International Space Law

Outer space is governed by an international legal framework consisting of five core agreements: The 1967 Outer Space Treaty, the 1968 Rescue and Return Agreement, the 1972 Liability Convention, the 1975 Registration Convention, and the 1979 Moon Agreement.44 Of these, the Outer Space Treaty (OST) is often considered the most important, establishing the fundamental rules governing space activity.45

Table 1: International Legal Framework46

Treaty Date Total Parties

Total Signatories

Outer Space Treaty 1967 110 23

Rescue and Return Agreement 1968 96 23

Liability Convention 1972 95 19

Registration Convention 1975 67 3

Moon Agreement 1979 18 4 For decades, states have considered outer space as res communis omnium, open to all states and not subject to national appropriation.47 Space is “owned by none, no one can colonize it, but everyone can fish in it”.48 Articles I and II of the OST enshrine this fundamental principle. Article I of the OST states that outer space should free for exploration and use by all countries, with free access to all areas of celestial bodies.49 This article clearly establishes space as the “province of all humankind”, in which emerging actors have the same rights to explore and use outer space for peaceful purposes as more established space nations. 50

Article I of the OST provides that outer space is explored and used “for the benefit and in the interest of all countries”. It remains unclear whether Article I’s understanding of benefit-sharing refers to monetary compensation, or the transferal and sharing of technological knowledge, or if it simply refers to the non-harmful use of outer space.51 The phrase "province of humankind" in Article I as a principle does not expressly prevent individual access, and has been suggested to mean responsibility, control or management over an area, rather than appropriation and property. 52 This has

44 Pershing (2019). 45 Pershing (2019). 46 McClintock, Bruce, Katie Feistel, Douglas C. Ligor, Kathryn O’Connor (2021) Responsible Space Behavior for the New Space Era: Preserving the Province of Humanity. RAND Corporation. https://www.rand.org/pubs/perspectives/PEA887-2.html 47 Rathore, Ekta & Gupta, Biswanath (2020) Emergence of Jus Cogens Principles in Outer Space Law The International Journal of Space Politics & Policy 18(1), 1-21. https://www.tandfonline.com/doi/full/10.1080/14777622.2020.1723353 48 Frans von der Dunk, cited Rathore & Gupta (2020). 49 United Nations (1967) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. RES 2222 (XXI). https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html 50 Secure World Foundation (2017) Handbook for New Actors in Space. Ed. Christopher Johnson.https://swfound.org/handbook/ 51 Ferreira-Snyman (2021). 52 Ferreira-Snyman (2021); Rathore & Gupta (2020).

generated debate about future resource extraction in space, and whether such activities would be permissible.

Article II of the OST expressly proscribes state sovereignty claims in outer space, limiting jurisdiction and ownership rights to launched and registered systems.53 Article II specifies that the “Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.54 This section lists both statements (claims) and physical acts (using or occupying).55

One interpretation – largely held by major spacefaring countries – views mining activities as lawful appropriation, as long as there is not the intent to establish and maintain exclusive sovereign rights.56 The alternative interpretation – as understood by several developing countries – determines that Article II prohibits appropriation by “use”, potentially viewing the occupation of geostationary positions as unlawful appropriation.57 It is important to consider that "use" generally suggests a degree of appropriation, by preventing other nations from accessing a resource.58 There is a need to diffuse tensions between these interpretations on the “use” of GEO or potential future resource extraction.59 This requires detailed analysis of the various perspectives on space and nonappropriation, including the views of remote and minority communities.

It is worth noting that the similarities and distinctions between the OST and the Moon Agreement (MA), which promotes many of the same principles but did not garner support among the spacefaring community. The MA (see box below) affirms the principle of non-appropriation, but also advocates for the establishment of an international regime to govern the exploitation of resources in space. The principle of space as a “province of humankind” contained in Article II of the OST is distinct in language from the “principle of Common Heritage of Mankind” (CHM), which is present in the MA.

The Moon Agreement

The MA entered into force in 1984, building on many of the provisions in the OST. The Agreement encourages the creation of an international regime to govern space resource exploitation. However, the MA was never ratified by the major spacefaring nations, which means that it is widely considered invalid. While the MA is not binding on the largest players, there are enough countries ratifying, signing and acceding to the MA for some to perceive a “shadow of customary law” that could potentially challenge future behaviors.60

53 Secure World Foundation (2017). 54 United Nations (1967). 55 Secure World Foundation (2017). 56 Secure World Foundation (2017); Giacomin (2019). 57 Secure World Foundation (2017); Durrani, Haris (2018) The Bogotá Declaration: A Case Study on Sovereignty, Empire, and the Commons in Outer Space. Columbia Journal of Transnational Law. https://www.academia.edu/35362196/The_Bogot%C3%A1_Declaration_A_Case_Study_on_Sovereignty_Empire_and_the_Commo ns_in_Outer_Space 58 Ferreira-Snyman (2021); Zannoni, Diego (2020) The Dilemma Between the Freedom to Use and the Proscription against Appropriating Outer Space and Celestial Bodies. Chinese Journal of International Law 19(2), 329-358. https://academic.oup.com/chinesejil/article/19/2/329/5861706?login=true 59 Zannoni (2020). 60 Listner, Michael (2011) The Moon Treaty: failed international law or waiting in the shadows? The Space Review. 24 October 2011. https://www.thespacereview.com/article/1954/1

Some developing countries may interpret CHM as a form of “pooled sovereignty”.61 Such an understanding implies that spacefaring countries require the permission of all other countries to access common resources, including positions in GEO. 62

Article III of the OST integrates space law into international law, which means that other sources of public international law, such as the UN Charter, affect the law of outer space.63 General principles of law dictate that activities not explicitly prohibited are otherwise permitted, which generates a wide scope of state freedom in outer space, beyond explicitly codified legal prohibitions.64 This poses significant challenges to equitable access to space. For instance, the OST’s principle of nonappropriation does not impose limits on the duration or number of satellites that may be placed in GEO.65 This system may be considered to allow for de facto appropriation by major spacefaring countries who are first to orbit and certain radio frequencies.

Space is “owned by none, no one can colonize it, but everyone can fish in it ”

With an average lifespan of a 15-20 years, geostationary satellites are effectively preventing use of that slot by other actors for at least that period. 66 Moreover, operators of geostationary satellites are only required to refile with the International Telecommunications Union (ITU) to “renew” slots and replace old satellites, which essentially allows operators to retain their orbital slots indefinitely.67

First-comers have the right to maintain their position in GEO and associated usage of radio frequencies without interference from newcomers.68 Should disputes emerge between a newcomer and an existing user registered with the International Frequency Registration Board, preference is given to the latter in a system of “first come, first served”. 69 The onus remains on newcomers to design their space systems with consideration for the trajectory and frequencies of established satellites.70 As the wider orbital environment becomes more congested, this could place higher barriers to space entry, potentially increasing satellite design and operation costs.

61 Rathore & Gupta (2020); Giacomin (2019); Ferreira-Snyman (2021). 62 Ferreira-Snyman (2021). 63 Secure World Foundation (2017). 64 Secure World Foundation (2017). 65 Giacomin (2019). 66 Thornburg, Matthew (2018) Are the Non-appropriation Principle and the Current Regulatory Regime Governing Geostationary Orbit Equitable for All of Earth’s States? MJIL (40). http://www.mjilonline.org/are-the-non-appropriation-principle-and-the-currentregulatory-regime-governing-geostationary-orbit-equitable-for-all-of-earths-states/ 67 Thornburg (2018). 68 Giacomin (2019). 69 Giacomin (2019). 70 Giacomin (2019).