Space law is an area of the law that encompasses national and international law governing activities in outer space. International lawyers have been unable to agree on a uniform definition of the term "outer space," although most lawyers agree that outer space generally begins at the lowest altitude above sea level at which objects can orbit the Earth, approximately 100 km (62 mi).
The inception of the field of space law began with the launch of the world's first artificial satellite by the Soviet Union in October 1957. Named Sputnik 1, the satellite was launched as part of the International Geophysical Year. Since that time, space law has evolved and assumed more importance as mankind has increasingly come to use and rely on space-based resources.
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Beginning in 1957, nations began discussing systems to ensure the peaceful use of outer space.[1][2] Bilateral discussions between the United States and USSR in 1958 resulted in the presentation of issues to the UN for debate.[1][3][4] In 1959, the UN created the Committee on the Peaceful Uses of Outer Space (COPUOS).[5] COPUOS in turn created two subcommittees, the Scientific and Technical Subcommittee and the Legal Subcommittee. The COPUOS Legal Subcommittee has been a primary forum for discussion and negotiation of international agreements relating to outer space.
Five international treaties have been negotiated and drafted in the COPUOS:
The outer space treaty is the most widely-adopted treaty, with 100 parties. [6] The rescue agreement, the liability convention and the registration convention all elaborate on provisions of the outer space treaty. UN delegates apparently intended that the moon treaty serve as a new comprehensive treaty which would supersede or supplement the outer space treaty, most notably by elaborating upon the outer space treaty's provisions regarding resource appropriation and prohibition of territorial sovereignty. [7] The moon treaty has only 13 parties, and many consider it to be a failed treaty due to its limited acceptance. [8] India is the only nation that has both signed the moon treaty and declared itself interested in going to the moon. India has not ratified the treaty; an analysis of India's treaty law is required to understand how this affects India legally. [9]
In addition, the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water ("Partial Test Ban Treaty") banned the testing of nuclear weapons in outer space.
The five treaties and agreements of international space law cover "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." [10]
The United Nations General Assembly adopted five declarations and legal principles which encourage exercising the international laws, as well as unified communication between countries. The five declarations and principles are:
The COPUOS operates on the basis of consensus, i.e. all committee and subcommittee delegates must agree on treaty language before it can be included in the final version of a treaty, and the committees cannot place new items on their agendas unless all member nations agree. One reason that the U.N. space treaties lack definitions and are unclear in other respects, is because it is easier to achieve consensus when language and terms are vague. In recent years, the COPUOS Legal Subcommittee has been unable to achieve consensus on discussion of a new comprehensive space agreement. It is also unlikely that the Subcommittee will be able to agree to amend the Outer Space Treaty in the foreseeable future. Many space faring nations seem to believe that discussing a new space agreement or amendment of the Outer Space Treaty would be futile and time consuming, because entrenched differences regarding resource appropriation, property rights and other issues relating to commercial activity make consensus unlikely.
In addition to the international treaties that have been negotiated at the United Nations, the nations participating in the International Space Station have entered into the 1998 Agreement among the governments of Canada, Member States of the European Space Agency, Japan, Russian Federation, and the United States of America concerning cooperation on the Civil International Space Station (the "Space Station Agreement"). This Agreement provides, among other things, that NASA is the lead agency in coordinating the member states' contributions to and activities on the space station, and that each nation has jurisdiction over its own module(s). The Agreement also provides for protection of intellectual property and procedures for criminal prosecution. This Agreement may very well serve as a model for future agreements regarding international cooperation in facilities on the Moon and Mars, where the first off-world colonies and scientific/industrial bases are likely to be established. [12]
Space law also encompasses national laws, and many countries have passed national space legislation in recent years. The Outer Space Treaty requires parties to authorize and supervise national space activities, including the activities of non-governmental entities such as commercial and non-profit organizations. The Outer Space Treaty also incorporates the UN Charter by reference, and requires parties to ensure that activities are conducted in accordance with other forms of international law such as customary international law (the custom and practice of states).
The advent of commercial space activities beyond the scope of the satellite communications industry, and the development of many commercial spaceports, is leading many countries to consider how to regulate private space activities. [13] The challenge is to regulate these activities in a manner that does not hinder or preclude investment, while still ensuring that commercial activities comply with international law. The developing nations are concerned that the space faring nations will monopolize space resources. [14]
Satellites in geostationary orbit must all occupy a single ring above the equator, approximately 35,800 km into space. The requirement to space these satellites apart means that there is a limited number of orbital "slots" available, thus only a limited number of satellites can be placed in geostationary orbit. This has led to conflict between different countries wishing access to the same orbital slots (countries at the same longitude but differing latitudes). These disputes are addressed through the ITU allocation mechanism.[15] Countries located at the Earth's equator have also asserted their legal claim to control the use of space above their territory.[16] In 1976, countries located at the Earth's equator created the Bogota Declaration, in which they asserted their legal claim to control the use of space above their territory.[17]
While this field of the law is still in its infancy, it is in an era of rapid change and development. Arguably the resources of space are infinite, and limited only by our ability to use them in a manner that is fair and equitable to all nations and which is environmentally ethical. If commercial space transportation becomes widely available, with substantially lower launch costs, then all countries will be able to directly reap the benefits of space resources. In that situation, it seems likely that consensus will be much easier to achieve with respect to commercial development and human settlement of outer space. High costs are not the only factor preventing the economic exploitation of space: it is argued that space should be considered as a pristine environment worthy of protection and conservation, and that the legal regime for space should further protect it from being used as a resource for Earth's needs.[18][19] Debate is also focused on whether space should continue to be legally defined as part of the “common heritage of man,” and therefore unavailable for national claims, or whether its legal definition should be changed to allow private property in space.[20][18][21]
Michael Dodge, of Long Beach, Mississippi, is the first law school graduate to receive a space law certificate in the United States.[22][23] Dodge graduated from the National Center for Remote Sensing, Air and Space Law at the University of Mississippi School of Law in 2008.[24][25]
The University of Sunderland is the first UK University to offer a space law module as part of its LLB programme. [26]
The University of Nebraska College of Law offers the U.S.’s first and only LL.M. in space and telecommunications law.[27] Professor Frans von der Dunk, former Director of space law research at Leiden University joined the program in 2007. In addition to the LL.M., students can earn a J.D. at Nebraska Law with an emphasis in space and telecommunications law. The program also hosts three space and telecommunications conferences each year [28]
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