INTERNATIONAL LAW OF OUTER SPACE
------------------------------
John Pazmino
NYSkies
nyskiesastronomy@earthlink.net
2005 December 26
Introduction
----------
Despite a cold rain, edging into sleet, and the threat of a
transit labor strike only hours later, the NYSkies Astronomy Seminar
met on Thursday 15 December 2005. Stephen Lieber, the speaker, waited
a while for latecomers before beginning his talk on 'International law
of outer space'. In the meanwhile we caught
up on several news items like the leapsecond to be intercalated on New
Year's Eve, the fate of Japan's Kayabusa asteroid probe. We also took
up various astronomy questions, like the cause of the sharp boundary
of the Sun's photosphere By 7:30OM the audience accumulated to ten
people.
I give below a brief overview of Lieber's talk, with a few
extensions from other sources.
Treaties and resolutions
----------------------
Lieber reviewed the concepts and principles behind the various
treaties issued by the United nations since the 1960s. He showed the
distinction between 'treaty' and 'resolution'. A UN resolution is a
statement by the UN on a specific matter and is not a binding
instrument. Nations do not sign a resolution; it is enacted by a vote
of the UN General Assembly.
A treaty is a formal document usually written in general terms,
approved by the UN General Assembly, and then signed by nations. When
a nation signs a UN treaty, its provisions become part of the nation's
own laws. A treaty can evolve from previous resolutions.
The United States balks at signing certain UN treaties for outer
space and asserts it is not obligated to observe them. This action
comes from the American supremacy in outer space, utterly
unmatched by any other nation or group of nation. The US can feel that
certain treaty articles unduly restrict its operations, actual or
potential, in space.
Treaty language
-------------
A United Nations treaty, as a piece of law, is a refreshing
cleanly worded instrument, altho vague by American legal standards.
Part of the reason is that a treaty deals with broad concepts rather
than detailed actions. An other is that the treaty is converted into
the five UN languages, for words and grammar rather peculiar to outer
space. The UN languages are English, French, Spanish, Russian,
Chinese, from those of the victors in World War II.
The UN is behind the US in gender-neutral language. The newer
treaties still speak of 'mankind', 'manned space flight' and similar,
US literature in the 1980s and 1990s already switched to terms like
'humanity', 'humankind', 'human space flight'.
Signators of treaties
-------------------
The United Nations is an organ of countries. In the early days of
space programs, it was assumed that, due to the immense expense and
effort, space projects would be conducted by nations, not private
groups. The notion of private companies varies widely across nations,
from devil-may-care to government fronts to prohibition. Thus defining
a nongovernmental spacefaring group is impossible, Hence, all outer
space treaties apply ONLY to countries, not corporations or other
private groups.
While nongovernmental space groups are not part of the treaties,
the signators are bound to oversee and regulate them within their
countries in accordance with the treaties. Thus a private company that
acts contrary to a treaty from within a signator country can be taken
to task by that country.
Note that the space operation must be seated or home in the
country, which is generally taken to mean that the launch of the
objects associated with the activity must be inside the country. A few
companies are trying to evade treaty coverage by launching from the
high seas, which are outside the jurisdiction of any country.
There is question whether a country no longer existing can pass on
its treaty obligations to its suceessor. The prime example is the
Soviet Union, which died in 1992. Are the treaties signed by the USSR
binding on its 15ish new countries? The US is voluntarily assuming so,
altho these countries did not specificly reaffirm the treaties with
their own signatures.
Prior experience
-------------
The law of outer space banks off of prior experience with the high
seas, Antarctica, and international aviation. There are similarities
and differences among these other bodies of law, but they are the
foundation for developing space law.
In addition to the roof of the United Nations space treaties,
nations may arrange among themselfs for handling assorted situations
regarding outer space. Such agreements can not undo the treaty if any
of the parties is a signator of that treaty.
A nation who does not sign a given UN treaty is not legally bound
by it. Complaints from other countries, debate in the UN, and public
spotlight often move the country to observe the treaty.
An other important precept of treaties in general is that in
formally declared warfare they are suspended or abandoned. If the
United States declared war on Iraq -- which it din't! -- it could
field nuclear weapons in space as part of its military needs.
Realm of outer space
------------------
No treaty actually defines 'outer space'! It is usually considered
the realm above Earth where an artificial satellite can remain in
orbit, at least for a few weeks, but his in NOT stipulated on paper.
If aerodynamic methods can be used to operate a craft, it is
considered an aircraft. It is not covered by space law. Existing
aeronautics and aviation laws apply.
A nation can restrict or prohibit aircraft flights over its
territory but not space vehicles. There is the functional problem that
a country can warn an aircraft, which can then maneuver away. A
spacecraft, being essentially a free-fall body, can not be so simply
steered.
Any planet, moon, asteroid, comet, other celestial body is 'in
space' and is governed by space treaties. A natural celestial body
that arrives on Earth, like a meteorite, is not part of the space
treaties. It belongs to the receiving country.
For history's sake the first deliberate launch of a craft into
outer space was the German V2 rocket in tests in 1943. During World
War I Germany used a super cannon that hurled shells about 150
kilometers. The peak of the shell's trajectory would have been in
space, but at the time no one appreciated that feat.
Launch country
------------
The 'launch country' is a cardinal concept in outer space law. It
is the nation who physicly sends the craft into space. It is NOT the
owner of the craft or rocket. It's the owner of the facility that
placed the object in space. A British telcomms satellite loaded on a
Ukrainian rocket is launched from Nigeria's spaceport. Nigeria is the
launch country for treaty purposes.
It is from this concept of launch country that many nations prefer
to do their own launches and not avail of foreign launch services. If
their craft lands in an undesirable foreign land, it is handed back to
the other country who launched it, not the craft's home country.
Property in outer space
---------------------
Outer space is declared to belong to all humanity. No nation can
assert sovereignty over a region of space or on any celestial body.
Any nation may send vehicles, probes, humans, to any place in space.
Some private companies claim that because they are not a 'country'
this lack of property right does not apply to them. They assert
ownership of a this or that celestial body and pretend to sell plots
of it. In the United States, a signator of many space treaties, these
companies are covered by those treaties. This follows from the
signator's obligation to govern private space operations within it by
treaty provisions.
In this sense, outer space is similar to the high seas, where
ships may travel freely and openly anywhere in the world without first
answering to property claims. There is territorial water, within which
the adjacent country has jurisdiction, like it has jurisdiction over
the atmospheric region above it.
If a nation does work to extract or recover material from space,
that material belongs to the that country. The actual example is
sample collection from the Moon and [hopefully] an asteroid or comet.
A potential situation is mining, extraction, lifting natural resources
from the Moon or Mars.
This is sometimes called the 'dirt-in-shovel' concept. As long as
the material is part of the celestial body, it's common domain for
all. Once it's in your shovel, it's yours.
The ambiguous case would be if a nation roped and captured an
entire asteroid, as is proposed by some futurists. It may be that
merely landing on an asteroid is not 'capturing' it, but moving it out
of its natural orbit into an other one may be.
The launch country has ownership of Earth items it places in
space, like a orbiting or lunar habitat. It can not claim ownership of
the land under or the space around the habitat.
Selling space lands or names
--------------------------
Many private companies pretend to own real estate on the Moon,
Mars, or where ever in space and offer it for sale. They make the
offer by official-looking news media ads and websites. Similar
practice comes from firms who sell names for stars, galaxies, and so
on in space.
Spacefaring groups, working on a shoestring of funding, at times
go ballistic about these land sales! They struggle endlessly to get up
money for bona fide space advocacy, then hear and see ads for land on
the Moon. It is plausible that in one night of television ads a space
land company rakes in more money than the spacefaring group does in a
year! A similar scene falls onto astronomers, also starved for
funding. They witness the star naming companies haul in thousands of
dollars a day. This could fund any of a variety of legitimate science
projects.
These private firms don't come under UN treaty because the
treaties apply only to countries. But because countries agree that
space has no property rights. The land or name purchase can not be
enforced. The buyer does not own the land or name. Any one may upsurp
it. A company may, for instance, sell 'your' star to some one else
with nothing you can do about it. In the US, consumer and trade laws
requires a disclaimer about the legality of these offers. Laws in
other countries may be lax or lacking.
Ownership of spacecraft
----------------------
The country that LAUNCHES the object owns it continuously while it
is in space and when it returns to Earth. There are no unclaimed
spacecraft, even dead or abandoned ones. They remain the launch
country's property.
When an Earth object returns to Earth, like an astronaut capsule
or decaying satellite, the launch country still owns it, regardless of
where it lands. The receiving nation must either let the launch
country retrieve the object or collect and return it to that country.
Within the United States, a space launch by a private party is
still considered an American launch for treaty purposes. It is also
subject to a raft of internal regulations applying to launches from US
territory. Boeing, as one example, offers launches from an ocean
rig,outside US waters. This scheme, SeaLaunch, hopes to escape US
internal space provisions.
If a spacecraft breaks up, by explosion or jettison, the pieces
are still the property of the launch country. To relieve the ownership
responsibility, the object must be removed from space. This is the
case for craft that incinerate in the atmosphere. The Galileo probe,
owned by the US, is now no longer in space, having been spiked into
the Jupiter atmosphere and is completely consumed.
Peaceful uses of space
--------------------
Outer space must benefit all humankind. No country can restrict or
ban participation in space benefits by other countries. No nation may
interfere with the space operations of an other nation, as by building
a Mars base too close to a foreign one. Any benefit from exploitation
of outer space must be constructively available to all nations. This
includes samples, mineral ore, scientific information.
Only peaceful application of space are allowed. There is a whole
body of contention about what is 'peaceful'. There is already allowed
spy satellites and military communications and support satellites. The
American GPS network is a military project; it's run by the Air Force.
The Clementine lunar orbiter probe was also an American military
project. These, so far, are considered 'defense' operations rather
than aggressive ones.
Changing military technology is blurring the line between
offensive and defensive projects. The trend seems to be that if the
operation does not directly aggress onto an other nation, it is
defensive. Thus passive monitoring and surveillance is permitted, even
radar and laser tracking of foreign spacecraft.
So far it is allowed that military craft, apparatus, crew may
operate in space if their mission is defensive or peaceful. NASA could
fly a spacecraft whose camera optics were built by the Army, so long
as the camera is then used in a nonaggressive manner.
The United States has held back on some treaties for having
articles it feels conflict with its ordinary and usual military
business in space. The US is plain the world's leading spacefaring
country, bar none.
Sharing the benefits
------------------
For the foreseeable future only a few very affluent and
experienced nations will conduct substantial activity in space and
derive useful benefit from it. The treaties call for a genuine effort
to share these benefits with all humanity and not keep them for the
particular spacefaring country.
Science samples must be available for study by all countries.
Resources developed in other planets must be open for all nations to
avail of. This feature of space law so far prevented the pell-mell
rush to build factories, mines, wells on the Moon. Any wealth derived
from these projects must be realisticly open for others to benefit
from.
While there is for sure secret information collected for military
purposes, if the information can prevent harm to other countries, it
must be released publicly. A possible case would be the discovery of a
radioactive outcrop on Mars that could harm instruments on foreign
rovers passing near it.
Limited resources
---------------
Some beneficial resources in space may be limited. Examples
already to hand are the longitude slots on geostationary orbit and
radio frequency bands for satellite communications. The radio spectrum
is allocated by the rules of the launch country, but must not
interfere with those assigned by other countries. Potential
interference with ground-based frequencies in the receiving countries
is handled by existing telecommunications regulations.
Geostationary orbit has a set of longitude slots. The satellites
can not be placed closer than a degree or so apart in longitude. This
is due to station keeping leeway, wide beamwidth of Earth receivers,
and frequency conflict.
There is now some argument to somehow better allocate these
limited resources among nations, with no definite solution as yet.
Some countries on the equator claim that the geostationary slots
standing above them 'belong' to them. They are seeking to rent or tax
the use of these slots by foreign nations.
A new limited resource would be the potential pool of ice at the
lunar south pole. If one nation develops it into a water supply for
human habitats, it must allow other countries to tap into the ice also
for their own bases.
Propaganda from space
-------------------
One of the major uses of outer space is broadcasting radio,
television, Internet by one country into an other. The receiving
country can declare the content to be offensive and seek ways to
interdict the broadcast. The obvious example today is the debut of
Howard Stern on Sirius Satellite Radio on 9 January 2006. Stern was
penalized several times for his out-of-compliance ground-based
broadcasts. So he moved his show to space, outside US jurisdiction.
The content can be political or social. Already there is agitation
against space-based feminism shows beamed to nations who don't care
about such issues. The major problem is that the signal is available
to any one with a suitable receiving device,
From experience with radio and television on the ground, there is
no way to prevent the transmission into the receiving country. The
receiving country may jam the signal, ban radio and television sets
capable of picking up the signal, broadcast opposing views.
Imaging and sensing
-----------------
An early benefit from space operations is imaging and sensing.
These range from the first crude cloud pictures for weather monitoring
to today's centimeter-level resolution photography. For the most part,
the images and data are openly available to anyone. Either they are
free for the asking or there's a fee from a commercial source.
The rise of Internet and the rampant distribution of satellite
data and images thru it seems to be in tune with the principle of
sharing the benefits from space. However, some countries are raising
severe complaints that the open market for pictures and data of just
abut any spot on Earth poses threat to sensitive facilities. Once in a
while, associated with a news item, there is published for all to see
a high-resolution photo of some secret missile station in an
undesirable country.
The biggest distributor of space data, by far, is the United
States. By internal laws, space benefits must be available to
humankind as part of American society and ideals. More over, most
private companies in the US follow the same principle; Pay the fee,
here's the picture.
Goggle Earth, as one instance, offered in fall of 2005 that
all nations give it a list of their secret locations with coordinates,
description, purpose, kind of facilities, and so on. Google would post
this list on its website. Visitors will know where they are not
supposed to look. No country so far took up this offer.
Liability and damages
-------------------
The damage or other harm caused by a space activity is the
responsibility of the launch country. It must make good on claims and
costs from the damage. So far, there is the one major instance of
Cosmos 954, a Soviet spy satellite that decayed and fell into Great
Slave Lake, Canada in 1978. It carried a uranium-fueled power supply
that so far was never recovered and is presumed still in the lake. The
Soviet Union paid Canada about $3 million as damages.
The launch country may have internal procedures to pass on the
liability to an other entity, such as the company that built the craft
causing the harm.
Emergencies in space
--------------------
Countries must come to the assistance of endangered foreign humans
in space. Aid can be supplies, medical attention, shelter, protection
from space environment, return to Earth. This is an extension of the
rule of the high seas and Antarctica.
As yet there is no generally agreed on distress system like '911'
in the United States telephones or 'SOS' for Morse code. The imperiled
country just alerts others of the danger, describes it adequately, and
allows the aid from other countries.
Weapons in space
--------------
No nuclear or mass-destruction weapons may be placed or used in
outer space. The first push for this law was the nuclear test ban
treaty of the early 1960s, which included wording about deployment or
testing in space. Mass-destruction includes the usual chemical and
biological methods, but allows for new ones like microwave beams that
boil up the brains of every one in a large town.
For nuclear devices, the ban is not only on weapons as such but
any detonations of nuclear devices, like for spaceship propulsion. It
does allow nuclear devices for electric power, heating, manufacturing,
and other nondetonative functions. The radioisotope thermoelectric
generators of interplanetary probes are permitted.
If there is any chance that a nuclear device could return to Earth
in an uncontrolled manner, the device must be built to return intact
with as little release of radioactive material as possible.
The precipitating incident was the fall of Cosmos 954. A potential
incident was the Cassini probe in the 1990s. It had a nuclear power
pack. To reach Saturn it swang by Earth just above the atmosphere. The
aim could have dipped it too low and it could have decayed to Earth
with the possible spill of its nuclear fuel.
The space treaties do not deal with suborbital weapons, even if
the delivery method carries the weapon into space momentarily. ICBMs,
cruise missiles, and drones are not banned by the space treaties.
Also missed from space treaties are weapons other than those for
mass destruction. These include ordinary firepower, chemical
explosives, collision devices, spray or blinding devices. laser beams,
and high energy ion beams.
Contamination of outer space
--------------------------
Operations in space must not pollute or otherwise degrade the
environment of outer space or of any celestial body. Occasional inert
harmless debris, such as parts of a planet probe left behind when it
lifts off back into space, are allowed. Likewise, a probe, like
Huygens or the Mars rovers, are allowed to remain on their planets
after they expire.
The intent is to prevent use of space for waste dumps or
industrial effluents. Thus, large-scale, which no treaty
specificly defines, pollution is prohibited. It is historicly
interesting to note that this treaty article was approved several
years before the American environmental movement began on Christmas
Eve of 1968.
Objects placed in space must be sanitized to remove Earth germs
that could take root elsewhere. The extent of cleansing depends on the
mission. A satellite in low Earth orbit may get a lesser treatment
because it remains near Earth and will incinerate on in the air. A
probe meant to land on other worlds must be thoroly cleaned of all
possible Earth life.
Spent rockets, dead satellites, failed interplanetary probes
should be deliberately removed from space or placed in safe locations
where they can be monitored.
Any thing brought from space to Earth must be handled so that it
does not contaminate Earth. While probably, based on experience with
the lunar explorations, there is no exotic germ or insect that can
hide in a return capsule to run riot over Earth, we simply don't dare
take the chance. On this concept the earlier Apollo astronauts were
put in isolation chambers to guard against releasing some strange
space hazard on Earth.
Space traffic control
-------------------
There is nothing in space like the air traffic control system on
Earth. Each space activity is operated separately from others, except
as may be agreed between nations on their own. A country may place a
satellite in any orbit it wants, at any elevation and inclination;
send probes to any celestial body; land robots or humans on any
celestial body.
Nations are required to register their successful launches with
the Secretary General of the UN (actually a commission he charged with
this chore). The launch country provides basic data about the launch
such as name, date and hour of launch, launch location, general
purpose, initial orbital elements or interplanetary trajectory. The
purpose may be quite vague, so countries can protect sensitive
missions.
Apart for record-keeping, these data are needed by other nations
to avoid interfering with current space operations. These data are a
continuation of the early COSPAR registration scheme,
Spacefaring concerns
------------------
Steve's overview of space law should be of paramount concern for
spacefaring advocates. These principles and precepts must be seriously
considered in their promotion of space exploration and exploitation.
Yet, in my experience with such advocates, there seems to be
wholesale absence of awareness or even care about the law of outer
space! Futurist ideas like nuclear bombs to propel rockets, farming
and fishing on other planets, terraforming, microwave power beams,
strip-mining, covering half a planet with photovoltaic panels, using
craters as garbage dumps, firing rail guns, floodlight mirrors in
orbit, building 'Los Angeles' towns, chopping up whole asteroids,
seeding human genes are all bantered about as if there can be no
problem or worry.
It almost sounds like the green ethic belongs only on Earth! One
argument in this regard is that Earth resources are obviously finite
and must be treated with all due respect. Space, on the other hand, is
the infinite bontitude, where after exhausting one world, there are
endless other fresh ones over the hills.
There was right here on Earth a whole society built on this
premise. On was the 18th and 19th century industrial movement. The
other was the 20th century Soviet Union. Do we really want such
cultures diffused thruout the solar system?
Steve's talk would be a capital item on the lecture slate of
spacefaring groups.
Followup resources
----------------
Steve handed out samples of documents relating to space law. The
first place to stop at is the United Nations Office for Outer Space
Affairs. This is a roof agency that handles UN matters about outer
space. It reports to the Secretary General. This office maintains the
texts of the UN treaties and resolution for outer space, discusses and
debates at meetings, studies new situations.
This office is homed in Vienna, Austria, but it interacts with UN
headquarters in New York. With the current rebuild of the New York
campus and temporary relocation of its tenants, just about all UN
business may be severely curtailed for the rest of this decade.
An other major resource is the American War College of the US Air
Force. The Air Force is the largest and most powerful single entity
engaged in outer space operations. It maintains literature relating to
military uses of space, with the American interpretation. Military
agencies of other nations likely have similar literature for public
dissemination.
Conclusion
--------
Lieber's talk tapered down at about 9:30, the latest ever closing
time for the Seminar! Normally we would try hard to close up by 9. We
chatted briefly on the stairs and in the street, then headed off home.
The next Seminar is on Thursday 5 January 2006, 7PM, at St Paul's
Lutheran Church, 315 W 22 St. That's near 8 Av in Chelsea. Start the
New Year with good astronomy!