Space law

By David A. Ord

……………. So, whose Space is it anyway?

The question is being asked with increasing frequency and in many different contexts.  The complexity of some of the answers has become the fuel of a rapidly expanding new legal business – Space Law. Several universities in the USA offer the subject as a specialist module to students of Law and just recently, the University of Sunderland was the first European university to offer the subject as a part of its graduate law course. Clearly, there’s money to be made from the interpretation of the confusion.

As early as the 1950s, it became obvious that some rules and regulations would be necessary to oversee the potential complexities of Space. Both the USA and Russia jointly approached the United Nations with outline legislation. The motivation for such a move was probably that each feared that the other may have the ability to take complete control of Space. Just in case, both wanted to agree some limitations.

The Americans drew an analogy for their proposals on the ‘Law of the High Seas’ whereby the vessels would be registered at a port of origin and subject to those laws, but Space, like the oceans, would be International and free.

The Russians on the other hand wanted the legislation to use airspace as the model. They put forward the argument that whatever was above your territory was a part of your sovereign state, right out to infinity. They were more sensitive than the West to spy missions flying over their territory and from very early on, they clearly saw this as potential misuse of Space.

Unfortunately, the launch of Sputnik-1, the world’s first Earth orbiter did not help the Russian argument. Sputnik crossed the USA 3 times as it orbited Earth and proved the futility of trying to control such activity by legislation. A satellite in Earth orbit will have a much greater capacity to view the territories beneath than any aircraft flying in a strictly controlled ‘air-space’ corridor.

So, in much of the early Space legislation discussions the American model prevailed. Eventually, this led to the 1967 ‘Outer Space Treaty’ which has been ratified by 107 signatories, including all of the major Space-faring nations such as Russia, the USA, China and the European countries. The treaty is overseen by the United Nations Office for Outer Space Affairs and sets out the important principles which include – ‘Space should be considered the province of all mankind; outer Space is free for exploration and use by all States; the Moon and other celestial bodies are to be used purely for peaceful purposes; and weapons will not be placed in orbit or in Space’.

The ‘Outer Space Treaty’ was augmented in 1968 by the addition of the ‘Space Rescue Agreement’ which requires the signatories to return home any astronauts who might land in their country, to help any astronaut in distress and to return any space objects to their owner. There are 97 ratified signatories to this treaty. Whereas most nations agree with the principles embodied in the Rescue Agreement some point out there is no reference in the Agreement as to who bears the cost of any ‘Rescue’.

In 1969, with the ink still drying on the intention that man’s endeavours in Space are for the benefit of all humanity, NASA could not resist planting an American flag on the Moon. Not that any claim to the real estate was intended, but they did have to make a point in the context of the space race.

In 1972, the third major plank of Space legislation came into being and this was on the subject of liability. This states that the launching party is “absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft”.  There are 89 ratified signatories to the ‘Space Liability Convention’.

In 1974, a fourth extension of the ‘Outer Space Treaty’ was brought into being which required the UN to be notified ‘as soon as is feasible’ when an object had been launched, the launcher, its planned orbit and its ‘general’ function. This treaty is referred to as the ‘Registration Convention’.  Note that the ‘specific’ function of the launched object is not required as this would certainly not be agreed to by several of the signatories. The military are still a major adopter of satellite technology. To date, there are 63 ratified signatories.

The fifth and final raft of Space legislation with the UN is the 1979 ‘Moon Treaty’, which gives jurisdiction of all celestial bodies (including the orbits around such bodies) over to the international community. To date, there 17 ratified signatories to the ‘Moon Treaty’; none of which are leading Space-farers.

The objection to the ‘Moon Treaty by the Space-faring nations is held to be the requirement that extracted resources (and the technology used to that end) must be shared with other nations. Perhaps following the ‘Law of the High Seas’ in creating Space Law has found its limit. The analogous law of the sea as enshrined in ‘ United Nations Convention on the Law of the Sea’ is believed to impede the development of extracting resources from the ocean bed.

At the end of 1976, a challenge to the Outer Space Treaty was made under the auspices of the Bogota Declaration. Eight Nations traversed by the equator felt that their ‘natural resources’ had been usurped by the Outer Space Treaty which established that ‘outer space’ and all celestial bodies were not subject to national control. All eight nations, Columbia, Ecuador, Congo, Indonesia, Kenya, Uganda and Zaire attempted to assert their rights of ownership to the geosynchronous orbit around the equator. With the signatories of the Outer Space Treaty vastly outnumbering those of the Bogota Declaration, nothing to date has arisen from the challenge. However, it remains a current topic of discussion in the burgeoning corridors of Space Law.

So, there is a basic framework of international legal agreements which can be applied to Space exploration and exploitation. One could argue that the UN is typically given many responsibilities on the international arena, but little in the way of authority. What can the UN actually do in the case of non-compliance?

The laws rarely get tested, but in 1978, the crash of the nuclear-powered Soviet satellite Kosmos 954 in Canadian territory led to the only claim filed under the Space Liability Convention. The satellite contained about 50 Kg of enriched Uranium and several of its fission products which had been generated during its operation, like plutonium, caesium and strontium. The debris field covered 15,000 Sq. miles and in many ways landing in a remote part of Canada was fortuitous. It was not a controlled landing and it could have been much worse. The Canadians claimed the $6 million cost of the clean-up under the ‘Space Liability Convention’. The Russians contested the claim but eventually settled for half the amount and a legal precedent had been set.

American assistance was keenly offered to the Canadians for the clean-up, although their motives may not have been purely philanthropic. There was interest in the Russian technology aboard Kosmos 954 and it is alleged that any surviving hardware was not duly ‘returned to its owner’, as specified under the ‘Space Rescue Agreement’. One piece in particular was a signal generator for the satellite’s radar which was driven by a Klystron unit – essentially, a vacuum tube based set. One for the Smithsonian.

In 2008, when a similar unscheduled de-orbiting fate was visited upon the American spy satellite USA193, the American military ensured that there was no chance of anyone getting a look at their technology. As the satellite re-entered Earth’s atmosphere over the Pacific, the US Navy engaged it with an SM-3 missile, reducing it to swarf. One assumes that legally, they were entitled so to do – or at least no one was about to argue.

The real problem with the current set-up is that the legal framework is geared toward nations. On behalf of its members, the United Nations can execute programs and even police them on a nation to nation basis. There is no obvious way in which their standard modus operandi deals with commercial organisations.

No one envisaged the commercialisation of Space to the extent that is now on the horizon. If a private American company, registered in Luxembourg launches a satellite for an Asian customer from a French island with the intention of recovering minerals from a celestial body, who gives approval for the mission? who owns the minerals? who covers any liability?  And, and, and many more questions. If anything goes wrong, then the UN has no interaction at a commercial level and can only hold a nation responsible – but which one?

At a superficial level, the current Space Laws would suggest that the launching nation gives mission approval, any minerals retrieved belong to everyone and if anything goes wrong, each of the nations involved has full responsibility with regard to any compensation. On such a basis, it is unlikely that there will be a sudden gold rush.

Space Law is mostly centred upon Space exploration and discovery – a sharing of knowledge and understanding for the benefit of mankind. The exploitation of Space by individual companies is not well served by current legislation.

For example, there is as yet no official definition of ‘Outer Space’ in any of the United Nations treaties. The Fédération Aéronautique Internationale (FAI), an international standards body for aeronautics has defined ‘Space’ based on the Kármán line at an altitude of 100 Km. This after the Hungaro-American engineer Kármán who calculated that at this height there was little atmosphere to contribute to lift for a vessel. This has been accepted by NASA, but curiously it is contested by the US Air Force, which advocates a more arbitrary 50 miles (80Km).

Why is this relatively small height difference important? Well, if you violate a nation’s defined airspace, then you stand a very good chance of being shot down – depending on the demeanour of the aggrieved. However, if you overfly the same territory in ‘Space’, then you are free to do so – provided of course that your purpose is for the ‘benefit of all mankind’.

The future of aviation will further blur the boundaries of Space. If Elon Musk1 is correct, then virtually all destinations on Earth will be reachable within a 1 hr flight. This will be achieved by launching a plane into low Earth orbit, accelerating to around 27,000Km/hr and re-entering Earth’s atmosphere in a matter of minutes before proceeding to the destination.  If each flight will be subject to the ‘Outer Space Treaty’ and its extensions, then there may be some frustration ahead for Mr. Musk.

The second major area which was not perceived in the concept of the ‘Outer Space Treaty’ is the commercial exploitation of Space through retrieval of minerals and other valuable elements of Space. The United States in particular is keen to encourage private enterprise to take on these ventures.

In 2015, the US government made an attempt to update the law on space mining, producing a bill that allows companies to “possess, own, transport, use, and sell” extra-terrestrial resources without violating US law. The problem is that putting this into practice violates the Outer Space Treaty, which states that no nation has sovereignty over these resources.

In Europe, the canny burghers of Luxembourg have decided to make a play for a piece of the pie. The government of Luxembourg has passed a bill giving companies the rights to space resources they extract from asteroids or other celestial bodies. They have made available 200 Million Euros in grants for companies who want to become asteroid miners. (Of course, they can also provide an attractive tax package for any of the companies who register in Luxembourg).

Can sovereign states make such claims over Space resources? Only time and legal challenges will tell. Some changes to the current Space Treaties are an absolute necessity to ensure that Space does not become a free for all – like the Gold rushes of the past carried out in a lawless vacuum.

At present, the nation from where a launch is made basically has to underwrite the operation. Missions are currently insured in the commercial market at various stages through their progress. Most countries agree to cap the commercial insurance limit at around $60 million and the nation bears the difference. This encourages private enterprise and limits their liability – the cost to insure a $250 million communications satellite operating for 10 years is around $50 million. But if let’s say it failed and began to collide with other satellites then the cost could be several billions of dollars.

Clearly this is a huge risk that not many commercial operations are willing to undertake and therefore the liability cap and an underwriting by Governments will be key to how Space is developed. So, the role of a Nation in any future laws will still be important in the commercialisation of Space.

However, even when a legal framework is agreed, the next major issue will be how these laws will be policed. This will not be a trivial matter in Space.

1Elon Musk – vision of air travel   https://www.youtube.com/watch?v=xDEKjfnRhqQ

 

 

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