The international governance framework for space activities has been developed by the United Nations.
The first instrument to be agreed by UN was the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space in 1963. In 1967, this declaration was followed by the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, commonly referred to as the Outer Space Treaty. The treaty was largely based on the declaration, with several additional provisions. Since international treaties are one of the sources of international law, the outer space treaty is widely regarded as the Magna Carta of international space law.
International law applies only to States and not entities within a State; as such it is the State’s responsibility to ensure that the legislative entities within the State abide by the principles by ratifying the treaties and incorporating the principles into domestic law. Figure 5.1 shows the number of treaties and national space regulations passed each year between 1957 and 2013. This highlights the increase in national legislation as States incorporate international treaties into their domestic law.
Figure 5.1 Number of treaties, national space laws and regulations per year between 1957 and 2013.
(OECD, 2014)
Key aspects of international space law include international conventions, such as the United Nations treaties on space activities, and international custom, in the form of general practices becoming accepted as law. For customary law there are two elements that need to be identified: general, consistent practice over time and that a number of States consider the practice to be obligatory, such as some of the guidelines and recommendations laid out by the UN working groups.
The basic framework of international space law comprises five broad multilateral treaties developed by the United Nations. The first of these was the Outer Space Treaty, after which four more treaties were adopted to elaborate on the text contained within the Outer Space Treaty (UNOOSA, 2013):
1. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, which entered into force on 3 December 1968 (Rescue Agreement);
2. Convention on International Liability for Damage Caused by Space Objects, which entered into force on 1 September 1972 (Liability Convention);
3. Convention on Registration of Objects Launched into Outer Space, which entered into force on 15 September 1976 (Registration Convention);
4. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, which entered into force on 11 July 1984 (Moon Agreement).
Of these, the most pertinent to a ‘launching state’ are the clauses on liability, dual use technology and the Registration Convention. Figure 5.1 along with Table 5.1 demonstrate a decrease in countries prepared to ratify the space treaties as they became more restrictive, particularly the Moon Agreement, which only attracted 17 signatories.
Chapter 5: Policy and Regulatory Aspects of Space launches
Table 5.1 Number of countries to ratify UN Treaties. (UNOOSA, 2017)
Outer Space
As the first of the treaties drafted, the Outer Space Treaty addresses most of the issues of space activities with a high-level approach, reiterating the principle that space should only be used for peaceful purposes.
Article I of the Outer Space Treaty states that the exploration and use of outer space including the moon and other celestial bodies shall be free for all States, and shall be carried out without discrimination, on the basis of equality, and that States should both facilitate and encourage international cooperation in this regard. This article supports the concept of knowledge-sharing and technology transfer, which to some degree has been hindered by the international arms control regimes like MTCR and HCoC.
Further to this, articles III and IV state that all States party to the treaties must conduct themselves in accordance with international law in the interest of maintaining international peace and that no weapons of mass destruction may be allowed in space. In keeping with this, the moon and other celestial bodies may not be used for military purposes, including establishing military bases and testing weapons.
However, the use of military personnel, equipment and facilities that may be required for peaceful exploration are not prohibited in these articles. This is relevant to the issue of dual-use space technology and the Missile Technology Control Regime (MTCR), as military equipment is not prohibited from use in space as long as it is not used in a harmful manner. The control regimes noted here are addressed in more detail later in this chapter.
Article VI states that Parties to the treaty are responsible for national activities in outer space and for ensuring that both governmental agencies and non-governmental entities under their jurisdiction adhere to the international conventions set out by this Treaty. Further to this, the activities of non-governmental entities require authorization and continuous supervision by the appropriate State Party. Should the entity be an international organization, the responsibility for compliance is borne by both the international organization and the States party to the Treaty.
Article VII highlights the issue of liability in space activities, stating that the States party to the treaty that launch or procure the launch of an object into outer space, as well as the State from whose territory the object is launched, are internationally liable for any damage caused by the space object. Article VIII states that the objects will remain under the jurisdiction and control of the state with whom it is registered, and that the ownership of these objects is also not affected by their presence in space.
The Convention on International Liability for Damage Caused by Space Objects expands further on the issues of liability regarding space activities, describing how compensation for the damage shall be apportioned. Given that these treaties have been ratified by South Africa, any damage caused by persons under South African jurisdiction results in South Africa as a State becoming liable for the damage.
Pertinent to launching space objects, in Article V the State from whose territory the object is launched is regarded as a participant in a joint launch, and therefore is jointly liable under the convention for any damage caused.
Article XXII states that, if an international inter-governmental organization is liable for the damage, the compensation claim should first be presented to the organization. However, should the organization not pay within a period of 6 months, the Claimant State may invoke the liability of the member States party to this treaty to cover the compensation. Although there is no requirement for it, in Resolution 68/74 the UN General Assembly recommends that States introduce insurance requirements for space activities operating within their jurisdiction to ensure entities are able to cover these potential costs.
The Convention on Registration of Objects Launched into Outer Space addresses how space objects should be registered in the event that multiple States are involved in a launch. Article II states that when a space object is launched into orbit or beyond, the launching State, which includes the State from whose territory it was launched, and the States that procured the flight or the State launching the object, must register the object on an appropriate registry. When the ‘launching state’ comprises multiple states, only one of the states is required to register the object.
There is also a requirement for all space objects to be registered with a registry maintained by the launching State. Further to this, the onus is on the state to inform the Secretary-General of the United Nations of all items on its registry. The content of the registry, which is maintained on a national level, is decided by the State, with consideration of the reporting requirements of the given state to the UN, which include the: a) name of launching State, b) registration number; c) date and location of launch; d) basic orbital parameters and e) general function of the space object. States that have not ratified this treaty are encouraged to register their space objects with the Untied Nations accordance with resolution 1721 (XVI) B (UNOOSA, 1961).
South Africa has domesticated its international obligations flowing from the Outer Space Treaty under the Space Affairs Act (Act of 1993). While South Africa had not ratified all these UN space treaties when the national law was drafted, it does reference the UN treaties as the law on which it is based.
Chapter 5: Policy and Regulatory Aspects of Space launches