Prior to Sputnik, the legal status of outer space was unclear. The conventional wisdom was that the rules that governed airspace would simply be extended upwards to Earth orbit once humanity began operating in that domain. From as early as 1919, international air law provided that a nation's sovereignty extended vertically to the airspace over its territory. If this rule extended to outer space, the Soviet Union would have violated international law by launching Sputnik into an orbit that passed over many countries, including the United States, without permission. Nevertheless, President Eisenhower, knowing that the United States was interested in eventually overflying Soviet airspace with its own spy satellites, tacitly accepted the Soviet Union's right to operate a satellite in orbit over U.S. territory. It was thus established that the rules that governed spacecraft would differ from those that governed aircraft, and the field of space law was born.
The term “space law” refers to the body of international and national laws and customs that govern human activities in outer space. For the last half century, most outer space operations have been conducted by government agencies. Now, however, we stand at the precipice of a new era in spaceflight. With the retirement of the Space Shuttle, private companies are preparing to assume many of the missions traditionally undertaken by governments and to open outer space to the general public.
With these changes, space law will face many new challenges. This article will provide an introduction to space law and some of the issues that the space law community will need to address in the next decade and beyond.
The Outer Space Legal Landscape
The foundational instrument of the outer space legal regime is the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty”). The Outer Space Treaty established a series of broad principles that have been elaborated upon and implemented in a series of subsequent international treaties and national laws. These principles include:
· The exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind;
· Outer space and celestial bodies are free for exploration and use by all States;
· Outer space and celestial bodies are not subject to national appropriation;
· No Weapons of Mass Destruction are permitted in outer space;
· The Moon and other celestial bodies shall be used exclusively for peaceful purposes;
· States shall be responsible for their national activities in outer space, whether carried on by governmental or non-governmental entities;
· The activities of non-governmental entities in outer space shall require the authorization and continuing supervision by the appropriate State;
· States shall retain jurisdiction and control over their space objects and any personnel thereon;
· States shall be liable for damage caused by their space objects; and
· States shall avoid the harmful contamination of outer space.
The Outer Space Treaty was followed by (i) the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, (ii) the 1972 Convention on International Liability for Damage Caused by Space Objects, (iii) the 1975 Convention on Registration of Objects Launched into Outer Space, and (iv) the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, which is now considered dormant because it has not been ratified by any of the major space powers.
In addition to the major treaties, the U.N. General Assembly has adopted several resolutions that are generally followed by the international community on a non-binding basis. These include the 1982 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, the 1986 Principles Relating to Remote Sensing of the Earth from Outer Space, the 1992 Principles Relevant to the Use of Nuclear Power Sources In Outer Space, and the 1996 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. The International Telecommunications Union plays an important role in space operations by assigning positions and frequencies for satellites in geostationary orbit, where most telecommunications satellites are located. The U.N. Committee on the Peaceful Uses of Outer Space administers the major space treaties and advises the international community on space policy matters.
In the United States, each government agency that operates spacecraft is responsible for complying with U.S. law and international treaty obligations. The Federal Aviation Administration (FAA) regulates non-government spaceports and the launch and reentry of private spacecraft under the Commercial Space Launch Act, as amended by the 2004 Commercial Space Launch Amendments Act. Various other federal laws, such as the 1992 Land Remote Sensing Policy Act and International Traffic in Arms Regulations, state contract and tort laws, and decades of commercial practice in the telecommunications, remote sensing and launch services industries also affect government and private space operations.
The Challenges Ahead
The legal regime established by the Outer Space Treaty has been successful in maintaining peace in outer space since the height of the Cold War. However, there are many issues that current space law is not fully equipped to address. The remainder of this article will discuss four of these issues.
Commercial human spaceflight
Humans will soon routinely travel into outer space on spacecraft built and operated by private companies. The first of these flights will be suborbital spaceflights, where the spacecraft launches from and returns to the same spaceport and is in outer space for only a few minutes. By the middle of the decade, private companies are expected to take passengers on orbital spaceflights to the International Space Station (ISS) and privately operated space habitats.
Commercial human spaceflight will raise many complicated legal issues. The FAA is already in the process of establishing licensing and safety criteria for private spacecraft, a process that will continue to evolve as the industry matures. Space companies, legislatures and courts will need to address questions of liability in the event of accidents, the enforceability of liability waivers, insurance requirements, and the sufficiency of informed consent for passengers. Indeed, Florida, New Mexico, Texas, and Virginia have already passed laws limiting the liability of space tourism providers under state tort law.
Earth orbit is crowded. As many as 600,000 objects larger than a centimeter (deadly at orbital velocities) are in orbit, and only about 19,000 of those objects can be tracked as of today. Most of these objects are no longer under control and are classified as “space debris.” Satellites and the ISS are routinely moved to avoid orbital debris, and occasionally the inhabitants of the ISS are required to take shelter in station’s lifeboat as a precautionary measure when an avoidance maneuver is not possible. In 2009, two satellites collided in orbit for the first time. If enough debris accumulates, it will become virtually impossible to operate spacecraft in Earth orbit.
Current space law does not adequately address the space debris problem. Most importantly, liability for damage caused by space debris is unclear. Under the 1972 Liability Convention, countries are liable for damage caused to other spacecraft only if they act negligently. There is no commonly accepted standard for operating spacecraft in a manner to completely avoid the creation of new space debris, so showing that a spacecraft operator acted negligently could be difficult. It may also be impossible to determine who is ultimately responsible for a debris collision since it is difficult to establish with certainty the origin of most space debris. Moreover, because there is no law of salvage in outer space similar to the law of salvage under maritime law, it is technically illegal for one country to remove another country’s debris without permission.
Export control reform
Currently, all spacecraft, regardless of whether they were built for military or non-military purposes, are classified as “defense articles” on the United States Munitions List (USML). This classification means that the transfer of space technologies or any information concerning space technologies to any foreign person or country is tightly restricted under the State Department’s International Traffic in Arms Regulations (ITAR). These restrictions make it difficult for U.S. space companies to compete in the global space marketplace. In fact, foreign companies sometimes advertise their products as “ITAR-free” as a selling point to other non-U.S. companies.
A more nuanced approach to controlling the export of space technologies will be required for U.S. space companies to maintain their leadership in this industry. For example, non-military spacecraft, such as communication and research satellites, can be moved off of the USML and onto the less restrictive Commercial Control List maintained by the Commerce Department for dual-use technologies.
Flags of convenience in outer space
Under the Outer Space Treaty, each country retains jurisdiction and control over its governmental and non-governmental spacecraft. As privately operated spacecraft become more prevalent, countries will need to determine how much regulation is appropriate to impose on their activities.
Some countries might seek to attract private space companies by maintaining a loose regulatory regime. This might create a “flag of convenience” problem where commercial operators register their spacecraft in these countries to reduce operating costs, just as ship operators often register their vessels in flag of convenience countries, such as Panama and Liberia, to take advantage of lower taxes and lax labor and environmental laws. Spacecraft operating under flags of convenience could create safety hazards for their passengers and other spacecraft.
Commercial human spaceflight, space debris, export control reform and flags of convenience are just a few of the challenges that the space law community will face in the coming years. Other issues, such as property rights to outer space resources, will grow in importance as the commercial spaceflight industry matures. Spaceflight lawyers will be at the forefront of helping the space community to meet these challenges and adapt to the new commercial spaceflight paradigm.
Joanne Irene Gabrynowicz, One Half Century and Counting: The Evolution of U.S. National Space Law and Three Long-Term Emerging Issues, 4 Harv. L. & Pol. Rev. 405 (2010)