Formal training in astronomy educates future scientists in the law - physical law. Now, however, we no longer just look at outer space but also travel there. So it's no surprise to discover that the other kind ot law - the law that defines how human beings agree to deal with each other - will be commanding the attention of astronomers in years to come. There are some, of course, who figure that outer space may be the best place to put those who practice law, but the truth is that as soon as anybody or anything goes into space, our capacity to litigate moves to higher ground. Dr. Louis Winkler, an astronomer on the faculty of Penn State for the last 25 years, explores here, the "laws" that are already on the books as far as space exploration is concerned. These laws are actually treaties, and Dr. Winkler explains who formulated them, who recognizes them, and how astronomy may be affected by them. He has won Honorable Mentions in four previous Hughes Aircraft Writing contests with articles on a variety of topics, usually with an historical theme. Here his eye is on the future and on the legal circles in which our spacecraft will have to travel.
These laws will have an impact on us, but it is important to keep in mind that we must still bow to higher authority: The cosmic vehicle code. One hundred and eight-six thousand miles per second isn't just a good idea; it's the law.
In 1967, the Committee on Peaceful Uses of Outer Space (COPUOS) at the United Nations developed the first legal instrument constraining the conduct of astronomy. This law only came into being ten years after the Soviet Union had placed the first artificial satellite in orbit about earth. In the following twelve years four additional laws emerged which were clarifications or elaborations of articles of the first law. All five laws are directed at conducting space astronomy in an orderly way and were developed with earth satellites and exploration of the solar system in mind. All the laws express the hope of the world: To conduct space activity with a spirit of international cooperation for the benefit of all and to use outer space for peaceful purposes.
The official titles of the laws of Outer Space appear below with abbreviated titles and their year of adoption at the United Nations in parentheses:
Treaty on Principles Governing the Activities of States in the Exploration of Outer Space,
Including the Moon and Other Celestial Bodies (Outer Space Treaty of 1967)
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects
Launched into Outer Space (Rescue and Return Agreement of 1968)
Convention on International Liability for Damage Caused by Space Objects (Liability
Convention of 1972)
Convention on Registration of Objects Launched into Outer Space (Registration Convention
of 1975)
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement of 1979)
The only other legal instruments widely adopted at the United Nations that affect the conduct of space astronomy are those involving military use of outer space:
Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under
Water (Test Ban Treaty of 1963)
Convention on the Prohibition of Military or any other Hostile use of Environmental Modification Techniques (ENMOD Convention of 1977)
These seven international instruments officially recognize the awesome ramifications of our ability to explore, use, and modify the solar system.
Just how these laws specifically relate to conduct of space astronomy will be explained with a few examples of specific missions. While the examples are fictitious and general, so that articles from the laws can be efficiently discussed, the examples are also similar to previous or planned missions by nations with space programs. Many of the articles of the laws pertain to the legal organization of the United Nations, but we shall primarily concern ourselves with articles directly affecting astronomical activity.
Our first example of a mission in space astronomy concerns an observatory orbiting about earth. The observatory is presumed to carry a telescope designed to observe deep space at wavelengths not possible from the surface of earth.
Just getting the observatory to the launching pad requires paper work to satisfy the Registration Convention of 1975. According to Article 11 of this agreement, a member State of the United Nations which launches objects into outer space, (called a launching State) must maintain its own register of launch and must register the object with the Secretary-General of the United Nations. According to Article IV, the information to be recorded with the Secretary- General includes the time of launch, orbital parameters of the satellite, and the nature of the satellite's mission. If the orbit has a small perigee and the satellite decays into earth's atmosphere, the Secretary-General is to be informed when the satellite is no longer in orbit. In this way sufficient information is available to determine where the satellite is and to conduct orderly space activity.
Placing the observatory into the desired orbit involves rights and responsibilities provided by the Outer Space Treaty of 1967. According to Article I, all States are to have free access to outer space. This freedom only applies, however, if the function of the satellite does not interfere with any other State's space objects or astronauts. If interference is suspected or actually occurs, the parties involved are obliged by Article IX to go into consultation to resolve the matter. Once the observatory is in orbit, then Article I works in favor of the launching State and protects it from interference.
Interference can take on many different forms. One example could be radiation emitted by one space object which causes another's equipment to malfunction. Another example could be the intentional destruction of a satellite in response to spying by that satellite. With satellites, the age-old activity of making observations of celestial objects has been brought into the political arena because telescopes used for astronomical observations can also be used for spying. Indeed, there is public speculation that the U.S.'s KH12 reconnaissance satellite and the Hubble Space Telescope are similar in capabilities.
Once observations have been made with the orbiting telescope, the launching State is encouraged through both the Outer Space Treaty of 1967 and Moon Agreement of 1979 to share observations and findings with the rest of the world. Sharing, in this instance, naturally occurs since space astronomy is often a multi-national effort and results are published widely. The idea of practical benefit from astronomical research, however, is not particularly relevant since it seldom occurs quickly.
What has been highlighted so far concerns activities that go according to plan. Now let us see what happens when things do not go according to plan. Events of mishap are inevitable in the complex activity of space exploration and uses, and mishaps have been anticipated in the space laws.
Let us assume an observatory crashes and causes damage to property and loss of life. The Liability Convention of 1972 has 28 comprehensive articles which help establish liability of the launching State and procedures for filing and settling claims. Complexities often arise here because space activity is multi-national. If large-scale damage or loss of life occurs, as in a crash involving a built-up area, then according to Article XXI, the launching State is also obliged to provide assistance with restoring living conditions if requested by the affected party. According to Article VII, however, loss of life of a State's own nationals is not covered by this law.
Now, all that remains to be settled regarding our presumed crash is the disposition of the debris of the space object. According to Article 5 of the Rescue and Return Agreement of 1968, the State on whose territory the satellite has crashed is obliged to search for and return the debris to the launching State. In turn, the State doing the recovery is entitled to bill the launching State for recovery costs.
The most noteworthy application of the Rescue and Return Agreement of 1968 occurred in 1978, when the Soviet Cosmos 954 satellite crashed into the Northwest Territories of Canada. The satellite carried a nuclear power reactor which was scattered over a large area. In this instance, the Canadians declined an offer by the Soviet Union to assist in the recovery, but accepted a U.S. team's help. The Canadians billed the Soviet Union for recovery expenses, but the Soviets only paid half of the bill.
As a second example of a mission, let us consider the direct exploration of the surface of Mars with astronauts, who would conduct their activities much in the way the U.S. Apollo 11 team did in 1969 and bring back samples of soil and rocks. Naturally, this mission has at least the complexity of the orbiting observatory mission. It involves registration, free access, non-interference, and liabilities. In addition to the legal concerns raised by the orbiting observatory, the Mars mission also involves articles that pertain to the Moon Agreement of 1979. Specifically developed for the exploration of the moon, this agreement also applies to all other celestial bodies except earth.
When new worlds are explored, the Secretary-General is to be informed in more detail than required by the Registration Convention of 1975. According to Article 5 of the Moon Agreement of 1979, the Secretary-General is to be informed of scientific findings on a periodic basis, especially when any indication of organic life is present. Observations and experiments performed by U.S. Viking robots of 1976 indicate that there is little likelihood of any organic life being found.
Exploration of the surface of Mars has both freedoms and restraints associated with it. According to Article 6, samples may be collected and removed, and sharing of the samples with the international community is encouraged. According to Article 8, any portion of the surface or subsurface may be explored. But according to Article 7, exploration must not disrupt the equilibrium of the Martian environment or contaminate it. On a larger scale of disruption or contamination, the ENMOD Convention of 1977 prohibits any modification of the composition, structure, or dynamics of the planet. Also according to Article 7, precautions are to be taken to prevent Martian samples from posing a hazard to inhabitants of earth and their environment.
Some aspects of the space laws are far reaching. Perhaps the most noteworthy in this category is Article II of the Outer Space Treaty of 1967 and its developed version in Article 11 of the Moon Agreement of 1979. These prohibit celestial bodies from being subject to appropriation by claim of sovereignty. This is a deviation from historical practice: Explorers of the earth discovered new lands and claimed them for their sponsoring sovereign. Astronauts are allowed to plant a flag in Martian soil, but it will represent a celebration of first arrival rather than sovereignty.
As with the orbiting observatory, let us now assume that something does not go according to plan. Let us assume that the shuttle the astronauts are using to complete the last leg of their journey malfunctions and that they are stranded in orbit about earth. According to Article 1 of the Rescue and Return Agreement of 1968, the Secretary-General is to be informed of the predicament. Then, according to Article 2 and 3, steps should be taken to rescue the astronauts, either by other astronauts already in orbit with a rescue capability or with a new vehicle launched specifically for the purposes of rescue. Then, according to Article 4, rescued astronauts are to be promptly returned. It seems that COPUOS has envisioned the possibility of space crews being detained for interrogation regarding the possibility of, say, extra-curricular spy activity.
Indeed, the need for rescue operation is sufficiently great that the U.S. and Soviet Union performed a joint exercise to transfer an astronaut from one satellite in orbit to another one. In 1975, a rendezvous-docking maneuver was executed with Apollo and Soyuz space vehicles: This was not only a technical success but also an international cooperative success.
It is interesting to note that the spirit of the Rescue and Return Agreement of 1968 is simultaneously a continuation of an ancient tradition in one area as well as an innovative one in another area. The rescue of maritime personnel in distress is a humanitarian gesture extended since ancient times, but the idea of returning stranded craft or debris is new.
While a number of substantial aspects of space law were brought to bear on the two examples we've considered, there are some additional interesting legal aspects of the exploration of outer space. For example, thermonuclear detonation in the vicinity of a planet is an intriguing problem. Let us say the mission here is to determine the extent and nature of the planet's magnetic field by generating artificial aurorae. Unfortunately, the proposed experiment violates all seven instruments in spirit or to the letter of the law. The Test Ban Treaty of 1963 was specifically developed to prohibit this type of experiment and keep outer space free of radioactivity. The ENMOD Convention of 1977 similarly prohibits the experiment, but in a broader sense. It indicates that the planet's atmosphere and surface are not to be modified. Also, Article IV of the Outer Space Treaty of 1967 and Article 2 of the Moon Agreement of 1979 prohibits the testing of any type of nuclear weapon. While our astrophysical experiment is not exactly a military weapon, it would almost be certainly be viewed by many States as threatening one of the most cherished concepts of the space laws, the peaceful use of outer space. This concept is even embodied in the last four letters of the acronym COPUOS, which is the group that formulates space law.
A geosynchronous satellite intended for use as an astronomical observatory is another interesting case study. Nothing is different from the case discussed earlier, except that the satellite has a fixed altitude of 35,900 kilometers and is positioned over a country which lies on earth's equator. If this were a real situation, the equatorial country over which the satellite hovers, would claim sovereignty over the satellite, since this country and seven others lying on the equator ratified the Bogot Declaration of 1976. In the view of these States, geosynchronous satellites exist because of earth's gravity, and therefore these satellites are not located in outer space. That, they say, makes them subject to their sovereign claim. Since some of the equatorial countries did not ratify the Outer Space Treaty of 1967 or the Moon Agreement of 1979, these countries would further argue that they are not bound by any space laws prohibiting claims of sovereignty. The eight countries involved are Colombia, Brazil, Zaire, Indonesia, Kenya, Congo, Uganda, and Ecuador.
While the stand of the members of the Bogot Declaration of 1976 may seem absurd to members of technologically-advanced countries, the stand is legally sound. That is because the term "outer space" has not been delimited or defined. The claim of sovereignty justifies levying parking fees for the stationary satellite. This, of course, would be financially beneficial to the developing countries involved. The fact that earth's gravity theoretically extends to infinity and puts a large fraction of the universe under their sovereign claim, doesn't seem to affect their stand. According to their definition of sovereignty, that portion of the universe they control continuously changes due to motions of earth and the rest of the universe!
Although the term "outer space" is freely used in seven legal instruments mentioned above, it has no widely accepted delineation or definition. Although many complicated concepts have been considered, the most widely accepted is the simple argument that outer space begins at 100 kilometers altitude. This is reasonable, for air space ends at 100 kilometers according to the International Aeronautical Federation. This delineation, however, raises other questions. For example, laws of outer space or air space apply to shuttles, which pass through air space during launch and re-entry, or to satellite with perigees less than 100 kilometers?
Finally, let us consider the legal aspects of the discovery of a meteorite on the surface of earth. According to the Moon Agreement of 1979 it would seem that we should inform the Secretary-General about the discovery, the nature of the object, and plans to share it with the international community. But no! There is a special dispensation in Article 1 of the Moon Agreement of 1979 freeing us from the paperwork, because the laws do not pertain to objects that reach earth by natural means.
Not many of the 154 member States of the U.N. have accepted these high-minded space laws. The law which has been most widely accepted is the Outer Space Treaty of 1967, which has been ratified by about 50 percent of the States. The law which affects space astronomy the most, the Moon Agreement of 1979, has been ratified by the fewest states - only 7 percent and of this, only two of the States - France and India - have national space programs. Perhaps the developing countries are unwilling to adopt the space laws so they can be free to enter minority agreements like the Bogot Declaration of 1976. Perhaps the advanced countries are unwilling to adopt the Moon Agreement of 1979 so they can be free to explore new worlds and decide to what extent they will share the benefits, rather than obliged to conform to regulations determined by COPUOS.
While a number of additional space laws are currently being developed in COPUOS, they pertain to satellites designed for civilian use, space shuttles, and space stations. Consequently, the seven international instruments discussed here will be the ones that will primarily affect the conduct of space astronomy for some time to come.
The conduct of astronomy is no longer free from legal encumbrances. If an object is launched into outer space, legal counsel is necessary.
The United Nations documentation listed below is in chronological order and employs the following abbreviations: International Legal Materials (ILM), International Telecommunications Union (ITU), United Nations General Assembly (UNGA), United Nations Treaty Series (UNTS), and World Administrative Radio Conference (WARC)
Test Ban Treaty of 1963 (UNTS Vol. 480, p. 43: ILM Vol. II, p. 1).
Outer Space Treaty of 1967 (UNTS Vol. 610, p. 205: ILM Vol. VI, p. 386).
Rescue and Return Agreement of 1968 (UNTS Vol. 672, p. 119; ILM Vol. VII, p. 149).
Liability Convention of 1972 (UNGA Res. 2777 (XXIX) Annex, Nov. 29, 1971; ILM Vol. XI, p. I).
Registration Convention of 1975 (UNGA Res. 3235 (XXIX) Annex, Nov. 12, 1974; ILM Vol. XV, p. 43).
Bogot Declaration of 1976 (ITU Doc. WARC-BS (1977) 81-E, Jan. 17, 1977).
ENMOD Convention of 1978 (UNGA Res. 31/72, Dec. 10, 1976; ILM Vol. XVI, p. 88).
Moon Agreement of 1979 (UNGA Res. 34/68 Annex, Dec. 5, 1979; ILM Vol. XVII, p. 1434).