Introduction to International Space Law and Policy

BY 

KOSISOCHUKWU.A.OKOLI ( L.LB)

ABSTRACT

The advancement of mankind into space ranks high on the scale of groundbreaking human advancements of all time. This incredible achievement birthed a new discipline which anchors the rules and norms that regulates the activities of Human entities in outer space in other to promote and ensure the peaceful and sustainable use of outer space. This article seeks to introduce the readers and all space enthusiasts to the world of International space law and policies.

1.0 INTRODUCTION

The inquisitive nature of humans is arguably responsible for some of the greatest human inventions and advancement in history. This biological inclination is also responsible for human advancement into outer space. Space travel and exploration is no longer science fiction .The military inspired space race between The United States of America and Soviet union which was the hallmark of the cold war era marked the beginning of human advancement into outer space. However the space race between these super powers triggered a general public fear and it was believed that whichever power that reached space first would claim it for itself while excluding the others. In other to calm the political tension and ensure the peaceful use and exploration of outer space by states. The United Nations unanimously adopted ‘The treaty on principles governing the activities of states in the exploration and use of outer space[efn_note]Hereinafter referred to as the ‘Outer Space Treaty’.[/efn_note] including the moon and other celestial bodies (outer space treaty) in 1963. The treaty firmly established the notion of outer space as an object of common usage by the whole of mankind. It also encapsulated the principle of state responsibility and became a formidable source of International space law and policy. The outer space treaty due to the time it was drafted focused mainly on states as the main players in space activities and exploration. However in recent time, with the commercialization of outer space there has been an increased participation from private entities (Space x) including international governmental organizations(E.S.A[efn_note]European Space Agency.[/efn_note]) in space exploration  and space related activities .[efn_note]G.Khoukaz ‘A Regime for Resolution of Outer Space Disputes’ [2018] Journal of Dispute Resolution.[/efn_note] The increased participation of private entities and corporation in outerspace has arguably boomed the space economy. As of 2013, the global space economy was valued at approximately ($31billion ) interestingly the private sector accounted for the 76% lion share  of all space related expenses while government expenditure  were limited to the remaining  24% of global space economy.

1.1. What is International Space Law?

Many international jurists and scholars have offered various definition of the term ‘space law’. According to Zhukov Kolosov[efn_note]G.Zhukov, Y.Kolosov, International Space Law, ( 2^nd edn Statut Publishing House 2014) P.g15.[/efn_note] international space law may be defined either in terms of the place of the activities of states(outer space) or in terms of the character of their activities or both. The soviet legal expert Evgeny Korovin[efn_note]Ibid. pg 15.[/efn_note] defined space law as asset of rules regulating the legal relations between people and between states in outer space. This definition has been held to be reductionistic. Thus, defining International space law solely in terms of the place of the activities of the states, will exclude from the sphere of its operation such cases as the collision of space vehicle and a foreign aircraft, the emergency landing of a space craft of a particular state on the territory of another state, the damages caused to the latter by such landing and rescue of astronauts in such situations. Marklen Lazarer,[efn_note] Ibid. pg 16.[/efn_note] defined  international space law as a set of legal rules regulating on the basis of the principles of  peaceful coexistence  the relations between states of the earth in the context of  space exploration .The Hungarian legal expert Dr. Gyula Gal[efn_note]Ibid.pg 16.[/efn_note] defined space law broadly as ‘a set of legal rules regulating the intra and interstate relations that arise in exploring and using outer space and celestial body and the legal rules covering the consequences of such activities from the standpoint of right of individuals.

The author of this piece defines space law as  a set of International norms, rules and customs that regulates the activities of launching states on earth and in outer space including private entities licensed by such states in relation to space exploration.

2.0. THE DELIMITATION OF SPACE

The delimitation of ‘Space’ is arguably the most contested area in space law till date. The delimitation of space is very important in other to determine the extent of national jurisdiction and sovereignty of space. The delimitation of outer space is essential as to draw a margin between the Air space above states which is subject to the national jurisdiction and sovereignty of such states and outer space which is not subject to any national jurisdiction.

The functional approach championed by USA and Britain has played a definite positive part in establishing and advancing international space law in that it has highlighted the need for regulating certain types of national space activities by international law regardless of where the dividing line between air space and outer space should run.[efn_note]Ibid.pg 142.[/efn_note] The supporters of the functional approach proceed from the premise that, within the same space above the Earth, there simultaneously operate two international legal orders, regulating the aeronautical and space activities of states, respectively. In their arguments they rely on the highly vulnerable proposition that it will always be very easy to distinguish astronautics from aeronautics. The functional approach often fails to take proper account of the prospects of further significant scientific and technical advances in air and space flying machines. What is more, many advocates of the functional approach, following their line of reasoning to its logical end, urge the renouncing of the obsolete concept of sovereignty of states over their air space and establishing a single aerospace law.

Another approach which emanated from the 1976 Bogota Declaration of equatorial states, proclaimed the sovereignty of the equatorial states over the geostationary orbit segment over their territories.[efn_note]Ibid.pg 143.[/efn_note] These segments according to this declaration are part of the territories of these countries, their natural resources to which national sovereignty extends. The condition is formulated in the declaration that broadcasting devices cannot be stationed in geostationary orbit segments belonging to equatorial states without their preliminary explicit consent .And the use of such segment must conform to the national law of the state over whose territory it is situated. This position has been criticized on several counts. For example, it is impossible to claim a territory or region at such a distance from the claiming state (Geostationary orbits are 22,000 miles or 36,000 km above sea level).

The Altitude approach was reinstated by the soviet delegation at the 21^st session of the UN COPUS in 1978. The altitude approach posits the recognition of the proposition that outer space begins at an altitude of 100-110 km above sea level. According to this rule space vehicles should be allowed  to fly over the territories of foreign states at lower altitude ,But only for the purpose of reaching orbit or returning to earth  in their own territory.[efn_note]Ibid.pg 145.[/efn_note]

3.0. SOURCES OF INTERNATIONAL SPACE LAW

The word ‘Source’ refers to the formal source , in the sense of origin, legal procedure and method that create a legally binding rule from which the law derives its validity and not the material or literary source, or the source of information such as diplomatic correspondence.[efn_note]U.O Umozurike, Introduction to International Law, (Spectrum Law Series) .p.g15.[/efn_note] The sources of  International space law includes:

• International Treaties: Treaties have been the main source of conducting international relations, international cooperation has been carried out through them. Article 2 of the Vienna convention on the law of treaties defined treaties as an international agreement concluded between states in written form and governed by international law. Other words some of which also have other meanings, used synonymously with treaty are; conventions, protocol, accord, arrangement, compromise, regulation, pact, declaration, charter, covenant[efn_note]Ibid.pg 16.[/efn_note] The United Nations outer space treaty is a major source of international space law.
• International Customs: Custom in international law is a practice followed by those involved because they feel legally obliged to behave in such a way. International custom must be distinguished from mere usage, such as acts done out of courtesy friendship or convenience rather than out of obligation or feeling that non-compliance would produce legal consequences. Article 38 ICJ Statute circumscribed customary law as ‘evidence of a general practice accepted as law.[efn_note]D.J Harris, Cases and Materials on International Law, ( 6^th edn London Sweet & Maxwell publishers 2004) p.g 21.[/efn_note] Also in the Asylum case[efn_note]Columbia v Peru.[/efn_note] the ICJ described international customs as a constant and uniform usage  accepted as law  which has long been quoted as a convenient and accurate  International custom is a viable source of international space law .According to Dr. Herezeg, International custom served as the basis for adopting the rule that outer space shall be free for exploration and use by all states as the province of all mankind.[efn_note]G.Zhukov, Y.Kolosov, op cit .P.g21.[/efn_note]
• General Principles of International Law: The general principles of international law also form the gravamen of international space law. Some of these principles are enshrined and encapsulated in the U.N Charter .Article 1 of the space treaty requires state parties to carry on activities in the exploration and use of outer space in accordance with international law including the charter of the United Nations. Also the U.N General Assembly Resolution 1721[efn_note] (XVI) of December 20,1961.[/efn_note], proclaimed for the first time that ‘International law, including the charter of the United Nations, applies to outer space and celestial bodies.

4.0. PRINCIPLES OF INTERNATIONAL SPACE LAW

• Freedom of Expropriation and use of Outer Space: Article 1 of the outer space treaty[efn_note]The treaty on principles governing the activities of states in the exploration and use of outer space .(Hereinafter referred to as Outer space treaty).[/efn_note] is to the pellucid effect that outer space including the moon and other celestial bodies shall be free for exploration and use by all states without discrimination of any kind on a basis of equality and in accordance with international law. Also the exploration and use of outer space including the moon and other celestial bodies shall be carried out for the benefit and interest of all countries.
• Non Appropriation of Outerspace or Celestial Bodies: Is the outer space “Res Communis” or “Res Nullius”? Res Communis is a latin maxim that represents something that is not capable of exclusive ownership i.e something that belongs to everyone, for example the Highseas. While “Terra Nullius” and “Res Nullius” means something that belongs to nobody but which is appropriable by various means e.g by conquest in the case of territories. The designation of Outer space  which includes the moon and other Celestial bodies as Res communis is arguably the greatest contribution of the outer space treaty. Article 2[efn_note]Outer Space Treaty.[/efn_note] provides that 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. This means that no state can lay a claim to outer space.
• Exploration and use of outer space and celestial bodies in accordance with the fundamental principles if international law, including the basic principles of the U.N Charter:[efn_note]Article 3 Outer Space Treaty.[/efn_note] The space treaty formulates the principle that state parties to the treaty shall carry on activities in exploration and use of outer space including the moon and other celestial bodies in accordance with international law including the charter of the united nations , in the interest of maintaining peace and security and promoting international peace and security and promoting international cooperation and understanding . This simply means that activities in outer space must be carried out in accordance with the dictates of international law which can be found in the U.N Charter e.g Article 2(4)[efn_note]U.N Charter.[/efn_note] prohibits the use or threat of use of force.
• Prohibition on Militarization of Outer space: Article iv of the outer space treaty is to the limpid effect that space parties to the treaty undertakes not to place in the orbit around the earth any object carrying nuclear weapon or any other kind of weapon of mass destruction. The outer space treaty in article iv thus reaffirms the similar provisions in the U.N General Assembly resolution 1884[efn_note]Xvii.[/efn_note],which urged  refraining ‘from placing in the orbit around the earth any object carrying nuclear weapons or any other kind of weapons of mass destruction or from installing such weapons of mass destruction or from installing such weapons on celestial bodies.[efn_note]G.Zhukov, Y.Kolosov, op cit p21.[/efn_note] Resolution 1884 was another step toward preventing the arms race, particularly the nuclear arm race from spilling over into space.
• Astronauts as Envoys of Mankind: Pursuant to Article 5 of the outerspace treaty, state parties shall regard astronauts as envoys of mankind in outerspace and shall render to them all possible assistance in the event of an accident, distress or emergency landing on the territory of another state party or on the high sea.
• Principles 0f State Responsibility: Under international law , a state is viewed as an entity that bears rights and duties. The breach of these duties gives rise to state responsibility. Under the outer space treaty pursuant to Article( vi )state parties to the treaty shall bear international responsibility for national activities in outer space , whether such activities are carried out governmental agencies (NASA[efn_note]National Aeronautics and Space Administration.[/efn_note]) or by private corporations from such a state(SPACE X) .Under the outer space treaty , the activities of Non-governmental entities in outer space , including the moon and other celestial bodies shall require authorization and continuing supervision by appropriate state party to the treaty. When activities are carried on in outer space by an international organization e.g (ESA[efn_note]European Space Agency.[/efn_note]) the responsibility for compliance with this treaty shall be born both by the international organization and by the state parties to the treaty participating in such organization. Article (vii)[efn_note]Outer space treaty.[/efn_note] is also to the effect that state parties that launch objects into outer space are internationally liable for damages caused by such objects to another state party to the treaty or to its natural or judicial persons by such object or its component parts on earth , in air space or outer space.

Another convention that regulates state responsibility of launching state in outer space is the ‘Convention on international liability for damages caused by space objects’.  Under this convention the term ‘Damages’ was defined to mean loss of life, personal injury or other impairment of health or loss of or other impairment of health or loss of or damage to property of states or of persons natural or judicial. Also under the convention the term ‘launching’ was defined to include ‘attempted launching’. The term ‘Launching state’ means (1)A state which launches or procures the launching of a space object.

(2) A state from whose territory or facility a space object is launched.

By Article 2[efn_note]Convention on international liability for damages caused by space objects.[/efn_note], a launching state shall be absolutely liable to pay compensation for damage caused by its space object on ‘The surface of the earth’ or to aircraft in flight.

What is the position where the damage occurred elsewhere, for example ‘outer space’?

Pursuant to Article 3[efn_note]Ibid.[/efn_note] where the damage was cause elsewhere, for example ‘outer space’ to a space object of one launching state or to persons or property on board such space object of another launching state. The launching state will only be liable only if the damage is due to its fault. Thus, where the damage was caused on the surface of the earth the liability of the launching state is strict , but where it occurs elsewhere other than on the earth surface the element of ‘Fault’ must be established for the launching state to be liable.

5.0 SETTLEMENT OF CLAIM OF DAMAGES IN INTERNATIONAL SPACE LAW

When a launching state has caused damage to the space object of another state or to the natural person who is a national of another state. The launching state shall be liable to pay damages. In such cases the aggrieved state is required to present to a launching state a claim for compensation  for such damage.

What is the procedure for presenting such claim?

Article ix[efn_note]Convention on International liability for damage caused by space object.[/efn_note], requires that such a claim shall be presented through diplomatic channels . in the a case where the state that suffered damage does not maintain  diplomatic relations with the launching state  such  a state may request another state to present its claim to that launching state or otherwise represent its interest under the convention. Where both the state that suffered  the damage and the launching state are both members of the united nations , the claim can be presented through the Secretary General of the United Nations provided both states are members of the U.N.

What is the Time limit for bringing such claim?

Article x[efn_note]Ibid.[/efn_note], requires that such a claim must be presented to a launching state not later than one year following the date of occurrence of the damage or the identification of the launching state which is liable. By Article x , the presentation of claim to a launching state for compensation for damage under this convention shall not require the prior exhaustion of any local remedies which may be available to a claimant state or natural or judicial person.

6.0. REGISTRATION OF OBJECTS LAUNCHED INTO OUTER SPACE AND CONCLUSION

State parties are required to register space objects launched into the earth orbit or beyond . Article 2 of the convention on the registration of objects launched into outer space provides that when a space object is launched into earth orbit or beyond , the launching state shall register the space object by means of an entry in an appropriate registry which it shall maintain . Each launching state shall inform the secretary general of the UN of the establishment of such a registry.

Article iv[efn_note]Convention on the registration of objects launched into outer space.[/efn_note], requires each state of registry to furnish to the secretary general of the United Nations as soon as practicable . The following information concerning each space object carried on its registry

1. Name of the launching state or states
2. An appropriate designator of the space object or its registration
3. Date and territory or location of launch
4. Basic orbital parameters, including

• Nodal period
• Inclination
• Apogee
• Perigee

5. General function of the space object.