Development and status of space law

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The first uses of outer space, beginning with the satellite launches by the Soviet Union and the United States in 1957/1958, prompted a swift response from the international community as regards developing space law. In order to make way for a coordinated and peaceful use of outer space, fundamental questions needed to be addressed, ranging from its legal status and access to forms of utilisation (no nuclear arms race in outer space). To this end, the United Nations General Assembly established a standing committee in 1959, which it tasked with drawing up a system of international laws for outer space.

Outer Space Treaty

The first international agreement was the Outer Space Treaty of 1967, which has been ratified by 112 states to date, including Germany, and remains in force. It lays down principles governing countries’ activities in outer space. According to these principles, outer space, including the moon and other celestial bodies, is not subject to national appropriation by claims of sovereignty (Article II). The Treaty provides for extensive freedom of scientific research and commercial use in outer space. However, this freedom is not limitless, but is instead to be pursued for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, since the exploration and use of outer space is the “province of all mankind” (common benefit clause, Article I). A further restriction on these freedoms is the peaceful use of outer space (Article IV). This applies without exception or qualification to the moon and other celestial bodies (i.e. no bases, weapons or military manoeuvres), but only partially to the rest of outer space (no nuclear weapons or other weapons of mass destruction).

The Outer Space Treaty also provides for liability for damage as a result of outer space activities (Article VII). Any state that launches or procures the launching of an object into outer space, or from whose territory or facility an object is launched, is, in principle, unconditionally liable for damage to persons or property that this object causes on earth, in air space or in outer space, if such damage is due to negligence (cf. the Liability Convention). Germany is working on a national outer space law, which will specify the internal criteria for monitoring and liability.

The Outer Space Treaty also contains provisions on avoiding the harmful contamination of outer space, though these have proven to be of little practical importance so far.

Supplementary treaties

The technical developments in space travel and the risks it involves have led to the elaboration of agreements aimed at supplementing and lending substance to the Outer Space Treaty. These include

• the Rescue Agreement of 1968 on lending assistance to astronauts in emergencies and the return of objects launched into outer space
• the Liability Convention of 1972 on guaranteeing adequate compensation for damage caused by outer space objects
• the Registration Convention of 1975 on facilitating the identification of objects launched into outer space
• the Moon Agreement of 1979 with special provisions governing the use of the moon and the possible exploitation of its natural resources. So far, only 18 countries have ratified this Agreement.

Sets of principles

To date, there has been no consensus among UN member states on whether, or to what extent, a legally binding framework is necessary for several issues related to the use of outer space. Initially, therefore, only non-legally binding sets of principles were drawn up; these were then adopted as UN resolutions. However, they are important for the interpretation of treaties and may serve as the basis for a future legal framework under international law. Major sets of principles are:

• Following the launch of the first civilian remote sensing satellite in 1972, some developing countries demanded a special regime in 1978. Remote sensing satellites can be used to gather information on mineral resources, weather and climate changes, and resource management. The Principles Relating to Remote Sensing of the Earth from Space that were finally adopted in a UN resolution in 1986 confirm the unrestricted right to remote sensing without prior consent by or notification to the country being observed. In return, the country subject to remote sensing has the right to access to the data on a non-discriminatory basis and at a reasonable cost.
• A set of principles aimed at protecting the environment was similarly adopted in a UN resolution in 1992. It concerns the use of nuclear power sources (NPS) in outer space and above all lays down rules on security requirements, avoidance and notification obligations (see below). The principles were drawn up largely as a result of the crash of the Soviet satellite Cosmos 954 in Canada in 1978.
• The set of principles laid down in the Space Benefits Resolution deals with international cooperation in outer space. Adopted by the United Nations General Assembly in 1996 after nearly ten years of negotiations, it emphasises a country’s freedom to use outer space and choose its cooperation partners. There is no provision for the compulsory transfer of resources and technology as demanded for some time by developing countries. The set of principles does, however, provide for the inclusion of developing countries in the use of outer space and for them to have a share in the benefits.
• In 2007, the General Assembly adopted a resolution approving the Space Debris Mitigation Guidelines, designed to counter the danger posed to space vehicles by space debris. The aim is to remove or reduce the risk of collisions in outer space and crashes to Earth (e.g. Cosmos 954) caused by the growing number of space objects that have broken down or broken apart (e.g. satellites, missile components). These could seriously hamper space travel and astronomical research in the future. The principles adopted focus on reducing the production of space debris by space missions and broken space objects, as well as on procedures for the disposal of decommissioned space vehicles in regions with operative vehicles. In particular, the goal is to minimise the danger of breakage during and after a mission, to reduce the likelihood of accidental collisions, prevent deliberate damage and limit the permanent presence of space objects in zones close to the earth after the end of a mission.
• In 2020, the UN General Assembly adopted a resolution on responsible behaviours to reduce space threats. The resolution aims to create greater security, predictability and trust in space. It allows irresponsible behaviour to be clearly identified and condemned. The resolution promotes international dialogue on threats and risks to security in space and calls on states to identify such threats and risks and propose measures to tackle them.
• In October 2021, the UN General Assembly adopted the “Space2030 Agenda: space as a driver of sustainable development”. In order to achieve the goals of the 2030 Agenda for Sustainable Development and the Paris Agreement, the Space2030 Agenda created a programme for the usage of data, technologies, innovation and other instruments of space research for this purpose. Cooperation with states, NGOs and private-sector companies is being continued apace with a view to finding solutions for sustainable development deriving from space research. The growing number of users of space underlines the importance of international cooperation. The resolution is also intended to guarantee that space research benefits all nations, irrespective of their level of development.

The United Nations Committee on the Peaceful Uses of Outer Space (COPUOS)

The instrument for developing space law is the UN (standing) Committee on the Peaceful Uses of Outer Space (COPUOS) set up in 1959. It consists of a main committee and two subcommittees, the Scientific and Technical Subcommittee and the Legal Subcommittee. All three committees meet annually.

All treaties and sets of principles to date have been drawn up and negotiated in the Legal Subcommittee, the main forum for developing space law.

COPUOS makes its decisions on the basis of consensus. This ensures that developing countries, which currently account for the majority of the Committee’s member states, cannot outvote the minority of states engaged in space travel, but also results in lengthy negotiations if the political pressure to reach agreement is not strong enough. Topics currently being discussed by the Legal Subcommittee include the procedure used by states and international organisations for registering space objects, sustainable use of outer space, space debris and legal issues relating to space mining.

Germany’s contribution

Germany is regularly represented at international conferences on space travel: the Federal Government participates in European Space Agency (ESA) conferences and communicates the German position with regard to space law at COPUOS conferences. It does this in close partnership and coordination with the German Aerospace Center (DLR), which has been assigned the task of protecting German space travel interests, including at international level, by the federal ministries responsible for this topic (alongside the Federal Foreign Office, which is the lead ministry for international law, this primarily means the Federal Ministry for Economic Affairs and Climate Action, which is responsible for space policy).