Space Law New

What is Space Law?

The International Institute of Space Law of the International Astronautical Federation (IISL) and the United Nations Committee on the Peaceful Uses of Outer Space and its Legal Subcommittee (UNCOPUS) are the two most significant space law making institutions, for international space lawmaking. Domestic policies and laws made within a country is a different matter.

For further information:

The United Nations Office for Outer Space Affairs  http://www.oosa.unvienna.org/ or http://www.unoosa.org/oosa/en/SpaceLaw/index.html

International Institute on Space Law http://www.iislweb.org/ or http://en.wikipedia.org/wiki/International_Institute_of_Space_Law

http://en.wikipedia.org/wiki/Space_law

http://www.auswaertiges-amt.de/www/en/aussenpolitik/vn/voelkerrecht/weltraumrecht_html

 

The Literature

There are thousands of books published on the topic of space law. In addition, there are numerous organizations which meet, discuss and publish legal opinions on particular issues pertaining to space law. There are thousands of reports and documents regarding space law on the websites of space law institutions.

A few examples:

http://www.mcgill.ca/files/iasl/Bangkok_Proceedings-Part_1_2006.pdf

http://www.iislweb.org/publications.html

http://www.unoosa.org/pdf/reports/ac105/AC105_636E.pdf and http://www.iislweb.org/publications.html

 

Who Owns the Moon/Who owns outer space and its resources?

According the  Outer Space Treaty of 1967 - the  Moon belongs to "the province of mankind" and everything in outer space, and all people have the freedom to “use” outer space and its resources.

http://news.nationalgeographic.com/news/2009/07/090720-apollo-11-who-owns-moon.html

http://business.timesonline.co.uk/tol/business/law/article6792308.ece

 

What's Happening Today?

Outer space is in the process of being developed. Shortly after the fall of the former Soviet Union, discourse began to appear arguing that the outer space treaties should be revised in order to allow private corporations and individuals to own portions of outer space in order to encourage investment, constructions and rapid development incentive activities.

The International Institute of Space Law has firmly stated that outer space cannot be owned by any nation, corporation, private entity of by individuals. However, all people have the "freedom to use" outer space, so long as the use does not amount to "appropriation", and such uses must benefit all mankind. These are the 3 main prongs of the Outer Space Treaty. What these terms mean has been subject to debate and varying interpretations.

In 2004 the Board of Directors of the IISL published a statement to clarify this issue. http://www.iislweb.org/docs/IISL_Outer_Space_Treaty_Statement.pdf

The statement firmly and specifically reiterates the position that no person, no company and no nation can “own” outer space such as the issuance of a deed for a specific parcel of territory, since this would exclude others from having the “freedom” of “use”. However, it has often come up in conversations that uses such a mining of space resources is allowable since arguably there is an abundant supply of natural resources which would still be available to others to also “use”. It is important to point out that the Board of Directors Statement of 2004 included a caveat clause which reads:

Note: Notwithstanding matters covered in the above Statement, the Board of Directors of the IISL recognises that other private activities on the Moon and other celestial bodies are permitted. Article VI of the Outer Space Treaty affirms that non-governmental entities, including private individuals, companies, and organizations, have the right to conduct activities in space in accordance with international space law, and subject to the authorization and continuing supervision of the appropriate State Party. The IISL plans to convene a Workshop to explore issues regarding the relationship of government and private sector in space.

...............................

 

Again in 2009 the Board published an additional statement to further clarify this issue. In March 2010 the United Nations Committee on Peaceful Uses of Outer Space will meet and discuss issues regarding the 5 outer space treaties. People should be curious to see whether or not any of the terms of the 5 outer space treaties will be changed, revised or amended.

2009 Board of Director's Statement

http://www.iislweb.org/docs/Statement%20BoD.pdf

A pertinent portion of this statement reads:

At present, international space legislation does not include detailed provisions with regard to the exploitation of natural resources of outer space, the Moon and other celestial bodies, although it does set down a general framework for the conduct of all space activities, including those of private persons and companies, with respect to such natural resources.

The IISL is of the opinion that a specific legal regime for the exploitation of such resources should be elaborated through the United Nations, on the basis of present international space law, for the purposes of clarity and legal certainty in the near future. The IISL will continue to play an active role in any such discussions as they develop.

The United Nations had a meeting related on several issues including the issue of the 5 outer space treaties from 22 March-April 1, 2010

http://www.unoosa.org/pdf/limited/c2/AC105_C2_L277E.pdf

http://www.unoosa.org/oosa/en/SpaceLaw/index.html

http://www.unoosa.org/pdf/gares/ARES_34_68E.pdf

 

Brief Historical Overview

Although visionaries had written about space travel and space law for many years, it was the Sputnik I launch by the Soviet Union in October of 1957 that triggered the nations of the world to come together within the United Nations and create space law. After nearly ten years of state negotiations, five international space law treaties were enacted to provide the core of space law.

In the early 1980s space lawmaking shifted from the international arena to the domestic sphere. One reason for this shift was the length of time involved with negotiating agreements between the nations of the world. Another reason for this shift was that rapid advances and in space technology and space spending increased drastically between the 1950s and 1980s. The profit potential of space had been proven and new industries were formed. For many, the United Nations international lawmaking machinery was considered too slow and unpredictable to satisfy this new mood. Countries began, the United States in particular, to create domestic space laws to govern newly emerging space industries such as satellite telecommunications, remote sensing, and commercial space launch and transportation services.

International Space Law

It is generally understood that the basic foundation of international space law is rooted in the five (arguably four) international space treaties. The main one being the Outer Space Treaty of 1967 ("The Constitution"). The Outer Space Treaty was well received when it opened for signature in 1967 - it was ratified by 98 nations and signed by another twenty-seven. See Report of the Legal Subcommittee on Its Fortieth Session, UN Committee on the Peaceful Uses of Outer Space, 40th Session, 22(a), United Nations' Document A/AC.105763 (2001).

To print your own free copy of all of the international space law treaties and declarations published and created at the United Nations, go to http://www.oosa.unvienna.org/pdf/publications/st_space_11rev2E.pdf. This has been updated as of 2008.

The United Nations Office on Outer Space Affairs has a searchable index that provides information on the status of signatures and ratifications of the five international treaties governing activities in outer space which have been elaborated under the auspices of the United Nations. Their website is www.oosa.unvienna.org/. Moreover, the status of each treaty can be checked by going to http://registry.oosa.unvienna.org/oosa/treaty_status/index.stm.

 

The five International Space Law Treaties are:

In addition, there are also five UN declarations and legal principles relevant for understanding international space law.

The five declarations are:

The UN Office for Outer Space Affairs at http://www.oosa.unvienna.org/oosa/en/SpaceLaw/links.html has provided these space law links:

Government Organizations

Australia

Brazil

United Kingdom of Great Britain and Northern Ireland

United States of America

  Non-government Organizations

The UN Office for Outer Space Affairs website has provided these clickable treaties and declarations at http://www.oosa.unvienna.org/oosa/en/SpaceLaw/treaties.html.

Click here to download a list of international agreements and other available legal documents relevant to space law. A compilation of the status of International Agreements relating to Activities in Outer Space (as of 1 January 2008) is also available.

 Electronic versions in the following languages:

Hardcopy versions in the following languages:

 

National/Domestic Space Law

By the 1980s, outer space development was no longer considered exotic; it had become a practical, profitable flourishing industry. The have actors changed. Space development is no longer acts of competition between the US and USSR. More countries and private companies are key players in the realm of outer space. Many changes have been facilitated through laws. For example, during the post 1980 period we see more domestic regulations and bilateral agreements. The U.S. was the leader in this trend wherein domestic laws began to guide space ventures. Other nations have begun to do the same. The pattern of space lawmaking shifted from the international to the domestic arena after 1980. A number of domestic laws passed and policy statements have been created encouraging the privatization of the space transportation industry. See Nathan C. Goldman American Space Law: International and Domestic 2nd ed. (San Diego, California: Univelt, 1996); Patrick Salin (June, 2002) "An Overview of US Commercial Space Legislation and Policies - Present and Future" Air and Space Law, Volume 27: 3. George V. d'Angelo, Aerospace Business Law (Westport, CT: Quorum Books, 1994). These include: the National Space Policy (1989), the Commercial Space Launch Policy (1990), the Commercial Space Policy Guidelines (1991), and the National Launch Strategy (1991). These statements demonstrate the US government’s commitment to fostering commercial space activities.  These legal mechanisms do not expressly include the space tourism or private space settlement industries.

Space commercialization has become generally accepted by the international community.  There are several space industries which have officially gone through the process of becoming commercialized and privatized, with the support and backing of the international law-making machinery. Strategic, targeted, specific agenda-setting activities occurred in order for these shifts to occur. Again, examples include communications satellites, direct television broadcasting industries, and remote sensing space transportation and private launch services. Over time, more nations and more private companies became key players in the market. After 1980, there was an increase in domestic regulations governing space activities. The U.S. was the leader in this trend wherein domestic laws began to guide space ventures. Other nations have begun to do the same.

There have been a series of legal tools proffered for the purpose of stimulating investment in space industries. For example, the Invest in Space Now Act Now Act of 2001 (H.R. 2177; 107th Congress, 1st Session U.S. House of Representatives) – proposes to amend the Internal Revenue Code of 1986 in order to “encourage the timely development of a more cost effective United States commercial space transportation industry and for other purpose.  More specifically the Act allows for the purchase of space transportation vehicle provider stock (as defined by the Act) and sets forth separate credit limitations for large and small capitalization providers. The spirit behind the bill is to encourage entrepreneurs and others to develop new, more reliable and less expensive space vehicles. This is believed to be the key to encourage and promote widespread space travel and space tourism and related industries.

Over the last four decades, successive US Congresses and Presidential Administrations have created legal vehicles to facilitate ways to commercialize the space industry by transferring technology developed in government laboratories to private industry and by the creation of policies promoting private financing of commercial opportunities in space. Those efforts have been reflected in a series of policies, legislative initiatives, acts and bills - most notably in satellite communications, remote sensing, launch services and space transportation systems and spaceports.

Several US Laws Encouraging Commercialization

·         Communications Satellite Act of 1962

·         Land Remote Sensing Commercialization Act of 1984

·         Commercial Space Launch Act of 1984

·         The Commercial Space Launch Act of 1984

·         National Space Policy (1989)

·         Commercial Space Launch Policy (1990)

·         Commercial Space Policy Guidelines (1991)

·         National Launch Strategy (1991).

·         Land Remote Sensing Policy Act of 1992

·         National Competitiveness Act of 1992

·         Commercial Space Competitiveness Act of 1992

·         The National Space Transportation Policy of 1994

·         The Hydrogen and Fusion Research Authorization Act of 1994

·         International Space Station Authorization Act of 1995

·         Space Commercialization Promotion Act of 1996

·         Spaceports Equity Bill

·         Act to Encourage the Development of a Commercial Space Industry in the United States, and for Other Purposes of 1998

·         Commercial Space Transportation Competitiveness Act of 2000

·         Space Preservation Act 2001

·         The Invest in Space Now Act of 2001

·         Space Tourism Promotion Act of 2001

·         The Commercial Space Act of 2003

·         Commercial Space Transportation Act of 2003

·         Zero Gravity, Zero Tax Bill 2003

·         Invest in Space Now 2003

·         Spaceport Equality Act 2003

·         Commercial Space Amendments Act 2004

For More Information on National Space Laws in Other Countries

Other countries have followed this trend for generating specific domestic laws to shape space industries. See Van Traa-Engelman, H. L. (1995) "Legal Requirements Constituting a Basic Incentive For Private Enterprise Involvement in the Commercialization of Space Activities" 38th Colloquium Proceedings, International Institute of Space Law. Susanne U. Reif (2002) "Shaping a Legal Framework for the Commercial Use of Outer Space: Recommendations and Conclusions from Project 2001" Vol. 18 Space Policy 157-162.   In addition, the United Nations Office on Outer Space Affairs has information posted at http://www.oosa.unvienna.org/oosa/en/SpaceLaw/national/index.html regarding this issue.

 

Selling Space Real Estate

Most people have heard of the company selling off parcels of The Moon. This controversy needs to be understood in terms of the broader phenomenon. In 1980, Dennis Hope sent letters to the United Nations, the United States government and the government of the former Soviet Union, notifying them that he was attempting to claim ownership of all planets in our solar system, and The Moon (not including Earth).  He assumes that because these governments never responded to his notice that this conveys legal title over to him. Therefore, for about twenty years Dennis Hope has been selling pieces of paper indicating that the purchaser has acquired plots on the Moon, Mars and other heavenly bodies. Sales apparently have been in millions of dollars. This business venture enrages most of the space law community. You may be asking yourself: How can he do this if it is not “legal”? He may be able to do this with littler or no repercussions because he charges a small nominal fee. Hence, authorities are probably of the opinion that he isn’t committing fraud because most purchasers either know or should know that the fee is for the purchase of the paper certificates and the novelty idea, rather than actually believing that they are making a bonafide land purchase. For more information see www.scifidimensions.com/Feb01/dennishope.htm. The real issue is what will happen once people, shareholders, and corporations start touring, mining and settling in territories away from Earth. This will create new legal challenges to existing international space law.

Another case involves a situation wherein Orbital Development (www.orbdev.com) filed a claim of ownership for a particular asteroid named EROS. Sometime afterwards, NASA landed a spacecraft on this asteroid. On February 12, 2001 NASA's unmanned Near Earth Asteroid Rendezvous Shoemaker spacecraft landed on the asteroid known as 433 Eros. A few days later, Gregory Nemitz the company founder, sent a letter to NASA which both congratulated NASA for its successful five-year 160 million mile journey, and charged NASA twenty dollars as parking fees for landing the spacecraft on 433 Eros. Accordingly, Gregory Nemitz notified NASA that OrbDev has owned the property since Nemitz established a claim on March 3, 2000, and filed a Class D property claim with the Archimedes Institute. Nemitz has been quoted as saying "It is the wild frontier up there". "Since there are no laws governing private property claims in Outer Space, the first claimant gets ownership of it." Nemitz is apparently operating under the assumption that the Outer Space Treaty only explicitly prohibits nations from appropriating outer space territories. Many people are making this argument. However, many others argue to the contrary, that international space law prohibits any individual, state, corporation or other entity from claiming that they own outer space territories. For more information see www.permanent.com/archimedes. Also see Kelly M. Zullo (2002) "The Need to Clarify the Status of Property Rights in International Space Law" Volume 90 The Georgetown Law Journal, 2414 at 2424-2425 and Virgiliu Pop (November 2000) "Appropriation in Outer Space: The Relationship Between Land Ownership and Sovereignty on the Celestial Bodies" Volume 16: Issue 4 Space Policy, 275-282.

Private Property Rights

The issue of whether or not private property rights are permitted by the Outer Space Treaty is hotly debated. Space lawyers from all over the world get together several times a year a various international conferences to discuss important legal issues concerning space law. When this issue arising, the room is just short of a barroom brawl situation. Some space lawyers will adamantly argue that private property rights are allowable under existing space law, others will just as adamantly argue that private property rights are not permitted under international space law.  The answer lies in varying interpretations. One the one hand there are those who argue that only national appropriation (exclusive use/taking) by government is prohibited. Others argue that to draw such a distinction is nonsense, and that appropriation is appropriation whether by state or private entity. In support of this particular interpretation, other provisions of the Outer Space Treaty are invoked as establishing this principle of law. Articles VI and VII cover all activities whether undertaken by governmental or non-governmental entities. Article VI imposes international responsibility on states for national activities in space regardless of whether such activities are carried out by governmental agencies or non-governmental entities. Article VII ascribes liability for damages caused by the space objects that a state launches or procures the launching of.  Furthermore, it is argued that “non-national appropriation of outer space would be contrary to general principles of international law which recognize the need for good faith to govern activities on the international plane and to prevent the abuse of rights relating to the use of outer space” Nicolas Mateesco Matte (1984) "Space Activities and Emerging International Law" Report conducted by The Centre for Research of Air and Space Law, McGill University, at. 281.

The Outer Space Treaty of 1967

Companies feel that they have permission to sell parcels of outer space because there are several vague areas of space law. For example, Article I of the Outer Space Treaty states:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.  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, and there shall be free access to all areas of celestial bodies. There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation.

Article II of the Outer Space Treaty states:

"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."

There is a stiff, heated debate over how Article II should be interpreted. The literature contains two differing views. To summarize, as Matte explains "it has been argued that Article II of the Outer space Treaty expressly prohibits national appropriation (emphasis added) as opposed to individual appropriation or acquisition by private association or an international organization". Consequently, "an individual [or private corporation] . . .  could lawfully appropriate any part of Outer Space". See Nicolas Mateesco Matte (1984) "Space Activities and Emerging International Law" Report conducted by The Centre for Research of Air and Space Law, McGill University, p. 279-281. Many space lawyers accept this interpretation of Article II. See Pat Dasch, Michael Martin Smith, and Anne Pierce Director of Programs, National Space Society (1999) “Conference of Space Property Rights: Next Steps", p.174-178 and Wayne White, Jr. "Implications of a Proposal for Real Property Rights in Outer Space" p. 366-372, Proceedings of the 42nd Colloquium on the Law of Outer Space. See also Wayne White, Jr. "Proposal for a Multilateral Treaty Regarding Jurisdiction and Real Property Rights in Outer Space" p. 245-253, Proceedings of the 43rd Colloquium on the Law of Outer Space, 2000.

However, many space lawyers hold opposing views. The counterargument being that national appropriation includes all forms, including private appropriation. See P.M. Sterns and L.I. Tennen (2002) Privateering and Profiteering on the Moon and Other Celestial Bodies: Debunking the Myth of Property Rights in Space” World Space Conference Paper No. COSPAR 02-A-01933, Houston Texas, October, 2002; Sylvia Ospina (2002) "The Concepts of Assets and Property: Similarities and Differences, and their Applicability to Undertakings in Outer Space", Proceedings of the 45th Colloquium on the Law of Outer Space; Armel Kerrest (2001) "Outer Space: Res Communis, Common Heritage or Common Province of Mankind" Proceedings of the 10th ECSL Summer Course on Space Law and Policy, University of Nice, France (August 27 - September 8, 2001).

 

While there is disagreement on these types of specific issues, there is agreement on the three principles relevant to the use of outer space. Accordingly, existing space law – treaties, declarations and resolutions and customary international law, contains several ruling principles: “non-appropriation”, “freedom of use” and uses of outer space must be for "peaceful purposes". Space law does not answer the question of whether non-appropriation is to be given more deference than freedom of use or vice versa. To complicate things further, both principles are to be interpreted under the umbrella of being for the “benefit all mankind”. See Katrin Nyman Metcalf, Activities in Space Appropriation of Use? (Uppsala: Lustus Forlag, 1999). None of these three controlling principles are actually defined. Even worse, there are varying interpretations among the space law experts on how they “should” be defined. This future conflict has gone unaddressed in the literature.

 

About The Moon Treaty

Only nine states (Australia, Austria, Chile, Mexico, Morocco, The Netherlands, Pakistan, Philippines and Uruguay) have ratified it and five states (France, Guatemala, India, Peru and Romania) in addition have signed but not ratified. It only took five nations to enter it into force, however it opened for signature on December 18, 1979 and took five years to get the five requisite signatures. Since the Moon Treaty has garnered such a low level of international support, it is arguably not part of international space law. Some space law experts have reasoned it is "obviously unacceptable". For example, see Eilene Galloway’s, "Guidelines for the Review and Formulation of Outer Space Treaties", Presentation at the International Astronautical Federation 41st International Colloquium on the Law of Outer Space, Melbourne, Australia, at 2, October 2, 1998.

Although the Moon Treaty of 1979 in generally ignored by most of the spacefaring nations, the issue of whether or not private property ownership is allowed according to international space law tends to shape much of the discourse and debate. International space law lacks specificity and this is the subject of much debate and discourse production. The Convention on The Moon Treaty arguably is not part of international space law because of its lack of general international acceptance. It only took 5 nations to sign and ratify it in order for it to enter into force. Only 9 states have signed and ratified it. Five others have signed but not ratified it. Still compared to the Outer Space Treaty, which was well received and signed and ratified by 96 nations, and signed by another 27 nations, it was not generally acceptable to the nations of the world. This is another reason space law is vague and unclear.

 

The Common Heritage of Mankind Principle

The Common Heritage of Mankind principle provides that certain property shall be treated as community property – it cannot be owned by any person, state or other entity or combination of entities. The Moon Treaty, which is arguably not a part of international space law due to a general lack of acceptance, explicitly contains the CHM principle. The Moon Treaty explicitly designates the Moon and its natural resources as part of the CHM. Contrarily, The Outer Space Treaty does not contain the CHM principle. Instead it contains the “Province of all Mankind” principle. This was the result of negotiations and politics. The wording was drafted very carefully so as to persuade both the US and the former Soviet Union to sign the treaty. The concern of the day from 1957 (Sputnik) to 1967 was that either of the superpowers might colonize outer space, sparking a WWIII. This particular wording was apparently agreeable to both superpowers- the both signed.

Links:

http://www.oosa.unvienna.org/pdf/sap/2005/nigeria/presentations/05-01.pdf

http://www.iislweb.org/docs/2002%20IISL%20REPORT%20HOUSTON.pdf

http://www.saao.ac.za/~wgssa/archive/as12/momoh.pdf

http://www.daviddfriedman.com/Academic/Course_Pages/21st_century_issues/21st_century_law/space_Law_03.htm

http://en.wikipedia.org/wiki/Space_law

http://www.law.berkeley.edu/journals/btlj/articles/vol4/Danilenko/HTML/text.html

http://spacepolicyonline.com/pages/index.php?option=com_content&view=article&id=615:s-neil-hosenball-former-nasa-general-counsel-and-moon-treaty-negotiator&catid=99:news&Itemid=92

http://www.oosa.unvienna.org/pdf/pres/lsc2009/symp00.pdf

http://www.iislweb.org/docs/2004_IISL-ECSL-report.pdf

Eilene Galloway

http://www.spacepolitics.com/2009/05/05/eilene-galloway-rip/