INTRODUCTION
Space law relates to the body of laws which govern the conduct of nation-states in outer space including the moon and other celestial bodies. However, its scope cannot be limited to this since there are many space activities conducted from the land. However, for the purpose of clarity, jurists have laid down that space law pertains to space operations conducted in space and from the land. It would not include applicability or uses of space exploration.[1]
For example, launching a satellite is a space operation but receiving its signal for watching a TV show is space use or applicability.[2] The Outer Space Treaty (the treaty) forms the foundation of space laws. It consists of the rules of conduct for its parties in outer space including the moon and other celestial bodies. Its various articles enumerate the basic legal principles of space law, some of which have been discussed below.
BASIC PRINCIPLES OF SPACE LAW
1. EQUAL RIGHTS TO ALL STATES
Article 1 of the Outer Space Treaty declares that all countries shall have equal rights to explore outer space without any prejudices in accordance with international law. This has been commonly referred to as the Freedom Principle. This freedom includes military, civilian and even commercial purposes be it undertaken by the state alone, a private entity and state or by an international organization.[3] It also provides that any discovery in outer space shall be a used for the benefit of all counties irrespective of their economic and scientific developments. Thus, every state has the freedom to explore outer space while it abides by international law which includes the UN charter.
2. PROHIBITION OF NATIONAL APPROPRIATION
Unlike terrestrial land which can be appropriated by various actions, outer space cannot be appropriated. This is because space is void and has no physical manifestation.[4] Thus it is legally impossible to enforce any laws of appropriation. However, “in contrast to earlier legal theory that denied the possibility of appropriation of any space resources, scholars now widely accept that extracting space resources from celestial bodies is a “use” permitted by the Outer Space Treaty and that extracted materials become the property of the entity that performed the extraction.”[5] The United States of America and Lumxembourg, have legislations that provide such property rights. However, the in situ property of the space still cannot be owned and this is supported by State practice, domestic laws, and legal theories.[6]
3. IN CONSONANCE WITH INTERNATIONAL LAW
Article 3 of the treaty provides that the “States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.”[7] This international law includes customary, conventional and other general principles acknowledged by nation-states.[8] The international law is applicable even in the context of outer space to fill up any hollows left while framing the space laws since it would help provide solutions and suggestions to unexplored and unpredicted paradigms of space activities in cases of any lacunae.[9]
4. PROHIBITION OF INSTALLATION OF NUCLEAR WEAPONS AND WEAPONS OF MASS DESTRUCTION
Article 4 states that “States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.”[10] Weapons of mass destruction are generally considered to include nuclear, radiological, chemical and biological weapons. The bare language does not prohibit the installation of other weapons in outer space for military reasons.[11]
The scope of this part of the article is limited by article 4(2) which elaborates that the moon and other celestial bodies must be used by states to the treaty only for “peaceful purposes”. The controversy here is with regards the meaning of “peaceful purposes”. It has been credited with the meaning “non-military”. This means that the moon and celestial bodies might have military weapons but must be used for non-military purposes like research and exploration.[12] The additional condition here is the non-aggressive end of any activity that happens in space.
5. INTERNATIONAL RESPONSIBILITY
Article 6 provides that the states who are parties to the treaty would be responsible for all actions taken by a governmental or non-governmental agency in the entire outer space. However, there must be a “genuine link” between the act/actors and the state, be it in terms of being an agency of the state itself or somehow related to the state’s nationals or its territory.[13] For any confusion, the test of effective control, as laid down in Nicarcagua Case, applies.[14] It also demands conformity by the states with the terms of the treaty. For non-governmental organizations, they must work with the authorization, and under the supervision of the government. In case of activities undertaken by an international organization, the responsibility is upon the organization and states, acting with it and parties to the outer space treaty.
6. STATE CONDUCT
Article 9 of the outer space treaty lays down certain rules of conduct for the parties to the treaty which may be summed up as under:[15]
- The states are expected to act with cooperation and mutual assistance with regards the activities undertaken in outer space including the moon and celestial bodies.
- The states must act with “due regard” to the activities and interests of other states. This due regard may be based on the various technical and regulatory norms developed internationally.
- The states must make proper international consultations if they apprehend that their activities to be conducted in the outer space, including the moon and celestial bodies, can cause harm or interference with the outer space activities of other states.
- The states conducting any studies or exploration in outer space, including the moon and celestial bodies, must neither cause harm to such dimension or to the Earth’s environment.
7. LIABILITY OF LAUNCHING STATE
A launching state is one that launches or procures launch of an object into outer space including the moon and other celestial bodies. This also includes states which offer their territory or some facility for such launches. These launching states bear the responsibility of any damage caused to other states that are parties to the treaty. This would also include their natural or juridical persons and the damage may be caused by such object or its components in outer space or on Earth.[16]
In context of the same, the Liability Convention plays a crucial role. It encapsulates situations where there are multiple launching states. The liability convention together with the treaty lays down that invocation of the responsibility is upon the state which suffered damage.
In circumstances where the liability convention is not applicable, for instance where the state party which causes damage is not a party to the treaty, the liability is based on article 6 and 7 of the treaty along with international norms.[17]
CONCLUSION
Thus the basic principles of space law as enumerated above work towards the peaceful and efficient exploration of outer space. The principles tend to adopt a holistic approach and address a variety of issues ranging from the kind of weapons to be installed to the preservation of the Earth. With the growing technology and advancement, the space laws are open for new additions; however, these basic principles might still work as conventional norms, to be taken care of, while undertaking any ventures pertaining to outer space.
[1] Lious de Gouyan Matignon, The Definition of Space Law, Space Legal Issues- 2020 (Mar. 7, 2019), https://www.spacelegalissues.com/space-law-the-definition-of-space-law/#:~:text=Outer%20space%2C%20including%20the%20Moon%20and%20other%20celestial%20bodies%2C%20shall,all%20areas%20of%20celestial%20bodies.
[2] Id.
[3] Ram S. Jakhu, The Fundamental Principles of Space Law and the Relevance of International Law, In Heaven as on Earth? The Interaction of Public International Law on the Legal Regulation of Outer Space, 21, 21-30, 2013.
[4] Id.
[5] Abigail Pershing, Interpreting the Outer Space Treaty’s Non Appropriation Principle: Customary International Law from 1967 to Today, The Yale Journal of International Law, vol. 44(1), 161, 149-178.
[6] Id at 157.
[7] Outer Space Treaty, art 3.
[8] Statute of International Court of Justice, art. 38(1).
[9] LOH Ing Hoe, Article III of the 1967 Outer Space Treaty: A Critical Analysis, International Journal of Academic Research in Business and Social Sciences, vol. 8, no. 5, 334, 330-342, (2018).
[10] Supra Note 7, at 4.
[11] Bin Cheng, The Legal Status of Outer Space and Relevant Issues: Delimitation of Outer Space and Definition of Peaceful Use, Journal of Space Law, vol. 11, 101, 89-105 (1983).
[12] Id.
[13] Liechtenstein v. Gautemala, [1955] I.C.J. 1.
[14] Nicaragua v. United States of America, [1986] I.C.J. 14.
[15] Supra Note 7, at 9.
[16] Supra Note, at 7.
[17] Supra Note 3 at 30.
This article is authored by Vanshika Gahlot, 2ND-YEAR, B.A. LLB (Hons.) student at Rajiv Gandhi National University of Law, Punjab
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