Legal Regimes in Space

There are treaties and regulatory arrangements that have a bearing on some aspects of space use. One can also draw analogies for space from treaties regulating other arenas, such as Law of the Sea or the Antarctica Treaty, although none are wholly relevant to the space issue. The nuclear nonproliferation regime and President Eisenhower's Atoms for Peace speech serve as additional useful models.

SECURITY-SPECIFIC TREATIES

The UN Charter is the foundation upon which most multilateral treaties governing the use of space has been based

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the UN [Article 2.4, UN Charter]

Limited Test Ban Treaty (1963)

• Banned nuclear weapons tests in outer space
• Preceded the Outer Space Treaty
• Was the first legally binding document containing a specific prohibition of the military use of outer space

Outer Space Treaty (1967) (PDF 47K)

• Originated in the Committee on the Peaceful Uses of Outer Space [COPUOS]
• Provides that outer space is not subject to national appropriation by claim of sovereignty or other means
• Forbids states from any activity that could harmfully interfere the peaceful space activities of other countries;
• Prohibits the deployment of weapons of mass destruction in orbit, on celestial bodies, or in any other manner in space;
• Prohibits the establishment of military bases, installations and fortifications on celestial bodies
• Prohibits the testing of any type of weapons and the conducting of military maneuvers on celestial bodies
• Provides that a state is internationally liable for damage caused by its space objects

Moon Treaty (1979) (PDF 47K)

• Originated in COPUOS
• Reaffirms the Outer Space Treaty's demilitarization of the moon
• Has not been ratified by the space powers

ABM Treaty (1972-2002)

• US-Russian bilateral treaty
• Forbade the deployment and testing of ABM systems or components in space
• Forbade parties from interfering with each others' national technical means of verification

OTHER RELEVANT AGREEMENTS

MTCR

• A consensual protocol signed by the 33 nations, including most of the world's space-faring nations to restrict exports of missile-related technologies to countries that are not members
• There are no provisions in the regime for enforcement of its terms or sanctions for violations. US laws, however, require the imposition of sanctions against entities that export or import items controlled by the MTCR.

Liability Convention (1972) (PDF 22K)

• Originated in COPUOS
• Elaborates on Article 7 of the Outer Space Treaty
• Provides that a launching State shall be liable to pay compensation for damage caused by its space objects on earth, in air or in space
• Provides procedures for settling claims for damages

Registration Convention (1976) (PDF 20K)

• Originated in COPUOS
  
• Provides that states should maintain a national launch registry and transmit information from that registry to a registry that is maintained by the UN
  
• The US State Department maintains the US registry.

The Rescue Agreement (1968) (PDF 17K)

• Formal title: The Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space
• "States shall, upon request, provide assistance to launching states in recovering objects that return to Earth outside the territory of the launching state."

The International Telecommunication Union (ITU)

• Is an agency of the UN
  
• Composed of member states
  
• In the US, the ITU Radiocommunication Bureau has responsibility for coordinating US commercial satellite networks with the networks of other countries.
  
• This coordination is designed to avoid harmful radio frequency interference.

LEGAL PARALLELS

The Antarctic Treaty (1959)

• Designated the Antarctic continent as a sanctuary for peaceful use for the benefit of all mankind
• Prohibits "any measures of a military nature", which includes:
  
  • The establishment of military bases and fortifications
    
  • Carrying out military maneuvers
    
  • Testing any type of weapons
    
• It does, however, allow for military personnel and equipment to be used for scientific research for peaceful purposes.
• It was an attempt to avoid a colonial scramble for land (several countries had already made claims on sections of the continent).
• Banned nuclear explosions and the dumping of radioactive waste

Concepts for managing the use of the oceans:

High Seas Analogy

• First come, first serve and finders keepers
  
• This rationale is currently used by many advocates of "Space Control"
  
• The rule/policing of the sea, and space, by the most powerful

Freedom of the seas

• Eventually became preeminent over the High Seas analogy
  
• Enforced by Pax Britannica
  
• The basic rationale for this principle was set forth by the Dutch Jurist, Hugo Grotius in the early 17th Century
  
• Assumes limitless resources (fish, oil and minerals):
  
  • "the sea can in no way become the private property of any one, because nature not only allows but enjoins its common use...Nature does not give a right to anybody to appropriate such things as may inoffensively be used by everybody and are inexhaustible, and therefore, sufficient for all."

Law of the Sea

• An effort at more detailed codification conducted when it became evident that ocean resources were indeed subject to scarcity, pollution had become a major issue and that in general wider-scale use necessitated more formal agreements
  
• The use of space is approaching a threshold whereby such a more detailed codification is necessary

• The precedent of Atoms for Peace, in particular, reveals many operational, technical and political lessons for developing global norms for the possession, diffusion and potential use of dual-use space technologies.
• Faced with the immense implications of a revolutionary technology, President Eisenhower proposed that the three nuclear powers of the time, Great Britain, the US and the USSR, give a portion of their stockpiles of fissionable materials to an international agency where scientists would study ways to use atomic energy for peaceful purposes. This would reduce the amount of material that could be used to produce weapons, serve as the basis for more significant future disarmament and create mutual trust between the two superpowers.
• Even though the Atoms for Peace initiative did not entirely fulfill its original purpose, there are many reasons to look to this model as an example of the kind of regime that has, like the International Atomic Energy Agency (IAEA), the authority to establish a set of rules, safeguards and means of verification to limit the dual uses of space technology and help in managing the many functions that space can serve.
• Atoms for Peace and the regulation of space have important parallels, not least the challenge of dual-use technologies. The very technology that makes it possible to utilize space for global economic, humanitarian and scientific advances can also be applied to weapons development with potentially global lethality.
• As is pertinent to the management of space missions, Atoms for Peace recognized that the peaceful benefits of nuclear technology could be used in a pragmatic way to elicit the cooperation of nations to agree to eschew the development of nuclear weapons. This was achieved in two ways: by extending the benefits of access to nuclear energy to all countries who complied with norms, and by pledging to protect the security of countries who feared falling victim to the threat of nuclear coercion.
• Atoms for Peace established the foundations for an enduring and successful regime by recognizing the need for global verification and full transparency. To ensure that the key incentive for compliance -- the provision of nuclear technologies to peaceful countries -- not result in the diversion of those technologies to illicit military uses, the IAEA devised detailed procedures to distinguish between peaceful and weapons-related nuclear components, to conduct inspections of countries' nuclear infrastructures, and to distinguish between legitimate and illegitimate applications.
• The inspections were consensual, but backed up by enforcement provisions if a country was believed to be acting deceptively. As should inform a space regime, refusal to disclose activities to an international body should be taken as an indicator of an intent to violate.