Who governs space?

Almost immediately after the dawn of the space age governments around the World became convinced that regulation of activities in space was going to be required if we were to ensure that outer space would was to be used in an orderly manner, and for peaceful purposes.

So, since 1961 issues relating to the use of space have been dealt with through the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), a permanent committee of the United Nations supported by the United Nations Office for Outer Space Affairs (UNOOSA).

In many ways, the drafting of space law borrowed from principles of the law of the high seas, and with initially only a small number of member states on the UN’s space committee it was able to relatively easily agree on things. This resulted in the adoption of five UN Treaties between 1967 and 1979.

Acceptance of these treaties by UN member states was initially good. But, diminishes with each successive treaty. This, along with the growth of membership of the UN’s space committee to include non-space fairing nations has, since the 1980’s, led towards the adoption of Principles rather than Treaties.

The first of the treaties is the Outer Space Treaty. This sets the core principle that use of space should benefit humanity. And, that outer space and celestial bodies cannot be claimed by any nation. This means that, unlike on Earth, there is no ‘territorial jurisdiction’ in outer space.

So, the planting of the stars and stripes on the Moon by US Apollo astronauts did not mean the Moon had become US territory.

The treaty also states that activities must be carried out in accordance with international law, including the UN Charter. This is in the interest of maintaining international peace and security, and promoting international cooperation and understanding. This means that provisions of the UN Charter on the duty to not threaten to, or to use force, and the right of self-defence are equally applicable to activities in space.

Curiously, the treaty only requires that the Moon and other bodies be used “exclusively for peaceful purposes” but this does not apply to space itself. However, there is a ban on putting nuclear weapons and weapons of mass destruction anywhere in space.

The treaty also makes clear that nation states are responsible for space activities, that they commit to avoiding any harmful contamination of space and celestial bodies, and that they are liable for any damage caused.

The subsequent treaties in many ways seek to further clarify this original treaty, addressing in-turn, the rescue and return of astronauts, liability for damage caused by space objects, and an obligation to register objects launched into space with the UN.

The fifth and final treaty is the Moon Treaty, which sought to address the legal status of celestial bodies and specifically the exploration and exploitation of natural resources on them. However, with so few states accepting the treaty, including the US, Russia, Japan, China, and most of Europe it’s gained very little relevance.

Many countries have reflected their obligations in national legislation. Norway was the first to introduce its legislation, in June 1969, followed by Sweden in 1982, the USA in 1984, also updated in 2004, the UK in 1986, also updated in 2019, and South Africa became the fifth country to do so in 1993.

Countries that don’t have national legislation must still license and supervise space activities. Having national legislation removes the need to do this on a case-by-case basis, providing a clearer framework, for example, making it clear that the country requires liability insurance by licensees. And, it allows countries to set desired norms of behaviour. For example, only licensing spacecraft to certain orbits if they are promised to be removed at end-of-life to help avoid creating more space debris.

Another key feature of the spacecraft licensing process is around frequency coordination, to ensure against interference in communication signals. For this, governments will submit a ‘satellite filing’ to the International Telecommunication Union (ITU), a specialised agency of the UN, on behalf of organisations within that nation.

Having the rights to broadcast on the correct frequencies can be critical to many types of spacecraft, especially communications and navigation spacecraft, and so ownership of these rights is closely guarded, and highly valued.

So, the legal framework for space activities is sufficiently general and flexible to enable and to encourage space activities be carried out in an orderly manner. But, generally speaking it is just that. To encourage. Enforcement of these rules can be a challenge.

The rules laid down during the cold war, when only a few countries had spacefaring capability, couldn’t fully foresee how many, and how broad a range of commercial space activities would emerge. And, as we look forward it’s likely that further agreements are required to address issues such as space mining, planetary protection, space debris, and the rights of private individuals in space, if we are to maintain order in space.