Space Law: Nature and Emergence

Space law is the body of law governing space-related activities. It comprises

a variety of international agreements, treaties, conventions, and United
Nations General Assembly resolutions as well as rules and regulations of
international organizations.

It is most often associated with the rules, principles and standards of

international law appearing in the five international treaties and five sets of
principles governing outer space which have been developed by the United
Nations. In addition to these international instruments, many states have
national legislation governing space-related activities.

Space law addresses a variety of matters, such as, the preservation of the
space and Earth environment, liability for damages caused by space objects,
the settlement of disputes, the rescue of astronauts, the sharing of
information about potential dangers in outer space, the use of space-related
technologies, and international cooperation.

Evolution of space law

Phase 1- Development of Concepts of Space Law before Sputnik
During the first half of the 20th century, there were only a handful of
concepts related to space law. These concepts formed the basis for the
emergence of space law. Most of them were the writings or thesis of various
jurists of that time. It was asserted that the flights in outer space would be
beyond the control of the states. Thus, a flight beyond the airspace should
be free of the control of the sovereignty. These claims led to the need for a
different law, which doesn’t relate to the principles of air law and which is
based on international integrity. Further, the concept of liability of the
launching state in case of matters relating to safety and security were
discussed. The flights of the national territory flying at any speed or altitude
could involve threats to safety and security, and states have a right to
defend and protect their national integrity by any appropriate means
available to them. Such concerns led to the principle of liability in the outer
space treaty. Question of the upper limit of air space whether the states
could claim sovereignty over the space above the air space was also
discussed.

Phase 2 – Clarification and Adoption of Basic Principles of Law (Post

Sputnik Development Era

Following the successful launchings of the Soviet Satellite Sputnik 1 in 1957

and the U.S. satellite Explorer 1 in 1958, both the United States and the
U.S.S.R. took an active interest in the development of international space
policy. It was established that traditional laws of sovereignty that allow any
nation to claim for itself uninhabited and uncivilized lands are not viable in
space territories and that countries cannot extend the boundaries of their
dominion indefinitely into the space regions above them.

The United Nations Committee for peaceful uses of outer space (COPUS) was
formed in 1961. UN COPUS is an international authority for setting up legal
regulations for the countries of the world to follow while conducting the
space activities. The main purpose is to govern the exploration and use of
space for the benefit of all humanity: for peace, security and development.
The Committee was tasked with reviewing international cooperation in
peaceful uses of outer space, studying space-related activities that could be
undertaken by the United Nations, encouraging space research programmes,
and studying legal problems arising from the exploration of outer space.

The committee has concluded five international treaties and five sets of
principles on space-related activities. These five treaties deal with issues
such as the non-appropriation of outer space by any one country, arms
control, the freedom of exploration, liability for damage caused by space
objects, the safety and rescue of spacecraft and astronauts, the prevention
 of harmful interference with space activities and the exploitation of natural
resources in outer space and the settlement of disputes. Each of the treaties
stresses the notion that outer space, the activities carried out in outer space
and whatever benefits might be accrued from outer space should be
devoted to enhancing the well-being of all countries and humankind, with an
emphasis on promoting international cooperation.
The treaties commonly referred to as the ‘Five United nations Treaties on
Outer Space’ are:

A. 1967 Treaty on Principles Governing the Activities of States in the

Exploration and Use of Outer Space, including the Moon and other
Celestial Bodies (The ‘Outer Space Treaty’)
It covered a variety of UN General Assembly resolutions related to space law.
It is also known as a Charter for Space Law and Exploration. It gave shape to
all human aspirations that brought humanity into space. It covers vast
principles and provisions of space, and almost all other treaties arose out of
this treaty later. The treaty’s preamble acknowledges the common interest
of humanity to explore outer space. It promotes peace and international
cooperation in both scientific and legal dimensions of space with the
intention that all humankind could benefit and develop solid and peaceful
relations with other nations. It also specifies that all countries are allowed to
explore and use outer space, including the Moon and other celestial bodies,
on an equal footing and in accordance to international law. It promotes
scientific research on the Moon and other celestial objects with international
cooperation. No State can claim sovereignty over outer space, the Moon, and
other celestial objects. There is no such thing as 'territorial jurisdiction' in
space. This means that claiming ownership of any part of outer space is
illegal, and this rule applies on States as well as to private companies. The
United Nations Charter and international law are legally extended to outer
space. It forbids the States to place nuclear weapons or means of mass
destruction in orbit around the Earth. States are instructed to pursue
 activities on the Moon and other celestial objects solely for peaceful motives.
It is necessary to provide assistance to astronauts by all the States. States
must have international responsibility for conducting national activities in
space. When an object is launched in outer space, then the State from which
the launch was made would be liable to other States if any damages are
suffered. Regardless of their location, the launching State retains ownership
of such space objects.

B. 1968 Agreement on the Rescue of Astronauts, the Return of

Astronauts, and the Return of Objects Launched into Outer Space
(The ‘Rescue Agreement’)
The rescue agreement is a unique treaty drafted for providing assistance to
the astronauts and ensuring the safe return of astronauts and space objects
to their launching State. The agreement has provisions regarding the
astronauts who have been in an accident, are in an emergency, or have
unintentionally landed in another nation or on the high seas are rescued and
returned. All the expenses incurred by the other State in rendering
assistance and return of the astronauts shall be borne by the launching
state.

C. 1972 Convention on international Liability for Damage Caused by

Space Objects (The ‘Liability Convention’)
As the objects are launched by any State taking all possible precautions,
there still remains a possibility that damage may occur on occasions by such
launching. The convention deals with the liability for damage caused by the
space objects and ensuring compensation to such victims of the damage.
This is a convenient convention relating to any damages, injuries, or deaths
caused by space activity. It makes the launching state absolutely liable for
damages caused by its space object, whether on the surface of the Earth or
to a spacecraft in flight. If the damage is suffered by a space object of
another State due to the fault of the launching State, then the launching
State is liable to another State.
D. 1974 Convention on the Registration of Objects launched into Outer
Space (The ‘Registration Convention’)
This convention establishes a mechanism for registering space objects by
the launching State/States. It is the responsibility of the launching State to
register every space object launched into earth orbit or beyond in a suitable
registry that must be adequately maintained. Further, such registry
information shall be shared with the UN Secretary-General.

E. 1979 Agreement Governing the Activities of States on the Moon and

other Celestial Bodies (The ‘Moon Agreement’)
As many States were advancing in technology and space exploration was
increasing, to prevent international conflict there was a dire need to draft a
particular treaty regulating the activities on the Moon and other celestial
objects. The Moon is Earth's natural satellite, and it plays a significant role in
outer space. All the exploration and other activities on the Moon are to be
performed in pursuance of international law. All the State parties shall use
the Moon peacefully, and that deploying any nuclear or mass-destructive
weapon around the Moon's orbit, around the Moon, or in the Moon is strictly
prohibited. The treaty is found on the premise of equality of scientific
research on the Moon by all State parties. The Moon and its natural
resources are declared to be part of humanity's common heritage. No State
can ascertain ownership of the Moon. Furthermore, when it becomes
conceivable to exploit these resources, the Moon Treaty mandates the
formation of an international regime, including proper processes, to monitor
their exploitation.

The Five declarations and legal principles are :

 Declaration of Legal Principles Governing the Activities of States in the
Exploration and Uses of Outer Space ,1962 ( The “Declaration of Legal
Principles”)
 The Principles Governing the Use by States of Artificial Earth Satellites for
International Direct Television Broadcasting, 1982 (The “Broadcasting
Principles”)
 The Principles Relating to Remote Sensing of the Earth from Outer Space ,
1986 (The “Remote Sensing Principles”)
 The Principles relating to Relevant to the Use of Nuclear Power Sources in
Outer Space, 1992 ( The “Nuclear Power Sources” Principles)
 The Declaration on International Cooperation in the Exploration and Use of
Outer Space for the Benefit and in the Interest of All States, Taking into
particular account the Needs of Developing Countries, 1996 (The “Benefits
Declaration”)

Need for a legal framework in space

When Sputnik was launched, it created a need for bringing out a legal
framework in to the space as there was a speculation that many legal issues
may arise, such as:

1) Militarization
During the world war, there was a rapid development of nuclear arms and
the major players of the world were trying to explore new dimensions in
which they could showcase their power. There was an assumption that space
could become one such dimension. These explorations were initiated by the
two super powers of the world that is the United States and the Soviet Union.
This led to a fear that these countries would establish military settlements or
fortification in the outer space. This may result in a war with each other in
the outer space and the world was not ready for such destruction. Therefore,
there was an alarming need to bring an international legal framework which
could control such activities to happen in and to make the space a peaceful
place for conducting explorations by not allowing such activities to take
place in the space. Various provisions of current space law limit military
activities in space, but there is still no overall framework regulating the
military uses of space.

2) Privatization and Commercial Space Activities

Privatization is the transfer of business from government to private players.
During the early years of space exploration, the space activities were carried
completely under the authority of the state for political and military
purposes. Further developments in the space technology led to another fear
due to a speculation that soon private players would take over the activities
in space. As many private entities had started to show their interest in the
exploration of space and this may lead to many issues. Issues such as
exploitation of resources and appropriation of ownership on the moon and
other celestial bodies. Further the activities by the private players are more
of profit oriented than of prompting common welfare. These implications
made it necessary to develop a legal framework so that such activities by the
commercial players would be regulated.

3) Exploitation of Resources
Exploitation of natural resources is using of natural resources for economic
growth and sometimes with negative connection of environmental
degradation. As explorations in outer space started to grow at a faster phase
in order to explore and excavate the resources. Such activities in the outer
space by the states which were carrying space explorations may cause
various environmental concerns. Growing concerns over such an exploitation
led to the establishment of a legal framework in the outer space for
regulation.

4) Failure of Launches
As the space explorations developed, there may be chances for the launch of
the space objects to be a failure. If such a failure occurs it would cause mass
destruction. Therefore, there was a growing need for the regulations to be
formed to save the earth from such destruction. Failure of the launch of
space objects may also cause distress to the astronauts. Therefore, there
must be a need for such a provision as to rescue the astronauts if in case
such an activity occurs in any state other than the jurisdiction of the state
that has launched the space craft.

5) Concerns of the Developing Countries

Most of the developing countries and other countries of the world wanted a
new environment to be used only for peaceful purposes.
This led to the formation of the united nations committee for peaceful uses
of outer space (COPOUS).