Beyond National Jurisdiction: Outer Space

Outer Space

Outer space.  There is no clear line as to where it starts, and there is no clear line as to where it ends.   But what is clear is that outer space is beyond the limits of any nation's jurisdiction.  As far as we know, outer space is infinite – although the regions of outer space on which we most depend do tend to be finite.  As vast as outer space is, however, given our level of technological development and the laws of physics, and setting aside their intrinsic value, only certain regions in space are of current practical use to humankind, such as for applications such as telecommunications, military use, and weather forecasting.  Unfortunately, however, many of those regions are at risk from overcrowding, radio frequency interference, and space debris.  

Historically, there was not much need for law in outer space before October 4, 1957.   That was the date when the USSR launched the first artificial satellite into orbit, Sputnik 1.  Sputnik 1 operated for about three weeks before its batteries died, after which it orbited Earth for about two more months before Earth's gravity pulled it back down towards the planet, and it burned up in the atmosphere. 

The launch of Sputnik 1 created fear and panic among many across the globe and was the start of the Space Race.  The very next year, the United Nations (U.N.) created an Outer Space Affairs Division, which was later transformed into the Office of Outer Space Affairs, now resident in Vienna, Austria.  Also in 1958, the U.N. convened a Committee on the Peaceful Uses of Outer Space (COPUOS), which was made a permanent committee of the U.N. General Assembly (UNGA) one year later. 

Text

COPUOS began drafting a series of UNGA resolutions in the early 1960's regarding outer space, culminating in what crystallized as the Outer Space Treaty (OST) of 1967.[i]  More than 100 countries are party to the OST, including all major spacefaring nations.  The OST is the primary international legal instrument governing activities in outer space and is also relied on as the source for most domestic space law.

The OST lays out a few fundamental principles:

  • the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all humankind;
  • outer space shall be free for exploration and use by all States;
  • outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means;
  • States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner;
  • the Moon and other celestial bodies shall be used exclusively for peaceful purposes;
  • astronauts shall be regarded as the envoys of mankind;
  • States shall be responsible for national space activities whether carried out by governmental or non-governmental entities;
  • States shall be liable for damage caused by their space objects; and
  • States shall avoid harmful contamination of space and celestial bodies.

It is worthy to note that while the OST does not contain either a definition or delimitation of "outer space," it does make clear that its terms apply to not only the celestial bodies themselves, but also to all of the "space" between them. 

Because the OST was drafted to be a Treaty of "Principles," it was followed by four additional Space Law treaties over the next 13 years, which expound upon and provide greater details of the principles laid out in the OST.  The first concerned the rescue and return of astronauts and the return of space objects to the launching state.[ii]  That was followed by a convention imposing strict liability on the "launching state" (a term of art) for damage caused by space objects to persons and property on the ground.[iii]   The next treaty put forth an obligation to register spacecraft with the Secretary General of the U.N. as a means to assist in the identification of space objects.[iv]   The fifth and final treaty is the controversial one -- the Moon Agreement -- negotiated between 1972 and 1979.[v]  Article 11 of that Treaty states that the Moon and its natural resources are the common heritage of mankind, and that an international regime should be established to govern the exploitation of such resources when such exploitation is about to become feasible. Some might recognize that phrase "common heritage of mankind" from Article 136 of the U.N. Convention on the Law of the Sea.  This phrase is the reason that the Moon Agreement has so few signatories, including none of the major spacefaring nations. Apart from the four core Space Law treaties, there is also some other U.N. "soft law" relevant to any study of space law.

What might be most fascinating and dynamic about Space Law is that it is a subspecialty of international law, but it also intersects with many other branches of law:  contract law; intellectual property; environmental law; criminal law; tort law; insurance; law of armed conflict; the law of the sea; and even human rights.

In addition to the international law governing outer space, countries have passed domestic laws to implement their OST responsibilities.  In particular, Article VI of the OST requires States to authorize and continually supervise the activities of their nationals – States typically do this through national legislation.

Today, some people question whether we need new laws for outer space.  There seem to be lacunae in space law because of technological progress that was largely unforeseen five decades ago when the OST entered into force.  Questions exist regarding the legality of certain outer space activities, both present and future – to name a few:  asteroid mining; space tourism; private companies (as opposed to States) launching rockets; hotels in space; criminal law in outer space; one-way trips to Mars; and, of course, environmental concerns.  Because Outer Space is beyond national jurisdiction, future international agreements may be required to address these and other questions we have yet to imagine.

i Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967).

ii Agreement on the Rescue of Astronauts, the Return of Astronauts, and the the Return of Objects Launched into Outer Space (1968). 

iii Convention on International Liability for Damage Caused by Space Objects (1972).

iv Convention on Registration of Objects Launched into Outer Space (1974).

v Agreement Governing the Activities of States on the Moon and other Celestial Bodies (1979).



Clicking the icon in the upper corner of the video below will expand the full playlist.


Publicly Accessible

American Bar Association (ABA)

Electronic Information System for International Law (EISIL)

  • http://www.eisil.org
  • Provides access to agreements, treaties, conventions, declarations, guiding principles, as well as links to other sites containing related information.

International Institute for Space Law

  • https://iislweb.org/
  • Provides access to recent developments and discussions within the field. Also, links to relevant publications and sites.

Oxford Public International Law

Peace Palace Library

  • https://www.peacepalacelibrary.nl
  • Contains bibliographies of current references and other linkages, provides access to other databases, and links to other sites that deal with similar subject matter.

United Nations Resources

Audiovisual Library on International Law

Dag Hammarskjold Library

Office for Outer Space Affairs

  • http://www.unoosa.org
  • Contains history of space law (Office founded 1958), access to pertinent treaties and other agreements, as well as an archive of recent developments in the field.

Accessible Only with Subscription or Membership

HEIN Online: Foreign & International Law Resources Database

  • https://home.heinonline.org/
  • Provides access to legislation, treaties, and other relevant documentation. Access to HEIN is needed to reach pertinent information. Most US law schools have access, unsure if same true at international institutions.