Governing Non-Governmental Space Activities
Article VI of the Outer Space Treaty (OST) is the nexus between international space law and national legislation governing the activities of non-governmental actors in outer space. Therefore, as non-governmental space activities increase and diversify Article VI OST will become ever more important. Non-governmental space actors do not themselves have any obligations (or rights for that matter) under the Outer Space Treaty these are transmitted to them by their State through Article VI OST. Therefore, it is worth examining. The text of the article stipulates that:
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.
States are responsible for their national activities in outer space. This is regardless of whether or not they have ‘authorised’ those activities. It is worth noting that the provisions of domestic law (or lack of) are not a defence against a State failing to adhere to its international obligations. It is also important to note that as Michael Gerhand argues there is a difference between responsibility and liability; responsibility is for activities whereas liability is for damage done by space objects. The State in question is (are) the State in which the non-governmental entity carries out activity and the State of nationality of persons (legal or natural) who carry out activities. Therefore, there may be more than one state which had jurisdiction and responsibility. UK law, for example, requires, under the Outer Space Act 1986, that UK nationals obtain licences for space activities conducted outside of the United Kingdom. US law has similar provisions, as do most jurisdictions. How this works in practice will depend on the circumstances of the activity and the States involved.
Furthermore, the State is required to ensure that the activities of non-governmental actors are carried out ‘in conformity with the provisions’ of the Outer Space Treaty. This means that Article II of the Outer Space Treaty applies to non-governmental actors as much as it does States. The same goes for the rest of the provisions as well. Finally, States are obliged to ‘authorise and continually supervise’ these activities. Again, this is where the national legislation comes in, the laws passed by States make sure that non-governmental space actors have an obligation to seek ‘authorisation’ and ‘continual supervision’ from their government. Most national space legislation makes it an offense not to obtain said authorisation even if the activity is conducted abroad. For example, Luxembourg makes it punishable, potentially by prison time, for failure to obtain the proper licences for space resource activities. This is how international space law is enforced for non-state actors. Non-state actors generally are not subject to international law but they are subject to national law and Article VI of the Outer Space Treaty is the mechanism through which international space law is transmitted to national law. If States do not implement the relevant national legal mechanism to allow them to ‘authorise and continually supervise’ the activities of their nationals in outer space, then they are in breach of their international obligations.
However, what exactly ‘continually supervise’ means is insufficiently determined. Does a State need to know everything that is happening in order not to be in breach of its international obligations? There are practical issues with this particularly as non-governmental activities take place further away and over longer time frames. Further, it seems unlikely that any State would wish to place such a burden on itself. Yet it is important, international space law can only be imposed on non-governmental space actors by their States which makes Article VI a vital article for the viability of effective governance of space activities in the twenty-first century and beyond. This is an issue that I will be looking at in more detail over the coming months and years, so stay tuned for news.
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Michael Gerhand ‘Article VI’ in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl eds., Cologne Commentary on Space Law, vol 1 (1st edn, Carl Heymanns Verlag, 2009), 104
See Article 17 of the Law on the Exploration and Use of Space Resources