Centre for Aviation and Space Laws Volume 2 Issue II

IS THE OUTER SPACE AN OUTLET FOR TAX EVASION?

Twesha Karnani*

Keywords: National Appropriation – Outer Space Treaty – Residential Status – Sovereignty

Introduction

Private space exploration is becoming common, and opportunities for extraterrestrial operations have grown considerably. A glimpse of the issues arising from taxing outer space activities is seen in taxing the activities conducted in digital space. The space sector generates an income of $350 billion and it is expected to jump to $1 trillion by 2040. It is important to tax those involved in this sector especially if such activities are for personal benefit and not for the advancement of mankind and science. On this issue, US Congressman Earl Blumenauer had planned to introduce the Securing Protections Against Carbon Emissions (SPACE) Tax Act. He believes that “space exploration isn’t a tax-free holiday for the wealthy. Just as normal Americans pay taxes when they buy airline tickets, billionaires who fly into space to produce nothing of scientific value should do the same, and then some”.

Typically, the levy of tax has been based on the place of residence of the individual, a company’s place of operation or where a property is situated. However, when it is difficult to prove an individual’s or entity’s existence physically, assessing taxes becomes challenging. Even though, while assessing taxes in such scenarios, the basic principles of taxation law must be kept in mind, the present regime might be insufficient to provide for the rapid growth that is taking place in this sector. 

The levy of tax in the space sector can be on a variety of operations such as services of satellites, astronauts staying aboard the International Space Station (ISS) and space tourism. It has been opined that future legislation in this area must be based on the laws that govern the high seas.

This write-up discusses how the levy of taxes on the services provided by satellites, the income of astronauts or other outer space activities pose to be an issue. Furthermore, a prospective suitable tax regime is also briefly discussed. 

The issue with levying tax on satellite services

The most notable instance of space technology that causes problems for tax officials is the usage of satellites. It is challenging to establish a proper way of taxing because of the ambiguous character of such services. The primary issue with satellites is that since they orbit the Earth, they will be over more than one country while providing their services to a third country. The “footprint” of the satellite cannot be considered the place of business of the satellite operator. From the point of view of direct tax, the residential status of the satellite operator is a critical component and not the satellite’s actual location.

Article II of the Outer Space Treaty states that outer space “is not subject to national appropriation by claim of sovereignty”. This doctrine of non-appropriation places restrictions on those who want to profit from space activities. Since States cannot claim sovereignty over outer space, the question which arises is whether imposing and collecting taxes could possibly violate the non-appropriation doctrine as taxes are based on the sovereign territorial rights of the States. This is something which needs to be determined in order to decide whether outer space activities could be taxed. 

In Communications Satellite Corporation v. Franchise Tax Board, satellites were operating in the geostationary orbit. The owners of the satellites, who were located outside of California, established an earth base that gathered signals for transmission to other carriers. Claiming the satellite was utilised within the state, the California Court of Appeal supported the incorporation of the satellite’s worth in the property for allocating California income tax. Nevertheless, this was reliant on the earth station’s presence because, without it, California wouldn’t be connected to the satellites’ functions in space.

In Asia Satellite Communications Co. Ltd. v. DIT, the Court held that an important component in determining how to tax such situations is through thoroughly analysing the technical operations of the satellites.

Where do Astronauts pay taxes?

Scott Kelly, the astronaut, lived in space for almost a year. Does this mean he didn’t have to pay taxes since he was not a resident of the United States or for that matter even the Earth? Even though he orbited the Earth every 90 minutes, he didn’t visit any country since the sovereign airspace does not stretch out to outer space. In such scenarios too, due to the lack of laws, the traditional principles of taxation need to be adhered to. This situation is identical to seafarers rendering their services on a ship. However, one must establish the nature of employment abroad, whether the International Space Station falls under the ambit of a “ship” or a “vessel”. In the Indian scenario, hypothetically, the residential status of the astronaut will be considered based on the number of days they stay aboard the ISS and physically outside the boundaries of India.

How should outer space activities be taxed?

The method of taxing outer space activities can be like taxing activities in digital space. It’s possible to argue that the inadequacies of tax regimes based on residential status have been made apparent by cross-border online services. To combat this, the Organisation for Economic Co-operation and Development (OECD) is spearheading initiatives to fundamentally redefine the global tax regime. Space taxes may eventually follow an identical course. However, this does entail a risk since individual nations would implement unilateral measures, creating an unstable and challenging tax environment for the space industry. Using residential status for calculating the amount of tax to be levied is not the right step in the case of space activities even though it is considered to be of central importance to this sector.  This is due to the fact that firstly, space does not have boundaries and the Outer Space Treaty prohibits states from claiming sovereign power in outer space. Secondly, there are many ambiguities when it comes to applying the same residence-based tax system in this scenario which will lead to more problems. 

An alternative model for taxing outer space activities would be through the existence of a voluntary tax system between participating nations. These nations can choose to invest in the advancements of space technology in order to be able to reap the benefits that arise out of it. This could make it possible for new countries to engage and profit from space activities while also taking into account the legitimate interests of those countries and commercial players who currently fund these activities solely. Nevertheless, it is crucial to note that a voluntary tax system for space activities could generate issues of equity, as certain nations will gain from such activities even if the investment made by it is low in comparison with others. For such a framework to prosper, there must be the existence of a universal organisation administering space tax. This function can also fall under the functions of the World Bank. 

Conclusion

Through this write-up, it can be understood that outer space is not an outlet for tax evasion. The lack of a proper tax regime does not imply that taxes need not be paid appropriately. Although governments and organisations, both domestic and global, continue to commit a significant amount of money and time to the expanding space sector, there has been less focus on making sure that tax regimes keep up with it. In complex situations such as these, the basic principles of taxation law must be kept in mind. However, it is challenging to do so since space does not have any boundaries and nations are prohibited to establish sovereignty in outer space. Even though outer space lies outside the boundaries of any country, individuals are liable to pay taxes for the income earned in space. It can be concluded that there are many gaps and a lack of a proper tax system when it comes to outer space activities.  Therefore, a multilateral approach must be adopted to tackle this issue. There shouldn’t be a zero-tax system being followed in zero gravity. The lack of adequate laws can allow people to find loopholes to reduce their tax liabilities. However, the space sector is in no way a sector that is a channel for tax evasion.

*Student at Symbiosis Law School, Hyderabad.

References

Diane Riordan, ‘The Challenge of Taxing Business in Outer Space’, Challenge , Vol. 47, No. 6, 2004, pp 109-116.

Centre for Aviation and Space Laws Volume 2 Issue II

Liberalization of the Indian Space Sector: Private Participation and Legal Challenges

Rongeet Poddar*

Keywords:      Authorization – Draft Space Activities Bill, 2017 – IN-SPACe – Outer Space Treaty – Supervision

Introduction

The Indian government is keen to ramp up private sector participation in space activities, following affirmation from the Union Cabinet. The principal science advisor of the Indian government has recently underlined the intention to have greater involvement from private players, acknowledging the Indian Space Research Organization’s (ISRO) limited capacity. While ISRO has historically played a pivotal role towards advancing India’s space programme, the private sector was restricted to a collaborative role in the manufacturing sphere.

Private players are now expected to actively engage in launching satellites and offering myriad services that would facilitate various domains such as agriculture by enhanced accuracy in climate patterns, increase connectivity capacity and offer an impetus for businesses in the long run. Moreover, the exploration of private avenues is likely to allow the premier government space agency to devote its attention solely to specialized research programmes. The government has also created leeway for a foreign investment stimulus – 100% foreign direct investment has been permitted in the sphere of satellite operation. It is expected that such liberalization would further augment India’s burgeoning capacity in the space activities domain.

From a legal standpoint, the challenge before policymakers has been to strike a balance between offering a fillip to privatization in the space sector and also having a concrete regulatory framework in place. Laws must be designed not only to ensure compliance to international treaties but must also mirror global best practices. Since commercial entities will be keen to maximize profits to recoup the substantial investments that space projects demand, it is imperative that compliance costs are minimized. Therefore, the legal architecture regulating space activities is also expected to be amenable to business interests.

Recent privatization trends in the space sector

The Indian National Space Promotion and Authorization Centre (‘IN-SPACe)has also been set up to enable private enterprises to utilize government infrastructure for conducting satellite launches and providing a myriad range of services in the process. As an autonomous institution functioning under the aegis of the Department of Space, the IN-SPACe has also been entrusted with regulating the involvement of private entities. Recently, two Indian enterprises have received the green signal from IN-SPACe for their respective payload launches.

At the same time, the Draft Space Activities Bill, 2017 (‘Draft Bill’) had been envisaged, owing to the pressing need for having a domestic space law. Despite the advent of IN-SPACe as a regulatory institution, there has not been sufficient progress in the legislative sphere. Interestingly, even as the present dispensation in India appears to be more receptive to the prospect of private sector engagement in outer space activities, the legal regime appears to be at a nascent stage.

As acknowledged in the ‘explanatory note’ to the Draft Bill, the government is cognizant of the fact that if space exploration has to be pursued on a commercial scale, a licensing framework has to be established for authorizing private forays into space. In fact, a robust national space law is seen as the ideal precursor to private participation. It can provide investors a sense of certainty as they seek to leverage funding for satellite operations.

While IN-SPACe maybe the genesis of a private space activity ecosystem, it has to be backed by a concrete space law, as is the case in advanced space-faring nations of the West. The overarching tendency towards privatization in the explanatory note has been flagged since it places commercial use of space at a higher pedestal over India’s treaty commitments; this approach is viewed as a slippery slope. Even though the Draft Bill is regarded as a welcome move, the inadequacies remain far too intractable to overlook.

International commitments

Being a party to all major international treaties governing outer space, barring the Moon Agreement, India is obligated to adhere to treaty obligations. It must be noted that Article VI of the historic Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967 (‘Outer Space Treaty’) puts the onus on state parties to bear responsibility for “national activities in outer space.” A mandate has been imposed on states to create an apparatus for supervision. Secondly, Article VII of the Outer Space Treaty attributes liability to state parties for damage caused by space objects launched from their territory. Thus, the accountability for private space activities has effectively been thrust on state parties.

International efforts, spearheaded by the International Law Association, for pinpointing a set of uniform global regulation standards also culminated in a model law adopted by the United Nations Committee on Peaceful Uses of Outer Space. Under the model, national legislation proposed, private sector participation in space activities would be subject to a strict standard of scrutiny undertaken by states domestically based on ‘authorization’ and ‘supervision.’ Its regulatory design is backed up by sanctions regime under which authorization suspension is rendered permissible.

Additionally, a provision has been incorporated for environmental impact assessment of private space activities. The model law necessitates the adoption of a debris mitigation framework. There is also an avenue for the government to pursue claims against a private entity in the event where compensation has to be paid by the state to a third party for the damage caused by the private space actor. Even as the Draft Bill in India claims to have utilized the ILA model law as a blueprint, there are several pitfalls in the proposed law which have been highlighted in recent scholarly works.

Scrutinizing the Draft Space Activities Bill, 2017

The applicability of the Draft Bill is restricted to enterprises in the private sector which are registered or incorporated in India. The bill does not provide clarity as to what will happen if foreign firms seek to participate in the Indian space sector in a collaborative capacity with the private sector. Joint ventures undertaken by Indian firms with foreign investors could be operating in a legal vacuum. Moreover, it may be an uphill task to determine a space object of ‘Indian origin’ to which the proposed legislation would be applicable – the Draft Bill is silent on the critical question.

The definition of ‘space activity’ in the Draft Bill is further shrouded in ambiguity. Its residuary segment potentially brings in research or allied activities within the fold of space activity. The wide ambit of the definition is also likely to cover the manufacturing sector as it is inclusive of space objects ‘procurement’. The expansive nature of the clause appears to transcend the understanding of space activity in the ILA model law which encompasses “other activities essential for the launch, operation, guidance and entry of space objects.”

The power of supervision and regulation have been conferred upon the Central Government. In addition to policy making pertaining to outer space activities, the government can issue licenses for commercial space activity and also monitor compliance with safety standards prescribed. Since the Draft Bill had identified the need for a ‘regulatory mechanism’, it is evident that IN-SPACe is the concerned agency that will play the role of an autonomous agency with regulatory functions.

As outlined in Chapter III of the bill, the license issued by the government is a sine qua non for commercial space activity – its object is to ensure compliance to India’s treaty commitments. Interestingly, leeway has been provided for conduct of space activity in the Draft Bill even without authorization as long as it does not contravene India’s international obligations. The Central government has been designated as the sole authority which can provide such an exemption, subject to parliamentary scrutiny. However, this provision may be singled out for criticism as it could be prone to misuse. Since, the Bill is silent about the terms of exemption, it could provide untrammelled impunity to operators of space activity in the private sector. Thus, there is an urgent need to rethink the exemption clause.

While the licensing terms in the Draft Bill have a ubiquitous reference to preventing “adverse damage or pollution to the environment,” it does not insist upon a comprehensive environmental impact assessment for space activities based on precautionary principle. It remains to be seen whether the lacuna in the draft is addressed in the near future. On the other hand, the Central government’s blanket ownership right on “intellectual property right developed, generated or created onboard a space object in outer space” is further likely to hinder private sector engagement. Likewise, the incorporation of an access and benefits sharing clause as a part of the regulatory mechanism is also likely to be a cause for concern. Lastly, scholars have highlighted how several aspects of commercial activity in outer space such as resource extraction or tourism have been ignored in the Draft Bill.

Conclusion

Despite its shortcomings, the Draft Space Activities Bill, 2017 was a welcome move. It underscored the government’s tacit recognition that the space sector needs regulatory intervention before the private sector transitions to prominent stakeholders from marginal players restricted to manufacturing activities. In its current form, the Draft Bill has several contentious provisions, as identified, and remains a work in progress. There is scope for further engagement with the critical stakeholders for the creases to be ironed out.

With the IN-SPACe already instituted as a facilitator for stimulating private investment and participation in space activities, the government remains keen for governing non-governmental engagement in the space sector. It must also remain cognizant of fulfilling India’s international obligations in this regard. Besides adhering to the mandate of international treaties, the new law has the enviable task of ushering in a regulatory environment that is responsive to the demands of investors who seek to offer a boost to India’s space sector. At the same time, environmental concerns and public safety issues cannot be relegated to the margins.

* LL.M. graduate with International Law specialization.

Centre for Aviation and Space Laws Volume 2 Issue I

Military Use of Commercial Remote Sensing Satellites

Agniva Das* and Dr. Amol Deo Chavhan**

Keywords: Commercial Satellites – Militarisation – Remote Sensing – Satellite Imagery – Outer Space Treaty

Background

On 1 March 2022, Ukrainian Minister of Digital Transformation, Mykhailo Fedorov sent out an appeal to most of the world’s commercial satellite companies via Twitter urging them to help Ukraine by providing satellite imagery for military purposes. The Minister urged eight of the world’s leading earth observation satellite companies to provide high-resolution satellite imagery to monitor Russian troop advancements. Companies like Maxar Technologies and Planet Labs have openly published the images to the media, which is how the world has been witnessing the menace and destruction caused by the war in real time. Moreover, on 2 March 2022, Elon Musk in a tweet acknowledged his direct support to Ukraine by promising to provide better internet connectivity by activating the internet terminals of his satellite internet constellation – Starlink. When civilian or commercial satellites are used for military purposes, it raises serious concerns regarding whether the satellites are to be considered as civilian or military assets.

This is not the first time that civilian or commercial satellites have been used during a military conflict for military purposes. Operation Enduring Freedom, alternatively known as the Global War on Terror, was the first instance when the military relied heavily on commercial satellite space assets like high resolution satellite imagery and satellite communications.

Remote sensing has been used as a mode of surveillance for centuries. Even before the First World War, remote sensors have been utilised by attaching them to hot air balloons and flying them over target cities.  Now, however, specialised satellites with variegated capabilities are being used for remote sensing. These include but are not limited to optical satellites, radar imaging satellites, ultraviolet and infrared imagery satellites, and signal intercepting communication satellites. Remote sensing has several advantages over any other forms of reconnaissance as it can provide high-resolution imagery of not only visible light but also other wavelengths of light. This information can be further used for monitoring enemy troop advancements, strategic planning, and tactical threat assessment.

With the explosive growth of science and technology and the reliance of military activities on the same, the demand for better connectivity and higher-resolution imagery was beyond the military’s ability to fulfil with military owned satellite technologies. The biggest military in the world, the United States Military has since then heavily relied on commercial satellite assets for military use.

Since the attacks of 9/11, the United States have dedicated billions of dollars for the renovation of their military satellite technology for the swift utilisation of these assets by the UK, US and Canadian forces in the ‘Global War on Terror’. Infact, in the year 2006 the United States National Space Policy which was authorised by then President George W. Bush directed all governmental departments and agencies to use, purchase and even modify the U.S. commercial space capabilities and services to the maximum extent to meet the United States Government requirements and make them cost-effective.

Legalities

Such instances have raised further questions regarding the legalities of the militarisation of commercial or civilian satellites, especially with respect to remote sensing, which has been widely debated in recent years. 

The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, also known as the Outer Space Treaty, provides certain general provisions for the peaceful exploration and use of space for the benefit and in the interests of all countries on the basis of equality and in accordance with international law. However, it does not provide any specific provision to tackle the legal problems surrounding remote sensing.

It is certainly difficult to understand what kind of military applications fall under activities that are “for the benefit and interest of all countries” as mentioned in the Outer Space Treaty, as any military activity by one country can be seen as an act of aggression by another country. Article I of the Outer Space Treaty, thus, creates a loose obligation that all activities should not be ‘harmful’ in the general sense as opposed to being ‘beneficial’. However, it does not provide any clarity on whether placing commercial remote sensing assets with military capabilities in earth orbit is in the common interest of all countries.

Article III of the Outer Space Treaty dictates that all outer space activities shall be conducted in accordance with international law which shall include the Charter of the United Nations and it shall be in the interest of maintaining international peace and security and promoting international cooperation and understanding. Since the United Nations Charter overrides rights or obligations under any other treaty, the Outer Space Treaty must be read in consonance with the United Nations Charter. In the interest of maintaining international cooperation, Article 2(4)  of the United Nations Charter provides that countries should refrain from threatening and using force against the territorial integrity of any country, or in any other manner inconsistent with the purposes of the United Nations.

Article IV of the Outer Space Treaty prohibits placing into orbit any objects carrying nuclear weapons or any other kinds of weapons of mass destruction and seeks the complete demilitarisation of celestial bodies. However, when read in unison with the United Nations Charter, it can be understood that no restrictions are imposed on any other military activities like remote sensing or satellite communications.

Article IV further dictates that the Moon and other celestial bodies shall be used for ‘peaceful uses’ by all State parties. Fortification, setting up military establishments and testing of weapons are strictly forbidden. What the Outer Space Treaty fails to address is the clear meaning of ‘peaceful uses’ and what kinds of activities fall under this definition. Moreover, the provision provides for peaceful use of the Moon and other celestial bodies but fails to mention that outer space as a whole is ought to be used for peaceful purposes and not only for celestial bodies.

The question that arises here is whether using military capabilities like remote sensing of other countries by using commercial assets violates or infringes the rights or territorial integrity of those countries. If we were to consider the principles of air and maritime law, it is clear that reconnaissance or espionage is permissible on the high seas but not in the territorial waters or the territorial airspace of countries targeted for surveillance.

The Principles Relating to Remote Sensing of the Earth from Outer Space (the “Remote Sensing Principles”) which was adopted by the United Nations in 1986 creates more confusion in this regard as Principle I of the same states that “remote sensing activities by countries shall be conducted to improve natural resources management, land use and the protection of the environment.” This provision leaves room for narrow interpretation that remote sensing shall only be conducted for limited civilian purposes and no military applications for remote sensing shall be allowed.

A better understanding is provided under Principle IV which states that activities are to be undertaken keeping in mind the rights and interests of the sensed country and in accordance with international law. Principle XII further directs the sensing country to provide access to all primary data and the processed data to the sensed country on a non-discriminatory basis and on reasonable cost terms. However, there is a continuous debate regarding the ambiguous nature in which the words ‘non-discriminatory’ and ‘on a reasonable basis’ have been used in the provisions.

The Principles on Remote Sensing also obligate states to undertake remote sensing activities in consonance with norms of international law and state responsibility, therefore the Principles on Remote Sensing act as the basis for states to be held accountable for their actions and also creates obligations for them under the international law framework. On the other hand, the recent rise of non-state actors who have increasingly begun to be drawn into the space race means that Principles in their current form are not extended to them. Further, the rapid ascension of private entities into the commercial satellite spaces also creates a new challenge for the existing framework which is not only not designed to encompass such non-state actors but also does not take into consideration their involvement in military conflicts. The lacunae in this regard needs to be addressed keeping in mind the changing dynamics, especially in light of recent developments.

Conclusion

Lawful remote sensing should be a matter of consent and consultation. Any military espionage using commercial assets with respect to remote sensing should not be considered lawful as it infringes the rights and interests of the sensed countries. It is surprising that most countries do not consider remote sensing by other countries for military purposes to be unlawful. The majority of countries which possess capabilities to use remote sensing technologies for espionage and reconnaissance are the ones with vast wealth and tremendous military capabilities, this may be one of the reasons why unlawful remote sensing is still ubiquitous in the present day. A combined reading of Article I, III and IV of the Outer Space Treaty tells us that the Outer Space Treaty only creates a loose obligation on all State parties who are to conduct activities for the benefit and interest of all countries, which shall be done in accordance with the international law in the interest of maintaining international peace and promoting international cooperation and that it shall be done exclusively for peaceful purposes.

Principles IV and XII of the Remote Sensing Principles 1986, are small steps toward the right direction as they make it mandatory for countries to have the prior consent of the sensed country before undertaking any remote sensing activities and provide all the primary data concerning the sensed country in a non-discriminatory and cost-effective manner.

*4th year BA., LLB(H) student at National Law University and Judicial Academy Assam

**Associate Professor of Law, National Law University and Judicial Academy Assam

Centre for Aviation and Space Laws Volume 2 Issue I

Can Space Tourism co-exist with Space being turned into a War Zone?

Karl Grossman*

Keywords:   Outer Space Treaty – PAROS Treaty – Peaceful purpose – Space Doves – Space Force

The push to turn space into a war zone could spell goodbye to space tourism.

The space tourism drive that is underway, led by billionaires Jeff Bezos, Richard Branson and Elon Musk is seen as only a start. Meanwhile, there’s the push, led by the United States, to turn space into a war zone—and this, despite the Outer Space Treaty of 1967 that sets space aside for peaceful purposes. As the then U.S. President Donald Trump declared in 2018 while advocating for formation of a U.S. Space Force, “it is not enough to merely have an American presence in space. We must have American dominance in space.”The following year, he signed the National Defense Authorization Act of 2020 establishing the Space Force as the sixth branch of U.S. armed forces and said: “Space is the world’s newest war fighting domain.” The Space Force, Trump said, would “help” the U.S. “control the ultimate high ground.”  Then, at the unveiling of a Space Force flag at the White House, Trump said: “Space is going to be…the future, both in terms of defense and offense.”

Trump’s successor, U.S. President Joe Biden, has not rolled back the U.S. Space Force. Several Democratic members of the U.S. House of Representatives last year introduced the No Militarization of Space Act that would abolish the U.S. Space Force. The prime author of the legislation, Representative Jared Huffman of California, in a statement, called the Space Force “costly and unnecessary.” 

The measure got nowhere. That was not surprising considering that most Democrats in the U.S. House of Representatives and Senate and nearly all the members of the Republican Party voted for the National Defense Authorization Act of 2020 providing for the Space Force’s formation. Thus, the U.S. Space Force is moving forward.

Last year, Space Force requested a budget of $17.4 billion for 2022 to expand its reach as reported by Air Force Magazine.  Space Force also aims to fund more than $800 million in new classified programs.“Guardians” is the name adopted by the U.S. Space Force in 2021 for its members.

In 2020, the Space Force received its first offensive weapon: satellite jammers. The satellite jammers can be used to interrupt any satellite communication and can hinder warning systems designed to detect attacks from the US. Soon afterwards, the Financial Times’ headline was: “U.S military officials eye new generation of space weapons.”

As to the impacts of war in space, Bruce Gagnon, coordinator of the Global Network Against Weapons and Nuclear Power in Space, in an interview in 2021 said:

In 1989 during one of our campaigns against NASA plutonium launches [NASA’s launching of plutonium-powered space probes], we had a rally at the Kennedy Space Center in Florida, and our keynote speaker that day was Apollo astronaut Edgar Mitchell, one of the moonwalkers. And he came and said if there is one war in space, it’ll be the one and the only. He said because we will create so much space debris or space junk from all the destroyed satellites and things like that in space that there would literally be a minefield encircling the planet – he called it a piranha-laced river—and we would not be able to get through. A rocket would not be able to get off this Earth through that minefield. So, it’s insane to think about having a war in space.

Gagnon has also spoke of how space warfare would mean activity on Earth would immediately shut down as cell phones, ATM machines, cable TV, traffic lights, weather prediction and more are all hooked up to satellites.

Alexander Chanock, while pointing to the generation of space debris resulting from warfare in space, noted that space weapons would produce an immense amount of space debris. Chanock, then a candidate for a law degree, now a legislative counsel in the US House of Representatives, wrote that, “The Fear is that destroying in space could generate extremely dangerous debris with a long orbital life.”

Chanock quoted Dr. Joel Primack, professor of physics and astrophysics at the University of California, Santa Cruz, stating that “the weaponization of space would make the debris problem much worse, and even one war in space could encase the entire planet in a shell of whizzing debris that would thereafter make space near the Earth highly hazardous for peaceful as well as military purposes.”

The blueprint for international cooperation in space has been the Outer Space Treaty of 1967 which sets aside space for peaceful purposes and declares it a “global commons.” It was put together by the United States, United Kingdom and the former Soviet Union and has wide support from nations around the world. As Craig Eisendrath, who as a young U.S. State Department office was involved in the treaty’s creation, explained, the aim of the Outer Space Treaty was to de-weaponise space before it got weaponized to keep war out of space altogether.

The Outer Space Treaty of 1967 prohibits placement “in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction or from installing such weapons on celestial bodies.”  For decades there has been an effort to extend the Outer Space Treaty and enact the Prevention of an Arms Race (PAROS) treaty, which would bar the placement of any weapons in space. China, Russia and Canada have been leaders in seeking passage of the PAROS treaty. But the United States—through administration after administration, Republican and Democrat—has opposed the PAROS treaty and effectively vetoed it at the United Nations. A rationale for the U.S. Space Force has been that it is necessary to counter moves by Russia and China in space, particularly development of anti-satellite weapons. This is what a Cable News Network report in 2021, titled “An Exclusive Look into How Space Force is Defending America,” centrally asserted. There was no mention in the six-minute-plus CNN piece of how China and Russia have been leaders for decades in the push for PAROS, and how China and Russia in recent times have reiterated their calls for space to be weapons-free.

Most recently, the U.S. concern about Russia and China moving into space militarily was heightened by Russia in November 2021 using an anti-satellite weapon to blow up a defunct Soviet intelligence satellite that was launched in 1992. Dr. Paul Robinson, professor of public and international affairs at the University of Ottawa, in an article on RT, views that the Russian effort may be intended to bring the United States to the negotiating table by highlighting the space vulnerability.

The history of U.S. interest in space warfare includes the Strategic Defense Initiative scheme of the U.S. President Ronald Reagan during 1980s, dubbed “Star Wars,” predicated on orbiting battle platforms with on-board hypervelocity guns, particle beams and laser weapons energized by also on-board nuclear reactors.

A U.S. Space Command was set up in 1985. The motto of one of its units, the 50th Space Wing is “Master of Space”. The unit is now a component of the U.S. Space Force.

A January 2022 article in Air Force Magazine called attention on this aggressive stance of the U.S. Space Force. Alexander Chanock also expressed concerns on this issue in his article published in the Journal of Air Law and Commerce. While highlighting the contrasting views on the U.S. developing space weapons, he refers to “Space Doves”, who are against space weaponization, especially Nina Tannenwald. Tannenwald wrote that in the long run she believes that the best way to protect American interests in space would be through stability of the rule of law, rather than through unilateral assertions of military power. She asserts that US should promote a transition to a regime that consists of mutual restraint and benefit in space.

However, Chanock, in his piece, stated: “Although space doves have many valid arguments for reducing the danger of space weaponization, in reality, it is unlikely that their ideas will prevail.” He noted: “The U.S. Congress has consistently rejected any bill that tries to ban the use of space weapons.” He cited bills that “sought to ban space weapons but failed” including the one introduced in 2001 by Representative Dennis Kucinich of Ohio which “did not garner a single co-sponsor.”

Internationally, since the creation of the U.S. Space Force, several nations—including the United Kingdom—have begun to emulate the U.S. in space military posture. “How to halt the space arms race” was the headline of an article in the British publication The New Statesman in 2021. It stated: “This year the UK launched its own space command, with military chiefs acknowledging space as a domain of conflict co-equal with air, land, sea and cyber,” said the piece by Paul Mason.

“We are stuck,” the article concluded. “And while polite verbal fencing takes place at the UN, the major powers of the 21st century are engaged in an unprecedented expansion of military power in space, leaving the vast majority of countries powerless, most of humanity as passive spectators, and the Earth’s orbit increasingly polluted with debris from exploded satellites.”

This is pessimistic forecast need not be. The Outer Space Treaty of 1967 was—and is—a visionary documentary. War on Earth is terrible enough. It must not be brought up to the heavens. This will take continued political will and international pressure—to preserve and extend the Outer Space Treaty of 1967 and its setting aside space for peaceful purposes. Especially in the United States, this will require action at the grassroots because the two major political parties in the U.S. have joined in a bellicose stance on space, supporting it becoming a war zone. Every year, the grassroots organization Global Network Against Weapons and Nuclear Power in Space, founded in Washington, D.C. in 1992 and the leading group internationally challenging the weaponization of space, holds a “Keep Space For Peace Week” with actions around the world. Meanwhile, there are nations around the globe that have, unlike the U.S., adopted a peaceful stance—as reflected in their support for the proposed PAROS treaty.

We must, indeed, keep space for peace. Can space tourism co-exist with space being turned into a war zone? The answer is no. And with a shooting war in space, it will not only space tourism that would be kissed goodbye.

*Professor of Journalism at the State University of New York/College at Old Westbury & Co-founder of the Global Network Against Weapons & Nuclear Power in Space.

Centre for Aviation and Space Laws Volume 1

Responsibility for Activities in Outer Space

Danny Johansen*

Keywords: Article VI – Outer Space Treaty – Private Entities – State Responsibility –Ultra Vires

Outer space has always fascinated humanity, which continues to be so in the current day. Private entities are looking to outer space as never before with tourism flights(1), space resources extraction,(2) and even space beer.(3) As most of these activities are done in the interest of the private entities instead of the international community as a whole, debate on private activities in space has attained significance. Is space tourism just rich people playing around and destroying the environment?(4) Whether resource extraction on the moon is in conflict with the Outer Space Treaty?(5) These are just a few of the questions that have arisen in this context.

No matter what side one is on in this relevant debate, a fundamental and older question is; to what degree a state is responsible for the acts of private entities?

Outer Space Treaty

Article VI of the Outer Space Treaty(6) by the first look answers this question when it states that, state parties shall bear international responsibility for national activities, no matter whether it is being done by a state organ or by a private entity. It also points out that the state must authorize and supervise the activities of private players.

Article VI is quite a deviation from the normal customary rules of international law for state responsibility, which is found crystallized in the Articles on State Responsibility(7). Under the rules of the Articles on State Responsibility a state will be responsible for internationally wrongful acts if a conduct consists of an action or omission that is both attributable to the state, and is in conflict with an international obligation of the state.(8) If the act is conducted by a private entity, certain criteria must be fulfilled for the act to be attributable to the state.(9) The criteria vary but there must be some sort of connection between the state and the wrongful act of the private entity like the state authorizing or instructing a private entity to do such an act or the state acknowledging such an act as its own.

Attributability in the Articles on State Responsibility operates as a lower limit for fixing responsibility on any state. Private entities engaging in theft, murder or other offenses would face individual responsibility and state wouldn’t be responsible unless the action can be said to be under the authorization or instruction from the state (and thus attributable). When Article VI of the Outer Space Treaty attributes every activity in outer space to the state, the question would arise on the responsibility of states under the Outer Space Treaty for every tort or a crime committed by the private space entities.

Responsible for what?

Some scholars have pointed out that it can be claimed that the duty of the state can be confined to authorization and supervision.(10) Other scholars are arguing that Article VI attributes all actions, and thus responsibility for every action of a private entity is on the state.(11)

While discussing authorization for the actions by the private players, it has been argued that there has to be a lower limit so that an astronaut needing to brush his teeth does not require to ask the national authorization agency for permission.(12) The same can be said for what actions can be attributed to the state. Bin Cheng discussed that the responsibility could have a wide and a narrow interpretation. The narrow interpretation being that the state is responsible for its normal obligations under international law and would also be responsible for actions by private entities as if they were made by a state agency. The wide interpretation would be that the state is responsible for all actions of private entities.(13)

However, even the narrow interpretation of Bin Cheng still offers a broad range of activities that the state may be responsible for. Thus, a heavy burden of responsibility is imposed on the state, which seems to be undesirable. Also the requisite clarity on the authorization and responsibility of the state for private actions is found missing in these arguments.

Article VI does specifically mention that the actions must be in conformity with the Outer Space Treaty, and thus, it does seem obvious that at least any action in conflict with the Treaty would call upon responsibility. A follow-up question could then be: Is the state responsibility limited to authorization and supervision of private entities or does it stretch beyond to cover the breach committed by private entities? This matters in the situation where a state implements laws regulating private entities in outer space, and only authorizes activity in space in conformity with the Outer Space Treaty. If the private entity then goes against the authorization and commits a breach of the Outer Space Treaty, concerns would arise in fixing responsibility as it is unclear whether the state is directly responsible for the breach or for not preventing the breach by the private entity.

Article VI is famously a compromise between the ideology of the USA and the Soviet Union, where one party wanted free access to space for private entities, and the other wanted to only allow the states to carryon activities in outer space.(14) So it is probably safe to say that the intention was to ensure that the states took the activities of private entities in outer space serious, and that they therefore were directly responsible for the action. However, under the changed circumstances arising out of the increased private space activities, it stands as a problematic proposition.

Application of Public International Law

Article III of the Outer Space Treaty states that all space activities must be in conformity with the public international law. Many states have applied this in their authorization process stating that the activity must not conflict with their international obligations.(15)  Sensible as it may be that international law applies to space; however, this is where we find the aggravation of the problem. Many criminal activities performed by private entities may fall within the ambit of breach of international law upon attribution to the state.

Many different situations could arise. Would every possible murder on the moon be classified as a state assassination? Would theft in a space hotel be attributed to the state? If this would be the primary interpretation of Article VI of the Outer Space Treaty, most states would probably halt private entities from going into outer space. Such a harsh interpretation would confine the humanity to Earth, which is unwise from any perspective.

Solution?

What then would be the minimum threshold for attributing private activities to the state? The Draft Articles on State Responsibility does contain the concept of “Ultra Vires”.(16) When a state agent or organ exceeds authority, the state shall still be held responsible for the actions, if the agent acts in the capacity it has been appointed. So, if an agent has been empowered to exercise governmental authority, the state has responsibility, unless it is clearly outside the function the agent is entrusted. This is of course not directly applicable to the situation at hand as we are dealing with private entities. The essence of the principle could however be used. When an authorized private entity performs activities in outer space, it can be said to wield some kind of state authority, and all of its actions under authorization can be attributed to the state.

It could then be said that if the private entity acts outside the scope of the authorization it should be examined if the entity at least still acted within the capacity of the authorization. This should at least sort out many of the actions done entirely in a private capacity, like for example, murder, theft, extortion etc. Whereas the actions in violation of essential principles of the space treaties, for example, an action contrary to the non-appropriation principle, using nuclear weapons or weapons of mass destruction, contaminating the outer space and celestial bodies and such, would trust responsibility upon the state. Thus, the use of the principle of Ultra Vires would ensure a much needed balance in the application of responsibility norms for private space activities.

References:

* Ph.D. Fellow, Legal Institute, University of Southern Denmark.

(1) Space.com, ‘Space Tourism’ available at
<https://www.space.com/topics/space-tourism> last visited 28 November 2021.

(2) Mike Wall, ‘Trump signs executive order to support moon mining, tap asteroid resources’, available at
<https://www.space.com/trump-moon-mining-space-resources-executive-order.html> last visited 28 November 2021.

(3) Hanneke Weitering, ‘Space beer, anyone? Hops flying on SpaceX’s private astronaut mission Inspiration4 will be auctioned for charity’, available at
<https://www.space.com/inspiration4-space-beer-hops-auction> last visited 28 November 2021.

(4) Tereza Pultarova, ‘The rise of space tourism could affect Earth’s climate in unforeseen ways, scientists worry’, available at
<https://www.space.com/environmental-impact-space-tourism-flights> last visited 28 November 2021.

(5) Brooks Hays, ‘New U.S. space mining law may violate international treaty’, available at
<https://www.upi.com/Science_News/2015/11/27/New-US-space-mining-law-may-violate-international-treaty/8751448634436/> last visited 28 November 2021.

(6) The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty)

(7) Articles on Responsibility of States for Internationally Wrongful Acts (ASR), 2001.

(8)ASR, Art. 1

(9) ASR, Art. 8 – 11

(10) The Max Planck Encyclopedias of International Law, ‘Outer Space, Liability for Damage’, Pedrazzi, Marco, 2008, Para 2.

(11) For example, Ibid, Francis Lyall & Paul B. Larsen, Space Law: A Treatise (Burlington: Ashgate Pub. Limited, 2009) p. 60.

(12) Testimony of Laura Montgomery Ground Based Space Matters Before the Senate Committee on Commerce, Science, and Transportation Subcommittee on Space, Science and Competitiveness, Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space. May 23, 2017, Russell Senate Office Building. p. 5.

(13) Bin Cheng, Studies in international space law (Oxford: Clarendon, 1997) pp. 633 & 634.

(14) Frans G. Von der Dunk, National Space Legislation in Europe: Issues of Authorisation of Private Space Activities in the Light of Developments in European Space Cooperation (Netherlands: Brill, 2011) p. 3.

(15) Stephan Hobe et al., Cologne Commentary on Space Law – Outer Space Treaty: КёльнскийКомментарийККосмическомуПраву – ДоговорПоКосмосу (Berlin: Berliner Wissenschafts-Verlag, 2017) p. 417.

(16) ASR Art. 7.