Why Outer Space Matters: Major Susan Trepczynski with a Brief Intro on International Space Law

45th Space Wing. c/o Pat Corkery, United Launch Alliance

45th Space Wing. c/o Pat Corkery, United Launch Alliance

Major Susan Trepczynski is the Chief, Air and Space Division at Headquarters, USAF (Operations and International Law Directorate).  She previously held space-related positions at Headquarters, Air Force Space Command and served as the space and cyber law instructor at the Advanced Space Operations School, where she taught on various aspects of law and policy applicable to space operations. In this fourth post of the Why Outer Space Matters series, she gives a brief introduction on International Space Law. 

The views expressed in this article are solely those of the author and are not intended to represent the opinion of the Department of Defense or the U.S. Government.

Space activities are subject to a specialized international legal regime consisting of four multilateral treaties:  the 1967 Outer Space Treaty (OST) (104 States party); the 1968 Rescue and Return Agreement (RRA) (94 States party); the 1972 Liability Convention (LC) (92 States party); and the 1975 Registration Convention (RC) (62 States party).  A fifth treaty, the 1979 Moon Agreement (16 States party), is included among the applicable treaties, though it has not been as widely accepted.  These treaties, developed within the auspices of the United Nations (UN), contain broad, general principles, not detailed or technical provisions directed toward specific space activities.  Consequently, the international legal environment created by the treaties is quite permissive and the original text of each treaty remains operative today – despite evolving technologies and the transformation of space activities from an exclusively governmental pursuit to one with increasing commercial equities. 

The OST is an umbrella treaty, with the RRA, LC, and RC elaborating upon concepts established in, or recognized by, the OST.  While these treaties contain specialized law for the space domain, it is important to note that they work in concert with other principles and sources of international law, including the UN Charter.  Where the space treaties do not speak specifically to a certain aspect of space activities, it is necessary to look to and apply all other relevant sources of international law.  The following provides a synopsis of the major provisions of each treaty:

Outer Space Treaty:  The OST incorporates the fundamental principles of freedom and non-appropriation, reflecting that space is free for exploration and use by all States and cannot be appropriated by any State.  States cannot make territorial claims to any part of space, including the area of space above their territorial airspace (though a precise boundary between the two domains is not defined in international law), meaning that space objects are not subject to overflight restrictions, which is essential to freedom of use/operation.  States also cannot claim any celestial body (planets, moons, stars, asteroids, etc.) or part thereof.  However, the non-appropriation principle is not generally viewed as prohibiting the use or extraction of resources from celestial bodies.

Article IV is the only provision in any of the space treaties that addresses weapons or military activities in space.  The OST is sometimes mistakenly referred to as containing a ban on weapons in space.  While OST Article IV establishes some limitations on types and uses of weapons, it does not contain a total prohibition on the use of weapons in space. 

States are internationally responsible and liable for their space activities.  Unlike many areas of international law, State responsibility and liability encompasses not only the State’s activities in space, but also the activities of its nationals (i.e., activities of private citizens and corporate entities).  The OST also requires States to authorize and supervise activities of their nationals.  As a result, States engaging in space activities should have domestic legal regimes (e.g., regulatory oversight and licensing) to implement these obligations.

The OST places liability on the launching State(s).  A State becomes a launching State if:  (1) it launches an object; (2) it procures the launching of an object; (3) an object is launched from its territory; or (4) an object is launched from its facility.  Consequently, for any given launch there can be more than one launching State. 

 Rescue and Return Agreement:  The RRA elaborates upon principles established in OST Article V.  In the event of an accident, distress, or emergency, the RRA requires States to provide all possible assistance to “spacecraft personnel” (a term meant to be broader than “astronauts”) and return them “safely and promptly” to the launching authority.  States are also obligated to notify the UN and the launching authority if any space object (or part thereof) is found in its territory and, upon launch authority request, must return such objects to the launching authority. 

Liability Convention:  The LC expands upon OST Article VII and establishes State liability under two regimes – absolute liability for space objects causing damage on the surface of the Earth or to an aircraft in flight, or fault-based liability for objects damaging space objects (or persons or property aboard) of another State.  Therefore, while there would likely be a potentially complex investigation into damage that occurs on-orbit in order to determine/apportion fault, the mere fact that a space object causes damage on the Earth is enough to establish liability.  In the case where there is more than one launching State, the States may agree to apportion liability amongst themselves (such as through launch contracts), but a claimant may claim against any or all of them.

Registration Convention:  The RC requires the State of Registry to furnish basic information to the UN for each space object launched.  There can be only one State of Registry, so in cases where there are multiple launching States, one must be designated as the State of Registry.  The information is furnished “as soon as practicable” after launch, meaning the RC does not serve a pre-launch notification function.  In addition, the basic nature of the information required means the only technical information that can be gleaned from the data is the general function of the object and its initial orbital parameters.

Many of the foundational principles in the OST reflect State practice that emerged in the decade between the orbit of the first man-made object in 1957 and the OST (1967).  The OST also incorporated the 1963 UN Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space.  Consequently, many assert that the fundamental principles incorporated into the OST (especially freedom and non-appropriation) reflect customary international law applicable to all States.

While this overview is focused on international law, States implement international obligations through domestic laws, policies, and regulations, which are often more restrictive than international law requirements.  Therefore, a thorough understanding of the legal regime applicable to a State’s space activities requires an understanding of its domestic law and policy.

Schedule of blog posts:

This blog series comes out of the October 2016 Inaugural Plenary of the MILAMOS Project in Montreal, Canada sponsored by the McGill Centre for Research in Air and Space Law (CRASL), the University of Adelaide's Research Unit on Military Law and Ethics (RUMLAE). The ICRC participated in the plenary as an Institutional Contributer.