Finding the sheriff: a deep dive into international space law.
In a documentary published by Arte [1], American Space Force General Jay W. Raymond stated that:
“Space is the wild, wild west, meaning there’s really nothing that’s out there that describes what’s safe conduct and what’s professional conduct”.
We seem to think of the Old West as this place where “everything was permitted”, where morality was loose, everyone ran around waving around pistols and mustached sheriffs struggled to impose the law. It was also perceived as an “empty” space, ready for exploration and conquest. Both these things are untrue: there were laws in the Old West, and it was not empty at all but inhabited by Natives who were then expropriated by gun-toting settlers. It is interesting that a USA general would make this comparison though, and his words tell us a lot about how some people would like to behave in space, or how they think space is like.
The Old West is regarded as a dangerous place, and it was. If you were a Native you needed to be safe from colonizers, and they in turn needed to be safe from criminals of various sorts (most of them fellow colonizers themselves), Natives, people beyond the frontier, and the occasional wild animal. Most cowboys carried firearms due to a semi-nomadic lifestyle that exposed them to many dangers, and we might say that carrying guns was part of their “professional conduct”. Despite this, the “wild” West had strict laws on gun-carrying on the streets and in private establishments such as saloons. During their stay in a city, cowboys then had to abandon their “professional conduct” to take up a “safe conduct”. Gun-carrying as an easy fix for security problems is a modern idea:
“today, you’re allowed to carry a gun without a license or permit on Tombstone streets. Back in the 1880s, you weren’t”[2].
What’s more, the dangers faced by Old West settlers were due to their colonization attempt. Conquering previously inhabited land is no easy and safe activity: they were trying to break into a house to chase the former inhabitants, and that tends to be more effective if done with a rifle in hand, but it can also prove dangerous. Our exploration of space does not resemble at all a breaking and entering scenario. Instead, it’s as if we stepped out of our own house to place ourselves out the window and better aim at the people sitting inside, on the couch. If some people want weapons in space, it’s not because they think we risk running into hostile aliens or criminal gangs of asteroids: they want them to threaten other humans, on Earth. But unlike the Native lands unfortunately were, space isn’t considered terra nullius, (land belonging to no one) but a common good of humanity which cannot be conquered or otherwise claimed. Current international law makes it impossible to claim sovereignty over anything in space, from meteors to the Moon, and also to use weapons in space.
States are now on their way to establishing a set of national rules regarding space and national air forces are changing to include the space force. But for many years up until now space law has consisted almost exclusively of international norms and to this days, those are still the most important. They will likely remain the most important, as space cannot be conquered and therefore, the only way States can regulate their relations in space is by basing themselves on international space law. Before getting into the specifics of space law and how it works, we must look at international law in general, and at who it is aimed at: the international community.
The ambiguous nature of Molotov cocktails
For a long time, States liked to believe that they were the sole actors in the international arena, or at least, the only relevant ones. This is because they have sovereignty, a thing that no other international actor has, and which gives them the ability to enforce the law inside a specific territory through the police and the judiciary system. But States don’t exist in a void, and they are not the only actors in the international sphere: there are also international organizations, non-State entities (such as terrorist groups), special entities (the Vatican and the Order of Malta), and many more. There have always been written or unwritten rules regulating aspects of international life, from truces, peace treaties, trade relations and embassies or diplomatic offices. Modern international law changed drastically with the creation of international organization and changed even more after the two World Wars, and there are now rules on crimes against humanity, human rights, and space.
Just as Space trash is not the same as the one found on Earth, international law is not the same as its national counterpart: they are both influential on their respective environments, but the rules of the spaces they exist in are different and so are their consequences. International law is not as binding as national law, because there is no supreme entity above States that can express binding judgements the way national judges can on their citizens. International juries can be established, and international tribunals can be created, but States must agree to a treaty before being bound by it and even then, there is no guarantee that they will suffer consequences for their actions. Citizens, on the other hand, don’t have to agree to be subject to national law to be bound by it. Often, law and politics mingle to the point where the most rich and influential manage to get away with murder while the less fortunate succumb: this is a dysfunction at the national level, but it is the nature of the international system. Everyone is equal in front of international law, but some are more equal than others, and a Molotov cocktail can simultaneously be a terrorist weapon and a legitimate self-defense tool depending on who threw it, at whom, in which country, and who is telling the story.
The most cynical scholars say that this means international law, and by extension space law, is useless, that its diversity from national law and the heavier influence of political elements in its application make it less “valid”. But isn’t all law, national and international, political at its core? Doesn’t most public life boil down to disputes over passing or suppressing this or that law, or holding people accountable for their actions? And can we deny that not all that is fair is legal, or that not all that is legal is fair? What we can do, in all situations, is be aware of the system, think about how we want it to be, and direct our actions accordingly. While keeping this in mind, let’s get in the nitty gritty of space law and look at some treaties.
The United Nations, or “the room where it happens”
Recognition, status and reputation are as important in the international arena as in any other social setting. Belonging to the UN means belonging to the most exclusive club, the international community: not being included means that you aren’t recognized by everyone, and this happened to Taiwan and Palestine, for example. Even though they might be considered States and many other States have diplomatic and trade relations with them, to all effect recognizing them as equals, not being in the UN means less influence on the international scene and impossibility to participate in the creation and signing of UN Treaties.
At the UN, States can meet in special committees, the General Assembly or in the Security Council, where the most important decisions are made. The United Nations passed five treaties on Space so far, and five resolutions have been adopted by the General Assembly. These resolutions are binding to all UN Member States, whereas Space Treaties must be signed by individual Member States for them to be valid. Therefore, some countries have adopted the General Assembly resolutions but didn’t sign the Treaties. Given that many of the Treaties were elaborated after the General Assembly resolutions were passed, and for other technical reasons which make resolutions less immediately effective than Treaties, here we will look only at the five treaties.
The Outer Space Treaty, 1967 [3]
The first, and arguably most important of all. The first four articles established what can and cannot be done in Space: that the exploration of Space is open to everyone, that it should benefit all countries (Article I) and that States can’t make any claim to anything in Space (Article II), from other planets to asteroids. It is not up for grabs, it’s just open to exploration and scientific study and it should be used in the interest of maintaining peace (Article III). They also specify that it is not possible to place weapons of mass destruction in space (Article IV) and declare that celestial bodies can only be used for peaceful purposes.
In the next part they talk about astronauts and objects sent to space. The Treaty defines astronauts as ‘envoys of mankind’ and explains that if they were to land on another State or in the high seas, they should be assisted. If in difficulty, astronauts should help and warn each other if they learned about dangerous phenomena (Article V). The responsibility for all national activities in space, whether done by private or public companies, is with the States and they must ensure that said activities are in line with the treaty. When an object is sent into space the State from which the object was launched is responsible for damaged cause by it, whether that damage is done on Earth, in the air or in outer space (Article VII). While in outer space, the object and the personnel operating it are under the responsibility and jurisdiction of the State to whom that object belongs. No matter if an object or its parts are in space or they fall back on earth, they still belong to the launching State and those little parts should be returned to the State of origin (Article VIII).
The last part of the treaty talks about how States should behave with one another regarding space. They should be moved by the principles of cooperation and mutual assistance and avoid contaminating either space or the earth during their experiments. If a State thinks that their own experiments or activities could interfere with other States’ activities or experiments, they should start an international consultation before proceeding (Article IX). The last articles specify that States should allow others to witness the launch of any object to Space (X), that they should inform the UN and the scientific community of their space activity and their results (XI), that stations, equipment and installations on celestial bodies should be reciprocally open for a visit to representatives of all States member of the Treaty (XII).
Rescue Agreement, 1968 [4]
This is mostly a common-sense series of articles stating that you should help astronauts in need and not litter the Earth with trash fallen from the sky.
If astronauts happens to crash on someone’s territory or in the high seas they have to be rescued and the people who organized the launch contacted, along with the UN Secretary General (Articles I,II,III). The surviving astronauts should be returned to the State where the launch was organized (Article IV). If what falls to Earth is a space object or one of its components, the people that organized the launch and the Secretary General of the UN must be informed and they should recover the object along with the authorities of the country where the object fell. If the object is potentially dangerous, everyone should be notified before recovering it (Article V).
Space Liability Convention, 1972 [5]
When talking about space debris, this is the convention we refer to the most, along with the Space Treaty. It talks about who should be responsible for the damage caused by space objects, either on Earth or to aircrafts in flight (Article II).
If objects are damaged elsewhere than on the surface of the Earth, States can get a fine only if the damage was their fault (Article III) either because they were not careful enough or they did it on purpose. They also define the liability of different States in case a third party got damaged (Article IV) along with who should get fined and how. The Convention goes into specific detail about the many ways and cases States or individuals belonging to a State can ask for compensation in the case of damages, in which delays they should ask for it, what to do if their State does not have diplomatic relations with the launching State of the object that hurt them, and so on. Though these laws are in line with how liability is handled on Earth, they don’t accurately reflect how space works. It doesn’t align with the nature of the damage caused, for example, by space debris, which is understandable, since by then humans had been conducting activity in space for only fifteen years and they probably did not know that most damage that occurs in space is due to chain reactions clashes between debris. Even if we stopped sending new objects into space right now, space debris would still be formed, because of what’s already in orbit. Not to mention that most times it is impossible to understand whom a particular flying screw that opened a five-meter hole into a satellite belonged to, and it’s not like it’s possible to track down the screw and analyze it to find out, so talking about compensation seems a bit detached.
Still, this convention is important because it proves that States are responsible for the damage their space objects cause, and this should be expanded upon considering recent findings on space debris.
Registration Convention, 1974 [6]
This convention, as the name suggests, is mostly concerned with the rules surrounding registration of space objects. As for the former Convention, it was made with Earth in mind. When it comes to actual space dynamics there end up being thousands of unregistered objects in orbit, because space debris are technically pieces of registered objects. Any damage caused by space debris cannot be compensated because finding out from which registered space object it originally belonged to is usually impossible. One article of this Convention specifies that when it is impossible to identify the space object that caused a certain damage, all States who have signed the Treaty must help identify and track the object (Article VI). This is important because it suggests a need for cooperation between States in the identification (and possibly, the future retrieval) of space debris.
Moon Agreement, 1984 [7]
This is called the Moon Agreement, but it applies to all solar systems’ celestial bodies (Article I). This is the Agreement that makes it impossible for the Moon to become like the Old West, in terms of colonization. Threats, use of force, or hostile activity of any kind are not allowed on celestial bodies and it’s also not possible to build structures on them from which to threaten or attack the Earth, space objects or other celestial bodies. Weapons of mass destruction can’t be placed on the surface nor sent to orbit celestial bodies, and in general it’s not possible to create military bases, test weapons or conduct maneuvers on the Moon and other celestial bodies (Article III). They also can’t be appropriated by any State, occupied, privatized, and they are the common heritage of humankind (Article XI).
Walking the line
Quite a complex set of rules for a place that is supposedly lawless. If Space is in any way like the Wild West, it’s only in the sense that both space and cowboy-land have rules meant to ensure the safety of the people living and working there. It is preposterous to say that “there’s nothing out there that describes what’s safe conduct and what’s professional conduct”, because there is plenty of legislation that describes just that. The UN treaties show that there are no “anything goes” scenarios in Space, and it is not possible to forgo rules in the name of preserving safety, because the law was made keeping in mind the dangers of the unknown. There are guidelines, principles, regulations, and directives, stating that Space is to be explored and used for peaceful purposes and that it is the common heritage of mankind. We must not be led to believe that these principles are less valid just because they are codified in international law, because in that case, we should set free all the Nazi officials who were found guilty of crimes against humanity. Not to mention that national legislation is being passed every day: don’t forget to check out what’s going on in your country in this domain.
Until next time, remember: the biggest threat to humans in space are other humans and pollution, like space debris, so follow Cosmos for Humanity to help protect space and Earth’s orbits!
[1] L’espace, un nouveau champ de bataille, Arte, 2023
[2] https://www.smithsonianmag.com/history/gun-control-old-west-180968013/
[3] Treaty on the Principles Governing the Activities of States in the Explorations and Use of Outer Space, including the Moon and Other Celestial Bodies
[4] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space
[5] Convention on International Liability for Damage Caused by Space Objects
[6] Convention on Registration of Objects Launched into Outer Space
[7] Agreement Governing the Activities of States on the Moon and other Celestial Bodies Moon
