An Overview of Space Law by Shiv Prem at LexCliq

Space law

Space Law is a relatively new field of Public International Law. International Space Law “Space Law” is a part of Public International Law and much like other branches of Public international law. Space law is considered to be a combination of customs and treaties. With respect to the secondary source of public international law which was written under Art-38(1) of statutes of the international court of justice, no international court decision has been rendered generating a new rule of Space Law. There is, however, literature that has elaborated many aspects of the relevant legal rules, upon which the development of Space Law could be founded. 1903 is the year in which space law came into the existence and its other body came after the following years. One of the main reasons behind this space law is the industrialization due to which new technology came to the knowledge of the peoples and they started to utilize this new technology and started to invent new space-related technologies by the help of these technologies the space race was started between the nations, Which creates a fear among the nations. So, to regulate this space race “space law” came into force.

Space law is a relatively new branch of law, roughly starting in 1957 with the launch of Sputnik I, the first satellite in space. Space law consists of international space law, governing the activities of States, and international intergovernmental organizations like the national space law, governing the activities of individual countries and their nationals. This thing basically started the involvement of other states in outer space. The international community, in order to cope with the increased danger of military activities in outer space, adopted Resolution 17212 on 20th December 1961 to promote and safeguard the peaceful use of outer space.

While UN became the important platform to discuss all the matters related to the use of outer space and in the year 1958 an  Ad Hoc Committee was established. The Ad Hoc Committee acted as an essential step for the development of the international space law and only after one year its contribution was acknowledged with the establishment of the UN Committee for the Peaceful Uses of Outer Space (UNCOPUOS) as a permanent body within the UN.

The Committee on the Peaceful Uses of Outer Space (UNCOPUOS) was set up by the General Assembly in 1959 to govern the exploration and use of space for the benefit of all humanity: for peace, security and development. The Committee was tasked with reviewing international cooperation in peaceful uses of outer space, studying space-related activities that could be undertaken by the United Nations, encouraging space research programs, and studying legal problems arising from the exploration of outer space.

The Committee has two subsidiary bodies:

1. The Scientific and Technical Subcommittee, and
2. The Legal Sub-committee.

Major treaties

There is 5 Major treaty behind the formation of space laws these are as follow:

1. Outer Space Treaty of 1967
2. Rescue Agreement of 1968
3. Liability Convention of 1972
4. Registration Convention of 1975
5. Moon Agreement 1979

Outer space treaty

The Soviet Union’s and the USA’s space-related activities initiated the creation and development of Space Law, including Customary Law and the Resolutions that were adopted by the General Assembly. These Resolutions constitute the pre-contractual stage of Space Law and reflect customary rules, as well as, define the principles, in the embryonic state, governing the exploration and exploitation of outer space. These fundamental customary principles that were devised by the Legal Sub-Committee of the UNCOPUOS are reflected and incorporated in the “Outer Space Treaty” (OST). These principles include:

  1. The principle of the freedom of exploration and use of outer space and the principle of the benefit and interests of all mankind (Art. I);
  2. The principle of non-appropriation (Art. II);
  3. The principle of using the moon and other celestial bodies exclusively for peaceful purposes (Art. IV);
  4. The principle of international cooperation and assistance (Art. V);
  5. The principle of responsibility for national activities in outer space (Art. VI);
  6. The principle of liability for damage caused by state’s space objects (Art. VII) and
  7. The principle of registration of space objects (Art. VIII)

Basically, the rescue agreement of 1968 is the elaboration of (Art. V), the liability convention of 1972 is the elaboration of (Art. VII) and the registration convention of 1975 is the elaboration of (Art. VIII) of the outer space treaty of 1967.

Challenges

The outer space treaty is very helpful for the freedom of nations in the outer space of the world. The agreement and convention of outer space treaty serve the purpose of the nations but this old space treaty is not very much sufficient in the present time and it needs a new space law in the present time the main reason behind the requirement for this new space law comes through the following reason:

  1. The technological developments
  2. The increased capabilities of nations launching satellites into orbit
  3. The rise of new commercial space activities
  4. The emergence of new legal and technical issues that were not foreseen or considered relevant at the time of the drafting of the old space law

There are certain recent issues related to space such as the development of the role of private institutions in space activity were recently increasing which basically call for the review of the current policies and legislation related to space law and due to the increase in space activity the environmental problem of the country is increasing. The increasing use of space for military activities which are considered the main concern. It may be curbed by implementing the old and making of new policies.

Role of private sector

Nowadays the exploitation of outer space was considered at an embryonic stage. Some of the new developments were gradually increasing day by day which was basically the main concern. Thus, we face a new era of Space Law during which the outer space operations that were traditionally conducted by government agencies are open to the public and the private sectors. The rise of the private spaceflight industry is directly related to the emerging term of “New Space” or alternatively “commercial” or “entrepreneurial space” or even “astropreneurship”. The rise of the private sector’s involvement in space began in the 1990s due to technological maturity, significant benefits, and decreasing costs along with the governmental need to reduce space expenditures. The commercial use of outer space was changed from telecommunication to space tourism and space navigation. The commercial use of space is concerned with the outer space treaty along with the liability conventions. The most important provision about private actors is Art. VI of the OST, which states that “States Parties to the Treaty shall bear international responsibility for national activities in outer space, whether such activities are carried on by governmental agencies or by non-governmental entities”

It also clarifies that the “appropriate state bears the responsibility for authorization and supervision of all activities of non-governmental entities”. This article basically talks about the role of the private sector in activity related to outer space but at the same time, it also talks about the responsibility of the state if any damage is done whether it is done by a private or government agency. The above-mentioned topic only talks about the liability of the institution in case of the default but it does not talk about the owner and who is responsible for the incident whether a state or the private authority. According to the Convention, the “launching state is held liable for any damage caused by its space object”, but in the light of private involvement, the issue is not so simple. There are many uncertainties regarding the terms that define the “launching state,”
such as who is undertaking the launch and what is the liability if it is a private launch operator. The “territory” that is used for the launch is an exclusively reserved right for the states, but what if the launch takes place outside the territory of any state, such as at the high seas. since the treaties address only states, states are the only ones that carry the full burden of international liability according to the state that space object is registered. Such an assumption leaves the countries exposed to the risk of high compensations, unless national space legislation provides specific regulations, such as the obligation for liability insurance in an effort to guard themselves against liability.

Environmental Aspects of Space Law

Space activity represents a variety of environmental issues to which law must respond, of which the most severe are those that might take place after the launch. According to Art IX of the OST, states have the obligation to “avoid harmful contamination of outer space (forward contamination), as well as adverse changes in the Earth resulting from the introduction of extraterrestrial matter” (backward contamination).

This Article is the basis on which states have the obligation to “adopt appropriate measures” and therefore act to prevent changes in the space environment. One of the positive aspects of the space-related activities is that it serves as an effective tool for the protection of the environment, such as satellites that monitor the earth environment providing data about the complicated global changes of the Earth system and early warning systems for natural disasters. These systems are able to mitigate the consequences of natural disasters through coordination and technological space capacities but this increase in this space activity has a negative impact on the earth’s environment. It has created a “veritable junkyard of orbital space debris” consisting of defunct satellites, as well as components and tools lost during extravehicular activities. Space debris can create a navigation hazard to operational spacecraft satellites, especially in the Geostationary Satellite Orbit, where they can wander increasing the possibility to collide with functioning satellites or interfere with their transmissions. One of the solutions to this problem is the creation of legislation that will eliminate any possibility of removing another country’s debris without permission to be considered illegal.

Conclusion

As humans increase their presence in outer space, the law that governs human activities in that environment is becoming increasingly relevant and important to both States and the commercial sector. Throughout the analysis, it is clear that the core substance for the continuation of peaceful space exploration and exploitation in international cooperation. Domestic
legislation should, however, be harmonized, following the developments of International Space Law. Ensuring the applicability of the Outer Space Treaty could also be a step in the right direction since it will provide a common legal foundation for all states and enhancement of compliance. At last, it is worth noting that there is a strong need to strike a balance between the
need to revise and reform the treaties and the preservation of matters that are at present apparently secure.

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