Outer Space Law: Legal Policy and Practice, Second Edition

The potential use of space for military purposes has, since the end of the Second World War, been intrinsically linked to the development of space technology and space flight. The political relevance of outer space continues to be recognised by nations, particularly the strategic benefit of Earth observation from outer space as a national security tool. However, the dual-use potential of many space applications increasingly blurs the distinction between the military and non-military uses of space. In fact, many States have openly declared their willingness to protect their space assets by military means and some have even described outer space as a war-fighting domain.

Non-State entities are becoming more and more involved in outer space activities, including the use of satellites for navigation purposes, the transportation of supplies to the International Space Station and the offering of tourist flights into outer space. Private operators have significantly increased activity in the launch of satellites and in 2021 no less than three private space companies (Virgin Galactic, Blue Origin and SpaceX) conducted successful space tourist flights.

Today in all space-faring countries, the space industry contributes to national GDP and supports the labour force. It also serves as a catalyst for technological advancement and productivity growth, and has become an integral part of the day-to-day lives of people around the world. Consequently, the socio-economic benefits of space technology (in particular satellite technology) have made the development of space programmes an increasing necessity for developing States.

Outer space has become a congested environment. The involvement of private actors, specifically, has given rise to a number of legal issues, including questions pertaining to liability, insurance, space debris, human rights and property rights in space.

To address these legal uncertainties, the existing chapters in the second edition of Outer Space Law: Legal Policy and Practice have been updated significantly and several new chapters have been added dealing with topical issues including:

the regulation of satellite navigation systems, and satellite constellations;
the application of human rights in outer space settlements;
the exploration and colonisation of outer space; and
planetary protection.
The second edition of Outer Space Law: Legal Policy and Practice remains aimed at readers looking for a single title to understand the key issues relevant to the space sector, by also emphasising the practical application of those issues. The book will be specifically relevant to legal practitioners, academics and State departments primarily working in the space arena, as well as to those in other related sectors such as IT and media, insurance and political science. Edited by Yanal Abul Failat, lawyer at the international law firm Fasken, and Professor Anél Ferreira-Snyman, a professor of law specialising in international space law at the University of South Africa, the book includes contributions by leading experts from space agencies, space venturers, lawyers, economists, insurers, academics and financiers.

• Language: English
• Publisher: Globe Law and Business
• Release date: Apr 6, 2022
• ISBN: 9781787424838

Book preview

Consulting editors

Yanal Abul Failat and Anél Ferreira-Snyman

Managing director

Sian O’Neill

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Outer Space Law: Legal Policy and Practice, Second Edition

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DISCLAIMER

This publication is intended as a general guide only. The information and opinions which it contains are not intended to be a comprehensive study, nor to provide legal advice, and should not be treated as a substitute for legal advice concerning particular situations. Legal advice should always be sought before taking any action based on the information provided. The publishers bear no responsibility for any errors or omissions contained herein.

Table of contents

Preface to the first edition

Yanal Abul Failat

LXL LLP

Anél Ferreira-Snyman

University of South Africa

Preface

Yanal Abul Failat

Fasken Martineau LLP

Anél Ferreira-Snyman

University of South Africa

Foreword

Tanja Masson-Zwaan

International Institute of Air and Space Law, Leiden University

International law governing outer space activities

Christopher Johnson

Secure World Foundation; Georgetown University Law Center

National law governing outer space activities

Yun Zhao

University of Hong Kong (HKU)

Delimitation of outer space and Earth orbits

Olavo de Oliveira Bittencourt Neto

Catholic University of Santos

Military activities in outer space

Anél Ferreira-Snyman

University of South Africa

Licensing private outer space activities

Yanal Abul Failat

Fasken Martineau LLP

Property and ownership in outer space

Wian Erlank

North-West University

Universe exploration and colonisation

Thomas Cheney

AstrobiologyOU and the OU Law School, The Open University

Planetary protection

Michelle LD Hanlon

University of Mississippi School of Law & Center for Air and Space Law

The exploitation of natural resources in outer space

Philip De Man

University of Leuven

Regulation of artificial satellites

Christopher J Newman

Northumbria University

Regulation of remote sensing activities

Carlo Golda

Maria Elena De Maestri

University of Genoa

Legal regulation of satellite navigation systems

Elizabeth Tiarks

Northumbria University

Regulation of satellite constellations

Lauren Napier

Christopher J Newman

Northumbria University

Regulation of the space tourism sector

Yanal Abul Failat

Fasken Martineau LLP

Anél Ferreira-Snyman

University of South Africa

Financing space activities

Mathieu Luinaud

William Ricard

Luigi Scatteia

PwC Advisory France,

Space Practice

Intellectual property law in the context of climate change

Anja Nakarada Pečujlić

EnduroSat

Environmental responsibility for space debris

Anél Ferreira-Snyman

University of South Africa

International trade aspects of outer space activities

Sina Kimiagar

Chiara C Klaui

Thomas J McCarthy

Akin Gump Strauss Hauer & Feld LLP

Brad Powell

Relativity Space, Inc

Cyber operations in outer space

Heather A Harrison Dinniss

Swedish Defence University

The extraterritorial application of human rights instruments in outer space settlements

Gerrit Ferreira

North-West University

Anél Ferreira-Snyman

University of South Africa

Evidence from space in cases before international courts and tribunals

Damian M Bielicki

Kingston University London

Dispute resolution

Nicholas Gould

Fenwick Elliott LLP

About the authors

Index

About Globe Law and Business

Preface to the first edition

Yanal Abul Failat

LXL LLP

Anél Ferreira-Snyman

University of South Africa

The Earth is the cradle of humanity, but mankind cannot stay in the cradle forever. Russian father of rocketry, Konstantin Tsiolkovsky (1857–1935)

Since this statement was made in the early 20th century, the nature of space exploration has changed significantly. The changing nature of space exploration and spaceflight may be attributed to the rapid development of outer space technology and the increasing participation of private actors in the realm of outer space.

Following the end of WWII, the potential use of space for military purposes provided the impetus for the development of space technology and spaceflight. The political relevance of outer space continues to be recognised by nations and, in particular, the strategic benefit of Earth observation from outer space remains an important national security tool. However, because of the dual-use potential of many space applications, the distinction between military and non-military uses of space is becoming increasingly blurred. The consequent potential for conflict between nations in order to protect their space assets is alarmingly clear.

Although states still assume a leading role in the regulation of outer space activities, the outer space arena has evolved to include non-state entities, which are becoming increasingly involved in outer space activities. These activities currently comprise the use of satellites for navigation purposes, the transportation of supplies to the International Space Station and the planned offering of tourist flights into outer space. Today, in all spacefaring countries, the space industry contributes to national GDP and supports the labour force. It also serves as a catalyst for technological advancement and productivity growth, and has become an integral part of the day-to-day lives of people all around the world. The involvement of private actors in outer space has, however, given rise to a number of legal issues, including questions pertaining to liability, insurance and property rights in space.

The current outer space treaties are, to a large degree, outdated and unable to deal with legal issues arising out of the military and commercial use of outer space. It is the aim of this book to provide readers with a single title which explores the key issues relevant to the evolving space sector. The book will be specifically relevant to legal practitioners, academics and state departments primarily working in the space arena, as well as to those in other related sectors such as information technology, media, insurance and political science.

Outer Space Law features contributions by leading experts including space venturers, lawyers, insurers and academics. We would like to thank the contributing authors for their dedication to the project and for sharing their expertise. It has been both a privilege and a pleasant experience to embark on this project with them.

We also wish to thank Sian O’Neill, Managing Director of Globe Law and Business Ltd, for her kind advice and guidance on the publication of this book. It has been a pleasure working with her on this publication.

Yanal Abul Failat

Anél Ferreira-Snyman

October 2017

Preface

Yanal Abul Failat

Fasken Martineau LLP

Anél Ferreira-Snyman

University of South Africa

Space is for everybody. It’s not just for a few people in science or math, or for a select group of astronauts. That’s our new frontier out there, and it’s everybody’s business to know about space.

Christa McAuliffe (US teacher and astronaut)

It is gratifying to see the continuation of Outer Space Law: Legal Policy and Practice into a second edition. Since the publication of the first edition, it has become even more evident that space exploration has in many respects entered a new era, with a new space race that no longer only involves States, but also private actors, which are actively participating in outer space activities. Moreover, because of constrained national budgets, States are also increasingly involving private enterprises in their space exploration and transportation activities.

Recent years have seen a significant rise in the launch of satellites by private companies, and in 2021 while this second edition was compiled, no less than three private enterprises (Virgin Galactic, Blue Origin and SpaceX) conducted successful sub-orbital and orbital space tourist flights. There is also renewed interest in lunar exploration, with both States and private companies being involved in projects to establish human settlements on the moon in the not-too-distant future.

The impact upon the industry of the new economic reality can hardly be overstated. Because of the increase in space activities, outer space has become a congested and competitive environment, which is not only a catalyst for conflict between States in an effort to protect their space assets and interests but which can also cause irreparable harm to the outer space environment, because of human contamination and the creation of more space debris.

International space law has not kept up with technological advancements in the outer space arena and is therefore unable to address many of the legal issues arising from the new space race. To address these legal uncertainties, the second edition of Outer Space Law has been extensively updated, and several new chapters have been added dealing with topical issues, including the regulation of satellite navigation systems, and satellite constellations; the exploration and colonisation of outer space; the application of human rights in outer space settlements; and planetary protection.

The second edition of Outer Space Law again features contributions by leading experts in the field, including space venturers, lawyers and academics. We would like to thank the original and new contributing authors for their dedication to completing the second edition and sharing their expertise. It has again been both a privilege and a pleasant experience to embark on this project with them.

We extend our appreciation to assistant professor Tanja Masson-Zwaan, deputy director of the International Institute of Air and Space Law at Leiden University, and president emerita of the International Institute of Space Law, for writing the foreword to the second edition.

We also wish to sincerely thank Kirsty Ridge at Globe Law and Business Ltd for her kind support, guidance, diligence and enthusiasm in publishing the second edition of Outer Space Law.

Yanal Abul Failat

Anél Ferreira-Snyman

March 2022

Foreword

Tanja Masson-Zwaan

International Institute of Air and Space Law, Leiden University

You are holding the second edition of Outer Space Law: Legal Policy and Practice. Once again, consulting editors Yanal Abul Failat (Fasken Martineau LLP, London) and Professor Anél Ferreira-Snyman (University of South Africa, Pretoria) have succeeded in bringing together and editing an impressive number of original contributions on current and future space law topics.

Since the publication of the first edition in 2017, a lot has happened – and is happening – in the space field. The pace of commercialisation has further intensified, and the impact of ‘NewSpace’ has grown exponentially. Some entrepreneurs plan to launch thousands of small satellites into Low Earth Orbit to provide broadband internet to the entire globe. This will be useful, but at the same time, it creates congestion, endangers the long-term sustainability of outer space activities, and causes interference with optical astronomy. Other ‘pioneers’ invent novel services such as sending personal mementos or human and animal cremains to the lunar surface. Such services might find interested customers, but one could also question their ethical implications, or the risk of creating a garbage dump on the moon and their effect on human heritage in space. Yet another example is the possible commercial use of natural resources present in outer space. New business ideas such as a refuelling station in lunar orbit may well facilitate future missions to Mars, but questions of global governance and equitable sharing also arise in this context. And private human spaceflight seems to be finally taking off after many years of waiting. Should we see those trips to the edge of space by billionaires as mere folly? Or do they herald a true democratisation of access to space, possibly even opening the door to point-to-point transportation via space?

Many of these questions are difficult to answer, and the truth probably lies somewhere in the middle. But the examples show that weighing the interests of all stakeholders, and finding an equitable balance among them, is becoming more and more challenging, and so is the task of regulators.

Besides new developments in terms of activities, the field of space law has also expanded. Both at the international and national level, new legal instruments have seen the light of day, even though mostly in the form of ‘soft law’. Just to mention two examples, the UNCOPUOS adopted twenty-one Guidelines for the Long-Term Sustainability of Outer Space Activities in 2019, while the USA initiated the multilateral Artemis Accords for cooperation in the exploration and use of the moon and other celestial bodies in 2020.

And one last worrying development to be mentioned here is the growing tension and mistrust among States globally, leading to an increase in anti-satellite (ASAT) tests, the creation of ‘space forces’, and the resort to cybertechnology to disrupt space applications such as telecommunications. In our interconnected and interdependent world, it has never been more important to unite and cooperate in a peaceful manner, to safeguard the benefits that space brings to all of humanity.

In view of all these developments, the editors saw the need to embark on this second edition. It was clear that to reflect the current situation briefly highlighted above, previous chapters had to be updated and new ones had to be added. In doing so, the book has expanded from eighteen to twenty-three chapters, covering a wide range of topics.

This second edition again features chapters by both academics and practitioners in the field of outer space law and policy, thus ensuring different perspectives on a variety of issues. Moreover, the authors hail from different continents, including Africa, Asia, Europe, and North and South America, thus adding to the diversity. And, perhaps most importantly, most of the authors represent a new generation of space law and policy experts, thus providing fresh perspectives on the challenging questions facing us today.

The result is a comprehensive book with contributions on traditional, global topics, as well as more contemporary ‘NewSpace’ ones. Examples of the former are the international and national law governing outer space activities; the delimitation of outer space; military activities and cyber operations in outer space; or environmental issues including planetary protection. Space applications including communications, navigation and earth observation are also addressed. Examples of more ‘NewSpace’ related topics range from the licensing and insurance of private space activities to financing of space activities, as well as international trade aspects of space activities. Large constellations, ‘space tourism’ and the question of ownership rights and exploitation of natural resources are also addressed. The possibility of disputes among different parties, including both States and private entities, is covered in a chapter on dispute resolution and another chapter focuses on the use of space data as evidence before international courts and tribunals. The book even contains chapters on ‘futuristic’ topics like ‘colonisation’ and the application of human rights instruments in space settlements.

There is no question that readers from many different backgrounds will enjoy reading this book, and I wish them much pleasure in doing so!

International law governing outer space activities

Christopher Johnson

Secure World Foundation; Georgetown University Law Center

1. Introduction

The existing legal and regulatory framework for outer space activities begins at the international level, with a number of binding international legal treaties. Because of the special nature of the international legal regime applicable to space activities, commercial ventures¹ and other non-governmental initiatives must be cognisant of this regime, keenly vigilant of its obligations, and anticipate and respond to its impacts upon their clients’ activities.

Space activities are relatively unique, in that the actions of private, non-governmental actors, such as private firms, universities and even individuals are the responsibility of sovereign States. Those States are internationally responsible and potentially internationally liable for them. The Outer Space Treaty (1967) creates a regime whereby sovereign States are the final and ultimate entities responsible on the international level for all of their national space activities, whether governmental or commercial. For this reason, commercial actors (and their attorneys) must be well apprised of the constraints and requirements of international law.

Considerable preparatory planning and anticipation with regard to this international regime will be necessary for any viable undertaking. That planning includes determining (among other things):

•which State or States are considered a ‘launching State’;

•which State or States will register the space object (both nationally and internationally);

•the international treaties to which the responsible or registering State is a party (and the obligations imposed by those treaties on private actors);

•which national laws and regulatory regimes apply to the proposed activity; and

•to which national regulatory agency applications for licences should be made.

2. The international legal order

2.1 Introduction

Before considering the core body of international space law, which exists in a number of international treaties and conventions, it is crucial to understand that public international law (the law of nations) in its broadest sense applies to outer space.

As a principal organ of the United Nations (UN), the International Court of Justice (ICJ) performs the UN’s judicial function in giving both judgments and advisory opinions. In seeking to find the sources of international law, Article 38 of the Statute of the ICJ lists four categories of sources of international law. These are:

•customary international law;

•international treaties;

•general principles of law; and

•subsidiary to these three categories, the writings of the most highly qualified publicists of the law (ie, academics).

This means that any of these sources of the law may contain provisions which, in the broadest sense, apply to outer space and to activities on Earth affecting or concerning outer space.

2.2 The Charter of the United Nations

The Charter of the United Nations (the UN Charter) applies to outer space. Article 2(4) of the UN Charter prohibits Member States from using force, and even the threat of force, against the territorial integrity or political independence of any other UN State. While these provisions were originally contemplated for traditional domains such as land, the surface and sub-surface of the oceans, and airspace, they also apply to outer space. Consequently, the use of force is generally impermissible in outer space, and this prohibition applies to the use (or threat) of force to, from, or within the realm of outer space. There are exceptions to this prohibition on the use or threat of force. Article 51 of the UN Charter reiterates the ‘inherent’ right of a State to defend itself when threatened with an armed attack. Additionally, an ‘armed attack’ is thought to be of a graver nature than a ‘use of force’. With regard to outer space, it is currently unclear and undefined what constitutes either the ‘use of force’ or the more serious ‘armed attack’.

This is but one example (albeit an important one) of general public international law being applicable to outer space activities. As explained elsewhere in this book, other regimes of international law applicable to outer space may include:

•other elements of the law of armed conflict (both jus ad bellum and jus in bello, often generally referred to as the laws and customs of war or international humanitarian law or IHL); ²

•intellectual property law; ³

•international criminal law;

•international trade law; ⁴

•international environmental law; ⁵

•international cyber law; ⁶

•international human rights law; ⁷ and

•international telecommunications law.

As mentioned previously, general principles of international law may also, along with treaties and custom, apply to space activities. These include principles and concepts such as the legal equality of States, the finality of settlements, the validity of agreements, and other seemingly common-sense concepts required for the law to function logically, coherently and predictably. Another principle of the law is lex specialis derogat legi generali, meaning that general law defers to special law. Within the context of the preceding fields of public international law, this brings the present discussion to the special regime of international space law.

2.3 International space law

A set of international treaties was created to address space activities directly and forms the core body of international space law. These treaties were all negotiated and drafted by United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), a specialised body of the UN organised under the United Nations General Assembly, and currently comprising over 95 States. All the major space treaties, as well as subsequent instruments on space, are primarily products of UNCOPUOS.

The core space treaties are the Outer Space Treaty (1967), the Rescue (or Astronaut) Agreement (1968), the Liability Convention (1972) and the Registration Convention (1975).⁸ A subsequent treaty, the Moon Agreement (1979), is also in force, but only for a small minority of States that have ratified it (none of which include the most important global space powers).

(a)The Outer Space Treaty (1967)

The Outer Space Treaty is regarded as the ‘Magna Carta’ of space law, and its scope and lasting utility lives up to that moniker. As at 1 January 2021, this Treaty has been ratified, and is therefore binding, upon 111 States, and has been signed by an additional 23 States.⁹ States Parties to the Outer Space Treaty include all the most important and powerful spacefaring States, both the historical space powers such as the USA, Russia and China, and emerging space powers.

In addition to the text of the treaty creating rights and binding obligations for the States which have signed and ratified it as a legal instrument, the Outer Space Treaty can also be cited as a source of customary international law. Because States have consistently observed and adhered to the treaty, and have made statements that their actions in observance of the treaty are because they see it as their obligation to do so under international law, many are of the opinion that the treaty can be cited also as customary international law, a separate source of law (as discussed above). As the Outer Space Treaty reflects customary international law, it can be said to constitute the rights and obligations of States which are not parties to the underlying textual treaty instrument itself. While such a situation has never arisen, this shows the success of the treaty in addressing and regulating space activities. Private actors, whether their States are parties to the Outer Space Treaty or not, consider its rights and obligations as binding upon them.

Turning to the text of the treaty itself, special attention should be paid to its preamble, as this reiterates the reason why the treaty was created in the first place – ie, the reason for changing the pre-existing international legal order. As with many treaties, the preamble to the Outer Space Treaty states the subject matter of the treaty, and the vision of its drafters and negotiators. To international lawyers, the subject matter is referred to as the ‘object’, and its vision and desire is called the ‘purpose’ of the treaty. As with many treaties, the preamble itself does not create new legal rights and obligations. Rather, it states the object and purpose, which are to be used in interpreting the provisions of the treaty (which contain those new legal rights and obligations). In summary, no interpretation and application of the articles of the treaty should confound or defeat the preamble’s purpose, nor should they be applied to topics and activities that the treaty was not created to regulate.

Looking at the preamble to the treaty, it may be seen that the drafters were inspired by the great prospects opening up before mankind as a result of man’s entry into outer space and recognised the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes …. The preamble also reflects the belief that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of their degree of economic or scientific development. These aspirations should inform (and, if necessary, correct) any interpretation of the subsequent operative articles of the treaty.

The Outer Space Treaty thereafter establishes a series of fundamental principles governing space activities, creating broad freedoms and then subjecting those freedoms to limited and explicit prohibitions. In understanding any of its provisions, it should also be remembered that the Outer Space Treaty is brief in nature, containing only 17 articles. By comparison with other more comprehensive treaties, the Outer Space Treaty is quite short, and its full title reflects that it is a treaty setting out principles rather than an exhaustive and comprehensive set of provisions. The title ‘Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies’ therefore alludes to it being subject to later refinement and elucidation, as do the subsequent actions of UNCOPUOS in expanding space law with four succeeding treaties. These insights should always be included in any attempt to understand and interpret its provisions. Private actors attempting advanced space activities may find that the treaty only addresses their activities in the broadest manner.

Article I of the Outer Space Treaty establishes the broad freedom of States to access, explore, and use outer space without prior consent or permission from other States. It mandates that the exploration and use of outer space shall be the province of all mankind. Article I then provides that outer space is free for:

exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

These broad and expansive freedoms mean that all States, and therefore all peoples, have freedom of access to and exploration and use of outer space, including the Moon and celestial bodies. This freedom is the first and most important principle of international space law. No State can deny another State access to or exploration or use of space, and no prior permission is required from any international authority before conducting space activities.

Article II contains a form of restriction on the freedom conferred by Article I. It prohibits national appropriation of outer space and of celestial bodies.¹⁰ This prohibition is comprehensive in stating that no methods or means (eg, sovereign claims, use, occupation) would legitimise national appropriation. What Article II explicitly prohibits and what it implicitly permits is subject to considerable debate, and many believe that, while prohibiting national sovereign claims in a territorial (or ‘colonial’) fashion, other uses of celestial resources by States and private entities are permitted (or at least not explicitly prohibited). Indeed, any logical understanding of Article II would necessitate that some rights of use, utilisation and reuse are permitted in space: otherwise, how could any activities in space happen?

•Many see the Article II prohibition as existing at the far end of a continuum, where national appropriation is clearly prohibited.

•Article I freedoms of access, exploration and use exist at the near end of the continuum.

•Somewhere along the continuum, governmental, private (or mixed governmental-private) use of celestial resources to derive fuel, water, air or other useful resources are also not prohibited.

Many other commercial uses of space exist, and the use of celestial resources should be included in that list of uses.¹¹ Clarifying these rights has recently taken place on the national level with national space legislation, such as in the USA, and it is likely that other nations will follow this approach to clarification of their Article I freedoms at the national municipal level.

Article III incorporates the Outer Space Treaty within the broader body of public international law, establishing a lex specialis–lex generalis relationship whereby issues directly addressed by space law and general international law are definitively governed or adjudicated by space law. Nevertheless, for other space-related issues, this broader body of international law may be both valid and applicable.

Article IV is a disarmament and security provision.¹² It prohibits the placement into Earth orbit of any objects carrying nuclear weapons or any other kinds of weapons of mass destruction or installing them on celestial bodies, or stationing such weapons in outer space in any other manner. As this article concerns weapons of ‘mass destruction’, it may therefore permit other types of weapon. Rather than completely demilitarising space, Article IV essentially de-weaponises the domain of space. National militaries have used outer space for military purposes since the beginning of the Space Age. It has even been remarked that all the peaceful activities conducted in space, including the telecommunications and remote sensing industries and national and international scientific endeavours, such as space telescopes and crewed spaceflight, are conducted against the backdrop of national security interests and a geopolitical situation that has so far allowed these activities to continue. Indeed, the drafting and negotiation of the Outer Space Treaty came at a time of tensions between global Cold War superpowers, and the treaty was initially received as a landmark disarmament and security treaty.

The second paragraph of Article IV has not traditionally provoked much contemplation, but with renewed interesting in lunar activities and the establishment and greater activity of national military space forces, the substantial and almost total non-militarisation of the Moon in Article IV, paragraph 2 may yet achieve greater prominence. This paragraph requires that the Moon and other celestial bodies shall be used exclusively for peaceful purposes, a noticeable and intentional amplified protection than elsewhere in the treaty. The paragraph then stipulates that the establishment of military bases, installations and fortifications, the testing of any types of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. With very little exception, military forces and personnel are not permitted on the Moon.

Article V concerns the protection of astronauts,¹³ referring to them as envoys of mankind, and requiring that States give them protection and assistance in emergency situations and that States inform other State Parties and the UN of space phenomena that might endanger astronauts. These protections and duties were more fully developed in the Return (or Astronaut) Agreement (1968), which is discussed at 2.3(b) below.

Articles VI and VII respectively create a very important responsibility and liability regime which all actors in space, whether governments, private entities, academia and even individuals, should be aware of in their planning. The reason that this chapter and other chapters in this book discuss international law in such detail for the benefit of private actors is that Articles VI and VII make sovereign States the final and ultimately responsible entities for all activities in space, whether those activities are purely governmental (such as space exploration or military activities), or purely commercial and with limited governmental oversight. Article VI reads in full:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.

Because of these stringent duties placed on States to carry international responsibility for non-governmental national space activities, including their duty of authorisation (licensing) and continuing supervision, and the duty to assure their conformity with international law, States have a keen interest in what their private sector operators are doing in space. As such, the requirements of international law should be of vital and lasting interest to any private actor or firm undertaking space activities. Legal counsel to a private space company should be aware of these public international law concerns and of the methods of their implementation at the national level (or across various States).

As a corollary to international responsibility under Article VI, Article VII addresses liability, which is a related but separate and distinct concept. Article VII delineates four categories of launching State:

•a State that launches a space object;

•a State that procures the launch;

•a State from whose territory a space object is launched; and/or

•a State from whose facility a space object is launched.

It should be noted, therefore, that there can be more than one ‘launching State’. Nevertheless, each launching State is internationally liable for damage to any other State Party to the Treaty (or to its natural or juridical persons) caused by its launched space object or component parts.

This international liability for damage may accrue on the surface of the Earth, or in airspace, or in outer space (including on the Moon or other celestial bodies). The type of damage concerned is widely considered to be physical damage, or at least to have a physical component (and not merely to be financial, political, electronic etc damage). The categories of launching State have been reiterated without modification in subsequent space treaties, and the provisions on liability were also expanded upon in the Liability Convention (1972) (which is discussed at 2.3(c) below).

Article VIII is equally important and extends a major component of sovereignty in an area where it is largely absent (or, indeed, prohibited as a result of Article II). Jurisdiction is the power of a State to create laws, hear claims and settle disputes, and enforce its laws and judicial decisions. While sovereignty is diminished in outer space by the prohibition on national appropriation (and by the very fact that outer space is an international domain akin to the high seas or the airspace above the high seas), State jurisdiction can be asserted into outer space. In fact, in order to give effect to the States’ duties of licensing, oversight and continuing supervision, jurisdiction must be extended into outer space. Article VIII therefore establishes a mechanism for States to extend their municipal jurisdiction in an extraterritorial fashion, using national registries of space objects. It reads:

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.

Consequently, States have the right (which some see as an obligation) to assert domestic jurisdiction over space objects by placing them on national registries. Those space objects may be objects they have launched (from their territory or facility, or otherwise), or they may be space objects whose launch they procured. While there may be more than one launching State in any particular launch, there should be just one State which lists any one object on its national registry. The jurisdictional powers are exercised both over personnel and the craft itself. It would appear that these jurisdictional powers largely match in personam, in rem and quasi-in rem jurisdiction (at least in those common law countries that see jurisdiction in those terms).

A distinction must be made here between national registration of space objects by a national registry, and international registration of space objects with the UN. Article VIII of the Outer Space Treaty addresses national registries and State jurisdiction linked to these registries. However, there is also international registration, as called for in UN General Assembly Resolution 1721 B (XVI), International co-operation in the peaceful uses of outer space (20 December 1961), and subsequently made mandatory in the Registration Convention (1975) (which is discussed at 2.3(d) below). This resolution calls upon States launching objects into orbit or beyond to furnish information promptly to the Committee on the Peaceful Uses of Outer Space, through the Secretary-General, for the registration of launchings and requests the Secretary-General to maintain a public registry of the information furnished. Pursuant to the resolution, the United Nations Office for Outer Space Affairs (UNOOSA) maintains a public registry of space objects, which is accessible on its website. Additionally, pursuant to the Registration Convention, UNOOSA also maintains a similar and largely identical public registry of space objects that is also accessible online.

Article IX addresses environmental issues, including both the terrestrial environment and the space and extraterrestrial environments. It requires:

•States to observe principles of cooperation and mutual assistance;

•States to have due regard to the corresponding interests of other parties to the treaty;

•States exploring space to conduct exploration in such a way as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial material …; and

•consultations between States when issues of environmental protection arise.

As space activities have become more advanced, this ‘due regard’ principle has expanded into issues of planetary protection of unique and pristine celestial environments. However, most private companies will not be immediately concerned with these issues.

The remaining articles of the Outer Space Treaty deal with other advanced issues, such as information sharing between States regarding their space activities, rights of visitation on Moon bases, and the responsibilities of international intergovernmental organisations conducting space activities. The final provisions of the treaty deal with its ratification, entry into force, amendments and State withdrawal, and are not of immediate concern to private actors in space.

However, as the Outer Space Treaty is the primal international legal instrument governing activities in space, and an instrument which directly imputes the actions of non-governmental actors to their appropriate national authorities, the treaty warrants fundamental and continual priority in the development of the operational and business plans of private actors. Subsequent international legal instruments, which are discussed below, expand, refine and modify the rights and obligations of the Outer Space Treaty in a number of important ways.

(b)The Return (or Astronaut) Agreement (1968)

The Return (or Astronaut) Agreement clarifies and expands upon Article V of the Outer Space Treaty. While many of its provisions deal with the treatment of astronauts as envoys of mankind, it does contain several provisions that may be of interest to other, non-crewed space activities. Article V obliges States to return space objects of other States which have landed on their territory, or in areas of the high seas or otherwise outside State jurisdiction. This duty to return space objects also addresses situations in which space objects are of a hazardous nature, and provides for the reimbursement of expenses incurred in the recovery and return of space objects.

(c)The Liability Convention (1972)

The Liability Convention expands upon and refines the liability provisions in the Outer Space Treaty. Firstly, Article I(a) defines ‘damage’ as loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations. It should be noted that these types of damage are physical in nature and are therefore a lesser category of compensable damage than is found in most legal systems.

Article I(d) defines what constitutes a ‘space object’ for the purposes of the convention, though the definition is not comprehensive. It merely states that a space object includes component parts of a space object as well as its launch vehicle and parts thereof. Understanding what a space object is in legal terms may therefore become challenging in the context of evolving technologies, such as spaceplanes or high-altitude platforms. Nevertheless, Article II establishes absolute liability to pay compensation for damage caused by a space object on the surface of the Earth or in aircraft in flight. Article II also addresses claims between States for damage caused in space, but pursuant to a fault-based regime. However, Article II goes no further in elaborating on what standard that fault-based regime is based, who bears the burden of proof, or other legal elements in the determination of fault.

The provisions of the convention also address joint liability between States where damage has been caused to a third State. Articles VIII–XII inclusive discuss how claims for compensation are to be presented, with Article XII imposing a liability to make restitution as the measure of damages awardable under the Convention:

The compensation which the launching State shall be liable to pay for damage … shall be determined …, in order to provide such reparation in respect of the damage as will restore the person, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred.

Further provisions relate to recourse to a Claims Commission if normal diplomatic negotiations do not result in a settlement within one year of the submission of claims documentation. Such a Claims Commission, however, would be non-judicial in nature and its decisions would be non-binding recommendations.

For private actors, the convention should be considered in light of its potential impact on their activities, on the potential liability to which their regulating and supervisory States may be exposed, and therefore on the types of risk to which those States and actors will be exposed. This will perhaps require private actors to obtain insurance or show adequate financial resources to meet potential liabilities.

(d)The Registration Convention (1975)

Private actors should also be aware of the Registration Convention, which aims at promoting general transparency among nations with regard to their space activities. It calls for the creation of a central registry of space objects, which is administered on behalf of the Secretary-General of the UN by UNOOSA. Situated at the United Nations office in Vienna (UNOV), in Austria, UNOOSA maintains this registry and the one called for by UN General Assembly Resolution 1721 B (see 2.3(a) above), both in physical form and in searchable form online.

With regard to national registries, Article II of the convention also requires that State Parties establish their own national registries (as provided for in Article VIII of the Outer Space Treaty). As at 1 January 2021, 70 States have becomes parties to the Convention,¹⁴ almost 40 of which have notified UNOOSA of their establishment of national registries, including the USA, the UK, France, Germany, Japan, Canada and other important space powers.¹⁵ International organisations such as the European Space Agency (ESA) and the European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT) have also established registries. Some States have delegated the task to their national space agencies, while others have delegated it to their federal aviation offices. Some States have published their registers online, though this is not called for by the convention.

(e)The Moon Agreement (1979)

The Moon Agreement should also be mentioned for the sake of completeness. Concluded in 1979, this agreement did not enter into force until 1984, and is considered by many to be a ‘failed treaty’ in the context of space activities. As at 1 January 2021, only 18 States have ratified it and four have signed it. While the Moon Agreement therefore constitutes binding international law for those States, there are 193 States in the international legal order, which means that 175 States (or 90.6% of the total) are not affected by it. No major spacefaring powers are a party to the agreement, though three (Austria, Belgium and Netherlands) are members of the European Space Agency (ESA).

The Moon Agreement modifies the language regarding the exploration of space as the province of all mankind found in Article I of the Outer Space Treaty. While this remains the case with regard to the exploration and use of the Moon (by virtue of Article 4.1), the Moon and its natural resources themselves are, by virtue of Article 11.1, the common heritage of mankind. Furthermore, by virtue of Article 1.1, provisions relating to the Moon shall also apply to other celestial bodies within the solar system …, thereby establishing that everything besides the Earth in the solar system is the common heritage of mankind. By virtue of Article 4.1, the exploration and use of this common heritage shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. This provision goes on to say that [d]ue regard shall be paid to the interests of present and future generations as well as to the need to promote higher standards of living and conditions of economic and social progress and development in accordance with the Charter of the United Nations. This type of language, along with the equitable benefits-sharing regime called for by Articles 11.6–11.8. inclusive, hint at the difficult underlying nature of the treaty and perhaps its unfeasibility for advanced space activities.

For private actors hoping to access and explore space – as is their right under the Outer Space Treaty – it would be useful to determine whether any State Party to the Moon Agreement intends to regulate its space activity in accordance with the agreement and so potentially rebalance their plans accordingly.

3. The International Telecommunication Union

Apart from the core space law treaties promulgated by UNCOPUOS and discussed at section 2 above, an understanding of the work of the International Telecommunication Union (ITU) is also crucial. Radio frequencies and the use of geostationary orbits around the Earth are managed at an international level by the ITU. A specialised agency of the UN with its headquarters in Geneva, Switzerland, the ITU is tasked with ensuring the rational, equitable, efficient and economical use of the radio frequency spectrum. The organisation is governed by the ITU Constitution and Convention (1992)¹⁶ and has issued the ITU Radio Regulations (2015 Edition),¹⁷ which serve as the administrative regulations for satellite radio communication services. The ITU Constitution and Convention are intergovernmental treaties ratified by governments and are binding international law, ensuring that States domestically apply their provisions and adopt appropriate national legislation to implement them. As at 1 January 2021, 193 out of 193 States of the international legal order have joined the ITU as Member States.

With regard to the allocation of frequencies, the ITU divides the world into three administrative regions. Region one includes Europe, Africa, the former USSR, and Mongolia. Region two is the Americas and Greenland, and region three is the rest of Asia, Australasia, and the Pacific. The ITU maintains the Master International Frequency Register (MIFR) of all frequencies notified to it, which should be consulted early in any space project to determine suitable and available frequencies. The ITU regime is implemented on a national level by national frequency administrators, with which private actors will work with regard to the licensing, coordination and allocation of frequencies. Private actors requiring Earth-space, space-Earth and space-space frequencies (for constellations of satellites) should begin the national frequency notification, coordination and allocation process very early in their space projects. See Yanal Abul Failat’s Licensing private outer space activities chapter for a further discussion of licensing.

4. International export controls

Space technology has long been recognised as dual-use technology; its export abroad is therefore of concern to governments. Controls on exports arise both from multilateral coordination and unilateral acts by States in the form of domestic legislation. Multilateral coordination on export controls include the voluntary Wassenaar Arrangement On Export Controls for Conventional Arms and Dual-Use Goods and Technologies (1994), with over 40 State partners, and the Agreement on Guidelines for the Transfer of Equipment and Technology Related to Missiles¹⁸ (the Missile Technology Control Regime (MTCR) Agreement) (1987) between Canada, France, Germany, Italy, Japan, the UK and the USA. The MTCR was augmented in 2002 by the Hague Code of Conduct Against Ballistic Missile Proliferation (HCoC). As of November 2019, the HCoC has 140 signatory States.

Export control issues have the potential to impact in places where R&D and manufacturing are carried out, as well as with regard to the placement of ground stations and the selection of launch sites and launch providers. Licensing and military aspects of space are discussed in other chapters of this book.¹⁹ Private actors should always be aware of the hardware, software and technical know-how being implemented in their projects, as well as the citizenship of their employees (and contractors and subcontractors) and the movement of all of these across national borders; together, these issues categorise the national and international export control issues that private actors will face.

5. Soft law instruments

In addition to the core space treaties, the allocation of frequencies and geostationary orbits by the ITU and the various security-related regimes discussed at sections 2–4 above, a number of UN General Assembly resolutions affect space activities. Supplemental to these resolutions, there is a diverse body of other sources of ‘soft law’ rules or norms which also impact upon space activities.

Diligent awareness of the international legal context for the space activities of private actors includes the following:

•UN General Assembly Resolution 1962 XVIII, Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (13 December 1963) (the Principles Declaration);

•UN General Assembly Resolution 1721 (B) on international registration (see 2.3(a) and (d) above);

•UNCOPUOS principles relating to direct television broadcasting, remote sensing and nuclear power sources; and

•guidelines related to space debris. ²⁰ Two important sets of international guidelines exist on this subject: these are the primarily technical guidelines of the Inter-Agency Space Debris Coordination Committee (IADC) ²¹ and the more political UNCOPUOS guidelines. ²²

Lastly, there are a number of other relatively recently formulated international norms of behaviour in space. These include:

•the 2011 report of the UN Group of Governmental Experts (GGE), Transparency and Confidence-Building Mechanisms in Outer Space Activities ; ²³

•the Long-term Sustainability of Outer Space Guidelines, negotiated and finalised at UNCOPUOS, which (while non-binding) reflect accepted best practices for fostering and preserving the sustainability of space activities. ²⁴; and

•the Artemis Accords, which largely reiterate the basic elements of the Outer Space Treaty but augment them for the specific purposes of lunar activities to be done as part of NASA’s Artemis programme, an international and public-private lunar exploration and development programme. As of 2021, a total of eight states from around world have signed the Artemis Accords with the USA. ²⁵

6. Conclusion

The international legal regime applicable to space activities is extensive and comprises a number of sources. Starting with general public international law, such as the UN Charter, broadening to other sources of international law that may affect space activities, and then progressing to the core body of space law treaties, a fairly wide and numerous set of overlapping rights and obligations can be discerned.

Additionally, other sources of law, including customary international law and general principles of law, may also be both relevant and applicable to particular space activities.

Furthermore, a plethora of ‘soft law’ instruments is applicable to space activities; these serve both as ‘best practices’ guidelines and transparency and confidence building measures (TCBMs). Best practices guidelines include those on how to use nuclear power sources, how to prevent the creation of new space debris, principles for remote sensing and related concerns. They embrace everything from UN General Assembly Resolution 1721 B on international registration to current initiatives, such as the emerging UNCOPUOS long-term sustainability guidelines.

Existing international space law is not, however, comprehensive and exhaustive, and does not address every conceivable activity in outer space. Looking to the future, the body of space law may need revision and amendment for next generation space activities, especially advanced activities such as asteroid and Moon mining and resource use, crewed international Moon bases and commercial space stations, 3D printing using celestial resources, in-orbit satellite servicing, space tourism, and other activities that were simply beyond the imagination of the drafters of the major space treaties.

In a book addressed to private actors, the impetus for this brief chapter on international space law was the responsibility placed squarely on the shoulders of States by Article VI of the Outer Space Treaty for all their national activities, whether governmental or non-governmental. Thus:

•the responsible State has a duty to authorise and supervise;

•meanwhile, the launching State will be subject to persistent potential international liability for damage to other States, their citizens (both natural and legal persons) and their space objects; and

•the registering State has both jurisdiction and control.

It is therefore easy to see that a number of national regulatory regimes can be involved.

In addition to launch frequency and project coordination, other national and international issues, such as export controls, will concern not only corporate citizenship but also the citizenship of all people involved in projects and the movement across borders of hardware, software and know-how.

The task for counsel to any private actors in space is to bear all these categories and considerations in mind when they begin to investigate the obligations and requirements imposed on their clients and detailed throughout this book. The range and complexity of these topics, which overlap between contractual issues, national regulation and public international law, certainly warrants the repetition of a useful maxim, make sure you have a good lawyer (if not a team of lawyers) – to anticipate and manage correctly and comprehensively all of these issues. Certainly, the authors of other chapters in this book are some of these experts.

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1See Yanal Abul Failat and Anél Ferreira-Snyman’s Regulation of the space tourism sector chapter.

2See Anél Ferreira-Snyman’s Military activities in outer space chapter.

3See Anja Nakarada Pečujlić’s Intellectual property law in the context of climate change chapter.

4See Chiara C Klaui et al ’s International trade aspects of outer space activities chapter.

5See Anél Ferreira-Snyman’s Environmental responsibility for space debris chapter.

6See Heather A Harrison Dinniss’s Cyber operations in outer space chapter.

7See Gerrit Ferreira and Anél Ferreira-Snyman’s The extraterritorial application of human rights instruments in outer space settlements chapter.

8The shortened and colloquial titles for these treaties are used in this chapter. Their full names and citations are as follows:

(1) Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967), 610 UNTS 205, 6 ILM 386;

(2) Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968), 672 UNTS 119, 7 ILM 149;

(3) Convention on International Liability for Damage Caused by Space Objects (1972), 961 UNTS 187, 10 ILM 965;

(4) Convention on Registration of Objects Launched into Outer Space (1975), 1023 UNTS 15, 14 ILM 43; and

(5) Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979) 1363 UNTS 3, 18 ILM 1434.

It is also worth noting that shortening the titles of the treaties may affect perceptions of them and so should be treated with caution. For example, the abbreviation ‘Outer Space Treaty’ is concise but obfuscates the fact that (i) its full title contains the idea that it is a treaty on principles, governing States; and (ii) the terms ‘exploration’ and ‘use’ are in the very title of the treaty.

9United Nations Office for Outer Space Affairs, Status of International Agreements Relating to Activities in Outer Space as at 1 January 2021.

10 See Wian Erlank’s Property and ownership in outer space chapter.

11 See Philip De Man’s The exploitation of natural resources in outer space chapter.

12 See Anél Ferreira-Snyman’s Military activities in outer space chapter.

13 See Yanal Abul Failat and Anél Ferreira-Snyman’s Regulation of the space tourism sector chapter.

14 United Nations Office for Outer Space Affairs, Status of International Agreements Relating to Activities in Outer Space as at 1 January 2021.

15 United Nations Office for Outer Space Affairs, Index of Notifications by Member States and Organizations on the Establishment of National Registries of Objects Launched into Outer Space, available at: www.unoosa.org/oosa/en/spaceobjectregister/national-registries/index.html.

16 1825 UNTS 143.

17 WRC-15.

18 26 ILM 599 (1987).

19 See Yanal Abul Failat, Licensing private outer space activities and Anél Ferreira-Snyman’s Military activites in outer space chapter.

20 See Anél Ferreira-Snyman’s Environmental responsibility for space debris chapter.

21 Space Debris Mitigation Guidelines (IADC-02-01, Revision 1, September 2007).

22 Space Debris Mitigation Guidelines (2010).

23 UN General Assembly paper A68/189, 29 July 2013.

24 United Nations, Report of the Committee on the Peaceful Uses of Outer Space, Guidelines for the Long-term Sustainability of Outer Space Activities of the Committee on the Peaceful Uses of Outer Space, Annex II, (A/74/20).

25 United Nations General Assembly, Letter dated 30 December 2020 from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General (A/75/699) 7 January 2021.

National law governing outer space activities

Yun Zhao

University of Hong Kong (HKU)

1. Introduction

The conclusion of the five core United Nations (UN) space treaties of 1967–1979 has ensured the smooth development of space activities for more than five decades. However, given the ongoing process of space commercialisation and privatisation, these treaties have failed to address sufficiently new legal issues arising from private and commercial space activities. In view of diverse State interests and the difficulties involved in concluding new treaties, the international community needs to consider seriously possible means of filling the legal vacuum.

National space legislation has proved to be one realistic and pragmatic approach to resolving the current dilemma. On the one hand, national space law can be used to implement international obligations under the space treaties while, on the other, it can be flexible enough to enact rules to tackle new legal issues. In the long run, there is still a need for the international community to reach consensus on certain rules through the conclusion of international treaties; nevertheless, the application of the five space treaties, supplemented by national space laws, is the best that can currently be achieved.

Following the launch of the first man-made satellite, Sputnik 1, on 4 October 1957, the UN reacted quickly by passing several General Assembly resolutions. These included General Assembly Resolution 1962 of 1964,¹ which ultimately led to the adoption of the Outer Space Treaty 1967.² In the decade or so that followed, four further space treaties – namely the Rescue Agreement,³ the Liability Convention,⁴ the Registration Convention⁵ and the Moon Agreement⁶ – were successfully concluded under the aegis of the UN. These five core space treaties constitute the nucleus of international space law as it stands today.⁷ To date, these treaties have provided a solid basis for the smooth and orderly development of space activities.

Since the conclusion of the Moon Agreement in 1979, the international community has failed to conclude any major international space treaties. In spite of such ‘stagnation’ of international space legislation, space technologies and activities have continued their rapid development over the last three decades.

Outer space is no longer monopolised by the two superpowers, with a handful of other States having joined the space club.⁸ While only a few States have grasped their indigenous space-launching capabilities, space technologies have been widely applied on a daily basis by almost all the countries in the world and in a wide range of fields, including weather forecasting, disaster mitigation and telecommunications.

States are no longer the sole actors in space activities; private entities are increasingly becoming involved in the development of space technologies and activities.⁹ All these new developments since the 1980s have brought about challenges to the existing space law regime and cast doubt on the sufficiency of international rules in regulating new types of space activity.¹⁰

Under such circumstances, the issue of national space law has been brought to the forefront. As an important tool for implementing international treaties at the national level, national space law can also be used to fill in gaps not covered by the existing space treaties.