Revisiting States’ Scientific Rights under Space Law – VIPS LAW BLOG

-Mr Aaditya Vikram Sharma

Introduction

The introduction of India’s recent space missions on September 18, 2024, marks a significant milestone in the nation’s space endeavour’s, including the Chandrayaan-4 mission and initiatives aimed at establishing the Bhartiya Antraksha Station (literally, Indian Space Station). These missions are not only technological achievements but also contribute to humanity’s collective scientific knowledge, such as the discovery of water on the Moon during the Chandrayaan-1 mission.

While we often take the use of outer space for scientific exploration for granted, it is essential to understand how international space law regulates these activities and the limitations imposed on states. As the missions increase in number, it is imperative to ask- how and in what manner does space law regulate scientific missions to outer space? Are there any limitations imposed on States? And what does the future hold?

International Space Law

International Space Law arose due to the rivalry between the two super powers in the middle of the 20^th century. The Cold War had started, and, both the Union of Soviet Socialist Republics (USSR) and the United States (US) launched satellites in 1957 and 1958 respectively. As the two also possessed nuclear weapons, the fear was that outer space would form a new realm of cold war atomic rivalry.  So, the United Nations developed principles which emphasized the peaceful uses of outer space. In its 1958 resolution titled “Question of the peaceful use of outer space”, the UN General Assembly established an ad hoc committee on the Peaceful Uses of Outer Space. This was done to kickstart the treaty negotiations for, inter alia, increasing knowledge of humanity, recognizing the importance of international cooperation in study of outer space, and scientific cooperation.

In 1959, the ad hoc Committee was replaced by a permanent one by the UNGA. By 1962, the COPUOS had drafted the “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space.” Afterwards, in 1967, the ‘Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies’ was formulated. As an international treaty, its provisions were binding. It should be mentioned that by this time, a Legal Sub-Committee had been created under the aegis of the COPUOS. Subsequently, the Committee was able to churn out four more treaties over time along with four sets of principles.

Scientific Exploration in Outer Space- An Absolute Right?

An analysis of the above listed principles and treaties reveals that the privilege of scientific exploration available to nation states under ISL. At the outset, it should be noted that while the treaties are binding, principles only carry a persuasive value. However, they are still relevant as they represent the ‘general will’ of the COPUOS.

The Declaration of Legal Principles outlines the fundamental rights of states regarding the exploration and use of outer space. It establishes that all states have the right to conduct scientific research in outer space, emphasizing that such activities should be carried out for the benefit of mankind as a whole (Principle 1). This principle promotes the notion that space exploration is a collective endeavor, aimed at advancing knowledge and technology that can benefit all countries. However, the Declaration also imposes limitations on these rights. States are expected to conduct their activities in space in accordance with international law, ensuring that such activities do not harm the interests of other states or disrupt peace (Principle 2). Moreover, it stresses the importance of international cooperation, suggesting that unilateral actions that could lead to conflicts or competition for resources are discouraged (Principle 3).

The Outer Space Treaty reinforces the rights of states to explore outer space, asserting that outer space shall be free for exploration and use by all states (Article I). It prohibits any state from claiming sovereignty over outer space or celestial bodies, thus ensuring that exploration activities remain open to all nations (Article II). The Treaty also stipulates that activities must be conducted for the benefit of all humanity, reiterating the collective responsibility of states in their exploration efforts (Article III). Limitations to these rights are embedded within the Treaty itself. The use of space must be peaceful (Article IV), and states are required to avoid harmful interference with the activities of others (Article IX). Additionally, the Treaty imposes obligations on states to be responsible for national space activities, including those conducted by private entities, emphasizing accountability and adherence to international law (Article VI).

The Rescue Agreement outlines the rights of states to assist astronauts in distress and to ensure their safe return (Article I). This agreement reinforces the duty of states to cooperate in rescue operations, thereby fostering international collaboration in times of need. States are granted the right to land objects returning from space, provided they do so in accordance with international norms (Article II). The limitations here are primarily focused on the obligation to respect the sovereignty of states over their territory (Article III). While the right to rescue is clear, it must be conducted with respect for the laws and regulations of the country where the landing occurs. This aspect ensures that while states have rights to assist and return objects, they must do so without infringing on the rights of other states.

The Liability Convention establishes the principle that states are liable for damage caused by their space objects (Article II). This right to operate in space comes with the responsibility to compensate for damages, thus promoting accountability. The Convention allows states to pursue claims against other states for damages caused by space activities, ensuring that there is a legal framework for addressing such issues. Limitations to this right arise from the need to demonstrate that the damage was a direct result of space activities (Article III) and that liability must be based on fault or negligence (Article IV). This condition places a burden on states to ensure their operations are conducted safely and responsibly, thereby limiting the extent to which they can claim rights without accountability.

The Registration Convention mandates that states must register space objects they launch into orbit (Article II). This right allows states to maintain a record of their activities in space, promoting transparency and accountability. By registering their objects, states affirm their ownership and responsibility for those objects, which is essential for international cooperation and monitoring. However, the limitations are clear: failure to register objects can lead to diplomatic and legal repercussions (Article I). States must adhere to the Convention’s procedures, and the registration process must be transparent, meaning that states cannot operate in secrecy or avoid accountability for their activities in space.

The Moon Agreement establishes that the Moon and its resources are the common heritage of mankind (Article 1), thus granting all states the right to explore and use its resources. This Agreement emphasizes international cooperation and equitable access to lunar resources, aligning with the broader principle of benefit for all humanity. Nonetheless, the limitations are significant. The Agreement imposes a framework that requires states to conduct activities in a manner that does not harm the Moon’s environment (Article 4) and calls for international governance of resource use (Article 11). This means that while states have rights to explore and utilize, they must do so within a cooperative and regulated framework that prevents unilateral exploitation.

The Broadcasting Principles affirm the right of states to use artificial satellites for broadcasting purposes (Principle 1). This principle supports the advancement of communication technology and encourages the dissemination of information globally. States are encouraged to cooperate in using satellite technology for mutual benefit (Principle 3). However, limitations are placed on these rights to ensure that broadcasting does not interfere with the rights of other states or disrupt their communication services (Principle 4). The principles call for coordination and the avoidance of harmful interference, emphasizing that while states can utilize satellites, they must do so in a manner that respects the sovereignty and interests of others.

The Remote Sensing Principles recognize the right of states to conduct remote sensing activities (Principle 1). This right supports scientific research and resource management, promoting the use of technology for environmental monitoring and disaster management. Limitations arise from the requirement that remote sensing should respect the sovereignty of states (Principle 2) and should not infringe upon the rights of the state from which data is collected (Principle 3). This means that while states can gather information, they must do so with consideration for the legal frameworks and interests of other nations.

The Nuclear Power Sources Principles allow states to utilize nuclear power sources for space exploration under strict conditions (Principle 1). This right supports the advancement of space technology and energy generation for long-duration missions. However, the limitations are strict, requiring states to ensure the safety and security of nuclear materials (Principle 4), prevent contamination, and comply with international safety standards (Principle 5). These principles emphasize the need for responsible use of nuclear technology, reflecting the potential hazards involved.

Ultimately, the rights to scientific exploration in space are accompanied by significant limitations aimed at ensuring responsible conduct among states. Firstly, activities must adhere to international law and respect the sovereignty and interests of other states, preventing harmful interference in their operations. This principle is emphasized in various treaties, such as the OST, which mandates that space activities should be conducted for the benefit of all humanity and in a peaceful manner. Additionally, states are required to be accountable for their actions, as outlined in the Liability Convention, which holds them liable for damage caused by their space activities. Furthermore, agreements like the Moon Agreement impose obligations on states to avoid environmental harm and to cooperate in the management of resources, reinforcing the notion that exploration must not lead to unilateral exploitation. Collectively, these limitations underscore the need for international cooperation, transparency, and a commitment to equitable access in the pursuit of scientific knowledge in outer space.

The Future and Conclusion

As nations such as India step up their space game, and as the space industry evolves, International Space Law will have to develop accordingly. The future of space exploration is poised for significant advancements driven by technological innovation, increasing international collaboration, and the growing involvement of private entities. As nations and private companies push the boundaries of what is possible, we can expect more ambitious missions, including manned missions to Mars, the establishment of lunar bases, creation of new space stations, and extensive exploration of asteroids and other celestial bodies. The emergence of space tourism and the commercialization of space activities will likely transform public engagement with space, making it more accessible to a broader audience. However, as space exploration expands, issues such as space debris management, planetary protection, and resource utilization will become increasingly critical. The need for sustainable practices will be paramount, especially as we look to utilize extraterrestrial resources, and international cooperation will be essential to address these challenges.

To improve current international space law in light of these developments, several recommendations can be made. First, the foundational principles of the Outer Space Treaty, established in 1967, should be revisited to address contemporary challenges, including the legal status of private entities and the framework for resource extraction. Second, a robust framework for space traffic management is necessary to mitigate the risk of collisions and manage space debris, involving standardized registration systems and operational protocols. Additionally, clearer guidelines regarding the environmental impact of space activities should be developed to protect celestial bodies from contamination and promote the sustainable use of resources. Strengthening liability frameworks established in the Liability Convention will ensure that states and private entities are held accountable for damages caused by their activities in space, encouraging responsible behaviour.

Moreover, promotion of international cooperation through collaborative agreements for scientific research and exploration will help share resources and knowledge, facilitating joint missions and data sharing. Lastly, binding agreements on the mitigation of space debris and the responsibilities of operators for debris removal will be crucial for maintaining a sustainable orbital environment. By implementing these changes, the international community can better equip itself to navigate the complexities of future space exploration while ensuring that it remains a peaceful and cooperative endeavour.

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Image source: https://blog.ipleaders.in/exploration-of-space-and-property-rights-on-the-moon/

[The author is an Assistant Professor at Vivekananda School of Law and Legal Studies, Vivekananda Institute of Professional Studies-Technical Campus]