Outer Space Law: Russia – United States Common Challenges and Perspectives

INTRODUCTION. More than fifty years ago, on October 10th, 1967, the entry into force of 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”) demonstrated the emergence of a new branch of international law: international outer space law (“ISL”). This article considers the contribution of the Russian Federation / U.S.S.R. and the United States and their leading lawyers and diplomats who were able to reach treaty cooperation even during the Cold War, and highlights the main historical legal steps on the way to signing of the Outer Space Treaty. The paper further focuses on the content of the Outer Space Treaty and other sources of ISL, and depicts approaches to interpretation of the treaty provisions with respect to actual legal challenges of space activities’ development, in the context of diverse economic, political and technological factors; as well as on the role of the Outer Space Treaty in the progressive development of ISL. MATERIALS AND METHODS. The theoretical background of this research consists of works of distinguished scholars and specialists in ISL as well as materials of diverse colloquiums, workshops and conferences on ISL. The analytical framework includes the Outer Space Treaty, other relevant international treaties; relevant UN GA resolutions; the 2001 Cape Town Convention and the 2012 Space Protocol; UN, COPUOS (including its subcommittees), ITU and UNIDROIT documents; national space legislation; documents and proceedings of the UNISPACE-III. The research is based on methods such as historical research, formal logic, including analysis, synthesis, analogy and modeling, as well as systematic, comparative and interpretation. RESEARCH RESULTS. Within the context of applicable principles and norms of the Outer Space Treaty, this article specifically provides an analysis of the related provisions of other sources of ISL, as well as unsettled legal issues such as 1) the international legal regime of natural resources of the Moon and other celestial bodies; 2) the use of the outer space solely for peaceful purposes; 3) the legal status of space tourists; 4) the legal regulation of commercial space activities involving a “foreign element” within the framework of the private international law and specifically private international space law (“PISL”); 5) the role of the 2001 Cape Town Convention and the 2012 Space Protocol in the context of international legal regulation of space activities, as well as, provided the entry into force of the Space Protocol, its role as the first specific international legal source of PISL; 6) International system of registration of interests in space assets as the third international system of registration related to space activities; 7) interpretation of Art. VIII of the Outer Space Treaty for the purposes of definition of law applicable to property rights over space objects located in the outer space; 8) “space object” and “space asset” as legal terms; 9) issues of international responsibility and liability, as well as extension of the scope of the concept of the “launching State”, including a proposal on addition of a potential fifth category; 10) registration and control; 11) International Space Station in the relevant legal framework; 12) ways of reaching of due relevance of international legal consequences for states resulted from the change of private law relations to the factual “participation” of the involved states in the corresponding space activities. DISCUSSION AND CONCLUSIONS. After discussing the issues noted above, this paper concludes that: 1) it is in the interest of the Russian Federation, the United States of America and other space powers to consider the role of the Outer Space Treaty as the basis for further progressive development of ISL and inter alia for orderly development of commercial space activities; 2) some burning issues of ISL, as well as other related legal challenges, can be resolved by an authentic interpretation of Outer Space Treaty provisions (e.g. by adding other specific protocols to it, or by means of a universal comprehensive convention on international space law); 3) it is important to take into account both the distinction of subject matter, as well as the relationship and interaction between diverse applicable sources and branches of international law and also relevant national legislation regarding the search for solutions of space related legal issues noted above. In sum, one needs to follow a comprehensive inclusive and coherent approach, involving science diplomacy.