• Saharsh Panjwani

Fifty Years of the Outer Space Treaty: Challenges and Need for a New Treaty

INTRODUCTION


The Outer Space treaty, a treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies came into force in October 1967. Currently 110 countries are parties to the treaty.[1] The Committee on the Peaceful Uses of Outer Space (COPUOS) was established in the year 1958. The United Nations Office for Outer Space (UNOOSA) is a body that promotes the peaceful use and exploration of outer space through international cooperation.[2] It works to strengthen the legal and regulatory framework for space activities. It was created to assist COPUOS. Article IV of the Outer Space Treaty, says that states shall not establish military bases, prohibiting the use of testing weapons on the moon and other celestial bodies. Other provisions state that space shall be accessible to all countries, and is exempt from national claims of ownership; countries shall not contaminate or harm space and celestial bodies and that space exploration is guided by principles of cooperation and mutual assistance.[3] It also talks about the nature of astronauts, that they shall be considered as envoys.[4] This treaty is the basis for international space law.

For the past 50 years, the outer space treaty has been the backbone of space governance, but it cannot be expected to fit in the future challenges.[5] With the information age and the importance of defense-based communication, and information sharing, there could be greater prospects for violating the conventions of the Outer Space Treaty.[6] The idea that outer space has been used for peaceful purposes is deeply disingenuous. Indeed, the area just beyond Earth has served as an important region for facilitating potential hostile activity.[7]

There are four other important treaties dealing with Outer Space: The Rescue Agreement, The Liability Convention, The Registration Convention and The Moon Treaty. The outer space treaty acts as a necessary mechanism to prevent increasing conflict in outer space. If profitability of businesses such as asteroid mining and satellite exploration go uncontrolled, the space race could lead to an extension of the geographical bid for power in outer space. The need for establishing Space Law was to ensure the “non-appropriation of Outer Space by any one country, arms control, freedom of exploration and liability of damage caused by space objects”[8]

CHALLENGES AND NEED FOR A NEW TREATY


The Outer Space Treaty has successfully established a legal regime for maintenance of peace and order in outer space. OST, in its 50 years of existence, witnessed many technological and military changes such as the privatisation of space exploration, dangers of the excessive satellite debris, the utilization of satellite technology for unethical breaches of privacy, the emergence of Quantum physics and quantum computing which pose challenges, and there is a need for new treaty as OST does not deal with all these new advancements.

Some current issues such as privatisation in outer space, use of domestic laws and consequent need for their own legal action, commercial space innovation issues, international liability regime to protect space tourists from space vehicle accidents and escalating use of military activities, all of which are related to advancement of technology, are beyond the scope and management of OST. With advancements in technology, there is a possibility of mining asteroids and establishing more advanced defence techniques miles above the earth’s surface.

The term space is used in various ways and each can have a varied legal implication. Hence it is important to use precise language when considering issues of space law. Neither the treaties nor the law exactly define where the atmosphere begins and ends i.e. the edge of outer space. As per Art II of the treaty, no country can claim sovereignty in outer space,[9] but the area remains undefined in law. Private companies developing flights to the edge of space will fly to undefined regions of approx. 100km above the Earth. The US Federal Aviation Administration established a licensing regime for these flights.[10] If any accident occurs in this zone which involves international issues, it is unclear whether the rules of international aviation will apply or the provisions of space treaty will apply. Therefore, it is important to know what space is and how it is defined as different views are possible and each view has a different legal implication.[11]

The outer space treaty is technically binding on the countries which are party to it, but it cannot be practically enforced due to the lack of space policies. The lack of a space law enforcement body, makes the peace and security aspects delicate.[12] The OST says that weapons of mass destruction can’t be used in space and it is to be used for peaceful purposes. It also says that celestial territory such as the moon is not subject to national appropriation, which means no single country can claim them. This challenge was first considered with the Bogota declaration of 1976 when countries attempted to claim ownership of segments of an orbit above their land as a stationary satellite would be there within their borders. They claimed that space did not fall under the definition of “outer space” as per the OST and hence is a natural resource. They claimed geostationary orbits as a natural resource as opposed to regions of space.[13] Though this claim wasn't seen as an attempt to disturb the treaty, it was an attempt to claim rights on the orbits that are around the Earth’s equator or the direction of rotation of the Earth. The countries under these orbits seem to claim the ownership of the orbits.

Commercial (private) activities and aspects in the space are relatively new topics for regulations and they are not covered under the scope of the existing regulations and the existing space treaties which were adopted in 1960s and 1970s.[14] Though some articles are in place related to space, there is no mention of essence, scope, requirements and boundaries for activities related to private or commercial space activities. Article VI of the OST only imposes ‘international responsibility for national activities in outer space’ which includes the Moon and other celestial bodies, whether such activities are carried out by the government agencies or by non-governmental agencies, and also for assuring that national activities are carried out in conformity with the set provisions in the present Treaty’.[15] But Article VI stipulates that states shall authorise, and continuously supervise and monitor all the non-governmental space operations. Hence, appropriate control regimes of private space activities have to be established at the national level. The existing international laws don't give answers to the most important questions raised under the conditions of space commercialisation like ensuring the balance of public and commercial interests among others. But it is essential to encourage and promote commercial activities and at the same time there should be strict laws and there should be more control which ensures that all these laws are adhered to and the fundamental norms and principles of international space law are met. It is more important in all aspects involving tapping and exploring outer space for the betterment of the human race, for the peace process. These should be based on non-discrimination of countries and international cooperation, as well as the new principle of LTS. Technology has developed in such a way that it caught the fancy of state and non-state interests and aspirations in space. One more drawback is that its focus remains predominantly on nations rather than important, effective non-state actors. The registration of space objects is dependent on each nation that has ratified the Registration Convention which shall maintain the register of all of its launches and equipment in space. Though all identifiable objects are to be included, in practice, only launch vehicle stages that are in orbit and payloads in orbit are included. It is upto nations to decide what is to be registered, hence there are variations in its interpretation. It is also up to the nations to forward the information to the United Nations (UN). In case there is no state registry, the state can furnish the UN with information and not assume responsibility for liability. A more uniform reporting of information to the UN can be made through a new treaty.

Article II states that the "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 flight.”[16] Article III establishes fault liability for damage elsewhere than on the surface of the Earth.[17] Article VI of the OST requires that a state be internationally responsible for activities of its citizens in space and must provide authorization and continuous supervision.[18] Even when all these articles are read together, the provisions under them are unlike those as applicable to normal industries or industrial sectors. There might be an accident or damage in space as a result of the accident or the space object may cause damage to a country which in no way is connected to any space programs and where its people are also not connected to the space program. Even in such accidents, the country which is responsible for the space launch or which launched the space program is responsible to pay compensation to the affected country and it is financially liable for the damage. The general policy could be that the companies that are involved in the launch might be made to have insurance as a must and through this insurance make the companies pay or share the damages. But even if these companies are insured in the act or contract to pay any damages, the responsibility of the launching country cannot be skipped and it has to pay the damages.

In other words, we can deduce that the ultimate responsibility in outer space, be it an activity of the government or of a private party, lies with the government of that country. Some questions regarding registration, such as transfer of registry and what shall be the responsibility of a state for damages if a state only provided the payload and does not have any connection with the launch still stand unanswered.

As per Article IX of the OST, all the states have an obligation to “avoid harmful contamination of outer space and avoid adverse changes in the Earth resulting from the introduction of extraterrestrial matter”.[19] Article IX along with Articles I(I), III, IV and VIII cover environmental protection issues. Many space-related activities like satellites, study the Earth’s environment providing information about the global changes and issuing warnings for natural disasters. The collection of data through atmospheric, climate, hydrological and ecological applications[20] is a significant contribution to developing and implementing means to solve environmental or human problems.

The increase of space activity has created a “veritable junkyard of orbital space debris” consisting of defunct satellites, as well as components and tools lost during extravehicular activities.[21] Space debris can be a hazard to spacecraft satellites, where there is a possibility that they can collide with them. This increased number of satellites make space debris a real problem.[22] Neither the UN Space treaty nor space law adequately address this issue. This inadequacy is due to the prevailing uncertainty in the liability for damage caused by space debris and the lack of legally binding treaties or laws. If the damage is caused due to negligence then as per the 1972 Liability Convention the “launching state is liable for damage caused to a space object or to persons or property on board of another state”. But the greater difficulty lies in proving the negligence as there are no systematic space traffic rules. The other difficulty lies in identifying the origin of the debris and hence difficulty in attributing responsibility.

CONCLUSION


We humans increase our presence in any event that has been introduced or discovered. Likewise space is relatively untouched by many nations and as such there would be a rush by a few developed countries to establish their supremacy in one way or another, be it governmental or private commercial activities. On the other hand, the improvement in technology makes many nations advance many space programs like observing the Sun in close quarters, Mars missions etc. Apart from these, many countries are launching their own satellites either by self or through a host country for their defense or for their commercial options. This gradually gets the space more crowded.

As already discussed above, one of the immediate fallouts of space activities, irrespective of nations, is the space debris that is going to be generated and that already is existent along with rapid commercialization of outer space. One other important aspect that is going to evolve as a challenge can be ownership rights. Yet another important aspect to be kept in mind while drafting laws for future challenges is the ability of the law to curb usage of weapons of destruction or prohibit countries from using space programs for wars.

It is hence worth noting that there lies a strong need to ensure a balance between the need to revise, reform and add more teeth to the laws and treaties, and to preserve the matters that are at present safe. Failing this, the existing treaties and laws might fall apart. One wrong move by a single nation is all that is needed to cause a fallout.

[1] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,UNITED NATIONS OFFICE for Outer Space Affairs http://disarmament.un.org/treaties/t/outer_space. [2] About us, UNITED NATIONS OFFICE for Outer Space Affairs, https://www.unoosa.org/oosa/en/aboutus/index.html [3] The Outer Space treaty at a glance,ARMS ASSOCIATION CONTROL, https://www.armscontrol.org/factsheets/outerspace [4] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,UNITED NATIONS OFFICE for Outer Space Affairs http://disarmament.un.org/treaties/t/outer_space. [5] Scott N. Romaniuk, Is the Outer Space Treaty Ready for New Cosmic Challenges? GEOGRAPHICAL MONITOR, ,https://www.geopoliticalmonitor.com/is-the-outer-space-treaty-ready-for-new-cosmic-challenges/. [6] Scott N. Romaniuk, Is the Outer Space Treaty Ready for New Cosmic Challenges? GEOGRAPHICAL MONITOR, ,https://www.geopoliticalmonitor.com/is-the-outer-space-treaty-ready-for-new-cosmic-challenges/. [7]Scott N. Romaniuk, Is the Outer Space Treaty Ready for New Cosmic Challenges? GEOGRAPHICAL MONITOR, ,https://www.geopoliticalmonitor.com/is-the-outer-space-treaty-ready-for-new-cosmic-challenges/. [8] Space Law Treaties and Principles, UNITED NATIONS Office for Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html. [9] Frakes, Jennifer (2003). "The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise?". Wisconsin International Law Journal (21 ed.): 409. [10] Professor Henry Hertzfeld, CURRENT AND FUTURE ISSUES IN INTERNATIONAL SPACE LAW, https://nsuworks.nova.edu/ilsajournal/vol15/iss2/3/. [11]Professor Henry Hertzfeld, CURRENT AND FUTURE ISSUES IN INTERNATIONAL SPACE LAW, https://nsuworks.nova.edu/ilsajournal/vol15/iss2/3/. [12] Scott N. Romaniuk, Is the Outer Space Treaty Ready for New Cosmic Challenges? GEOGRAPHICAL MONITOR ,https://www.geopoliticalmonitor.com/is-the-outer-space-treaty-ready-for-new-cosmic-challenges/. [13] Scott N. Romaniuk, Is the Outer Space Treaty Ready for New Cosmic Challenges? GEOGRAPHICAL MONITOR ,https://www.geopoliticalmonitor.com/is-the-outer-space-treaty-ready-for-new-cosmic-challenges/. [14] Olga Volynskaya, Future space is challenge for international law,ROOM-Space Journal of Asgardia. https://room.eu.com/article/future-space-is-challenge-for-international-law. [15] Olga Volynskaya, Future space is challenge for international law,ROOM-Space Journal of Asgardia. https://room.eu.com/article/future-space-is-challenge-for-international-law. [16] G.A. Res. 2777 (XXVI), U.N. Doc. A/8420 (Nov. 29, 1971), art. 2 http://www.oosa.unvienna.org/oosa/SpaceLaw/gares/html/gares-26-2777.html (last visited Jul. 26 2020). [17] Id. art. 6. [18] G.A. Res. 2777 (XXVI), U.N. Doc. A/8420 (Nov. 29, 1971), art. 6 http://www.oosa.unvienna.org/oosa/SpaceLaw/gares/html/gares-26-2777.html (last visited Jul. 26 2020). [19] Article IX of the Outer Space Treaty. [20] Qu, J. J., Powell, Jr., A. M. & Sivakumar, M., 2013. Satellite-based Applications on Climate Change. 1st ed. Leiden: Springer Atmospheric Sciences [21] EU, 2010. Regulation (EU) No 911/2010 of the European Parliament and of the Council on the European Earth monitoring programme (GMES) and its initial operations (2011 to 2013), Strasbourg: Official Journal of the European Union L 276/1. [22] Dr. Dionysia-Theodora Avgerinopoulou and Katerina Stolis ,Current Trends and Challenges in International Space Law, file:///C:/Users/user/Downloads/Article_Current_Trends_and_Challenges_in_Space_Law%20(1).pdf

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