Space Treaty Research Articles

Build on the outer space treaty

Fifty years on, the agreement is being pushed to its limits by changing geopolitics, technology and commercial interests, warns Joan Johnson-Freese.

Cold War Treaties in a New World: The Inevitable End of the Outer Space and Antarctic Treaty Systems

The Outer Space Treaty regime faces significant obstacles as Member States push against the rules governing military activities and economic exploration in space. These obstacles could lead to the ultimate collapse of the Outer Space Treaty system. While significant, these issues are not unique – the Antarctic Treaty System faces several of the same issues with the same potential result. This article presents a thematic comparison of the treaties and their respective rules, including their treatment of military activities, the appropriation of territory, transparency and mutual observation, and dispute settlement. The article culminates in an analysis of the obstacles facing both treaty systems and the geopolitical scenarios that could destroy one or both treaty regimes in the near future. These obstacles include military conflict and competing territorial claims, as well as growing private interest in the economic possibilities available in both outer space and Antarctica. By comparing the two treaty systems, analysts can better understand the fault lines of these treaties and how lessons learned from one treaty can be used to better analyse the other.

Title IV of the U.S. Commercial Space Launch Competitiveness Act of 2015: A Critical Step Forward in Facilitating the Development of a Viable Space Infrastructure

With the passage of the Commercial Space Launch Competitiveness Act of 2015 (CSLCA), the United States became the first country to recognize the right of its citizens to own resources they obtain in space. Also, known as Title IV of CSLCA, the law mandates the President to actively facilitate the commercial exploration of space resources, discourage government barriers to the development of a U.S. space resource industry, and promote the right of U.S. citizens to engage in commercial recovery of space resources. The U.S. Congress drafted Title IV of CSLCA with careful and detailed consideration to ensure compliance with international law and its treaty obligations. The space resource utilization provisions of the CSLCA were vetted by various agencies of the U.S. Administration, including the Department of State, and included the input of space law and policy experts. The result was the abandonment of the initial ASTEROIDS Act and the creation of a new legislation that explicitly comported with Articles II and VI of the Outer Space Treaty of 1967. The passage of Title IV was not only a historic precedent but also one of the most forward-thinking space regulatory regimes, which will spur the development of an international space resource utilization industry. Before the passage of Title IV, the legal status of ownership rights in extracted space resources was unclear, effectively shuttering the ability of the nascent space resource utilization industry to secure critical financing. The passage of Title IV, however, has provided the necessary regulatory security for potential investors to assist in the development of the industry with private financing. More importantly, it has immediately catalyzed the interest of other nations, such as Luxembourg, to determine whether they too should pass similar space resource utilization legislation. As additional nations draft their own versions of Title IV of CSLCA and as technology rapidly advances, an international space resource utilization industry will organically develop.

ADVANTAGES OF NON-LEGAL METHODS OF DISPUTE SETTLEMENTS IN INTERNATIONAL SPACE LAW

INTRODUCTION:The law provides the rules and justification for dispute settlement. The evolution of international dispute settlement has following five phases:a)There was the concept of just war which allowed the enforcement of rights and obligations between states through a legally accepted use of armed force; b) Realization of the importance of peaceful settlement of dispute between states and before adhoc bodies; c) The establishment of Permanent Court of Arbitration (PCA) by 1899 treaty, with the awareness of the urgency to establish a standing body; d) The establishment of the Permanent Court of International Justice (PCIJ), International Court of Justice (ICJ), regional bodies such as European Court of Justice (ECJ), The European Court of Human Rights (ECHR) and International Center for the Settlement of Investment Disputes (ICSID) after World War II and in early 1980s; e) The established of various human rights commissions and tribunals (Rosanne, 1991: 4).These evolutions show clear inclinations away from the use of force and dispute settlement towards recourse to third party compulsory mandatory jurisdiction and binding decision making powers. Generally speaking, a dispute occurs when a party perceives itself to be injured; decide some other party is responsible; from a sense of entitlement to some kind of redress, and formulate a specific claim which is rejected by the other party. The method of dispute settlement to be chosen by parties depends upon following factors:a)The extent of the interaction and interdependence of the actors involved; b) Whether the parties are in a continuing relationship with each other, their relative bargaining power and ability to exert influence on each other; c) Their geographical and political relationship with each other and third party; d) The similarities or differences in their political, cultural or economic ideology; e) The history of their relationships and the methods of dispute settlement used in the past between them; and, f) Their respective commitments to international law and principle of peaceful settlement of dispute (Surds & Shany, 1999:28).The Charter of United Nations (UN) provides, in Art. 2(3) and (4), two parallel obligations, requiring all members to settle their international disputes by peaceful means in a manner that international peace and security and justice are not endangered; and to refrain from any treat or use of force in their international relations against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose(s) of the UN (Watts, 2001:21). Article 33 of the charter of UN requires that parties of any disputes which the continuance of it is likely to endanger the maintenance of international peace and security shall first of all seek a solution by negotiation, equity, mediation, conclusion, arbitration, judicial settlement, resort to regional agencies or arrangement (Watts, 2001:21).In this paper we are about to analyze advantages and disadvantages of non-legal methods of peaceful settlement of conflicts arises in space activities, which are consultations, negotiations, inquiry and fact finding, mediation and good offices, conciliation and the claims commission (CC).NON-LEGAL DISPUTE SETTLEMENT METHODS RECOMMENDED BY SPACE TREATIES: CONSULTATIONS:Consultations and prior notification is one of the most useful methods of dispute settlement and conflict avoidance techniques. This method requires a party that might adversely affect another party, to inform the other party of its intentions and to discuss the matter and avoid any disputes. Some advantages of this method are as follows:a) Advocating a Pre-emptive and early resolution of a dispute by permitting parties to identify and attempt the settlement of potential problems at an early stage through taking action before parties' positions become rigid and polarized and their difference become more critical and intractable. …

The Palgrave Handbook of Society, Culture, and Outer Space

The Palgrave Handbook of Society, Culture, and Outer Space

State practice, domestic legislation and the interpretation of fundamental principles of international space law

Though international space law is frequently characterised as lacunal, the general nature of the provisions of the existing UN space treaties is such as to cover all activities by public and private entities that can be characterised as exploration or use. The lack of detailed rules regulating every conceivable activity in space should thus not be taken as an indication that there are forms of exploration or use of outer space that escape the application of the fundamental principles of international space law.This realisation is fundamental in trying to understand the current deadlock in international space law-making. The UN space law regime is characterised by principles of global cooperation and inclusion that nonetheless only grant enforceable rights of protected use to individual States that are factually capable of implementing the legally equal freedom of all States to engage in spacefaring activities (Arts. I, II and IX OST).In this context, it is understandable that technologically advanced States are turning their space law-making efforts to a national interpretation of the existing principles that furthers their own interests instead of engaging in protracted multilateral negotiation processes that risk upsetting the basic balance of the existing space law regime that favours them in the first place. We are hence witnessing a clear regulatory shift in space law-making, from the international level to the national level. This shift is characterised by an increasing body of practice of a limited number of States in the application of space law principles that were adopted specifically with the intention of guaranteeing access to an inclusive environment for equal use and exploration by all States.The present article assesses the extent to which the interpretation of these universal principles may be affected by a selective application by a small number of States.

Scientists, Policy Makers Push for Mars Exploration

At a recent forum, Sen. Ted Cruz also announced a Senate hearing to revisit the half-century-old Outer Space Treaty, and he warned about potential military threats to the nation’s satellites.

Legal Challenges Relating to the Commercial Use of Outer Space, with Specific Reference to Space Tourism

Since the launch of the first artificial satellite, Sputnik 1 in 1957, the outer space arena has evolved to include non-state entities, which are becoming serious participants in outer space activities themselves, including venturing into the space tourism market. Although space tourism is still in its infancy, it is estimated that the number of space tourists will substantially increase within the next few years. As space tourist activities increase, accidents will inevitably occur, which will give rise to legal questions relating to the duty of states to rescue space tourists in distress, and the liability for damages. This contribution points out that the current outer space treaty regime, which focuses on the use of outer space by states, is to a large extent outdated and that it cannot adequately deal with the unique legal challenges presented by the rapidly developing space tourism industry. This situation is exacerbated by the fact that the outer space legal framework is very fragmented – consisting of treaties, UN principles and guidelines, regional regulations and intergovernmental agreements, as well as national guidelines and legislation. In order to ensure that space tourism is indeed to the benefit of all mankind, it is imperative that clear international legal rules relating to space tourism be formulated, where standards are set for the authorisation and supervision of commercial space activities and the interests of states, passengers and private actors are balanced as far as possible. In view of the urgent need to address these legal questions and the consequent lack of time to negotiate a binding legal instrument, it is submitted that, as an interim measure, soft law guidelines should be developed in relation to space tourism in order to provide a framework for the eventual creation of a consolidated and binding legal instrument on all aspects relating to the use and exploration of outer space.

Revisiting the human right to democracy: a positivist analysis

ABSTRACTIn this article I investigate from the perspective of legal positivism whether a human right to democracy exists. Based on the analysis of various universal and regional human rights treaties, I argue that such a right is indeed recognised under international law. The human right to democracy obliges states to let citizens take part in political decision-making and to conduct free elections, while it allows for a diversity of political systems executing these obligations. In response to the argument that the human right to democracy is far distant from political reality, I argue that while many states are governed by non-democratic regimes, they do not contest the validity of the democratic norm. Moreover, the human right to democracy can be instrumental in addressing flaws in democratic systems or the absence of democracy altogether. The article provides examples of how this works in practice by discussing the case law of various judicial and quasi-judicial human rights review bodies. I conclude by arguing that the human right to democracy as recognised by international law fits well within Benjamin Gregg’s normative framework of The Human Rights State (2016).

Identification and Characterization of Early Mission Phase Microorganisms Residing on the Mars Science Laboratory and Assessment of Their Potential to Survive Mars-like Conditions.

Planetary protection is governed by the Outer Space Treaty and includes the practice of protecting planetary bodies from contamination by Earth life. Although studies are constantly expanding our knowledge about life in extreme environments, it is still unclear what the probability is for terrestrial organisms to survive and grow on Mars. Having this knowledge is paramount to addressing whether microorganisms transported from Earth could negatively impact future space exploration. The objectives of this study were to identify cultivable microorganisms collected from the surface of the Mars Science Laboratory, to distinguish which of the cultivable microorganisms can utilize energy sources potentially available on Mars, and to determine the survival of the cultivable microorganisms upon exposure to physiological stresses present on the martian surface. Approximately 66% (237) of the 358 microorganisms identified are related to members of the Bacillus genus, although surprisingly, 22% of all isolates belong to non-spore-forming genera. A small number could grow by reduction of potential growth substrates found on Mars, such as perchlorate and sulfate, and many were resistant to desiccation and ultraviolet radiation (UVC). While most isolates either grew in media containing ≥10% NaCl or at 4°C, many grew when multiple physiological stresses were applied. The study yields details about the microorganisms that inhabit the surfaces of spacecraft after microbial reduction measures, information that will help gauge whether microorganisms from Earth pose a forward contamination risk that could impact future planetary protection policy. Key Words: Planetary protection-Spore-Bioburden-MSL-Curiosity-Contamination-Mars. Astrobiology 17, 253-265.

Fifty Years of Outer Space Treaty: its retrospect and prospect

The 1967 Outer Space Treaty(OST) celebrates its 50th anniversary in 2017. This article deals with the OST"s retrospect during the fifty years of the Treaty and its prospect in international law. Main subjects of this article focus on the followings: Freedom of Exploration and Scientific Research in Outer Space, Prohibition of National Appropriation, Application of International Law, Peaceful Use of Outer Space, Rescue and Return of Objects in Outer Space and Astronauts, International Responsibility for States’ Activities in Outer Space, Registration of Space Objects and Exclusive Jurisdiction, Respect for the Rights of Other States, Duty of Openness and Transparency in the OST. Because of the rapid development of space science and technology there is a need that there must be a new treaty instead of the OST for solving the current problems raised in the exploration and use of outer space. However, in retrospect of the fifty years of the OST some principles such as the freedom for exploration and scientific research in outer space, the principle of non-appropriation, and the principle of the respect of other countries’ rights in the OST have become customary law and jus cogens in international law. Furthermore the principles of global public interest in outer space in the OST imposes international obligations erga omnes applicable to all States. As customary international law, the OST reflects some rules that bind even those states who are not formal parties to the treaty itself. The present framework of space law incorporates a substantial body of rules in the form of treaties and sets of principles. In order to supplement the shortcomings of the space treaties there have been many soft laws such as recommendations, declarations and resolutions adopted by international organizations and regional communities. The OST represents the most fundamental and all-encompassing of the space treaties, and hence the foundation for all of space law. Thus the OST should be not only an international agreement of high importance as the constitution of outer space establishing rule of law in outer space, but also a manifesto of genuine expectations of all segments of mankind. It is therefore imperative that not only the letter but also the sprit of the OST govern space activities of States. Activities contrary to both the spirit and letter of the OST would shatter the belief in the rule of law and in the international democratic law-making process.

Between a Rocket and a Hard Place: Military Space Technology and Stability in International Relations

ABSTRACTMilitary space technology is both stabilizing and destabilizing in international relations in respect to the distinction between passive and active applications. Space has been militarized from the dawn of humanity’s entry to space, but it is presently not weaponized. Although the benefits of passive military space technology are vast and promising, access to these benefits is exclusive and dominated by certain actors, leading other states to possible destabilizing influences of insecurity. Also, the failures of space law and treaties in regulating active military space technology stand to undermine the stabilizing effects of passive military space technology if not addressed.

Law of Space Resources and Operations on Celestial Bodies: Implications for Legislation in the United States

ABSTRACTThe U.S. assertion of a right to own resources harvested from space is consistent with the distinction in international law governing analogous res communis areas between resources harvested from a common area and the common area itself. Under the Outer Space Treaty regime, private entities do not have any more right to appropriate celestial bodies than governments do. However, U.S. law does not give private entities such a right. The U.S. Commercial Space Launch Competitiveness Act’s chapter on Space Resource Commercial Exploration and Utilization generally avoids taking a position on exactly how to deal with disputes in the event the activities of entities from the United States and other states interfere with each other. The U.S. law does not assert a right to declare safety zones or otherwise exercise jurisdiction outside space objects, but doing so can, under some circumstances, be consistent with international law. Many of the specifics of what rules will govern the gathering of space resources remain undetermined, yet the act’s basic premise is correct: international law and the treaty obligations of the United States allow for the U.S. government to authorize its citizens to own resources obtained from space.

Keeping Up With The Neighbours? Reviewing National Space Laws to Account For New Technology - The Australian and Canadian Experience

The development of space-related technology since the dawn of the space age in 1957 has given rise to many new and exciting possibilities. It has also meant that space activities continue to evolve, facilitating the participation of a variety of space ‘actors’ other than States. Given the international responsibility of States for ‘national activities in outer space’ under both customary international law and the Outer Space Treaty, there is an imperative for States to enact relevant and contemporary national space law to regulate those non-governmental space actors within their respective jurisdiction. But enacting national space law is not enough – as the paradigm of space-related technology changes and evolves, it is clear that such shifts require the ongoing review of appropriate national regulatory standards over relatively short timeframes. National legislatures have to come to grips with the ever-changing range of space technology, particularly if they wish to become increasingly involved in space activities. Whatever rules are put in place during the review process must find the right balance between, on the one hand, the need for regulation of the economic and technical elements, so as to minimise the risks to an acceptable level, and the facilitation of research and innovation to allow for greater and more efficient access to space, and the potential for commercial returns, on the other. This paper will describe this process of review and rejuvenation of existing national space laws in both Australia and Canada, outlining the relevant factors that were taken into account in order to maximise the utility of the regulations to meet the specific goals and requirements within each country.

Maintaining International Peace and Security by Regulating Military Use of Outer Space

Outer space is the new battle ground and states are investing heavily to achieve military supremacy in space. There is no provision in any space treaty that explains what constitutes space and whether the celestial bodies are included in space or not. It is widely accepted that the moon and other celestial bodies should be used for the collective benefit of mankind and that no state should exploit space and celestial bodies to derive benefit by putting at risk the peace and security of other states. Thus, while the treaty regime calls for ‘peaceful use’ of space only, there is a conflict of interpretation regarding the phrase which is often limited to ‘non-military use’ or ‘non-aggressive use’. In consequence of these lacunas in space-related treaty regimes – which should be removed to save it from subsequent weaponization – space has been used for military purposes for over fifty years by employing technology to locate and target enemies. The first step is to precisely define what constitutes space weapon, followed by adoption of non-binding code of conduct. However, ultimately, there is need for adoption of complete, equitable and verifiable ban on space weapons that are either already placed or will be placed in near future in space to attack humans and assets on space or earth, or are placed on earth to attack assets in space.

The Formation of the Principle Prohibiting Wars of Aggression before the Establishment of the United Nations Organization

The first international legal instruments of universal scope aiming at limiting the right of States to the war, began to develop only at the end of the XIX - early XX centuries. The author conducts a legal review of all such instruments, paying particular attention to the Charter of the League of Nations adopted in 1919, the year which included very substantial restrictions of the traditionally recognized right of States to war. Nevertheless, the logical interpretation of the Charter of the League of Nations leads to the conclusion that there is some kind of procedural subterfuge that opened broad opportunities for States to resort to war Considering the Paris Treaty for the renunciation of war as an instrument of national policy 1928 (the Kellogg-Briand Pact) as the first universal treaty that establishes the prohibition of wars of aggression, the author pays special attention to its significant shortcomings, one of which was that the said prohibition was concerned exclusively with war in the proper sense of the word, while other forms of use of armed force in international relations have been left outside its scope. The abovementioned circumstance necessitated the elaboration of a definition of aggression and consolidation of such a definition in an international instrument. The efforts made in this direction are also covered in this article. The author conducts a detailed study of other multilateral and bilateral treaties (in addition to the two above-mentioned), paving the way for the formation of the principle of non-use of force in international relations as enshrined in the Charter of the United Nations. In addition to the relevant international standards, the author also studies some doctrinal drafts, in particular those relating to the period of the emerging science of international law and showing a gradual rooting of ideas on the need to limit the right of States to war in the legal conscience

Regulating Non-Traditional Space Activities in the United States in the Wake of the Commercial Space Launch Competitiveness Act

With the rapid growth of space technology and the development of new ‘non-traditional’ space ventures there is concern that the United States will suffer from a ‘regulatory gap’ when these new space activities outstrip the existing regulatory framework. Such a gap might support a finding that the United States is not in compliance with Article VI of the Outer Space Treaty which requires a state to ‘authorize and continually supervise’ the space activity of its nationals. Congress responded to this concern by enacting the Commercial Space Launch Competitiveness Act in 2015 (CSLCA) which took the first steps to fill the ‘gap’. New bills are now under consideration which will take the next step in this legislative process to fill the ‘gap’ by giving the Federal Aviation Administration (FAA) authority to license non-traditional space missions. In the so-called section 108 Report, the White House recommended an approach based on the FAA’s existing process of payload review. Sen. Jim Bridenstine proposed a similar approach in his American Space Renaissance Act (ASRA). Until the legislative process is complete, however, the FAA is leveraging its existing authority in order to regulate non-traditional activity, as has been seen in the agency’s actions involving Bigelow Aerospace and, more recently, Moon Express.

РЕАЛИЗАЦИЯ МЯГКОГО ПРАВА В КОНТЕКСТЕ «ПРИНЦИПОВ, КАСАЮЩИХСЯ ИСПОЛЬЗОВАНИЯ ЯДЕРНЫХ ИСТОЧНИКОВ ЭНЕРГИИ В КОСМИЧЕСКОМ ПРОСТРАНСТВЕ»: ПРАКТИКА РОССИЙСКОЙ ФЕДЕРАЦИИ, США И ГОСУДАРСТВ ЕВРОПЕЙСКОГО СОЮЗА

Nowadays one of the most significant discussions in the international public law relates to the concept and the role of “soft law”. Some researchers assert the point of view of existence of such law, others consider that it is a new source of public international law However, different approaches don’t exclude the basic char-acteristics of soft law that is a non-binding nature and a streamlines process of drafting. Because of this situation, Member-States of public international organizations tend to use soft law as a pragmatic way of organizing interactions among sovereign states the in case of difficulties to pass unified international treaty. This article argues that similar practices also exist in international space law. Since the entry in force of the Moon Agreement in 1979, the Member States of UN COPUOS have not passed any additional international space treaties. Instead, they have found a solution for new chal-lenges: drafting and accepting soft law acts like UN General Assembly Resolutions (hereinafter GA Resolutions) and others. While GA Resolutions are not legally binding, States can transform them into national legislations and doing so they will have to be responsible for certain space activities which have not been regulated internationally yet. The purpose of this article is to provide an overview on the establishment of soft law as a new source of international space law by analyzing and comparing state practice in Russia, the USA and in several Member States of the European Union (EU). The emphasis will be made on the transformation of provisions of the UN General Assembly Resolution “Principles Relevant to the Use of Nuclear Pow-er Sources in Outer Space” (hereinafter the NPS Principles) as nuclear power sources in outer space should be based on a thorough safety assessment. The article starts by a short overview of the concept of “soft law” and the resolutions produced by UN COPUOS. Then it will go on to the main three parts besides conclusion. The first chapter gives a brief overview of the drafting history of the NPS Principles and the second deals with activities of UN COPUOS and IAEA on the matter of nuclear power sources use in outer space. The last chapter pre-sents several case studies focusing on the following questions which provisions of NPS Principles have been implemented into national legislative system, what is the novel and what are the differences among the various national law instruments in these countries.

Regulation of Safety of Space Mining and its Implications for Space Safety

We may soon have operational systems for robotic repair and refueling of satellites, solar power satellites, as well as increasingly sophisticated satellites for various types of defense and security operations. But something entirely new is also now on the horizon for space applications and instead of operation in Earth orbits these systems may seek to operate in deep space. The next major commercial space application may redefine the future of space activities to include major off world activities. This new activity would constitute a serious attempt to reclaim natural resources from space, or quite simply, to engage in space mining. In 2015, a new U.S. legislation has sought to define the process whereby space mining might be undertaken. This initiative at the national regulatory level to cover future space-based mining operations as well as possible space-based processing and manufacturing have now started to come forward as one possible means to cope with the “regulatory gap” that has now started to become apparent. However, national space mining operations must also be conducted in accordance with the provisions of the currently applicable UN space treaties.

Intellectual Property Protection in Outer Space Activities

Space law is a part of International Law which applies to the outer space region. Now the term “Outer space Region” means 100 kilometres upward beyond the surface of earth. Below this region, there is the area of air space. However, the boundary between air space and outer space has not been defined by any international agreement. By customary practice, we may say that below 100 kilometres from earth, the spacecraft do not descent and above this surface the aircraft do not fly. At the beginning of Space Age, space activities were mainly public activities or governmental activities but they were not commercial. However, in modern days, the exploration and use of the outer space is not limited to public and governmental activities and it also extends to private and commercial enterprises. The legal justification of this one may find in Article VI of the 1967 Outer Space Treaty which provides that States shall be responsible internationally for national activities in outer space carried out by Governmental agencies or by non-governmental agencies and that also state shall authorise the activities of non-governmental in outer space. These activities include remote sensing from space, direct broadcasting, launch and space vehicle services, manufacturing in space and microgravity research, among others. But the question is whether sufficient protection exists for the private sector to undertake commercial space activities i.e. whether companies believe they can obtain a sufficient return on their investment.