Development and status of space law
The first uses of outer space, beginning
with the satellite launches by the Soviet Union and the United States in 1957/1958, prompted a swift response from the international community as regards developing space law. In order to make way for a coordinated and peaceful use of outer space, fundamental questions needed to be addressed, ranging from its legal status and access to forms of utilisation (no nuclear arms race in outer space). To this end, the United Nations General Assembly established a standing committee in 1959, which it tasked with drawing up a system of international laws for outer space.
Outer Space Treaty
The first international agreement was the Outer Space Treaty of 1967, which has been ratified by 106 countries to date, including Germany and remains in force. It lays down principles governing countries’ activities in outer space. According to these principles, outer space, including the moon and other celestial bodies, is not subject to national appropriation by claims of sovereignty (Article II). The Treaty provides for extensive freedom of scientific research and commercial use in outer space. However, this freedom is not limitless, but is instead to be pursued for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, since the exploration and use of outer space is the “province of all mankind” (common benefit clause, Article I). A further restriction on these freedoms is the peaceful use of outer space (Article IV). This applies without exception or qualification to the moon and other celestial bodies (i.e. no bases, weapons or military manoeuvres), but only partially to the rest of outer space (no nuclear weapons or other weapons of mass destruction). Whether weapons systems that are only partly routed through space in order to reach their destination (ballistic missiles with nuclear warheads or military reconnaissance satellites) are permitted is a matter of dispute between the States Parties. The border between air space and outer space itself is not defined.
The Outer Space Treaty also provides for liability for damage caused by outer space activities (Article VII). Any State Party that launches or procures the launching of an object into outer space, or from whose territory or facility an object is launched, is unconditionally liable for damage to persons or property that this object causes on Earth, in air space or in outer space, if such damage is due to negligence (cf. the Liability Convention). Germany is working on a national outer space law, which will specify the internal criteria for monitoring and liability.
The Outer Space Treaty also contains provisions on avoiding the harmful contamination of outer space. However, they have proven to be of little practical importance in their current form so far.
The technical developments in space travel and the risks it involves have led to the elaboration of agreements aimed at supplementing and lending substance to the Outer Space Treaty. These include
- the Rescue Agreement of 1968 on lending assistance to astronauts in emergencies and the return of objects launched into outer space
- the Liability Convention of 1972 on guaranteeing adequate compensation for damage caused by outer space objects
- the Registration Convention of 1975 on facilitating the identification of objects launched into outer space
- the Moon Agreement of 1979 with special provisions governing the use of the moon and the possible exploitation of its natural resources. So far, only 17 countries have ratified this Agreement.
Sets of principles
To date, there has been no consensus among UN Member States on whether, or to what extent, a legal framework is necessary for several issues related to the use of outer space. Initially, therefore, only non legally binding sets of principles were drawn up; these were then adopted as UN resolutions. However, they are important for the interpretation of treaties and may serve as the basis for a future legal framework under international law. The following sets of principles have been drawn up so far:
Following the launch of the first civilian remote sensing satellites in 1972, some developing countries demanded a special regime in 1978. Remote sensing satellites can be used to gather information on mineral resources, weather and climate changes, and resource management. The Principles Relating to Remote Sensing of the Earth from Space that were finally adopted in a UN resolution in 1986 confirm the unrestricted right to remote sensing without prior consent by or notification to the country being observed. In return, the country subject to remote sensing has the right to access to the data on a non discriminatory basis and at a reasonable cost.
A set of principles aimed at protecting the environment was similarly adopted in a UN resolution in 1992. It concerns the use of nuclear power sources (NPS) in outer space and above all lays down rules on security requirements, avoidance and notification obligations (see below). The principles were drawn up largely as a result of the crash of the Soviet satellite Cosmos 954 in Canada in 1978.
The set of principles laid down in the Space Benefits Resolution deals with international cooperation in outer space. Adopted by the United Nations General Assembly in 1996 after nearly ten years of negotiations, it emphasises a country’s freedom to use outer space and choose its cooperation partners. There is no provision for the compulsory transfer of resources and technology as demanded for some time by developing countries. The set of principles does, however, provide for the inclusion of developing countries in the use of outer space and for them to have a share in the benefits.
The United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS)
The instrument for developing space law is the UN (standing) Committee on the Peaceful Uses of Outer Space (COPUOS) set up in 1959. As of 1 January 2018, the Committee had 84 Member States. It consists of a main committee and two subcommittees, the Scientific and Technical Subcommittee and the Legal Subcommittee. All three committees meet annually.
All treaties and sets of principles to date have been drawn up and negotiated in the Legal Subcommittee, the main forum for developing space law.
COPUOS makes its decisions on the basis of consensus. This ensures that developing countries, which currently account for the majority of the Committee’s member states, cannot outvote the minority of states engaged in space travel, but also results in lengthy negotiations if the political pressure to reach agreement is not strong enough. Topics currently being discussed by the Legal Subcommittee include utilisation of the geostationary orbit (GSO); delimitation of outer space against air space; and the procedure used by states and international organisations for registering space objects.
An issue that is fast increasing in practical importance is that of space debris. It concerns the removal or reduction of the risk of collisions in outer space and crashes to Earth (e.g. Cosmos 954) caused by the growing number of space objects that have broken down or broken apart (e.g. satellites, missile components). These could seriously hamper space travel and astronomical research in the future. Satellites with nuclear power sources on board that crash to Earth pose particular dangers. The Scientific and Technical Subcommittee is currently addressing this issue, while the Legal Subcommittee is exploring the legal issues.
Germany is regularly represented at international conferences on space travel: the Federal Government participates in European Space Agency (ESA) conferences and communicates the German position with regard to space law at COPUOS conferences. The Federal Foreign Office coordinates the interests of the Federal Government on matters of space travel and is leading relevant negotiations at international level. It does this in close partnership and coordination with the German Aerospace Center (DLR), which has been assigned the task of protecting German space travel interests, including at international level, by the federal ministries responsible for this Topic.