Thomas Pesquet has just joined the international station. Coincidentally, on May 6 and 7, a conference on space law challenges was held in Toulouse (Haute-Garonne). The opportunity to pose all possible questions on this topic to Clementine Borez, Professor of International Law at UT1 University.
A conference is being organized in Toulouse (Haute-Garonne) next week at the University of Toulouse 1 Capitol to try to answer questions about law in space. An event that places Occitania at the center of spatial issues.
What rules apply in particular in space?
Clementine Boris: After the launch of the first Russian satellite, Sputnik, at the end of the 1950s, the international community realized the need to regulate outer space. We must remember that we were during the Cold War. The United States and Russia had a great interest in organizing this space, especially since they were the only two countries that had access to it. They dragged the international community and there was a whole group A series of international treaties That may have been adopted at that time. The first, the Space Treaty, dates back to 1967. It has been supplemented by other multilateral agreements that specifically relate to astronauts or other more specific issues.
What does the first treaty signed in 1967 stipulate?
CB: It defines the main lines and main principles. In particular, he insists on the need for the peaceful use of outer space. We have to see ourselves in the context of the Cold War: the entire United Nations organization has directed its work on this aspect of the peaceful use of space. Except that the framework that was put in place, like that of other treaties that were later adopted, if we take this example, it is a very general framework. They don’t go into too much detail because at first, we were almost fanciful.
What can we do and what not do it concretely?
CB: We must distinguish outer space and celestial bodies (planets, stars, meteors …). Outer space is the domain of freedom of movement, and this principle of freedom is fundamental. We have the right to circulate in space, and we have the right to send things into space because we are not on state territory. It is precisely for this reason that international law must reformulate itself because we are not on state land.
We are free to move in space, but what are the applicable rules regarding celestial bodies?
CB: The rules are very specific. For example, Article 4 of the 1967 treaty prohibits the military use of space. There is a list stating what is not allowed. But since there is a list, not everything is mentioned. In particular, we cannot send an object carrying a nuclear weapon into Earth orbit, nor can we conduct military maneuvers on the Moon. But who should be checked? Another difficulty in space is the difficulty of observing what is happening there: Who left the debris? Knowing if China when it goes to the hidden surface of the moon, what it is doing is legal, because it cannot be seen. Everything is very complicated. It is control over respect for the law. Another difficulty in space is the difficulty in observing what is happening there.
Specifically, nations are preparing to lead in space. We saw it in March, with the first AsterX French military maneuver. Can the law of war on Earth be converted into space war?
CB: No, specifically, we lack appropriate legal categories. Normally, we should apply the UN Charter law, but here also questions arise. Article 4 of the 1967 treaty leaves many gray areas: on the question of the right to intervene, the outbreak of war or self-defense. Is the destruction of a space station in another country considered aggression? Can an astronaut be considered a protected civilian in armed conflict, or can he be a combatant? What would the status of Thomas Pesquet and his potential protection be if the International Space Station fell into the midst of an armed conflict? The law remains unclear. Two research programs are currently attempting to clarify these questions: in Canada and Australia. The The conference to be held next week These questions will be brought up on the table.
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Are astronauts meticulously protected by a certain legal status?
CB: Yes, astronauts are called “emissaries of humanity”: they are no longer just citizens. There is a legal situation that follows. They must be rescued if they have a problem: All states must help them regardless of their nationality, whereas in international law, one is helped by one country. There is a specific agreement: Once you set foot on the moon, you qualify as an astronaut. This poses potential problems: if space tourism develops, the billionaire who sets foot on the moon would qualify as an “emissary of humanity,” even though they are not in space to do the same job that Thomas Pesquet did, for example.
Will visiting the moon or Mars look like visiting a new part of a country? Do the moon and mars belong to a specific country?
CB: Celestial bodies do not belong to anyone: A country cannot claim a part of the Moon, for example. But there is no consensus on what countries can and cannot do with the resources there. There is a licensing system in place, especially if you want companies to be able to go and search for resources on the moon or on Mars. The United States and Luxembourg in particular have adopted a law allowing companies to search for resources. They have this international standing in helping these companies and providing them with a legal framework to encourage them to develop an activity to extract these resources.
If resources were extracted from celestial bodies, who would they belong to?
CB: In 1979, the Moon Agreement was sealed. He says that the moon is the common heritage of mankind. Article 11 states that a system should be put in place to allow all countries to benefit from the resources that can be extracted there. There is a complete sharing system that needs to be put in place. But no agreement on participation has been adopted, so we still don’t know how resource sharing can be implemented, even as the likelihood of extraction increases immediately. On the other hand, there are many states that are not parties to this treaty: they are thus not bound by this rule. There is a lot of ambiguity which means states will rush to breach to try to allow certain activities. Space marketing requires some questions to be addressed quickly.
When it comes to marketing, we see that private players are taking part in space missions, in particular Space X.
CB: The space sector requires huge money. The United States has chosen to place great prominence on the private sector. On a legal level, these companies are not in space law which only speaks to states. These companies are treated like those of the state. In international law, a company has a nationality. If a state allows it to carry out activities in space, that state is responsible and it must verify that these activities comply with international law. However, the interpretation of this right is nonetheless, in the first place, undertaken by the state. Also, from the moment companies become a major player, litigation changes: we are no longer in the interstate liability system. Therefore, we are faced with the mechanisms of private law, in particular the increasing resort to arbitration.
Space X said it will apply its own law to Mars. Given that we do not know what international law says, and that the law of one country will not be applied more than the law of another country. So if Elon Musk were to establish a colony on Mars, his firm’s lawyers would envision the colony’s law. It’s a big problem, it gives special operators power which is quite unusual. Their arrival disturbs traditional logic. The questions we’ve left pending are coming back full speed and will need to be organized. That is why we are holding the conference: We are aware that we are at a somewhat critical stage with a lack of rules.
The symposium on “Outer Space and International Law” will take place on May 6 and 7 at the University of Toulouse 1 Capitol. Registration required. A live broadcast will be prepared and a video recording will be posted after the event.
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