Humans are driven towards exploring space and discovering new worlds. This article elucidates the meaning of outer space, the right to explore outer space and the limit up to which this right could be enjoyed.

By: Suhaiba Geelani

Introduction

“The Earth is the cradle of humanity, but mankind cannot stay in the cradle forever.” Considering the lineage of Earth, Earth is a descendant of the Universe. It is a small town with many neighbours in the big Universe. Back in old days, the Sovereign States had the rights of their land going up forever and ever in perpetuity. But then scientists explored outer Space and things got complicated.

What is Outer Space?

Outer space is that expanse of gigantic Universe that exists beyond Earth’s atmosphere. It includes all the space above the lowest perigee achieved by any satellite put into orbit. Space encompasses that aerial arena which cannot be claimed by any Sovereign State.

The relations between the States as well as their relations with international organizations in the sphere of outer space is regulated by International Space Law, developed by The Committee on the Peaceful Uses of Outer Space.

Whilst the Committee has concluded five international treaties and five sets of principles on space-related activities, the Outer Space Treaty of 1967, forms the base of International Space Law. All the five treaties deal with issues such as the non-appropriation of outer space by any one country, arms control, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, the prevention of harmful interference with space activities, and the environment, the notification, and registration of space activities, scientific investigation, and the exploitation of natural resources in outer space and the settlement of disputes. The freedom of exploration, and use of Outer Space, enshrining the idea that outer space is Res-Communis i.e. common heritage of mankind, is one of the key provisions of international outer space law. Mere a swift glance at this vital concept begs numerous questions. Who can explore outer space? What does exploration involve? What is the limitation of this freedom?

Who can explore outer space?

Article I of the Outer Space Treaty provides that outer space, including Moon and other celestial bodies, shall be free for exploration and use by all states without discrimination of any kind, on the basis of equality, and, in accordance with International law, and there shall free access to all areas of celestial bodies. It reiterates that outer space is not subject to national appropriation. It shall be the province of all mankind. No State can claim sovereignty over them by means of use or occupation or any other means. The language of the provision is extensive. It refers to “all” States, and for this reason, there can be little doubt concerning the intention of the drafters to include or exclude any specific State. Thereby, all the State, Parties, signatory, or Non Parties have the right to freely explore and use the outer space. The treaty does not specifically preclude other international entities like international governmental organizations, non-governmental organizations and individuals, etc. from the exercise of this freedom. However, the activities of non-governmental entities require the authorization and continuing supervision by the State concerned. In the exercise of this universal right, States are free to determine all aspects of their participation in the exploration, and use of outer space on an equitable and mutually acceptable basis as long as the contractual terms in such cooperative ventures are fair, reasonable and in full compliance with the legitimate rights and interests of the parties concerned. The states are obliged to respect, and not hamper one another’s interests in this sphere.

What does exploration and use involve?

The Exploration and use cover a wide range of human activities irrespective of whether such activities are carried out directly by man or indirectly through the use of his instruments. Outer Space Law does not specifically mention any list of activities that the countries are supposed to carry out in the outer space.

However, each of the treaties as well as declarations constituting International Space Law, stresses the notion, that the activities carried out in outer space and whatever benefits might be accrued from outer space should be devoted to enhancing the well-being of all countries and humankind. 

The benefits may be the actual or the potential benefit including material, political, psychological, propaganda, military and other benefits and interests. The activities of States in the exploration and use of outer space shall be carried on in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding. The “Benefits Declaration” declares that all States, particularly those with relevant space capabilities and with programmes for the exploration and use of outer space, should contribute to promoting and fostering international cooperation on an equitable and mutually acceptable basis. In this context, particular attention should be given to the benefit for and the interests of developing countries and countries with incipient space programmes stemming from such international cooperation conducted with countries with more advanced space capabilities. The General Assembly, after recognising the significance of nuclear power has even extended its limited usage in the outer space as well.

Limitations 

The ubiquitous right of freedom of exploration and use of outer space is not absolute. It is limited by a number of both general as well as
specific provisions. 

The  Outer Space Law explicitly acknowledged that the exploration and use must be carried on in accordance with the provisions of International Law and for the benefit of mankind.  Part II of Article IV of the Outer space treaty specifically limits the exploration and use of moon and other celestial bodies for peaceful purposes.

Though , the term peaceful has not been defined anywhere, it could be interpreted that peaceful simply means non aggressive or amiable . Space law prohibits installation of any nuclear weapons or weapons of mass destruction, establishment of military bases or any kind of military operations on celestial bodies or satellites or space stations. It forbids national appropriation and harmful contamination of outer space. 

Conclusion

International Space Law has appreciably maintained and regulated the conduct of the states in the sphere of Outer Space. But it contains certain scanty provisions, which are in dire need of updates. In addition to this, Space and its exploration a nd use have drastically changed over last few decades, so a robust space regime is of utmost importance.