Supervised by: Dr. Joanna Rhodes MChem, DPhil (Oxon), MRSC, Solicitor. Having completed both her undergraduate degree and DPhil at Oxford University, Joanna qualified as a solicitor and enjoyed a successful career in Corporate and Intellectual Property Law at a magic circle law firm. In addition to her work as Director of Sixth Form at a leading UK school, Joanna is a member of the European Centre for Space Law and has attended DLR Hamburg as a prospective ESA astronaut.
This blend of academic rigour and practical legal expertise reflects the type of learning experience students can expect at Oxford Scholastica’s Oxford Summer Courses, where they are immersed in subjects like Science and Technology that span the breadth of human knowledge and inquiry.
As the commercialisation of space advances, more states and a wider range of private corporations and high net worth individuals are beginning to engage in space activities. Humanity is dependent on the satellites orbiting the Earth to provide us with GPS, WiFi, digital maps and weather forecasts. A review of private and nation state space aspirations supports a conclusion that the world is experiencing the insurgence of a new space race. However, this rivalry is largely developing between private companies that have a greater abundance of assets and resources compared to the majority of government space agencies, which, as well as being more limited financially, are arguably more heavily restricted by the United Nations space treaties.
In this article, we analyse several loopholes in the five space treaties: the Outer Space Treaty (1967), the Rescue Agreement (1968), the Liability Convention (1972), the Registration Convention (1976), and the Moon Agreement (1984) (22). The loopholes may permit private entities to carry out certain endeavours in space, which states would be forbidden from conducting. Conversely, there are some disadvantages for these private individuals and corporations, as they may not be protected under international space law, which both binds and benefits states rather than individuals. The space sector and several recently established organisations have evolved simultaneously, but the laws — which have remained unchanged for several decades — have not adapted to modern day space activity and exploration. This begs the question: “To what extent do the Treaties only restrict national space organisations, and should the laws be modified?” In this article, it is our intention to review and analyse each of the treaties in turn in order to suggest ways in which space law ought to be adapted to be more appropriate in the context of modern society.
2 The Outer Space Treaty, 1967
The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies — which is more commonly known as the Outer Space Treaty (OST) — is a multilateral treaty that sets forth the underlying basis for the international regulation of space activities. Moreover, it establishes the framework of the current legal regime of outer space and celestial bodies (1).
2.1 Historical Background of the Outer Space Treaty
At the end of World War II, the Union of Soviet Socialist Republics (USSR) and the United States of America (USA) emerged as formidable world powers. Considering that tension occurred between both parties during the War, the vehemence of the rivalry between them only increased further after the war. On 12 March, 1947, this rivalry engendered the commencement of the Cold War, giving rise to avarice for superior military power and nuclear armaments (2).
The road to ending the Cold War (26 December, 1991) was achieved through several treaties, one of which was the Antarctic Treaty. It was signed on 1 December, 1959, to demilitarise Antarctica, free it from nuclear tests and the disposal of radioactive waste, and to promote international scientific cooperation in order to use it peacefully. Taking these purposes into account, the treaty is known as the First Disarmament Treaty (3). The Antarctic Treaty served as a foundation upon which the Outer Space Treaty was composed. The OST is deemed the Second Disarmament Treaty due to a shared characteristic: both treaties seek to avoid a new form of colonial competition (3).
The way in which the Cold War rendered itself in space was through the development of intercontinental ballistic missiles (ICBMs) (A); rocketry; and an artificial satellite of Earth under an international scientific programme, the International Geophysical Year (IGY). The rapid development of space technology led to the arms race between the USSR and the USA (2,4). The overproduction of nuclear weapons meant that both countries had the capability of obliterating one another, thus deterring them from attacking each other. This notion is also known as ‘mutually assured destruction’ (MAD) (5). On 17 October, 1963, before the possibility of obliterating human life, a resolution prohibiting the introduction of weapons of mass destruction into outer space was unanimously adopted by the United Nations (UN) General Assembly. Between 1963 and 1967, several draft treaties were considered until the ultimate formation of the OST, drafted and negotiated with the assistance of the UN. On 27 January, 1967, it was opened for signature in Moscow, London and Washington before entering into force on 10 October, 1967. As of August 2022, 112 countries have ratified the treaty, and a further 23 countries have signed it (52).
2.2 Historical Background of the Outer Space Treaty
The OST comprises 17 relatively short articles, which can be found in Appendix I. It imposes principles on states and establishes guidelines that govern the actions that they carry out in outer space, which encompasses the Moon and other celestial bodies. According to the UN Office for Outer Space Affairs (UNOOSA), there are key nine principles of the treaty, which are as follows (6):
1) The exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind.
2) Outer space shall be free for exploration and use by all States.
3) Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
4) States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner.
5) The Moon and other celestial bodies shall be used exclusively for peaceful purposes.
6) Astronauts shall be regarded as the envoys of mankind.
7) States shall be responsible for national space activities whether carried out by governmental or non-governmental entities.
8) States shall be liable for damage caused by their space objects.
9) States shall avoid harmful contamination of space and celestial bodies.
Although not as lengthy as other international treaties — such as the Law of the Sea Treaty (B) — the OST is regarded as the cornerstone of space law as it informs national space law and is the foundational legal instrument of international space law (7).
To complement and strengthen the OST, four other treaties were brokered by the UN, namely: the Rescue Agreement (1968), the Liability Convention (1972), the Registration Convention (1976), and the Moon Treaty (1984), all of which will be examined subsequently herein (8).
2.3 Loopholes in the Outer Space Treaty
Despite being the backbone of international space law, the OST was drafted during the Cold War, with geopolitical and technological circumstances differing materially from the 21st century. One may therefore ask: “Is the Outer Space Treaty well-suited for contemporary challenges?” It may be argued that states, private individuals and companies can take advantage of the ambiguous language of the treaty. With respect to the former, states may find loopholes regarding armament. With regard to the latter, private individuals and companies can exercise various activities ranging from claiming sovereignty to polluting outer space (9,10,11).
2.4 Loophole I: States Arming Outer Space
Article IV of the OST outlines the responsibilities of the parties to the treaty. The first paragraph declares: ‘States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.’ Firstly, given that only ‘nuclear weapons or any other kinds of weapons of mass destruction’ are mentioned, it follows that all weapons that are not nuclear and of mass destruction, i.e. conventional weaponry, are not prohibited. Although this paragraph contains a loophole, non-defensive utilisation of the aforementioned weaponry has a high likelihood of breaching international laws of armed conflict. Secondly, liability arises if debris is created, under Articles VI and VII of the OST. Thirdly, the 1972 Liability Convention would be invoked as well for creating the risk of damage to the property of other states (9,10).
The second paragraph declares: ‘The Moon and other celestial bodies shall be used by all states Parties to the Treaty 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 shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited.’ Firstly, the repeated phrase ‘peaceful purposes’ remains ambiguous as the treaty does not provide a working definition of ‘peaceful’, which leaves the interpretation to differing states’ varied subjective views as to that which is considered ‘peaceful’. Secondly, by mentioning ‘the Moon and other celestial bodies’, the treaty effectively demilitarises the Moon and celestial bodies, but not the spaces between them that can be used. Thirdly, as the phrase ‘any equipment or facility necessary for peaceful exploration’ is employed, and the definition of ‘peaceful’ is not clarified; the ‘equipment or facility’ that will be utilised can, in effect, be a military tool used for allegedly ‘peaceful’ purposes (9).
Considering this article and its loopholes, on 18 June, 2020, United States President Donald Trump made an announcement to create the Space Force, which would undertake the USA’s military activities in outer space. It was formed on 20 December, 2019, as the sixth branch of the armed forces. He further elaborated that, “When it comes to defending America, it is not enough to merely have an American presence in space. We must have American dominance in space. [It is] so important.” (12). After his statements, concerns were raised as to whether America would be complying with the conventions, agreements and treaties — such as the OST, Charter on the UN, international customary law and UN Security Council and General Assembly resolutions — of which it is a party (13).
In view of the ambiguous language of the treaty, the USA interprets the ‘peaceful purposes’ as ‘non-aggressive’; contrastingly, Russia interprets it as ‘non-military’. ‘Non-aggressive’ implies the presence and use of military equipment without a confrontational approach to the permitted extent in the treaty. In contrast, ‘non-military’ implies the absence of armed forces, which is a more pacifist approach. While the Space Force is arguably legal under the USA’s interpretation of international space law, Trump’s rhetoric of American dominance transgresses against the use of space ‘on a basis of equality’ as stated in Article I of the OST (14).
2.5 Potential Solutions to Loopholes Regarding the Armament of States by Way Amendments
Considering the rapid technological advances and the fact that there is no international body to police the activities of states in outer space, the competency of the OST to regulate current and future competing interests seems insufficient. There are two main ways to fix loopholes: either amending the existing treaty, or introducing another form of law, and thus improving enforceability. The latter will be explored together with the second loophole regarding private individuals and companies.
As per the amendment of the treaty, we argue that the general terms need to be more closely articulated or defined. With regard to Article IV, firstly, weapons other than nuclear and of mass destruction need to be considered, and the aforementioned equipment or facilities need to be specified. Secondly, the components of and locations in outer space, such as the Moon and celestial bodies, need to be revisited to include the spaces between celestial bodies, Lagrange points (C) and so forth. Finally, the phrase ‘peaceful purposes’ must be defined elaborately without leaving any space for states to come up with their own self-satisfying definitions (15).
Apart from amendments, legislators should observe newly developing space technologies and scientific discoveries to better define space bodies, and update the treaty accordingly.
2.6 Loophole II: Competing Interests of Private Individuals and Companies
Predominantly, it must be asserted that only states can be parties to treaties. Therefore, treaties are meant to regulate the activities of states, not private individuals or companies. The same also applies for the OST. The OST does not regulate the space activities of private individuals and companies (16).
Having said this, Article VI of the treaty reads: ‘States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, 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 provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authori[s]ation and continuing supervision by the appropriate state party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organisation, responsibility for compliance with this Treaty shall be borne both by the international organisation and by the states parties to the Treaty participating in such organisation.’ Therefore, this article holds states liable for space activities that are non-governmental, i.e. space activities that are carried out by private companies. Given this, two issues arise: the first concerns the regulation of individuals and companies in states that did not sign up to the OST; the second involves the inadequacy of the domestic law of states that have signed up to the treaty.
2.7 Loophole II.i: States that Did Not Signn Up to the Treaty
There are countries that are not signed up to the OST as well as signatories that have not ratified the treaty. (Please refer to Appendix II to access the document on the status and application of the five UN treaties on outer space.) Therefore, without having consented to the OST, they are not bound to abide by its articles. This situation gives an advantage to private individuals, who can move to and gain the citizenship of such countries: this is known as ‘state-jumping’. Having state-jumped, they acquire an unlimited freedom to conduct whichever activities they wish in outer space, ranging from claiming sovereignty to polluting outer space (17).
2.8 Potential Solutions to Loophole II.i
There are two fundamental solutions to fix this loophole: the first is to encourage or otherwise force other states to sign up through the instruments of international relations, and the second is to create another form of law, and thus ensure enforceability. The second point will be explored later as it has the potential to fix all of the loopholes.
The first proposal is aimed at using international relations tools to encourage other states to ratify the treaty. According to this approach, parties to the treaty use their leverage to encourage unsigned states to turn up for ratification. Some of the unsigned states may want to sign up to create a good reputation for themselves on the international stage. For the other states that are not willing to sign up, states that have already ratified or acceded can use economically damaging instruments such as sanctions as a more assertive measure to bring the unsigned states to sign it. If the first approach does not work, the second one has a greater likelihood of success, as unsigned states can only resist a detrimental economic and political environment for a short time, yet it is an extreme measure that requires international consensus and which can be damaging to international relations beyond the scope of the treaty (18).
2.9 Loophole II.ii: Inadequate Domestic Law of Signed States
There may exist states that have ratified the OST but do not have sufficient national legislation and regulation, or do not have adequate control mechanisms, to regulate their private citizens and companies.
2.10 Potential Solutions to Loophole II.ii: Inadequate Domestic Law of Signed States
It is worth noting that, when states sign up for the treaty, they show their willingness to comply with international space law to a certain extent, unlike the unsigned states. It should also be noted that when it comes to private individuals and companies, the most significant country to be mindful of is the USA, where the likes of Elon Musk (SpaceX), Jeff Bezos (Blue Origin) and Richard Branson (Virgin Galactic) are located. Having said this, to overcome such loopholes, firstly, signed states could amend the treaty to include more articles so that the standardisation of the regulatory laws can be achieved between different states. Secondly, different control mechanisms could be established to police private individuals and companies. For example, in 2018, Swarm Technologies, which is an American private company building a low Earth orbit satellite constellation for communications, was denied a licence by the Federal Communications Commission (FCC), which regulates interstate and international communications through cable, radio, television, satellite and wire. Swarm Technologies’ attempt to launch four satellites was considered a breach of the OST, making the USA non-compliant to the treaty. To resolve the issue, the FCC subjected Swarm Technologies to a fine of $1 million, whilst giving permission to the company to pursue its operation under a strict compliance regime. Therefore, bodies such as the FCC can be formed to resolve such loopholes. The third solution is discussed below as a remedy for all other loopholes. It concerns passing the OST into customary international law. Finally, when mentioning the domestic law of the signed countries, one caveat that needs to be remembered is not to interfere with the internal affairs of the countries (10,17).
2.11 The Most Powerful Solution to Loopholes: Customary International Law
The most useful legal tool to resolve almost all present and potential future loopholes is passing the OST into customary international law. Customary international law is an international source of law that comprises rules that arise from ‘a general practice accepted as law’ and exists independent of treaty law. Treaties solely bind the states that have ratified them, as ratification is an expression of states’ consent to be bound. In contrast, customary international law is binding regardless of whether the states have codified these laws domestically or through treaties. An even more powerful form of customary international law is jus cogens (Latin for ‘compelling law’). Jus cogens is a peremptory norm, meaning that it is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is ever permitted, i.e. it is non-derogable. These norms are rooted in natural law principles, and any laws conflicting with it shall be considered null and void. Some examples include international crimes; a state violates customary international law if it permits or engages in slavery, torture, genocide, war of aggression, or crimes against humanity (19,20,21).
Jus cogens and customary international law are not interchangeable. All jus cogens are customary international law through their adoption by states, but not all customary international laws rise to the level of peremptory norms. States can deviate from customary international law by enacting treaties and conflicting laws, but jus cogens are non-derogable (19,20,21).
In addition to various amendments to the OST to update it with regard to the needs of the 21st century, passing the treaty into customary international law and making it jus cogens in the long term can prevent potential military, commercial and political exploitations and breaches by states, private individuals and companies. Ultimately, this could be the solution to some of the inherent problems within international space law.
3 The Rescue Agreement, 1968
The Rescue Agreement of 1968 is the second international treaty that governs space-related activities (22). Composed by the Committee on the Peaceful Uses of Outer Space (COPUOS) it elaborates on the OST’s duty to rescue the endangered personnel of a spacecraft (23,24). It stipulates the measures that must be undertaken by a contracting party if it becomes cognisant that such personnel are in distress, have suffered an accident or have landed unintentionally: Article I requires the contracting party to inform either the launching authority or the Secretary General of the UN of such events, and Article II prescribes that the contracting party must ‘immediately take all possible steps to rescue’ the distressed personnel (22,24). The subsequent articles demand that the contracting parties ‘extend assistance in search and rescue operations’ if the spacecraft has landed in an area that is not under the jurisdiction of any state, and that the personnel, after having been found in such a place, be ‘safely and promptly returned’ to members of the launching authority. Moreover, Article V details procedures for recovering space objects found by a state in its territory: the launching state must reimburse all costs involved in returning the object (22,25). The Rescue Agreement has been ratified by 98 states and has a further 23 signatories.
Perhaps the most salient problem within the treaty — and, indeed, its precursor — arises from its failure to sufficiently define the terms ‘astronauts’ and ‘personnel’: when the Rescue Agreement was drawn up, space travel was a novelty that was limited to governmental space agencies (26). Therefore, whether space tourists can be considered ‘astronauts’ or ‘personnel’ is certainly nebulous; furthermore, when the Rescue Agreement was implemented, ‘astronauts’ were only understood to include crew on missions organised by governments, and were defined by the OST as ‘envoys of mankind in outer space’ (6), which is also a rather obscure description. In addition, the term ‘personnel’, which appears in the Rescue Agreement, is broader than the term ‘astronaut’, and so it may also encompass other individuals such as scientists on a space mission (26). It is uncertain, however, if civilian passengers may be considered ‘personnel’, and, hence, if they will be protected under the treaty.
Similarly, the Rescue Agreement is rather vague regarding that which constitutes a ‘spacecraft’ (28). Such ambiguity may present a grave problem for space tourism in the near future. For example, the #dearMoon project, the first ever lunar space tourism mission, is expected to take place in 2023; it will be conducted by the Japanese billionaire Yusaku Maezawa, who will work in collaboration with Elon Musk’s company SpaceX to complete a circumlunar course in the SpaceX Starship (28). If the intended crew members — of whom eight are artists aiming to complete a creative project inspired by the Moon — were to find themselves in distress, they may not be protected under the Rescue Agreement, and so the contracting party may not be obligated to provide all possible assistance to the crew due to the uncertain definitions of ‘astronauts’ and ‘personnel’. The same problem may ensue in future suborbital space tourism such as the projects carried out by Jeff Bezos’ company, Blue Origin; and its rival, Virgin Galactic, founded by Richard Branson (29,30): it currently remains uncertain whether space tourists will be protected under the Rescue Agreement, and so the treaty ought to be amended to provide greater clarity on this matter in order to establish regulations for the newly private nature of space activities, especially due to the emergence of the commercial space tourism industry.
However, since the OST stipulates that the ‘common interest of all mankind’ (27) must be recognised, a lenient interpretation of the term ‘astronaut’ would be beneficial to future civilian space tourists; if the definition of ‘astronaut’ in NASA’s 1965 Dictionary of Technical Terms for Aerospace Use (31) — ‘one of the test pilots selected to participate in Project Mercury, Project Gemini, Project Apollo, or any other United States program[me] for manned spaceflight’ — were used instead, space tourists would not be protected, thus contravening the aforementioned moral principle outlined in the OST (27,32). Nevertheless, the Rescue Agreement ought to be amended to prevent the contracting parties from circumventing their duty to protect space travellers.
Another prominent issue within the treaty is that it specifies neither the types nor the severity of the ‘accident’ or ‘conditions of distress’ that the personnel must experience in order to receive assistance; it is also silent on the types of ‘emergency or unintended landing’ that must have occurred (26). Under Article II of the Rescue Agreement, it is written that the landing must be engendered by an accident or distress, or it must be considered an emergency or unintended landing (25). An evident problem emerges from the unclear definition of an ‘unintended landing’. For example, if a person lands while distressed but is able to select the location for landing, whether the landing itself is unintended is certainly a contentious issue; furthermore, the same controversy is evoked if a person lands intentionally but inadvertently lands in a different area from the intended location due to incorrect geographical information (26). If a landing occurs in the case of an accident, distress or an emergency, the landing ought to be considered unintentional, even if a particular location had been chosen in which to alight. In this way, the Rescue Agreement must be modified to protect future space tourists in the case of such a landing.
On balance, the Rescue Agreement may prove disadvantageous to the future of space tourism due to its ambiguity and its failure to consider private individuals such as the billionaires who are aiming to commercialise spaceflight (29). It seems, therefore, that such individuals and future space tourists may not be protected under the current terms of the Rescue Agreement, and so it ought to be modified to explicitly include these people for their safety and for the ‘common interest of all mankind’.
4 The Liability Convention, 1972
The Liability Convention was assembled in 1972 (33), when there were only two countries that dominated the space sector: the USA and Russia (38). Sputnik 1 was launched by Russia in 1957 (35), whilst Explorer 1 was sent into space the following year (36). World politics and the space sector have evolved simultaneously, but we argue that the law has not adapted to modern day space activity and exploration.
We have proposed that the world is experiencing the insurgence of a new space race, although in the 21st Century such rivalries have new players; private companies (37) who have a greater abundance of assets and resources compared to government space agencies, which are also potentially more heavily restricted by the Liability Convention.
The first lacuna within the Convention is that the launching state is solely responsible for the damages caused by private companies (34). In the last few decades, private space companies such as SpaceX, Blue Origin and Virgin Galactic emerged, but, currently, there is no law that holds them directly liable for any damage their space objects could cause, as private activities in space are attributed to the launching state in the Convention (34,38). This means that they may not be held accountable for all of their actions; the launching state is obligated to cover the compensation should there be any damage caused to the Earth’s surface or to another aircraft in flight (34). Furthermore, the treaty guarantees that national governments will have dominance in governing space-related activities (34). In the near future, space will certainly become more populous, and the risk of damage resulting from satellite collisions is more likely, and so there is arguably a need for responsibility and liability to be distributed accordingly (38).
Article VI of the OST — which paved the way for private activities to arise under the ‘supervision’ of the state government (1) — declares: ‘The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorisation and continuing supervision by the appropriate state party to the Treaty.’ (22) The launching state of a spacecraft is liable for any damage on Earth resulting from its spacecraft, even if there is some unknown interference with the spacecraft about which the state is not cognisant (34). This is known as the ‘liability loophole’: unknown parties can elude the repercussions of their actions, as the state is responsible, despite the unknown intervention. This issue arises because the Convention does not inquire into the primary cause of the incident (34). We suggest that any malfunction regarding a spacecraft should be thoroughly investigated, regardless of the situation, in order to prevent future mistakes (35). If a compensation claim is made, but the organisation responsible for the space object denies the claim, investigations should be carried out to deduce the cause of the problem. Considering the ex-post school of thought would be equivalent to retrospecting (40), and the court would ask the launching state to compensate for the damage the space object caused. In this instance, the victim of this incident would receive their compensation; the state would experience a financial loss for an event for which it should not be responsible, whilst the perpetrators could evade liability. This case would set a dangerous precedent for others who may observe that interfering with space objects carries limited repercussions, and there may consequently be an increase in future occurrences (40).
When examining a case, the court must have two considerations: the effect of the incident on the victim, and preventing future occurrences (40). Preventing future occurrences would necessitate a thorough investigation of the accident in order to hold the perpetrator accountable, whilst compensating the victim and charging the company responsible for the space object with negligence.
Another issue with the Convention is the definition of ‘launching state’(38). In the Convention, a ‘launching state’ is ‘i) A state which launches or procures the launching of a space object; ii) A state from whose territory or facility a space object is launched’ (38). For example, SpaceX rockets are launched in the USA, indicating that the USA is the launching state that is liable should there be any damage on Earth caused by SpaceX’s space object. However, if more than one country qualifies as a launching state, both nations can be held jointly and severally liable for damages caused. However, the definition provided by the Convention is rather vague (38). This is evident in the 2009 satellite collision between an inactive Russian military satellite Kosmos 2251, and Iridium 33 from the USA (39). The problem lies in the American-owned but Russian-launched satellite, Iridium 33 (39, 41). Regarding Iridium 33, it was argued that while it was manufactured in the USA it was launched from a Russian spaceport. This poses a problem since Article VII of the Liability Convention (34) prohibits two parties from the same country from invoking the terms of the Convention against one another, so if the parties do not agree to reach a consensus, both nations would be at an impasse (38). A clearer definition of ‘launching state’ should be given, and the Convention ought to be updated so that it can be prepared to deal with similar problems in the future.
The Convention also states that the launching state is liable for any damage caused by the launching state’s aircraft. When damage is caused in space, for example by two colliding space objects, the Convention demands a ‘fault’, which is not defined clearly in the treaty (38). The Convention also needs proof of state ‘fault’ in order to hold it liable for damages (38), as ‘in the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching state to persons or property on board such a space object 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 the persons for whom it is responsible. (34,38) The term ‘fault’ should, therefore, be more clearly defined in the Convention (38).
5 The Registration Convention, 1976
The UN has maintained a register of objects that have been launched into outer space since 1962 (40). The space objects that have been registered have also been made available for public reference and have been published by UNOOSA on the UN Official Document System (40), as mandated by the treaty. Articles II, III, and IV of the Registration Convention of the OST (42) necessitate the provision of information which is sufficient to maintain a registry of space objects by the liable states, for two stated reasons. The first is to ‘minimise the likelihood and even the suspicion of weapons of mass destruction being furtively put into orbit’, and the second is the fact that ‘it is not possible to identify a spacecraft that has caused damage, and therefore to correctly attribute liability, without an international system of registration’.
There is considerable latitude offered to the states under Articles II and IV, with respect to the information that is provided to the United Nations as a requirement under the treaty. States may use their discretion in providing the kind of information that may be deemed appropriate to be included in the registry. In the convention, the interests of the nation — and the upholding of national security — are preserved as a more sanctified endeavour than an obligation imposed upon the liable states to account for every aspect of the space object launched. Thus, the number of rigid and tight clauses that have been imposed upon the states via the Registration Convention is negligible.
It is an accepted fact that space is becoming alarmingly congested because of the space objects being deployed on a regular basis, including on-orbit satellites and debris objects. (41) Technological developments like the ease of access to small-launch vehicles, and launch ride sharing have had a significant negative impact on orbital congestion. ‘Space-traffic’ is a phenomenon widely commented upon around the world, and it is being popularised as a recipe for disaster (41); however, and perhaps surprisingly, minimal action has been taken under the Registration Convention to mitigate it.
A notable example of space traffic causing an unequivocal catastrophe is the infamous satellite collision of 2009 (39), which took place as a result of the United States’ deployment of a commercial Iridium satellite that was launched into space from Russian territory. Unfortunately, this satellite collided with an inactive Russian communications satellite, Cosmos-2251, releasing millions of pieces of shrapnel that more than a decade on continue to endanger other satellites in the Earth’s low orbit throughout a zone that expands to around 2000 kilometres. It is a major threat to several satellites, as space objects cannot easily be manoeuvred away from the debris because every fraction of a metre that is moved demands fuel and time, which are essential towards the completion of the spacecraft’s primary mission: the wastage of these resources cannot be afforded, in order to optimise the output.
With respect to the OST, the Registration Convention has arguably taken a highly neutral stance which does not prevent the creation, nor propagate the control of space debris to any significant extent. There are about 3000 inactive and dead satellites orbiting the Earth, as of 2022 (4). This puts other potentially useful satellites at risk, and this number will only continue to rise in the absence of stronger measures such as clauses added to the Treaty, that have the effect of mandatorily preventing the creation of new space debris. There are provisions for liability under the OST for the space objects launched by the responsible state; nevertheless, as we have already described in the previous section, the extent of this liability is extremely vague, and leaves grey areas open for interpretation, contributing to the apparent futility of efforts to eradicate space debris.
To go some way towards improving this situation, we argue that the Registration Convention should impose a requirement on the liable states to estimate the number of dead satellites or inactive space objects they launch, and to remove them in order to avoid disturbing the missions of other useful space objects. Repercussions should inevitably follow a failure to do so by a state, provided there is no valid justification supplied. We suggest that only if states are held accountable for the space objects that are launched from their territory, right from the point of their launch to their decay — considering the complete cost of the process throughout an object’s lifetime — will there be any progress in mitigating the problem of space debris.
Another major failure of the Registration Convention is the fact that there have been few measures taken to prevent the weaponisation of space. For example, a nation with the possession of an Anti-Satellite Weapon (ASAT) could easily decimate the space programme of another nation, and this does not align with the ethical principles of the OST. However, the Registration Convention does not hold any state accountable for the weaponisation of space: consequently, this may be seen as a potential threat to outer space objects in the near future.
Instead of placing the greater emphasis on protecting national interests, the Convention should require states to provide clearer statements prior to the launch of an object into space, with information outlining in more detail the aspects of the mission, for example: the purpose of the mission; an estimated life-span of the object being launched; and a testimony that the object being launched is being deployed with no ill intentions, to cause no harm to another nation or another space mission; and that launching it is in the best interest of the launching or otherwise responsible nation.
If the Registration Convention is amended in such a way that it protects national integrity while also maintaining full disclosure of the space object’s endeavours, along with a binding obligation to account for the space debris that may be caused as an after-effect of the deployment, prospective space ventures will be less likely to have a detrimental impact, or impinge on the use of space by other nations or private entities.
6 The Moon Agreement, 1984
The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, which is referred to as the Moon Agreement or Moon Treaty, was drafted by the COPUOS (22), adopted by the UN General Assembly on 5 December, 1979 (1) and entered into force for the ratifying parties in 1984. This treaty was the final UN Space treaty to be agreed (22).
The 21 articles of the treaty elaborate on the OST, and seek to regulate activities on the Moon, and the other celestial bodies of outer space. It declares that the Moon is the ‘common heritage of all mankind’ and calls for the establishment of a legal regime to govern the exploitation of outer space. It seeks to prohibit any nation from claiming sovereignty or conducting any military or weapon-related activities (Article 1~3) (22). The treaty also promotes active scientific research in outer space, but clarifies that it should be shared with other member states (Article 6) (22). Despite its original purpose — which is to pursue equality and cooperation in space activities and prevent multilateral conflict — the treaty seems to be impractical in some regards due to several major ambiguities, which could be construed to be loopholes.
Presently, only 22 out of a total of 193 UN member states are signatories of the agreement. Amongst them, only seven ratified, and hence are legally bound by the treaty; they are: the Republics of Austria, Chile, Peru, the Philippines and Uruguay; and the Kingdoms of Morocco and the Netherlands. There were 11 accessions: Armenia, Australia, Belgium, Kazakhstan, Kuwait, the Lebanese Republic, Mexico, Pakistan, Saudi Arabia, Turkey and Venezuela. Not only is the small number of member states significant, but crucially none of them have completed any lunar missions (47). Rather, the nations that have ongoing activities in space — such as the USA, Russia and China — have avoided ratifying or even signing the treaty (49).
Signatories to the Moon Agreement include France, Guatemala, India and Romania. These countries gave consent to and expressed the will to abide by the treaty, but are not legally bound by it. Moreover, in India, which is the only one of these countries that actively participates in space exploration, there has been a call to withdraw from the Moon Agreement (44). As China, India’s main rival in terms of space development, is operating its space programmes, India has felt threatened by its competitiveness (47). In order to prevail in the ongoing space race, India considers it may be necessary to withdraw their signature from the Moon Agreement, which the most powerful countries in space exploration did not join (47) and do not feel constrained by.
So why did so many UN member states avoid signing the Moon Agreement? Most consider the main factor to be its restriction of the property rights of member states. The Agreement proclaims that everything naturally derived from outer space remains as the ‘common heritage of mankind’, and that the profits from space activities should be distributed to other countries, according to the decision made by the international regime. This would be regarded as a potential source of loss for nations who earn profit from space programmes, since resources or financial benefit would be allocated to nations, regardless of whether they signed the agreement or contributed to the program (48). This poses the danger of non-member states imposing taxation on member states in space, since they would receive some of the tax revenue while not having to pay for it (48). Additionally, it allows nations inactive in space development to gain monetarily from and reap the rewards of technological gains from other nations, without actively or financially contributing to space programs (48).
The Moon Agreement was the final space treaty to be ratified and no amendments have been made to the original text. Although the agreement attempted to provide solutions to private property issues of outer space, it could not eliminate those issues and arguably has failed in its aim to harmonise the status of the moon among member states. As we anticipate further progress in the utilisation of space, not least of all in the form of the imminent Artemis launches aiming to return humans to the Moon by 2025 we argue that urgent amendments and possibly even a new treaty ought to be proposed (50). Artemis is covered discretely by the Artemis Accords, a bilateral agreement between the United States government and other world governments participating in the Artemis program to return humans to the Moon by 2025 (51). The Artemis Accords lack legal status and fall short of the international participation, most notably the USA and China, that would be necessary to give full effect to the OST and to solve the textual and technical issues of the Moon Agreement (50).
In summary, the OST has been acclaimed as one of the most fundamental contributors to the establishment of international space law. Nevertheless, it does unequivocally leave several gaps that must be amended in the best interest of prospective space ventures and space explorers.
The treaty’s subsections contain several loopholes, which we have previously illustrated; there are loopholes for states and private individuals alike. The Rescue Agreement may not protect future space tourists as the definitions that have been discussed under it are extremely ambiguous; the Liability Convention only holds states liable should there be any damage caused to the Earth by an aircraft, so there is an evident lack of clarity in the definitions provided; the Registration Convention fails to provide an account for the liability of states causing space debris, and does not provide a method to prevent the weaponisation of space; the Moon Agreement disbenefits its member states in space developments, resulting in fewer ratified nations. To resolve the loopholes regarding states, defined weapon types ought to be broadened, and ‘peaceful purposes’ must be clearly defined. To fix the loopholes concerning individuals, the domestic law of the signed states ought to be tightened.
Overarchingly, the most efficient way of resolving the loopholes is by means of the OST being passed into customary international law, if not jus cogens, as it would then be binding for all states.
A) Intercontinental ballistic missiles (ICBMs) are land-based, nuclear-armed ballistic missiles with a range of more than 3500 miles (5600 km)
B) The Law of the Sea Treaty is a body of customs, treaties, and international agreements by which governments maintain order, productivity and peaceful relations on the sea.
C) Lagrange points are positions in space where objects sent there tend to stay put because gravitational forces of a two-body system produce enhanced regions of attraction and repulsion.
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- Appendices: https://docs.google.com/document/d/1Hf-cXQzotmQT_g8btSNxkRnhRpHUMubUhNDSxs2p938/edit?usp=sharing