Problems of the Cosmos: Issues persisting in the laws of the Outer Space in an Era of Commercialisation

Introduction

Outer Space on the outset is a large vacuum of extraterrestrial rocks, debris and gases that is yet to be fully explored. However, it is far away from being a lawless void of matter. Space is governed by various international conventions. However, in this era of rapid “Space Commercialisation”, where multi-billionaires are planning to send roadsters in space, even setting up their own space transportation services, there is a strong need of developing these conventions to assist legal practitioners resolve disputes that arises or may arise through these services. This piece would analyze the wider scope of all the premier space legislations to determine the necessity of amendments in the era of global Commercialisation and space privatization.

Outer Space Treaty 1967

Activities of outer space are primarily governed by the Outer Space Treaty of 1967. The treaty was formulated during the cold war and was ratified by 111 countries. One must take note that during this period, only the Soviet Union and the USA had space exploration capabilities. The treaty broadly explains the governing principles of the Outer Space, however, fails to clarify multiple definitions that are still a cause of dispute amongst space trotting nations. Article 9 of the treaty talks about peaceful exploration and with due regard to the interests of the other states but does not specify both peace purposes or due regard. While it specifically prohibits placing nuclear weapons or weapons of mass destruction anywhere in space, it does not prohibit the use of conventional weapons in space or the use of ground-based weapons against assets in space. Furthermore, it is also unclear if some weapons – like China’s new nuclear capable partial-orbit hypersonic missile – should fall under the treaty’s ban. Such loopholes in the treaty calls up for immediate redressal in case of a military conflict that might get operated through space.

Moreover, ICJ in 1996 while giving an Advisory opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict noted “A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons” But also noted that “there is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons.”

It also exempts space from national appropriation, a loophole which a lot of private companies like Lunar Land has used to sell pieces of land on celestial bodies like moon as they are exempted from a National Characteristic and do not fall under the ambit of a ‘country.’ Outer Space Treaty further contradicts itself while denouncing space from any kind of authority yet putting a responsibility on nations under Article 6 of the treaty which talks about international responsibility of a state’s activity in space. The treaty has merely laid out a minimum set of principles for countries to follow. How those rules are executed is decided by each nation that’s signed the treaty.

Space Debris Accumulation

Space Debris or Space Junk is the accumulation of hundreds and thousands of ‘dead’ satellites or parts of them which stopped functioning or the discarded material from launch vehicles such as rockets that get left behind, to roam around in space. Since this junk material floats around space, it often encounters satellites or even Space Stations risking collision. Space debris can also come from explosions in space or through missile tests to destroy satellites. In the era of commercialisation, there are countless broadband companies, sending constellation satellites (group of many small satellites) in the LEO (Lower Earth Orbit) of the earth, significantly increasing the risk of debris collection and collision. NASA has voiced “substantial concerns” about such constellations saying that such satellites posses a threat and security risk to future manned and unmanned space missions. It is also conveyed by the Space Regulatory Authority that such accumulation of junk may render an orbit completely out of use.

This accumulation of Space Debris accounts contamination of not only space’s atmosphere but pollutes earth’s orbital and atmospheric environment as well which not only violates Article 9 of the Outer Space Treaty but also contradicts principles of other conventions as well. Such as that of United Nations Environment Programme which calls for a pollution free planet and advocates for the prevention of environmental harm which are further established by Declaration of the United Nations Conference on the Human Environment (Principle 21) and Rio Declaration on Environment and Development (Principle 2). The Pulp Mills case decision clearly confirms that the State’s obligation of prevention of Environmental Harm is one of the part of its due diligence practice.

However, these issues are not addressed in any of these premier space treaties, considering they all were drafted in a pre-commercialisation era. Space Debris Mitigation is one of quintessential manoeuvres of modern time as described by UNISPACE and in absence of a space traffic norm, such exercise is not achievable at the outset.

The Registration Convention 1976

The Registration Convention of 1976 demands nations to register their space assets by giving adhering to the following norms:

i) the Name of launching State(s);

(ii) a designator or registration number of the space object;

(iii) the date and location of the launch;

(iv) the basic orbital parameters; and

(v) the general function of the space object.

First and foremost, there are two international registries for states to report their space objects. Resolution 1721 B created a registry in 1962. When the Registration Convention came into force in 1976, a second registry was created to comply with the requirements in that treaty. On top of these, there are myriad national registries. Consequently, no one registry has a complete list of registered space objects. Any benefit to traffic management and safety is undermined by an incomplete list.

Moreover, United Nations General Assembly in 2007, through a resolution, increased the number of scopes that a country should follow while registering their space asset. The Convention, however, stood unamended. This shows how inconsistent it is with the changing times. Moreover, this duplicity of law creates dubiety case of dispute redressal where one party has prescribed to the 1976 Convention and the other side has taken the recourse of the 2007 UNGA guidelines.

The Liability Convention 1972

The convention is considered as an extension of the Outer Space Treaty as it defines liabilities of space activities that are attributable to various states. Article 2 of the convention states that “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 flight.” However, this clause may cause a legislative hurdle in case of satellite collision or a space accident involving different state parties. Although the succeeding article defines the scenario of joint liability, it requires the absolute liable state to justify negligence on part of the other party. The convention however fails to take in consideration case of sudden collisions due to the accumulation of space debris or atmospheric re-entry of space debris.

In such scenarios, the liability convention can incorporate assistance from the meteorological departments of states that are now capable of defining atmospheric re-entries where legal disputes can be resolved by reading the convention along with Article 5 of the Rescue Agreement 1968 which talks about atmospheric re-entries of space assets.

In the era of space commercialisation where multiple stakeholders are involved in space exploration, the liability convention comes as a narrow conundrum of space responsibility, only targeted towards states of national characteristic. It does not deal with incidents related to multiple shareholders of a space company or insolvency-related issues during space launch campaigns, for which space lawyers would take a recourse of UNCITRAL Model Law on Cross-Border Insolvency.

Although the Cape Town Convention of 2002 and the Berlin Space Protocol of 2012 covers the corporate and commercial legal issues arising out of space insolvency¸ being a premier legislation covering for international accountability for space activities, the Liability Convention must also contain provisions pertaining to modern space era.

Conclusion

An ever-increasing era of globalisation not only demands these premier laws and legislative authorities to be amended and changed in accordance with it but raises a concern onto whether the states are obligating to International Law while overviewing the process of space privatization. With multiple stakeholders joining the space race and terms related to corporate accountability and liability being deliberated upon through various dialogues and conventions, it is now time for space law experts, space exploration regulatory agencies, government and non-governmental bodies to sit and decide on the following contentions:

  • Deliberating the possible outcome of multistakeholder involvement in outer space exploration and confirming responsibilities to reduce excessive burden on states.
  • Analysing the possibility of state warfare and make a separate legislation to prevent, protect or negate the process of space militarisation.
  • Decide upon the viability of UNISPACE recommendation on space debris mitigation to ensure a cleaner Outer Space for future planned missions.
  • Channelise regular sessions through UNGA (General Assembly) or UNOOSA (Office of Outer Space) to monitor and facilitate new players in the space sphere.

The Outer Space, which was earlier a luxury to witness, is now accessible to plethora of entities and so the time to take a call on amendments and modifications is more than ever.

(This article is written by Yash Bhatnagar. The author is a third-year student at Dr. Ram Manohar Lohiya National Law University, Lucknow)

CITE AS: Yash Bhatnagar, ‘Problems of the Cosmos: Issues persisting in the laws of the Outer Space in an Era of Commercialisation’ (The Contemporary Law Forum, 09 June 2022) <insert link> date of access.

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