Tag Archive | "space law"

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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Liftoff

Where Does Outer Space Begin?

A state’s jurisdiction once went from the depths of Hell to the heights of Heaven.  Airplanes challenged this tradition, and satellites ended it.  Since then, the upper limit of a state’s sovereignty has been long debated.  Today, there is a distinction between airspace—where a state is sovereign—and outer space—which is res communis.  Despite the distinction, there is no legal barrier delineating where air law ends and space law begins.

Liftoff

Are we in outer space yet?

Although some states have called for a definition of where outer space begins, the United States is ambivalent on setting that border.  As the US Delegate made clear to COPUOS, the US sees no practical reason to set a barrier.  Because it sees no practical need for an air-space border, the US was concerned that making an arbitrary decision that would—as technology advances—become unworkable.

While it is true that air law and space law have worked well in their independent spheres, advancements in technology may force a decision as space becomes more accessible and more frequently used.  Although the technology argument has been used since at least 1975 as an excuse to hold off on making a decision, the point may soon arrive where this distinction matters.  Scholars developed two schools of thought to delineate a boundary.

Spatialist v. Functionalist

The “spatialist” approach sets the boundary for where outer space begins. Anything above the line is in outer space; anything below is in air space.  Basing this delineation on natural phenomena is difficult because there is no rigid barrier between the atmosphere and outer space.  The atmosphere does not simply just end and give way to the vacuum of outer space.  Indeed, basing the air-space barrier on any atmospheric (when the atmosphere no longer protects against ultra-violet radiation or cosmic rays), chemical (when liquids evaporate), physiological (when there is no oxygen in the atmosphere), or aeronautical (when air is no longer dense enough to support lift or when air resistance is negligible) definition would not provide certainty.  All of these points depend on properties of the atmosphere, which depends on myriad fluctuating variables.

If a spatialist approach is adopted, the boundary should be set at an arbitrary altitude.  Unlike the aforementioned barriers, there would be no ambiguity or variability in the limit.  This approach also has the benefit of state practice to lend it credence.  However, despite several states have set an altitude limit in their domestic space legislation, there is no consensus about what that altitude should be.  Over the years, however, states—following the emerging scientific consensus—are converging on an altitude of between 100 and 110 kilometers above sea level.

The “functionalist” approach disregards physical characteristics of a barrier in favor of basing the distinction on the space object’s purpose.  It recognizes that air law and space law were designed with certain activities in mind and applies that law to the activity, regardless of where that activity takes place.  In effect, it applies space law to space activities, such as satellite launches, and air law to aviation activities.  The problem with this regime, however, is that some activities—such as suborbital flights—can be characterized as both an air and space activity.

Does This Distinction Even Matter?

Not yet.  In the vast majority of cases it is clear which legal regime applies.  However, Virgin Galactic’s successful test of its suborbital spacecraft on April 29 (and let’s not forget the other companies nipping at Virgin’s heels) means that this distinction will matter soon.  Specifically, Virgin’s plan is to launch its customers 110 kilometers above sea level.  Yet, the most current suborbital flight plans take off from and return to the same site.  But future suborbital flights are intended to be a rapid means of transportation.

Zero Gravity Tourists

“But then are we astronauts?” That’s for another post, my friend.
(Destination 360)

Ultimately, the functionalist approach provides the most effective and practical regime.  This approach is commendable because it treats like subjects alike: suborbital flights, which are more analogous to civil aviation than to traditional spaceflight activities, are governed by air law and “traditional” spaceflight activities use the space law regime.  For suborbital spaceflights, this makes particular sense because, like civil aviation, it is a commercial carrier conveying paying passengers from departure to destination.  Although suborbital activities reach an altitude that would likely qualify as outer space under the spatialist approach, suborbital flights do not share many qualities of a traditional space activities.  Air law has several decades of experience on space law at resolving liability, regulating transit, and protecting passengers.  Why not let it do what it does best?

Dan St. John is the Denver Journal of International Law & Policy’s outgoing Online Editor in Chief.  He founded the Space Law Society at DU Law, participated in the Manfred Lachs Space Law Moot, and intents to work in space law.

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Exports

A Brief Overview of US Export Control Policy for Space Technology

Exports

Better make sure those are ITAR Approved
(Mercator Cargo)

Congress passed the Arms Export Control Act in the 1970s to prevent sensitive technology from being exported to US adversaries.  To accomplish this goal, the Act created the International Traffic in Arms Regulations (ITAR), which authorized the Department of State to create a set of guidelines to control and license sensitive exports.  ITAR’s purpose is to further “world peace and the security and foreign policy of the United States.”[1]  Although a sensible precaution to prevent sensitive technology from being transferred to the Soviet Bloc during the Cold War, maintaining space systems as munitions only hurts US industry today.  However, the ITAR licensing regime is a vestige of a bygone era.  Indeed, the United States is the only country that continues to treat commercially applicable space technology as a weapons system for export licensing—other states generally regulate this as a “dual use” item.  Dual use regulation is sensible because it concedes that the technology has commercial applications while recognizing that there are also military uses.  Space technology today is not what it was in the 1960s and 1970s: much of it is readily available and easily duplicated by others in the industry.

Since commercial satellites were returned to the ITAR regime in 1999, a Department of Defense study estimates that the US share of the commercial satellite manufacturing market has fallen by nineteen percent.[2]  Satellite industry trade groups estimate the losses are even larger.[3]  Although globally the satellite industry has grown, the US share of the market has diminished and US companies are increasingly dependent on US government contracts.[4]  In 2000, the US captured $6 billion of the $11.5 billion global satellite manufacturing industry.[5]  But 2008, the US satellite manufacturing only accounted for $3.1 billion of a $10.5 billion industry.[6]

The United States must relax its export controls for space technology.  No longer does the US have the technology monopoly it once had, making ITAR’s strict restrictions nonsensical when comparable technology is available from companies in other states.  Further, the geopolitical environment is no longer the bipolar hegemony that controlled in the Cold War.  Recognizing these changes, Congress took a step in the right direction to restore US industry as a player in the global marketplace when it returned the President’s discretion to place spacecraft systems on the Commerce Control List.  Pursuant to this authority, President Obama issued an executive order on March 8, 2013, which delegated authority to the Department of State to license certain items under the more trade-friendly Commerce regime.  However, if more drastic changes are not made, ITAR risks further isolating domestic industry as the rest of the world find easier and more reliable sources abroad.

There are also several voluntary international regimes that regulate sensitive technology with the aim to prevent weapons proliferation.  The Missile Technology Control Regime (MTCR) and the Hague Code of Conduct Against Ballistic Missile Proliferation (HCOC) seek to harmonize export regulations for space related technology and prevent proliferation of space-based weapons technology.  MTCR, however, merely provides a regulatory floor for those states that subscribe to it.  States—the US in particular—can impose higher licensing requirements.  HCOC, on the other hand, controls a wide array of space-related technology in order to curb the proliferation of ballistic weapons.  These controls are less burdensome on domestic industry because US regulations usually exceed their minimum requirements.

Dan St. John is the Denver Journal of International Law & Policy’s Online Editor in Chief and the Founding President of the Space Law Society at the Sturm College of Law.  Follow him on Twitter @danstjohn2.


[1] 22. U.S.C. § 2778(a)(1) (2012).

[2] Karri Allen, Comment, Communications Satellites and U.S. Export Controls: Correcting the Balance, 18 CommLaw Conspectus 463, 478 (2010).

[3] Id.

[4] Id. at 278; see also Ctr. for Strategic & Int’l Studies, Briefing on the Working Group of the Health of the U.S. Space Industrial Base and the Impact of Export Controls 37 (2008), available at http://csis.org/files/media/csis/pubs/021908_csis_spaceindustryitar_final.pdf.

[5] David Damast, Export Control and the Space Industry, 42 Geo. J. Int’l L. 211, 220 (2011).

[6] Id.

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Rocket Launch

Is it Time for a More Robust Registration Convention?

In December 2004, the United States representative to the UN Committee on the Peaceful Uses of Outer Space (COPUOS) commented that the Registration Convention—the international treaty mandating that states provide certain location and function information about things they launch into space—serves three purposes: it provides traffic management information to the spacefaring community, enhances safety, and identifies space objects.  The representative was perhaps being generous when he said that the Registry “has served a useful function in regard to each of these concerns.”

First and foremost, there are two international Registries for states to report their space objects.  Resolution 1721 B created a Registry in 1962.  When the Registration Convention came into force in 1976, a second Registry was created to comply with the requirements in that treaty.  On top of these, there are myriad national registries.  Consequently, no one registry has a complete list of registered space objects.  Any benefit to traffic management and safety is undermined by an incomplete list.

Rocket LaunchTo compound the incompleteness, not all space objects are registered.  Indeed, the “timely manner” requirement is often overlooked as satellites are registered months after launch.  The United States did not register the Space Shuttle launches until the orbiter was back from its mission.  Clearly, a state cannot take precautions during launch if it bases its traffic management and situational awareness analysis on a list that does not yet include a space object in orbit.  Therefore, any effective registry should have a requirement that the orbital specifications be logged before the space object is launched and very soon after the space object changes position.

A satellite’s orbital parameters—the satellite’s nodal period, inclination, apogee, and perigee—are not usually able to provide long-term location information about the space object.  Station keeping, the uneven heating of the Earth’s atmosphere, and other perturbations introduce an element of randomness that cannot be accounted for in long-term conjunction analyses.  So while publishing this data—if published before the space object is launched—may initially help other states with traffic management, if not updates regularly, the data is unhelpful.

However, the Convention’s requirement that the satellite’s purpose be published serves an important purpose.  Specifically, this requirement should help ensure that no illicit space objects are launched.  The United States, however, describes most registered items as “[s]pacecraft engaged in practical applications and uses of space technology such as weather or communications.”  Russia and China are more open about their satellites’ purposes.  Of course, expecting a state to be open and honest about issues of national security is naïve, byt suspiciously listed items could be further examined by the international community.  This, hopefully, would go toward promoting the peaceful use of outer space.

So while the Registration Convention has gone a long way toward promoting some transparency in outer space activities and reminding launching states that they retain jurisdiction and control over their space objects, the practical effects in terms of assigning liability for collisions and allowing states to avoid other objects in orbit are more limited.

In 2007, the General Assembly adopted a resolution advocating for an enhanced registration regime.  Many of these suggestions made practical sense.  Harmonizing the registration process, for example, is a simple change that would ensure that states provide the same information (regarding orbital characteristics) using the same metrics.  It also counsels states to update the registry when the satellites orbital dynamics change.  There seem like common sense suggestions.

Beyond those fixes, the desirability of further modifications to the Registration Convention depends on what our goals are.  If keeping space free of nefarious space objects is our goal, the current regime is probably sufficient.  However, if we want to create a more robust liability regime, more is needed.

In the short run, labeling pieces of the satellite should help—although certainly not solve—issues of liability.  If a fuel tank with a US flag lands on a farmhouse in Argentina, it is difficult for the US to claim ignorance.

Granted, this would not help with collisions in outer space: (1) any collision where liability is unclear is likely to involve a component piece (that would be too difficult to label) and (2) it would be impossible to physically examine the wreckage for registration labels on orbit.  Issues of identification would be better resolved through space situational awareness—that is, tracking the location of satellites and debris using sensors.   That, however, is a discussion for another day.

As for the Registration Convention: it accomplishes its purpose as a historical repository and a method for verification.  What more could we want from it?

Dan St. John is the Editor in Chief of The View From Above.  In addition, he founded the Space Law Society at Denver Law and is the Captain of DU’s Manfred Lachs Space Law Moot Court team.

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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.
(http://usuaris.tinet.org/)

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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The Bogotá Declaration and the Curious Case of Geostationary Orbit

Get off my land! (Softpedia)

Get off my land!
(Softpedia)

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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Denver Journal of International Law and Policy

Preview: The Trouble with Westphalia in Outer Space

Volume 40, Issue 4 of the Denver Journal of International Law and Policy is off to the printers. Here is a preview of one of the articles, The Trouble with Westphalia in Space: The State-Centric Liability Regime, by Dan St. John.

What happens when a satellite owned by a private company in one state crashes into a bit of detritus that fell off another state’s rocket?  International space law has a regime for addressing this dilemma; however, the solutions reflect the era they came from.  A better system is needed to address the emerging commercial space sector.

In the 1960s, the international community convened to build a framework governing state activities in outer space.  Given Cold War fears, these treaties were imbued with principles of cooperation and mutual assistance.  The space liability regime, therefore, is built around diplomatic, cooperative dispute resolution between states.  I explain the treaty system and how a state must bring a claim, from identifying the responsible party to forming a Claims Commission.  The space liability regime, however, meant to supplement other international mechanisms for assigning liability.  If the treaty process is ineffective, state responsibility and international liability are principles to fill the gaps left by the space treaties.

Despite the time and effort put into building this structure, the treaty framework has formally been used only once.  And today, with space becoming increasingly crowded and private companies launching more into space, a state-centric liability regime is not the most effective way to handle problems.  It is unlikely that a new treaty will be negotiated soon, so I propose the private sector use alternate mechanisms to preempt the treaties, such as a robust contractual allocation of risk.

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