Introduction

In recent years, a wide variety of space businesses have emerged in Japan, and the sector is thriving. Before entry into such space businesses in Japan, it is recommended to understand the basics of international space law. Accordingly, this article, written by attorneys at TMI Associates who have been involved in a wide range of space-related matters, provides an overview of the international space law that should be understood before entering the market.

Conventions on Development and Use of Outer Space

International space law includes treaties in the space field, customary international law, and other sources. Of these, the following four treaties are particularly important for space business in Japan:

• 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)
• Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the Rescue Agreement)
• Convention on International Liability for Damage Caused by Space Objects (the Liability Convention)
• Convention on Registration of Objects Launched into Outer Space (the Registration Convention)

These four treaties are collectively defined as the “conventions on development and use of outer space” in the Act on Launching Spacecraft and Launch Vehicle and Control of Spacecraft (the Space Activities Act) (Article 2, item (i) of the Act). In the examination of licenses related to the launching of a spacecraft and launch vehicle and licenses related to the control of spacecraft under the Act, it is examined whether “the purposes and methods of use of the spacecraft … are not likely to have an adverse effect on the smooth and precise implementation of the conventions on development and use of outer space …” (Article 6, item (iv) and Article 22, item (i) of the Act). In addition, Article 32 of the Space Activities Act provides that “The Prime Minister may give necessary guidance, advice, and recommendations to launch operators, persons that have obtained a type certification under Article 13, paragraph (1), persons that have obtained a compliance certification under Article 16, paragraph (1), or spacecraft control operators in order to ensure the smooth and precise implementation of the conventions on development and use of outer space ...” Guidance and the like may therefore also be given in connection with these treaties.

Accordingly, when entering the space business in Japan, it is advisable to understand, among the body of international space law, the content of the conventions on development and use of outer space in particular. This article explains the outline of these treaties in more detail than the first installment.

The Outer Space Treaty

As its name suggests, the Outer Space Treaty sets out various principles concerning the exploration and use of outer space, and it is the most important of the conventions on development and use of outer space.

Of particular importance for space business is Article VI of the Outer Space Treaty, which provides as follows:

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.

Under this Article, Japan bears international responsibility for its national activities in outer space, including those carried out by non-governmental entities such as companies and universities. Furthermore, in light of the second sentence of this Article, the Space Activities Act and other laws have been enacted so that Japan can provide authorization and continuing supervision of the activities of non-governmental entities in outer space.

The Outer Space Treaty also sets out other important principles, including the following:

• Freedom of exploration and use of outer space (Article I)
• Prohibition of national appropriation of outer space (Article II)
• Compliance with international law, etc. (Article III)
• Prohibition of placing weapons of mass destruction in orbit around the Earth, etc., and use of celestial bodies exclusively for peaceful purposes, etc. (Article IV)
• Due regard to the corresponding interests of all other States Parties, avoidance of harmful contamination, international consultations, etc. (Article IX)

In addition, Article 22, items (ii) through (iv) of the Space Activities Act, which set out the standards for granting licenses related to the control of spacecraft, refer to “the harmful contamination of outer space including the Moon and other celestial bodies and … potentially harmful interference with activities of other countries in the peaceful exploration and use of outer space provided for in Article 9 of the Outer Space Treaty” (“harmful contamination of outer space, etc.”). The Outer Space Treaty is therefore also important in relation to these standards.

The Rescue Agreement

The Rescue Agreement provides for the rescue and return of the personnel of spacecraft, the return of objects launched into outer space, and other matters. It was concluded to develop and give further concrete expression to the duties under the Outer Space Treaty (Preamble of the Agreement). As its name indicates, the Agreement deals with a limited range of matters.

The Liability Convention

The Liability Convention sets out liability and other matters relating to damage caused by space objects such as satellites, and elaborates on the provisions of Article VII of the Outer Space Treaty. The Liability Convention provides for the liability for compensation, etc. of a launching State that is a party to the Convention (“Launching State A”) for the following damage caused by its space objects:

(i) Damage caused on the surface of the earth
(ii) Damage caused to aircraft in flight
(iii) Damage caused elsewhere than on the surface of the earth to a space object of another launching State or to persons or property on board such a space object

In such cases, Launching State A bears absolute liability for damage under above items i and ii, and fault-based liability for damage under above item iii (Articles II and III of the Liability Convention).

Although the Convention does not directly impose liability for damages on private companies, it is necessary to understand its content when considering whether liability for damages may arise in a space business.

The Registration Convention

The Registration Convention provides for an international registration system, among other matters, for space objects launched into Earth orbit or beyond. Like the other treaties above, the Convention sets out obligations of the States Parties, not obligations of business operators. In practice, therefore, it is more important to understand the “Manual on Notification of Space Object Registration” issued by the National Space Policy Secretariat, Cabinet Office of Japan.

Conclusion

This article has provided an overview of the conventions on development and use of outer space, which are particularly important within international space law, as the international space law that should be understood before entering the market. When entering the space business, it may be necessary to consider, among other things, whether a license can be obtained under the Space Activities Act, taking into account international space law, including the conventions on development and use of outer space.

In addition, as explained in the first blog, various United Nations resolutions and guidelines have been developed concerning the interpretation of these treaties, and depending on the nature of the space business, it may be important to take the content of such resolutions and guidelines into account.

Thank you very much for your kind attention.