Space and Law

October 4th, 1957. Baikonur Cosmodrome. Sputnik 1 – World’s first artificial satellite is launched into space by the Soviet Union. And, the Cold War expands to space. The space race has contributed to momentous technological marvels that made humankind stare in awe. Ranging from intercontinental ballistic missiles to landing humans on the Moon. Witnessing the glory of technological advancements in the fields of spaceflight, missiles, and nuclear arms; the need for precaution to prevent ghastly harms became vehement. Subsequently, Space Laws were born. In due course, bodies like UNOOSA (United Nations Office for Outer Space Affairs) and COPUOS (United Nations Committee on the Peaceful Uses of Outer Space) were set up to ensure a global order by the establishment of international space laws.

To govern the conduct of state in space, six international treaties have been negotiated:

1. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water (colloquially referred to as the Partial Test Ban Treaty) 

2. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (colloquially referred to as the Outer Space Treaty) 

3. Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space (colloquially referred to as the Rescue Agreement) 

4. Convention on International Liability for Damage Caused by Space Objects (colloquially referred to as the Liability Convention) 

5. Convention on Registration of Objects Launched into Outer Space (colloquially referred to as the Registration Convention) 

6. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (colloquially referred to as the Moon Treaty) 

This blog is aimed at discussing one of the quintessential constituents of space law - Launching State.

The utility of space as a frontier was a significantly debated topic in discussions about space ethics. It gained eminence during the period of the Space Race between the USSR and the US. In 1967, negotiated and drafted under the auspices of the UN, the Outer Space Treaty was opened for signature. Article VI of this multilateral treaty laid the basis for the concept of 'Launching State' stating - 

"States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions that force in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization."

Over time, the definition has been refined to facilitate the legal consequences if and when the need arises. The current version defines a Launching State as any State that “launches or procures the launching of an object into outer space”, and any State “from whose territory or facility an object is launched”. (to put it more accurately: any State party to the Outer Space Treaty of 1967 or the Liability Convention of 1972)

The concept of 'Launching State' helps in defining a legal course of action in case turmoil surfaces. Correspondingly to numerous legal definitions, this one also invites debate. Since the world is majorly functioning as a globalization-based economy, it makes it challenging to define responsibilities in the context. Even though it does try to define the liability holder irrespective of whether the launch is done by the government, an individual, or an organization, uncertainties do arise in some cases. For example, consider a space object (space object could refer to either the rocket or its payload) being funded by an entity (say, A), being developed and launched by another entity (say, B), which is to be operated by another independent entity (say, C). Unfortunately, due to some malfunction the object crashes and does harm to the earth. Who shall be put to blame in scenarios like these? Even though it looks evident, enigmas like these make 'Launching State' a more perplexing concept than it looks. 

The theory of launching state, its necessity, and its applications are extensive. However, it can be ephemerally summarized in the following points:

• The necessity of defining a 'launching state' can be justified by the need to interpret liability holder(s) who has/have to face legal consequences in case of mishaps or irresponsible, hazardous actions.

• Every space object has at least one launching state.

• In case any damage is done by a space object, its launching state(s) is/are liable for the legal consequences that follow.

• A state cannot back off and shed its status of being a launching state.

• The purpose of the concept of 'launching state' is to prompt states to remain cautious and regulate their national space activities and remain vigilant of potential consequences of joint launches.

When there is no law, there is no freedom. Or, as put by former US President Dwight D. Eisenhower, "The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law." Defining launching state does its job of establishing liability holders to ease legal procedures as and when the need arises. In this era of rapid modernization, with advancements leading to complexities such as military usage of outer space and space missions such as the establishment of the Lunar Gateway furnish sophisticated legal standpoints, making conversations on legal aspects relating to space ever-so-important. But then again,

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

-        Plato