INTERNATIONAL LAW OF OUTER SPACE ------------------------------ John Pazmino NYSkies firstname.lastname@example.org 2005 December 26
Introduction ---------- Despite a cold rain, edging into sleet, and the threat of a transit labor strike only hours later, the NYSkies Astronomy Seminar met on Thursday 15 December 2005. Stephen Lieber, the speaker, waited a while for latecomers before beginning his talk on 'International law of outer space'. In the meanwhile we caught up on several news items like the leapsecond to be intercalated on New Year's Eve, the fate of Japan's Kayabusa asteroid probe. We also took up various astronomy questions, like the cause of the sharp boundary of the Sun's photosphere By 7:30OM the audience accumulated to ten people. I give below a brief overview of Lieber's talk, with a few extensions from other sources.
Treaties and resolutions ---------------------- Lieber reviewed the concepts and principles behind the various treaties issued by the United nations since the 1960s. He showed the distinction between 'treaty' and 'resolution'. A UN resolution is a statement by the UN on a specific matter and is not a binding instrument. Nations do not sign a resolution; it is enacted by a vote of the UN General Assembly. A treaty is a formal document usually written in general terms, approved by the UN General Assembly, and then signed by nations. When a nation signs a UN treaty, its provisions become part of the nation's own laws. A treaty can evolve from previous resolutions. The United States balks at signing certain UN treaties for outer space and asserts it is not obligated to observe them. This action comes from the American supremacy in outer space, utterly unmatched by any other nation or group of nation. The US can feel that certain treaty articles unduly restrict its operations, actual or potential, in space.
Treaty language ------------- A United Nations treaty, as a piece of law, is a refreshing cleanly worded instrument, altho vague by American legal standards. Part of the reason is that a treaty deals with broad concepts rather than detailed actions. An other is that the treaty is converted into the five UN languages, for words and grammar rather peculiar to outer space. The UN languages are English, French, Spanish, Russian, Chinese, from those of the victors in World War II. The UN is behind the US in gender-neutral language. The newer treaties still speak of 'mankind', 'manned space flight' and similar, US literature in the 1980s and 1990s already switched to terms like 'humanity', 'humankind', 'human space flight'.
Signators of treaties ------------------- The United Nations is an organ of countries. In the early days of space programs, it was assumed that, due to the immense expense and effort, space projects would be conducted by nations, not private groups. The notion of private companies varies widely across nations, from devil-may-care to government fronts to prohibition. Thus defining a nongovernmental spacefaring group is impossible, Hence, all outer space treaties apply ONLY to countries, not corporations or other private groups. While nongovernmental space groups are not part of the treaties, the signators are bound to oversee and regulate them within their countries in accordance with the treaties. Thus a private company that acts contrary to a treaty from within a signator country can be taken to task by that country. Note that the space operation must be seated or home in the country, which is generally taken to mean that the launch of the objects associated with the activity must be inside the country. A few companies are trying to evade treaty coverage by launching from the high seas, which are outside the jurisdiction of any country. There is question whether a country no longer existing can pass on its treaty obligations to its suceessor. The prime example is the Soviet Union, which died in 1992. Are the treaties signed by the USSR binding on its 15ish new countries? The US is voluntarily assuming so, altho these countries did not specificly reaffirm the treaties with their own signatures.
Prior experience ------------- The law of outer space banks off of prior experience with the high seas, Antarctica, and international aviation. There are similarities and differences among these other bodies of law, but they are the foundation for developing space law. In addition to the roof of the United Nations space treaties, nations may arrange among themselfs for handling assorted situations regarding outer space. Such agreements can not undo the treaty if any of the parties is a signator of that treaty. A nation who does not sign a given UN treaty is not legally bound by it. Complaints from other countries, debate in the UN, and public spotlight often move the country to observe the treaty. An other important precept of treaties in general is that in formally declared warfare they are suspended or abandoned. If the United States declared war on Iraq -- which it din't! -- it could field nuclear weapons in space as part of its military needs.
Realm of outer space ------------------ No treaty actually defines 'outer space'! It is usually considered the realm above Earth where an artificial satellite can remain in orbit, at least for a few weeks, but his in NOT stipulated on paper. If aerodynamic methods can be used to operate a craft, it is considered an aircraft. It is not covered by space law. Existing aeronautics and aviation laws apply. A nation can restrict or prohibit aircraft flights over its territory but not space vehicles. There is the functional problem that a country can warn an aircraft, which can then maneuver away. A spacecraft, being essentially a free-fall body, can not be so simply steered. Any planet, moon, asteroid, comet, other celestial body is 'in space' and is governed by space treaties. A natural celestial body that arrives on Earth, like a meteorite, is not part of the space treaties. It belongs to the receiving country. For history's sake the first deliberate launch of a craft into outer space was the German V2 rocket in tests in 1943. During World War I Germany used a super cannon that hurled shells about 150 kilometers. The peak of the shell's trajectory would have been in space, but at the time no one appreciated that feat.
Launch country ------------ The 'launch country' is a cardinal concept in outer space law. It is the nation who physicly sends the craft into space. It is NOT the owner of the craft or rocket. It's the owner of the facility that placed the object in space. A British telcomms satellite loaded on a Ukrainian rocket is launched from Nigeria's spaceport. Nigeria is the launch country for treaty purposes. It is from this concept of launch country that many nations prefer to do their own launches and not avail of foreign launch services. If their craft lands in an undesirable foreign land, it is handed back to the other country who launched it, not the craft's home country.
Property in outer space --------------------- Outer space is declared to belong to all humanity. No nation can assert sovereignty over a region of space or on any celestial body. Any nation may send vehicles, probes, humans, to any place in space. Some private companies claim that because they are not a 'country' this lack of property right does not apply to them. They assert ownership of a this or that celestial body and pretend to sell plots of it. In the United States, a signator of many space treaties, these companies are covered by those treaties. This follows from the signator's obligation to govern private space operations within it by treaty provisions. In this sense, outer space is similar to the high seas, where ships may travel freely and openly anywhere in the world without first answering to property claims. There is territorial water, within which the adjacent country has jurisdiction, like it has jurisdiction over the atmospheric region above it. If a nation does work to extract or recover material from space, that material belongs to the that country. The actual example is sample collection from the Moon and [hopefully] an asteroid or comet. A potential situation is mining, extraction, lifting natural resources from the Moon or Mars. This is sometimes called the 'dirt-in-shovel' concept. As long as the material is part of the celestial body, it's common domain for all. Once it's in your shovel, it's yours. The ambiguous case would be if a nation roped and captured an entire asteroid, as is proposed by some futurists. It may be that merely landing on an asteroid is not 'capturing' it, but moving it out of its natural orbit into an other one may be. The launch country has ownership of Earth items it places in space, like a orbiting or lunar habitat. It can not claim ownership of the land under or the space around the habitat.
Selling space lands or names -------------------------- Many private companies pretend to own real estate on the Moon, Mars, or where ever in space and offer it for sale. They make the offer by official-looking news media ads and websites. Similar practice comes from firms who sell names for stars, galaxies, and so on in space. Spacefaring groups, working on a shoestring of funding, at times go ballistic about these land sales! They struggle endlessly to get up money for bona fide space advocacy, then hear and see ads for land on the Moon. It is plausible that in one night of television ads a space land company rakes in more money than the spacefaring group does in a year! A similar scene falls onto astronomers, also starved for funding. They witness the star naming companies haul in thousands of dollars a day. This could fund any of a variety of legitimate science projects. These private firms don't come under UN treaty because the treaties apply only to countries. But because countries agree that space has no property rights. The land or name purchase can not be enforced. The buyer does not own the land or name. Any one may upsurp it. A company may, for instance, sell 'your' star to some one else with nothing you can do about it. In the US, consumer and trade laws requires a disclaimer about the legality of these offers. Laws in other countries may be lax or lacking.
Ownership of spacecraft ---------------------- The country that LAUNCHES the object owns it continuously while it is in space and when it returns to Earth. There are no unclaimed spacecraft, even dead or abandoned ones. They remain the launch country's property. When an Earth object returns to Earth, like an astronaut capsule or decaying satellite, the launch country still owns it, regardless of where it lands. The receiving nation must either let the launch country retrieve the object or collect and return it to that country. Within the United States, a space launch by a private party is still considered an American launch for treaty purposes. It is also subject to a raft of internal regulations applying to launches from US territory. Boeing, as one example, offers launches from an ocean rig,outside US waters. This scheme, SeaLaunch, hopes to escape US internal space provisions. If a spacecraft breaks up, by explosion or jettison, the pieces are still the property of the launch country. To relieve the ownership responsibility, the object must be removed from space. This is the case for craft that incinerate in the atmosphere. The Galileo probe, owned by the US, is now no longer in space, having been spiked into the Jupiter atmosphere and is completely consumed.
Peaceful uses of space -------------------- Outer space must benefit all humankind. No country can restrict or ban participation in space benefits by other countries. No nation may interfere with the space operations of an other nation, as by building a Mars base too close to a foreign one. Any benefit from exploitation of outer space must be constructively available to all nations. This includes samples, mineral ore, scientific information. Only peaceful application of space are allowed. There is a whole body of contention about what is 'peaceful'. There is already allowed spy satellites and military communications and support satellites. The American GPS network is a military project; it's run by the Air Force. The Clementine lunar orbiter probe was also an American military project. These, so far, are considered 'defense' operations rather than aggressive ones. Changing military technology is blurring the line between offensive and defensive projects. The trend seems to be that if the operation does not directly aggress onto an other nation, it is defensive. Thus passive monitoring and surveillance is permitted, even radar and laser tracking of foreign spacecraft. So far it is allowed that military craft, apparatus, crew may operate in space if their mission is defensive or peaceful. NASA could fly a spacecraft whose camera optics were built by the Army, so long as the camera is then used in a nonaggressive manner. The United States has held back on some treaties for having articles it feels conflict with its ordinary and usual military business in space. The US is plain the world's leading spacefaring country, bar none.
Sharing the benefits ------------------ For the foreseeable future only a few very affluent and experienced nations will conduct substantial activity in space and derive useful benefit from it. The treaties call for a genuine effort to share these benefits with all humanity and not keep them for the particular spacefaring country. Science samples must be available for study by all countries. Resources developed in other planets must be open for all nations to avail of. This feature of space law so far prevented the pell-mell rush to build factories, mines, wells on the Moon. Any wealth derived from these projects must be realisticly open for others to benefit from. While there is for sure secret information collected for military purposes, if the information can prevent harm to other countries, it must be released publicly. A possible case would be the discovery of a radioactive outcrop on Mars that could harm instruments on foreign rovers passing near it.
Limited resources --------------- Some beneficial resources in space may be limited. Examples already to hand are the longitude slots on geostationary orbit and radio frequency bands for satellite communications. The radio spectrum is allocated by the rules of the launch country, but must not interfere with those assigned by other countries. Potential interference with ground-based frequencies in the receiving countries is handled by existing telecommunications regulations. Geostationary orbit has a set of longitude slots. The satellites can not be placed closer than a degree or so apart in longitude. This is due to station keeping leeway, wide beamwidth of Earth receivers, and frequency conflict. There is now some argument to somehow better allocate these limited resources among nations, with no definite solution as yet. Some countries on the equator claim that the geostationary slots standing above them 'belong' to them. They are seeking to rent or tax the use of these slots by foreign nations. A new limited resource would be the potential pool of ice at the lunar south pole. If one nation develops it into a water supply for human habitats, it must allow other countries to tap into the ice also for their own bases.
Propaganda from space ------------------- One of the major uses of outer space is broadcasting radio, television, Internet by one country into an other. The receiving country can declare the content to be offensive and seek ways to interdict the broadcast. The obvious example today is the debut of Howard Stern on Sirius Satellite Radio on 9 January 2006. Stern was penalized several times for his out-of-compliance ground-based broadcasts. So he moved his show to space, outside US jurisdiction. The content can be political or social. Already there is agitation against space-based feminism shows beamed to nations who don't care about such issues. The major problem is that the signal is available to any one with a suitable receiving device, From experience with radio and television on the ground, there is no way to prevent the transmission into the receiving country. The receiving country may jam the signal, ban radio and television sets capable of picking up the signal, broadcast opposing views.
Imaging and sensing ----------------- An early benefit from space operations is imaging and sensing. These range from the first crude cloud pictures for weather monitoring to today's centimeter-level resolution photography. For the most part, the images and data are openly available to anyone. Either they are free for the asking or there's a fee from a commercial source. The rise of Internet and the rampant distribution of satellite data and images thru it seems to be in tune with the principle of sharing the benefits from space. However, some countries are raising severe complaints that the open market for pictures and data of just abut any spot on Earth poses threat to sensitive facilities. Once in a while, associated with a news item, there is published for all to see a high-resolution photo of some secret missile station in an undesirable country. The biggest distributor of space data, by far, is the United States. By internal laws, space benefits must be available to humankind as part of American society and ideals. More over, most private companies in the US follow the same principle; Pay the fee, here's the picture. Goggle Earth, as one instance, offered in fall of 2005 that all nations give it a list of their secret locations with coordinates, description, purpose, kind of facilities, and so on. Google would post this list on its website. Visitors will know where they are not supposed to look. No country so far took up this offer.
Liability and damages ------------------- The damage or other harm caused by a space activity is the responsibility of the launch country. It must make good on claims and costs from the damage. So far, there is the one major instance of Cosmos 954, a Soviet spy satellite that decayed and fell into Great Slave Lake, Canada in 1978. It carried a uranium-fueled power supply that so far was never recovered and is presumed still in the lake. The Soviet Union paid Canada about $3 million as damages. The launch country may have internal procedures to pass on the liability to an other entity, such as the company that built the craft causing the harm.
Emergencies in space -------------------- Countries must come to the assistance of endangered foreign humans in space. Aid can be supplies, medical attention, shelter, protection from space environment, return to Earth. This is an extension of the rule of the high seas and Antarctica. As yet there is no generally agreed on distress system like '911' in the United States telephones or 'SOS' for Morse code. The imperiled country just alerts others of the danger, describes it adequately, and allows the aid from other countries.
Weapons in space -------------- No nuclear or mass-destruction weapons may be placed or used in outer space. The first push for this law was the nuclear test ban treaty of the early 1960s, which included wording about deployment or testing in space. Mass-destruction includes the usual chemical and biological methods, but allows for new ones like microwave beams that boil up the brains of every one in a large town. For nuclear devices, the ban is not only on weapons as such but any detonations of nuclear devices, like for spaceship propulsion. It does allow nuclear devices for electric power, heating, manufacturing, and other nondetonative functions. The radioisotope thermoelectric generators of interplanetary probes are permitted. If there is any chance that a nuclear device could return to Earth in an uncontrolled manner, the device must be built to return intact with as little release of radioactive material as possible. The precipitating incident was the fall of Cosmos 954. A potential incident was the Cassini probe in the 1990s. It had a nuclear power pack. To reach Saturn it swang by Earth just above the atmosphere. The aim could have dipped it too low and it could have decayed to Earth with the possible spill of its nuclear fuel. The space treaties do not deal with suborbital weapons, even if the delivery method carries the weapon into space momentarily. ICBMs, cruise missiles, and drones are not banned by the space treaties. Also missed from space treaties are weapons other than those for mass destruction. These include ordinary firepower, chemical explosives, collision devices, spray or blinding devices. laser beams, and high energy ion beams.
Contamination of outer space -------------------------- Operations in space must not pollute or otherwise degrade the environment of outer space or of any celestial body. Occasional inert harmless debris, such as parts of a planet probe left behind when it lifts off back into space, are allowed. Likewise, a probe, like Huygens or the Mars rovers, are allowed to remain on their planets after they expire. The intent is to prevent use of space for waste dumps or industrial effluents. Thus, large-scale, which no treaty specificly defines, pollution is prohibited. It is historicly interesting to note that this treaty article was approved several years before the American environmental movement began on Christmas Eve of 1968. Objects placed in space must be sanitized to remove Earth germs that could take root elsewhere. The extent of cleansing depends on the mission. A satellite in low Earth orbit may get a lesser treatment because it remains near Earth and will incinerate on in the air. A probe meant to land on other worlds must be thoroly cleaned of all possible Earth life. Spent rockets, dead satellites, failed interplanetary probes should be deliberately removed from space or placed in safe locations where they can be monitored. Any thing brought from space to Earth must be handled so that it does not contaminate Earth. While probably, based on experience with the lunar explorations, there is no exotic germ or insect that can hide in a return capsule to run riot over Earth, we simply don't dare take the chance. On this concept the earlier Apollo astronauts were put in isolation chambers to guard against releasing some strange space hazard on Earth.
Space traffic control ------------------- There is nothing in space like the air traffic control system on Earth. Each space activity is operated separately from others, except as may be agreed between nations on their own. A country may place a satellite in any orbit it wants, at any elevation and inclination; send probes to any celestial body; land robots or humans on any celestial body. Nations are required to register their successful launches with the Secretary General of the UN (actually a commission he charged with this chore). The launch country provides basic data about the launch such as name, date and hour of launch, launch location, general purpose, initial orbital elements or interplanetary trajectory. The purpose may be quite vague, so countries can protect sensitive missions. Apart for record-keeping, these data are needed by other nations to avoid interfering with current space operations. These data are a continuation of the early COSPAR registration scheme,
Spacefaring concerns ------------------ Steve's overview of space law should be of paramount concern for spacefaring advocates. These principles and precepts must be seriously considered in their promotion of space exploration and exploitation. Yet, in my experience with such advocates, there seems to be wholesale absence of awareness or even care about the law of outer space! Futurist ideas like nuclear bombs to propel rockets, farming and fishing on other planets, terraforming, microwave power beams, strip-mining, covering half a planet with photovoltaic panels, using craters as garbage dumps, firing rail guns, floodlight mirrors in orbit, building 'Los Angeles' towns, chopping up whole asteroids, seeding human genes are all bantered about as if there can be no problem or worry. It almost sounds like the green ethic belongs only on Earth! One argument in this regard is that Earth resources are obviously finite and must be treated with all due respect. Space, on the other hand, is the infinite bontitude, where after exhausting one world, there are endless other fresh ones over the hills. There was right here on Earth a whole society built on this premise. On was the 18th and 19th century industrial movement. The other was the 20th century Soviet Union. Do we really want such cultures diffused thruout the solar system? Steve's talk would be a capital item on the lecture slate of spacefaring groups.
Followup resources ---------------- Steve handed out samples of documents relating to space law. The first place to stop at is the United Nations Office for Outer Space Affairs. This is a roof agency that handles UN matters about outer space. It reports to the Secretary General. This office maintains the texts of the UN treaties and resolution for outer space, discusses and debates at meetings, studies new situations. This office is homed in Vienna, Austria, but it interacts with UN headquarters in New York. With the current rebuild of the New York campus and temporary relocation of its tenants, just about all UN business may be severely curtailed for the rest of this decade. An other major resource is the American War College of the US Air Force. The Air Force is the largest and most powerful single entity engaged in outer space operations. It maintains literature relating to military uses of space, with the American interpretation. Military agencies of other nations likely have similar literature for public dissemination.
Conclusion -------- Lieber's talk tapered down at about 9:30, the latest ever closing time for the Seminar! Normally we would try hard to close up by 9. We chatted briefly on the stairs and in the street, then headed off home. The next Seminar is on Thursday 5 January 2006, 7PM, at St Paul's Lutheran Church, 315 W 22 St. That's near 8 Av in Chelsea. Start the New Year with good astronomy!