Space Treaty Research Articles

The Dilemma Between the Freedom to Use and the Proscription against Appropriating Outer Space and Celestial Bodies

Abstract Although a large-scale extraction of resources from outer space does not seem feasible yet, associated legal debates are already underway. Indeed, anticipating a race for space resources, some States are taking the lead in enacting legislation regulating future exploitation by their subjects. Sales of “extraterrestrial real estate” by private entities have been taking place for decades. This article addresses the topic of exploitation of space resources from an international law perspective—regardless of whether it will be firmly on the agenda tomorrow or in thirty years’ time. The crucial issue is to establish if, and eventually how, it is possible to conciliate the two principles at stake here: freedom to use outer space and celestial bodies, which arguably includes exploitation, and the impermissibility of their appropriation. It will be pointed out that, rather than proposing a comprehensive and rigid mechanism, the Outer Space Treaty and the Moon Agreement could represent a starting point, a proactive framework for achieving consensus among States and for seeking multilateral solutions for the exploitation of space resources.

Collisions of Artificial Satellites: The Liability of States and Private Entities

With increased traffic in the orbits around Earth comes an increase in the probability that two operational spacecraft will collide or that one will be hit by junk such as decommissioned satellites, rocket stages or their fragments. If a satellite suffers damage from a collision or has to be declared a complete loss, the affected commercial spacecraft operator will try to recover its losses. But from whom? The Outer Space Treaty and the Liability Convention were not drafted for the commercial space era and will help the commercial operator only little, if at all. This article examines the claims a commercial spacecraft operator can pursue, including the possible fora in which these claims can be brought. Collisions, Spacecraft, Satellites, Space Debris, Liability, Jurisdiction

Theoretical Territoriality Paradox for the Intellectual Property Protection in Outer Space and Its Regulatory Approach for Reconciliation

The sustainable development of outer space demands the protection of intellectual property in outer space. However, it worth noting that the intellectual property international treaties have not explicitly regulated in their provisions the issue of intellectual property protection in outer space, neither the provisions of the five outer space treaties explicitly address the legal issue. One suspicious rationale resulting in this legal status is the theoretical territoriality paradox between the legal regimes of outer space and intellectual property. This article aims to unveil the theoretical territoriality paradox by comparing the two legal regimes of outer space and intellectual property. It then moves to argue that the paradox is proved to be a theoretical problem since the legal value of Article VIII of the Outer Space Treaty elaborately reconcile the theoretical paradox and practically provides a self-contained mechanism that would permit guaranteed levels of intellectual property rights protection in outer space.

Overcoming Sovereignty for Space Traffic Management

The question of sovereignty, or authority over the space domain has created a barrier to development of space traffic management regimes, particularly those seeking to use air traffic control or air traffic management (ATM) as an operational model. States exercise control over sovereign airspace as the airspace over a state and its territorial waters is recognized as within its authority. States provide air traffic services over high seas airspace that is delegated to them by the Council of the International Civil Aviation Organization under the provisions of the Chicago Convention. This concept of air traffic management is built on a foundational understanding that a single authority is responsible for each defined volume of airspace.In the space domain, there is no specific delegation of volumes of space to specified authorities. The Outer Space treaty clearly reflects that no claim of sovereignty is to be made. Without the authority to exercise sovereign control over the domain, is space traffic management possible?Consider that space activities are launched from sovereign territory, transit through sovereign airspace, progress through high altitude/near space regions where sovereignty is ambiguous, and operate in orbits where no sovereignty exists; is too much emphasis placed on the sovereignty question? If we make a clear distinction between regulation and control, can we eliminate the sovereignty barrier? To apply the model of air traffic management to a space traffic management concept that is applicable from the on-orbit regime, down to the near space transition, to regulated airspace, a comprehensive understanding of the elements of ATM is needed to identify relevant tools that can be exported to STM. The concept of air traffic control over instrument flight rules (IFR) flights is less relevant to STM than other regulatory and advisory elements of ATM including flight services, traffic information services, and safety alerts. Similarly, dividing STM into its component parts allows for comparisons to elements of ATM that may provide operational models for the provision of a safety service that does not depend on sovereign authority or exclusive control over a volume of space. This paper will examine the legal, policy and technical barriers to the implementation of a space traffic management regime and specifically how the sovereignty barriers can be overcome to construct and implement a global safety service in space.

Legal Support for the Private Sector: An Implementation Agreement for the Moon Treaty

The United Nations’ Committee on the Peaceful Uses of Outer Space (COPUOS), through its consensus process, has accomplished much over the decades, most notably helping to produce the five space treaties and related guiding principles. But it has been unable to produce the international framework of laws that the Moon Treaty calls for to facilitate humanity’s departure from the home planet. This has created a gap in space law that has had a detrimental effect on private activity in outer space. The Moon Treaty, with the proper implementation agreement, now offers the best hope for closing that gap. Such an agreement would need to address many issues, most involving private enterprise and settlements. Although some argue that the Moon Treaty would hinder private space activities, with the proper IA, it would in fact support them. The Space Treaty Project has proposed a ten-paragraph Implementation Agreement that is based on four organizational principles: (1) The Agreement must be comprehensive and support all private activity; (2) The Grand Bargain: Trade private property rights for public policy obligations; (3) Defer issues currently at impasse (e.g., monetary sharing of benefits) by creating a governance process for making future decisions; (4) Build upon and integrate current institutions and processes. Why is this proposal necessary? As of January 2020, there is no internationally recognized mechanism for granting property rights to anyone for any location or natural object in outer space. The current controlling international law is the Outer Space Treaty of 1967, which prohibits any one country from appropriating anything in outer space: “Article II: Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Many countries agree that the prohibition against appropriation prevents any one country from granting property rights on its own authority. Some disagree, enough to create a potential for conflict and uncertainty for businesses and investors. Since the functions of law include avoiding conflicts and reducing uncertainties, it is imperative to create an international legal framework for private activity in outer space. The Moon Treaty provides the international authority to grant property rights. Article 11 does not prohibit ownership; it just prohibits any one country from granting it on its own authority. It is important to note that Article 11 begins by stating that the “common heritage of mankind” is defined by the Moon Treaty and its implementation agreement. The CHM has no legal meaning or force of law beyond the framework that the States Parties adopt. The proposed Implementation Agreement provides the minimum framework of international law that is necessary at this time for public and private activity on the Moon and beyond. The hopes and dreams of individuals and groups to create new societies in outer space are just as important as the entrepreneurship of those seeking to engage in space commerce. Both must be recognized, honored, and nurtured if humanity is to leave our home planet in a sustainable manner. At this moment in time, it is space law itself that needs capacity building. The current framework is inadequate, resulting in endless arguments over the meaning of outdated agreements. The time has come to craft a new agreement that will facilitate the sustainable exploration and development of outer space. In the year 2020, it is the Moon Treaty, with a proper implementation agreement, that can provide the international framework of laws that humanity needs to become a space-faring species.

The Central Arctic Ocean Fisheries Agreement as an element in the evolving Arctic Ocean governance complex

The Central Arctic Ocean (CAO) has attracted increased attention since representatives of the five Arctic coastal states together with representatives of four other states and the European Union signed the Agreement to Prevent Unregulated High Seas Arctic Fisheries in October 2018. This article assesses the significance of this development as an element in the evolving governance complex for the Arctic Ocean. We begin with a discussion of the relevant legal framework, including universal treaties such as the UN Convention on the Law of the Sea (UNCLOS) and the Arctic lex specialis going back to the conventions of the Arctic coastal States in the 19th century and elaborated more recently under the terms of the 1996 Ottawa Declaration on the Establishment of the Arctic Council and ensuing arrangements. We then analyze the 2018 Agreement itself as an innovative arrangement including Arctic and non-Arctic states. This assessment leads to several conclusions. The agreement constitutes a progressive contribution to the evolving governance complex for the Arctic Ocean. Striking features of the agreement are (i) its reliance on a precautionary approach put in place before human activities get underway on a large scale and designed to ensure sustainability and (ii) the inclusion of non-Arctic states and the European Union as signatories. We consider whether the Central Arctic Ocean Fisheries Agreement will emerge as an important precedent with significant implications for the governance of the CAO as an area beyond national jurisdiction and for the Arctic Ocean governance complex more generally.

Viewpoint Research “Envoys of Mankind” in the Era of Commercial Human Spaceflight

ABSTRACT The physical presence of humans as astronauts beginning in 1961 highlights the collective achievement of humanity and opens up new avenues of outer space activities. Astronauts are granted the status of “envoys of mankind in outer space,” thereby making them eligible for certain protections and privileges. Today, in the era of commercial space, the applicability of these protections and privileges is questioned in regard to commercial human spaceflight and space tourism. In this context, the definition of astronauts is explored by assessing the various international legal documents on outer space, especially the Outer Space Treaty, Rescue Agreement, and the Liability Convention. This paper examines whether space tourists should be considered “astronauts” and “envoys of mankind.” The paper argues for a broader interpretation of the existing legal regime of outer space and suggests a new legal document for commercial human spaceflight.

A Multilateral Regime for Space Resource Exploration and Utilization

The launched of Sputnik marked the beginning of space race. Since then state always tries to develop its technology to conquer outer space, including its natural resources. Outer Space Treaty and Moon Agreement affirm that outer space as the common heritage of mankind. Therefore, any states can not claim sovereignty over the territory nor natural resources. Yet, in 2015 the United States passed the Space Resource Exploration and Utilization Act which authorize its private entities to exploit and entitles them with series of rights, including the right of ownership over space resource. Thus, this paper examines the concept of the “common heritage of mankind” (“CHM”) in the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement) and elaborates on the possibility of a multilateral regime for space resource exploration and utilization. Part 2 discusses the concept of the CHM and its application; it then followed by an in-depth analysis of the future multilateral regime in Part 3. Part 4 concludes that a multilateral regime, instead of a unilateral regime, shall be in the best position to balance the needs for space resource exploration and the interests of developing countries.

Merely a ‘Scrap of Paper’? The Outer Space Treaty in Historical Perspective

ABSTRACT In 1967, the United States, the Soviet Union, and dozens of other countries ratified the Outer Space Treaty [OST], a signal diplomatic agreement that outlawed nuclear weapons from space, forbade military installations and manoeuvres from the Moon and other celestial bodies, and declared the cosmos a special zone free for all to use and explore, ‘the province of all mankind’. At the time and since, political commentary on the accord sharply divides between those believing it to have contributed to the preservation of space from Cold War rivalry and those maintaining that it was a primarily rhetorical document serving as superpower propaganda. This analysis positions the OST in deeper historical context – within the budding field of space law, the growing power of the United Nations, and the aspirations of the Global South – to show that the treaty was neither what its supporters nor detractors had claimed.

The Portuguese Space Act: An Innovative Framework for Space Activities

This article examines Portugal’s legal and regulatory framework for space activities, including on authorization, pre-qualification, registration, liability and insurance. It analyses the choices made at both the national and regional levels, including in light of the country’s international obligations under the UN Space Treaties and the evolution of the space sector in matters such as small satellites, constellations of satellites, suborbital flights and space mining. It notes that the legal framework is business-friendly but that there are issues that require further clarification, a goal that will no doubt be achieved once launches from the future Azores spaceport begin. National Space Act, Regional Space Act, small satellites, constellation of satellites, Azores spaceport

International Liability for Pollution Damage in Outer Space Environment

In view of the rapid and dangerous development of space activities and clandestine research, it has become increasingly difficult to identify and determine the environmental damages caused. Jurist of international law have begun to study the international responsibility resulting from such activities, which are leading to the pollution of the outer space environment. States launching space activities launching satellites, and carrying out experiments are introducing harmful substances, terrestrial bacteria, radioactive materials, and harmful space debris that is circling the earth. This highlights the legal norms of international space law in the area of international liability for damage caused by space activities in the 1967 Outer Space Treaty and the 1972 Convention on Liability for Damage Caused by Space Activities.

Direct International Responsibility of Non-Governmental Entities in The Utilization of Outer Space

Article VI of the Space Treaty of 1967 defines non-governmental entities as legal concept. However, their responsibility in space activities is not defined comprehensively. The Treaty provides that the activity of non-governmental entities shall require authorization and continuing supervision from the appropriate state party to the Treaty. It suggests that non-governmental entities essentially are not the parties with direct international responsibility for their space activities. In other words, they have indirect international responsibility. On the other hand, commercialization and privatization of outer space have taken place intensively in the last two decades. It designs non-governmental entities as main actors in the exploration of outer space. The fact that non-governmental entities only have indirect international responsibility may lead to create difficult and complicated mechanisms, especially if the non-governmental entities are Multinational Corporations (MNCs). This study uses normative legal research, which is based primarily on the secondary data from library research relate to the responsibility of non-governmental entities for their activities in outer space. This study concluded that non-governmental entities should bear direct international responsibility following the current development in international law, of which, non-state legal subjects such as individual have a direct international responsibility for violations of international law they have committed.

Changing Responsibility for a Changing Environment: Revaluating the Traditional Interpretation of Article VI of the Outer Space Treaty in Light of Private Industry

In recent times, private industry has made great advancements in the commercialization of outer space. Such advancement represents a monumental shift from a period in which outer space activities were the business of national governments. However, the traditional interpretation of Article VI of the Outer Space Treaty still assigns responsibility for private space activities to States despite private industry’s increased ability to conduct outer space activities without government involvement or assistance. Ultimately, the blanket application of State responsibility associated with the traditional interpretation of Article VI may be unworkable or inequitable as private industry becomes a dominant force in outer space. Therefore, this Article evaluates the shortcomings of the traditional interpretation of Article VI and proposes a solution based on the customary law of State responsibility in order to ensure that both private and public actors in outer space are unhampered by an overly broad interpretation of Article VI.

Partial Ownership for Outer Space Resources

The most widely adopted agreement on space law, the Outer Space Treaty (OST) (1967), actively promotes international partnerships and peaceful uses of outer space. It also forbids any claims of sovereignty or private property on celestial bodies; however, nothing is explicitly written about the use of resources that can be found there. Other texts, like the Moon Agreement (1979), attempted to extend provisions on this regard, but only 18 nations ratified this agreement, probably because it also contains obligations that remove all incentives for the private industry to participate in the exploitation of outer space resources, such as the obligation to disclose all discoveries and share the benefits between all state parties. Today, most missions are scientific, so there is no need to compete for using space resources. If tomorrow society wants to incentivize participation, and leverage the available funds, from the private sector to explore and exploit outer space, an allocation mechanism that allows to dispute the use of resources needs to be set up. On Earth, this is achieved by the private property system and commercial competition. However, private property is not allowed by the OST, because it has a right of exclusion, and everyone shall be free to use space resources if it does not interfere with activities of other nations. An exclusivity of use for the first nation to exploit a given resource is not desired either and is precisely why the OST was established in the first place. In full compliance with the OST, this paper introduces the concept of Partial Ownership of Outer Space Resources (POOSR). This system allows to compete for the use of resources, without granting monopoly, as it always keeps the competition for ownership open. It is based on the introduction of a Harberger tax and a Partial Ownership system, that allows to expose commonly-owned resources (such as outer space asteroids, or planetary surface areas) to the efficiency of allocation provided by market dynamics, while preserving the incentives for investment to the current owners and preventing resource locking. This paper shows how such system would foster investments from private entities, as well as how it would benefit to all the international entities or nations participating to it. The synergy between such system, international regulations, and national laws, to establish a regulation for space mining and other outer space activities is also discussed.

Space debris as environmental threat and the requirement of Indonesia’s prevention regulation

Non-operational satellites and other space junk, including jettisoned spent rocket stages, old satellites and other space objects, are creating a huge stock of garbage in outer space. Space debris environment poses a damage risk to spacecraft in Earth orbit and also poses the risk of damage on the ground if debris survives Earth’s atmospheric re-entry. From the early 1960s, Indonesia has promptly begun to perform space activities. From rocket research and development in 1970, programs related to space science and technology in 1980, and currently Indonesia operates its own 6 satellites (5 in GSO and 1 in LEO). Indonesia has ratified Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967 (Outer Space Treaty) with the Law Number 16/2002 and also enacted Law Number 21/2013 on Space Activities. However, the lack of regulation regarding on environmental protection aspect on outer space should highlight Indonesian law system as the development of space technology threaten the territory also. This writing aims to study the space debris and environmental protection on the national level and utilized that as a means on space environmental sustainability in Indonesia.

‘Bringing a Piece of Moon to Your Honey’: The Legal Challenges Relating to Mining of the Lunar Resources

Humankind has made significant progress with regard to understanding the outer space and how it can be beneficial for the entire species. With the rapid increase of private players across the world, it is essential that the international space law community designs apt instruments to address the challenges that we may have to confront in the future. The Outer Space Treaty has played an extremely crucial role in ensuring that outer space is used for the benefit of humankind, but one area which still lacks a strong framework relates to the Moon. The Moon Agreement has still not been signed by some of the most significant space-faring nations, making it one of the few international tools which have ‘failed’ this spectacularly. The aim of this research paper is to throw light on the history behind the Moon Agreement and discuss the controversial provisions which discouraged several powerful countries from signing this international instrument. Section 1 of this Essay explores the relevant provisions contained in the Outer Space Treaty and the Moon Agreement, while Section 2 considers the analogous provisions stipulated in the Law of the Sea Convention and the Antarctic Treaty. The final section provides concluding remarks and suggestions.

Threats to Peaceful Purposes of Outer Space: Politics and Law

ABSTRACTThis paper situates the ongoing debate and recently changing political narrative around the fundamental principle of “peaceful purposes” as enshrined in the Outer Space Treaty. The origins and evolution of the meaning of peaceful purposes are discussed. Further, the paper advances arguments on numerous fronts for the international community to not fall for the misinterpretation of the Outer Space Treaty that is proffered by actors advocating for non-peaceful uses and for making outer space a warfighting domain. In this context, practical suggestions on ways to preserve outer space for peaceful purposes are advanced.

INTERNATIONAL LAW ON SPACE TOURISM IMPLEMENTATION

As space tourism related technology breakthrough, the outlook of mining activities having in space moves spacious to being a fact but it should develop in consent with international law, because the issue of space is a deal of international pointing, since space pointing as explorer zone by humanity. The significant guiding instruments in international space law in relating to space tourism industry are Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, that entered into force on 10 October 1967; Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, entered into force on 11 July 1984. These international treaties mainly condition to the states the freedom on exploration and using space, but at the same time do not consider national appropriation of it. The work also proposes European legislation that is applicable to space tourism. The main attention is given to the Treaty of Lisbon. But during the studying the author proposed the opinion that it can’t be acceptable to space tourism, since it does not directly or even indirectly indicate it. Although it may be applicable as such, due to the lack of appropriate specific acts in the field of space travel. However, this act is recommended as a fundamental basis for further international development of the law on space tourism, as it directly deals with space activities, so it can serve as a guide. The study also doesn’t lose sight of US law, since space tourism increase by US entities through activities with travel destination for the mass. Research show that US have national law instrument for US enforcement in space sphere, besides grants property rights to companies to conduct actions on own risks in space with traveler issue as well and opening it to the mass. Thus interprets the freedom enshrined in the UN space acts at its own expense. However, Outer Space Treaty is not consistent in light of the freedom issue in exploration and it interprets the liberty broadly, but the interdiction narrowly. Due to that, research reaches that current space related legislation regime would let for space journey to develop but not in the path the text of former domestic laws propose. Attention is also drawn to the social meaning consideration for further law implementation. This research examines the emerging role of social data in the context of highlighting law necessity to provide properly advanced international legal act on flights to the space with tourists on a spacecraft. Since, space tourism may affect international law. The findings indicate that social awareness due to geographical indicator could improve current situation in legal regulation of space tourism at risk of international law gap. What is now needed is a cross – national international law study involving law researchers on space tourism issue. An implication of these findings is that both social position and space flights with traveler purpose should be taken into account when international law – maker communityable to implement legal acts about understanding issues on entitlement and | or restriction of space activity as space journey. The unborn looking enterprises concerned in mining outer space a goods are working on protracted timelines on focus with society’s modern needs. The major point of this article is the explanation of the ban on national allocation, as only being a veto on state appropriation. Under the presumption that exegesis would be a violation of the sense society needs, not states as along. In folding on their own the arrangements to dominate objects beyond the competency of any single state, the US is obtaining a step back out of the international community. This will not be a advantage for the interests of nations though. But nevertheless, the author explains this by the fact that such a national privilege is associated with the direct growth of private activity, which required regulation, because at the international level there is no adoption of any specific acts in this area. In order space tourism open-up affect, for commercial companies necessary the potential to gain reasonable benefits and a stable legal setting [1]. Substitute option to the unilateral implementation of a legal base, and one that would sustain law confidence both domestically and internationally, is the modernization of an international regime for the stewardship of space excavation functioning as transmitted in Article 11 of the Moon Agreement. International law does not aid the unilateral provision of rights to conduct over outer space by states to an individual way, or through private corporation and should be accordingly to interpretations of the UN Space Acts disregard the common heritage of mankind. Such would have the prospect to ensure space tourism doesn’t fair bring individual profits, but betters of humanity.

International space law of the era of the beginning of the business colonization of space

Traditional approach to the activity in outer space as exclusive domain of few big space faring states through special governmental agencies as a sort of natural monopolies is rapidly placing by the prevailing view that such activity could be successfully and efficiently performed by private entities and fair competition between such players shall be allowed and is even desirable. Increasing participation of private capital in exploration of the resources of outer space is a persuasive confirmation of the emerging large-scale, self-sufficient economy of the New Space attractive for potential investors. Such economy requires sufficient level of legal certainty in a form of effective legal rules adequately reflecting contemporary reality and capable to guarantee the rights of commercial players in exploration of space resources including ownership rights on space resources obtained. Arguably, such reshaping of international space law will take place outside the UN and would not be based on the concept of space as a common heritage of mankind. Main drivers of this reshaping will be unilateral national laws like the U.S. Commercial Space Launch Competitiveness Act or Luxembourg Space, bilateral agreements or international treaties with small number of participants (like the International Space Station Agreement or the Artemis Accords). Such national practice and international treaties claiming that they are adopted in implementation and in full conformity with the Outer Space Treaty will be viewed as subsequent practice and subsequent agreements clarifying, amending and even modifying rather vague provisions of the Outer Space Treaty. The values of the Outer Space Treaty will increase due to a lack of strict rules regulating or prohibiting commercial exploitation of space resources. It will allow to perform evolutionary reform of international space law using new avenues of the treaty creating new rules which will implement and improve provisions of the Outer Space Treaty.

INTERNATIONAL LAW ON SPACE TOURISM IMPLEMENTATION

INTERNATIONAL LAW ON SPACE TOURISM IMPLEMENTATION