Introduction To Space Law By Anne Agi

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INTRODUCTION

‘Oh look at the Moon, its shining so bright, oh Mother it looks
like a lamp in the sky’.

image

Well, folks, you may now happily tell your mothers, that apart
from being ‘a lamp in the sky’, the Moon is an astronomical body
orbiting Earth as its only natural satellite. The rotation of the
Moon is synchronized with the Earth, which means that the Moon does
its rotation following the Earth. It is the brightest object in the
sky after the Sun and its gravity pulls at the Earth, causing
predictable rises and falls in sea levels known as tides, and No,
there is no old woman up there with an axe breaking up firewood!
(sorry, I couldn’t resist that!)

The Moon, stars and celestial bodies, in general, have become
very vital to our lives. The resources in the Moon have been
discovered to be of immense benefits to man. Solar power, oxygen,
metals and asteroids are abundant resources on the Moon. Lunar
surface rocks and soils are rich in potentially useful raw
materials such as magnesium, aluminium, silicon, iron and titanium.
Titanium and aluminium alloys can be used for structural
components, and silicon-based photovoltaic cells for solar power.
Helium-3 (He3) is gas that has the potential to be used as fuel in
future nuclear fusion power plants. There is very little helium-3
available on the Earth. However, there are thought to be
significant supplies on the Moon. Several governments have
subsequently signaled their intention to go to the Moon to mine
helium-3 as a fuel supply.

In addition, so much of our modern lives are governed and
supported by space activities, from telecommunications to health
and the environment, to GPS-enabled services. It could actually be
argued that space might be next step in human evolution and
technological development. Space is the new frontier. It is the
future of humanity.

With the possible potential of the untapped resources in space
which can be mined, many turn their attentions skywards, because it
now appears that the celestial bodies in space may indeed be
like diamonds in the sky. Well, if that be the case, we
lawyers just have to get our foot in the door! No one’s doing
anything up there without us, thank you very much!

With the knowledge that space resources can be profitable, there
has been an increase in space visitation and exploration.

The increase of space activity has created a junkyard of orbital
space debris. Humans are now leaving biological beings and debris
on the moon as a result of the function of satellites,
components and tools lost during extra-vehicular activities. This
space debris can create navigation hazards to operations and
spacecraft satellites in orbit where there is increased possibility
of collision with functioning satellites or interference with the
transmission. The number of increasing objects that orbit in outer
space as debris is a real problem as they are in millions and this
increases the risk of outer space being contaminated by radioactive
and other harmful substances. This makes space debris a serious
environmental threat in outer space. These hazards may not affect
the particular operations which cause them but endanger the outer
space and a range of terrestrial activities.

The first biological intrusion on the Moon started with Apollo
when US astronauts left their excrement bags on the moon; because
they wanted to get home safely, they jettisoned as much dead weight
as they could. One small step for man and a giant leap for
mankind…
at the takeaway price of a bag-of-shit!!!
This is a clear pollution of the heavens, quite apart from all the
orbital debris we leave floating around up there.

In 2018, Japan ran an experiment, landed some very basic small
microscopic animals on the Moon and left them there. China
also once ran an experiment on the far side of the Moon where she
actually grew lettuce seeds and even silkworms.

Is it okay that these ‘foreign bodies’ were introduced
to the Moon?

Should these lettuce seeds and silk worms be returned to
earth, what will be their state?

Is it safe that they be reintroduced to earth?

Presenting a paper at the 2019
African Space Leaders Conference, UN Building, Addis
Ababa

These questions throw up the need to have a planetary protection
policy in place to protect us from contaminants coming back from
space. The US Apollo astronauts are usually put in quarantine for
at least two weeks when they return to earth, sometimes a month.
This is the United States ensuring that contaminants from space are
not introduced to earth.

The international community on its part must have policies in
place to protect man as we make incursions into space. Right now,
space is for everybody. No nation can own property in space. No
nation can make any territorial claim in space; everyone can
explore space and its resources. However, when States and their
nationals decide to mine steroids from the Moon, the international
community has to have the right rules and regulations and laws in
place so that everybody who would like to mine these asteroids can
get the benefits of those resources to all of humanity.

We must be careful to ask ourselves whether there are biological
things happening on Mars and other planets that we have not had a
chance to know much about and how they will affect us if disturbed
or brought back home. We must also be careful how we make
incursions into space so that we do not interfere with the natural
order of things.

If somebody had interfered with the evolution of the earth, for
example, perhaps we would not all be here.

There is an old saying: The turkey learns its fate by
watching the death of the chickens in its coop
; it speaks of
learning from the mistake of others. Seeing as how polluted earth
and its seas have become even with strict anti-pollution laws in
effect, one can easily imagine what mayhem space would be left in
without guidance.

It is therefore necessary to have a balance in terms of our
curiosity to discover more and mine resources to help us and
keeping the celestial bodies safe. We must be careful to know what
we can take or should not take, how intense we can be etc. The key
to all of these is space law and policy: finding that balance and
having an open discussion about how activities in space should be
conducted, what can be moved into space and what can be taken out,
back to earth.

WHAT IS SPACE LAW?

Space Law is defined as the body of laws governing space-related
activities, encompassing both international and domestic
agreements, treaties, principles, conventions, General Assembly
resolutions as well as rules and regulations of international
organisations. It is that branch of international law which governs
space-related activities, including space exploration, liability
for damage, weapons use, rescue efforts, environmental
preservation, information sharing, new technologies, and ethics,
encompassing both international and domestic agreements, rules, and
principles.

When we say space law, we are referring to a species of law
that  encompasses property rights on celestial bodies, mining
rights, the laws of war, criminal law etc. Space law is a very
broad field that really embraces everything that we do here on
earth as it is translated into outer space. It involves having
in place laws, policies and principles for responsible extraction
and utilization of natural resources on celestial bodies.

Space Law addresses a variety of matters, for example, the
preservation of space and the environment and liabilities for the
damage caused by space objects and space debris which occur during
launches. It also covers the settlement of disputes and the rescue
of astronauts; sharing information about potential dangers in outer
space as well as the international cooperation in the use of
space-related technology.

There are several fundamental principles guiding the conduct of
space-related activities including the notion of space as a
province of all humankind, the freedom of exploration, the use of
Outer Space by all States without discrimination and the principle
of non-appropriation of Outer Space.

Space law is also tightly intertwined within the purview of
other fields of law such as administrative law, intellectual
property law, arms control law, insurance law, environmental law,
criminal law and commercial law. It is also linked with property
rights.

Space Laws/Treaties

The body of space law is really international law. The
international law rules and principles of Space Law are embodied in
5 international treaties, a set of principles
governing outer space which have been developed by several nations.
In addition to these international instruments, many States have
their national legislations governing space-related activities.

Of the five space treaties, four of them are pretty widely
ratified and the last one, the Outer Space Treaty(called the Magna
Carta of space law), is not quite as popular but is really the
document that all space lawyers turn to when we consider anything
that happens in space.

NASA Headqtrs, DC

The 5 Treaties are:

  • The Treaty on Principles Governing the Activities of States in
    the exploration and Use of Outer Space, including the Moon and
    other Celestial Bodies Oct 10, 1966 (The Outer Space
    Treaty
    ).
  • Agreement on the Rescue of Astronauts and Return of objects
    launched into outer space entered into force December 3, 1968
    (The Rescue Agreement).
  • Agreement governing the activities of states on the moon and
    other celestial bodies entered into force July 1984 (The
    Moon Agreement
    ).
  • Convention on International liability for damage caused by
    space objects entered into force October9, 1973 (The
    Liability Convention
    ) and
  • Convention on the registration of objects launched into outer
    space entered into force September 15, 1976 (The
    Registration Convention
    ).
  1. ‘The Outer Space Treaty’: The Treaty on Principles
    Governing the Activities of States in the exploration and Use of
    Outer Space, including the Moon and other Celestial Bodies
    1966,
    is otherwise known as the Outer Space Treaty (OST).
    The treaty was considered by the UN Legal Subcommittee in 1966 and
    agreement was reached in the General Assembly in the same year
    (resolution 2222 (XXI)[1]). This Treaty is the
    foundation of international space Law for signatory nations. The
    Treaty contains the principles on space exploration as
    follows:

In Article IX, the OST talks of the contamination of outer space
and imposes obligations on states to adopt appropriate measures to
prevent changes to the space environment. In conjunction with
Article IX, Articles I, III and IV of the OST outline the core
environmental protections and the importance of maintaining the
space environment and protecting it from space debris and nuclear
contaminants.

Article IX also provides that “In the exploration and use of
outer space, including the moon and other celestial bodies, States
Parties to the Treaty shall be guided by the principle of
co-operation and mutual assistance’.

  1. ‘The Rescue Agreement’: The Agreement
    on the Rescue of Astronauts and Return of objects launched into
    outer space
    otherwise known as the ‘Rescue Agreement’
    (RA), entered into force on December 3, 1968. The Agreement,
    elaborates on elements of articles
    5
    [2] and 8 of the Outer Space Treaty. Signatories agree
    to take all possible action to help or rescue astronauts and, if
    applicable, return them to the nation from which they launched.
    (Article 2, RA). Additionally, signatories agree to help return to
    the sponsoring nation any space objects that land on earth outside
    of the country from which they were launched. (Article 5(3),
    RA).
  2. ‘The Moon Agreement/Treaty’: This is the
    Agreement governing the activities of States on the moon
    and other celestial bodies which
    entered into force on
    July 1984. The agreement states that celestial bodies can only be
    used for peaceful purposes, (Article III, MT), that the exploration
    and use of the Moon shall be for the province of all mankind and
    shall be carried out for the interest and benefit of all nations
    (Article 4(1), MT) and are a common heritage of mankind (Article
    11, MT); that they should not be contaminated, that the United
    Nations should always be made aware of any station on a non-earth
    body, (Article 5(1), MT); and that if resource mining on the Moon
    becomes feasible, an international regime must be established to
    govern how these resources are obtained and used. (Article 11(5),
    MT). The United States is not a signatory to the Moon
    Agreement. The controversial issue is the international regime to
    govern the exploration and exploitation of resources which
    maintains that the Moon is the Common Heritage of Mankind and
    insists on the equitable sharing of benefits derived from the
    exploitation.

This agreement is a compromise between developing countries and
space-faring nations as it accepts the principle of the common
heritage of mankind (CHM) along with the confirmation of the
freedom of scientific investigative exploration and use of the
Moon.

The Treaty reinforces Article 7 of the Outer space Treaty (OST)
on the use of the Moon for peaceful purposes only and the aid of
astronauts.

The MT gives us guiding principles on the activities of
sovereigns in space. There is the language in the treaty about the
use of outer space for exclusively peaceful purposes. While this
sounds beautiful, the knotty issue is in the interpretation of what
it means to use space for peaceful purposes. It has been
virtually explained that peaceful purposes only prohibit aggressive
use of military force: as long as a State is not engaged in naked
aggression, then it is peaceful in its use of outer space. The same
definition applies on the surface of the earth. There is
another restriction, an absolute prohibition on the stationing of
weapons of mass destruction in orbit. (Article 3(4), MT). There is
therefore an interesting demilitarization of space.

  1. ‘The Liability Convention’ (LC) is the
    Convention on International liability for damage caused by
    space objects.
    It entered into force on October 9, 1973.
    Elaborating on Article
    7 of the Outer Space Treaty
    [3], the Liability
    Convention provides that a launching State shall be absolutely
    liable to pay compensation for damage caused by its space objects
    on the surface of the Earth or to aircraft, and liable for damage
    due to its faults in space. The Convention also provides for
    procedures for the settlement of claims for damages.(Article II,
    LC). This Convention generally outlines international tort Law in
    Space and expands the principles of liability for damage caused by
    space objects introduced in the OST.

Two scenarios are envisioned by the Liability Convention
(Article IV LC):

  1. Where a space object causes damage to the surface of
    the earth or an aircraft in flight; and
  2. Where a space object causes damage to some place other
    than the surface of the earth i.e. outer space or another celestial
    body. (Article III, LC).

In the first scenario, a State is held strictly liable for any
damage caused by a space object launched even in the face of
circumstances that are outside its control. If more than one State
is responsible for the launch of the space object, then the States
concerned would be held jointly and severally liable for
damages.

In the second situation, fault-based liability is
applicable.

Under the Convention, there are limited principles of
exoneration: Gross negligence or complicity of the other party has
to be proved. The Convention provides for a well-defined claims
procedure, diplomatic negotiation and a Claims Commission.

  1. The Registration Convention (RC): This is the
    Convention on the registration of objects launched into
    outer space
    that entered into force on September 15, 1976.
    This Convention provides for the registration of all space objects
    by empowering the United Nations’ Secretary-General to open and
    maintain a space objects register of all space objects as well as
    nations operating a national registry. To this end, a space object
    must be registered either with the national registry or register
    kept by the UN Secretary-General. (Article II and II, RC). The
    register serves to identify the space object and links it to its
    State of origin/jurisdiction and monitors its activities.

All the above treaties govern sovereigns in space but there is
none that directly governs the activities of humans in space.
This is, however, not to say that there is no type of criminal law
that applies in space right now against individuals, or that space
is a lawless place. This is because even though the treaties that
exist govern countries and the activities of countries, they also
provide another dimension. The treaties also make States
responsible for the activities of their nationals. (Art VI, OST,
for example).

To this end, most States have domestic regulations where they
carefully watch and regulate the activities of those who plan to
launch rockets and objects into space from their jurisdiction.
Recently, NASA astronaut Anne McClain was accused of illegally
accessing her spouse’s bank account during her stay on the
International Space Station, bringing up a variety of legal issues
and questions as to how to litigate a crime committed in space.
NASA is currently investigating the matter.

CASE LAW: APPLICATION OF THE RESCUE AGREEMENT AND THE
LIABILITY CONVENTION

The Cosmos 954

Cosmos 954 was a Soviet Radar Ocean
Reconnaissance Satellite (RORSAT) powered by an on-board nuclear
reactor. Its mission was to search for and track a US Naval Task
Force. It fell from orbit on the 24th day of January,
1978 and contaminated Canadian territory with debris from its board
nuclear reactor.

Canada’s Department of External Affairs referred to Article V of
the Rescue Agreement in its first formal communiqué with the
Embassy of USSR on February 8, 1978 concerning the crash of the
Cosmos 954 on Canadian territory. Canada fulfilled its duties under
Article V of the Rescue Agreement to inform the USSR that it had
identified the debris as coming from Cosmos 954.

The Canadian Government also claimed the sum of $6,041,174
Canadian dollars but settled for $3,000,000 Canadian dollars for
the damage caused by the Cosmos 954. The Canadian government also
reserved the right to be compensated for additional damages that
may occur in future because of the incident, any costs incurred
should a Claims Commission need to be established under the
Liabilities Convention and any awards made by the Claims
Commission.

Relevance of lawyers in space affairs

Is there any place for lawyers, civil or criminal, in space?
What legal frameworks exist for crime committed in space as well as
other legal issues currently seen in the space law arena?

Space law admittedly is a developing area. Thus, lawyers are
needed in the Space Industry to draft space laws, protocols and
policies for their nations and the international community, in
corporate international transactions. For example, as early as the
2000s, lawyers drafted the Space Assets Protocol and Cape Town
Convention, which created an international regime for the secured
finance of satellites, so you could use satellites
as collateral.

There are going to be jobs for space lawyers out there as the
industry grows, there will be jobs required by the space industry,
and then by government agencies that are now short-staffed with
space lawyers. They need more good lawyers.

In the academia, lawyers will also be needed to groom space
lawyers.

Legal departments  of airports, airlines, aerospace
companies, civil aviation authorities need space lawyers.

Business men and capitalists are seeking experienced lawyers to
draft insurance and loan contracts between them as investors and
space enthusiasts. Investors in the space industry need lawyers to
advice them as they engage with aviation companies who build
rockets and space infrastructure and equipment.

On the ‘Next Fest’ stage in Los Angeles, California, on
September 13, 2007, Google announced the Lunar XPrize, a
competition that encouraged private entities to land a rover on the
moon. Across the country at NASA’s headquarters in Washington D.C.,
attorneys were suddenly faced with some of the biggest legal
questions they could have ever imagined: What happens if a private
company accidentally destroys the Apollo 11 landmarks on the
moon?

What if it contaminates bodies in space destroying their
scientific potential?

Can private entities own portions of space?

Thirteen years later, the answer remains unclear because of
untested laws conceived half a century apart. Should these kinds of
issues arise in Nigeria, do we have space law experts to deal with
them? If we decide to revamp our national policies on space law,
how many of the country’s lawyers are experts in this field to
advise.

It is therefore imperative that our Universities begin to train
our students on Space Law. Currently, there are only a few schools
that give students these opportunities. This ought not to be so.
There should be more Universities that have Space Law courses. This
is so because as the space industry grows, there will be need for
space lawyers.

Conclusion

As your dark and tiny spark, lights the traveller in the
dark…

There are a million possible resources in the wide berth of the
cosmos waiting to be tapped into, but there are also a million
possible hazards lurking in the dark. From silicon and titanium
which can easily be found by simply picking through moon dust to
the possible advent of extra-terrestrial life forms; the need for
stringent laws governing celestial travel and or commerce cannot be
over-emphasized.

Though we do not completely know what they are, the
gaseous twinklers in the night hold a promise what could
be, it is only a matter of time before we are faced with a mass
human exodus into the cosmos. As such, preparing for the inevitable
is a very wise decision to make.

Our legacy to the next generation of lawyers can only be so good
as to prepare them for the legal battles in space that even we are
unsure about.

Anne Agi is a legal practitioner, space law enthusiast, member,
Women in Aerospace Africa, co-founder and trustee of the LEARNSPACE
FOUNDATION. She can be reached on
08057311292.
Email: anneagi@yahoo.com

INTRODUCTION

‘Oh look at the Moon, its shining so bright, oh Mother it looks
like a lamp in the sky’.

image

Well, folks, you may now happily tell your mothers, that apart
from being ‘a lamp in the sky’, the Moon is an astronomical body
orbiting Earth as its only natural satellite. The rotation of the
Moon is synchronized with the Earth, which means that the Moon does
its rotation following the Earth. It is the brightest object in the
sky after the Sun and its gravity pulls at the Earth, causing
predictable rises and falls in sea levels known as tides, and No,
there is no old woman up there with an axe breaking up firewood!
(sorry, I couldn’t resist that!)

The Moon, stars and celestial bodies, in general, have become
very vital to our lives. The resources in the Moon have been
discovered to be of immense benefits to man. Solar power, oxygen,
metals and asteroids are abundant resources on the Moon. Lunar
surface rocks and soils are rich in potentially useful raw
materials such as magnesium, aluminium, silicon, iron and titanium.
Titanium and aluminium alloys can be used for structural
components, and silicon-based photovoltaic cells for solar power.
Helium-3 (He3) is gas that has the potential to be used as fuel in
future nuclear fusion power plants. There is very little helium-3
available on the Earth. However, there are thought to be
significant supplies on the Moon. Several governments have
subsequently signaled their intention to go to the Moon to mine
helium-3 as a fuel supply.

In addition, so much of our modern lives are governed and
supported by space activities, from telecommunications to health
and the environment, to GPS-enabled services. It could actually be
argued that space might be next step in human evolution and
technological development. Space is the new frontier. It is the
future of humanity.

With the possible potential of the untapped resources in space
which can be mined, many turn their attentions skywards, because it
now appears that the celestial bodies in space may indeed be
like diamonds in the sky. Well, if that be the case, we
lawyers just have to get our foot in the door! No one’s doing
anything up there without us, thank you very much!

With the knowledge that space resources can be profitable, there
has been an increase in space visitation and exploration.

The increase of space activity has created a junkyard of orbital
space debris. Humans are now leaving biological beings and debris
on the moon as a result of the function of satellites,
components and tools lost during extra-vehicular activities. This
space debris can create navigation hazards to operations and
spacecraft satellites in orbit where there is increased possibility
of collision with functioning satellites or interference with the
transmission. The number of increasing objects that orbit in outer
space as debris is a real problem as they are in millions and this
increases the risk of outer space being contaminated by radioactive
and other harmful substances. This makes space debris a serious
environmental threat in outer space. These hazards may not affect
the particular operations which cause them but endanger the outer
space and a range of terrestrial activities.

The first biological intrusion on the Moon started with Apollo
when US astronauts left their excrement bags on the moon; because
they wanted to get home safely, they jettisoned as much dead weight
as they could. One small step for man and a giant leap for
mankind…
at the takeaway price of a bag-of-shit!!!
This is a clear pollution of the heavens, quite apart from all the
orbital debris we leave floating around up there.

In 2018, Japan ran an experiment, landed some very basic small
microscopic animals on the Moon and left them there. China
also once ran an experiment on the far side of the Moon where she
actually grew lettuce seeds and even silkworms.

Is it okay that these ‘foreign bodies’ were introduced
to the Moon?

Should these lettuce seeds and silk worms be returned to
earth, what will be their state?

Is it safe that they be reintroduced to earth?


Presenting a paper at the 2019 African Space Leaders Conference, UN
Building, Addis Ababa

These questions throw up the need to have a planetary protection
policy in place to protect us from contaminants coming back from
space. The US Apollo astronauts are usually put in quarantine for
at least two weeks when they return to earth, sometimes a month.
This is the United States ensuring that contaminants from space are
not introduced to earth.

The international community on its part must have policies in
place to protect man as we make incursions into space. Right now,
space is for everybody. No nation can own property in space. No
nation can make any territorial claim in space; everyone can
explore space and its resources. However, when States and their
nationals decide to mine steroids from the Moon, the international
community has to have the right rules and regulations and laws in
place so that everybody who would like to mine these asteroids can
get the benefits of those resources to all of humanity.

We must be careful to ask ourselves whether there are biological
things happening on Mars and other planets that we have not had a
chance to know much about and how they will affect us if disturbed
or brought back home. We must also be careful how we make
incursions into space so that we do not interfere with the natural
order of things.

If somebody had interfered with the evolution of the earth, for
example, perhaps we would not all be here.

There is an old saying: The turkey learns its fate by
watching the death of the chickens in its coop
; it speaks of
learning from the mistake of others. Seeing as how polluted earth
and its seas have become even with strict anti-pollution laws in
effect, one can easily imagine what mayhem space would be left in
without guidance.

It is therefore necessary to have a balance in terms of our
curiosity to discover more and mine resources to help us and
keeping the celestial bodies safe. We must be careful to know what
we can take or should not take, how intense we can be etc. The key
to all of these is space law and policy: finding that balance and
having an open discussion about how activities in space should be
conducted, what can be moved into space and what can be taken out,
back to earth.

WHAT IS SPACE LAW?

Space Law is defined as the body of laws governing space-related
activities, encompassing both international and domestic
agreements, treaties, principles, conventions, General Assembly
resolutions as well as rules and regulations of international
organisations. It is that branch of international law which governs
space-related activities, including space exploration, liability
for damage, weapons use, rescue efforts, environmental
preservation, information sharing, new technologies, and ethics,
encompassing both international and domestic agreements, rules, and
principles.

When we say space law, we are referring to a species of law
that  encompasses property rights on celestial bodies, mining
rights, the laws of war, criminal law etc. Space law is a very
broad field that really embraces everything that we do here on
earth as it is translated into outer space. It involves having
in place laws, policies and principles for responsible extraction
and utilization of natural resources on celestial bodies.

Space Law addresses a variety of matters, for example, the
preservation of space and the environment and liabilities for the
damage caused by space objects and space debris which occur during
launches. It also covers the settlement of disputes and the rescue
of astronauts; sharing information about potential dangers in outer
space as well as the international cooperation in the use of
space-related technology.

There are several fundamental principles guiding the conduct of
space-related activities including the notion of space as a
province of all humankind, the freedom of exploration, the use of
Outer Space by all States without discrimination and the principle
of non-appropriation of Outer Space.

Space law is also tightly intertwined within the purview of
other fields of law such as administrative law, intellectual
property law, arms control law, insurance law, environmental law,
criminal law and commercial law. It is also linked with property
rights.

Space Laws/Treaties

The body of space law is really international law. The
international law rules and principles of Space Law are embodied in
5 international treaties, a set of principles
governing outer space which have been developed by several nations.
In addition to these international instruments, many States have
their national legislations governing space-related activities.

Of the five space treaties, four of them are pretty widely
ratified and the last one, the Outer Space Treaty(called the Magna
Carta of space law), is not quite as popular but is really the
document that all space lawyers turn to when we consider anything
that happens in space.


NASA Headqtrs, DC

The 5 Treaties are:

  • The Treaty on Principles Governing the Activities of States in
    the exploration and Use of Outer Space, including the Moon and
    other Celestial Bodies Oct 10, 1966 (The Outer Space
    Treaty
    ).
  • Agreement on the Rescue of Astronauts and Return of objects
    launched into outer space entered into force December 3, 1968
    (The Rescue Agreement).
  • Agreement governing the activities of states on the moon and
    other celestial bodies entered into force July 1984 (The
    Moon Agreement
    ).
  • Convention on International liability for damage caused by
    space objects entered into force October9, 1973 (The
    Liability Convention
    ) and
  • Convention on the registration of objects launched into outer
    space entered into force September 15, 1976 (The
    Registration Convention
    ).
  1. ‘The Outer Space Treaty’: The Treaty on Principles
    Governing the Activities of States in the exploration and Use of
    Outer Space, including the Moon and other Celestial Bodies
    1966,
    is otherwise known as the Outer Space Treaty (OST).
    The treaty was considered by the UN Legal Subcommittee in 1966 and
    agreement was reached in the General Assembly in the same year
    (resolution 2222 (XXI)[1]). This Treaty is the
    foundation of international space Law for signatory nations. The
    Treaty contains the principles on space exploration as
    follows:

In Article IX, the OST talks of the contamination of outer space
and imposes obligations on states to adopt appropriate measures to
prevent changes to the space environment. In conjunction with
Article IX, Articles I, III and IV of the OST outline the core
environmental protections and the importance of maintaining the
space environment and protecting it from space debris and nuclear
contaminants.

Article IX also provides that “In the exploration and use of
outer space, including the moon and other celestial bodies, States
Parties to the Treaty shall be guided by the principle of
co-operation and mutual assistance’.

  1. ‘The Rescue Agreement’: The Agreement
    on the Rescue of Astronauts and Return of objects launched into
    outer space
    otherwise known as the ‘Rescue Agreement’
    (RA), entered into force on December 3, 1968. The Agreement,
    elaborates on elements of articles
    5
    [2] and 8 of the Outer Space Treaty. Signatories agree
    to take all possible action to help or rescue astronauts and, if
    applicable, return them to the nation from which they launched.
    (Article 2, RA). Additionally, signatories agree to help return to
    the sponsoring nation any space objects that land on earth outside
    of the country from which they were launched. (Article 5(3),
    RA).
  2. ‘The Moon Agreement/Treaty’: This is the
    Agreement governing the activities of States on the moon
    and other celestial bodies which
    entered into force on
    July 1984. The agreement states that celestial bodies can only be
    used for peaceful purposes, (Article III, MT), that the exploration
    and use of the Moon shall be for the province of all mankind and
    shall be carried out for the interest and benefit of all nations
    (Article 4(1), MT) and are a common heritage of mankind (Article
    11, MT); that they should not be contaminated, that the United
    Nations should always be made aware of any station on a non-earth
    body, (Article 5(1), MT); and that if resource mining on the Moon
    becomes feasible, an international regime must be established to
    govern how these resources are obtained and used. (Article 11(5),
    MT). The United States is not a signatory to the Moon
    Agreement. The controversial issue is the international regime to
    govern the exploration and exploitation of resources which
    maintains that the Moon is the Common Heritage of Mankind and
    insists on the equitable sharing of benefits derived from the
    exploitation.

This agreement is a compromise between developing countries and
space-faring nations as it accepts the principle of the common
heritage of mankind (CHM) along with the confirmation of the
freedom of scientific investigative exploration and use of the
Moon.

The Treaty reinforces Article 7 of the Outer space Treaty (OST)
on the use of the Moon for peaceful purposes only and the aid of
astronauts.

The MT gives us guiding principles on the activities of
sovereigns in space. There is the language in the treaty about the
use of outer space for exclusively peaceful purposes. While this
sounds beautiful, the knotty issue is in the interpretation of what
it means to use space for peaceful purposes. It has been
virtually explained that peaceful purposes only prohibit aggressive
use of military force: as long as a State is not engaged in naked
aggression, then it is peaceful in its use of outer space. The same
definition applies on the surface of the earth. There is
another restriction, an absolute prohibition on the stationing of
weapons of mass destruction in orbit. (Article 3(4), MT). There is
therefore an interesting demilitarization of space.

  1. ‘The Liability Convention’ (LC) is the
    Convention on International liability for damage caused by
    space objects.
    It entered into force on October 9, 1973.
    Elaborating on Article
    7 of the Outer Space Treaty
    [3], the Liability
    Convention provides that a launching State shall be absolutely
    liable to pay compensation for damage caused by its space objects
    on the surface of the Earth or to aircraft, and liable for damage
    due to its faults in space. The Convention also provides for
    procedures for the settlement of claims for damages.(Article II,
    LC). This Convention generally outlines international tort Law in
    Space and expands the principles of liability for damage caused by
    space objects introduced in the OST.

Two scenarios are envisioned by the Liability Convention
(Article IV LC):

  1. Where a space object causes damage to the surface of
    the earth or an aircraft in flight; and
  2. Where a space object causes damage to some place other
    than the surface of the earth i.e. outer space or another celestial
    body. (Article III, LC).

In the first scenario, a State is held strictly liable for any
damage caused by a space object launched even in the face of
circumstances that are outside its control. If more than one State
is responsible for the launch of the space object, then the States
concerned would be held jointly and severally liable for
damages.

In the second situation, fault-based liability is
applicable.

Under the Convention, there are limited principles of
exoneration: Gross negligence or complicity of the other party has
to be proved. The Convention provides for a well-defined claims
procedure, diplomatic negotiation and a Claims Commission.

  1. The Registration Convention (RC): This is the
    Convention on the registration of objects launched into
    outer space
    that entered into force on September 15, 1976.
    This Convention provides for the registration of all space objects
    by empowering the United Nations’ Secretary-General to open and
    maintain a space objects register of all space objects as well as
    nations operating a national registry. To this end, a space object
    must be registered either with the national registry or register
    kept by the UN Secretary-General. (Article II and II, RC). The
    register serves to identify the space object and links it to its
    State of origin/jurisdiction and monitors its activities.

All the above treaties govern sovereigns in space but there is
none that directly governs the activities of humans in space.
This is, however, not to say that there is no type of criminal law
that applies in space right now against individuals, or that space
is a lawless place. This is because even though the treaties that
exist govern countries and the activities of countries, they also
provide another dimension. The treaties also make States
responsible for the activities of their nationals. (Art VI, OST,
for example).

To this end, most States have domestic regulations where they
carefully watch and regulate the activities of those who plan to
launch rockets and objects into space from their jurisdiction.
Recently, NASA astronaut Anne McClain was accused of illegally
accessing her spouse’s bank account during her stay on the
International Space Station, bringing up a variety of legal issues
and questions as to how to litigate a crime committed in space.
NASA is currently investigating the matter.

CASE LAW: APPLICATION OF THE RESCUE AGREEMENT AND THE
LIABILITY CONVENTION

The Cosmos 954

Cosmos 954 was a Soviet Radar Ocean
Reconnaissance Satellite (RORSAT) powered by an on-board nuclear
reactor. Its mission was to search for and track a US Naval Task
Force. It fell from orbit on the 24th day of January,
1978 and contaminated Canadian territory with debris from its board
nuclear reactor.

Canada’s Department of External Affairs referred to Article V of
the Rescue Agreement in its first formal communiqué with the
Embassy of USSR on February 8, 1978 concerning the crash of the
Cosmos 954 on Canadian territory. Canada fulfilled its duties under
Article V of the Rescue Agreement to inform the USSR that it had
identified the debris as coming from Cosmos 954.

The Canadian Government also claimed the sum of $6,041,174
Canadian dollars but settled for $3,000,000 Canadian dollars for
the damage caused by the Cosmos 954. The Canadian government also
reserved the right to be compensated for additional damages that
may occur in future because of the incident, any costs incurred
should a Claims Commission need to be established under the
Liabilities Convention and any awards made by the Claims
Commission.

Relevance of lawyers in space affairs

Is there any place for lawyers, civil or criminal, in space?
What legal frameworks exist for crime committed in space as well as
other legal issues currently seen in the space law arena?

Space law admittedly is a developing area. Thus, lawyers are
needed in the Space Industry to draft space laws, protocols and
policies for their nations and the international community, in
corporate international transactions. For example, as early as the
2000s, lawyers drafted the Space Assets Protocol and Cape Town
Convention, which created an international regime for the secured
finance of satellites, so you could use satellites
as collateral.

There are going to be jobs for space lawyers out there as the
industry grows, there will be jobs required by the space industry,
and then by government agencies that are now short-staffed with
space lawyers. They need more good lawyers.

In the academia, lawyers will also be needed to groom space
lawyers.

Legal departments  of airports, airlines, aerospace
companies, civil aviation authorities need space lawyers.

Business men and capitalists are seeking experienced lawyers to
draft insurance and loan contracts between them as investors and
space enthusiasts. Investors in the space industry need lawyers to
advice them as they engage with aviation companies who build
rockets and space infrastructure and equipment.

On the ‘Next Fest’ stage in Los Angeles, California, on
September 13, 2007, Google announced the Lunar XPrize, a
competition that encouraged private entities to land a rover on the
moon. Across the country at NASA’s headquarters in Washington D.C.,
attorneys were suddenly faced with some of the biggest legal
questions they could have ever imagined: What happens if a private
company accidentally destroys the Apollo 11 landmarks on the
moon?

What if it contaminates bodies in space destroying their
scientific potential?

Can private entities own portions of space?

Thirteen years later, the answer remains unclear because of
untested laws conceived half a century apart. Should these kinds of
issues arise in Nigeria, do we have space law experts to deal with
them? If we decide to revamp our national policies on space law,
how many of the country’s lawyers are experts in this field to
advise.

It is therefore imperative that our Universities begin to train
our students on Space Law. Currently, there are only a few schools
that give students these opportunities. This ought not to be so.
There should be more Universities that have Space Law courses. This
is so because as the space industry grows, there will be need for
space lawyers.

Conclusion

As your dark and tiny spark, lights the traveller in the
dark…

There are a million possible resources in the wide berth of the
cosmos waiting to be tapped into, but there are also a million
possible hazards lurking in the dark. From silicon and titanium
which can easily be found by simply picking through moon dust to
the possible advent of extra-terrestrial life forms; the need for
stringent laws governing celestial travel and or commerce cannot be
over-emphasized.

Though we do not completely know what they are, the
gaseous twinklers in the night hold a promise what could
be, it is only a matter of time before we are faced with a mass
human exodus into the cosmos. As such, preparing for the inevitable
is a very wise decision to make.

Our legacy to the next generation of lawyers can only be so good
as to prepare them for the legal battles in space that even we are
unsure about.

Anne Agi is a legal practitioner, space law enthusiast, member,
Women in Aerospace Africa, co-founder and trustee of the LEARNSPACE
FOUNDATION. She can be reached on
08057311292.
Email: anneagi@yahoo.com

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