Space law

Space law encompasses national and international law governing activities in outer space. International lawyers have been unable to agree on a uniform definition of the term "outer space", although most lawyers agree that outer space generally begins at the lowest altitude above sea level at which objects can orbit the Earth, approximately 100 km (62 mi) (the Kármán line).

The inception of the field of space law began with the launch of the world's first artificial satellite by the Soviet Union in October 1957. Named Sputnik 1, the satellite was launched as part of the International Geophysical Year. Since that time, space law has evolved and assumed more importance as mankind has increasingly come to use and rely on space-based resources.

NASA STS-121 Launch

Early developments

At Caltech in 1942 Theodore von Kármán and other rocket scientists banded together to form Aerojet rocket company with the help of lawyer Andrew G. Haley. To toast the new corporation, Kármán said, "Now, Andy, we will make the rockets – you must make the corporation and obtain the money. Later on you will have to see that we behave well in outer space...After all, we are the scientists but you are the lawyer, and you must tell us how to behave ourselves according to law and to safeguard our innocence."[1] Indeed, twenty years later Haley published the fundamental textbook, Space Law and Government.

Beginning in 1957 with the Space Race, nations began discussing systems to ensure the peaceful use of outer space.[2][3] Bilateral discussions between the United States and USSR in 1958 resulted in the presentation of issues to the UN for debate.[2][4][5] In 1959, the UN created the Committee on the Peaceful Uses of Outer Space (COPUOS).[6] COPUOS in turn created two subcommittees, the Scientific and Technical Subcommittee and the Legal Subcommittee. The COPUOS Legal Subcommittee has been a primary forum for discussion and negotiation of international agreements relating to outer space.

In 1960 the International Astronautical Congress met in Stockholm and heard several submissions including a survey of legal opinion on extraterrestrial jurisdiction by Andrew G. Haley.[7]

International treaties

Five international treaties have been negotiated and drafted in the COPUOS :

The outer space treaty is the most widely adopted treaty, with 103 parties . The rescue agreement, the liability convention and the registration convention all elaborate on provisions of the outer space treaty. UN delegates apparently intended that the moon treaty serve as a new comprehensive treaty which would supersede or supplement the outer space treaty, most notably by elaborating upon the outer space treaty's provisions regarding resource appropriation and prohibition of territorial sovereignty.[8] The moon treaty has only 13 parties however, and many consider it to be a failed treaty due to its limited acceptance.[9] India is the only nation that has both signed the moon treaty and declared itself interested in going to the moon. India has not ratified the treaty; an analysis of India's treaty law is required to understand how this affects India legally.[10]

In addition, the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water ("Partial Test Ban Treaty") banned the testing of nuclear weapons in outer space.

International principles and declarations

The five treaties and agreements of international space law cover "non-appropriation of outer space by any one country, arms control, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, the prevention of harmful interference with space activities and the environment, the notification and registration of space activities, scientific investigation and the exploitation of natural resources in outer space and the settlement of disputes." [11]

The United Nations General Assembly adopted five declarations and legal principles which encourage exercising the international laws, as well as unified communication between countries. The five declarations and principles are:

  • The Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space (1963)
All space exploration will be done with good intentions and is equally open to all States that comply with international law. No one nation may claim ownership of outer space or any celestial body. Activities carried out in space must abide by the international law and the nations undergoing these said activities must accept responsibility for the governmental or non-governmental agency involved. Objects launched into space are subject to their nation of belonging, including people. Objects, parts, and components discovered outside the jurisdiction of a nation will be returned upon identification. If a nation launches an object into space, they are responsible for any damages that occur internationally.
  • The Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (1982)
Activities of this nature must be transpire in accordance with the sovereign rights of States. Said activities should "promote the free dissemination and mutual exchange of information and knowledge in cultural and scientific fields, assist in educational, social and economic development, particularly in the developing countries, enhance the qualities of life of all peoples and provide recreation with due respect to the political and cultural integrity of States." All States have equal rights to pursue these activities and must maintain responsibility for anything carried out under their boundaries of authority. States planning activities need to contact the Secretary-General of the United Nations with details of the undergoing activities.
  • The Principles Relating to Remote Sensing of the Earth from Outer Space (1986)
Fifteen principles are stated under this category. The basic understanding comes from these descriptions given by the United Nations Office for Outer Space Affairs:
(a) The term "remote sensing" means the sensing of the Earth's surface from space by making use of the properties of electromagnetic waves emitted, reflected or :diffracted by the sensed objects, for the purpose of improving natural resources management, land use and the protection of the environment;
(b) The term "primary data" means those raw data that are acquired by remote sensors borne by a space object and that are transmitted or delivered to the ground :from space by telemetry in the form of electromagnetic signals, by photographic film, magnetic tape or any other means;
(c) The term "processed data" means the products resulting from the processing of the primary data, needed to make such data usable;
(d) The term "analysed information" means the information resulting from the interpretation of processed data, inputs of data and knowledge from other sources;
(e) The term "remote sensing activities" means the operation of remote sensing space systems, primary data collection and storage stations, and activities in :processing, interpreting and disseminating the processed data.[12]
  • The Principles Relevant to the Use of Nuclear Power Sources in Outer Space (1992)
"States launching space objects with nuclear power sources on board shall endeavour to protect individuals, populations and the biosphere against radiological hazards. The design and use of space objects with nuclear power sources on board shall ensure, with a high degree of confidence, that the hazards, in foreseeable operational or accidental circumstances, are kept below acceptable levels..."
  • The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries (1996)
"States are free to determine all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis. All States, particularly those with relevant space capabilities and with programmes for the exploration and use of outer space, should contribute to promoting and fostering international cooperation on an equitable and mutually acceptable basis. In this context, particular attention should be given to the benefit for and the interests of developing countries and countries with incipient space programmes stemming from such international cooperation conducted with countries with more advanced space capabilities. International cooperation should be conducted in the modes that are considered most effective and appropriate by the countries concerned, including, inter alia, governmental and non-governmental; commercial and non-commercial; global, multilateral, regional or bilateral; and international cooperation among countries in all levels of development."

Consensus

The United Nations Committee on the Peaceful Uses of Outer Space and its Scientific and Technical and Legal Subcommittees operate on the basis of consensus, i.e. all delegations from member States must agree on any matter, be it treaty language before it can be included in the final version of a treaty or new items on Committee/Subcommittee's agendas. One reason that the U.N. space treaties lack definitions and are unclear in other respects, is that it is easier to achieve consensus when language and terms are vague. In recent years, the Legal Subcommittee has been unable to achieve consensus on discussion of a new comprehensive space agreement (the idea of which, though, was proposed just by a few member States). It is also unlikely that the Subcommittee will be able to agree to amend the Outer Space Treaty in the foreseeable future. Many space faring nations seem to believe that discussing a new space agreement or amendment of the Outer Space Treaty would be futile and time-consuming, because entrenched differences regarding resource appropriation, property rights and other issues relating to commercial activity make consensus unlikely.

1998 ISS agreement

In addition to the international treaties that have been negotiated at the United Nations, the nations participating in the International Space Station have entered into the 1998 Agreement among the governments of Canada, Member States of the European Space Agency, Japan, Russian Federation, and the United States concerning cooperation on the Civil International Space Station (the "Space Station Agreement"). This Agreement provides, among other things, that NASA is the lead agency in coordinating the member states' contributions to and activities on the space station, and that each nation has jurisdiction over its own module(s). The Agreement also provides for protection of intellectual property and procedures for criminal prosecution. This Agreement may very well serve as a model for future agreements regarding international cooperation in facilities on the Moon and Mars, where the first off-world colonies and scientific/industrial bases are likely to be established.[13]

National law

Space law also encompasses national laws, and many countries have passed national space legislation in recent years. The Outer Space Treaty requires parties to authorize and supervise national space activities, including the activities of non-governmental entities such as commercial and non-profit organizations. The Outer Space Treaty also incorporates the UN Charter by reference, and requires parties to ensure that activities are conducted in accordance with other forms of international law such as customary international law (the custom and practice of states).

The advent of commercial space activities beyond the scope of the satellite communications industry, and the development of many commercial spaceports, is leading many countries to consider how to regulate private space activities.[14] The challenge is to regulate these activities in a manner that does not hinder or preclude investment, while still ensuring that commercial activities comply with international law. The developing nations are concerned that the spacefaring nations will monopolize space resources.[14] However this may be resolved by simply extending the United Nations Convention on the Law of the Sea to outer space.[15]

In May 2015, the United States Congress was considering the Space Resource Exploration and Utilization Act of 2015.[16]

Geostationary orbit allocation

Satellites in geostationary orbit must all occupy a single ring above the equator, approximately 35,800 km into space. The requirement to space these satellites apart means that there is a limited number of orbital "slots" available, thus only a limited number of satellites can be placed in geostationary orbit. This has led to conflict between different countries wishing access to the same orbital slots (countries at the same longitude but differing latitudes). These disputes are addressed through the ITU allocation mechanism.[17] Countries located at the Earth's equator have also asserted their legal claim to control the use of space above their territory,[18] notably in 1976, when many countries located at the Earth's equator created the Bogota Declaration, in which they asserted their legal claim to control the use of space above their territory.[19]

Future developments

Exploitation

American Society of International Law Space Interest Group 2014 Board meeting

While this field of the law is still in its infancy, it is in an era of rapid change and development. Arguably the resources of space are infinite. If commercial space transportation becomes widely available, with substantially lower launch costs, then all countries will be able to directly reap the benefits of space resources. In that situation, it seems likely that consensus will be much easier to achieve with respect to commercial development and human settlement of outer space. High costs are not the only factor preventing the economic exploitation of space: it is argued that space should be considered as a pristine environment worthy of protection and conservation, and that the legal regime for space should further protect it from being used as a resource for Earth's needs.[20][21] Debate is also focused on whether space should continue to be legally defined as part of the “common heritage of man,” and therefore unavailable for national claims, or whether its legal definition should be changed to allow private property in space.[20][22][23]

As of 2013, NASA's plans to capture an asteroid by 2021 has raised questions about how space law would be applied in practice.[24]

In 2016, the nation of Luxembourg has set out a formal legal framework which ensures that private companies engaged in mining resources in space have rights to those resources .[25]

Michael Doge, of Long Beach, Mississippi, is the first law school graduate to receive a space law certificate in the United States.[26][27] Doge graduated from the National Center for Remote Sensing, Air and Space Law at the University of Mississippi School of Law in 2008.[28][29]

The University of Sunderland is the first UK University to offer a space law module as part of its LLB programme. [30]

The University of Nebraska College of Law offers the U.S.’s first and only LL.M.[31] and Doctor of the Science of Law (J.S.D.) in space, cyber, and telecommunications law. Professor Frans von der Dunk, former Director of space law research at Leiden University joined the program in 2007. In addition to the LL.M., students can earn a J.D. at Nebraska Law with an emphasis in space and telecommunications law. The program also hosts three space and telecommunications conferences each year [32]

For more than 10 years, the University of Paris-Sud with the Institute of Space and Telecommunications Law have offered a Master's degree in Space Activities and Telecommunications Law. This Master is supported by numerous companies of space and telecommunications sectors.[33]

In August 2012, students at the University of the Pacific, McGeorge School of Law in Sacramento, California created the McGeorge Society for Space Law and Policy.

In September 2012, the Space Law Society (SLS) at the University of Maryland Francis King Carey School of Law was established.[34] A legal resources team united in Maryland, a "Space Science State," with Jorge Rodriguez, Lee Sampson, Patrick Gardiner, Lyra Correa and Juliana Neelbauer as SLS founding members.[35]

In August 2014, students at Northeastern University School of Law founded the school's Space Law Society.

Since 1951, the McGill Faculty of Law in Montreal, Canada hosts the Institute of Air and Space Law, and offers an LL.M in Air and Space law.[36]

In 2014, students at American University Washington College of Law founded the school's Space Law Society, with the help of Pamela L. Meredith, space lawyer and adjunct professor of Satellite Communications and Space Law.[37][38]

See also

References

  1. ↑ Andrew G. Haley (1963) Space Law and Government, page xii, Appleton-Century-Crofts
  2. 1 2 inesap.org Peaceful Uses of Outer Space and International Law.
  3. ↑ UN website UN Resolution 1148 (XII). Archived August 14, 2011, at the Wayback Machine.
  4. ↑ Nagendra Singh; Edward MacWhinney (1989). Nuclear Weapons and Contemporary International Law. Martinus Nijhoff Publishers. p. 289. ISBN 90-247-3637-4.
  5. ↑ UN website UN Resolution 1348 (XIII). Archived November 17, 2015, at the Wayback Machine.
  6. ↑ "United Nations Committee on the Peaceful Uses of Outer Space". United Nations Office for Outer Space Affairs.
  7. ↑ Andrew G. Haley (1961) "Survey of Legal Opinion on Extraterrestrial Jurisdiction", in proceedings of the eleventh International Astronautical Congress, Stockholm 1960, pp 37–92, Springer ISBN 978-3-662-37770-3
  8. ↑ "Journal of Space Law" (PDF). Journal of Space Law. 2. 1974.
  9. ↑ "Space Law".
  10. ↑ United Nations Office for Outer Space Affairs. "United Nations Treaties and Principles on Space Law.". Retrieved 16 February 2011.
  11. ↑ "United Nations Office for Outer Space Affairs".
  12. ↑ "Space Law and Space Resources".
  13. 1 2 "Space Law".
  14. ↑ Wong, Kristina. "Rumsfeld still opposes Law of Sea Treaty." The Washington Times, June 14, 2012.
  15. ↑ "Bill information on HR 1508". US Congress.
  16. ↑
  17. ↑ esa. "Geostationary Orbit. Legal issues". European Space Agency.
  18. ↑ Thompson, J. (1996) Space for rent: the International Telecommunications Union, space law, and orbit/spectrum leasing, Journal of Air Law and Commerce, 62, 279-311
  19. 1 2 Billings, L. (2006) To the Moon, Mars, and beyond: culture, law, and ethics in space-faring societies, Bulletin of Science, Technology & Society, 26(5), 430-437
  20. ↑ Lee, K. (1994) Awe and humility: intrinsic value in nature – beyond an earthbound environmental ethics, in: Attfield, R. & Belsey, A. Philosophy and the Natural Environment, Cambridge: Cambridge University Press, 89-101
  21. ↑ Fountain, L. (2003) Creating the momentum in Space: ending the paralysis produced by the “Common a Heritage of Man” doctrine, Connecticut Law Review, 35(4), 1753-1787
  22. ↑ Pop, Virgiliu (2009). Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership. Space Regulations Library. Springer. ISBN 978-1-4020-9134-6.
  23. ↑ David, Leonard (August 30, 2013). "Is NASA's Plan to Lasso an Asteroid Really Legal?". Space.com. Retrieved February 20, 2014.
  24. ↑ "Space Resources Initiative of Luxembourg". 2016-11-03.
  25. ↑ "UM space law only of its kind". The Daily Mississippian.
  26. ↑ "Beyond the blue yonder". Deccan Herald. Archived from the original on 2009-05-07.
  27. ↑ "First Space Lawyer Graduates". Space.com.
  28. ↑ "Law Graduation Includes First-Time Certificate in Space Law".
  29. ↑ "A Space Odyssey to the University Of Sunderland".
  30. ↑ // posted by Lawyer Gaga @ 6:58 PM. "Space Law Probe: Nebraska Space Law Program to Liftoff". Spacelawprobe.blogspot.com. Retrieved 2013-03-12.
  31. ↑ "Space, Cyber, and Telecommunications Law | University of Nebraska–Lincoln". Spaceandtelecomlaw.unl.edu. Retrieved 2013-03-12.
  32. ↑ "Partenaires M2 Droit des Activités Spatiales et des Télécommunications & IDEST - IDEST - Institut du Droit de l'Espace et des Télécoms". Idest-paris.org. Retrieved 2013-03-12.
  33. ↑ P.J. Blount. "New Space Law Society | Res Communis". Rescommunis.olemiss.edu. Retrieved 2013-03-12.
  34. ↑ http://www.choosemaryland.org/industry/documents/spacefullreport.pdf
  35. ↑ "About the Institute of Air and Space Law".
  36. ↑ "WCL Space Law".
  37. ↑ Jonathon H Foglia. "Pamela L. Meredith".
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