Why international law matters in outer space – Part 1

Most of us don’t think about outer space when we think of international law, but the technologies that allow us to expand our exploration and use of our space environment also drive our modern global society, and international law is at the cross section.  Our daily activities, from email, phone calls and Facebook to every automatic bank transaction you make, are dependent on satellite technologies. When you take a plane, the air traffic control is dependent on GPS. Even disaster management is dependent on satellite imaging.

In this two-part blog post, I want to introduce the key aspects of why international law matters in outer space, the first part focusing on civilian and commercial activities in space, and the second on military activities.

The space environment is often described as increasingly “congested, contested and competitive“, as was reported to the UN General Assembly’s First Committee (Disarmament and International Security) in 2013.

Congested because there are more and more States becoming “space faring nations”, and more and more satellites are launched each year. Currently there are about 1,200 operational satellites orbiting above us, as well as half a million pieces of “space junk”, including debris from various collisions and left-over rocket pieces, but also decommissioned satellites that have run out of fuel. The film “Gravity”, for all its shortcomings, painted the scenario for us of the risks involved with space debris. Our propensity to trash our natural environment has spread out into space.

Contested because although space is big, our near-Earth environment where satellites can fall into useful orbital paths, is limited. Every space object that is launched must be registered according to the 1974 Convention on Registration of Objects Launched into Outer Space, and in order to “claim” an orbital slot and a frequency band on which to send it’s signals back to earth, and claim a right to non-interference with that slot, satellites must be registered with the International Telecommunications Union (ITU). But the most interesting orbits for internet and communications are geostationary, meaning that a satellite orbits the Earth at the same rate as the spin of the Earth, so that it looks like it’s stationary above one point. These orbits are focused around the equator, but obviously it has not been the Equatorial States who have been launching satellites over the last few decades. Since 1976 these and other developing nations have been protesting that their potential access to space is extremely limited by the over-use of limited natural resources, namely the orbital slots and radio frequencies, by a small number of Western States.

Competitive because as you may have noticed it’s no longer just States launching things into space, and attempting to outdo each other with high value technologies, there are now lots of commercial entities entering the space market. Elon Musk’s visionary SpaceX company has already shuttled supplies to the International Space Station and hopes to shuttle astronauts as well; Richard Branson’s Virgin Galactic enterprise hopes to take tourists into zero-gravity; Google bought a start-up satellite company called Skybox which it intends to use to provide continuous global internet access everywhere on the planet, partly in response to the garnering success of a company called O3B (Other Three Billion), which aims to provide internet to remote and less affluent parts of the world. Telecommunications companies procure, launch and operate satellites at huge costs and with huge insurances to cover possible liability if something goes wrong. Moreover, there are entities showing interest in potential technologies like mining asteroids or the moon for precious resources, and we’re not too far off that becoming a reality.

With technologies developing so rapidly, and the so-called “democratization of space”, how does international law regulate this congested, contested and competitive environment?

As a matter of lex specialis there are five “space” treaties, the core one being the 1967 Outer Space Treaty (OST, in full: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies) which determines that space cannot be appropriated as the sovereign territory of any State, that space must be used for peaceful purposes, and that “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” (Article I). It also determines that States are responsible for the space activities of State and non-State entities. The other four treaties are the 1968 Agreement on the Rescue of Astronauts; the 1972 Liability Convention which holds the launching State liable for damage caused by space objects; the above-mentioned 1974 Registration Convention; and the 1979 Moon Treaty, which aims to protect the environment of the moon and prohibit the placement of weapons on the moon or in its orbit. The first four of these treaties have near universal participation, and while there has never been any litigation requiring their application, this could be a sign that States adhere to the intention of international cooperation underlying them all. However the Moon Treaty only has 16 signatories (of which only seven ratifications), and is considered to have very little legal impact. I will say more about this in the second part of this blog post.

But as a matter of lex generalis, there is more to space law than many space enthusiasts think. For a start, Articles I and III of the OST require States to conduct their space activities “in accordance with international law, including the Charter of the UN”. This underlines the prohibition of the use of force in art 2(4) of the Charter, but also means that the law of treaties applies, as does the law on State responsibility, even beyond the terms of the Liability Convention. So even if there is increased commercial activity, States remain responsible for those entities under their jurisdiction. This has particularly important consequences for those companies wanting to mine the moon or asteroids, since space, the moon and all other “celestial bodies” are protected against appropriation in art II of the OST. The challenge in coming years will be how to reconcile this with the inevitability of commercial exploration and exploitation: can the resources be truly distributed as  “the province of all [hu]mankind”?

And then there is the important role of soft law. The UN Committee on Peaceful Uses of Outer Space (COPUOS) has been unable to go beyond the 5 treaties produced in the 1960s and 70s, and some would say States have reached the end point of what they are willing to negotiate in terms of binding norms, however there are many soft-law instruments which already have an impact of activities in space, and some important new ones being negotiated. The UN General Assembly has adopted a series of principles, developed by COPUOS, on TV Broadcasting, on Remote Sensing (satellite imaging like Googlemaps), on International Cooperation in the Development and Use of Outer Space “Taking into Particular Account the Needs of Developing Countries”, among others.  The 2002 Space Debris Mitigation Guidelines are successful at influencing the implementation of Debris Mitigation Plans in the development and launch of new satellites, particularly with respect to “post-mission disposal”. In 2009 COPUOS adopted the Safety Framework for Nuclear Power Source Applications in Outer Space, developed in collaboration with the International Atomic Energy Agency. UN-SPIDER (United Nations Platform for Space-based Information for Disaster Management and Emergency Response) provides a knowledge portal for sharing satellite imaging between States to anticipate and respond to natural disasters, such as the recent earthquake in Nepal.  And in 2014 the latest draft International Code of Conduct in Outer Space Activities was released, which has been led by the EU but is gaining significant international support. Subscribing States would agree to abide by the principle of freedom in outer space, while at the same time refraining from the threat or use of force in outer space, and to implement the Space Debris Mitigation Guidelines nationally.

Space may be our newest frontier, but our activities in space are already governed by a whole body of international law that is ever-growing. In this respect, the McGill Institute of Air and Space Law has begun an international Global Space Governance Study, which includes over 100 contributors from around the world. This applies to military activities as well, the subject of Part II of this blog post.

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