Rafael Moro Aguilar
Head of Legal Affairs, Orbspace Engineering
Member of the Spanish Delegation to COPUOS
Member of the Ibero American Institute of
Aeronautical and Space law
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THE WORLD BEFORE SPACE LAW…
Spain conquered the Canary Islands (15th century)
and then discovered, conquered and colonised
most of the Americas (1492)
 Cortes and the Conquest of Mexico (1519-1521)
 Pizarro and the conquest of Peru (1532-1533)
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The rest of the European powers followed and
claimed sovereignty over most of the continents
(America, South Pacific, Africa and Asia)
This system of claiming sovereignty over any new
lands is what we could have had on the Moon, too!
Consider briefly these two well-known examples
of 19th century sci-fi literature…
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“As for the Yankees, they
have no other ambition
than to take possession
of this new continent in
the sky, and to plant
upon the summit of its
highest elevation the
star-spangled banner of
the United States”
Jules Verne, «From the
Earth to the Moon»,
1865
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Brits on the Moon
in 1899…
…taking
possession of our
satellite in the
name of Queen
Victoria !!??
H.G. Wells, «First Men
in the Moon», 1901
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By the 1950s, this system of land acquisition
was no longer possible: Times are a-changing!
Antarctic Treaty (Washington, 1959) > all the
powers having interests in Antarctica (USA,
USSR, UK, Norway, France, Australia, New
Zealand, Argentina, Chile, etc.) agreed to
suspend any claims of sovereignty over
Antarctic lands and coastal waters
For the first time, countries decided to destine a
whole continent, Antarctica , to scientific
studies for the benefit of mankind
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4 October 1957: The conquest of space begins Space law is born
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United Nations: COPUOS
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Created by the U.N. General Assembly in 1959 by its
Resolution 1472 (XIV). Location: New York /Vienna
83 Member States (as of 2016) and 35 int’l organizations
as permanent observers, including ESA and the Ibero
American Institute of Aeronautical and Space Law
Three annual sessions: 1) Scientific & Technical
Subcommittee (February) 2) Legal Subcommittee
(March-April) and 3) full (Plenary) Committee (June)
Its Legal Subcommittee started working in 1962. It has
been highly successful in the creation of international
space law since then
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COPUOS Legal Subcommittee, April 2010
(Picture: © Rafael Moro Aguilar)
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First UN documents on outer space
1961: UNGA Resolution 1721A > Celestial
bodies shall not be subject to national
appropriation. Resolution 1721B > The United
Nations must be the central element of
international cooperation in outer space
1963: UNGA Resolution 1962 (XVIII) on the
“Declaration of Legal Principles Governing the
Activities of States in the Exploration and Use
of Outer Space” > this milestone document
was adopted unanimously by Member States
of the UN
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“1. The exploration and use of outer space shall
be carried on for the benefit and in the interest
of all mankind
2. Outer space and celestial bodies are free for
exploration and use by all States on a basis of
equality and in accordance with international
law
3. Outer space and celestial bodies are not
subject to national appropriation by claim of
sovereignty, by means of use or occupation, or
by any other means” UNGA Res. 1962 (XVIII)
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The Outer Space Treaty (OST)
- This is the most important international legal text
governing activities in outer space
- It was negotiated in COPUOS in 1966, basically between the USA and the USSR, although other
COPUOS Member States also provided some input
- Adopted by UNGA in October 1966
- Effective in 1967. Since then, it has been ratified by
103 States (as of 2016)
- It provides the basic regulatory framework for all
space activities carried out by all States of the world
- Sometimes called the “Carta Magna” of outer space
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The United Nations General Assembly in 1968, the time of adoption
of the first UN Outer Space Treaties (© United Nations)
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Core principles of the OST:
Free access of all States to outer space and
to the celestial bodies
- All States can explore and use outer space and
celestial bodies > Free access without any
discrimination
- In principle, free access is guaranteed on a ‘first
come, first served’ basis > “if you arrive there
first, the spot is yours for you to use it”
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The Moon and other celestial bodies
shall be used exclusively for peaceful
purposes
- Placing atomic weapons and other weapons
of mass destruction in outer space is expressly
prohibited. (Other types of weapons are not
prohibited)
- However, the Moon and the other celestial
bodies are demilitarized areas > no military
bases or activities, no testing of weapons, etc.
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Outer space and celestial bodies are
not subject to appropriation by States
- Outer Space and celestial bodies are commonly considered as “res communis”, i.e. belonging
to all
- No State can appropriate a celestial body or
any part thereof , neither by claiming its
sovereignty nor by use, occupation, or by any
other means
- The same regime applies to the high seas and
to the seabed: they are res communis
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Law and living in
the Moon
- A law passed by the US
Congress in 1969
mandated American
astronauts to place the
national flag on the
Moon “as a symbol of
national pride and
achievement” but made
clear that this action did
not constitute any claim
of sovereignty whatsoever over the Moon
- Apollo astronauts also
left this beautiful plaque
on the Moon in 1969
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Outer space and celestial bodies are
not subject to appropriation by
individuals
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If there is no State jurisdiction on the Moon, it
means that there cannot be private property
either
The reason is because ownership is a private
right that has to be backed by a public entity.
i.e. a State
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No State or Government > no private property
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A company called Lunar Embassy Corporation
is selling plots of land on the Moon (some 2
million and a half so far!)
In 2004, a group of members of the International Institute of Space Law issued a position
paper stating that this activity goes against the
UN outer space treaties
In reaction, the company declared itself an
independent, non-UN-member country
It is now selling land on the planets as well
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Astronauts are considered ‘envoys of
mankind’
- States are required to assist and rescue them in case of
accident, distress or emergency landing
- In carrying on activities in outer space and on celestial
bodies, the astronauts of one State party shall render
all possible assistance to the astronauts of other States
Parties
- States Parties shall immediately inform the other
States Parties or the UN of any phenomena they
discover in outer space, including the Moon and other
celestial bodies, which could constitute a danger to the
life or health of astronauts
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American Moonbase Clavius
2001: A Space Odyssey
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The OST establishes the right to visit
moon stations and other lunar facilities
by representatives of other States
By denying access to a Russian spaceship in a
situation of emergency, Moonbase Clavius
actions could be in violation of this principle, as
well as Art. 2 of 1968 Rescue Agreement > duty
of States to assist astronauts in case of accident,
distress or emergency landing
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States are internationally responsible for
the space activities of their nongovernmental entities
- “Non-governmental entities” means any commercial
entities (companies or corporations), any private
associations, etc. “Their” is usually interpreted as
“those entities having their nationality”
- As a result, the practical obligation arises for States to
authorize, control and supervise all private activities
carried out in outer space, including the Moon and
other celestial bodies. This is usually done by means of
internal or domestic legislation
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Law and living in
the Moon
Bigelow Aerospace
plans to test an infatable
space habitat at the
International Space
Station this year, and
then operate free-flying
orbital outposts for
customers, including
government agencies,
research organizations,
businesses and even
tourists. In 2025, it
intends to launch a $12
billion project of a series
of bases on the moon.
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Launching States are internationally liable
for damages caused by their space objects
to third parties on the Earth or in outer
space, including the Moon and other
celestial bodies
- According to the 1972 Liability Convention, while
damages on the Earth's surface and to airplanes in
flight imply absolute liability (duty to compensate
in any case), damages in outer space only arise in
case of fault liability (the launching State must
compensate only in case of negligence)
- In case of several launching States > joint and
several liability. They may reach agreements
among themselves in order to apportion that joint
liability
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Registration. Satellites, lunar probes, and all
other space objects must be inscribed:
- In an International Register, maintained by the UN
- In a national register, maintained by each State of
registry
The State of registry will retain jurisdiction,
control and ownership over the space object
and over any personnel thereof
- jurisdiction on board > both civil and criminal
- Control means that the ultimate control over the
space object is in the hands of the State of registry
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Rights of ownership over objects launched
into space or placed in or on the Moon
are never lost
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“Ownership of objects launched into outer
space, including objects landed or constructed
on a celestial body, and of their component
parts, is not affected by their presence in outer
space or on a celestial body. Such objects or
component parts shall be returned to that State
party on whose registry they are carried”
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Law and living in
the Moon
In 1993, an
American
millionaire
bought in an
auction the Soviet
spacecraft Luna
21 and the rover
Lunojod 2, both
of them currently
located on the
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Duty to cooperate and to render mutual
assistance in the course of the exploration
and utilization of outer space
- Duty of States to inform the U.N. and the international community about their activities conducted in
outer space and on the Moon and celestial bodies
- Duty of active cooperation and of mutual assistance
- Duty also of non-interference: States may not obstruct
the free use of space by other States. In case of interference between two space activities, States must enter
into consultations
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Duty to preserve the outer space environment and the Earth’s environment
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Duty of space debris mitigation and prevention
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Duty of biological, radiological, chemical noncontamination of the celestial bodies > States
Parties shall adopt “appropriate measures”
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Planetary protection: this is the duty to prevent
biological contamination of celestial bodies with
potential biological interest, as well as the duty
to prevent biological back contamination of the
Earth’s biosphere as a result of introducing
extraterrestrial materials
> COSPAR’s Planetary Protection Policy (PPP) is not binding
law, but it is applied nevertheless by all space faring nations
and space agencies (NASA, ESA…)
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Specific activities on the Moon
and their regulation under
international space law
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Astronomy on the Moon
“Hopefully man will use the Moon solely as an
international laboratory for basic scientific
research. The most exciting prospect one can
see at this time is in astronomy. The Moon is
an ideal site for an observatory.”
Dinsmore Alter, American astronomer, 1963
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An artist's concept of
a spinning liquid
mirror telescope on
the Moon. Credit:
University of British
Columbia
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Advertising on the Moon
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A Japanese company manufacturing a popular
soft drink has announced its intention to send a
can of beverage to the Moon for advertising
purposes:
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http://www.moondaily.com/reports/Japanese_Compa
ny_to_Advertise_Soft_Drink_on_Moon_999.html
This commercial activity on the Moon is perfectly
legal under the Outer Space Treaty, provided that
international law is respected:
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Do not litter the Moon!
Do not promote hatred or aggression or provoke any
international conflict or interfere with other space
activities…
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Tourism on the Moon
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Tourism is a perfectly lawful commercial way
of using the Moon. But:
Tourists and tourism facilities on the Moon will
have to follow all the rules that we have seen in
this talk
They will have to take particular care of the
lunar environment and follow the principle of
non-contamination of celestial bodies
In addition…
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A private company called Astrobotic has announced the intention
to put an automatic rover on the Moon and visit the site of the first
manned lunar landing - Apollo 11 (as seen from lunar orbit – right)
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This particular kind of lunar tourism poses the
important question of the preservation of historic
sites on the Moon
NASA issued in 2012 some guidelines for lunar
private companies, basically saying – do not come
close to the lunar landing sites!
In 2013 there was a proposal in the US Congress
calling for the establishment of national parks on
each of the six Apollo landing sites. The bill was
criticized as being against international law, and it
was eventually abandoned
Should not this preservation effort be better made
through UN/COPUOS?
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Holes have been discovered in the Moon’s surface,
probably leading to huge underground caves (left).
One of these holes could be the best location for a
lunar hotel (artistic conception – right)
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Lunar and asteroid mining
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According to the OST, celestial bodies cannot
be appropriated by States. If there is no State
jurisdiction, it means that there cannot be
private property either
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But then, how can we exploit natural resources
on the Moon and the other celestial bodies?
One solution is given by the Moon Agreement:
resources are ‘common heritage of mankind’ and
exploitation will require an international regime
Problem: the Moon Agreement has a very low
acceptance in the international community
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Some US companies have anounced their intention to
exploit the natural resources (valuable metals, water)
that are present in certain asteroids and in the Moon
© The Economist
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In 2015, the US Congress passed the Commercial
Space Launch Competitiviness Act (25 Nov, 2015). This
law includes a very controversial provision:
It allows US citizens to appropriate the natural
resour-ces that are extracted from celestial bodies
such as the Moon or asteroids
- The law makes clear that the USA is not claiming
any sovereignty or right of ownership over these
celestial bodies and assures that international law
will be respected during their “mining”
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The International Institute of Space Law presented
in December 2015 a position paper stating that this
US law is a lawful interpretation of the OST, but it
is not the only possible one
US law is better seen as a basis for further
discussions
Colonizing the Moon
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Colonizing the Moon
What will it be like to live on the Moon?
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A new legal system applying only to lunar settlers
(Moon Law)?
Ownership rights for lunar colonists?
A lunar nationality?
Is it ethical to let people be born on the Moon? (We
do not know what are the consequences…)
Establishment of areas of special scientific interest on
the Moon and other celestial bodies (i.e. lunar and
planetary “parks”, scientifically reserved areas...)?
Etc. etc
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