THE LAW BEHIND… Outer space

Unfortunately, not all space law specialists look like Chewbacca or Mr Spock. In fact, for all its talk of orbital slots and Moon Treaties, space law is not that far removed from plain old corporate and property law. Except that it involves contracts containing words such as ‘launch’ and – if you’re very lucky – ‘rocket’. But, as Jennifer Farrar discovers, space law is growing apace


What’s the law in outer space?

The law of gravity may not apply in outer space, but do not despair, there are plenty of other laws to make sure that us earthlings use space safely and appropriately.

The UK has signed and ratified a number of UN treaties and conventions that regulate outer space, most of which carry international obligations.

One of the most important documents is the UN Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies 1967 (a title that simply trips off the tongue), which sets out many of the basic principles of international space law.

According to the treaty, which was ratified by 96 states and signed by another 27 at the last count, any exploration or use of outer space must also be carried out “for the benefit and in the interests of all countries”. Outer space is to be regarded as a “province for all mankind”.

Countries are forbidden from placing weapons of mass destruction in orbit or on the planets and the treaty demands that celestial bodies should be used only for “peaceful purposes”, while astronauts are to be “regarded as the envoys of mankind”.

The UK’s own Outer Space Act 1986 exists to ensure that the Government has the power to control any companies carrying out space-related activities in this country. Anyone wanting to launch anything into space has to first obtain a licence from the British National Space Centre, and as the UK Government is ultimately responsible for any object sent into space from these shores, obtaining a permit is not easy.

Planet people
Buying an acre of land on the Moon will only set you back 20, but is it really legally possible to own land in outer space?

US citizen Dennis Hope established the Lunar Embassy more than 20 years ago after he discovered that a legal loophole made it perfectly legitimate for people to exploit the planets for profit.

Hope claims that the 1967 United Nations Outer Space Treaty makes no mention of individuals and only forbids governments from owning property in space. So in 1980 Hope notified the UN and national governments that he was claiming ownership of the Earth’s Moon and all the planets in our solar system, as well as their respective moons, and has been happily selling extraterrestrial plots of land ever since.

MoonEstates.com, a company licensed by the Lunar Embassy to sell land on the Moon to UK customers, claims that “what is actually important is what the Outer Space Treaty 1967 does not say. It explicitly does not say whether commercial enterprises or private individuals can claim, exploit or appropriate the celestial bodies for profit.”

Yet the British National Space Centre (BNSC) says lunar real estate is a load of old pie in the sky. The BNSC states: “No one has the right to own land on the Moon, or any other celestial body. No signatory could support or enforce a private claim to ownership of land on the Moon without breaching the [UN Outer Space] Treaty. So any claims to title are unenforceable. Certificates of ownership can only be that – certificates. They do not confer title on real estate.”

The Royal Astronomical Society (RAS) warns that naming stars in the night sky, another popular Christmas present idea, is also a legal sham.

In an official statement, the RAS claims: “Some commercial organisations offer to name or ‘redesignate’ stars in exchange for payment. Any certificates they issue and names they allocate have no official status of any kind whatsoever; they are not used or recognised by astronomers or any other scientists.

“A few of the the brightest stars in the sky have traditional names, such as Sirius and Polaris. It’s true that the best known of these names are often used by astronomers, but nonetheless they are unofficial.”

Yet such warnings have not deterred members of the public from snapping up plots of land – referred to as ‘sercas’ – on the Moon. A spokeswoman for MoonEstates.com says that more than 100,000 acres have been sold in the UK alone. Meanwhile, Hope, who likes to be known as the ‘Head Cheese’, recently estimated that selling lunar land has earned him around $5m (3.2m) in profits.

The Moon Treaty 1984
The Moon Treaty 1984 was an attempt to sew up the legal loophole that has been so expertly exploited by Dennis Hope of the Lunar Embassy (see Planet People box). Soon after the Outer Space Treaty 1967 was signed and ratified, many governments realised that commercial organisations and private individuals could still legally claim or exploit the celestial bodies for profit.

To stop this from happening, the countries that signed the treaty tried to ratify amendments preventing individuals from exploiting the planets for profit – after all, why should they be able to if governments can’t?

However, member states could not agree on what the amendment should be and in the end all of the suggested ratifications were merged together into the Moon Treaty 1984.

Under the terms of the Moon Treaty, all profit-motivated exploitation of the planets is prohibited, a move that would seriously scupper the objectives of the Lunar Embassy. Although the new treaty essentially protects the Moon and planets as resources to be peacefully shared by the whole world, only six UN member states out of 185 were actually prepared to sign on the dotted line. So the legal loophole is still open for business.

Spaceman
Claiming to be a space lawyer is a sure-fire way to get yourself noticed at parties, but very few space law experts ever actually have to deal with legal issues related to outer space or Moon landings.

Instead, most work in this area tends to be focused on commercial areas, such as satellites and communications.

According to Gerard Oberst, a partner in the Brussels office of US firm Hogan & Hartson, the manufacture of space re-sources such as satellites is the “real commercial application of space law. There are armies of lawyers working on the regulatory and commercial issues associated with satellites and their infrastructure,” he says. “I’m almost willing to bet that only a handful of them will ever have worked on other space law issues.”

Before a satellite can be blasted into outer space, its sponsors (the company or government planning to send it up there) must apply for a frequency and an orbital slot, which unfortunately is not as glamorous as it sounds.

“You apply for an orbital slot through the International Telecommunication Union [ITU] in Geneva,” Oberst ex-plains. “The gravitational pull at points means that a satellite will tend to stay in a certain spot in relation to all the satellite dishes in the UK, for example. It’s a unique area.”

Perhaps due to the very nature of space, deals in this area can often raise confusing legal issues, such as who has the rights to what orbital slot. The ITU, which registers orbital slots, is now planning to charge companies a potentially hefty administrative fee to cover the application process, in a move that will come as a “rude shock” to some, predicts Oberst.

A couple of international treaties keep track of satellites and deal with who has been registered what frequency or orbital slot. In addition, a UN register of outer space objects also aims to record everything that has been launched into orbit from Earth.

“It’s a very interesting area that raises a lot of questions,” says Oberst. “A lot of what I do is just like normal company law but applied to outer space.”

Dangerous junk
Navigating your way through space is made that little bit harder by all the bits of space junk floating around, as even a single fleck of paint can cause unspeakable amounts of damage to the toughest spacecraft.

Unlike marine pollution, which has an instant and visible impact, space junk, or debris as it is also known, simply floats around millions and millions of miles away in space, and as a result it is impossible for us mere Earth dwellers to gauge the size or severity of it.

“There have been suggestions that space debris could be cleared up by blasting a laser beam into space to destroy it,” says Joanne Wheeler, an associate at Allen & Overy. “And you can’t really go up there with a vacuum cleaner. But something needs to be done. There needs to be a set of rules or a code of conduct for commercial activities in space and they need to be flexible, as you’re dealing with a moving target after all.”

At the moment, commercial operators are not generally required to mitigate against the possibility of their satellite or other space object turning into space debris. Under international law, though, the state from which a satellite is launched is ultimately held responsible if something goes wrong.

“If a satellite launched in this country by a private operator crashes into a German satellite, then the UK is liable. But why should the UK Government pay for it?” asks Wheeler. “Now the UK Government looks to be reimbursed for any damages caused by the operator involved.”

By shifting the burden of responsibility from the state to the commercial sector via national law, the UK Government is able to keep an eye on what space operators are up to, as well as ensuring that it does not have to pay for any clean-up costs.

“If you send up a satellite from the UK, you’re liable for an unlimited amount, although this amount is limited in the US and France,” says Wheeler, who adds that countries such as the Netherlands, Germany and Japan are currently considering new national laws that will incorporate space policy.

“Sweden and the UK are the only two countries in Europe to have national space laws,” says Wheeler. “The UK has done very well with its national laws, as they’re very user-friendly and also give operators some certainty. But it will be extremely interesting to observe the approaches these other countries take and how they achieve the balance between protecting the interests of the state and the public and promoting competitiveness. Watch this space.”

Star Wars
One of the main provisions of the UN Outer Space Treaty 1967 was to ensure that we humans can peacefully enjoy the content of the skies forever. As a result, states are forbidden from placing any weapons of mass destruction on any of the planets, a move that effectively outlaws chemical, nuclear or biological weapons from ever being used in space.

But now that equally evil weapons exist which are not officially classed as weapons of mass destruction, a debate is raging in certain quarters as to whether or not they should be placed in space.

Professor Joanne Gabrynowicz, director of the National Remote Sensing and Space Law Center at the University of Mississippi, says the issue of weapons in space is stirring up a debate among some people in government departments at the moment.

Some observers have suggested, she adds, that weapons such as lasers could theoretically be placed in space because they are not specifically classified under the mass destruction category.

“There’s a big discussion about this in the US. Views are coming from a lot of different places,” Gabrynowicz states. “It might be a good time to think about strengthening the space treaties so they also eliminate the new weapons from ever being used in space.

“Putting any kind of weapon up there is not a good idea, because it will have a destabilising effect,” she adds. “And I think the nations that have the most to lose are those who use space the most. We have more space assets [than other countries], and so placing weapons in space would make us a target and would also destabilise an important area that has been stable for more than three decades. It’s very much a dynamic question at the moment, which is raising some very big international issues.”

Eye in the sky
Big Brother will be watching us like never before once Europe launches its very own global navigation satellite system in 2008.

Worth approximately e3.6bn (2.46bn), the Galileo project will be the largest public-private partnership deal ever seen in Europe.

Just like the US Global Positioning System, Galileo will be used for navigation, surveillance, emergency systems and traffic management. But the major difference between the two is that Galileo will be under civil control, while the US version is controlled by the military.

US firm Milbank Tweed Hadley & McCloy has been involved from an early stage after its space business team was asked to carry out a preliminary study into the legal aspects of the project by the Galileo Interim Support Structure.

As London-based space partner John Dewar recalls: “We looked at models for the satellite system [and considered] how the legal structures will work. We also looked at all the legal aspects of financing the project and advised on the sort of security tenders we expect to be given to them.”

Liability issues are another huge concern for anyone planning to send more than 20 satellites into orbit at once.

“If Galileo provides a signal that’s used by the aviation industry and the service is interrupted, there could be a catastrophe,” Dewar adds. “The liabil-ities are potentially huge.”

In addition to navigation and traffic control, the European Commission will also use the satellite system to police its environmental policies by keeping an eye on the activities of farmers and fishermen from high above. Galileo could also affect the insurance premiums of careful or infrequent car owners because the insurance companies could monitor their daily usage and lower their premiums accordingly.

Dewar says: “Galileo will have a significant impact on day-to-day lives in Europe and beyond. It will be available for everyone.”

Extra information on space law is available from Joanne Wheeler at City firm Allen & Overy, who is currently the secretary of the UK National Point of Contact for the European Centre for Space Law. Wheeler also has details of a two-week space law and policy course, held in Europe this summer, which is open to UK law students. You can email her at joanne.wheeler@allenovery.com