Tag Archive | "Outer Space Treaty"


There is Water on Mars, Now What?

On September 28, 2015, a huge announcement was made by the National Aeronautics and Space Administration (NASA): there is evidence of water on Mars. And not just standing water, but flowing, salty water; water that could possibly support life. This announcement could launch a completely new set of theories in the search for extraterrestrial life. But this search has many legal implications, including who can go there, what they can bring, and whether a country has any claim to what they discover.

Before Neil Armstrong and Buzz Aldrin became the first astronauts to set foot on the Moon, the United Nations was already discussing what the basic framework on international space law would be. In October of 1967, the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies” (“the Outer Space Treaty”) was entered into force. The Outer Space Treaty laid out that “the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind.” This theme of shared use with no personal ownership pervades the Outer Space Treaty.

The “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies” (“the Moon Agreement”) was later entered into force in 1984. The Moon Agreement reaffirmed the use of celestial bodies for peaceful purposes laid out in the Outer Space Treaty. It further stated that an international regime should be established if and when the natural resources of the Moon were to be exploited by mankind. However, very few countries became party to the Moon Agreement, and even fewer became signatories. Further, the majority of the parties did not, and still does not, possess the ability to even reach space, let alone land on the Moon. The United States, the Russian Federation, and the United Kingdom, the three depository Governments of the Outer Space Treaty, still are glaringly absent as members to the Moon Agreement.

Whether a country is party to the Outer Space Treaty, the Moon Agreement, or both, the terms only really apply to nations and their governments. So can a private mining company head up to Mars, the Moon, or even an asteroid and start extracting natural resources? Now before you start conjuring up images of the movie Armageddon, miners in space, working for a private company, may be able to do just that. Frans von der Dunk, a space law professor at the University of Nebraska, says that “there is no clear-cut answer as to whether [private mining in space] is legal or not. It depends on your interpretation of certain rather broad statements in the Outer Space Treaty….” Further, a new bill now awaits the U.S. Senate’s decision, the “Space Act of 2015,” that would give future asteroid mining companies the property rights to any minerals that they extract in space.

The US flag was planted on the Moon in 1969, two years after the Outer Space Treaty was created. BBC News. Associated Press.

But what about Mars? Now that we have a possible proof of life via the recent discovery of flowing water, how could NASA, or any other governmental organization, continue to test this? According to research, sending humans to Mars with bacteria from Earth would be the next logical step. However, the Outer Space Treaty forbids the “harmful contamination” of other worlds with Earth’s biology; a serious hurdle if the above theory turns out to be true. Luckily, an international organization named the Committee on Space Research (“COSPAR”) has been working since 2002 to designate restricted “Special Regions” where this testing can occur. These Special Regions may give the signatories to the Outer Space Treaty an avenue to legally access Mars, with the help of some adventurous new frontiersmen.

Lorne Hiller is a 3L at University of Denver Sturm College of Law and Executive Editor on the Denver Journal of International Law and Policy.


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Critical Analysis: International Space Law and the International Space Station

After weeks of delay, on Thursday, January 9, Orbital Sciences Corp. launched the Cygnus space capsule on its first cargo-carrying mission to the International Space Station.  Machinery breakdown, cold weather, and solar storms may have delayed the launch for a few weeks, but Cygnus safely arrived at the International Space Station three days after launch.  Cygnus is a privately launched supply ship under contract from NASA.  Cygnus delivered 3,000 pounds of equipment, experiments, Christmas presents, and fresh fruit for the crew.

The International Space Station is a symbol of international cooperation. Image Source: Wikimedia Commons

The International Space Station is a symbol of international cooperation. Image Source: Wikimedia Commons

The International Space Station is currently crewed by six astronauts from Russia, the United States, and Japan.  The International Space Station is a collaboration of the space agencies of United States, Russia, Europe, Japan, and Canada.  This program “brings together international flight crews, multiple launch vehicles, globally distributed launch, operations, training, engineering, and development facilities; communications networks, and the international scientific research community.” The International Space Station is a complicated project because it is an international program that requires construction, support, and operation from all the space agencies and countries involved.

The basic legal framework that governs outer space law is the Outer Space Treaty.  The Treaty was based largely upon the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space which was adopted by the General Assembly of the United Nations in 1963.  The Treaty entered into force in October 1967.  Below are a few of the principals that were the foundation of the Treaty:

  • the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind;
  • States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner;
  • the Moon and other celestial bodies shall be used exclusively for peaceful purposes;
  • States shall be responsible for national space activities whether carried out by governmental or non-governmental entities.

Though the International Space Station is proof that the Outer Space Treaty has been successful at maintaining peace in space even throughout the Cold War, there are still many issues that current space law is not fully equipped to address.  Commercial human spaceflight, space debris, export control reform and flags of convenience are a few of the primary challenges that must be addressed in the coming years.  It is expected in the next decade that private commercial human space flight will become more routine.  This will lead to complicated legal issues around liability, insurance, informed consent by passengers, licensing, and safety regulations.  Currently, there are as many as 600,000 objects larger than a centimeter (which are deadly at orbital velocities) in Earth’s orbit and only about 19,000 of those objects can be tracked.   This creates issues around who is liable for damage caused by space debris, that there is no law of salvage in outer space, and that there are no standard operating procedures around the creation of new space debris.  Currently, in the United States all military and non-military built space craft are considered defense articles and are therefore tightly restricted under the State Departments’ International Traffic in Arms Regulations.  In order for the U.S. space industry to continue being leaders in the industry, there will need to be a more nuanced approach to export controls.  Lastly, under the Outer Space Treaty governments retain jurisdiction over all government and non-government spacecraft.  As privately operated spacecraft increase some countries may attract these private organizations with looser regulations creating “flag of convenience” issues similar to those in commercial shipping operation on the seas.

The recent successful delivery of cargo by Cygnus to the International Space Station serves as a reminder of the world’s space success and potential issues.  The International Space Station has been a success of international cooperation.  The Outer Space Treaty has been a success in maintaining peace.  However, there are new issues created by private industry and technological advancements that must be addressed that were not possible to conceive in 1967 when the Treaty was entered into force.  If these issues are not addressed there is the potential for great international conflict.

Sarah Emery is a 3L and the Executive Editor for the Denver Journal of International Law and Policy

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It's supposed to do that - Japanese spacecraft returning with samples from an asteroid. 

What happens when something falls from space?

Things falling from space have certainly caught our collective interest in the last few days.  And while it’s been the extraordinary meteors in recent days, manmade items tumble from the sky more often than you might imagine.  These are expensive contraptions that sometimes have “sensitive” applications.  So, as you might imagine, there is a legal framework outlining what states must do when something belonging to another state lands in their territory.  Let’s walk through an example.

It Came From Above!
(Craig Daily Press)

In March 2011, a hiker discovered seventy-pound, thirty-inch diameter titanium tank in the northwest corner of Colorado.  The hiker notified the Moffat County Sheriff who, in turn, notified NASA’s Orbital Debris program.  NASA’s analysis determined that the tank was likely from a Russian booster rocket tested in January 2011.  Fortunately, the tank stored helium, which is used to force fuel into the booster rocket’s engine, and consequently was harmless.

Here’s what should have happened:

As an initial matter, the Outer Space Treaty states that the launching state retains “jurisdiction and control” over space objects and their component parts regardless of whether they are in space or on Earth’s surface.[1]  Therefore, it is best to regard this fallen object as the property of the Russian Federation.

First, the Rescue and Return Agreement (RRA) requires a contracting state to notify both the launching authority and the UN Secretary General when it has information regarding a fallen space object within its territory.[2]  Because this component landed within the United States’ territorial jurisdiction, it is required to issue this notice.  Conveniently, the canister was labeled and could be identified as Russian.  Were the component unidentifiable, the Secretary General—through a list maintained by the Office of Outer Space Affairs—would publish the discovery.

The launching authority—loosely defined as the state or intergovernmental organization that is responsible for the launch[3]—may request that the component be returned.  If requested, the United States is obligated to return the component using whatever steps it deems “practicable.”  The treaty does not elaborate upon what “practicable” means.  However, unlike the return of astronauts, a component need not be returned as quickly as possible.  Presumably, this does not require the retrieving state to expend significant resources or divert maximal effort to collecting the space object.

It's supposed to do that - Japanese spacecraft returning with samples from an asteroid.  (http://usuaris.tinet.org/)

It’s supposed to do that – Japanese spacecraft returning with samples from an asteroid.

Returning the space object is predicated on the launching authority requesting the return of the space object; if the launching authority does not request its return, contracting states are not required to do anything.  The United States, for example, always requests the return of fallen space objects or their component parts.  Other states may not be as diligent.

Imagine if this tank were rather larger or somehow hazardous.  In that case, the retrieving state may request the assistance of the launching authority to collect the fallen space object.[4]  Regardless, the launching authority is responsible to pay for expenses a state incurs complying with the RRA obligations.[5]

Moral of the story: if Russia wants the tank back, Russia gets the tank back.

Enough with the law—the point is, if you find a piece of space debris, you’d better tell someone.  It might be quite dangerous, first of all.  And you never know who might come looking for it.

So now you ask, “what do I do if I find a meteorite?”  I say keep it.

Dan St. John is the Editor in Chief of The View From Above, a third year law student at Sturm, and the Founding President of DU’s Space Law Society.  

[1] OST art. VIII.

[2] RRA art. 5, para. 1.

[3] RRA art. 6.

[4] See RRA art. 5, para. 2.

[5] RRA art. 5, para. 5.

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Get off my land!

The Bogotá Declaration and the Curious Case of Geostationary Orbit

Get off my land! (Softpedia)

Get off my land!

In late 1976, eight “States traversed by the Equator” convened in Bogotá, Colombia to discuss their rights over a natural resource which—to them—had been unfairly removed from their sovereignty.  Specifically, these states felt that their rights to control natural resources had been unfairly abridged by Article II of the 1967 Outer Space Treaty, which cements the rule that “outer space, including the moon and other celestial bodies, is not subject to national appropriation.”  At the conclusion of the conference, Colombia, Ecuador, Congo, Indonesia, Kenya, Uganda, and Zaire, with Brazil as an observer, proclaimed the Bogotá Declaration to assert their rights.

To get around the Outer Space Treaty’s declaration that outer space is not subject to national appropriation, the Bogotá Declaration categorized the geostationary orbit (“GEO”) as a natural resource, not a region of space.  Indeed, the Declaration claimed that the unique properties of GEO are created by the Earth itself.  By categorizing this orbit as a resource, these states could call on the jus cogens principle that states have absolute control over their natural resources.   Given the unique characteristics of the GEO, this is not an outrageous proposition.

Geostationary orbit is a band 36,000 kilometers above Earth’s equator where a satellite orbits the Earth at the same speed the Earth rotates.  Therefore, a satellite in GEO stays over a fix point on the Earth’s surface.  Satellites in GEO are why you have satellite TV and some of the large scale weather pictures.  If an equatorial state’s borders were projected into the heavens, a satellite situated on a degree of longitude within that state would never pass outside its borders.  Traditional problems of superjacent flyovers of a state’s territory are subsequently nonexistent.   In fact, Principle 3(c) of the Declaration specifically recognizes the right to superjacent transit.  Rather, the Declaration is concerned solely with GEO.

Underlying the argument that sections of GEO are within an equatorial state’s sovereignty is the value of satellite positions in GEO.  Geostationary orbit is a scarce resource.  Because there are only 360 degrees of orbit can be used, and satellites must be several degrees apart to avoid interference, satellite positions—called “orbital slots”—in GEO are limited.  Furthermore, sections that cover landmasses are particularly valuable.  Equatorial states, consequently, have a large incentive to argue that they control sections of GEO.

Ultimately, however, the Bogotá Declaration is precluded by public international law.  Article II of the Outer Space Treaty has passed into customary international law; consequently, adopting the Declaration’s view on GEO would contravene well established limits on state sovereignty.  As early as the 1910s, legal scholars contemplated a vertical limit to a state’s territory.  Indeed, the free use and non-appropriation of outer space, through over sixty years of state practice, is enshrined in public international law.  Furthermore, because GEO is so important for communication and navigation, it is impractical to revert to a state-sovereignty based allocation regime.

Despite the valid concerns in the Bogotá Declaration, there are two safeguards that should protect developing states’ interest: (1) the Committee on the Peaceful Uses of Outer Space (COPUOS) operates on consensus and (2) the International Telecommunication Union (ITU) is charged to efficiently allocate spectrum in geostationary orbit.

The Outer Space Treaty was drafted in COPUOS’s Legal Subcommittee and is product of many years of compromise and negotiation.  Because COPUOS operates by consensus, any agreement that it issues has been worked so that it is acceptable to all parties.  Regardless of whether all are actively in favor of the agreement, there are at least no active opponents.  Consequently, the treaty—including Article II’s non-appropriation clause—garnered substantial support from states involved with its drafting.

In addition, the ITU parcels out orbital slots in GEO with an eye toward the “efficient use” of the limited space.  Although it is certainly an imperfect system, developing states have an equal opportunity to request and use section of geostationary orbit.  While the ITU’s “efficient allocation” does not necessarily allocate the orbit in a way that “benefits all countries,” developing states at least have an equal opportunity to use the geostationary orbit.

So while the debate over whether GEO is a natural resource subject to national appropriation is certainly dead, this debate does beg the question of how space resources should be used when, for example, we start mining asteroids.

Dan St. John is a third year law student at the University of Denver, the EIC of The View From Above, and the Founding President of DU’s Space Law Society.

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University of Denver Sturm College of Law

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