Nov 26

Nov 26 The Five Core United Nations Treaties related to Outer Space

The International Space Station against the backdrop of Earth in 2006 (Courtesy of NASA)

“More than ever before in human history, we share a common destiny. We can master it only if we face it together.”

— Kofi Annan

**** MAJOR UPDATE ON 4/9/2024: In my law review paper on lunar mining (“Unifying Outer Space: Creating a Cohesive Structure Surrounding Mining on the Moon”), I did an in-depth discussion of the Moon Treaty and the Outer Space Treaty as it relates to lunar resource ownership rights, non-interference policy, and environmental protection in Part II.A. Please review the materials there if you are interested in a deeper dive there. Thank you! ****

**** MAJOR UPDATE ON 5/15/2023: In my law review paper on space tourism ("Touring Outer Space: The Past, Present, and Future of Space Tourism" by Alex S. Li (csuohio.edu)), I had a more in-depth discussion of the Rescue Agreement in Part I.A. Please review the materials there if you are interested in a deeper dive there. Thank you! ****

**** MAJOR UPDATE ON 9/1/2022: In my law review paper on open source and open standards ("Opening Outer Space: Safety and Stability Through Open Standards and Open Source" by Alex S. Li), I also took a closer examination of how these treaties attempt to promote safety through provisions focusing on mutual assistance and cooperation in Part III.A.1.b. Please review the materials there if you are interested in a deeper dive of that specific treaty. Thank you! ****

**** MAJOR UPDATE ON 7/13/2021: I have rewritten and incorporated the below into a law review paper proposing a boundary solution for Outer Space and constructing a decision-tree framework for determining jurisdictional authority in this environment: "Ruling Outer Space: Defining the Boundary and Determining Jurisdiction" by Alex S. Li. The updated “version” forms Part I of the paper. Please review the material there as it is more up-to-date than below. Thank you! ****

2017 marks the 50th anniversary of the Outer Space Treaty. Formally known as the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”, the Outer Space Treaty is not only arguably the most important international treaty related to Space, it also serves as the seminal foundation for international space law.

While it was the first Space-related treaty drafted by the United Nations, the Outer Space Treaty is not the only treaty of its kind that United Nations has opened for signatures. As a few of my previous blog posts have referred to some of these treaties, I wanted to provide a high-level overview of these five Space-related United Nation treaties. In chronological order, they are:

Outer Space Treaty of 1967 (formally: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space)
Rescue Agreement of 1968 (formally: Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space)
Space Liability Convention of 1972 (formally: Convention on International Liability for Damage caused by Space Objects)
Registration Convention of 1975 (formally: Convention on Registration of Objects Launched into Outer Space)
Moon Treaty of 1979 (formally: Agreement Governing the Activities of States on the Moon and Other Celestial Bodies)

Each of these treaties are briefly introduced below; in later posts (links will be provided as they become available), I will try to explore each of them in depth as well.

The Outer Space Treaty of 1967

Colloquially known as “The Outer Space Treaty,” the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies was negotiated at the height of the Cold War between the United States and the Soviet Union. While the two nations were on the opposite side of the Space Race, both participants had recognized the extreme danger and catastrophic effects of a potential war in Outer Space.

The Outer Space Treaty borrowed many of its principles from earlier-adopted United Nations resolutions. For instance, Article IV’s prohibition on the use of nuclear weapons and the promotion of peaceful activities in Outer Space originated from United Nations General Assembly Resolution 1884. By prohibiting military actions in Outer Space, the Outer Space Treaty had the effect of promoting security and stability as all sides’ publicly-announced restrictions encouraged “liberty and freedom by increasing the reliable and known domains where peace is ensured by law.”

Although written fifty years ago, the Outer Space Treaty was visionary for its time and is still remarkably relevant today. For instance, during the negotiations, the topic of private commercial activities in Outer Space had been discussed and a compromise was reached. As indicated by its draft on a UN resolution, the Soviet Union wanted to limit activities in Outer Space to national governments only (Outer Space is “free for exploration and use by all States”). But, the United States wanted Outer Space available for free market principles, ensuring that space-related private enterprises could develop and flourish. Ultimately, a compromise was reached–via Article VI of the Outer Space Treaty–in which private commercial activities were allowed in Outer Space but must be authorized by their State party who will also take responsibility and liability for such activities. This framework has allowed for coordination among private entities and governmental agencies as well as contributed to the success of private commercial space-related activities today.

The Outer Space Treaty officially opened for signature on January 27, 1967, and entered into force on October 10, 1967. As of July 2017, 107 countries are parties to The Outer Space Treaty, while another 23 countries have signed but not ratified the treaty. Developed at a time when space-related activities were still in their infancy, by design, simplicity is at the heart of the Outer Space Treaty. Because of this characteristic, the Outer Space Treaty is susceptible to multiple interpretations which limit its practical use. However, as the first major international treaty related to Space, the Outer Space Treaty has served as the fundamental backbone for every major space-related legislation passed in the last 50 years.

The Rescue Agreement of 1968

Formally known as the “Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space”, at a total of ten articles, the Rescue Agreement is the shortest of these five United Nations treaties related to Space. The Rescue Agreement is intended to elaborate on the Article V rescue provisions of the Outer Space Treaty.

Under the Rescue Agreement, should any party become aware of a space object and/or spacecraft crew in distress, that party should notify the Secretary General of the United Nations and the party that is responsible for the launch of such crew and/or object. Additionally, if such object and/or crew lands in an area under a party’s control and/or is in an area where a party is able to provide assistance, then such party should render all assistance that is possible to rescue/retrieve such crew and/or object and to return them to the country responsible for the launch of such crew and/or object.

While non-controversial and largely a “routine” agreement, the Rescue Agreement has two interesting characteristics. One related to the definition for “launching authority” and the other related to the use of “personnel of a spacecraft.”

First, in Article 6, the Rescue Agreement includes “intergovernmental organization” as a part of the definition for a “launching authority.” This is different from most other treaties where such definitions would be limited to a particular State-party rather than an organization that can represent a group of State-parties. As the first major treaty that enables an “intergovernmental organization” to have the same level of authority as a national government, the Rescue Agreement might have been a harbinger for the eventual creation of the European Union.

Second, instead of using the term “astronaut” as expressed in Article V of the Outer Space Treaty, the term “personnel of a spacecraft” is used in the actual text of the agreement. This difference in terminology has led some to argue that this is the drafters’ deliberate intent in indicating that the word “astronaut” should not be synonymous with the phrase “personnel of a spacecraft.” However, because the formal title to the Rescue Agreement contains the word “astronaut,” drafters might have written “personnel” so that the Agreement would apply to both astronauts (a largely United States-centric term) and cosmonauts (a largely Soviet Union-centric term). But, as briefly explored in my “Are Space Tourists Astronauts?” post, this does beg the question of who is included as a “personnel of a spacecraft.” Is the term specifically limited to astronauts, cosmonauts, and other professional flight participants or should it also include space tourists as well?

The Rescue Agreement officially opened for signature on April 22, 1968 and entered into force on December 3, 1968. As of July 2017, 96 countries are parties to the Rescue Agreement and another 23 countries have signed the agreement.

Space Liability Convention of 1972

The Space Liability Convention, or formally the Convention on International Liability for Damage Caused by Space Objects, elaborates on the international liability regime introduced in Article VII of the Outer Space Treaty. This convention sets up two standards of liabilities but also ensures that claims under the Space Liability Convention are limited to State entities only. If an individual wishes to make a claim under the Space Liability Convention, that individual will need to petition the individual’s government to make a claim on his/her behalf.

Under the Space Liability Convention, there are two standards of liabilities: strict liability and fault-based liability. For any damage caused by a country’s space object on the surface of the Earth or to an aircraft in flight, that country is strictly, or absolutely, liable for any and all such damage. This means that such country would even be responsible for any damage caused by circumstances outside of that country’s control. However, for any damage caused by a country’s space object anywhere other than on the surface of the Earth or to an aircraft in flight, that country is only liable for the damage that is due to the fault of such country or such country’s personnel. Under both of these liability regimes, when more than one country is at fault, all of these countries will be jointly and severally liable (essentially where a full claim can be made against any country at fault, and it’s up to these countries themselves to figure out the appropriate apportionment) for the damages that are covered.

To date, only one official claim has been made under the Space Liability Convention. In January 1978, a Soviet Union controlled nuclear-powered satellite, Kosmos 954, crashed into Canadian territory upon reentry after a malfunction. First, the Canadian officials invoked Article 5 of the Rescue Agreement to inform the Soviet Union that it had discovered and located satellite debris from Kosmos 954. Because some of these debris fragments were still radioactive, the recovery and clean-up process proved costly; pursuant to the Space Liability Convention, since the debris caused damage to the surface of the Earth, the Soviet Union is strictly liable for all costs associated with such damage. Hence, Canada demanded that the Soviet Union must repay all of the costs associated with the recovery of, clean-up for, and damages (including future expenses) caused by Kosmos 954 to the tune of 6,041,174.70 Canadian Dollars. The Soviet Union eventually agreed to pay about 3 million Canadian Dollars.

The Space Liability Convention officially opened for signatures on March 29, 1972 and entered into force on September 1, 1972. As of August 2017, 95 countries are parties to the Space Liability Convention and another 19 countries have signed the instrument. Although only one official claim has been made under the Space Liability Convention, as briefly discussed in my space debris blog post, this treaty might have more and more relevancy as the earth’s orbit is being clogged up by more and more defunct satellites.

Registration Convention of 1975

Like the Rescue Agreement and the Liability Convention, the Registration Convention, or formally Convention on Registration of Objects Launched into Outer Space, also expands on the Outer Space Treaty. Specifically, the Registration Convention expands on Article VIII of the Outer Space Treaty and lays the foundation for a system of registration for objects launched into space.

A fairly straightforward treaty, the Registration Convention plays a critical role in providing teeth to and ensuring the success of the other United Nation space-related treaties. For instance, without a system of proper registration, countries will not be able to properly identify and notify the relevant launch party responsible for the space craft in distress. Additionally, countries will also have a hard time in successfully demanding damage-related compensation payments under the Space Liability Convention.

The Registration Convention officially opened for signatures on January 14, 1975 and entered into force on September 15, 1976. Perhaps due to the potential for liabilities, many non-space-faring nations have not ratified the convention and the Registration Convention has one of the lowest ratification rates of these space-related treaties. As of July 2017, 64 countries are parties to the Registration Convention and another 3 countries have signed the instrument.

Moon Treaty of 1979

Although it is one of the five major United Nation treaties related to Outer Space, the Moon Treaty, or formally the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, has largely been considered a failed agreement.

The Moon Treaty also elaborates on the concepts and ideals introduced in the Outer Space Treaty. The Moon Treaty introduces a system of governance for the Moon and other celestial bodies in the Solar System that is similar to the “Enterprise” system that was introduced in the 1994 Agreement of the Law of the Sea Convention. Specifically, Article 11 of the Moon Treaty states that “the Moon and its natural resources are the common heritage of mankind . . . [and] is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.” Like the application of the “Enterprise” system to oceanic resources, the natural resources of the Moon is, according to the Moon Treaty, entitled to “equitable sharing by all State Parties in the benefits derived from those resources.” Hence, it does not matter which country “dug up” these resources, that country will not have complete and exclusive ownership and control over such resources. Additionally, through Article 11, the Moon Treaty forbids any individuals and non-governmental or non-intergovernmental private entities from owning any “surface or the subsurface of the moon or any areas thereof.” This treaty’s position on private ownership has had important ramification on two key areas of space law today: 1) Space Mining (whether private enterprises can own the resources they mine as explored in this earlier blog post) and 2) Property Rights on Mars (whether private companies can stake ownership rights on other planets in the solar system, which had been explored in this earlier blog post).

The Moon Treaty was officially opened for signatures on December 18, 1979 and entered into force on July 11, 1984. But, because the majority of space-faring nations (including the United States, Russia, China, Japan, and several members of the European Space Agency) have not ratified, signed, or acceded to the Moon Treaty, the agreement does not have widespread practical effects. As of July 2017, only 17 countries are parties to the Moon Treaty and another 4 countries have signed the instrument.