INTRODUCTION TO SPACE LAW – BY ANNE AGI

INTRODUCTION TO SPACE LAW

Written by Anne Agi, LL.M, LL.B, B.L

(Trustee, LEARNSPACE FOUNDATION)

INTRODUCTION

‘Oh look at the Moon, its shining so bright, oh Mother it looks like a lamp in the sky’.

Well, folks, you may now happily tell your mothers, that apart from being ‘a lamp in the sky’, the Moon is an astronomical body orbiting Earth as its only natural satellite. The rotation of the Moon is synchronized with the Earth, which means that the Moon does its rotation following the Earth. It is the brightest object in the sky after the Sun and its gravity pulls at the Earth, causing predictable rises and falls in sea levels known as tides, and No, there is no old woman up there with an axe breaking up firewood! (sorry, I couldn’t resist that!)

The Moon, stars and celestial bodies, in general, have become very vital to our lives. The resources in the Moon have been discovered to be of immense benefits to man. Solar power, oxygen, metals and asteroids are abundant resources on the Moon.Lunar surface rocks and soils are rich in potentially useful raw materials such as magnesium, aluminium, silicon, iron and titanium. Titanium and aluminium alloys can be used for structural components, and silicon-based photovoltaic cells for solar power.Helium-3 (He3) is gas that has the potential to be used as fuel in future nuclear fusion power plants. There is very little helium-3 available on the Earth. However, there are thought to be significant supplies on the Moon. Several governments have subsequently signaled their intention to go to the Moon to mine helium-3 as a fuel supply.

In addition, so much of our modern lives are governed and supported by space activities, from telecommunications to health and the environment, to GPS-enabled services. It could actually be argued that space might be next step in human evolution and technological development.Space is the new frontier. It is the future of humanity.

With the possible potential of the untapped resources in space which can be mined, many turn their attentions skywards, because it now appears that the celestial bodies in space may indeed be like diamonds in the sky.Well, if that be the case, we lawyers just have to get our foot in the door! No one’s doing anything up there without us, thank you very much!

With the knowledge that space resources can be profitable, there has been an increase in space visitation and exploration.

The increase of space activity has created a junkyard of orbital space debris. Humans are now leaving biological beings and debris on the moon as a result of the function of satellites, components and tools lost during extra-vehicular activities. This space debris can create navigation hazards to operations and spacecraft satellites in orbit where there is increased possibility of collision with functioning satellites or interference with the transmission. The number of increasing objects that orbit in outer space as debris is a real problem as they are in millions and this increases the risk of outer space being contaminated by radioactive and other harmful substances. This makes space debris a serious environmental threat in outer space. These hazards may not affect the particular operations which cause them but endanger the outer space and a range of terrestrial activities.

The first biological intrusion on the Moon started with Apollo when US astronauts left their excrement bags on the moon; because they wanted to get home safely, they jettisoned as much dead weight as they could. One small step for man and a giant leap for mankind… at the takeaway price of a bag-of-shit!!!This is a clear pollution of the heavens, quite apart from all the orbital debris we leave floating around up there.

In 2018, Japan ran an experiment, landed some very basic small microscopic animals on the Moon and left them there. China also once ran an experiment on the far side of the Moon where she actually grew lettuce seeds and even silkworms.

Is it okay that these ‘foreign bodies’ were introduced to the Moon?

Should these lettuce seeds and silk worms be returned to earth, what will be their state?

Is it safe that they be reintroduced to earth?

These questions throw up the need to have a planetary protection policy in place to protect us from contaminants coming back from space. The US Apollo astronauts are usually put in quarantine for at least two weeks when they return to earth, sometimes a month. This is the United States ensuring that contaminants from space are not introduced to earth.

The international community on its part must have policies in place to protect man as we make incursions into space. Right now, space is for everybody. No nation can own property in space. No nation can make any territorial claim in space; everyone can explore space and its resources. However, when States and their nationals decide to mine steroids from the Moon, the international community has to have the right rules and regulations and laws in place so that everybody who would like to mine these asteroids can get the benefits of those resources to all of humanity.

We must be careful to ask ourselves whether there are biological things happening on Mars and other planets that we have not had a chance to know much about and how they will affect us if disturbed or brought back home. We must also be careful how we make incursions into space so that we do not interfere with the natural order of things.

If somebody had interfered with the evolution of the earth, for example, perhaps we would not all be here.

There is an old saying: The turkey learns its fate by watching the death of the chickens in its coop; it speaks of learning from the mistake of others. Seeing as how polluted earth and its seas have become even with strict anti-pollution laws in effect, one can easily imagine what mayhem space would be left in without guidance.

It is therefore necessary to have a balance in terms of our curiosity to discover more and mine resources to help us and keeping the celestial bodies safe. We must be careful to know what we can take or should not take, how intense we can be etc. The key to all of these is space law and policy: finding that balance and having an open discussion about how activities in space should be conducted, what can be moved into space and what can be taken out, back to earth.

WHAT IS SPACE LAW?

Space Law is defined as the body of laws governing space-related activities, encompassing both international and domestic agreements, treaties, principles, conventions, General Assembly resolutions as well as rules and regulations of international organisations. It is that branch of international law which governs space-related activities, including space exploration, liability for damage, weapons use, rescue efforts, environmental preservation, information sharing, new technologies, and ethics, encompassing both international and domestic agreements, rules, and principles.

When we say space law, we are referring to a species of law that  encompasses property rights on celestial bodies, mining rights, the laws of war, criminal law etc. Space law is a very broad field that really embraces everything that we do here on earth as it is translated into outer space. It involves having in place laws, policies and principles for responsible extraction and utilization of natural resources on celestial bodies.

Space Law addresses a variety of matters, for example, the preservation of space and the environment and liabilities for the damage caused by space objects and space debris which occur during launches. It also covers the settlement of disputes and the rescue of astronauts; sharing information about potential dangers in outer space as well as the international cooperation in the use of space-related technology.

There are several fundamental principles guiding the conduct of space-related activities including the notion of space as a province of all humankind, the freedom of exploration, the use of Outer Space by all States without discrimination and the principle of non-appropriation of Outer Space.

Space law is also tightly intertwined within the purview of other fields of law such as administrative law, intellectual property law, arms control law, insurance law, environmental law, criminal law and commercial law. It is also linked with property rights.

Space Laws/Treaties

The body of space law is really international law. The international law rules and principles of Space Law are embodied in 5 international treaties, a set of principles governing outer space which have been developed by several nations. In addition to these international instruments, many States have their national legislations governing space-related activities.

Of the five space treaties, four of them are pretty widely ratified and the last one, the Outer Space Treaty(called the Magna Carta of space law), is not quite as popular but is really the document that all space lawyers turn to when we consider anything that happens in space.

The 5 Treaties are:

1. The Treaty on Principles Governing the Activities of States in  the exploration and Use of Outer Space, including the Moon and other Celestial Bodies Oct 10, 1966 (The Outer Space Treaty).
2. Agreement on the Rescue of Astronauts and Return of objects launched into outer space entered into force December 3, 1968 (The Rescue Agreement).
3. Agreement governing the activities of states on the moon and other celestial bodies entered into force July 1984  (The Moon Agreement).
4. Convention on International liability for damage caused by space objects entered into force October9, 1973 (The Liability Convention) and
5. Convention on the registration of objects launched into outer space entered into force September 15, 1976 (The Registration Convention).
6. ‘The Outer Space Treaty’: The Treaty on Principles Governing the Activities of States in the exploration and Use of Outer Space, including the Moon and other Celestial Bodies 1966, is otherwise known as the Outer Space Treaty (OST). The treaty was considered by the UN Legal Subcommittee in 1966 and agreement was reached in the General Assembly in the same year (resolution 2222 (XXI)). This Treaty is the foundation of international space Law for signatory nations. The Treaty contains the principles on space exploration as follows:
   1. Space activities are for the benefit and must be in the interest of all nations, and shall be the province of all mankind. (Art I, para 1, OST).
   1. Any country is free to explore the orbit and beyond. (Art I, para 2, OST).
   1. There is no claim of sovereignty in space. Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. (Art II, OST). No nation can own space, the Moon or any other celestial body.
   1. States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner. (Art IV, para 1, OST).
   1. The Moon, planets and other celestial bodies can only be used exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. However, the use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. (Art IV, para 2, OST)
   1. Any astronaut from any nation is an envoy of mankind and a signatory State must provide help to astronauts when needed, including emergency landings in a foreign country or at sea. (Art 5, para 1, OST). In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties. (Art V, para 2, OST).
   1. States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the moon and other celestial bodies, which could constitute a danger to the life or health of astronauts. (Art V, para 3, OST).
   1. Signatory States are each responsible for their national space activities, including private commercial endeavours (carried out by non-governmental entities) and must provide authorization and continuing supervision. (Art VI, OST).
   1. Nations are responsible for damage caused by their space objects and must avoid contaminating space and celestial bodies. (Art VII, OST).
   1. All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may betaken to assure safety and to avoid interference with normal operations in the facility to be visited. (Art XII, OST).

In Article IX, the OST talks of the contamination of outer space and imposes obligations on states to adopt appropriate measures to prevent changes to the space environment. In conjunction with Article IX, Articles I, III and IV of the OST outline the core environmental protections and the importance of maintaining the space environment and protecting it from space debris and nuclear contaminants.

Article IX also provides that “In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance’.

• ‘The Rescue Agreement’: The Agreement on the Rescue of Astronauts and Return of objects launched into outer space otherwise known as the ‘Rescue Agreement’ (RA), entered into force on December 3, 1968. The Agreement, elaborates on elements of articles 5 and 8 of the Outer Space Treaty. Signatories agree to take all possible action to help or rescue astronauts and, if applicable, return them to the nation from which they launched. (Article 2, RA). Additionally, signatories agree to help return to the sponsoring nation any space objects that land on earth outside of the country from which they were launched. (Article 5(3), RA).
• ‘The Moon Agreement/Treaty’: This is the Agreement governing the activities of States on the moon and other celestial bodies which entered into force on July 1984. The agreement states that celestial bodies can only be used for peaceful purposes, (Article III, MT), that the exploration and use of the Moon shall be for the province of all mankind and shall be carried out for the interest and benefit of all nations (Article 4(1), MT) and are a common heritage of mankind (Article 11, MT); that they should not be contaminated, that the United Nations should always be made aware of any station on a non-earth body, (Article 5(1), MT); and that if resource mining on the Moon becomes feasible, an international regime must be established to govern how these resources are obtained and used. (Article 11(5), MT). The United States is not a signatory to the Moon Agreement. The controversial issue is the international regime to govern the exploration and exploitation of resources which maintains that the Moon is the Common Heritage of Mankind and insists on the equitable sharing of benefits derived from the exploitation.

This agreement is a compromise between developing countries and space-faring nations as it accepts the principle of the common heritage of mankind (CHM) along with the confirmation of the freedom of scientific investigative exploration and use of the Moon.

The Treaty reinforces Article 7 of the Outer space Treaty (OST) on the use of the Moon for peaceful purposes only and the aid of astronauts.

The MT gives us guiding principles on the activities of sovereigns in space. There is the language in the treaty about the use of outer space for exclusively peaceful purposes. While this sounds beautiful, the knotty issue is in the interpretation of what it means to use space for peaceful purposes. It has been virtually explained that peaceful purposes only prohibit aggressive use of military force: as long as a State is not engaged in naked aggression, then it is peaceful in its use of outer space.The same definition applies on the surface of the earth. There is another restriction, an absolute prohibition on the stationing of weapons of mass destruction in orbit. (Article 3(4), MT). There is therefore an interesting demilitarization of space.

• ‘The Liability Convention’ (LC) is the Convention on International liability for damage caused by space objects. It entered into force on October 9, 1973. Elaborating on Article 7 of the Outer Space Treaty, the Liability Convention provides that a launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft, and liable for damage due to its faults in space. The Convention also provides for procedures for the settlement of claims for damages.(Article II, LC). This Convention generally outlines international tort Law in Space and expands the principles of liability for damage caused by space objects introduced in the OST.

Two scenarios are envisioned by the Liability Convention (Article IV LC):

1. Where a space object causes damage to the surface of the earth or an aircraft in flight; and
2. Where a space object causes damage to some place other than the surface of the earth i.e. outer space or another celestial body. (Article III, LC).

In the first scenario, a State is held strictly liable for any damage caused by a space object launched even in the face of circumstances that are outside its control. If more than one State is responsible for the launch of the space object, then the States concerned would be held jointly and severally liable for damages.

In the second situation, fault-based liability is applicable.

Under the Convention, there are limited principles of exoneration: Gross negligence or complicity of the other party has to be proved. The Convention provides for a well-defined claims procedure, diplomatic negotiation and a Claims Commission.

• The Registration Convention (RC): This is the Convention on the registration of objects launched into outer space that entered into force on September 15, 1976. This Convention provides for the registration of all space objects by empowering the United Nations’ Secretary-General to open and maintain a space objects register of all space objects as well as nations operating a national registry. To this end, a space object must be registered either with the national registry or register kept by the UN Secretary-General. (Article II and II, RC). The register serves to identify the space object and links it to its State of origin/jurisdiction and monitors its activities.

All the above treaties govern sovereigns in space but there is none that directly governs the activities of humans in space. This is, however, not to say that there is no type of criminal law that applies in space right now against individuals, or that space is a lawless place. This is because even though the treaties that exist govern countries and the activities of countries, they also provide another dimension. The treaties also make States responsible for the activities of their nationals. (Art VI, OST, for example).

To this end, most States have domestic regulations where they carefully watch and regulate the activities of those who plan to launch rockets and objects into space from their jurisdiction. Recently, NASA astronaut Anne McClain was accused of illegally accessing her spouse’s bank account during her stay on the International Space Station, bringing up a variety of legal issues and questions as to how to litigate a crime committed in space. NASA is currently investigating the matter.

CASE LAW: APPLICATION OF THE RESCUE AGREEMENT AND THE LIABILITY CONVENTION

The Cosmos 954

Cosmos 954 was a Soviet Radar Ocean Reconnaissance Satellite (RORSAT) powered by an on-board nuclear reactor. Its mission was to search for and track a US Naval Task Force. It fell from orbit on the 24^th day of January, 1978 and contaminated Canadian territory with debris from its board nuclear reactor.

Canada’s Department of External Affairs referred to Article V of the Rescue Agreement in its first formal communiqué with the Embassy of USSR on February 8, 1978 concerning the crash of the Cosmos 954 on Canadian territory. Canada fulfilled its duties under Article V of the Rescue Agreement to inform the USSR that it had identified the debris as coming from Cosmos 954.

The Canadian Government also claimed the sum of $6,041,174 Canadian dollars but settled for $3,000,000 Canadian dollars for the damage caused by the Cosmos 954. The Canadian government also reserved the right to be compensated for additional damages that may occur in future because of the incident, any costs incurred should a Claims Commission need to be established under the Liabilities Convention and any awards made by the Claims Commission.

Relevance of lawyers in space affairs

Is there any place for lawyers, civil or criminal, in space? What legal frameworks exist for crime committed in space as well as other legal issues currently seen in the space law arena?

Space law admittedly is a developing area. Thus, lawyers are needed in the Space Industry to draft space laws, protocols and policies for their nations and the international community, in corporate international transactions. For example, as early as the 2000s, lawyers drafted the Space Assets Protocol and Cape Town Convention, which created an international regime for the secured finance of satellites, so you could use satellites as collateral.

There are going to be jobs for space lawyers out there as the industry grows, there will be jobs required by the space industry, and then by government agencies that are now short-staffed with space lawyers. They need more good lawyers.

In the academia, lawyers will also be needed to groom space lawyers.

Legal departments  of airports, airlines, aerospace companies, civil aviation authorities need space lawyers.

Business men and capitalists are seeking experienced lawyers to draft insurance and loan contracts between them as investors and space enthusiasts.Investors in the space industry need lawyers to advice them as they engage with aviation companies who build rockets and space infrastructure and equipment.

On the ‘Next Fest’ stage in Los Angeles, California, on September 13, 2007, Google announced the Lunar XPrize, a competition that encouraged private entities to land a rover on the moon. Across the country at NASA’s headquarters in Washington D.C., attorneys were suddenly faced with some of the biggest legal questions they could have ever imagined: What happens if a private company accidentally destroys the Apollo 11 landmarks on the moon?

What if it contaminates bodies in space destroying their scientific potential?

Can private entities own portions of space?

Thirteen years later, the answer remains unclear because of untested laws conceived half a century apart.Should these kinds of issues arise in Nigeria, do we have space law experts to deal with them? If we decide to revamp our national policies on space law, how many of the country’s lawyers are experts in this field to advise.

It is therefore imperative that our Universities begin to train our students on Space Law. Currently, there are only a few schools that give students these opportunities. This ought not to be so. There should be more Universities that have Space Law courses. This is so because as the space industry grows, there will be need for space lawyers.

Conclusion

As your dark and tiny spark, lights the traveller in the dark…

There are a million possible resources in the wide berth of the cosmos waiting to be tapped into, but there are also a million possible hazards lurking in the dark. From silicon and titanium which can easily be found by simply picking through moon dust to the possible advent of extra-terrestrial life forms; the need for stringent laws governing celestial travel and or commerce cannot be over-emphasized.

Though we do not completely know what they are, the gaseous twinklers in the night hold a promise what could be, it is only a matter of time before we are faced with a mass human exodus into the cosmos. As such, preparing for the inevitable is a very wise decision to make.

Our legacy to the next generation of lawyers can only be so good as to prepare them for the legal battles in space that even we are unsure about.

Anne Agi is a legal practitioner, space law enthusiast, member, Women in Aerospace Africa and member and trustee of the LEARNSPACE FOUNDATION. She can be reached on 08057311292. Email: anneagi@yahoo.com