Space Law Treaties: Private Companies' Legal Standing

The evolution of space law has been driven by the emergence of new space activities and the increasing involvement of private companies in space exploration. The Outer Space Treaty, which forms the basis of international space law, was established in 1967 to prevent the militarization and colonization of space. However, with technological advancements, private companies have gained the capability to participate in space exploration, and their inclusion in existing space law treaties is unclear. The interpretation of these treaties varies, and while some argue that private companies are not bound by the Outer Space Treaty, others maintain that governments are responsible for supervising and authorizing the activities of their private entities in space. The involvement of private companies in space has led to concerns about the effectiveness of existing treaties in addressing new challenges, such as resource extraction and space traffic management. As the global space economy expands, the interpretation and application of existing space law will continue to evolve, potentially leading to the development of new norms and regulations.

The Outer Space Treaty

The key principles of the treaty include:

• The exploration and use of outer space shall be carried out for the benefit and interests of all countries and shall be the domain of all mankind.
• Outer space shall be free for exploration and use by all states.
• Outer space is not subject to national appropriation by claim of sovereignty, use, occupation, or any other means.
• States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies, or station them in outer space in any other way.
• The Moon and other celestial bodies shall be used exclusively for peaceful purposes, prohibiting their use for testing weapons, conducting military maneuvers, or establishing military bases, installations, and fortifications.
• Astronauts shall be regarded as envoys of mankind.
• States are responsible and liable for national space activities, whether carried out by governmental or non-governmental entities, and must provide authorization and continuing supervision.
• States shall avoid harmful contamination of space and celestial bodies.

The Rescue Agreement

In the event that a space object or its parts land in the territory of another state party, the state where the object lands is required, upon the request of the launching authority, to recover the space object and return it. The launching state must then compensate the state for the costs incurred in the recovery and return of the space object.

The Liability Convention

> A launching state shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight.

The convention establishes a state-centric framework, holding national governments internationally liable for any damage caused by a spacefaring actor from their country. This means that if a space object from one country causes damage in another, the former will be held responsible and will have to pay compensation. This is the case even if the harm was unintentional or caused by an intervening third party.

The convention has faced criticism for its failure to address the modern reality of the privatisation of the space industry. As private companies increasingly lead the charge in space exploration, some argue that the convention should be updated to directly address private entities. This would promote certainty, investment, and development in the industry.

Another critique of the convention is that it does not demand an inquiry into the underlying cause of an incident. This has resulted in a misattribution of responsibility, where a state may be forced to pay for damage caused by unknown culprits or third parties. This is seen as a contravention of basic principles of state responsibility and international law.

With the rapid commercialisation and militarisation of space, concerns have been raised about the potential for abuse and the need for a clearer liability regime. The convention's silence on the matter of intervening acts and its strict liability approach have been described as nonsensical and inconsistent with well-established principles of international law.

To address these issues, it has been proposed that the convention should be amended to place liability for space object damage directly on the companies involved. This would promote efficiency and certainty for spacefaring companies and ensure that justice is served.

The Registration Convention

The convention was drawn up in 1974 and came into force in 1976. It empowers the UN Secretary-General to maintain a register of all space objects. The convention states that when a space object is launched into Earth orbit or beyond, the launching state must register the object by means of an entry in an appropriate registry, which it shall maintain. Each launching state must also inform the UN Secretary-General of the establishment of such a registry.

The contents of each registry and the conditions under which it is maintained are determined by the state of the registry concerned. The convention defines a "launching state" as a state that launches or procures the launching of a space object, or a state from whose territory or facility a space object is launched. A "space object" includes component parts of a space object, as well as its launch vehicle and parts thereof.

The UN Secretary-General maintains a Register in which the information furnished in accordance with the convention is recorded. There is full and open access to the information in this Register. Each state of the registry must furnish the UN Secretary-General with information concerning each space object carried on its registry, including the name of the launching state or states, an appropriate designator of the space object or its registration number, the date and territory or location of the launch, and the basic orbital parameters, including the general function of the space object.

The Moon Agreement

The primary objective of the Moon Agreement is to establish the legal principles governing the behavior of states, international organizations, and individuals exploring celestial bodies other than Earth, as well as the administration of any resources obtained through exploration.

• The Moon and other celestial bodies shall be used exclusively for peaceful purposes, prohibiting any military use, including weapon testing and nuclear weapons in orbit.
• The Moon and its natural resources are the common heritage of mankind, and are not subject to national appropriation or sovereignty claims.
• States shall have freedom of scientific investigation on the Moon without discrimination, and shall cooperate and assist each other in their activities concerning the exploration and use of the Moon.
• States shall take measures to prevent harmfully disrupting the existing environment of the Moon or the Earth, and shall inform the Secretary-General of the United Nations of any phenomena discovered that could endanger human life or health.
• States retain jurisdiction and control over their personnel, vehicles, equipment, facilities, stations, and installations on the Moon, and shall be open to inspection by other States Parties to ensure compliance with the Agreement.
• States shall inform the Secretary-General of the United Nations, as well as the public and the international scientific community, of their activities related to the exploration and use of the Moon, and shall promptly report any natural resources discovered.
• States recognize the need for detailed arrangements concerning liability for damage caused on the Moon, in addition to the provisions of the Outer Space Treaty and the Convention on International Liability for Damage Caused by Space Objects.
• States have the right to explore and use the Moon without discrimination, on the basis of equality and in accordance with international law and the terms of the Agreement.
• States undertake to establish an international regime to govern the exploitation of natural resources on the Moon, including equitable sharing of benefits among all States Parties.
• The Agreement applies to all celestial bodies within the Solar System, except for extraterrestrial materials that reach the surface of the Earth naturally.

In summary, the Moon Agreement seeks to promote international cooperation, peaceful exploration, and the equitable exploitation of natural resources in outer space, while preventing the Moon from becoming an area of international conflict. However, due to a lack of ratification by major spacefaring nations, it has limited relevance in shaping the current landscape of space law.

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