.ca/~econ/ugcm/3113/grotius/Seas.pdf (last visited December 31, 2019).

[11] Law.com dictionary, http://dictionary.law.com/Default.aspx?selected=1111 (last visited December 31, 2019).

[12] F. Lyall et. al., Space law: a treatise 2 (Ashgate Publishing 2009).

[13] Fabio Tronchetti, Fundamentals of Space Law and Policy xi (Springer 2013).

[14] National Legislation and Policy: Selected Texts, compiled for UN/ Nigeria Workshop on Space Law, November 2005, www.unoosa.org/pdf/spacelaw/national/natlegE.pdf.

[15] F. Lyall, Space Law: What Law or Which Law?, (1992) 34 Proc. IISL 240- 3.

[16] P.B. Larsen, Cross- Waivers of Liability, (1992) 35 Proc. IISL 91- 6.

[17] Global Mobile Personal Communications by Satellite (GMPCS), Arrangements of 2003; see ITU Doc. 11, June 7, 2003, http://www.itu.int/osg/gmpcs/.

[18] M. Bourely, The Legal Hazards of Transatlantic Cooperation in Space, Space Policy 323 (1990).

[19] F.B. Sloan, The Binding Force of a Recommendation of the General Assembly of the United Nations, 25 BYIL 33 (1948).

[20] S.A. Bleicher, The Legal Significance of Re- Citation of General Assembly Resolutions, 63 AJIL 444 (1969).

[21] C.Q. Christol, The United Nations and the Development of International Law- Unanimous Resolutions of the General Assembly Dealing with Outer Space, Proc. Inst. Of World Affairs 311 (1965).

[22] UNGA Resolution 1962 (XVIII) of 1963.

[23] UNGA Resolution 37/ 92 of 1982.

[24] UNGA Resolution 41/ 65 of 1986.

[25] UNGA Resolution 1721 (XVI), December 20, 1961.

[26] Legality of the Threat or Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, July 8, 1996, 1996 ICJ Rep. 226 at ¶ 70.

[27] M. Lachs, The Development and General Trends of International Law in Our Time, Hague Receuil 169 (1980).

[28] L.B. Sohn, “Generally Accepted” International Rules, 61 Wash L. Rev. 1073 (1986).

[29] 610 UNTS 205.

[30] 672 UNTS 119.

[31] 961 UNTS 187.

[32] 1023 UNTS 15.

[33] 1363 UNTS 3.

[34] E. Galloway, The United Nations Committee on the Peaceful Uses of the Outer Space: Accomplishments and Implications for Legal Problems, 2 Proc. IISL 31 (1959).

[35] M.M. Whiteman, Digest of International Law, US State Department 1962-1973.

[36] OOSA, http://www. unoosa.org/oosa/COPUOS/transcripts/index.html#COPUOS_T566 (last visited December 31, 2019)

[37] D. Tan, Towards a New Regime for the Protection of Outer Space as the “Province of all Mankind”, 25 Yale J. Int. L. 179 (2000).

[38] W. Twinning, General Jurisprudence, 15 U. Miami Int. and Comp. L. Rev. 32 (2007).