Articles in Orbit – How a Treaty Ensures That Outer Space Is Used for the Benefit of All
There is room for everything: crewed Soyuz rockets, the ISS, many satellites, the Hubble Space Telescope, and astronauts daring a spacewalk. Outer space has been a huge sphere of activity. For over 50 years, whatever goes on there has been regulated by the Outer Space Treaty. So what does it actually say, how did it come about, and how up-to-date is it? Petra Görlich asked these and other questions to jurist Marcus Schladebach.
Prof. Schladebach, where does your interest in outer space come from?
Well, my father sparked my interest in it. He was an astronomy teacher and showed me at an early age how fascinating celestial objects and phenomena are.
When did outer space legislation first come about?
Actually, there are two birth dates. One is set in the National Socialist context. On 4 October 1942, Wernher von Braun, a pioneer in space flight, successfully launched the first V-2 rocket from the Army Research Center in Penemünde. It flew about 85 kilometers high, thus grazing the front yard of outer space. This led to the first deliberations on introducing state regulations on outer space. Later, when the Russians launched their first artificial earth satellite Sputnik 1 into orbit in 1957 and the Americans reacted by launching their artificial earth satellite Explorer 1 in February 1958, the need for such regulation became even stronger. During the ensuing space race, the United Nations Committee on the Peaceful Uses of Outer Space was established in 1959. From then on, it was not only technical matters that were studied, but also legal ones.
Years later the Outer Space Treaty went into effect.
Yes, it was signed in London, Moscow, and Washington and remains the main legal basis for outer space legislation. It has been ratified by 98 states and signed by 27. By the way, it went into effect relatively late in Germany, in 1971.
What are the greatest benefits of the Treaty?
The greatest benefit is that it put into writing excellent fundamental decisions on the exploration and utilization of outer space, which have proven over the past decades to be very wise. Another positive feature is its forward-looking design, in that it rules fields that became relevant only much later. For instance, Article 6 includes private aerospace companies.
What do we actually mean by “outer space”?
There is no legal definition of it. The Outer Space Treaty has just one paragraph on the status of outer space. According to it, outer space is not under the jurisdiction of any state – just like the high seas, the deep sea, and the Antarctic. It belongs to all states, including those not engaging in space travel.
Where does outer space begin, and where does it end?
From a legal perspective, nobody has ventured a guess as to where outer space ends. Where it begins, though, is a disputed issue between air traffic and outer space legislation. This line is important, since it defines the legal limit of national legislation.
Where do you personally define this limit?
My position is that outer space begins at 100 kilometers, and air space ends at 83 kilometers. Due to aerodynamics, i.e. air buoyancy, aircrafts cannot fly higher than 83 kilometers. In space flight, however, space vehicles need centrifugal force to orbit the earth. Scientific evidence shows this to be possible only at an altitude of 100 kilometers. A vehicle flying at a lower altitude would be pulled by the – then lower – gravity of the earth. So I allow for an intermediate layer of 17 kilometers.
And what legal status applies here?
That depends. If the vehicle is on a vertical trajectory heading for outer space, national space legislation applies. For a vehicle on a horizontal trajectory, independent of the airspace and thus the territory of a state, international outer space legislation applies.
You are not alone in this opinion …
There are similar positions. They build on the fundamentals of the much older Law of the Sea, which uses the concept of horizontal sovereignty. The further away from the coast you get, the lower the sovereignty of the coastal state. If you take this picture and fold it up, so to speak, you get a legally justifiable zone. The further away from my own territory I fly into air space and outer space, the lower the sovereignty of my state. The Law of the Sea also has an interesting intermediate layer: the exclusive economic zone (EEZ). It is neither part of the coastal state nor the high seas.
Let us come back to the Outer Space Treaty. It even includes environmental protection measures. Does it go far enough?
No, even though it was progressive at the time to include this aspect in an international treaty. The text states, among other things, that contamination in outer space has to be avoided.
There is a lot of debris in outer space. Why is there no legal obligation to remove it?
The major space-faring nations stress that no incident has happened yet, so there is no urgent need to take action. Besides, the related financial issues are very complex. There are projects like the Clean Space One cleanup satellite developed in Lausanne. Switzerland is planning to use it to remove its own debris, but refuses to make the patent available to other countries. Another idea is to blow space debris into pieces. In my opinion, this cannot be a solution, as it would only reduce particle size. Yet another idea is to shoot debris into a higher orbit, so their fall would affect people who live much later. This is not what I would call acting responsibly.
The Outer Space Treaty has ensured that there is no military use of outer space. How sure can we be that it will remain like this?
Here we have to differentiate: While a militarization ban applies to the moon and the other celestial bodies, military personnel are allowed to research there. In open space it is prohibited to put nuclear weapons or other means of mass destruction into orbit. However, the ban does not apply to other kinds of weapons. To a certain extent, this regulatory gap has been filled by arms control agreements with limited claim.
Speaking of the moon, experts are already considering using it once the earth has run out of resources. Has this field been legally regulated yet?
In 1969, when the first human walked on the moon, it was clear that a legal regime for the moon was needed. The Moon Treaty was ultimately signed by several countries in 1984 and was later ratified by some of them. Today, however, it is deemed to have failed, given that it is very difficult to implement. Article 11, which regulates the extraction of natural resources, is a very good example indeed. Problems result from the special status of the moon as a “common heritage of mankind”. As things stand now, this means that if a state extracted natural resources, it would have to have them administered through a fund to make sure all other countries benefitted as well. Most countries reject this. Nevertheless, I’m seeing a kind of renaissance. One thing is clear: Somewhere along the line, people on Earth need to be supplied with raw materials and resources from other celestial bodies. Our resources are limited, and the moon is an alternative. That is why researchers in international law are discussing ways to modernize the moon regime, that is, the distribution mechanism, and to make it more acceptable. The tendency is to return to the original terminology and modify it wisely.
Let’s leave the earth’s satellite and look at the problem of possible accidents in outer space. What does the Open Space Treaty regulate, and what does it not?
In the case of an accident of a space vehicle involving imminent danger for its occupants, the Open Space Treaty obliges other states to render assistance. This is an expression of the humanist rationale of space legislation and, in my opinion, a matter of course. Space travelers are considered “messengers of humanity”, so their rescue should be a task of the entire world community. However, active assistance requires space vehicles of other states to be around and prepared to help. This will rarely be the case. The Open Space Treaty does not include a legal obligation to launch a dedicated mission for the rescue of space travelers. Apart from that, such mission would probably not be able to be accomplished in an extremely short time frame.
When the Treaty was signed, the International Space Station ISS was unthinkable. To what extent are its limits now becoming visible?
I would not see it as a defect that the Open Space Treaty signed in 1967 does not provide for joint space stations. After the fall of the Iron Curtain, Presidents Clinton and Yeltsin proposed combining the vast experience gathered with their space labs Skylab and Mir in a joint space station. Initially, it was to be named “Alpha” but ended up just being called “International Space Station (ISS)”. In my opinion, the cooperation between ISS partners of the US, Russia, ESA (European Space Agency, including Germany), Japan, and Canada is gratifying proof of the constructive way in which states with often very different views on Earth are able to cooperate in outer space.
In 1998, the governments involved in the space station project signed a dedicated document, the Space Station Intergovernmental Agreement. It regulates, among other things, the legal responsibilities for the existing modules, the protection of intellectual property, and the legal regime in criminal matters. Could you tell us a bit more, especially about the last point?
You are referring to the legal problem of which state has jurisdiction and, thus, control over the various ISS modules. According to the ISS Agreement, responsibility for each module lies with the partner who provides and operates it. In the case of the ESA-built module “Columbus”, things are a bit more complex. ESA is not a state, but rather an intergovernmental organization of several European countries. In the case of a criminal offense in connection with the ESA module, the jurisdiction of the home country of the offending astronaut applies. However, I would like to make it very clear that the idea of criminal offenses at the ISS is a completely unrealistic scenario. All astronauts aboard the ISS underwent tremendously difficult training, so any intention to commit a crime on board the ISS can be ruled out.
To this day, no agreement has specified on what basis an encounter between astronauts and intelligent beings in space could take place. Suggestions on the table include Immanuel Kant’s categorical imperative, the Charter of the United Nations, and the Bible’s Ten Commandments. What are you advocating for?
I have put forward ideas on what the correct criteria could be in a number of papers. For me, the basic requirements of the UN Charter are most appropriate. They are oriented toward the imperatives of peacefulness, a prohibition on the use of force, and cooperation; are universally consented to; and, in my opinion, are a suitable set of guidelines for potential encounters with other intelligent beings.
But the UN Charter is based on our way of thinking on Earth. Could this be a problem?
In our search for suitable criteria, we should, in my opinion, really bear in mind that these are the behavioral and moral norms laid down in UN regulations that reflect our motivation on Earth. Perhaps we cannot yet fully understand whether and, if so, which other guiding principles are conceivable and could be central for extraterrestrial beings. Therefore, advocating for the application of principles applied on Earth, like those of the UN, could mean that we might be accused of taking a superior, even arrogant position.
One last question: How optimistic are you that Germany – like other states – will soon have its own space legislation?
The objective to create such legislation is laid down in the coalition agreement of the current government. The numerous aerospace companies in Germany have long felt the need for more legal and investment certainty. I myself would like to provide scientific backing for this process. We need the law very urgently. It’s high time.
Outer space legislation is based on international law. The challenge jurists are facing today is to develop it further, not least because there are plans for the private exploration of the moon and of asteroids. The intention of private aerospace companies to transport travelers into outer space adds to this urgency. As of now, several agreements and treaties contain regulations on the use of space, among them five major international agreements and five UN resolutions specifying important applicable principles.
Prof. Dr. Marcus Schladebach studied law at Humboldt-Universität zu Berlin where he also earned his doctorate. He habilitated at the University Augsburg and has held the chair of Public Law, Media Law, and Didactics of Law at the University Potsdam since 2017.
Text: Petra Görlich
Translation: Monika Wilke
Published online by: Alina Grünky
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