Rafael Moro Aguilar - UCMaegora/eventos/escorial2016/Instibaerospa... · 2016-09-16 · ESCORIAL 7...

Rafael Moro Aguilar Head of Legal Affairs, Orbspace Engineering

Member of the Spanish Delegation to COPUOS

Member of the Ibero American Institute of Aeronautical and Space law

THE WORLD BEFORE SPACE LAW…

Spain conquered the Canary Islands (15th century) and then discovered, conquered and colonised most of the Americas (1492)

Cortes and the Conquest of Mexico (1519-1521)

Pizarro and the conquest of Peru (1532-1533)

The rest of the European powers followed and claimed sovereignty over most of the continents (America, South Pacific, Africa and Asia)

This system of claiming sovereignty over any new lands is what we could have had on the Moon, too!

Consider briefly these two well-known examples of 19th century sci-fi literature…

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THE MOON: FROM LABS TO TOWNS SAN LORENZO DE EL ESCORIAL

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“As for the Yankees, they have no other ambition than to take possession of this new continent in the sky, and to plant upon the summit of its highest elevation the star-spangled banner of the United States”

Jules Verne, «From the Earth to the Moon», 1865


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Brits on the Moon in 1899…

…taking possession of our satellite in the name of Queen Victoria !!?? H.G. Wells, «First Men in the Moon», 1901

By the 1950s, this system of land acquisition was no longer possible: Times are a-changing!

Antarctic Treaty (Washington, 1959) > all the powers having interests in Antarctica (USA, USSR, UK, Norway, France, Australia, New Zealand, Argentina, Chile, etc.) agreed to suspend any claims of sovereignty over Antarctic lands and coastal waters

For the first time, countries decided to destine a whole continent, Antarctica , to scientific studies for the benefit of mankind


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4 October 1957: The conquest of space begins -

Space law is born


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United Nations: COPUOS Created by the U.N. General Assembly in 1959 by its

Resolution 1472 (XIV). Location: New York /Vienna

83 Member States (as of 2016) and 35 int’l organizations as permanent observers, including ESA and the Ibero American Institute of Aeronautical and Space Law

Three annual sessions: 1) Scientific & Technical Subcommittee (February) 2) Legal Subcommittee (March-April) and 3) full (Plenary) Committee (June)

Its Legal Subcommittee started working in 1962. It has been highly successful in the creation of international space law since then

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COPUOS Legal Subcommittee, April 2010

(Picture: © Rafael Moro Aguilar)


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First UN documents on outer space

1961: UNGA Resolution 1721A > Celestial bodies shall not be subject to national appropriation. Resolution 1721B > The United Nations must be the central element of international cooperation in outer space

1963: UNGA Resolution 1962 (XVIII) on the “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space” > this milestone document was adopted unanimously by Member States of the UN


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“1. The exploration and use of outer space shall be carried on for the benefit and in the interest of all mankind

2. Outer space and celestial bodies are free for exploration and use by all States on a basis of equality and in accordance with international law

3. Outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means” UNGA Res. 1962 (XVIII)


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The Outer Space Treaty (OST) - This is the most important international legal text

governing activities in outer space - It was negotiated in COPUOS in 1966, basically be-

tween the USA and the USSR, although other COPUOS Member States also provided some input

- Adopted by UNGA in October 1966 - Effective in 1967. Since then, it has been ratified by 103 States (as of 2016) - It provides the basic regulatory framework for all space activities carried out by all States of the world - Sometimes called the “Carta Magna” of outer space

THE MOON: FROM LABS TO TOWNS


The United Nations General Assembly in 1968, the time of adoption of the first UN Outer Space Treaties (© United Nations)


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Core principles of the OST:

Free access of all States to outer space and to the celestial bodies

- All States can explore and use outer space and celestial bodies > Free access without any discrimination

- In principle, free access is guaranteed on a ‘first come, first served’ basis > “if you arrive there first, the spot is yours for you to use it”


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The Moon and other celestial bodies shall be used exclusively for peaceful purposes

- Placing atomic weapons and other weapons of mass destruction in outer space is expressly prohibited. (Other types of weapons are not prohibited)

- However, the Moon and the other celestial

bodies are demilitarized areas > no military bases or activities, no testing of weapons, etc.


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Outer space and celestial bodies are not subject to appropriation by States

- Outer Space and celestial bodies are common-ly considered as “res communis”, i.e. belonging to all

- No State can appropriate a celestial body or any part thereof , neither by claiming its sovereignty nor by use, occupation, or by any other means

- The same regime applies to the high seas and to the seabed: they are res communis


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Law and living in

the Moon

- A law passed by the US Congress in 1969 mandated American astronauts to place the national flag on the Moon “as a symbol of national pride and achievement” but made clear that this action did not constitute any claim of sovereignty what-soever over the Moon

- Apollo astronauts also left this beautiful plaque on the Moon in 1969


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Outer space and celestial bodies are not subject to appropriation by individuals

- If there is no State jurisdiction on the Moon, it means that there cannot be private property either

- The reason is because ownership is a private right that has to be backed by a public entity. i.e. a State - No State or Government > no private property


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A company called Lunar Embassy Corporation is selling plots of land on the Moon (some 2 million and a half so far!)

In 2004, a group of members of the Internatio-nal Institute of Space Law issued a position paper stating that this activity goes against the UN outer space treaties

In reaction, the company declared itself an independent, non-UN-member country

It is now selling land on the planets as well THE MOON: FROM LABS TO TOWNS


Astronauts are considered ‘envoys of mankind’

- States are required to assist and rescue them in case of accident, distress or emergency landing

- In carrying on activities in outer space and on celestial bodies, the astronauts of one State party shall render all possible assistance to the astronauts of other States Parties

- States Parties shall immediately inform the other States Parties or the UN of any phenomena they discover in outer space, including the Moon and other celestial bodies, which could constitute a danger to the life or health of astronauts


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American Moonbase Clavius

2001: A Space Odyssey


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The OST establishes the right to visit moon stations and other lunar facilities by representatives of other States

By denying access to a Russian spaceship in a situation of emergency, Moonbase Clavius actions could be in violation of this principle, as well as Art. 2 of 1968 Rescue Agreement > duty of States to assist astronauts in case of accident, distress or emergency landing


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States are internationally responsible for the space activities of their non-governmental entities

- “Non-governmental entities” means any commercial entities (companies or corporations), any private associations, etc. “Their” is usually interpreted as “those entities having their nationality”

- As a result, the practical obligation arises for States to authorize, control and supervise all private activities carried out in outer space, including the Moon and other celestial bodies. This is usually done by means of internal or domestic legislation


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Law and living in

the Moon

Bigelow Aerospace plans to test an infatable space habitat at the International Space Station this year, and then operate free-flying orbital outposts for customers, including government agencies, research organizations, businesses and even tourists. In 2025, it intends to launch a $12 billion project of a series of bases on the moon.


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Launching States are internationally liable for damages caused by their space objects to third parties on the Earth or in outer space, including the Moon and other celestial bodies

- According to the 1972 Liability Convention, while damages on the Earth's surface and to airplanes in flight imply absolute liability (duty to compensate in any case), damages in outer space only arise in case of fault liability (the launching State must compensate only in case of negligence)

- In case of several launching States > joint and several liability. They may reach agreements among themselves in order to apportion that joint liability



Registration. Satellites, lunar probes, and all other space objects must be inscribed:

- In an International Register, maintained by the UN

- In a national register, maintained by each State of registry

The State of registry will retain jurisdiction, control and ownership over the space object and over any personnel thereof

- jurisdiction on board > both civil and criminal

- Control means that the ultimate control over the space object is in the hands of the State of registry


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Rights of ownership over objects launched into space or placed in or on the Moon are never lost

“Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body. Such objects or component parts shall be returned to that State party on whose registry they are carried”


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Law and living in

the Moon

In 1993, an American millionaire bought in an auction the Soviet spacecraft Luna 21 and the rover Lunojod 2, both of them currently located on the Moon

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Duty to cooperate and to render mutual assistance in the course of the exploration and utilization of outer space

- Duty of States to inform the U.N. and the interna-tional community about their activities conducted in outer space and on the Moon and celestial bodies

- Duty of active cooperation and of mutual assistance - Duty also of non-interference: States may not obstruct

the free use of space by other States. In case of interfe-rence between two space activities, States must enter into consultations


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Duty to preserve the outer space envi-ronment and the Earth’s environment

Duty of space debris mitigation and prevention Duty of biological, radiological, chemical non-

contamination of the celestial bodies > States Parties shall adopt “appropriate measures”

Planetary protection: this is the duty to prevent

biological contamination of celestial bodies with potential biological interest, as well as the duty to prevent biological back contamination of the Earth’s biosphere as a result of introducing extraterrestrial materials > COSPAR’s Planetary Protection Policy (PPP) is not binding

law, but it is applied nevertheless by all space faring nations and space agencies (NASA, ESA…)


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Specific activities on the Moon and their regulation under

international space law

Astronomy on the Moon

“Hopefully man will use the Moon solely as an international laboratory for basic scientific research. The most exciting prospect one can see at this time is in astronomy. The Moon is an ideal site for an observatory.”

Dinsmore Alter, American astronomer, 1963


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An artist's concept of a spinning liquid mirror telescope on the Moon. Credit: University of British Columbia


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Advertising on the Moon A Japanese company manufacturing a popular

soft drink has announced its intention to send a can of beverage to the Moon for advertising purposes: http://www.moondaily.com/reports/Japanese_Compa

ny_to_Advertise_Soft_Drink_on_Moon_999.html

This commercial activity on the Moon is perfectly legal under the Outer Space Treaty, provided that international law is respected: Do not litter the Moon! Do not promote hatred or aggression or provoke any

international conflict or interfere with other space activities…


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Tourism on the Moon


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Tourism is a perfectly lawful commercial way of using the Moon. But:

Tourists and tourism facilities on the Moon will have to follow all the rules that we have seen in this talk

They will have to take particular care of the lunar environment and follow the principle of non-contamination of celestial bodies

In addition…


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A private company called Astrobotic has announced the intention to put an automatic rover on the Moon and visit the site of the first manned lunar landing - Apollo 11 (as seen from lunar orbit – right)

This particular kind of lunar tourism poses the important question of the preservation of historic sites on the Moon

NASA issued in 2012 some guidelines for lunar private companies, basically saying – do not come close to the lunar landing sites!

In 2013 there was a proposal in the US Congress calling for the establishment of national parks on each of the six Apollo landing sites. The bill was criticized as being against international law, and it was eventually abandoned

Should not this preservation effort be better made through UN/COPUOS?


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Holes have been discovered in the Moon’s surface, probably leading to huge underground caves (left). One of these holes could be the best location for a lunar hotel (artistic conception – right)

Lunar and asteroid mining - According to the OST, celestial bodies cannot

be appropriated by States. If there is no State jurisdiction, it means that there cannot be private property either - But then, how can we exploit natural resources

on the Moon and the other celestial bodies?

- One solution is given by the Moon Agreement: resources are ‘common heritage of mankind’ and exploitation will require an international regime

- Problem: the Moon Agreement has a very low acceptance in the international community


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Some US companies have anounced their intention to exploit the natural resources (valuable metals, water) that are present in certain asteroids and in the Moon

© The Economist


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In 2015, the US Congress passed the Commercial Space Launch Competitiviness Act (25 Nov, 2015). This law includes a very controversial provision:

It allows US citizens to appropriate the natural resour-ces that are extracted from celestial bodies such as the Moon or asteroids - The law makes clear that the USA is not claiming

any sovereignty or right of ownership over these celestial bodies and assures that international law will be respected during their “mining”

The International Institute of Space Law presented in December 2015 a position paper stating that this US law is a lawful interpretation of the OST, but it is not the only possible one

US law is better seen as a basis for further discussions

Colonizing the Moon


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Colonizing the Moon

What will it be like to live on the Moon? A new legal system applying only to lunar settlers

(Moon Law)?

Ownership rights for lunar colonists?

A lunar nationality?

Is it ethical to let people be born on the Moon? (We do not know what are the consequences…)

Establishment of areas of special scientific interest on the Moon and other celestial bodies (i.e. lunar and planetary “parks”, scientifically reserved areas...)?

Etc. etc


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