The evolution of Space Law

This post shares the growth of space law from the era of the 1st adventure of man into space.

A BRIEF HISTORY OF SPACE TRAVEL AND THE EVOLUTION OF SPACE LAW

Centuries after Galileo’s discovery and subsequent persecution for his ‘heretical’ belief in the earth’s spherical nature, man continued his unending march of evolution and technological progress. From horse-drawn carts to automobiles and finally, aeroplanes, after great effort and centuries’ worth of research, man had a breakthrough and took his first step into the great unknown . . . Space!

On October 4, 1957, the world was stunned by the news of an Earth-orbiting artificial satellite launched by the then Soviet Union. Called Sputnik I, the satellite was the first successful entry in a race for space between the two superpower nations of the era (the US and the former USSR). Less than a month later, the Soviets followed with the launch of a satellite carrying a dog named ‘Laika’ on board. Laika survived in space for seven days before being put to sleep before the oxygen supply ran out.

A few months after Sputnik 1, the United States followed the Soviet Union with a satellite of its own. Explorer I was launched by the U.S. Army on January 31, 1958. In October of that year, the United States formally organized its space program by creating the National Aeronautics and Space Administration (NASA). NASA became a civilian agency with the goal of peaceful exploration of space for the benefit of all humankind.

Yuri Gagarin made history as the first man in space. Soon, many people and machines were launched into space. Astronauts orbited Earth and landed on the Moon. Robot spacecraft travelled to the planets. Space was suddenly opened up to exploration and commercial exploitation. Satellites enabled scientists to investigate our world, forecast the weather, and communicate instantaneously around the globe. As the demand for more and larger payloads increased, a wide array of powerful and versatile rockets had to be built. Rockets have opened the universe to direct exploration by humankind.

Evolution of Space Law: All these developments led to the evolution of space law; for, when Sputnik 1 launched into space, it orbited over the territory of other States. Interestingly, there was no government protest or claim of invasion or sovereignty from these nations (possibly because everyone was in awe😁😄😆😆), leading to the creation of customary international laws wherein space was (and is) treated as a new territory not belonging to any State. With the United States launching Explorer 1 after the Soviets, there was a need for clearly defined rights and obligations to bind States in space exploration. Accordingly, on the basis of a proposal by the U.S and 19 other states, the United Nations General Assembly (UNGA), in 1958, wasted no time in establishing the Committee for Peaceful Uses of Outer Space in 1958 (COPUOS) to oversee the activities of the space-faring nations and any legal problems which may arise in the exploration of outer space and to determine the practical and feasible ways in which space-related programs could be appropriately undertaken under United Nations auspices.[1]

In 1963, the UNGA took the first step on the establishment of international space law by adopting the “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space.” (This Declaration adopted in the form of an UNGA Resolution[2] was eventually transformed into the legally binding 1967 Treaty on Principles Governing the Activities of States in the exploration and Use of Outer Space, including the Moon and other Celestial Bodies Oct 10, 1966 (The Outer Space Treaty). It must be noted however that before the 1967 Outer Space Treaty came into force, the 1963 Treaty Banning Nuclear Weapons Test in the Atmosphere, in Outer Space and Under Water[3] had already been concluded). The Committee, guided by the principle of consensus in its decisions, drafted other significant international agreements (that are currently in force).

The evolution of space laws will be discussed under 3 eras.

First era: 1957-1979. About a decade after the establishment of COPOUS, major space treaties like the Rescue Agreement of 1965, the Outer Space Treaty of 1967, the Liability Convention of 1972 and the Registration Convention of 1975 came into being. This period spanned 1957 to 1979 and is referred to by some jurists as the ‘Classical period’ as it is the period where major documents and structures of space law were conceived. These laws form the international space law regime. During this era, space activities could only be done by States and their governments but not by private entities. Towards the end of this era, it was agreed that private entities could participate in space activities but their governments would take responsibility for their liabilities.

Second era: 1980 – 1991/1992. The second era that followed, referred to as ‘the transitional period’, spanned 1980 to 1991 and saw more States becoming more involved in space activities. With the entrance of new actors, divergent views and opinions arose. In the absence of consensus, states signed bilateral agreements and legislated domestic space laws. This phase saw a departure from the 1st era’s law-making procedure. Whereas the 1st era was characterised by legally binding international agreements and conventions, this phase saw the adoption of several non-binding UN General Assembly Resolutions. This was deliberately done to soften the legal obligations imposed on space and non-space-faring nations.[4] This era birthed the Moon Treaty of 1984; and as commercial applications made space activities more diverse, domestic space Law and bilateral treaties rose to the rescue to fill in gaps.

Third era: 1992 – Present. This is the modern era of space activities; our own era. It is characterized by increase in technology and commercial use of space. This period evidences the rise of the new space actors (private commercial investors in space activities) and the use of space technology for economic and sustainable development. Consequently, more UN Resolutions followed. Today, trans-border circulation of people, goods and services in the era of globalization, are at their fastest growth. National space and space-related activities, especially due to their rapid commercialization and privatization, are now part of this global process.[5] Therefore, since States are bestowed with the obligation to authorize and supervise their national space activities, it became imperative for them to have their respective national space legislation.[6]

Space law is therefore 2 tiered. The 1st tier is The International law of outer space that governs the space activities of international persons (States and international intergovernmental organisations which create law through bilateral and multilateral agreements dealing with international co-operations between States and their organs). The 2nd tier of space law is by means of national laws adopted by space-faring nations. These laws govern the activities of States and their space agencies, implement the principles of international space law at the level of domestic legal orders and also regulate the activities of their nationals, both physical and juridical persons.[7]

References

[1] Olusoji Nester John, ‘National Space Law And Regulation In Africa: A Case Study Of Nigeria And South Africa’, 2012 Beijing Space Sustainability Conference https://swfound.org/media/95229/olusoji_nester_john.pdf; See also Steven Gorove, “Sources and Principles of Space Law” in: Jasentuliyana N. (ed), 1992, Space Law: Development and Scope, London: International Institute of Space Law, pp. 45-58.

[2] UN General Assembly Resolution, 1962 (XVIII), of 13 December 1963; UN Doc A/AC, 105/572/Rev. 1, at 37.

[3] UNTS. Vol. 480 (1963) , p. 45, et seq.

[4] J-A. van Wyk, ‘Overview of the implementation status of the Five United Nations Treaties on Outer Space in African Countries, African Skies, Vol. 12, p.90: 2008AfrSk..12…90V, http://articles.adsabs.harvard.edu//full/2008AfrSk..12…90V/0000090.000.html

[5] See Vereshchetin V. S., “The law of Outer Space in the General Legal Field (Commonality and Particularities).”

[6] Olusoji Nester John, ‘National Space Law And Regulation In Africa: A Case Study Of Nigeria And South Africa’, 2012 Beijing Space Sustainability Conference https://swfound.org/media/95229/olusoji_nester_john.pdf; See

[7] Vladimir Kopal, Existing United Nations Treaties: Strengths and Needs. Proceedings of the Workshop on Space Law in the Twenty-First Century, UNISPACE III Technical Forum, 1999 at page 11; Vladimir Kopal, ’Introduction to United Nations Treaties and Principles on Outer Space’, Proceedings of the United Nations/International Institute of Air and Space LawWorkshop on Capacity Building in Space Law, the Hague, 2003 at pages 10-11.

Leave a Reply

Your email address will not be published.