Where does outer space begin from a legal perspective?
The first issue of the question is understanding why do we need to know the exact limit? That is a matter of jurisdiction. For example – the international space station is traveling at the altitude of above 300 kilometers . What countries legal rules apply to it?
The outer space treaty by the General Assembly of the United Nations in Article 1 declares the availability for space to all mankind so space does not belong to any particular state. However, it does not mention the altitude limit for outer space.
The first questions on this topic arose after the launch of Sputnik – the first man made satellite in 1957 by the Soviet Union. In that case general state practice proved that you can do absolutely nothing even if you want to for an object flying that high. Probably this formed the opinio juris on the matter.
Experts conclude that the lower end of space flight can be considered at 130 kilometers of altitude.
The United States of America accepts 50 miles of altitude (that is about 80 kilometers) as the limit of outer space. Most states accept the 100 kilometer mark.
International sea law declares a strict limit of certain state and international waters – 12 nautical miles. However, there is no clear definition in international space law. International technology media like the Verge make a statement that no matters of collisions of the matter of outer space limit ever appeared (https://www.theverge.com/2018/12/13/18130973/space-karman-line-definition-boundary-atmosphere-astronauts).
In how far are states responsible for acts of private space companies?
There were times when only large state actors could interfere in space but those days are gone. Now even micro states like Luxembourg participate in Space law issuing.There are 95 countries in UN making treaties.
Resolutions by the United Nations general assembly are not binding. Just explanatory. There is a great fear of space law going backwards because we have soft law governing them. There are opinions that we are moving back to the dark ages. Only resolutions by the security council are legally binding.
States impose regulations for bringing back cube sets of satellites which are mainly private initiatives.
The Outer space treaty is probably one of the most most important documents stating how states should be acting. The document states of none appropriation by nation states. There is no national sovereignty. However, private space initiatives have to comply with liability issues from article VIII, environmental law from article IX – with the rules of contamination. Private actors also participate in the duty to take care of other states.
States are responsible for certifying anything that leaves the atmosphere of Earth. This rule is set in the Registration convention ratified by United Nation states. Worldwide famous private corporations with million dollar budgets like SpaceX, Blue Origin, Virgin Galactic and others have to comply with rules set by the state.
Private space companies need infrastructure to establish their presence. Launches are being conducted in sites that are maintained by the state – Cape Canaveral in Florida USA is the backbone of SpaceX and Blue Origin. The state was the main force maintaining the Kennedy space center making private operations there a possibility.
Which types of liability exist in space law and under which circumstances to they apply?
Article 38 of the International Court of Justice statute gives recognition to international law disputes. It signifies the use of international conventions, rules expressed by the contesting states and international customs.
The outer space treaty article VII grants any parties liability of damages done to another party. The state that experienced damages has to bring a clame.
It does not matter whether the issue is on the Moon or on Mars – register country jurisdiction applies. The crashed craft is brought back to state of registry. The general rule is the state issues permits and then bears the responsibility.
The liability terms can be made more specific in the contract between parties. In general the launching state has the most liability. The second most liable is depending on the place of registry.
There are no questions of liability when the launching state is also the place of registry. In 1978 Russia had to pay an estimate of 15 million United State dollars for their Cosmos 954 nuclear powered satellite which crashed in Canada. The culprits paid less than half.
The Rescue agreement claims liability for every state – it has the duty to provide help. Bring back the object and the personnel to the state from which it was launched. The state naturally get’s compensation. Again like in Maritime law.
Article II of liability convention proves the liability of the launching state if damage is on launch or near. No proof required.
If there’s damage in space – it’s the liability for the launching state article III only if it caused the damage.
Article V says about joint liability.
In 2001 the United Nations also published the ARSIWA – Artciles on Sate responsibility for internationaly wrongful acts. The document entails every state has national responsibility in article 1.
The contemporary world of today still has problematic issues concerning liability. The launching state is still the launching state. Even if the satellite was sold. That kind of doesn’t match with the realities of today.
Is UN GA Res. 37/92 still adequate today?
Part A of the resolution identifies the purpose of the document – to establish equal rights for satellite television for the whole word. This sounds like a fair and inevitable rule of space law. Parts of the world still rely on satellite television.
Part B of the resolution emphasizes the use of soft international law – especially the Moon Agreement.
The Moon Agreement is only ratified by 18 countries – none of them are considered as major players in space although the United Nations consists of no less than 95 states. This fact proves that documents with only mere recommendation powers are not that viable.
Part C brings out the principles for satellite television which should be undeniable. The services they bring should be available for all the globe.
Part G 10. of the document imposes the passibility to use consultations by other states. That ensures infinite possibilities of achieving spectacular results even for small states that were never considered as major actors in space activities such as Luxembourg. However, today technical material is closely available through open sources so I doubt if consultations with previously satellite launched states is in such great demand.
Moreover navigation systems whose operating principle is based on satellites are very important. States all around the world try to be independent and set up their own operating systems. The United States of America have their Global Positioning System (GPS), Galileo is an effort of European space industry, Glonass is a Russian state owned initiative. Allocation of frequencies to specific satellites are internationally given in accordance to certain documents which include UN GA Res. 37/92. The procedure is carried out by the International Telecommunications Union (ITU) based in Switzerland. Therefore, it is acting every time you write an international email, make an international call or other digital international activities. The organization currently has 191 states as their members. The process of giving frequencies is regulated by the Radio regulations board. The key legal instrument of the organization is the Constitution of ITU. Radio is a finite resource – there is only a limited specter of frequencies available. Geostationary orbits are also finite. Article 2 of the Outer Space Treaty makes an orbit temporary basis.
The Resolution correlates with the Outer Space Treaty Article 1 about equitable use of space law.
Are states allowed to broadcast beyond their territory? There have been a lot of changes since 1982. These are still the key international norms.
All sides agree we need a more contemporary space treaty for these matters but there is not enough concencus for a new international space treaty.
There are significant risks involved in geostationary orbits. It is relatively easy to acquire data on a satellite. Satellites can be theoretically turned into weapons with virus malware.
The first thing that went into space was the V2 rocket. The technology is the same as putting up satellites.
The most notorious example is China blowing up its own satellite and making 1/3 of the space junk we have today.
UN charter article 2.4 prohibition of the use of force. It applies for space also.
You could say there is no adequacy in resolution 37/92 from the first point of view. Technologies have given developing nations the opportunity to block signals from international sources. China bans the use of Western world social networks. It replaces them with its own.
Article 9 of the Outer Space Treaty is not very specific but it grants the use of cooperation in need for activities in space. The treaty was ratified by a considerably larger number of states than the Moon Agreement. Resolution 37 that we are discussing is a natural continuation of this specific treaty.