Gbenga Oduntan: Tempest in a tin can – but space Law does exist.
Just when America bashing appears to be going out of fashion its critics may find newer expressions of unfathomable deliberate squandering of goodwill and hard earned moral capital in a vastly different context –outer space. Major newspapers in the UK and blogs have noted the complaints of Gennady Padalka, a veteran Russian cosmonaut, about the new regime of (un)cooperation in the higher grounds. American astronauts have apparently been refusing their Russian ‘cosmonauts’ on the International Space Station (ISS) the most basic human instincts (if not rights)– the right to use the toilets. Perhaps to retain sheer physical dominance over the cosmonauts they have also had their right to gym exercise machines withdrawn without explanation. The new rules also mean that cosmonauts and astronauts must eat their own national food.
These incidents far from being unimportant and of mere anecdotal relevance, remind us of the fragility of carefully arranged international laws and international human relations. This time the laws displaced are in relation to space law a branch of law the mention of which disconcerts the common man on the street much less than the well read. Few may pay attention to the fact that space law and outer space is one of the most legislated upon areas of international law in the law and practice of the United Nations. The list of treaties include the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Borders (1967); the Agreement Governing the Activities of States on the Moon and other Celestial Bodies (1979); the Agreement on the Return of Objects launched in to Outer Space (1968) (Also known as the Astronaut Agreement or Rescue Agreement; Convention on International Liability for Damage caused by space Objects (1972) (the so called Liability Convention; (g) Convention on Registration of Objects Launched into Outer Space (1975) also known as the Registration Convention).
Despite this wealth of legal agreements most of which are internationally in force including the International Governmental Agreement (IGA) developed for the ISS between 15 states from Europe, the United States, Russia, Canada, and Japan, scholars of this esoteric field insist that much more still ought to be done to anticipate the myriad of human problems that will test the law. If the reports received of discrimination in the ‘new high grounds’ are true then space lawyers would have to return to the drawing board to fine tune the many legal criminal and civil laws that govern astronauts and those who place them in the confined artificial spaces they occupy when placed in orbit. The recent spats have occurred on board the space station despite the IGA, four Memoranda of Understandings (MoUs) and various bilateral Implementing Arrangements between the space agencies.
It must be emphasised that the advent of space stations is a notable advance in the legal and scientific history of space exploration. The impending proliferation of national and international space stations in this century opens up new vistas for legal studies particularly in the area of civil and criminal jurisdictions. Space stations may be said to consist of two kinds: a long -life spacecraft generally geostationary, placed in free space or an established post or centre constructed upon a celestial body. Space stations can exist for a determined or fixed period or can be of a permanent and on going nature. There is an increasingly international dimension to the ownership and running of space stations. There is also an increasing involvement and participation at various levels of private organisations in space station activities. These factors cannot but render the legal regime governing space stations more complex compared to that of the national aircraft in foreign airspace or in international airspace.
The international dimension to the operation of space stations reflects in the definition and characterisation offered by many authors on the subject. In fact as far back as 1974 writers such as S. Robinson wrote that the international space station is characterised in part as a “quasi-permanent habitat, with mixed sexes, representatives of various cultures, different races, alien life support systems, acute sensory deprivation/overload, etc.”. The Salut -Soyuz, Skylab, Spacelab, Mir and the International Space Station Freedom now called Alpha are all space stations that have in various ways tested existing laws.
The reason for this is that Borders and boundaries that condition our realities of sovereignty and jurisdiction on earth are very different in outer space and on space vehicles. Anyone who has travelled on long haul flights can attest to the easily frayed nerves that come sharply into focus in incidents of air rage. Pilots get drunk, conceptions and births take place. These incidents will inexorably frequently occur in zero gravity in this century. Newer and more focussed Studies are thus called for in psychology, sociology, psychiatry, and biology among others which will inform lawyers and states in their task of elaborating upon present space law. Wherever the law lags behind chaos inexorably follows. Legal relations among space station participants, while existing in a shared, long duration, confined, alien life-support environment, should rest upon a new theory of law. Astronauts and other participants will establish new value-forming processes and consequent judgments, based on the manifestations of totally different neurophysiological phenomena. Robinson thus, insisted that any legal theory evolved must consider such space station participants either as neo-colonialists or preferably, as “alien” life forms to evolve their own juridical systems while in long-duration flight, and to be dealt with on at -arms-length basis by Earth-indigenous institutions
Although the need for more tidying up of knowledge has been conceded, it must be said that there is enough in the existing letter and spirit of current laws to prevent the kind of squabbles that have recently cropped up. One of the appreciable fundamentals of space law according to the jurisprudence of the Committee on Peaceful uses of outer Space (COPUOS) is that “No Moon, no planet shall fly a single nation’s flag.” It remains settled law that outer space including the moon and other celestial bodies is not subject to appropriation by claim of sovereignty by means of use or occupation or by any other means. Thus, though the USSR was the first state to put a man in space in 1957, explicit statements were made renouncing all claims to outer space. It was stated that “No human activity on the Moon or any other celestial body could be taken as justification for national appropriation.” The US also took this position long before it put a man on the Moon. The position as stated then was “We have rejected the concept of national sovereignty in outer space. No Moon, no planet shall fly a single nation’s flag”. In the words of US President Johnson “The goals now within reach of the human race are too great to be divided as spoils, too great for the world to waste its efforts in a blind race between competitive nations”. Article 1 of the Outer Space Treaty contains the ‘province of mankind’ formula a necessary adjunct of the ‘common heritage of mankind’ principle found in the Moon agreement
Although there are for now no claims over the celestial bodies, states have jurisdiction over objects they place into outer space and civil and criminal jurisdiction over their citizens that enter into orbit or beyond. Article 8 of the Space Treaty (1967), states that a state party on whose registry an object launched into outer space is carried shall retain jurisdiction and control over it. Article 12 (1) of the Moon Agreement confers jurisdiction and control over astronauts who are nationals of the sending state. It is based on this level of ownership and control that the American astronauts have acted against fellow Russian cosmonauts but there actions raise many issues. Ironically it may be said in defence of the US that its state practice in forbidding the use of American property in outer space is non discriminatory since the American millionaire Dennis Tito who in 2001 was the first commercial space tourist to visit outer space on a scheme provided by Russia was quickly banned from using any part of the US modules in the space station. The US indeed insisted that the aging millionaire could only come on board any part of the space station after he entered a bond to pay for any damages on board the space station.
The recent incidents however raise many questions. Are boundaries and borders on space stations as strict as national boundaries and borders? Is there a presumption that the elementary considerations of humanity prevent astronauts from acting in such manner to each other? Will there be a duty to alleviate pain and discomfort in outer space. These issues assume a pressing character in view of the many developments in the space tourism front. I make bold to say that international law and politics is, rooted in ethics. States and non-state actors share a basic moral vocabulary. That moral vocabulary arguably includes the right to equal treatment in the use of human conveniences in outer space. Practice to the contrary is not in the true character of the US. Any delayed effect in the communication of the ideals of international rapprochement reflected in the new Barack Obama administration ought to be quickly rectified and newer ideals beamed to Major Tom.
Dr Gbenga Oduntan teaches the Laws of Maritime, Air and Outer Spaces at the Kent Law School
