What would astronomers who laid the foundations of our knowledge of the universe have
thought if they had been asked what law was applicable to their space scientific research?
The question arises today for two main reasons:
the use of observation facilities (telescopes like Hubble) carried on board space objects; here it is a question of access to and use of outer space for the purpose of astronomical research;
international cooperation in space exploration and in the exploitation of its results; as we shall see, such cooperation must be carried out for the benefit of all mankind. For the time being, space activities are still the prerogative of the space powers. How can their benefits be shared? There is also the question that the pursuit of astronomical research on Earth can possibly be hampered by activities in space.
The law governing space and space activities was born with the first launch of a man
made satellite on 4 October 1957 (Spoutnik 1). It was developed at first under the auspices
of the United Nations, through the Committee on the Peaceful Uses of Outer Space
- UNCOPUOS - (officially established in 1959) and its two sub-committees, one scientific and
one legal. The UN General Assembly adopted a series of Resolutions on the subject, in
particular Resolution 1962 (XVIII) of 13 December 1963, followed by the Declaration of Legal
Principles Governing the Activities of States in the Exploration and Use of Outer Space.
This Declaration was the forerunner of the Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, including the Moon and Other Celestial
Bodies (OST), which was adopted on 19 December 1966 and entered into force on 10 October
1967. (Next year will be its 30th anniversary.) This treaty, which is in force for 91
States, is the foundation stone of "space law", laying down the basic principles applying to
all human activity in space. It was followed by a series of legal instruments, all of which
were also adopted within the framework of the United Nations: the Agreement on the Rescue of
Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (3
December 1968); the Convention on International Liability for Damage Caused by Space Objects
(1 September 1972); the Convention on the Registration of Objects Launched into Outer Space
(15 September 1976); the Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies. Five treaties to which we have to add the Test Ban Treaty of 1963, plus
Principles adopted by the General Assembly concerning: direct broadcasting by satellite -
observation of the Earth's resources - and the use of nuclear power sources in space. Debate
is still continuing on the question of the "boundary" between air space and outer space and
on the definition of outer space, with reference to the opposing legal principles - i.e.
freedom versus sovereignty - by which they are governed, as well as on the concept of
activities conducted for the benefit of all mankind (Article 1 of the Treaty, on which a
Declaration has just been adopted and should be approved by a Resolution of the UN General
Assembly in December). There is also continuing debate on space debris (confined for the
moment to the Scientific and Technical Sub-Committee).
So much for UN law in the strict sense. In the broader sense, we have also to consider
contributions from other branches of international law, in particular the law on radio
frequencies established under the aegis of the ITU (Convention and Rules on radio
communications), without which satellites could not be used (to note that radio frequencies
have been declared limited natural resources). Alongside this body of international public
law developed in the framework of international intergovernmental organizations
(UNO-ITU-UNESCO), there are also legal texts concerning disarmament: I have already
mentioned the Treaty which entered into force on 10 October 1963, banning the testing of
nuclear weapons in the atmosphere, in space and under water; the ENMOD Convention of 1977 on
the Prohibition of Military or Any Other Hostile Use of Environmental Modification
Techniques, etc.
Multilateral and bilateral cooperation agreements (MOUs), particularly between space
powers, today constitute one of the main foundations of law of space activities, noteworthy
examples being the Intergovernmental Agreement (IGA) on the international space station (the
first draft, signed in September 1988, is to be replaced by a much revised text following
the admission of Russia to the partnership), the MOUs between NASA, ESA and the RKA and the
MOUs concerning the Hubble space telescope, ISEE, IUE, Cassini etc.:
"Charters" between national or international agencies that are neither treaties nor
MOUs, an example being the international cooperation arrangements for the encounter with
Halley's comet;
recommendations by scientific bodies such as COSPAR or the International Council of
Scientific Unions or International Astronomical Union (IAU).
Space astronomy is a key element of space activities and was the first of these. This is clear from the very first lines of the Treaty of 1967 which place special emphasis on the interests of the international scientific community - a term used widely in this Treaty and in the Agreement concerning the Moon - reflecting one of the primary concerns that gave rise to the creation of COPUOS, the other such concern peaceful uses.
All the provisions of the Treaty of 1967 and of the various ensuing Agreements and
Conventions do of course apply to scientific activities carried out in space and hence to
astronomy. I will be dealing here with those provisions more specifically concerned with
space astronomy. It goes without saying that scientific satellites have to comply in the
same way as other satellites with the provisions of the Convention on International
Liability, the Convention on Registration, the ITU Convention, and this also goes for the
principles governing the use of NPS and those being formulated on space debris.
These are the principles governing the legal regime applying to space, to space objects
and to the activities in outer space. I will be referring to the Treaty on Outer Space and
the Agreement on Activities on the Moon.
exploration and use to be carried out for the benefit and in the interests of all countries, (this is a major component of this legal regime and is now to be covered by the next Declaration drawn up by COPUOS) (nothing more on scientific investigation).
outer space is not subject to national appropriation (important principle in relation to the utilization and extension into space of national laws).
Worth mentioning is the Bogota Declaration of 1976 in which eight equatorial countries laid
claim to the geostationary orbit as an integral part of their territory.
activities to be pursued in accordance with international law;
use for peaceful purposes (the use of military personnel for scientific research is not prohibited).
States parties have international responsibility, even if activities are performed by private entities (such as a scientific entity).
Should be seen in conjunction with the Convention on liability, which lays down two sets of provisions depending on whether damage is caused in space or on the surface of the earth, and with the Convention on registration.
principle of cooperation and mutual assistance - corresponding interests;
conduct studies and undertake exploration of outer space in a manner that avoids contamination;
avoid potentially harmful interference - international consultations - debate on space debris,
Article XI (requirement to inform, particularly the international scientific community)
promote international cooperation;
inform the public and the international scientific community, here again specific mention of the latter
moon base open to representatives of other Parties on the basis of reciprocity.
Agreement activities on the moon (came into force on 12 July 1984) - the moon a unique site for astronomy
Agreement repeats much of the content of the OST, with reference for instance to the
international scientific community (see Annex), but with only 8 States party to it.
Article 4.1 - The exploration and use of the moon to be the province of all mankind
carried out for the benefit and in the interests of all countries;
Article 4.2 - The principle of cooperation;
Article 5.1 - Information on results, including scientific results;
Articles 5.3 and 6.3 - Exchange of scientific personnel
Article 7.3 - Areas of the moon having special scientific interest
Articles 11.4 and 6
The launch of radioactive materials (nuclear power sources, NPS) into space is
attracting the attention of environmentalist groups. Radioactive material is needed as a
power source. Nuclear reactions and RTGs have been flown so far. NPS principles.
Responsibility lies with the launch operator and the launch centre (see CSG - Ariane). In
the USA approval of a launch involving radioactive material is given by the President and
under the authority of the Atomic Energy Authority.
Preservation of the environment is an important issue. Mining on the moon; industrial
activities on the Moon might make it impossible to study the Moon or pursue science from the
Moon (the "far"/far side of the Moon should be preserved for scientific use). The idea was
presented at the IISL Symposiums in Jerusalem (1994) and Oslo (1995) to preserve a lunar
zone for SETI purposes (the benefit of mankind idea). But setting up an observatory there
would be extraordinarily expensive.
Radioastronomy observation from the Earth is beginning to be restricted by pollution
caused by various human activities. On the Earth a number of projects are taking shape
which may make astronomical observation impossible from the Earth (such as luminous
advertising in the night sky - the star of tolerance proposal, submitted to UNESCO with
the aim of encouraging tolerance in mankind). Project of constellations of satellites like
Iridium or Teledesic project of 800 satellites are sources of major concern. A Science
Journal has even raise the question "Are we killing astronomy?" (New Scientist, 24 August
1996).
IPR: priority for the Principal Investigator; circulation of information, workshops
(cf. MO Us with NASA, with Russia); see the Hubble Space Telescope MOU with NASA
Astronomy benefits from various general provisions of outer space law (through reference to the international scientific community) but no special provision has been made in its favour. Astronomy is therefore coming into competition with, in particular, other space activities, and especially the growing commercial activities, for use of frequencies etc.
Why not devise a set of principles based on Article I of the OST to reinforce the "benefit of mankind" concept by safeguarding the scientific interests of space astronomy, for instance by an agreement that protects the electromagnetic spectrum, a combined effort between UN, ITU and International Astronomical Union?