17 July 2024 • 7 minute read

Enhancing the regulatory environment and sustainable practices for space

Part two

Written by:Naomi Pryde Christian KeoghSam Ingleton

Part two of our three-part series article addresses the different international treaties governing space and considers outer space as a legal entity.

The Agreement on the Rescue and Return of Astronauts (1968) (ARRA)

Elaborating on Articles V and IIX of the Outer Space Treaty, the Rescue Agreement provides that signatory states “shall take all possible steps to rescue and assist astronauts in distress and promptly return them to the launching State, and that States shall, upon request, provide assistance to launching States in recovering space objects that return to Earth outside the territory of the Launching State”.

This is another example of a provision which emphasises the requirement for cooperation in space, and the spirit with which these treaties are entered into. The scope of “all possible steps” remains to be seen, but it is clear that the framework acknowledges the differing abilities of spacefaring and non-spacefaring signatories.

The Liability Convention (1972)

Elaborating on Article VII of the Outer Space Treaty, the Liability Convention provides that: “a Launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft, and liable for damage due to its faults in space. The Convention also provides for procedures for the settlement of claims for damages”.

A “Launching State” is defined in Article I as “a State that launches or procures the launching of a space object”, or “a State from whose territory or facility a space object is launched”.

The UK domestic legislation has since acknowledged the risk to the UK government by activities carried out by (and damage caused by) private third-party actors using the UK as a launching state. This will be addressed in the section on the domestic regulatory environment in part three of this series.

The Registration Convention (1974)

Once the framework established by the Outer Space Treaty, the Rescue Agreement, and the Liability Convention had been in place for a few years, there was pressure from the signatory states to “make provision for a mechanism that provided states with a means to assist in the identification of space objects”.

The convention requires states to provide representatives from the United Nations with details about the orbit of each space object for which they were responsible. A registry of launchings was already being maintained by the United Nations. In particular, NASA tracks more than 500,000 pieces of matter in orbit.

Objects in orbit are one of the main risks to the sustainability of the space environment and the safety of space operations. Entering objects into space is fraught with risk and complexity: objects in orbit can travel at speeds of more than 27,000kph. For this reason, errant objects in outer space are not only “junk”, but can be dangerous projectiles. In an already crowded atmosphere, it is important that there is a clear framework of responsibility, and registered ownership of objects. Under the Registration Convention, almost every object should be registered and tracked when being introduced into the system. The Liability Convention operates to make clear who is responsible for objects in space, and to enforce that responsibility with international liability in the case of damage.

The Moon Treaty (1979)

The Moon Treaty was ratified by 18 countries. All of the states which engage in self-launched human spaceflight (including the US and Russia) have not ratified the Moon Treaty.

The Moon Treaty, like the Outer Space Treaty, was prepared by the UN. It is organised into 21 Articles. It sets out a similar set of provisions to the Outer Space Treaty, but specifically applicable to the Moon. Those provisions make reference to military use, international cooperation, resource extraction, freedom of scientific research and interest.

It is instructive to note that the NASA General Counsel and chief US negotiator for the Moon Treaty, S. Neil Hosenball, has suggested that negotiation of lunar rules should be delayed until the feasibility of lunar resource extraction has been definitively established. However, many nations, including the US, are predicting that lunar extraction will be taking place within a decade.

More significantly, a number of nations have prepared national legislation which legalise resource extraction in outer space. These permissions go against the Moon Treaty and the Outer Space Treaty itself, and represent the first in a likely series of problems as a handful of domestic and private interests outweigh international principles.

By this point in the 20th century, divergent interests caused by the increasing spread of spacefaring and non-spacefaring states has made agreement on international space treaties more difficult. This might explain why there have been relatively few ratifying states to the Moon Treaty, and may also indicate an increased requirement for domestic legislation in respect of space requirements.

Space as a legal entity

A final area of international uncertainty is the jurisdiction of space. The main question in contention is “where does space begin?”. The first attempted delimitation of outer space by legal instrument comes from the 1959 committee on the Peaceful Uses of Outer Space. There was no consensus on the matter of where space begins, and this question has been on the agenda for UNCOPOUS since it was first raised in 1959.

The question of territorial sovereignty is not a settled one in international law in any case. The amorphousness of international boundaries has been recognised in numerous passages of case law, and famously in the “Island of Palmas case”, (the Netherlands v. United States of America) (1928) II RIAA 829:

“The territorial sovereign is, in general, a situation recognised and delimited in space, either by so-called natural frontiers as recognised by international law or outward signs of delimitation that are undisputed… or by acts of recognition of States within fixed boundaries… Territorial sovereignty… serves to divide between nations the space upon which human activities are employed in order to assure them at all points the minimum protection of which international law is the guardian”.

The “natural frontiers” of space are not well settled. There is not a physical natural boundary between “air space” and “outer space”. As there is no physical boundary, a legal boundary will be required. There is no “jurisdiction” at which space law begins to apply. There are two main theoretical solutions to this problem, which would form the basis of the corresponding legal principles:

A functionalist approach: takes into consideration the purpose and capabilities of the particular vehicle entering outer space. International and domestic laws already recognise that some objects are clearly being launched “into space”, even if there is not yet a clear boundary of space.
A spatialist approach: a physical demarcation line must be provided, and consensus must be reached at where this line begins. One possible objective standard would follow the Von Karman line, which dictates that space begins at one hundred kilometres above sea level.

The main problem with settling on an approach is international consensus. All states (or at least a majority of states) would have to consent on a boundary line for a boundary to be effective. Interestingly, Australia’s Space Activities Act 1998 accepts the Von Karman line in practise, but this is only a domestic acknowledgement; the international question is still unanswered.