Introduction:
In 1609, When Hugo Grotius published Mare
Liberum[1],
he laid down the rules of the law of the seas for the very first time. Over the
time, the rules for International Law (beyond the seas, especially Land) were
consolidated. For a while, in twentieth Century, the mankind felt satisfied
that, there is no lawlessness beyond their domestic frontiers anymore. However,
the cold war did bring with itself certain welcoming surprises in Space
Technology. And here we are, with a certain conception of space law loosely
bound by a handful of treaties-
· Outer
Space Treaty[2]
(1967)
· Rescue
Agreement[3] (1968)
· Liability
Convention[4] (1972)
· Registration
Convention[5] (1975)
· Moon
Treaty[6] (1979)
And
even these bare laws have been litigated upon in Courts of Law, successfully, one
might add.
Brief Overview of Present Space Law
Framework: The Committee on the Peaceful Uses of
Outer Space (hereinafter referred as COPUOS) was set up by the General Assembly
in 1959 to govern the exploration and use of space for the benefit of all
humanity: for peace, security and development[7]. The Committee was tasked
with reviewing international cooperation in peaceful uses of outer space,
studying space-related activities that could be undertaken by the United
Nations, encouraging space research programmes, and studying legal problems
arising from the exploration of outer space. The Committee was instrumental in
the creation of the above mentioned five treaties and general principles of
outer space.
The United
Nations Office for Outer Space Affairs (UNOOSA) is
the United Nations office responsible for promoting international cooperation
in the peaceful uses of outer space and serves as the secretariat for the COPUOS
at Vienna. UNOOSA also maintains the United Nations Register of Objects Launched into Outer
Space.[8]
The
five space treaties deal with issues such as the non-appropriation of outer
space by any one country, arms control, the freedom of exploration, liability
for damage caused by space objects, the safety and rescue of spacecraft and
astronauts, the prevention of harmful interference with space activities and
the environment, the notification and registration of space activities,
scientific investigation and the exploitation of natural resources in outer
space and the settlement of disputes.
The
Moon Treaty must be treated as a universal failure, since none of the major
space powers have ratified it and a mere 11 states have signed it till date.
Perhaps, the United Nations jumped the gun when they introduced the much
ambitious Moon treaty in the height of cold war. The right timing for the moon
treaty could have been the recent years or even now, when. But a failed moon
treaty changes the equation drastically, and makes the path of a new space treaty
quite difficult.
Each
of the space treaties stresses the notion that outer space, the activities
carried out in outer space and whatever benefits might be accrued from outer
space should be devoted to enhancing the well-being of all countries and be
treated as common heritage of humankind, with an emphasis on promoting
international cooperation.
Outdated Space Law:
Fast forward to 2016, the last one of the space treaties was formulated 37
years ago. The 1998 International Space Station Agreement can be ignored for
our purposes, since it is not in nature of universal application. The humanity
cannot expect the developments in space to be so stagnant that no amends in
space law is required for such a long time. We
now have at least a lot of major companies (non- governmental at that), Virgin
Galactic, Blue Origin, SpaceX, XCOR Aerospace, Lockheed Martin etc., competing for dominating Commercial Outer Space. Apart from governmental
contracts, these companies consider their major business to be Space Tourism/
travel & Asteroid Mining. Apparently, these companies are very secretive in
their activities & future business plans and lack transparency. They only
reveal the bare minimum details (of their technological feats) required to
create buzz for investors and attract much needed investment. Though, recently at 67th International Astronautical Congress, Guadalajara, Mexico, SpaceX did present its plan to cater to commercial travel to Mars by 2018. Be that as it
may, one thing is evident that there are private companies entering space
and are very close to making commercial suborbital spaceflight at least. Again,
the space treaties are mum on commercial exploitation of space by private
players, perhaps it never caught their imagination 37 years ago. We can clearly
see that the law is still chasing the space technology, and unfortunately is
lagging far behind.
Once
there are human beings, and ordinary ones at that, in an uncharted territory,
where hardly any civil, criminal or trade law exists, the rules of trading
become extremely important. No one knows as to what laws an ambitious trader
must look for as a guide to comply whilst in his endeavour to conquer outer
space for commercial gains. It is a chilling question one must ask as to how
would, say, a murder be dealt in space? Which criminal law would apply, or
would that only be a civil law claim of wrongful death? Which Court of law
would have the right jurisdiction over a contract negotiated and signed in
space & to be executed in space? Would The United Nations Convention on
Contracts for the International Sale of Goods be applicable in case of a goods
sold? Where would the incidence of taxation lie, if at all? There are
innumerable questions & only blank answers to them. It is therefore
incumbent on the international community to look for the right answers for
these questions which though seem improbable at present, but are undeniably
possible in near future. Otherwise, we are alarmingly close to lawlessness with
regard to trading in outer space.
The above-mentioned private companies have set monumental milestones in space
technology such as taking- off of a spacecraft and landing it at the very same
place successfully[9]
and making the space crafts reusable[10]. It is important to note
that even governments with all their might and most brilliant human minds have
been unable to do so successfully, and that’s not for the lack of trying. This
changes things. It makes space travel affordable & viable for private companies.
Coming back to basics, these companies are here to make some money by trading.
And where there is trade, there is a need for trade law. On national level,
this assumes importance since ISRO has been making commercial sense of space
technology by launching satellites for other countries at a fraction of cost,
hence, India has a unique commercial/ trading advantage[11]. No developing Country is
so far ahead in Space Technology as India, hence, it should be an important
contributor to rules of trading in space.
While
our ignorance makes us feel safe that there are five treaties protecting and
supporting the skeleton of space law, the leading economy & home to most
private aerospace companies, United States of America has been passing sweeping
legislations like the Space Resource Exploration and Utilization Act of 2015[12], which amongst others,
authorizes the american companies to keep and sell any natural resources mined
on planets, asteroids and other celestial bodies. According to one estimate,
these Commercial operations could reap trillions of dollars from mining
precious metals like platinum, common metallic elements such as iron, and water
& the unknown mineral resources[13].
The
US Law terms the companies under its jurisdiction as ‘United States Commercial
Space Resource Utilization Entity’. The term ‘United States commercial space
resource utilization entity’ means an entity providing space resource
exploration or utilization services, the control of which is held by persons
other than a Federal, State, local, or foreign government, and that is[14]-
(A) duly organized under
the laws of a State;
(B) subject to the
subject matter and personal jurisdiction of the courts of the United States; or
(C) a foreign entity that
has voluntarily submitted to the subject matter and personal jurisdiction of
the courts of the United States.
Additionally
the US law also confers property rights unilaterally on the newly coined United
States Commercial Space Resource Utilization Entity, in following terms[15]-
(a) Property rights- Any
asteroid resources obtained in outer space are the property of the entity that
obtained such resources, which shall be entitled to all property rights
thereto, consistent with applicable provisions of Federal law and existing
international obligations.
This
flies in the face of Outer Space Treaty & other remaining international
space agreements. The Outer Space treats outer space and the resources therein
like asteroids, as the common heritage of mankind, to which even USA agreed
more than 50 years ago, when the U.S.S.R. was a viable threat to its space
monopoly. But at present, with U.S.S.R. out of picture, it has a technological
and economic advantage in leading the space race by a huge margin if not
completely monopolizing it. It can not be ignored that the principles governing
space law as set out in Outer Space Treaty may very well be treated as jus
cogens, and the USA can not escape from its obligations under the same. The
problem here is, as is with most treaties, of lack of a judicial venue/ executing
mechanism for the treaty to work in reality.
While the Global Community is dozing off in ignorance, not
only has the USA conferred property rights in outer space on mostly American- United
States Commercial Space Resource Utilization Entities, but it has also made
foreign investors subject to its own domestic laws and courts, for them to
benefit from this Act. This effectively means that, in case of a dispute with
regard to the rights on an asteroid, by an American party and a non- American
party, the non- American party would be held to have no right under the
controversial law. On the other hand, if
a non- American investor ‘voluntarily’ subjects itself to American law to take
benefit of this law, then he is subject to the control of NASA and other
security agencies for the technology he might exclusively possess. In a way,
the USA confers on itself exclusive right on inclusive environment of Outer
Space.
Though
the USA asserts[16]
that they are not claiming any sovereign rights on what is being mined, but one
can’t help but notice that making laws on what is being mined in space, is
making a sovereign claim on space, which according to basic space law is not be
claimed upon by any state, and is left as common heritage of mankind. Additionally,
the controversial law even makes elaborate arrangements for the suits to be
tried in US Courts. That is a universally accepted sovereign function of
states.
Since
we are discussing space mining/ asteroid mining, and the possibility of the
same cannot be ignored, and should not be discouraged once the area is
regulated but globally accepted law. Evidently, the certainty of exhaustion fo
Earth’s finite minerals and heightened environmental concerns to prevent the
ecology of Earth would necessitate the space mining endeavours in well- knit
rules. The space traders should not just worry about adapting their engineering
tools to the fluctuating gravity, but also worry about the labour laws to guide
the working conditions of Space Miners, and how to manage their factories and
to treat the concept of time, day and night, working hours etc. Either National
or International (space) law would control the increased activities in space,
but as the law changes, the means to effectively communicate the laws to all
concerned has to be made. Also, the law may be a dead letter if the control of
mission is unitary and the ones actually in space are unable to approach
courts/ tribunals due to lack of communication channels. Should the concept of
virtual courts be promoted to counter that concern or holographic presence of
the aggrieved be worked upon, are questions worth answering for the
lawmakers.
And
if we are to treat the whole of space as common heritage of mankind, then
mankind also need to foot a part of the hefty bill that goes in conquering that
heritage. If we do not, then we do give a certain amount of legitimacy to the
space entrepreneurs, who are taking the risk at a great cost and paying the
sizeable insurance amount for the still uncertain future business endeavours.
Bottomline: The neo- space race would continue no matter whether Global community forms consensus on the outer space laws or not. But prudence demands that the vacuum of lawlessness be filled with desired law than to wait for the situation to explode out of control and the law only arrives to diffuse the situation, which might come too late for the damage to be contained. The point being that we need to work towards globally accepted
rules of trade in space law, which should have some basis of international law,
but not just a replication of international law, since the international law
rests primarily on custom. Evidently, the customs in space law are dominated by
a handful of States and would not suffice the conscience of the law. Hence we
need universally accepted rules, which not only facilitate the space
technology, but work towards advancement of human race on one hand &
maintaining the earth’s organic balance on the other.
[This is an introductory and very comprehensive writing. A lot of important & interesting points has been left out and not been explained in detail it deserves. The author intends to fill the gap in times to come, with the hope that it is thought provoking.]
[1]
Grotius, Mare Liberum (1609)
[2]
Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Including the Moon and Other Celestial Bodies, adopted Oct. 10, 1967
[3]
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return
of Objects Launched into Outer Space, adopted Dec. 3, 1968
[4]
Convention on International Liability for Damage Caused by Space Objects,
adopted Sep. 1, 1972
[5]
Convention on Registration of Objects Launched into Outer Space, adopted Sep.
15, 1976
[6]
Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies, adopted July 11, 1984
[7] www.unoosa.org/oosa/en/aboutus/roles-responsibilities.html
as visited on 14.09.2016
[8] www.unoosa.org/oosa/en/aboutus/roles-responsibilities.html
as visited on 14.09.2016
[9] http://www.theverge.com/2016/6/19/11972450/blue-origin-new-shepard-fourth-test-flight-success
as visited on 14.09.2016
[11] http://www.isro.gov.in/update/22-jun-2016/pslv-c34-successfully-launches-20-satellites-single-flight
as visited on 14.09.2016
[12] https://www.congress.gov/bill/114th-congress/house-bill/1508/text
as visited on 14.09.2015
[14]
Id.
[15]
Id.
[16] http://www.space.com/31177-space-mining-commercial-spaceflight-congress.html
as visited on 14.09.2016
[17] The
United Nations Convention on the Law of the Sea adopted on Nov. 16, 1994
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