3.1 Principles of Space Law Regime
Ever since the beginning of space era, various principles have emerged under space law regime through a number of space treaties and conventions. These principles have throughout the development of international space law managed to regulate and govern the actions of the spacefaring nations and have managed to hold the space actors responsible for any violations of international space law principles. The main principles that regulate and manage the spacefaring nations can be bifurcated into the following groups.
Declaration of Legal Principles Governing the Activities of State in the Exploration and Use of Outer Space.
Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting.
Principles Relating to Remote Sensing of the Earth from Outer Space.
Principles Relevant to the Use of Nuclear Power Sources in Outer Space.
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.
3.2 Declaration of Legal Principles Governing the Activities of State in the Exploration and Use of Outer Space
International space law comprises of various principles that regulate space activity. The first set of such principles emerged after the General Assembly resolution in 1963 regarding the exploration and use of outer space. This resolution focused on the common interest of all of the mankind and reiterated that any outer space activity carried out by the spacefaring nations shall be for the benefit and betterment of all of the mankind and that all the nations shall abide by the principle of international cooperation among each other regarding space activities.
3.2.1 Freedom of Exploration and Use
The term ‘exploration’ in simple words can be defined as any activity carried out by man or his instruments for inquiring or observing with an intention to find something. On the other hand, the term ‘use’ in a lawful perspective can be defined as the enjoyment of property for economic or social purposes.
Freedom of exploration is one of the most prominent Legal Principles Governing the Activities of State in the Exploration and Use of Outer Space. This freedom of exploration and use is specifically provided under Article I of the Outer Space Treaty. This principle provides the spacefaring nations with the freedom of access, exploration and use of outer space. The freedom of exploration also provides the nation-States with the right of innocent passage.
This freedom of exploration and use may be utilised by any international organisations or members to the Outer Space Treaty which provides for exploration and use of outer space, including the moon and other celestial bodies. And the responsibility of such exploration and use shall be borne by the international organisations or States parties to such organisations.
3.2.2 For the Benefit of All
One of the most important and unique principles of international space law provides that all space activities conducted shall be for the benefit of all of the mankind. Article I of Outer Space Treaty specifically mentions that “ The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” Even though the term ‘for the benefit of all’ is defined, it is implied that the nation-States shall not use outer space just for their benefits but also for the benefit of all of the mankind.
3.2.3 The Non-Appropriation Principle
The principle of non-appropriation under international space law is one of the main reasons for the successful utilisation of outer space. This principle provides that no State shall claim authority or sovereignty over space or on any celestial bodies and shall not be subject to acquisition under international space law.
The principle of non-appropriation was mentioned on various occasions, and Article II of the Outer Space Treaty provides that outer space is res communis omnium. The treaty provides that the outer space shall not be a subject of ownership and prohibits any sovereign or territorial claims over outer space or any celestial bodies.
Hence, the principle of non-appropriation has indirectly played a prominent role in peaceful exploration and use of outer space and has avoided outer space becoming a topic of controversy and a reason for State conflicts. This principle provides an equal opportunity to every nation to explore and use outer space for the benefit of all of the mankind.
3.2.4 Peaceful Purpose Principle
The UN General Assembly Resolution on International Co-operation in the Peaceful Uses of Outer Space urges the need for international cooperation in peaceful use of outer space. Looking into the need for peaceful uses of outer space the UN set up an ad hoc Committee on the Peaceful Uses of Outer Space in 1958 with an intention to maintain peace and security in the utilisation of outer space.
Though the term peaceful uses is utilised on various occasions by the UN, nowhere under international space law is the term peaceful uses defined. This has led to several contrasting views being raised regarding the meaning and interpretation of the term peaceful uses. Hence the American space jurists interpreted the term peaceful uses as non-aggressive use, while other jurists interpreted it in a narrower sense giving it a meaning of non-military use. The American jurist’s interpretation of peaceful uses is accepted by many authors who define the term as a non-aggressive military use of outer space.
Looking into the interpretation of peaceful uses by American jurists and other jurists, it is usually taken as a non-military use of outer space which is considered to be a better and safer interpretation of outer space. As the main intention of the peaceful purpose principle is to maintain peace and not to affect the security of the States. This interpretation of the term peaceful uses as non-military use was strengthened once the Committee on peaceful uses of outer space was established by the UN and by the adopting of the Outer Space Treaty.
3.2.5 Responsibility and Liability for Space Activities
The Declaration of legal principles deals with regard to responsibility and liability arising out of any space activities carried out either by the nation-States or any international organisations. Article VI and VII of the Outer Space Treaty provide that the States shall be liable for any damages caused to other States while carrying out any space activity. Article VI provides that the State shall be responsible for any outer space activity carried out by the State itself or by any private actors that fall under the jurisdiction of that State. And Article VII provides that the launching State or any State from whose territory the object is launched and any State procuring such launch shall be liable for any damages caused to other parties to the Treaty, injury being either to the nature of the State or any of its juridical persons. And the Convention also provides a wide definition for the term launching State and hence covers multiple States as launching States, and in the case of any damages caused by such launching States, they are jointly and severally held liable.
The responsibility and the liability of the States is further elaborated under the Liability Convention, which provides that in case of damages caused to the surface of the earth or an aircraft in flight by a space object, there is no need to prove the fault of the launching State i.e. the concept of absolute liability is applicable (Article II of the Liability Convention) to hold them liable. But in the case of damages caused elsewhere, the fault of the launching States has to be proved to hold them liable for any damages caused as a result of such fault i.e. the concept of strict liability is applicable (Article III of the Liability Convention). The Liability Convention also defines the term ‘damages’ as “loss of life, personal injury or other impairment of health; or loss of damage to the property of States or persons, natural or judicial, or property of international intergovernmental organisations.” The convention also provides that in the case of damages caused by the space objects belonging to any international organisation, such organisations and the parties to such organisation shall be liable for any damages caused.
The liability convention also provides that the liability shall not be correlated to the jurisdiction or ownership of the space object and the launching State shall always be liable for any damages caused irrespective of time restraint and whether or not they have control over the space object. Similarly, the launching State is liable even when it has renounced the ownership or any authority over such a space object that has caused the damages.
3.2.6 Jurisdiction and Control
The Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space along with the Outer Space Treaty provide that the State in whose name the space object is registered has jurisdiction and control over it. Hence, what is important in determining the jurisdiction and control over a space object is based on its registration and not nationality.
Determining the jurisdiction and ownership over a space object is very much necessary in case any liability arises for damages caused due to such space objects. These provisions provided under Outer Space Treaty are elaborated under the Registration Convention which mentions that the States are obligated to maintain a national register about the space objects launched by them and to furnish such a registry to the Central UN Registry.
3.3 Broadcasting Principles
Ever since the beginning of space exploration, outer space has served various purposes. One such utilisation that has left an everlasting impact on human history is the usage of outer space and artificial satellites to transmit radio signals and for live broadcasting. This use of outer space which remained unregulated during the Cold War was seen as a threat to the sovereignty and internal affairs of the State. Even the Outer Space Treaty had failed to discuss any principles that would regulate direct broadcasting. As a result, the UN took up an initiative to create a set of principles that would manage direct broadcasting by use of artificial satellites. The UN General Assembly Resolution on ‘Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting’ was a result of such an initiative.
The main aim of this resolution was to carry out the activity of direct broadcasting in such as manner which is consistent with the sovereignty of the States and to promote mutual exchange of information between the States with emphasis on providing the developing nations with adequate knowledge that would be beneficial to them in cultural, scientific, economic and social ways. The resolution also focuses on building cooperation among States by exchanging information in the interest of peace and security.
These principles regarding direct broadcasting mention that :
Such an activity shall be conducted in accordance with the international law principles.
Every State shall have equal opportunity and rights to conduct these activities regarding direct television broadcasting and shall also have the authority to permit any person or entity under their jurisdiction to do so.
These activities shall work towards building cooperation among the States.
Any disputes arising out of these activities shall be resolved through peaceful settlement as agreed upon by the States.
The States are responsible for their activities carried out regarding direct broadcasting. And in the case of international organisations, the organisation and the party to such an organisation shall be responsible.
The States shall cooperate in protecting the copyrights regarding direct broadcasting and shall do so with a special interest regarding developing States.
States shall inform the Secretary-General of the UN regarding the nature of their activities, and he shall convey such information as relevant to the concerned agencies. This helps promote international cooperation.
And any State intending to establish a satellite service regarding direct television broadcasting shall inform the receiving States about their intentions and shall enter into an agreement with any State that wishes to do so.
3.4 Remote Sensing Principles
The use of artificial satellites grew tremendously after space technology improved drastically. Nation-States started using artificial satellites for various purposes that would deem beneficial to mankind on numerous occasions. One such utilisation was remote sensing that enabled the nation-States to scan the earth from outer space and acquire information regarding various aspects on earth. But this utilisation of outer space raised objections from various States that had reasonable fear that it would be used for unauthorised purposes as the whole of the earth would be scanned using this technology and would probably act as a threat to national sovereignty and its security and peacekeeping.
To address this issue raised by the nation-States, the UN adopted a set of principles known as the ‘Principles Relating to Remote Sensing of the Earth from Outer Space.’ These principles laid down regulatory norms to manage remote sensing activities and duties on the States conducting such activities and to provide certain rights to the States that are being sensed.
These principles on remote sensing have laid down the following norms for the States to abide by :
These activities of remote sensing shall be carried out for the benefit of all and especially for the benefit of the developing countries.
Any remote sensing activity carried out must abide by the norms of international law.
The remote sensing activities carried out by the nation-States shall be in accordance with the Article I of the Outer Space Treaty, which provides that the outer space activities shall be carried out for the benefit of all.
The States conducting any remote sensing activities shall provide adequate opportunities to other States to participate in their activities based on mutual agreements.
The principles provide that the nation-States conducting remote sensing activities shall provide an opportunity through mutual agreements to set up data collection and storage stations along with the facility to process such data collected. And shall also provide technical assistance as required by the other States through mutual agreements. Such provisions to provide assistance by one State to another shall be encouraged by the UN and its agencies through international cooperation.
These principles also mention that States carrying out remote sensing activities shall inform of such activities to the Secretary-General of the UN and shall also provide relevant information regarding such activities to other States with special prominence to developing States.
These principles on remote sensing lay a special emphasis on carrying out the activities with the intent to protect the Earth’s natural environment and protect mankind from any possible natural disasters. And provides that the States having any information about potential harm to the environment and possibility of natural disaster shall forward such information to all the States that would potentially be affected.
The principles state that any data collected after sensing the area that falls under the jurisdiction of another State shall be made accessible to that State whose territory is sensed by the artificial satellites at a reasonable cost as mutually agreed upon by the States.
The principles also primarily focus on building international cooperation by reaching a mutual understanding between the States to carry out remote sensing activities.
In case any responsibility arises out of the remote sensing activities shall be borne by the States operating the artificial satellites and the disputes shall be resolved through established procedures in a peaceful manner.
3.5 Nuclear Power Sources Principles
As space exploration became a frequent event, many of the States started looking for a more reliable source of energy to power their space probes and satellites. The answer to this was to use nuclear power as a source of energy. But with the use of nuclear power, it raised various safety concerns. As possibilities like radiation leak and improper disposal of nuclear waste would cause catastrophic results there was a need for proper regulations and guidelines to use nuclear energy. To address this issue, the UN adopted a resolution on “Principles Relevant to the Use of Nuclear Power Sources in Outer Space” to provide norms for proper use of nuclear energy in outer space. The main aim of this resolution is to minimise the utilisation of radioactive material in outer space and to reduce the risk that it puts forth.
The resolution on Nuclear Power Sources has formed the following principles that the States are deemed to implement:
The norms of international law shall apply to any activity that utilises nuclear power sources in outer space.
The nuclear power sources in outer space shall be used only under inevitable circumstances and if there are no other alternative sources of energy.
The principles focus on protection against radiation and to provide nuclear safety. To do so, the resolution makes it mandatory for the launching States to abide by the highest safety standards and to use such designs as to minimise any possible hazards to the maximum.
The principles also state that the launching State has to make sure to utilise such technology and designs and abide by the international radiological protection guidelines to keep the radiation levels under acceptable numbers in case there is any contamination.
Along with following these safety standards, the States shall also make sure that the designs are capable of performing corrections in case of an incident.
The principles also allow the use of nuclear reactors in outer space only after following strict guidelines. The resolution specifically provides that nuclear reactors may be used in outer space; (i) only on interplanetary missions, (ii) is high orbits, (iii) if the satellites are to be stored in high orbits after their use in lower orbits.
The principles provide that the reactors shall become active only after reaching the designated orbits.
The resolution also provides for the use of radioisotope generators only in case of use for interplanetary missions and low orbit missions only if they are to be stored in higher orbits after they functioning for proper disposal in case need be. And shall also be designed in such way as to withstand re-entry.
The principles also provide that in the case of possibilities of re-entry due to malfunctioning, the launching States are liable to inform the States which would be affected due to the possibility of re-entry and the kind of nuclear power it is carrying and the probable risks.
And in the case of the possibility of re-entry, each State shall cooperate in analysing the situation and inform to the other States the possibility of the risks and provide possible assistance required.
The principles make it mandatory for the launching States to carry out possible safety assessment before the launch.
The launching States shall consult other States about the mission and provide information regarding the same if demanded by other States.
Following the guidelines under the Outer Space Treaty, the States shall bear any responsibility that arises out of the outer space activity using nuclear power sources are conducted.
And in the case of damages caused due to the use of nuclear power sources, the launching States shall be liable to compensate any damages caused to the other States. Be it personal or property damages.
Disputes arising out of these principles shall be peacefully settled as per the established procedures.
3.6 Benefits Principles
One of the most prominent foundation principles of international space is that no States can claim sovereignty over outer space and it has to be used for the benefit of all through cooperation. Developing on these principles, the UN General Assembly adopted a resolution on “Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and the Interest of All States, Taking into Particular Account the Needs of Developing Countries”. Though the idea of international cooperation under international space law is not duty bound but is left to the States to determine the level of cooperation.
It was to strengthen the international cooperation under international law; the UN General Assembly adopted these principles. The resolution provides for the following norms to be adopted by the States:
The International law shall be the ground for international cooperation in outer space activities for peaceful purposes. And it shall be carried out for the benefit of all.
The resolution does not burden the States regarding international cooperation, but rather leaves it to the States to determine the extent of cooperation they want to extend to other States.
The resolution specifically reiterates that special prominence be given to developing nations to strengthen their space programmes and activities through international cooperation by States already having a strong hold on space exploration.
The resolution lays down a set of goals to be achieved to meet the needs of the developing countries regarding space exploration. The goals to be achieved are:
a. Promoting space science and technology along with its applicability.
b. Promoting space capabilities in the developing States.
c. International cooperation through exchange of technology and expertise on mutual agreements.
All the spacefaring nations, agencies and organisations have to adopt an appropriate use of outer space to meet their goals.
The resolution aims to strengthen the role of Committee on the Peaceful Uses of Outer Space in the field of international cooperation and states that the nations be encouraged to contribute to the UN space programme.
3.7 United Nations Treaties on Outer Space
The launch of Sputnik-I started a fierce competition to establish dominance in the field of space exploration between USSR and USA. Even though the idea of need for space law was earlier discussed by various authors, this competition brewing between USSR and USA made the United Nations realise that there was a need for a proper regulatory regime to govern the utilisation of outer space. As a result of this emerged a new era of legal studies known as the space law. The development of space law gradually saw emergence of various UN treaties that regulated space activities. Space law manages vast areas concerning space exploration, areas such as utilisation of outer space, responsibility and liability of space actors, sustainable space development, rescue of astronauts in danger, weaponisation of outer space etc. The international space law consists of five cardinal treaties known as the Corpus Juris Spatialis Internationalis.
3.7.1 The Outer Space Treaty, 1967
The UN looking into the need for a set of principles to regulate space activities adopted “The Treaty on Principles Governing the Activities of States in the Exploitation and Use of Outer Space, including the Moon and other celestial bodies.” The Treaty is regarded as the “Magna Carta” of international space law. The treaty is also known as the ‘Outer Space Treaty’ is the basic legal instrument governing the law of outer space.
The outer space treaty provides the framework for the international space law. It was the outer space treaty that became the ground for the development of basic principles regulating space activities. The treaty through its Articles provides various set of rules that act as the basis of space law.
Under outer space treaty the exploration and use of outer space along with the moon and the other celestial bodies shall always be for the benefit of mankind as a whole and such explorations shall be conducted taking into consideration the interest of all the nation-States. The outer space treaty provides that this can be achieved by considering the space as the province of all of the mankind.
The treaty also provides that no nation-States can forbid the other from taking part in space exploration and states that the outer space, its explorations and activities shall be free and can be conducted by any of the States that wish to do so.
The Outer Space Treaty has been so promptly appreciated because of its prominent set of principles. One such principle under the Treaty provides that no States can claim sovereignty over outer space and that it is not subject to national appropriation by any means. This principle under the Treaty makes sure that the outer space does not become a concern for future conflicts of any sort with regard to the freedom of space exploration. This principle of non-appropriation backs the idea that all the States have the same rights and can perform any space activities as and when they are willing to do so rather than becoming competitors with each other to claim authority over outer space or over any celestial bodies.
The Outer Space Treaty works towards sustainable space development and provides for demilitarisation and peaceful use of outer space. To makes sure that peace and security is maintained in outer space, the Treaty bans placing of any kind of nuclear weapons and weapons capable of causing mass destruction in the orbit, on the moon, the celestial bodies or in any other manner that would threaten the peaceful use of outer space. Hence, making sure that outer space is utilised only for the peaceful, scientific and economical purposes.
The Treaty strives to build international cooperation and provides that any astronauts present in the outer space shall be considered as the envoys of the mankind. These astronauts shall be entitled to receive assistance possible from any of the nation-States in case of an accident or distress and in case of an emergency landing on the territory or high seas of another States, they shall be promptly returned to the State of registry. The States are also bound to provide information available to them regarding any possible dangers to astronauts in outer space.
As per the provisions of the Treaty, the States shall bear responsibility for any space activities conducted in outer space, either by the nation-State itself, or by any of its organisations or private entities falling under the jurisdiction of that State. In case of space activities conducted by international organisations, the organisation and the parties to such an organisation shall be responsible for their activities.
Though the concept of liability for damages caused by space objects is elaborately dealt with in the Liability Convention, the Outer Space Treaty mentions that launching State is liable for any damages caused by their space objects or its components to any another State to the treaty, be it to their nature of juridical personnel. Irrespective of such damages caused by the space objects or its components on the earth, in air or outer space or on any celestial body the launching State shall be held liable.
The Treaty, to strengthen the liability for damages, does not allow the States to abandon their jurisdiction over the objects launched into space. The Treaty provides that the State on whose registry the space object is launched shall retain jurisdiction and control over such an object. This right of jurisdiction and control is also extended to any personals in outer space or on celestial bodies. The Treaty provides for complete control and jurisdiction over the objects and personals in case of their re-entry which happens beyond the territory of the State on whose registry such objects are registered and they shall be returned to them by the other States.
As the space activities are governed by the principles of international cooperation and assistance, the Treaty provides that any activity conducted by a State shall be done so respecting the rights of the other States in space exploration. The Treaty also lays down that any State studying outer space or carrying out any outer space activities shall do so without contaminating the outer space. Article IX indirectly provides that the States have to strive towards sustainable development of outer space and shall not conduct or carry out any such activities that have the potential to harm the outer space as well as the earth’s environment. And in case of any activity having the possibility of causing any harm to other States, the State conducting such an activity shall always prior to conducting such an activity consult the other States. Along with this, if any States feel that there is potential harm due to the activity conducted by a certain State which shall affect the peaceful exploration and use of outer space shall request for consultation before such an activity takes place.
The Treaty works towards strengthening international cooperation in space activities, the States launching space objects shall on the grounds of equality provide an opportunity to the other States to observe their launching of objects into outer space and such an act shall be agreed upon mutually by the States as per their agreements. Along with this provision, the launching State shall also provide the General-Secretary of the UN, the States and the scientific community with the details such as the nature, location, conduct and the results of the activities being conducted by the States in outer space.
The Outer Space Treaty to build international cooperation provides that any States having stations, installations, equipments and vehicles on the moon or on any other celestial bodies shall provide for the utilisation of such facilities to other States based on the principles of reciprocity. The States seeking the utilisation of such facilities shall well in advance inform the concerned authority regarding the need to utilise such a facility available.
The provisions under the Treaty are be applicable to all the State parties and international organisations to the Treaty conducting any space activities, be it in outer space, on the moon or on any celestial bodies. The provisions shall be applicable irrespective of whether such activities are being conducted by a States or States together or along with international organisation or international organisation alone. In case any questions arise as to the practicality of the activities conducted by an international organisation, it shall be solved by the parties to the Treaty along with the help of an appropriate international organisation.