Looking into the Past: Space Telescopes and the Law of Outer Space

The following is a guest post by Louis Myers, a legal reference librarian at the Law Library of Congress. Louis has authored several blog posts for In Custodia Legis, including New Acquisition: The Trial of Governor Picton, A Case of Torture in Trinidad and Indigenous Law Research Strategies: Settlement Acts.

Today, the James Webb Space Telescope (JWST) is scheduled to reach its intended destination at the second Lagrange point, ushering in a new era of space exploration. It will be undergoing diagnostics and testing for the next six months, so in the meantime, today’s post looks at the JWST project, other joint space initiatives, and some international laws on this topic.

The JWST is a joint venture among the National Aeronautics and Space Administration (NASA), the Canadian Space Agency (CSA), and the European Space Agency (ESA). The Webb telescope is the largest and most powerful space telescope ever built and will spend its lifespan orbiting earth from around one million miles away. The telescope was designed primarily to study an area of space over 13.5 billion years old (the time period right after “the Big Bang”); however, it will also be used to study bodies in our own local solar system and bodies orbiting other “nearby” stars.

The JWST has been in development since 1996, possibly influenced by the success of the Hubble Space Telescope (HST), another joint project between the ESA and NASA. The HST is in a low-earth orbit (within 1,200 miles of Earth), meaning it is significantly closer to Earth than the JWST will be. The HST was also designed to be repairable by astronauts, which has increased its operational lifespan to at least 2030. The JWST is projected to operate for up to 10 years.

In competition with Santa Claus, on December 25, 2021, the JWST successfully launched from the ESA’s Guiana Space Centre, in the Kourou region of French Guiana. It took the JWST about one month to reach its final orbit point. If you are wondering why this site was chosen over NASA’s primary Canaveral or Vandenberg sites, it’s mainly because the launch vehicle, the Ariane 5 rocket, is considered the most reliable launch vehicle available, and the equatorial location of the Kourou Launch Complex provides a literal boost to the launch, using the spin of the Earth to help push the rocket. NASA has published an in-depth explanation of the whole launch process.

NASA, the ESA, and the CSA entered into an agreement in 2007 to solidify their relationship with the JWST project. NASA was to become the overall project manager, the ESA would provide the launch vehicle and launch site, and the CSA helped develop some of the onboard instruments for the telescope.

Turning to international law, The United Nations Office for Outer Space Affairs (UNOOSA) provides general oversight and guidance on international law related to outer space. There are five distinct treaties that govern the exploration and use of outer space. You can review International Space Law: United Nations Instruments for full texts of each treaty and to find the texts of related documents on UNOOSA’s oversight of space.

The first outer space treaty, 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”), provides overarching rules for nations to follow when exploring outer space. The treaty dictates that the exploration and use of space should be performed only for the benefit of all countries, even those without the means to explore space on their own. This treaty also prohibits the militarization of space.

The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (“Rescue Agreement”) provides an obligation to aid in the rescue of astronauts in distress or emergencies. In addition to allowing foreign astronauts to return using another nation’s territory, the Rescue Agreement includes provisions on aiding in the recovery of a foreign state’s objects as they return to Earth. This treaty is similar to the maritime law concept creating a duty to assist sailors in distress (see the United Nations Convention on the Law of the Sea, art. 98 and 46 U.S.C. § 2304).

The Agreement Governing Activities of States on the Moon and Other Celestial Bodies (“Moon Agreement”) provides that all activities in outer space should be performed for peaceful purposes, and includes a framework for eventual lunar economic development (such as resource exploitation) in the future.

The Convention on International Liability for Damage Caused by Space Objects (“Liability Convention”) delineates liability for damages caused by space objects and creates a mechanism for dispute settlement in the event that a state’s outer space activities cause damage to places or things on Earth.

The Convention on Registration of Objects Launched into Outer Space (“Registration Convention”) requires that all objects launched be registered with the Secretary-General of the United Nations, and that important information must be provided, such as an object’s general orbital path. As of the date of this post’s publication, the James Webb Space Telescope registration has not been processed by the UN. An interested researcher, however, could track its progress from the online index of objects launched into outer space; the Webb Telescope is designated as 2021-130A. UNOOSA also publishes the official United Nations Register of Objects Launched into Outer Space online; as of the date of this blog post, the last update to the register was January 5, 2022.

You can also access the registration of the Hubble Space Telescope from the registry. The HST’s designation is 1990-037B, although it can be found by searching the index with its common name. The official document, ST/SG/SER.E/250 (PDF) provides information about the HST and its launch vehicle (the Space Shuttle Discovery), which is designated as 1990-37A. Based on the report, the HST was still in orbit at the time of publication of ST/SG/SER.E/250 (January 1992), and the space shuttle had returned to Earth (in April 1990). When the HST eventually returns to Earth, you will be able to find its removal from the registry in one of these reports.

For researchers interested in exploring the great unknown of outer space law, the Law Library has a vast collection of space law materials. For example, International Space Law and the United Nations, available in the Law Library reading room reference shelves, provides an overview of the UN’s involvement in space exploration and offers commentaries on the main treaties. Pioneers of Space Law introduces 11 scholars who were integral to the development of modern space law. Finally, A Fresh View on the Outer Space Treaty outlines a modern outlook on developments in space law, including military and environmental issues.

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