Law in the cosmos | In Principle

There aren’t just satellites orbiting the earth—there’s also space debris. And some countries claim rights to natural resources found on other celestial bodies, and permit the sale of plots on the moon. Some sort of legal rules must apply in outer space, so it is clear who is allowed to do what in the universe.

What treaties are in force in the cosmos?

The first international agreement touching on space (but not only) was the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, signed in Moscow on 5 August 1963, also known as the Partial Test Ban Treaty.

A few years later, one of the most fundamental agreements, the Outer Space Treaty (full name: the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space), was signed on 27 January 1967 by representatives of the UK, US and USSR governments, in London, Washington and Moscow. This treaty entered into force on 10 October 1967, when it had been ratified by five governments, including the original three depositaries. The authentic languages of the treaty are English, French, Russian, Spanish and Chinese. Currently 107 countries are parties to the Outer Space Treaty. Poland adopted and ratified the treaty on 22 December 1967.

The signatories to the Outer Space Treaty undertook among other things not to place nuclear weapons or other weapons of mass destruction in earth orbit, on the moon, or anywhere else in outer space. According to the treaty, the moon and other celestial bodies are to be used exclusively for peaceful purposes. Testing weapons of any kind, conducting military manoeuvres, or establishing military bases, installations and fortifications there is expressly prohibited. The treaty promulgates the principle of non-appropriation of outer space (Art. II) as well as the rule that exploration and use of outer space “shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development,” and outer space itself “shall be the province of all mankind.”

The Outer Space Treaty did not define precisely the boundary between atmospheric space and outer space, but nonetheless did lay the groundwork for international space law. The treaty provides for free access to outer space by all countries and provides that no country can assert territorial claims to the moon or other celestial bodies. As stated in the treaty, “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.” Furthermore, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means,” and thus no state may subject the cosmos to its sovereignty or jurisdiction.

There are now several treaties in force governing the rules for conducting activity in outer space, including treaties defining the rights and obligations of states. Many of these treaties were developed under the auspices of the United Nations Committee on the Peaceful Uses of Outer Space, established in 1959 by a resolution of the UN General Assembly, which also noted “the broad development of international co-operation in the peaceful uses of outer space.”

Particularly notable treaties in this respect to which Poland is also a party include:

• Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space of 22 April 1968 (the Rescue Agreement)
• Convention on International Liability for Damage Caused by Space Objects of 29 March 1972 (the Liability Convention)
• Convention on Registration of Objects Launched into Outer Space of 14 January 1975 (the Registration Convention)
• Convention on the Transfer and Use of Data of the Remote Sensing of the Earth from Outer Space of 19 May 1978 (the Remote Sensing Convention).

Growing appetite for mining resources in space

In November 2015 the United States adopted the US Commercial Space Launch Competitiveness Act, permitting the mining of cosmic resources. Two years later, the Grand Duchy of Luxembourg became the first European country to enact its own regulations in this respect. On 13 July 2017 the parliament of this micro-state adopted by a vote of 55–2 the Loi sur l’exploration et l’utilisation des ressources de l’espace. It comprises 18 articles and entered into force on 1 August 2017. Clearly, the US and Luxembourg are using these regulations to promote their national economies, and their aim is for the industry of mining of space resources to be developed using technologies from their countries.

According to the American and Luxembourgish governments, the Outer Space Treaty of 1967 ignores the issue of the possibility of exploiting cosmic resources, and there are no provisions there unequivocally banning mining in outer space. Simonetta Di Pippo, the current director of the United Nations Office for Outer Space Affairs, admitted that there are divergent views on this question, but the signatories to the treaty are far from reaching any amendment to the treaty to clarify this issue.

Yet there may be valid concerns that the spirit of the 1967 treaty does not allow for the expansive interpretation that any country can freely take resources found in outer space. It appears that the existing principle of free access to outer space does not mean the possibility of exploiting cosmic resources by states or enterprises, unless this is done within the limits of scientific research. Unequivocal regulations in this respect would, nonetheless, be helpful to establish legal certainty.

Can you buy a plot on another planet?

Selling the universe is the idea of Dennis Hope, an American entrepreneur who has supposedly become a billionaire by selling land in space. His company, Lunar Embassy, offers plots for sale not only on the moon, but also on Jupiter, Mars and other planets. Hope claims that under the law in force in his home state of California, any natural or legal person may declare that he holds a claim to a given right or object, including real estate. In the case of real property, the theory goes, it is sufficient to post a notice of the claim to a given plot of land at the courthouse or publish it in a newspaper of record. If no one comes forward with proof that he holds title to the land in question, the state’s land claims registry will confirm that the publisher of the notice is the rightful owner of the land. In 1980 Dennis Hope published claims and in this manner supposedly obtained title to individual plots on the moon and other celestial bodies, and subsequently issued numerous letters on this matter to the United Nations and the American government. Since then Hope has offered such plots for sale on his website. To date he claims to have sold plots to over three million people, earning several billion dollars.

It must be pointed out, however, that logic dictates that the laws of the United States do not apply on the moon or other planets in our solar system.

A well-known lawyer and expert in space law, Prof. Stephan Hobe, director of the Institute of Air Law, Space Law and Cyber Law at the University of Cologne, the oldest institution of its kind, explains that as a rule, celestial bodies belong to everyone and no one, much like the high seas or the Antarctic. No state or private enterprise can be prohibited from exploring outer space. This follows from Art. I of the 1967 treaty. And as Art. II of the treaty states, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” It follows that under the applicable law, it is not possible to buy or sell plots on the moon or anywhere else in outer space.

The problem of space debris

“Space debris” is now present in the cosmos. This means man-made objects left in earth orbit but no longer carrying out their original tasks. Space debris is made up mainly of used elements of multi-stage rockets, inactive satellites, and fragments created by collisions or explosions of satellites or rockets, including frozen droplets of coolant. Typically, space debris circulates uncontrolled in space, and can also pose a threat to satellites in active operation. It also cannot be ruled out that space debris may fall to earth and cause injury, as only a portion of the debris will be incinerated when passing through the atmosphere. In 2009, for the first time, two man-made satellites collided and destroyed each other: the American Iridium 33 and the inactive Russian Kosmos-2251.

Objects totalling over 6,000 tonnes are now orbiting earth, joined every year by another 300 tonnes.

So far there is no international treaty governing the obligations of states using outer space to avoid generating space debris or to remove space debris they have already generated. According to the European Space Agency in Paris, government space agencies have declared—so far not in a legally binding way—that they will make efforts to clear key orbits of space debris. One problem with collecting space garbage is that it costs several times more than it does to launch it into orbit in the first place. This does not change the principle that states sending an object into space should bear the real responsibility for its subsequent fate.

Provisions on this topic are found in the Liability Convention mentioned above, which was signed in London, Moscow and Washington on 29 March 1972 and which Poland is a party to. This convention is designed to protect injured parties, but given the date when it was adopted the provisions are not suited to contemporary reality. Leaving aside the antiquated nature of the convention, it is problematic under the convention to prove injury, that is, to introduce evidence showing that the given injury was undoubtedly caused by space debris belonging to a specific entity.

It should be pointed out that entities from the European Union now own about 19% of all active satellites. On 16 April 2014 the European Parliament and the Council issued Decision No 541/2014/EU establishing a Framework for Space Surveillance and Tracking Support. The aim is to facilitate more effective planning by operators of spacecraft and to introduce measures reducing risk. According to the document, surveying uncontrolled re-entries of spacecraft or space debris into the earth’s atmosphere will enable more effective early warnings, thus reducing the potential risks to the safety of EU citizens and mitigating potential damage to terrestrial infrastructure.

Poland also has a presence in outer space

Poland’s signing of a cooperation agreement with the European Space Agency in 1994 opened the way to participation by Polish entities in the ESA’s missions. This cooperation was expanded in 2002. A range of scientific instruments have been constructed at the Space Research Centre of the Polish Academy of Sciences, in cooperation with a dozen or more Polish firms. Devices made in Poland have participated in missions aimed at remote sensing and direct examination of the properties of the atmospheres and surfaces of planets and other bodies in the solar system.

The Plan for European Cooperating States (PECS) was signed in 2007, creating a mechanism that has financed 45 projects to the tune of EUR 11.5 million carried out by Polish firms, R&D institutes, and universities in cooperation with the ESA. The number, quality and sophistication of products and services using satellite technology and marketed by Polish firms has also clearly grown.

In November 2012 Poland became the 20^th member state of the ESA, paying annual dues of about EUR 30 million. For Polish firms and research centres, this opened the path for rapid growth in space and satellite technology through the opportunity of full-fledged participation in most of the agency’s programmes. Currently Poland is taking part in the following optional ESA programmes:

• Observing the Earth
• Navigation
• Telecommunications & Integrated Applications
• Human and Robotic Exploration
• Space Situational Awareness Programme
• General Support Technology Programme
• PRODEX programme for the industrial development of scientific instruments and experiments.

The Polish Space Agency (POLSA) was established pursuant to the Act of 26 September 2014 and entrusted with pursuing tasks involving research and development of space technology, including satellite engineering and applications for practical, commercial, defence, state security, and scientific purposes. POLSA is also responsible for preparation and implementation of the National Space Programme.

Summary

The cosmos is for all. Nonetheless, the legal rules in force there must be updated, expanded and clarified. It is in the best interest of all states to create clear regulations and programmes aimed at overcoming problems connected with the use of outer space.

Harald Marschner, attorney-at-law, Rechtsanwalt, Dispute Resolution & Arbitration practice, Wardyński & Partners