Abstract
The development of the so-called NewSpace industry, together with the emergence of new space players, both governmental and nongovernmental – which did not exist when the current international space law was formed – implies a new approach toward space-related matters including new regulatory considerations. Some of the reasons for such new approach would include the necessity for international regulatory certainty as it is required by investments, the promotion of global public interest in outer space, and the preservation of international peace and security.
This paper has been developed and written with the joint efforts of both the authors. However, paragraphs 1, 2, 3, and 7 can be attributed to Prof. Gaspari while paragraphs 4, 5, and 6 to Mrs. Oliva.
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Notes
- 1.
See Space Law, at http://www.unoosa.org/oosa/en/ourwork/spacelaw/index.html. See also S. Marchisio, Lezioni di diritto aerospaziale, Rome, 1993, p. 11 ff. In general, on the role of the UN in the development of space law see V. Kopal, The Role of the United Nations Declarations of Principles in the Progressive Development of Space Law, in Journal of Space Law, 1988, p. 5–20; Id., Evolution of the main principles of space law in the institutional frame work of the United Nations, in Journal of Space Law, Vol. 12, 1984, p. 12–25; N. Jasentuliyana, Strengthening International Space Law: the Role of the United Nations, in International Organisations and Space Law: Their Role and Contributions, in Proceedings of the Third ECSL Colloquium, (Perugia, 1999), Noordwijk, 1999, p. 87–95; Id., Treaty Law and Outer Space: Can the United Nations play an effective role? in Annals of Air and Space Law, Vol. 11, 1986, p. 219–227.
- 2.
The UNOOSA provides information and advice to governmental bodies, nongovernmental organizations, as well as the general public. This office also provides copies of the treaties, declarations, working papers, minutes, and other documents related to the creation and development of space, and it prepares legal studies and informative documents on space law and acts as the secretariat for the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS).
- 3.
Member states use this forum to come together, discuss, deliberate, and make decisions concerning space law. On COPUOS see, inter alia, S. Marchisio, Il ruolo del Comitato delle Nazioni Unite sugli usi pacifici dello spazio extraatmosferico (COPUOS), in Scritti in onore di Giorgio Badiali, Rome, 2007, p. 221–236. This author points out as currently one of the main tasks of COPUOS is to broaden the universal acceptance of the five treaties, calling upon states to consider the benefits that can derive from that (therein, p. 12).
- 4.
The IISL cooperates with international organizations and national institutions in the field of space law and helps to foster space law development.
- 5.
See Preamble and Article 1.
- 6.
See E. Weeks & E. Dahlstrom (Eds), Space Mining and Use of Space Natural Resources (Chapter 16), in R.S. Jakhu & J.N. Pelton (Coordinated by), Global Space Governance: An International Study, IASL-McGill University, Springer, Cham, 2017, p. 379–416; N. Jasentuliyana, Space Law: Development and Scope, Westport, Connecticut, 1992; N. Jasentuliyana and R.S.K. Lee (Eds), Manual on Space Law (4 volumes), Dobbs Ferry, New York, 1979–1981.
- 7.
The five international treaties are as follows: 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”) – adopted on 19 December 1966 in General Assembly resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967; the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space (the “Rescue Agreement”) – adopted on 19 December 1967 in General Assembly resolution 2345 (XXII), opened for signature on 22 April 1968, entered into force on 2 December 1968; the Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention”) – adopted on 29 November 1971 in General Assembly resolution 2777 (XXVI), opened for signature on 29 March 1972, entered into force on 1 September 1972; the Convention on Registration of Objects Launched into Outer Space (the “Registration Convention”) – adopted on 12 November 1974 in General Assembly resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976; and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Agreement”) – adopted on 5 December 1979 in General Assembly resolution 38/68, opened for signature on 18 December 1979, entered into force on 11 July 1984. Each treaty is available online at http://www.unoosa.org/pdf/publications/STSPACE11E.pdf.
- 8.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 610 UNTS 205, 18 UST 2410, TIAS No 6347, 6 ILM 386 (entered into force on 10 October 1967) [Outer Space Treaty].
- 9.
See R. Jakhu, Legal Issues Relating to the Global Public Interest in Outer Space, 2005, p. 3, available online http://www.cissm.umd.edu/publications/legal-issues-relating-global-public-interest-outer-space-0; E. Weeks & E. Dahlstrom (Eds), Mining and Utilization of Space Natural Resources (Chapter 15), cit. The Outer Space Treaty was ratified by 96 nations and signed by another 27 states. See UN Committee on the Peaceful Uses of Outer Space, Report of the Legal Subcommittee on Its Fortieth Session, United Nations’ Document A/AC.105/763, 24 April 2001, available at the webpage http:www.oosa.unvienna.org/Reports/AC105_763E.pdf.
- 10.
R. Berkley, Space Law Versus Space Utilization: The Inhibition of Private Industry in Outer Space, in Wisconsin International Law Journal, Vol. 15, 1997, p. 421; E. Weeks & E. Dahlstrom (Eds), Mining and Utilization of Space Natural Resources (Chapter 15), cit.
- 11.
Agreement governing the Activities of States on the Moon and Other Celestial Bodies, 5 December 1979, 1363 UNTS 3 (entered into force 11 July 1984) [Moon Agreement].
- 12.
E. Weeks & E. Dahlstrom (Eds), Mining and Utilization of Space Natural Resources (Chapter 15), cit.
- 13.
As at 1 January 2015, only 16 states (Australia, Austria, Belgium, Chile, Kazakhstan, Kuwait, Lebanon, Mexico, Morocco, the Netherlands, Pakistan, Peru, the Philippines, Saudi Arabia, Turkey, Uruguay) have ratified it, and 4 states (France, Guatemala, India, and Romania) in addition have signed but not ratified
- 14.
E. Weeks & E. Dahlstrom (Eds), Mining and Utilization of Space Natural Resources (Chapter 15), cit.
- 15.
See S. Marchisio, Il ruolo del Comitato delle Nazioni Unite, cit., p. 12. On the Common Heritage of Mankind concept, see also K. Baslar, The Concept of the Common Heritage of Mankind in International Law, the Hague-Boston, London, 1998; S. Gorove, The Concept of “Common Heritage of Mankind”: A Political, Moral or Legal Innovation?, in San Diego L. Rev., Vol. 9, 1972, p. 390; G.M. Danilenko, The Concept of the Common Heritage of Mankind in International Law, in Annals Air & Space Law, Vol. 13, 1988, p. 247; R. Wolfrum, The Principle of the Common Heritage of Mankind, in Zeitschrift für Auslandisches Offentliches Recht und Volkerrecht, Vol. 43, 1983, p. 312; K. Tatsuzawa, Political and Legal Meaning of the Common Heritage of Mankind, in Proceeding of the twenty-ninth Colloquium on the Law of Outer Space, Am. Inst. of Aeronautics & Astronautics ed., 1986; C.Q. Christol, The Common Heritage of Mankind Provisions in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, in International Law, Vol. 14, 1980, p. 429; V. Kopal, Outer Space as a Global Common, in Proceedings of the fortieth Colloquium on the Law of Outer Space, Am. Inst. of Aeronautics & Astronautics ed., 1997.
- 16.
E. Weeks, Outer Space Development, International Relations, and Space Law: A Method for Elucidating Seeds, Newcastle upon Tyne, 2012, p. 44; E. Weeks & E. Dahlstrom (Eds), Mining and Utilization of Space Natural Resources (Chapter 15), cit.
- 17.
This is the reason why the members of the COPUOS later elaborated on the Outer Space Treaty norms through the adoption of the “three supplemental agreements” – The Rescue and Return Agreement of 1968, the Liability Convention of 1973, and the Registration Convention of 1976: see N.L. Griffin, The Americans and the Moon Treaty, in Journal of Air Law and Commerce, Vol. 46, 1981, p. 730, especially p. 733–734.
- 18.
A. Bini, The Moon Agreement in the 21st century, in Acta Astronautica, Vol. 67, Issues 3–4, August–September 2010, p. 496–501.
- 19.
We especially refer to the launch into orbit of the first Sputnik in 1957.
- 20.
See Outer Space Development, at https://sites.google.com/site/outerspacedevelopment/history-of-spaceflight.
- 21.
See M. Couston, Droit spatial économique. Régime applicables à l’éxploitation de l’espace, SIDES, 1994, p. XII–XIII.
- 22.
In this respect, the experience of Arianespace SA is an important example. Arianespace SA is a European multinational company founded in the 1980s as the world’s first commercial launch service provider. For further information, see http://www.arianespace.com/about-us/.
- 23.
See M. Couston, Droit spatial économique, cit., p. XIII.
- 24.
See Space Shuttle Era at http://www.nasa.gov/mission_pages/shuttle/flyout/index.html.
Between the first launch on April 12, 1981, and the final landing on July 21, 2011, NASA’s Space Shuttle fleet flew 135 missions. NASA’s Space Shuttle fleet began setting records with its first launch on April 12, 1981, and continued to set high marks of achievement and endurance through 30 years of missions. Starting with Columbia and continuing with Challenger, Discovery, Atlantis, and Endeavor, the spacecraft has carried people into orbit repeatedly, launched, recovered and repaired satellites, conducted cutting-edge research, and built the largest structure in space, the International Space Station. The final Space Shuttle mission, STS-135, ended on July 21, 2011, when Atlantis rolled to a stop at its home port, NASA’s Kennedy Space Center in Florida: ibidem.
- 25.
See S. Marchisio, Lezioni di diritto aerospaziale, cit., p. 13.
- 26.
See S. Hobe, Current and Future Development of International Space Law, in Proceedings United Nations/Brazil Workshop on Space Law “Disseminating and Developing International and National Space Law: the Latin America and Caribbean Perspective”, 2005, p. 14.
- 27.
Most notably and importantly, space activities provide practical benefits to all states. Thirteen states have independent launch capability; over 60 countries operate their satellites; there are over 70 space agencies; currently more than 1200 satellites are being operated; thousands of new satellites (especially small sats) are planned to be launched in the near future; the global space industry has become a $320 billion economic activity annually; the private sector now is spearheading unprecedented movements in space; there are serious emerging challenges to the sustainability of space activities of all nations; and the international space law-making process is getting stagnated fast. See the presentation of the International Conference on New Challenges in Space Law, The Space Treaties at Crossroads: Considerations for de lege ferenda, jointly organized by the Department of International and European Studies Faculty of Law National and Kapodistrian University of Athens, Greece, and by the Institute of Air and Space Law and Centre for Research in Air and Space Law Faculty of Law McGill University, Montreal, Canada, and held in Athens, Greece, on 28 and 29 August 2015. The document is available in the conference’s website at http://www.nb.org/%CE%9A%CE%95%CE%99%CE%9C%CE%95%CE%9D%CE%91/International_Conference_on_New_Challenges_in_Space_Law.
- 28.
See R. Jakhu, Legal Issues, cit., p. 66. Moreover, see 59th International Astronautical Congress, Plenary 3, 30 September 2008.
- 29.
As it has been pointed out, “the exploitation of the natural resources of the Moon and other celestial bodies is a risky and expensive task”, and “carrying out activities in outer space is a hazardous business”: See, in this respect, B.M. Hoffstadt, Moving the Heavens: Lunar Mining and the “Common Heritage of Mankind” in the Moon Treaty, in UCLA L. Rev., Vol. 42, 1994, p. 575, 580 & n. 24.
According to an author, the two main risks deriving from the exploitation of the natural resources of the Moon and other celestial bodies are the possible mistakes and unexpected events that can occur in missions and that can cause irremediable damages (such as the destruction of a space object and the death of its occupants) as well as the huge investments required to develop safe and reliable technology to exploit extraterrestrial resources and to establish, as well as maintain, a permanent manned lunar basis. Therefore, given that “These two elements create serious obstacles to the actual commencement of the exploitation of lunar resources” the Author concludes that “A method to soften their negative impact may be the establishment of a legal regime to regulate exploitation.”: F. Tronchetti, The Moon Agreement in the 21st Century: Addressing it potential role in the Era of commercial exploitation of the natural resources of the Moon and other celestial bodies, in Journal of Space Law, Vol. 36, p. 509–510.
- 30.
The legal certainty is recognized as one of the general principles of European Union law by the European Court of Justice since the 1960s: see D. Chalmers, European Union law: text and materials, Cambridge, 2006, p. 454.
- 31.
In the context of the EU legislation, this means that the law must be certain in that it must be clear and precise and its legal implications foreseeable, especially when applied to financial matters. The adoption of laws which will have legal effect in the European Union must have a proper legal basis. Legislation in member states which implements European Union law must be worded so that it is clearly understandable by those who are subject to the law. Moreover, the ECJ has given a concrete scope of application to the principle of legal certainty in order to escape its tautological nature and to clarify its content. As a result, under the principle of legal certainty, several rules have been established by the ECJ: the principle of non-retroactivity of administrative acts, the principle of good faith, the principle of patere legem quam ipse fecisti, the principle of vested or acquired rights, and the principle of legitimate expectations. On the principle of legal certainty and on those rules, see, among others, A. Kaczorowsky, European Union law, London-New York, 2008, p. 232; G. Tesauro, Diritto dell’Unione europea, Padua, 2012, p. 105 ff.
- 32.
See D. Maresca, Regulation of Infrastructure Markets: Legal Cases and Materials on Seaports, Railways and Airports, Heidelberg, 2013, p. 26.
- 33.
See T.G. Nelson, The Moon Agreement and Private Enterprise: Lessons from Investment Law, in ILSA J. Int’l & Comp. L., Vol. 17, 2011, p. 393–416; L.M. Fountain, Creating Momentum in Space: Ending the Paralysis Produced by the ‘Common Heritage of Mankind’ Doctrine, in Conn. L. Rev., Vol. 35, 2003, p. 1753, especially p. 1759; C. Buxton, Property in Outer Space: The Common Heritage of Mankind Principle vs. the ‘First in Time, First in Right’ Rule of Property Law, in Journal of Air Law & Commerce, Vol. 69, 2004, p. 689; M.E. Schwind, Open Stars: An Examination of the United States Push to Privatize International Telecommunications Satellites, in Suffolk Transnational Law Review, Vol. 10, 1986, p. 87, especially p. 93.
- 34.
See 3rd International ECSL Colloquium on International Organizations and Space Law: Their Role and Contributions, held in Perugia, Italy, on May 6th and 7th 1999, p. 91.
- 35.
Statement of the Board of Directors of the International Institute of Space Law (IISL), 22 March 2009, available online at http://www.iislweb.org/docs/Statement%20BoD.pdf.
- 36.
See R. Jakhu, Legal Issues, cit., p. 66–67.
- 37.
UN Doc. A/AC.105/C.2/L.272, Joint statement on the benefits of adherence to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies by States parties to the Agreement, Vienna March 31 to April 11 2008; ILA Resolution 1/2002 with regard to the Common Heritage of Mankind Principle in the Moon Agreement; Statement of the Board of Directors of the International Institute of Space Law (IISL), cited above.
- 38.
See R. B. Bilder, A Legal Regime for the Mining of Helium-3 on the Moon: U.S. Policy Options, in Fordham International Law Journal, Vol. 33, Issue 2, 2009, p. 248; See also P. Martinez and J. White, The Adequacy of the Current Legal and Regulatory Framework Regarding Commercial Activities in Outer Space – A Developing Country Perspective, Discussion Paper, Workshop Proceedings – International and Interdisciplinary Workshop on Policy and Law Relating to Outer Space Resources: Examples of the Moon, Mars, and other celestial bodies, McGill University, Centre for Research of Air and Space Law, Montreal, 2006, p. 216.
- 39.
A proposal that according to some states should be considered by the COPUOS Legal Subcommittee. See, for example, the working paper A/AC.105/C.2/L.23 submitted by China, Greece, and the Russian Federation.
- 40.
COPUOS Legal Subcommittee, Fifty-fourth session (Vienna, 13–24 April 2015), Status and application of the five United Nations treaties on outer space, doc. A/AC.105/C.2/2015/CRP.8, available online at http://www.unoosa.org/pdf/limited/c2/AC105_C2_2015_CRP08E.pdf.
- 41.
The codification and the progressive development of international law can both be found in Art. 13 of the UN Charter, according to which “The General Assembly shall initiate studies and make recommendations for the purpose of […] encouraging the progressive development of international law and its codification.”
- 42.
The convention lays down a comprehensive regime of law and order in the world’s oceans and seas establishing rules governing all uses of the oceans and their resources. It was opened for signature on 10 December 1982 in Montego Bay, Jamaica, and entered into force in accordance with its Article 308 on 16 November 1994, 12 months after the date of deposit of the sixtieth instrument of ratification or accession. For further information on the convention, please see http://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm.
- 43.
See International Seabed Authority, The Mining Code, available online at https://www.isa.org.jm/mining-code.
- 44.
UNCLOS, Annex VI, Section 1, Article 14: “A Seabed Disputes Chamber shall be established in accordance with the provisions of section 4 of this Annex. Its jurisdiction, powers and functions shall be as provided for in Part XI, section 5.”
- 45.
UNCLOS, Part XI, Section 5, Article 187.
- 46.
See A.V. Yakovenko, World Space Organization: pro et contra, in 3rd International ECSL Colloquium on International Organizations and Space Law, cit., p. 370.
- 47.
As of April 3rd 2018, there are 168 member states: see http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm.
- 48.
See also R. Jakhu, Legal Issues, cit., p. 67.
- 49.
The ECHR was opened for signature in Rome on 4 November 1950 and came into force in 1953. Since its adoption in the 1950s, the convention has been amended a number of times and supplemented with many rights in addition to those set forth in the original text. For further details, please see https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c.
- 50.
European Court for Human Rights, judgment of June 30, 1993, Sigurður Sigurjónsson/Iceland, in Racc., 1993, p. 264
- 51.
See R. Jakhu, Legal Issues, cit., p. 66.
- 52.
See S. Marchisio, Il ruolo del Comitato delle Nazioni Unite, cit., p. 21.
- 53.
An example is provided by the 3-year work devoted to the clarification of the term launching State and the adoption by the UN General Assembly of the resolution Application of the Concept of the “Launching State”, G.A. Res. 59/155 (Dec. 10, 2004). See S. Marchisio, Il ruolo del Comitato delle Nazioni Unite, cit., p. 18. A more recent initiative of the COPUOS is the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets, adopted in Berlin in March 2012, but not yet in force. It concerns space assets and the protection of private investments in order to facilitate space activities’ commercialization and development. The text of the protocol is available online at http://www.unidroit.org/instruments/security-interests/space-protocol.
- 54.
Art. 4.1 of the Charter of the United Nations: “Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.”
- 55.
See, for example, the declaration made by the European Telecommunications Satellite Organization Intergovernmental Organization (EUTELSAT|IGO), the European Space Agency (ESA), and the European Organization for the Exploitation of the Meteorological Satellites (EUMETSAT) accepting the rights and obligations provided for in the Convention on Registration of Objects Launched into Outer Space: please see http://www.unoosa.org/pdf/limited/l/AC105_2011_CRP12E.pdf, especially p. 10.
- 56.
On states’ obligation to cooperate with each other and to promote cooperation in the exploration and use of outer space, including the Moon and other celestial bodies, see R. Jakhu, Legal Issues, cit., p. 18, and passim.
- 57.
Agreement Establishing Interim Arrangements for a Global Commercial Communications Satellite System and Special Agreement, done on August 20, 1964. See also S. Marchisio, Lezioni di diritto aerospaziale,, Rome, 2000, p. 42.
- 58.
On INTELSAT history, see http://www.intelsat.com/about-us/our-history/.
- 59.
R. Jakhu, Legal Issues, cit., p. 4, who points out as “The international law-making process has produced basic legal principles that represent a fair balance of interests between developed and developing countries. However, growing pressure by a number of countries for increased privatization, commercialization, deregulation, and globalization, along with recent changes in the global geopolitical situation, are creating disturbing disagreements about the interpretation of the Treaty, its implementation, and the direction of future legal development.”
- 60.
R. Jakhu, Legal Issues, cit., p. 4.
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Gaspari, F., Oliva, A. (2019). The Consolidation of the Five UN Space Treaties into One Comprehensive and Modernized Law of Outer Space Convention: Toward a Global Space Organization. In: Kyriakopoulos, G.D., Manoli, M. (eds) The Space Treaties at Crossroads. Springer, Cham. https://doi.org/10.1007/978-3-030-01479-7_12
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