2 The international legal framework governing space sector
The current international space law has been developed under the auspices of the UN COPUOS and consists of the international customary law, five global space treaties,(1)Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other celestial bodies (Outer Space Treaty), 610 UNTS 205; Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187; Convention on the Registration of Objects Launched into Outer Space, 1023 UNTS 15; The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 672 UNTS 119, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (The Moon Treaty), 1363 UNTS 3. a number of UN Resolutions laying down
Principles for outer space activities, and non-binding Guidelines.(2)UN has adopted several Resolutions on space law topics and COPUOS adopted other instruments such as the Space Debris Mitigation Guidelines and Long-Term Space Sustainability Guidelines. These sources have been central for the work on the proposal for a new Norwegian space law.(3)The Moon Treaty is not ratified by Norway. This article does not discuss the Moon Treaty and the Agreement on Rescue of Astronauts, as these have not been directly relevant for the work on the legal text.(4)However, they are briefly described in the report.
The international governance of outer space takes place at several levels. The global space governance institution, COPUOS, has contributed significantly to the development of the policy on the long-term sustain-ability of outer space and has adopted guidelines on the mitigation of space debris.(5)See fn. 15 above. Many of the practical space sector issues are not clearly regulated at the global level and need to be addressed through bilateral or multilateral treaties, and inter-governmental arrangements. Thus, other international organisations have played an increasingly significant role in the making and governance of space law. Importantly, the European Space Agency (ESA)(6)Multilateral Convention for the Establishment of a European Space Agency, done in Paris on 30 May 1975, 1297 UNTS I-21524. contributes to the formation of space law: it develops its own internal procedures, negotiates international agreements in the space sector and implements international space practices.(7)Francis Lyall and Paul B. Larsen, Space Law: A Treatise, 2nd edition, 2018, Routledge, p. 21. At the same time, there is a growing tendency for the unilateral regulation of space activities at the State level and by space actors not negotiated through the UN system, such as NASA's Artemis Accords.(8)Available at www.nasa.gov/specials/artemis-accords/index.html.
The cornerstone of international space law is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other celestial bodies (Outer Space Treaty) of 1967.(9)610 UNTS 205. Its provisions are developed further and supplemented in four other space conventions.(10)See fn. 14 above. Three provisions in the Outer Space Treaty require particular attention for the purposes of the further discussion.
Firstly, Article VI of the Outer Space Treaty provides that State Parties shall bear international responsibility for governmental and non-governmental national activities in outer space, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. This provision arguably establishes a lex specialis provision on the international responsibility of States for space activities, whereby the State of nationality is directly responsible for State and non-State actors alike.(11)Bin Cheng ‘Article VI of the 1967 Space Treaty revisited: “international responsibility”, “national activities” and “the appropriate state” (1998) 26 Journal of Space Law 7, 15. See also Pablo Mendes de Leon and Hanneke Van Traa ‘Space Law’ in André Nollkaemper and Ilias Plakokefalos (eds) The Practice of Shared Responsibility in International Law (Cambridge University Press 2017) 453–78. Article VI also says that the activities of non-governmental entities in outer space shall require authorization and continuing supervision by the appropriate State Party to the Treaty.
Secondly, Article VII of the Outer Space Treaty provides that States (Parties) that launch or procure the launching of objects into space from their territory or facility are internationally liable for damage to another State Party and its natural and legal persons on the Earth, in airspace or outer space.(12)See Liability Convention cited in fn. 14. Importantly, the launching from a State's 'facility' located outside the State's territory is included in the notion of the liability, alongside the 'territory'.(13)The details liability regime are presented in the Liability Convention (fn. 14). The term ‘space object’ is used in this article in the same meaning as laid down in the space treaties, i.e. as man-made objects such as space rockets and their parts, satellites and other space crafts.
Thirdly, Article VIII (first sentence) provides that "A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body." This provision establishes an important rule that there must always be a State, which exercises effective jurisdiction over space objects, and should be seen in light of Article VI above and the provisions of the Registration Convention discussed further below.
Regrettably, the Outer Space Treaty is vague or silent on a number of central issues. Thus, the notion of "the appropriate State" in Article VI of the Outer Space Treaty is not defined in the Treaty or elsewhere in the space law instruments. In scholarly writings, it is generally construed as a State holding effective jurisdiction over space activities.(14)See, e.g., Bing Cheng (fn. 24 above). The Treaty also does not define a "space object" or "outer space", or what constitutes a "facility" within the meaning of Article VII. It is, in any case, generally agreed that the Treaty's obligations also apply to some of the 'space activities' conducted on Earth and air space.(15)This is confirmed by the overall context of the Treaty and the UN Resolution ‘Recommendations on national legislation relevant to the peaceful exploration and use of outer space’ 68/74 (2013) A/RES/68/74 at 2. See also Cheng (fn. 24) 19. However, it is left to the discretion of States to define the terms and the scope of application in their national laws.
The Outer Space Treaty lays down general duties of States to prevent harmful contamination of the Earth and outer space, as well as to avoid harmful interference with the activities of other States in outer space.(16)Article IX. However, it does not detail out obligations of States with regard to safety, environment and other aspects of space activities. Regrettably, it also does not provide for more specific regulations on space debris. More specific obligations and principles on some of these issues have been developed through non-binding instruments. These instruments have been consulted by the expert committee in its work on the law draft proposal and examined accordingly in the report.(17)See Steven Freeland, Note to Norwegian Space Law Committee on Space Debris, appendix 3 to Right into Orbit (fn. 13), p. 165.
The provisions of the Outer Space Treaty on liability of the launching State and registration of space objects are detailed out in, respectively, the Convention on International Liability for Damage Caused by Space Objects (hereinafter the Liability Convention) and the Convention on the Registration of Objects Launched into Outer Space (hereinafter the Registration Convention).
The Liability Convention provides greater details on the Outer Space Treaty's provisions on liability for damages. It recognizes in its preamble "the need to elaborate effective international rules and procedures concerning liability for damage caused by space objects and to ensure, in particular, the prompt payment under the terms of this Convention of a full and equitable measure of compensation to victims of such damage". The Liability Convention Article I contains a short list of relevant definitions, followed by provisions spelling out the liability of States for damage caused by space objects.
The Liability Convention defines the concept of "damage" as "loss of life, personal injury or other impairment of health; or loss or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organisations" (Article I.1.a). The concept of a 'launching State' means a "State which launches or procures the launching of a space object" and (or) a "State from whose territory or facility a space object is launched".(18)See also the UN Resolution on the application of the concept of the “launching State” adopted on 10 December 2004. As in the Outer Space Treaty, the facility is not defined in this Convention (Article I(c), see also Article V.3).(19)On the notion of ‘facility’ and launches from vessels at sea see Alla Pozdnakova, Oceans as Spaceports: State jurisdiction and Responsibility (2020) 26 JIML. Further, the Liability Convention clarifies that the "term "space object" includes component parts of a space object as well as its launch vehicle and parts thereof." (Article I(d)).
The Liability Convention provides for more detailed rules on the international States' liability for damage caused by space objects. Firstly, it provides 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 in flight" (no-fault or strict liability).(20)Article II. The Liability Convention's provision on no-fault liability goes further than the general provisions of international law on State liability. Secondly, the fault-based regime is envisaged for damage being caused "elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State".(21)Article III.
The Convention also provides for the joint and several liability of launching States, which jointly cause damage to a third State.(22)Articles III, IV and IV. Article VI provides for an exception to liability in cases where damage was caused by gross negligence or intentionally by the claimant State or its natural or juridical persons.
Importantly, the Liability Convention also envisages that its provisions will not apply to damage caused by a space object of a launching State to two categories of nationals.(23)Article VII. Firstly, it does not apply to damage caused to nationals of the launching State itself. Secondly, it does not apply to damage caused to foreign nationals when they participate in the operation of that space object from the time of its launching or at any stage thereafter until its descent, or when they are in the immediate vicinity of a planned launching or recovery area upon an invitation by that launching State.
An unclear issue is whether the liability regime set up by the Liability Convention also extends to cases where the State of nationality of private (non-governmental) actors launching space objects from abroad is considered as being the 'launching State' for the purposes of the Convention. The wording of the Convention appears to include only State launches from abroad, whereas in this author's view a broader logic of the Convention and other international space law instruments may suggest otherwise.(24)However, the scholarly literature is not quite consistent on this issue. The committee discussed this issue but did not draw a conclusion.
The Registration Convention(25)Cited in fn. 14 above. follows up provisions of the Outer Space Treaty and the Liability Convention on the international liability of States for their national activities in outer space. Article I of the Registration Convention contains a list of definitions identical to that of the Liability Convention (apart from the term "damage", which is not defined in the Registration Convention). The "space object" is accordingly defined in the same brief terms as including the component parts of the space object, as well as its launch vehicle and parts thereof" (Article I(b)).
Importantly, the Registration Convention requires that launching States register the space object under a number of conditions. Article II provides that "[w]hen a space object is launched into Earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry." Furthermore, if there is more than one launching State for a space object - not unusual in the contemporary space sector - the Convention requires that these States jointly determine which one of them shall register the object. This decision is "without prejudice to appropriate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof."
An important requirement of this Registration Convention relates to the obligation of launching States to establish a national registry of space objects "launched into orbit or beyond." States may themselves determine the information to be submitted to their national registry of space objects, but Article IV of the Convention lists the information to be sent to the UN Secretary-General.(26)Each State of registry shall furnish to the Secretary-General of the United Nations, as soon as practicable, the following information concerning each space object carried on its registry: (a) Name of launching State or States; (b) An appropriate designator of the space object or its registration number; (c) Date and territory or location of launch; (d) Basic orbital parameters, including: (i) Nodal period; (ii) Inclination; (iii) Apogee; (iv) Perigee; (e) General function of the space object.
The Liability Convention and the Registration Convention do not adequately take into account the present realities of the contemporary space sector dominated by non-State, commercial actors. They also do not regulate situations where the jurisdiction and control over the space object in orbit is transferred to a third (not launching) State or to private actors of a third State.(27)A satellite in orbit may be sold on to new owners, or other operators may take over the control and operation of the satellite. These Conventions' approach to launching States can be basically summed up as 'once the launching State, always the launching State'. The State from whose territory a foreign space object was launched may still be internationally liable for the space object, which is not carried on its registry and which it does not effectively control. As clarified further, the proposed legal text also attempted to tackle these issues through certain national provisions.