Space is a domain that is governed by five key international treaties, informally known as the Outer Space Treaty, the Rescue Agreement, the Liability Convention, the Registration Convention and the Moon Agreement (their formal names are much longer). The distinction between airspace and outer space is yet to be legally defined. Many countries involved in space exploration believe that discussing a new agreement on space or an amendment to the Outer Space Treaty would be futile and time-consuming, as deep-seated differences in relation to resource appropriation, property rights and other issues related to commercial activity make it unlikely that a consensus will be reached. The scope of the term “national activity in outer space” gives rise to the possibility that licensing regimes overlap, so that an aspiring space entrepreneur from Australia who wishes to launch a satellite in the United Kingdom, for example, would have to obtain a license in two jurisdictions.
More and more States are becoming parties to these treaties, negotiating cooperation agreements based on their provisions and enacting national space laws. Article VI of the Outer Space Treaty establishes a regime of governmental responsibility for anything that may be considered a “national activity” in outer space, including by non-governmental entities that have no relationship with the government. While other States may have laws and carry out activities that have any impact on the space object, those laws and activities would be invalid or illegal, respectively, insofar as they amount to controlling the space object. In recent years, the Legal Subcommittee has been unable to reach a consensus on the debate on a new comprehensive space agreement (the idea was proposed by only a few member States).
In such a situation, it seems likely that it will be much easier to achieve a consensus with respect to commercial development and human settlements in outer space. If commercial space transport is widely available, with substantially lower launch costs, all countries will be able to take direct advantage of the benefits of space resources. It is not clear to what extent a space activity of a national of a State should provide any benefit to other States (rather than benefiting only the State participating in the activity), but State practice tends to suggest that this is a very low threshold, if any. Each of the treaties underlines the idea that outer space, the activities carried out in outer space and the benefits that may be obtained from outer space should be dedicated to improving the well-being of all countries and of humanity, with emphasis on promoting international cooperation.
New actors and new topics are emerging, and new topics are being discussed in the Committee on the Peaceful Uses of Outer Space, such as the problem of space debris and the promotion of space law. Governments are responsible for all national activities in outer space, including those carried out by fully independent non-governmental entities. Therefore, to cover all laws, regulations, customs, contracts etc., related to activities in outer space, a guide is needed. This would include for example the inherent right to legitimate national defense recognized in Article 51 of the Charter of the United Nations; thus defensive military activities in outer space would be legal. Space law is an umbrella term for all laws that govern activities related to outer space.
It encompasses both national and international agreements, norms and principles. It is considered clear that international space law applies to objects in orbit and beyond; this applies to objects that can be described as “space objects” including rockets at least from the moment of “intentional ignition”; it applies to astronauts; and it applies to any conduct that can be described as a “national activity in outer space”.
