ANALYSING THE OUTER SPACE TREATY IN THE LIGHT OF RISING SPACE TOURISM
Author: Shubhi Pandey, IV year of B.B.A.,LL.B. from Symbiosis Law School, Noida
The Outer Space Treaty marked its 54th anniversary on 10th October 2021 and during all these years, the field of space and technology has witnessed development at an exponential rate. The last decade has decade has opened a new arena of space tourism. In 1967, when the Outer Space Treaty was signed, the space arena was dominated by a very few countries (such as Russia and The US). But in past 54 years, almost every country has registered its presence in this arena. Recently, business tycoons like Elon Musk and Jeff Bezos have provided a commercial angle to this field by launching rockets and satellite for the purpose of private space tourism. With such advancements in the field, the major issue that comes to one’s mind is whether the Outer Space Treaty has the capacity to govern such advancements or does it need a reformation or replacement.
Now, if one dives into the analysis of the current situation of space tourism, one could easily point out how the numbers of commercial rockets (i.e. the rockets made and launched by private companies) are increasing in the outer space. SpaceX alone has sent more than 800 satellites last year. Many private space companies have started monetizing the space tourism by making it accessible to the general public. But, while getting familiar with the idea of space tourism, one needs to understand whether the grundnorm of the same has the ability to cope up with this tangent of the field. The Outer Space Treaty has already declared the space as a “demilitarized zone” and has also declared the moon and other celestial bodies as “province of all mankind”. But, does this include private entities and imposes a liability on those? In order to find an answer to that question, one needs to refer to Article VI and VII of the treaty.
Article VI of the treaty has clearly put an international liability on the party states for every national activity that is being carried out by them. In order to understand this better, one could take the example of a space entity that is owned by the government of a party state, such as NASA. Now, USA as a party state would be held internationally liable for any space activity conducted by NASA. Article VI further adds that this liability has to be borne by the party state in case of “both governmental and non-governmental organisations”. Now, the term “non-governmental organisations” would automatically include the private space companies. For instance, the government of United States would also be internationally liable for the activities conducted by SpaceX, Blue Origin etc. Article VI further adds that such activities being conducted by the private entities have to be carried out under “authorization and continuing supervision” of the concerned part state. This means that companies like SpaceX and Blue Origin will have to seek authorization of the US government in order to carry out their space operations. This approach of Article VI could be interpreted in two ways. The first way involves critical analyses of the treaty because it puts the entire liability on the states and no liability on the private companies. It simply refers to “non-governmental entities” which is a very broad term and it does not put a cap on the activities of such companies. This could also be due to the uncertainty in the field of scientific developments in 1967. The treaty is also silent upon the space traffic and rising space debris which could cause a lot of problems as both governmental and private entities continue to send their rockets/satellites in the space without a limit. This may result into jamming, spoofing etc.
The other way of interpreting this clause could be by looking into its jurisprudence. It might be considered that the framers of this treaty wanted the party states to act like a parent (doctrine of parens patriae) so that they could form their own laws with respect to private entities as well and could set up a limit by themselves. Ever since the idea of commercialisation of space has come up, countries like the US have been framing laws in the same direction (The US Government passed a law titled “Commercial Space Launch Competitiveness Act, 2015” which allowed commercialisation of space and also allowed activities like mining on the moon and mars).Article VII of the treaty compliments Article VI as it imposes an international liability on the party states in case of any damaged caused. It could be assumed from this article that such a liability would be borne by the party state for the damage caused by both government and private entities. Therefore, it could be said that the citizens of any party state would be acting on the behalf of their country.
After connecting the provisions laid down under the Outer Space Treaty with rising space tourism and commercialisation of space, it could be assumed that the makers of the treaty left it in an ambiguous state intentionally so that the same might cover the unforeseen technological advancements. Though, many countries have started passing regulations related to rising space tourism for both research and commercial purposes. But, with such advancement, there is a need for a new international regulation that also addresses the issueof commercialisation of space so as to prevent harsh consequences (both foreseeable and unforeseen) of the same.
1- Erik Cohen and Sam Spector (ed.), Space Tourism: The Elusive Dream (Emrald Publishing, Bingley, UK, 25/2019).
2- Jason Krause, “The Outer Space Treaty Turns 50. Can it Survive a New Space Race?” ABA Journal, Apr. 1, 2017.
3- The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (The Outer Space Treaty) 1967, available at https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html ( last visited on January 19, 2022).