Anton Katz on space law

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Law regulates conduct between humans, between humans and institutional bodies, such as corporations and governments, and between these non-natural legal persons. But what about happens in space. Is there law concerning what occurs in outer space, the area beyond the earth’s atmosphere? 

Aviation law

Before turning to space law, it is worth recalling that during apartheid air travel to and from South Africa to Europe or the United States was somewhat prolonged. The airplane had to detour because it was not permitted to fly over many African territories, which were hostile to South African apartheid. The law relating to air travel generally is known as aviation law. Aviation law is the law that governs flight, air travel, and associated legal and business concerns. Some of its area of concern overlaps that of admiralty law and, in many cases, aviation law is considered a matter of international law due to the nature of air travel.
The business aspects of airlines and their regulation also fall under aviation law. Aviation law directly affects individuals on a daily basis. Flight routes, and in particular reciprocity of landing rights has a significant impact on how and where we travel. In the 1990s the South African government’s decision to make the international airport in Johannesburg (now OR Tambo International airport) as the prime hub in South Africa, and develop it to be the African hub had major implications. It became difficult to fly from Cape Town directly to any destination outside South Africa. That is changing with daily direct flights to world hubs, such as Istanbul, Dubai and Addis Ababa, and a new direct flight to Newark in New York beginning in December 2019. 

Higher than the sky

Space law, governing matters in outer space beyond the Earth’s atmosphere, is a rather new area of law; much of space law is connected to aviation law. Space law is the body of law governing space-related activities. It includes both international and domestic agreements, rules, and principles. So, questions arise: does the United States own the moon because it managed to put a man on the moon first, and is the only country to have done so? Who decides? And what laws apply? There are only a fixed number of spots available for satellites that are in geostationary orbit. Many countries on the equator believe that they have the right to control the space above their countries. As more countries want to launch geostationary satellites, conflicts between countries will likely continue.

A number of fundamental principles guide the conduct of space activities. The notion of space as the province of all humankind is key idea in United Nations space activities. Nevertheless, developing nations are concerned that the spacefaring nations will monopolize space resources. 

The origins of space law date back to 1919, with international law recognising each country’s sovereignty over the airspace directly above their territory, later reinforced at the Chicago Convention in 1944. The onset of domestic space programs during the Cold War propelled the official creation of international space policy (i.e. the International Geophysical Year) initiated by the International Council of Scientific Unions. The Soviet Union’s 1957 launch of the world’s first artificial satellite, Sputnik 1, directly spurred the United States Congress to pass the Space Act, thus creating the National Aeronautics and Space Administration (NASA). Because space exploration required crossing transnational boundaries, it was during this era where space law became a field independent from traditional aerospace law.

The Outer Space Treaty

Since the Cold War, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty”) and the International Telecommunications Union have served as the foundational legal framework and set of principles and procedures constituting space law. Further, the United Nations Committee on Peaceful Uses of Outer Space, along with its The Office for Outer Space Affairs subcommittee, aid in governing international space law and policy. 

Challenges that space law will continue to face in the future are fourfold — spanning across dimensions of domestic compliance, international cooperation, ethics, and the advent of scientific innovations.

Furthermore, specific guidelines on the definition of airspace have yet to be universally determined. Space law include space exploration, liability for damage, weapons use, rescue efforts, environmental preservation, information sharing, new technologies, and ethics, the preservation of the space and Earth environment, liability for damages caused by space objects, the settlement of disputes, the rescue of astronauts, the sharing of information about potential dangers in outer space, the use of space-related technologies, and international cooperation. Many fields of law, such as administrative law, intellectual property law, arms control law, insurance law, environmental law, criminal law, and commercial law, are also integrated within space law.

Jewish thought on life on Mars

Rabbi Menachem Schneersen was asked by Dr Velvi Greene, a microbiologist working for NASA privately, if looking for life on Mars was something he should be doing. The Rebbe replied: “Dr. Greene, look for life on Mars! And if you don’t find it there, look somewhere else in the universe for it. Because for you to sit here and say there is no life outside of planet Earth is to put limitations on the Creator, and that is not something any of His creatures can do!” So, hopefully by the time the little green alien arrives on earth and says: ”Take me to your leader!” humans will have figured out a way, perhaps through space law, to respond in a meaningful and peaceful manner. In saying this, I obviously don’t mean it literally. What is crucial is that issues of climate change, and all things, and that includes outer space, that affect all humans are regulated and managed in a manner that is sustainable and with respect to each human being’s dignity. Indeed, so it is often said: “If humans could put a man on the moon, why can’t we eliminate poverty?”

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