When Law Meets Space
by Amanda Berman
Amanda Berman, a third year law student at the University of Nebraska gives us a brief overview of the “big five” treaties regarding outer space.
There are few places where the idea of a space lawyer is accepted at face value. Space law is a niche area of the law that most people have never even considered. However, space law is a thriving area both within the aerospace industry as a vocation and the legal field in general. The United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) and the United Nations Office for Outer Space Affairs (UNOOSA) created the five major building blocks of international space law.
“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 more commonly known as the Outer Space Treaty or OST is the backbone of space law. Created in the post-cold war era and furthered by the need for disarmament as evidenced in Article IV, which calls for states to not put nuclear weapons in space, the OST creates many themes for space exploration. The preamble establishes several theories that have been continuously quoted, and equally debated since the treaty was put into effect in 1967. That the exploration of outer space is for the “common interest of all mankind”, and that said exploration is for “peaceful purposes” have always been an ideal signatories have attempted to achieve. Is every nation entitled to the scientific research achieved from the small amount of nations who have achieved the ability to conduct those experiments? Are “peaceful purposes” non-military, or just non-aggressive? The remaining 17 articles cover a myriad of topics and sparked four other space resolutions.
The OST articles spawned four other major international treaties: the Return of Astronauts and the Return of Objects Launched into Outer Space (the Rescue Agreement), Convention on International Liability for Damage Caused by Space Objects (the Liability Convention), Convention on Registration of Objects Launched into Outer Space (the Registration Convention), and Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the Moon Agreement).
First, the Rescue Agreement stems from Article V of the OST which states “States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle.”
Additionally, astronauts in space should render assistance to other astronauts, and parties should report to the Secretary-General of the United Nations any phenomenon that could pose a danger to astronauts. In general, this agreement is the least controversial of the current space treaties- and it’s easy to see why. Astronauts hold a planet-wide status as explorers, civil servants, and even heroes for their bravery. However, there is still room for interpretation. For example, what defines an astronaut? Will the people Blue Origin intends to commercially fly into sub-orbital space aboard its New Shepard rocket be considered astronauts under the Rescue Agreement by other states? Watching the 2015 hit The Martian really puts this treaty into perspective, made even more fun if you invite a space lawyer over for the viewing.
Second, Article VI-VII launched two new treaties- the Convention on International Liability for Damage Caused by Space Objects (the Liability Convention) and the Convention on Registration of Objects Launched into Outer Space (the Registration Convention). The liability convention established a strict liability regime for damage caused on Earth by objects placed into outer space. What this means is, that if a satellite from Country A were to crash into a building in Country B, Country B would be able to recover full damages from Country A regardless of any other surrounding circumstances. Country B would, in theory, know which country to seek damages from because the object would have been registered with the United Nations Office of Outer Space Affairs in Vienna per the Registration Convention.
When these documents were drafted, these Articles were the tradeoff that space faring nations made to non-space faring nations in exchange for the ability to launch rockets legally in a time when rocket launches were very much a global fear. Straight strict liability for the right to launch rockets into space in the manner we so chose.
However, the system has its flaws. First, not every object launched into space is registered. The Registration Convention is notoriously hard to enforce, and the sheer statistics of how many objects are in space versus how many are on the register is disheartening. Second, the business of space is changing. In the past, satellites made by the US launched from the US to conduct missions for the US. That is no longer the case. Country A may make the satellite, for Business B, who is paying Business C to launch it on their rocket from Country D.
This raises the question of who is responsible under Article VI of the OST. The current answer is a term of art, “the launching state”, but in the aforementioned hypothesis, there could be a plethora of launching states. However, the launching state is, and it is always a State, regardless of how many private companies are involved in the process, has the burden of the strict liability under the liability convention. This was an unforeseen problem in the 1960s and one the space community is wrestling with today.
Lastly, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the Moon Agreement) was opened for signature on 18 December 1979 and currently only 22 states have either ratified or become signatories to the treaty. None of them are considered to be big players in space exploration. The Moon Agreement came after the age of multilateralism had ended, and States were reluctant to sign on to a new treaty that could be seen to restrict their ability to explore and study the Moon – a goal which was much more tenable now than previously.
The “big five” treaties regarding outer space have a broad and age-specific role in shaping how we look to explore the cosmos legally. In time however, it has become clear that there is still work to be done to fill in the new challenges shaped by the extraordinary work of the engineers, scientists, political scientists and other forward-thinking members of the space community that have created new opportunities the original drafters never considered. This is also a very brief overview of the international law at work, but several countries have written and implemented their own domestic legislation regarding outer space activities as well.
For more information on the treaties mentioned above please visit the United Nations Office of Outer Space Affairs website located at http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html.
Amanda Berman is a third year law student at the University of Nebraska studying Space and International Law. She hopes to become licensed after taking the Washington State bar in July. She is currently interning in the United Nations Office of Outer Space Affairs. She is passionate about debris removal, good books, and spreading the word about space law. Nothing in this article should be construed as actual legal advice in any way.