The Space Law Review: International Treaties
The world's first satellite, Sputnik 1, was launched by the former Soviet Union (now the Russian Federation) on 4 October 1957. On 6 April 1965, the United States (US) placed the first geostationary satellite, Intelsat 1, in orbit. From these early steps we now have a significant number of (peaceful civilian) commercial uses of outer space, including: broadcasting; telecommunications (fixed, land and maritime mobile satellite services); positioning navigation and timing, including the global positioning system and the global navigation satellite system; Earth observation; and meteorology. The military also make extensive use of outer space. Today, initiatives such as government satellite communications illustrate that space is increasingly used for the provision of both governmental and commercial satellite services for security and military purposes and governmental applications.
Satellites are by their nature extraterrestrial and extraterritorial. Accordingly, their usage is governed by an extensive international legal framework, under the aegis of the United Nations, made up of treaties, agreements and conventions governed by international law, which may be implemented into national law.
The legal framework governing the use of satellites is also grounded in the allocation of orbital positions (or slots) for satellites, particularly for geostationary satellites, and the allocation and assignment of radio-frequency spectrum to enable communication to and from the satellites, and the related frequencies for terrestrial use of those communications. In relation to orbital positions, satellites in geostationary orbits are in 'fixed' positions approximately 36,000 kilometres above the Earth, and satellites in medium and low orbits operate at lower altitudes.
To enable 'fair and equitable' use of the finite space closely surrounding the Earth, coordination of these positions is based on the need for satellites not to interfere with each other physically, which is important with regard to the radio frequency spectrum (also finite, although some prefer to say 'scarce') used by satellites so as to prevent 'harmful interference' between the services using different spectrum.
The allocation and coordination of spectrum and orbital slots is dealt with separately in Chapter 2 on the International Telecommunication Union (ITU) and access to spectrum.
II UN space treaties
During the Cold War period, there was an increasing emphasis on the development of national military capabilities, especially in the Soviet Union and the US, and the building of intercontinental ballistic missiles using rocket technology. The launch of Sputnik 1 was the catalyst for the space race between these countries, and the concern that outer space could be used for military purposes. This led to the recognition by the international community of the need to put in place a minimal framework for the use of outer space for peaceful purposes.
Following resolutions passed in 1961 and 1962 concerning the peaceful uses of outer space, and a subsequent declaration setting out the principles governing the activities of states in outer space, five treaties were concluded by the United Nations (UN) through its Committee on the Peaceful Uses of Outer Space (COPUOS), which was established in 1959, and now form part of the corpus of international law governing outer space:
- Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1967 (the Outer Space Treaty);
- Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1968 (the Rescue and Return Agreement);
- Convention on International Liability for Damage Caused by Space Objects 1972 (the Liability Convention);
- Convention on Registration of Objects Launched into Outer Space 1975 (the Registration Convention);2 and
- Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979 (the Moon Agreement).
The UN space treaties establish rights and obligations between states parties to the treaties (the States Parties), which bear international responsibility for activities carried out by governmental entities (e.g., national space agencies), commercial entities (e.g., launch service providers, satellite operators, and participants in outer space activities such as suborbital space tourism), and entities conducting other activities in outer space and increasingly on the Moon and other celestial bodies.
The UN space treaties do not directly create obligations on non-governmental entities and it is at the discretion of States Parties to flow some of the obligations under the UN space treaties, such as responsibility and liability in case of damages, down to private commercial parties through the adoption of national space legislation or licensing regimes, or both.
At the international level, four of the five UN space treaties have been widely ratified.3 The exception is the Moon Agreement4 for the reasons discussed in Section II.v. States with launch service capability or with an established national space industry, or those that benefit from both, tend to have ratified the four space treaties.
i Outer Space Treaty
The Outer Space Treaty establishes fundamental rules and principles that govern the exploration and use of outer space. The preamble of the Outer Space Treaty recognises the 'common interest of all mankind in the progress of the exploration and use of outer space'5 and sets out that activities should be carried out 'for the benefit of all peoples irrespective of the degree of their economic or scientific development'6 to 'contribute to broad international cooperation'7 that can lead to 'the development of mutual understanding and to the strengthening of friendly relations between States and peoples'.8
The States Parties to the Outer Space Treaty must comply with its key principles:
- that outer space, including the Moon and other celestial bodies, shall be 'the province of all mankind';9
- that the use of outer space, including the Moon and other celestial bodies, shall be 'without discrimination of any kind';10
- that outer space, including the Moon and other celestial bodies, is not subject to appropriation;11
- that activities in outer space are to be carried out in accordance with international law;12
- that outer space will be used for peaceful purposes, banning the establishment of military bases and installations and the testing of weapons;13
- that States Parties have international responsibility for national activities carried out by both governmental and non-governmental entities and the obligation to authorise and continuously supervise national activities;14
- that there is international liability for damage caused by a State Party that 'launches or procures the launching of an object into outer space'15 or 'from whose territory or facility an object is launched' (the Launching State) (see Section II.ii);
- that a State Party will have jurisdiction and control over a space object that it registers on its national registry;16
- the principle of cooperation and mutual assistance and the obligation on a State Party to carry out activities with 'due regard to the corresponding interests of all other States Parties';17 and
- that activities must not lead to the harmful contamination of outer space or to the environment of the Earth that may result from the 'introduction of extraterrestrial matter'.18
Many of these principles are now considered to be customary international law.
ii Liability Convention
The Liability Convention expands on Article VII of the Outer Space Treaty and introduces definitions for 'space object', 'launching', 'launching State' and 'damage'.
Articles II and III of the Liability Convention establish two concepts of liability:
- absolute (strict) liability for damage 'on the surface of the Earth or to aircraft in flight'; and
- fault-based liability for damage caused 'elsewhere than on the surface of the Earth'.
Liability is imposed on the Launching State of a space object that causes damage. There can be several Launching States. Under Article 1(c) of the Liability Convention, a Launching State includes a state:
- that launches a space object;
- that procures the launching of a space object;
- from whose territory a space object is launched; and
- from whose facility a space object is launched.
Article V establishes joint and several liability for any damage caused by a space object launched by two or more states.
Dispute resolution under the Liability Convention, its practicalities and alternatives
The definition of 'damage' under Article I(a) of the Liability Convention only extends to physical damage and it is unclear if compensation for damage under Article XII of the Liability Convention extends to indirect damage, such as loss of commercial revenues. To date, this has not been tested. The concept of 'fault' under Article III of the Liability Convention is also difficult to prove when damage occurs elsewhere than on the surface of the Earth.
In terms of the dispute resolution procedure set forth under the Liability Convention, a claim for compensation for damage must first be presented through diplomatic channels or through the Secretary-General of the United Nations (the UN Secretary-General).19 However, there is no requirement for the prior exhaustion of domestic remedies.20
Pursuant to the Liability Convention, if the relevant State Party (of the state experiencing damage) does not present a claim for damage, another State Party may present a claim in respect of damage sustained in its territory by a person.21 Should neither the state of nationality nor the state where the damage occurred present a claim, then the state of permanent residence of the damaged person or entity may present a claim.22 This will all be subject to the condition that the injury or damage is not to a national of the Launching State or to someone who is operating a space object.23
The statute of limitations for bringing a claim is one year following the date of the occurrence of the damage or the identification of the liable Launching State.24 If a settlement of the claim cannot be achieved through diplomatic negotiations within a year, the concerned States Parties are required to establish a Claims Commission,25 which will make its decision and determine the amount of compensation payable based on the merits of the claim.26 However, the Claims Commission's decision is only final and binding 'if the parties have so agreed'; otherwise, it will render a final and recommendatory award that the parties are required to 'consider in good faith'.27
An alternative is for a UN Member State to bring the case before the International Court of Justice (ICJ). However, this requires the exhaustion of all local remedies and the ICJ's adjudication power is restricted unless the states (both claimant and defendant states) accept the jurisdiction of the ICJ.
Another alternative is to bring the case before the Permanent Court of Arbitration (PCA) and rely on the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (the PCA Space Rules).28 This allows the claiming party to choose the size of the arbitration panel,29 invoke confidentiality 30 and designate the law or rules of law applicable to the substance of the dispute.31 Most importantly, the PCA Space Rules can be relied on not only by states and intergovernmental organisations but also private entities. Another distinguishing factor is that the awards under the PCA Space Rules are final and binding.32
To date, there have been no cases before the ICJ or the PCA related to international space law.
iii Registration Convention
The Registration Convention obliges a Launching State (as defined in the Liability Convention) to register a space object in 'an appropriate registry which it shall maintain'. This refers to an appropriate national registry,33 which should be established by the Launching State. The relevant Launching State is obliged to supply the UN Secretary-General with information concerning the space object 'as soon as practicable'.34 Where there is more than one Launching State, the states are required to 'jointly determine' which one of them is to register the space object.35 The state that registers the space object in its registry shall retain 'jurisdiction and control' over the object in accordance with Article VIII of the Outer Space Treaty.
Transfer of space objects
Neither the Registration Convention nor any other UN space treaty provides for the transfer of a space object from the national registry of one state to the national registry of another state. This may be required, for example, in relation to the acquisition of an object or the merger or acquisition of a company. Such transfers must therefore, where possible, be dealt with through bilateral or multilateral agreements of the states concerned.
iv Rescue and Return Agreement
During the Cold War, the Soviet Union and the US identified the need for a humanitarian framework to deal with the return of astronauts to their domicile and attempt to deal with the fear of mistreatment or hostage keeping. This led to the Rescue and Return Agreement, which sets out duties for States Parties to assist one another in the rescue and return of astronauts as well as space objects.
The Outer Space Treaty provides astronauts with a special status as 'envoys of mankind'36 and they are to be given 'all possible assistance in the event of accident, distress, or emergency landing'.37 The Rescue and Return Agreement departs from the notion of envoys of mankind and instead refers to 'personnel of spacecraft'.
Under the Rescue and Return Agreement, a State Party is required to immediately:
- notify the relevant Launching State and the UN Secretary-General when it becomes aware of personnel of a spacecraft who have suffered an accident, are experiencing conditions of distress or who have made an emergency or unintended landing under its jurisdiction or on the high seas;38 and
- take possible steps to rescue such personnel and render all necessary assistance.39
The Rescue and Return Agreement also mandates the return of space objects to the relevant Launching State. State Parties to the Rescue and Return Agreement have an obligation to notify the Launching State of the space object when they discover any space objects or their component parts that have returned to the Earth.40 On the request of the Launching State of the space object, the State Party having jurisdiction over the territory on which the space object has been discovered is required to 'take such steps as it finds practicable to recover the object';41 return or hold the space object at the disposal of representatives of the Launching State, which shall furnish identifying data prior to its return;42 and eliminate the possible danger of harm.43 The expenses incurred in recovering and returning a space object are to be borne by the Launching State.
v Moon Agreement
Article II of the Outer Space Treaty sets out the principle of non-appropriation, which states 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'.44 This is repeated in Article 11(2) of the Moon Agreement.
The Moon Agreement, however, creates legal uncertainty by introducing a framework for the exploitation of the natural resources of the Moon and other celestial bodies as it is not clear whether the prohibition under Article II of the Outer Space Treaty extends to the appropriation of resources contained within celestial bodies (i.e., which can be extracted).
What distinguishes the Moon Agreement from the other four UN space treaties is that it introduces the concept that the Moon and its natural resources are the 'common heritage of mankind',45 which is a principle that originates from the 1982 UN Convention on the Law of the Sea in relation to the exploitation of mineral resources in the deep seabed.
The Moon Agreement also sets out that States Parties are to establish an international regime to govern the exploitation of the natural resources of the Moon and other celestial bodies when 'such exploitation is about to become feasible'.46 Pursuant to Article 11(7) of the Moon Agreement, the main purposes of this international regime to be established shall include:
- the 'orderly and safe development of the natural resources of the Moon';47
- the 'rational management of those resources';48
- the 'expansion of opportunities in the use of those resources';49 and
- an 'equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon, shall be given special consideration'.50
Many states see the notion of equitable sharing under Article 11(7)(d) of the Moon Agreement as a hindrance to the exploitation of natural resources of the Moon and other celestial bodies. As a consequence, the Moon Agreement, unlike the other UN space treaties, has not been widely adopted by states and, to date, has not been signed or ratified by any of the major spacefaring nations such as the US, China or Russia.
On 15 May 2020, the US National Aeronautics and Space Administration (NASA) published the Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes 2020 (the Artemis Accords), with the aim to execute an international agreement to establish a set of principles, guidelines and best practices with other states to foster cooperation in the exploration of the Moon, particularly in relation to the US Artemis lunar exploration programme.51
The Artemis Accords outline 10 core principles and best practices to enhance the use of outer space by increasing safety, reducing uncertainty and promoting sustainable use. Signatories to the Artemis Accords must ensure:
- that the use of outer space is for peaceful purposes;
- transparency of information regarding national space policies and exploration plans;
- the development of interoperable systems, such as fuel storage;
- a commitment to emergency assistance under the Rescue and Return Agreement obligations;
- compliance with the Registration Convention;
- the open sharing of scientific data;
- the preservation of the 'outer space heritage';
- that the utilisation and extraction of space resources comply with the Outer Space Treaty;
- the 'deconfliction' of space activities (avoiding 'harmful interference' by respecting established 'safety zones' in outer space); and
- the mitigation of orbital debris.
The Artemis Accords do not intend to replace any of the existing UN space treaties. The preamble of the Artemis Accords affirms 'the importance of compliance' with the Outer Space Treaty, the Rescue and Return Agreement, the Liability Convention and the Registration Convention, 'as well as the benefits of coordination via multilateral forums' (e.g., COPUOS), 'to further efforts toward a global consensus on critical issues regarding space exploration and use'.52
On 13 October 2020, eight countries (Australia, Canada, Italy, Japan, Luxembourg, the United Arab Emirates, the United Kingdom and the US) signed the Artemis Accords to 'establish a political understanding regarding mutually beneficial practices for the future exploration and use of outer space, with a focus on activities conducted in support of the Artemis Program'.53 Subsequently, New Zealand, the Republic of Korea, Ukraine and Brazil signed the Artemis Accords in 2021.
III Principles adopted by the general assembly
In addition to the UN space treaties noted in Section II, the UN General Assembly (UNGA) has adopted a series of declarations and principles relating to the exploration and use of outer space, namely:
- the Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space 1963;
- the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting 1982;
- the Principles Relating to Remote Sensing of the Earth from Outer Space 1986 (the Remote Sensing Principles);
- the Principles Relevant to the Use of Nuclear Power Sources in Outer Space 1992; and
- 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 principles adopted by UNGA reflect and supplement those set out in the UN space treaties. Common themes include the need to conduct activities in and relating to outer space in the interests of all states, the need to act in accordance with international law, the importance of cooperation and mutual assistance, and the international responsibility of states for their national activities in and relating to outer space.
The Remote Sensing Principles are particularly significant given the rise of commercial Earth observation satellite activities, including the commercialised distribution of Earth observation data. The Remote Sensing Principles create important distinctions between primary data (raw data acquired by remote sensors and transmitted to the Earth from space), processed data (the results of the processing of primary data into a usable form) and analysed information (information resulting from the interpretation of processed data). These distinctions have been adopted by regulatory bodies in their laws and policies relating to the ownership and dissemination of Earth observation data.
IV International space station
There are other agreements between states that govern more specific issues such as activities on the International Space Station (ISS).
The following specific instruments govern the conduct of astronauts on board the ISS:
- an intergovernmental agreement concerning cooperation on the ISS between the governments of Canada, Japan, Russia, the US and the Member States of the European Space Agency, signed in 1998;
- four memoranda of understanding (MOUs) between NASA and (1) the Canadian Space Agency, (2) the European Space Agency, (3) the government of Japan and (4) the Russian Space Agency (the ISS MOUs); and
- the Code of Conduct for the International Space Station Crew (CCOC).
The ISS MOUs set out that each 'Partner State' to the ISS must approve the CCOC before it provides space station crew. The CCOC establishes a chain of command on-orbit, a clear relationship between ground and on-orbit management, management hierarchy, standards for work and activities in space, and disciplinary regulations. It also provides the ISS Commander with appropriate authority and responsibility.
According to the ISS MOUs, the crew operates as one integrated team with one ISS Commander, who is responsible for the mission programme implementation and crew safety assurance on board the ISS.
Crew disciplinary policy is developed by the Multilateral Crew Operations Panel, which also has the power to address violations of the CCOC and impose disciplinary measures. This policy applies to any person approved for flight to the ISS, including both expedition crew and visiting crew, from the moment each is assigned a specific mission until the post-flight activities related to the mission are completed.
The ISS Commander is the highest authority among the ISS crew members on-orbit. The ISS Commander is in charge of on-orbit management and the flight director is in charge of ground management. The ISS Commander works under the direction of the flight director and in accordance with the flight rules. However, the ISS Commander is entitled to change the daily routine of the ISS crew members to address contingencies, perform urgent work associated with crew safety and the protection of ISS elements, and conduct critical flight operations. Otherwise, the ISS Commander should implement the mission as directed by the flight director.
V Space sustainability and space traffic management
Although space debris is not specifically dealt with under the Outer Space Treaty, or the other space treaties, at an international level various sets of voluntary guidelines and standards provide guidance on space debris mitigation. These have been issued by the Inter-Agency Space Debris Coordination Committee (IADC), the International Organization for Standardization (ISO), the UN and the ITU.
The first international guidelines on space debris mitigation were the IADC Space Debris Mitigation Guidelines (the IADC Guidelines)54 published by the IADC in 2002. The IADC was initially established in 1993 as an intergovernmental forum of space agencies 'for the coordination of activities related to the issues of man-made and natural debris in space'. The creation of the IADC coincided with the addition of space debris to COPUOS's main agenda for the first time in 1994 and the publication of the first national space agency Orbital Debris Mitigation Standard Practices in 1995 by NASA.55 The IADC Guidelines were presented to COPUOS in 2003 and have been revised three times, in 2007, 2020 and 2021.
In 2007, COPUOS endorsed the UN's first Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space (the UN Guidelines).56 The voluntary UN Guidelines were modelled on the technical content and definitions set out in the IADC Guidelines but require a higher degree of compliance and risk management. The UN Guidelines cover seven key principles:
- limit debris released during normal operations;
- minimise the potential for break-ups during potential operational phases;
- limit the probability of accidental collision in orbit;
- avoid international destruction and other harmful activities;
- minimise potential for post-mission break-ups resulting from stored energy;
- limit the long-term presence of spacecraft and launch vehicle orbital stages in the low-Earth orbit region after a mission; and
- limit the long-term interference of spacecraft and launch vehicle orbital stages with geosynchronous Earth orbit after a mission.
After the publication of the IADC Guidelines in 2002, a working group was established by the ISO to transform the IADC Guidelines into international standards. This resulted in the ISO's Space Debris Mitigation Standards 2010,57 with the aim of ensuring that space debris mitigation considerations are incorporated into the design, operation and disposal of satellites. These standards adopt a hierarchical structure: at the top, ISO 24113:2010 Space systems – Space debris mitigation requirements (ISO 24113)58 details the high-level debris mitigation requirements; below ISO 24113, there are a series of lower-level standards and technical reports and specifications, outlining further, detailed requirements and the means of implementing ISO 24113. The ISO standards are continually revised, most recently in 2019.59
Also in 2010, the ITU Recommendation S.1003.2 Environmental protection of the geostationary-satellite orbit60 was published. This voluntary ITU Recommendation outlines the guidance of the ITU-R Assembly for the Member States of the ITU regarding sustainable use of the geostationary-satellite orbit (GSO), and provides advice as to disposal orbits for satellites in GSO.
A continued commitment by COPUOS to sustainability in space was demonstrated by the development of the UN's Long-term Sustainability Guidelines 2019 (the LTS Guidelines).61 This was the result of a multi-year project to develop a set of international guidelines to recommend best practices that states could follow based on the efforts of the COPUOS Working Group on the Long-term Sustainability of Outer Space Activities. The LTS Guidelines are intended to ensure the long-term operational stability and safe environment of outer space. The LTS Guidelines comprise 21 voluntary, non-binding guidelines that address:
- a policy and regulatory framework for space activities;
- the safety of space operations;
- international cooperation, capacity building and awareness; and
- scientific and technical research and development.
States are encouraged by COPUOS to take measures to implement the LTS Guidelines nationally.
VI Future of the UN space treaties
Although many countries recognise the need to update the UN space treaties to reflect emerging innovative activities such as space debris removal, in-orbit servicing and space resources utilisation, decision-making in COPUOS requires consensus among all Member States. As at 2019, there are 95 members of COPUOS,62 which means that harmonised understanding is hard to achieve in the subcommittee meetings. It is therefore unlikely that another treaty will be drafted and negotiated in the near future, or that the current UN space treaties will be updated.
1 Joanne Wheeler MBE is the managing partner at Alden Legal Limited. The author wishes to thank
Emily Tout and Elise Feider at Alden Legal for their assistance with this chapter.
2 The Registration Convention was adopted by the General Assembly in 1974, opened for signature in 1975 and entered into force in 1976.
3 As at 1 January 2021, 111 states have ratified, accepted or approved accession or succession to the Outer Space Treaty and 23 states have signed the Outer Space Treaty; 98 states have ratified, accepted or approved accession or succession to the Liability Convention and 19 states have signed the Liability Convention; 70 states have ratified, accepted or approved accession or succession to the Registration Convention and three states have signed the Registration Convention; and 98 states have ratified, accepted or approved accession or succession to the Rescue and Return Agreement and 23 states have signed the Rescue and Return Agreement.
4 As at 1 January 2021, 18 states have ratified, accepted or approved accession or succession to the Moon Agreement and four states have signed the Moon Agreement.
5 Preamble of the Outer Space Treaty.
9 Article I of the Outer Space Treaty.
11 Article II of the Outer Space Treaty.
12 Article III of the Outer Space Treaty.
13 Article IV of the Outer Space Treaty.
14 Article VI of the Outer Space Treaty.
15 Article VII of the Outer Space Treaty.
16 Article VIII of the Outer Space Treaty.
17 Article IX of the Outer Space Treaty.
19 Article IX of the Liability Convention.
20 Article XI of the Liability Convention.
21 Article VIII(2) of the Liability Convention.
22 Article VIII(3) of the Liability Convention.
23 Article VII of the Liability Convention.
24 Article X(1) of the Liability Convention.
25 Article XIV of the Liability Convention.
26 Article XVIII of the Liability Convention.
27 Article XIX(2) of the Liability Convention.
29 Articles 5 to 10 of the PCA Space Rules.
30 Article 17(6) of the PCA Space Rules.
31 Article 35(1) of the PCA Space Rules.
32 Articles 34(2) and 38 of the PCA Space Rules.
33 Article II(1) of the Registration Convention.
34 Article IV of the Registration Convention.
35 Article II(2) of the Registration Convention.
36 Article V of the Outer Space Treaty.
38 Article 1 of the Rescue and Return Agreement.
39 Article 2 of the Rescue and Return Agreement.
40 Article 5(1) of the Rescue and Return Agreement.
41 Article 5(2) of the Rescue and Return Agreement.
42 Article 5(3) of the Rescue and Return Agreement.
43 Article 5(4) of the Rescue and Return Agreement.
44 Article II of the Outer Space Treaty.
45 Article 11(1) of the Moon Agreement.
46 Article 11(5) of the Moon Agreement.
47 Article 11(7)(a) of the Moon Agreement.
48 Article 11(7)(b) of the Moon Agreement.
49 Article 11(7)(c) of the Moon Agreement.
50 Article 11(7)(d) of the Moon Agreement.