International Space Law

Article II, non-appropriation. Outer space, including 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.

Article II is the article that makes space law different from the law of territory. Every mode of acquisition in [Acquisition of State Territory], occupation included, is expressly excluded, and the closing words, or by any other means, are there to catch what the drafters had not thought of.

Article III. Activities shall be carried on in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security. So space is not a legal vacuum: the Charter, custom and the law of responsibility apply.

Article IV, arms control. States Parties undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, not to install such weapons on celestial bodies, and not to station such weapons in outer space in any other manner. And the Moon and other celestial bodies shall be used by all States Parties exclusively for peaceful purposes, the establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies being forbidden, while the use of military personnel for scientific research or other peaceful purposes and of any equipment or facility necessary for peaceful exploration is not prohibited.

Read article IV carefully, because it has two different rules. In orbit and in space generally, only weapons of mass destruction are prohibited, so conventional weapons in orbit are not caught by the text. On celestial bodies, the standard is far stricter: exclusively for peaceful purposes, with bases, fortifications, weapons testing and manoeuvres all forbidden.

Article V, astronauts. States Parties shall regard astronauts as envoys of mankind in outer space and shall render them all possible assistance in the event of accident, distress, or emergency landing on another State Party's territory or on the high seas, and shall safely and promptly return them to the State of registry of their space vehicle. Astronauts of one State shall render all possible assistance to those of another. And States shall immediately inform the other States Parties or the Secretary-General of any phenomena discovered in outer space which could constitute a danger to the life or health of astronauts.

Article VI, the article that governs the private space industry. States Parties shall bear international responsibility for national activities in outer space, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the Treaty. The activities of non-governmental entities shall require authorization and continuing supervision by the appropriate State Party. Where activities are carried on by an international organization, responsibility is borne both by the organization and by the States Parties participating in it.

Article VI is the most important provision in the subject today, and it deserves emphasis. In the general law of [State Responsibility], the conduct of a private person is not attributable to a State merely because it occurs on its territory. Article VI reverses that for space: a State is internationally responsible for national activities whoever conducts them, and must authorise and continuously supervise private operators. That is why every launching State has national space legislation licensing private launches, and it is the reason a private company's satellite is a State's legal problem.

Article VII, liability. Each State Party that launches or procures the launching of an object into outer space, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space. Article VII is elaborated by the Liability Convention of 1972.

Article VIII, jurisdiction and ownership. A State Party on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects found beyond the limits of the State of registry shall be returned to that State, which shall on request furnish identifying data before return.

Article VIII is the reason registration matters, and it is the same technique as the nationality of ships and of aircraft in [International Air Law]: registration fixes the State whose law applies on board and whose responsibility follows.

Article IX, due regard and consultation. States Parties shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities with due regard to the corresponding interests of all other States Parties. They shall conduct exploration so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter, and adopt appropriate measures where necessary. A State with reason to believe that an activity planned by it or its nationals would cause potentially harmful interference with the activities of others shall undertake appropriate international consultations before proceeding; and a State with reason to believe that another's planned activity would do so may request consultation.

Article IX is the environmental provision, and it is a due diligence obligation of exactly the kind in [UNDP and UNEP]: avoid harmful contamination, consult before acting. Its practical importance today is orbital debris, on which it is the only treaty text that speaks at all.

Articles X to XVII. Article X, consideration of requests to observe the flight of space objects; article XI, informing the Secretary-General, the public and the international scientific community of the nature, conduct, locations and results of activities, to the greatest extent feasible and practicable; article XII, stations, installations, equipment and space vehicles on celestial bodies open to representatives of other States Parties on a basis of reciprocity, on reasonable advance notice; article XIII, application to activities carried on by international organisations; articles XIV to XVII, signature, ratification, entry into force, amendment and withdrawal on one year's written notice, and the deposit of the Treaty with the depositary Governments.

Article XII's inspection right is worth a line. It is a treaty right of access to another State's installations on a celestial body, which is unusual, and it is subject to reciprocity and notice.

The Rescue Agreement, 1968

The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, elaborating articles V and VIII of the Treaty.

Article 1. A Contracting Party which receives information or discovers that the personnel of a spacecraft have suffered accident or are experiencing conditions of distress or have made an emergency or unintended landing in territory under its jurisdiction, on the high seas, or in any other place not under the jurisdiction of any State, shall immediately notify the launching authority and the Secretary-General of the United Nations.

Articles 2 and 3 require rescue: in territory under a Party's jurisdiction it shall immediately take all possible steps to rescue them and render them all necessary assistance, and on the high seas or in any place not under any State's jurisdiction, Parties in a position to do so shall extend assistance in search and rescue operations.

Article 4. Personnel who land in territory under a Party's jurisdiction or are found on the high seas or elsewhere outside any State's jurisdiction shall be safely and promptly returned to representatives of the launching authority.

Article 5 governs space objects: a Party which discovers that a space object or its component parts has returned to Earth in its territory, on the high seas or elsewhere outside any State's jurisdiction shall notify the launching authority and the Secretary-General; shall, on request of the launching authority and with its assistance, take such steps as it finds practicable to recover the object; shall return it or its component parts to the launching authority on request; and, where the object is of a hazardous or deleterious nature, may so notify the launching authority, which shall immediately take effective steps, under the direction and control of the Contracting Party, to eliminate possible danger of harm. Expenses of recovery and return shall be borne by the launching authority.

The Agreement is deliberately humanitarian in tone. There is no condition of reciprocity and no requirement that the launching State be a party, which reflects the Treaty's description of astronauts as envoys of mankind.

Articles 6 and 7 define the launching authority and open the Agreement for signature; article 8 provides that amendments enter into force for each State Party accepting them upon their acceptance by a majority of the States Parties, and thereafter for each remaining Party on the date of its own acceptance; article 9 permits withdrawal on written notification one year after entry into force, taking effect one year from receipt; and article 10 provides that the Chinese, English, French, Russian and Spanish texts are equally authentic and are deposited with the Depositary Governments.

The Liability Convention, 1972

The Convention on International Liability for Damage Caused by Space Objects, elaborating article VII of the Treaty and the most legally developed of the five.

Article I, the definitions. Damage means loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations. Launching includes attempted launching. A launching State means a State which launches or procures the launching of a space object, or a State from whose territory or facility a space object is launched. A space object includes component parts of a space object as well as its launch vehicle and parts thereof.

There may therefore be several launching States for one object, and where there are, article V makes them jointly and severally liable.

Article II, the central rule. A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight.

Absolute liability, not strict liability with defences and not fault. It is one of the few instances of absolute liability in general international law, and its justification is the same as for ultra-hazardous activity generally: the risk is created entirely by the launching State and the victim on the ground has no part in it and no means of protecting himself.

Article III, the other rule. Where damage is caused elsewhere than on the surface of the Earth to a space object of one launching State, or to persons or property on board it, by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.

So the regime is two-tiered, and the tier depends on where the damage occurs. On the surface of the Earth or to aircraft in flight, absolute. In space, fault. The reason is that both parties in a collision in orbit are engaged in the same hazardous activity, so neither is an innocent bystander.

Article IV deals with damage to a third State arising from a collision between two space objects, making the two launching States jointly and severally liable to the third State, absolutely where the damage is on the surface or to aircraft in flight and on the basis of fault elsewhere.

Article VI, exoneration. Exoneration from absolute liability shall be granted to the extent that a launching State establishes that the damage has resulted either wholly or partially from gross negligence or from an act or omission done with intent to cause damage on the part of a claimant State or of natural or juridical persons it represents. And no exoneration whatever shall be granted where the damage has resulted from activities of a launching State not in conformity with international law, including in particular the Charter and the Outer Space Treaty.

Article VI(2) is the sting. A launching State acting unlawfully cannot reduce its liability at all, however careless the victim.

Article VIII, who may claim. The State which suffers damage, or whose natural or juridical persons suffer damage, may present the claim; and where it does not, the State in whose territory the damage was sustained may present it; and failing both, the State of permanent residence of the persons concerned.

Article X, time. A claim may be presented not later than one year following the date of the occurrence of the damage or the identification of the launching State which is liable, with an extension where the State did not know of the occurrence or could not identify the launching State, and in no event more than one year following the date on which it learned of those facts.

Article XI, no exhaustion of local remedies. Presentation of a claim shall not require the prior exhaustion of any local remedies. A State or its nationals may instead pursue a claim in the courts or administrative tribunals of the launching State, but a State may not present a Convention claim in respect of the same damage for which such a claim is being pursued.

Article XI is the striking departure from [Treatment of Aliens and Diplomatic Protection], where the exhaustion of local remedies is a condition of the claim. Here it is expressly dispensed with, which reflects the reality that a claimant State cannot be asked to litigate in the launching State's courts over the fall of a satellite.

Article XII, measure of compensation. Determined in accordance with international law and the principles of justice and equity, so as to restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred.

That is restitutio in integrum, the standard in [Circumstances Precluding Wrongfulness, and Reparation], stated in a treaty.

Articles XIV to XX, the Claims Commission. If no settlement is reached through diplomatic negotiations within one year of notification of the claim, the parties shall establish a Claims Commission of three members, one appointed by the claimant State, one by the launching State, and a chairman chosen by both, with provision for appointment by the Secretary-General on default. The Commission decides the merits and determines the compensation, and its decision is final and binding if the parties have so agreed, and otherwise the Commission renders a final and recommendatory award which the parties shall consider in good faith.

That last point matters and is often stated wrongly. The award is binding only if the parties agreed it should be; otherwise it is recommendatory.

Cosmos 954. The best-known invocation of the regime arose when a Soviet nuclear-powered satellite of that name disintegrated over northern Canada in 1978, scattering radioactive debris. Canada claimed for the costs of search and clean-up, relying on the Convention and on general international law. The matter was settled by a protocol in 1981 under which the Soviet Union paid a sum without admitting liability. It is the standard illustration and should be given as a settled claim rather than as an adjudicated one, because no Claims Commission was ever constituted.

Article XXI, large-scale danger. Where the damage presents a large-scale danger to human life or seriously interferes with the living conditions of the population or the functioning of vital centres, the States Parties, and in particular the launching State, shall examine the possibility of rendering appropriate and rapid assistance to the State which has suffered the damage, when it so requests, without affecting rights or obligations under the Convention.

Article XXII, international organisations. With the exception of articles XXIV to XXVII, references to States apply to any international intergovernmental organization which conducts space activities if it declares its acceptance of the rights and obligations and if a majority of its member States are Parties to this Convention and to the Outer Space Treaty. Where such an organisation is liable, it and its member States which are Parties are jointly and severally liable, provided that the claim shall be first presented to the organization, and only where it has not paid within six months may the claimant State invoke the liability of the members.

Article XXIII, other agreements. The Convention shall not affect other international agreements in force as between their parties, and no provision prevents States from concluding agreements confirming, supplementing or extending its provisions.

Articles XXIV to XXVIII, the final clauses. Signature, ratification and accession, with entry into force on the deposit of the fifth instrument (article XXIV); amendment entering into force for each Party accepting it upon acceptance by a majority of the States Parties (article XXV); review, the question being placed on the provisional agenda of the General Assembly ten years after entry into force, and a review conference convenable five years after entry into force at the request of one third of the Parties with the concurrence of a majority (article XXVI); withdrawal on written notification taking effect one year from receipt (article XXVII); and the Chinese, English, French, Russian and Spanish texts being equally authentic (article XXVIII).

The Registration Convention, 1975

The Convention on Registration of Objects Launched into Outer Space, elaborating article VIII of the Treaty.

Article II. When a space object is launched into Earth orbit or beyond, the launching State shall register it by means of an entry in an appropriate registry which it shall maintain, and shall inform the Secretary-General of the establishment of such a registry. Where there are two or more launching States, they shall jointly determine which one shall register the object, bearing in mind article VIII of the Outer Space Treaty and without prejudice to agreements among them on jurisdiction and control.

Article III. The Secretary-General shall maintain a Register in which the information furnished is recorded, and there shall be full and open access to the information in it.

Article IV requires each State of registry to furnish to the Secretary-General, as soon as practicable, the name of the launching State, an appropriate designator or registration number, the date and territory or location of launch, the basic orbital parameters including nodal period, inclination, apogee and perigee, and the general function of the space object, and to notify the Secretary-General to the greatest extent feasible and as soon as practicable when an object previously registered is no longer in Earth orbit.

Article VI provides for assistance in identifying an object which has caused damage or may be hazardous, where the State cannot identify it through the Register.

Registration is the hinge of the whole system. Article VIII of the Treaty gives jurisdiction and control to the State of registry; article VII and the Liability Convention fix liability on the launching State; and the Register is how anybody knows who that is.

The Moon Agreement, 1979

The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, and the one that failed.

Article 11(1). The Moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article.

Article 11(2). The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.

Article 11(3). Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, vehicles, equipment, facilities, stations and installations shall not create a right of ownership over the surface or subsurface or any areas of it.

Article 11(4). States Parties have the right to exploration and use of the Moon without discrimination of any kind, on the basis of equality and in accordance with international law.

Article 11(5), the undertaking that killed it. States Parties undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible.

Article 11(7), the purposes of that regime: the orderly and safe development of the natural resources; their rational management; the expansion of opportunities in their use; and an equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon, shall be given special consideration.

Article 3 reserves the Moon exclusively for peaceful purposes, and article 7 requires measures to prevent the disruption of the existing balance of the environment.

Why the Agreement failed. The parallel with [The Area, and the Parallel System of Mining] is exact. Common heritage of mankind, plus an undertaking to create an international regime with equitable sharing of benefits, is precisely what the major industrial States refused in the seabed context, and it is what they refused here. None of the principal space-faring States is a party, and the Agreement has attracted a very small number of ratifications, so it is not the law governing lunar activity in practice.

The lesson to draw, and it is the same lesson twice. A benefit-sharing regime imposed on resources that only a few States can reach will not be accepted by those few, and a treaty they do not join does not govern them. The seabed problem was solved in 1994 by an Implementation Agreement that rewrote the objectionable Part XI; the lunar problem has not been solved, and States have instead legislated nationally on the ownership of resources recovered from celestial bodies, which raises directly the question whether such legislation is consistent with article II of the Outer Space Treaty.

The rest of the Moon Agreement: articles 8 to 21

The Agreement is not only article 11, and its other provisions are largely the Outer Space Treaty made specific.

Article 8. States Parties may pursue their activities anywhere on or below the surface, and may in particular land space objects on the Moon and launch them from it and place personnel, vehicles, equipment, facilities, stations and installations anywhere on or below the surface, which may move or be moved freely. Such activities shall not interfere with the activities of other States Parties, and where interference may occur the States concerned shall undertake consultations under article 15.

Article 9, stations. A State Party establishing a station shall use only that area which is required for the needs of the station and shall immediately inform the Secretary-General of its location and purposes, and thereafter at annual intervals whether it continues in use and whether its purposes have changed. Stations shall be installed so as not to impede the free access of other States Parties to all areas of the Moon.

Article 9 is the answer to the objection that a base is appropriation by another name: only the area required, notified, and no impediment to free access.

Article 10. States Parties shall adopt all practicable measures to safeguard the life and health of persons on the Moon, and shall regard any person on the Moon as an astronaut within the meaning of article V of the Outer Space Treaty, offering shelter in their stations to those in distress.

Article 12. States Parties retain jurisdiction and control over their personnel, vehicles, equipment, facilities, stations and installations, and ownership is not affected by their presence on the Moon. Items found in places other than their intended location are dealt with under article 5 of the Rescue Agreement. And in an emergency involving a threat to human life, States Parties may use the equipment, vehicles, installations, facilities or supplies of other States Parties, with prompt notification.

Article 13. A State Party which learns of the crash landing, forced landing or other unintended landing on the Moon of a space object not launched by it shall promptly inform the launching State Party and the Secretary-General.

Article 14 repeats article VI of the Outer Space Treaty for the Moon: international responsibility for national activities whether carried on by governmental agencies or by non-governmental entities, the latter engaging in activities only under the authority and continuing supervision of the appropriate State Party; and it records that detailed arrangements concerning liability for damage caused on the Moon may become necessary as activities become more extensive.

Article 15, verification and consultation. All space vehicles, equipment, facilities, stations and installations on the Moon shall be open to other States Parties, on reasonable advance notice of a projected visit. A State Party with reason to believe that another is not fulfilling its obligations or is interfering with its rights may request consultations, and the State receiving the request shall enter into them without delay, any other interested Party being entitled to take part, each seeking a mutually acceptable resolution and informing the Secretary-General of the result. Where consultations fail, the parties take further steps for settlement by peaceful means of their choice, with the assistance of the Secretary-General.

Articles 16 to 21, the final clauses. Article 16 extends the Agreement to international intergovernmental organizations conducting space activities which declare acceptance, where a majority of their members are Parties to this Agreement and to the Outer Space Treaty. Article 17, amendment on acceptance by a majority. Article 18, review, the question to be placed on the General Assembly's provisional agenda ten years after entry into force, with a review conference convenable five years after entry into force at the request of one third of the Parties with the concurrence of a majority, and such a conference shall also consider the implementation of article 11, paragraph 5. Article 19, signature at United Nations Headquarters and ratification. Article 20, withdrawal on written notification taking effect one year from receipt. Article 21, authentic texts and deposit with the Secretary-General.

Article 18 is worth a sentence. The Agreement builds in a review directed specifically at the article 11(5) regime, which is an admission that the undertaking to create it could not be carried out at once, and the review has produced nothing because the States that would have to build the regime never joined.

India

India is a party to the Outer Space Treaty, the Rescue Agreement, the Liability Convention and the Registration Convention. It signed but has not ratified the Moon Agreement.

Article VI of the Outer Space Treaty is the reason India has legislated. Because a State is internationally responsible for national activities in outer space whoever conducts them, and must authorise and continuously supervise non-governmental entities, a State that permits a private space industry must have a licensing law. India's framework accordingly provides for the authorisation and supervision of non-governmental entities and for a regulatory authority to grant authorisations, with the Indian Space Research Organisation as the operating agency and a separate promotion and authorisation body for private participants.

State the connection rather than the detail. The examinable point is that article VI compels national space legislation, not the particulars of any Act.

A worked example

State AA licenses a private company to launch a satellite from a facility in State BB. The launch vehicle fails and debris falls on State CC, killing a farmer and destroying an aircraft on approach. Fragments later collide in orbit with a satellite registered in State DD. State CC's authorities recover a fragment containing radioactive material. State AA says it is not responsible because a private company was at fault.

Who is the launching State? Article I(c) of the Liability Convention: a State which launches or procures the launching, and a State from whose territory or facility an object is launched. Both State AA and State BB qualify, and article V makes them jointly and severally liable.

State AA's answer that a private company did it. Article VI of the Outer Space Treaty: States bear international responsibility for national activities in outer space, whether carried on by governmental agencies or by non-governmental entities, and such activities require authorization and continuing supervision. The defence fails on the face of the article.

The death and the destroyed aircraft. Article II of the Liability Convention: absolute liability for damage caused on the surface of the Earth or to aircraft in flight. No fault need be proved.

The collision in orbit. Article III: for damage elsewhere than on the surface of the Earth, the launching State is liable only if the damage is due to its fault or that of persons for whom it is responsible.

Must State CC's farmer sue in State AA first? No. Article XI(1): presentation of a claim shall not require the prior exhaustion of any local remedies. The claim is presented by State CC under article VIII, and if it pursues a claim in State AA's courts for the same damage it may not also present a Convention claim for it.

The radioactive fragment. Article 5 of the Rescue Agreement: State CC shall notify the launching authority and the Secretary-General, and where the object is of a hazardous or deleterious nature it may so notify the launching authority, which shall immediately take effective steps, under the direction and control of State CC, to eliminate possible danger of harm; expenses of recovery and return are borne by the launching authority. That is the Cosmos 954 situation.

How much compensation, and by what procedure? Article XII: in accordance with international law and the principles of justice and equity, so as to restore the position that would have existed had the damage not occurred. Claim within one year under article X. If no settlement by diplomatic negotiation within one year of notification, a Claims Commission of three under articles XIV to XX, whose award is final and binding only if the parties so agreed, and otherwise recommendatory, to be considered in good faith.

Change one fact: the satellite was to mine and sell lunar minerals. Article II of the Outer Space Treaty forbids national appropriation of the Moon by any means. Whether extracting and owning resources is appropriation of the celestial body is unsettled. The Moon Agreement would answer it, since article 11(3) provides that natural resources in place shall not become the property of any State, organisation or person, and article 11(5) requires an international regime; but State AA is unlikely to be a party, because almost no space-faring State is.

Distinctions table

What it does NOT mean

Province of all mankind is not common heritage of mankind. Article I of the Outer Space Treaty uses the first; article 11 of the Moon Agreement uses the second.

Article IV does not demilitarise outer space. It prohibits weapons of mass destruction in orbit, and reserves celestial bodies exclusively for peaceful purposes.

A State is not excused because a private company acted. Article VI makes it responsible and requires authorisation and continuing supervision.

Liability in space is not absolute. Article III requires fault for damage elsewhere than on the surface.

Local remedies need not be exhausted. Article XI(1) says so expressly.

A Claims Commission award is not automatically binding. It binds only if the parties agreed; otherwise it is recommendatory.

The Moon Agreement is not the governing law of lunar activity. The space-faring States are not parties to it.

Limits and criticism

The regime was written for a world of two State launchers and now governs an industry of private operators. Article VI is equal to the problem in principle, by making the State responsible and requiring licensing, and the practical difficulty is that a company may choose where to incorporate and where to launch, so the standards of supervision differ from State to State.

Orbital debris is regulated by article IX and nothing else. A due regard obligation and a duty to consult before causing potentially harmful interference are all the treaties provide for a problem that now threatens the usability of some orbits, and the guidelines that supplement them are voluntary.

The liability system has been used once and settled without adjudication. No Claims Commission has ever been constituted, and the award of one would be recommendatory unless the parties agreed otherwise, so the most developed liability treaty in international law is nearly untested.

The boundary between airspace and outer space is undecided, which is tolerable while spacecraft go up and satellites stay up, and much less tolerable as vehicles fly through both regimes in a single journey.

The Moon Agreement's failure has left resource extraction ungoverned by any special regime, so the only applicable rule is article II of the Outer Space Treaty, and whether taking resources is appropriation is being answered, for the moment, by national legislation rather than by agreement.

Closing the module

Module IV set out four fields, and one idea runs through all of them. In [The World Health Organization] and [The International Health Regulations], a State is bound by regulations unless it opts out, and its freedom to act in an emergency is disciplined by proportionality and a duty to explain. In [General Principles of International Trade Law] and [TRIPS], its freedom to regulate is disciplined by non-discrimination and by a closed list of exceptions. In [International Air Law], sovereignty over airspace is complete, and every commercial use of it must be negotiated. And here, sovereignty is excluded altogether, and responsibility attaches to the launching State whatever private hands did the work.

The pattern is the one this book began with. [Is International Law Really Law?] asked whether a system without a legislature or a police force is law at all. The answer these four fields give is that it works by fixing responsibility on a State, by requiring it to explain itself, and by making the cost of departing from the rule higher than the benefit. Where it fails, it fails for exactly the reason [The Security Council: Composition, Voting and the Veto] and [The International Court of Justice] identify: consent is the foundation, and a State that withholds it cannot be compelled.

Quick revision

Five treaties: Outer Space Treaty 1967, Rescue Agreement 1968, Liability Convention 1972, Registration Convention 1975, Moon Agreement 1979.

Boundary: no treaty fixes it; spatialist (about 100 km) against functionalist; unresolved, and acquiescence in satellite overflight is the practical answer.

OST article I: exploration and use for the benefit and in the interests of all countries, the province of all mankind; free for exploration and use by all States; free access to all areas of celestial bodies; freedom of scientific investigation. Article II: not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. Article III: international law and the Charter apply. Article IV: no weapons of mass destruction in orbit; celestial bodies exclusively for peaceful purposes, no bases, installations, fortifications, weapons testing or manoeuvres. Article V: astronauts are envoys of mankind. Article VI: international responsibility for national activities including those of non-governmental entities, which require authorization and continuing supervision. Article VII: liability of the launching State. Article VIII: jurisdiction and control by the State of registry; ownership unaffected. Article IX: due regard, avoid harmful contamination, consult before potentially harmful interference. Article XII: installations open on a basis of reciprocity.

Rescue Agreement: notify immediately; rescue and assist; safely and promptly return personnel to the launching authority; return objects, with expenses borne by the launching authority, and special notice for objects of a hazardous or deleterious nature.

Liability Convention: damage includes loss of life, personal injury or impairment of health, and loss of or damage to property; launching includes attempted launching; a launching State launches, procures the launching, or provides the territory or facility; article II, absolute liability for damage on the surface of the Earth or to aircraft in flight; article III, fault elsewhere; article V, joint and several; article VI, exoneration for the claimant's gross negligence or intent, never where the launching State acted unlawfully; article X, one year; article XI, no exhaustion of local remedies; article XII, restore the position that would have existed; Claims Commission of three, award binding only if agreed, otherwise recommendatory. Cosmos 954, 1978, settled by protocol in 1981.

Registration Convention: register in a national registry and inform the Secretary-General, who maintains a Register with full and open access; furnish the launching State, designator, date and location of launch, basic orbital parameters and general function; notify when an object is no longer in Earth orbit.

Moon Agreement, article 11: the Moon and its natural resources are the common heritage of mankind; no appropriation; natural resources in place cannot become property; States undertake to establish an international regime whose purposes include equitable sharing of benefits with special consideration for developing countries and for the countries that contributed to exploration. No principal space-faring State is a party.

India: party to the first four; signed but not ratified the Moon Agreement; article VI is why national space legislation exists.

Test yourself

1. Where does airspace end and outer space begin?

No treaty says. Article 1 of the Chicago Convention gives every State complete and exclusive sovereignty over the airspace above its territory, and article II of the Outer Space Treaty provides that outer space is not subject to national appropriation, and neither says where one ends and the other begins. Two approaches are advanced. The spatialist approach would fix a boundary by altitude, the figure most often proposed being about 100 kilometres, on the reasoning that above it aerodynamic flight is impossible and orbital motion begins. The functionalist approach would look to the nature of the activity rather than the altitude, so that an object in orbit is governed by space law and an aircraft by air law. The question has been before the Committee on the Peaceful Uses of Outer Space for decades without agreement, and the practical answer has come from acquiescence: no State protests the passage of satellites in orbit above its territory.

2. Explain article VI of the Outer Space Treaty and why it matters.

It provides that States Parties shall bear international responsibility for national activities in outer space, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the Treaty; that the activities of non-governmental entities require authorization and continuing supervision by the appropriate State Party; and that where activities are carried on by an international organisation, responsibility is borne both by the organisation and by the States Parties participating in it. It matters because it reverses the general rule of State responsibility, under which the conduct of a private person is not attributable to a State merely because it occurs on its territory. In space the State answers for national activities whoever conducts them, and must license and supervise private operators. That is the reason every launching State, India included, has enacted national space legislation.

3. Set out the liability regime of the 1972 Convention.

It is two-tiered. Article II provides that a launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight, so no fault need be shown. Article III provides that where damage is caused elsewhere than on the surface of the Earth to a space object of one launching State, or to persons or property on board it, by a space object of another, the latter is liable only if the damage is due to its fault or the fault of persons for whom it is responsible. The distinction rests on the position of the victim: a person on the ground is an innocent bystander who created none of the risk, while two satellites in orbit are both engaged in the same hazardous activity. Article V makes two or more launching States jointly and severally liable, article IV governs damage to a third State from a collision, and article VI permits exoneration from absolute liability to the extent that the damage resulted from the gross negligence or intentional act or omission of the claimant State or its persons, with no exoneration whatever where the launching State's activities were not in conformity with international law.

4. What are the procedural features of a claim under the Liability Convention?

Article VIII identifies who may claim: the State which suffers damage or whose natural or juridical persons suffer it; failing that, the State in whose territory the damage was sustained; and failing both, the State of permanent residence of the persons concerned. Article X requires the claim to be presented not later than one year from the occurrence of the damage or the identification of the liable launching State, with an extension where the State did not know of those facts, subject to an outer limit of one year from learning them. Article XI dispenses with the exhaustion of local remedies, though a State may not present a Convention claim in respect of damage for which a claim is being pursued in the launching State's courts. Article XII fixes compensation in accordance with international law and the principles of justice and equity, so as to restore the position that would have existed if the damage had not occurred. And where diplomatic negotiations fail within one year, articles XIV to XX provide for a Claims Commission of three, whose award is final and binding if the parties have so agreed and otherwise recommendatory and to be considered in good faith.

5. Why did the Moon Agreement fail?

Because of article 11. Paragraph 1 declares that the Moon and its natural resources are the common heritage of mankind; paragraph 3 provides that neither the surface nor the subsurface nor any natural resources in place shall become the property of any State, organisation or person; and paragraph 5 contains an undertaking to establish an international regime to govern the exploitation of those resources as exploitation becomes feasible, whose purposes under paragraph 7 include an equitable sharing by all States Parties in the benefits derived, with special consideration for the needs of developing countries and for the efforts of those which contributed to exploration. That is the same bargain the industrial States rejected in the deep seabed context, and they rejected it here too. No principal space-faring State is a party, and the Agreement has very few ratifications, so it does not govern lunar activity in practice. The seabed problem was answered in 1994 by an Implementation Agreement rewriting the objectionable part; the lunar problem has had no such answer, and States have instead legislated nationally on resources recovered from celestial bodies.

6. Compare the treatment of sovereignty in air law and space law.

They are opposites, and deliberately so. Article 1 of the Chicago Convention recognises that every State has complete and exclusive sovereignty over the airspace above its territory, so there is no right of innocent passage, and by article 6 no scheduled international air service may operate over or into a State's territory except with its special permission. Article I of the Outer Space Treaty provides that outer space shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality, with free access to all areas of celestial bodies; and article II provides that outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. So in airspace sovereignty is complete and access is by permission; in outer space sovereignty is excluded and access is free. What connects the two regimes is that neither instrument says where the first ends and the second begins.