Post on 30-Jan-2023
CREATING A LEGAL FRAMEWORK FOR THE COMMERCIALEXPLOITATION OF THE OUTER SPACE
,ADELEKE FIYINFOLUWA FADESOLA
LAWj2003j022
A LONG ESSAY SUBMITTED TO THE FACULTY OF LAW OBAFEMIAWOLOWO UNIVERSITY, ILE IFE IN PARTIAL FULFILMENT OF
THE REQUIREMENTS FOR THE AWARD OF BACHELOR OF LAWS(LL.B) DEGREE OF THE OBAFEMI AWOLOWO UNIVERSITY, ILE-
IFE, OSUN STATE, NIGERIA
OCTOBER, 2009
CERTIFICATION
This is to certify that this project was carried out by ADELEKEFIYINFOLUWA FADESOLA, MATRIC NO.: LAW/2003/022 under mysupervision,
,
_b~--nPROFESSORA.O. POPOOLA DATE
(Supervisor)
ii
ACKNOWLEDGEMENTS
To start with, I thank the lord almighty, the giver of life, the owner and the pillar of my
life for keeping me and for seeing me through my stay in school. Without him, I am so
sure I would not be here.
I would like to acknowledge my parents, Elder and Mrs. Kayode Adeleke for their
support in every way and my siblings, Oluwatobi and Obaloluwa for their
encouragement.
Mysupervisor, Professor AO. Popoola, I sincerely admire your wealth of knowledge and,
Experience. Sir, I that God will uphold you and be your guide always. You are a source of
inspiration.
To Dr. Yusuf, I am so grateful for the immeasurable help you rendered me while
couching my topic and the interest you took in my work. My prayer is that God blesses
you and compass you with favour all around sir.
To my friend and brother, Pharm. Sola Fateye, thank you so much for believing in me.
Engr. Segun Adekola, Barr. Wole Akande, Mr, Seyi Adekola, Mr. & Mrs. Wole Aremu, Mrs
Ajanaku, Mr Akinyele, Mr Kunmi Iginlola, I really want to say a big thank you.
Pastor Kayode Olamoyegun, Dr. Dayo Williams, Dr. Funbi Ayeni, Barr. Dimeji Idowu,
Barr. Enaboifo Osegie, Barr. Bolaji Akintunde, Mr. [ide Neye, Mr. Sisanmi Smith, Barr.
Wale Ogunrnola, Pastor Wale Onajoko, Pastor Omoefe, Mr. Fisayo Fateye, Mr. Emmanuel
Adegboye, Emmanuel Iduma, Joshua Neonatar, I appreciate you all for your input at one
time or the other in my life, God bless you real good.
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The 6/7 family, Pastor Olumide Olujuyigbe and Engr. Wale Elujoba, my destiny friends
in greatness and exploits for Christ; for no reason would I forget you even though we
rarely have time these days. God bless and keep you strong in Him and for Him alone.
We would not disappoint God.
To the "ever loving" and the "ever real" crew in CHARISleadership - Dayo (Tee Ess),
Akintoye (Akins), Damilola Oyedele (Yeah bebe), Tobi Ishola, (and my humble self) - I
believe in you and in your future. No dulling for us in life 'cuz our future is assured in
Christ.,
To my friends, Pastor Tee, Pastor Emmanuel, Kunle Ajibola, Mosquoteen, Justice Muyi,
Mukuolu Tolu, Mikail, Dapo-dhapsyga, Olumide Ajayi, Bankole, Demola, Shola Akinwale,
Funmi Faloye, Damilola Oyeleye, Tolu moody, Remi Akinlotan, Wumi Oyekola, Soton
Bestman, Tikristilagbara, Pa [endor, Fisayo Talabi, Yetty Harry, Agboola, Tosin Aremu,
Dupe Ola, Tomi - Temmy, Kike, Tomiwa, Dotun-in my room, Anwuli, Ridwan Jimoh, Eete,
Kenny Lincoln, Femi Adedeji, Adegoke Akanbi, Akin Akin, Tope Adewole, Seun Touch,
and all my well wishers, God bless you all.
To all the teachers in Charis academy, I appreciate the time we spent together while
serving in the house of God. I know God will reward your labour oflove. To the students,
God bless you. To Charis fellowship international, thanks for giving me the opportunity
to serve. To the members of charis fellowship international, I will miss you all.
To Adetayo, Aderinsola, Adenola, Omopelade, Adeyosola, Adeneye, Adekusibe,
Adelosoye, I thank God our paths crossed in this journey of life. Thanks for liking my
project topic, for the encouraging words and for believing in me.
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To the librarian at the law section in the library, popularly known as Pastor, I appreciate
you for taking your time in helping me look for the books on my project topic. I must
acknowledge the fact that I might not be able to finish my project without them.
,
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TABLE OF CONTENTS
PAGES
Title Page I
Certification II
Dedication III
Acknowledgements IV
Table of contents VII
Lis,t of Abbreviations XI
Table of conventions and treaties XV
Abstract XVII
GENERALINTRODUCTION
0.1 Background to the study
0.2 Statement of the problem
0.3 Aims and objectives of the study
0.4 Justification for the study
0.5 Research methodology
0.6 Structure of the study
1
4
6
8
8
9
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CHAPTER ONE
Nature, Evolution and Basic features of the Law of outer space
1.1 Historical development of the law of outer space
1.2 Definition of space law
1.3 Notable space agencies in the world
1.4 Sovereignty and jurisdiction in outer space
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17
23
33
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CHAPTER TWO
Sources of the law of outer space
2.1 The outer space treaty, 1967
2.2 The rescue agreement, 1968
2.3 The liability convention, 1972
2.4 The registration convention, 1976
2.5 The moon agreement, 1979
2.6 Other sources
45
59
63
67
70
76
CHAPTER THREE
International legal principles applicable to the outer space
3.1 Principles on direct broadcasting satellite
3.2 Principles on remote sensing
3.3 Principles on nuclear power sources
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91
94
96
102
3.4 Principles on exploitation and use of outer space 104
3.5 Principles on prevention of arms races in outer space 111
3.6 Principles condemning propaganda 'for threat or breach of international
peace 120
CHAPTER FOUR
Commercial utilization of the outer space 123 ,
4.1 Space resources, allocation and utilization 124
4.2'What is commercialization? 127
132
141
4.3 A brief history of the commercialization campaign
4.4 Nature of the commercialization process
4.5 Major industries in space commercialization 149
4.6 Property rights and space commercialization 163
177
188
4.7 Space tourism in commercialization
4.8 Benefits and problems of commercialization
4.9 Commercialization and the case for development in third world
Countries 202
4.10 Regulations of space activities and allocation of space resources: growing
controversies 204
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CHAPTER FIVE
Legalframework for commercialization 214
5.1 Examination of international space law vis-a-vis commercialization 214
5.2 National space laws on commercialization: United States in view 224
5.3 Critical evaluation of the legal framework on the face of the new
;challenges of commercialization
SAThe legal regime in space tourism and commercial space
transportation
5.5.A new legal order in the face of commercialization
5.6 Risks of no legal framework
5.7 Commercial conflict resolution in outer space disputes
229
,
234
240
250
251
CHAPTER SIX
The future of space law and space commercialization 268
6.1 Developing countries and the benefits of outer space resources 273
6.2 Joining global trends in space commercialization: action
steps for developing countries 276
SUMMARY, CONCLUSION AND RECOMMENDATIONS 283
BIBLIOGRAPHY 289
x
LIST OF ABBREVIATIONS
ABM Anti-Ballistic Missile Treaty
AIAA American Institute of Aeronautics and Astronautics
Am.J.lnt'l L American Journal of International Law
AMLS Advanced Manned Launch System
Academy of Sciences and French National Air and SpaceANAE ,
ARABSAT Arab Satellite Commission Organization
ASAT Anti-Satellite
ASTRA Application of Space Techniques Related to Aviation
ATS Applications Technologies Satellites
BNSC British National Space Centre
CER Cost Estimation Relationship
CJIL Canadian Journal of International law
DARPA Defense Advanced Research Projects Agency
.•. ECEE European Countries of Eastern Europe
ELDO European Launch Development Organization
ELDO European Launcher Development Organisation
ESA European Space Agencyxi
ESRO European Space Research Organisation
EUTELSAT European Satellite Telecommunications Organization
FAA Federal Airports Authority
GEO Geostationary Earth Orbital
GIS Geographical information systems
HLJ Harvard law journal,
HLJ..V Heavy Lift Launch Vehicle
HTOHL Horizontal Take Off,Horizontal Landing
IAASS International Association for the Advancement of Space
Safety,
ICJ International Court of Justice
ICSID International Centre for Settlement of Investment Disputes
IISL International Institute of Space Law
IMMARSAT International Maritime Organization
Int'l. & Compo L. Q. International and Comparative Law Quarterly
INTELSAT International Telecommunications Satellite Organization
INTERCOSMOS International Cooperation on the Study and Utilization of
Outer Space
xii
INTERSPUTNIK International Organization on Space Communication
IOC Initial Operating Capability
ISAS Institute of Space and Astronautical Science
ISS International Space Station
JRS Japanese Rocket Society
LEO Low Earth Orbit
NACA National Advisory Committee for Aeronautics
NASA National Aeronautics and Space Administration
NASDA National Space Development Agency
NOAA National Oceanic and Atmospheric Agency
OST Outer Space Treaty
PAROS Principle Relating to the Prevention OfArmed Races in Outer
Space
R&D Research and development
SDI Strategic Defense Initiative
SSPS Space Solar Power System
STAIF Space Technology and Applications International Forum
STS Space Tourism Societyxiii
THAAD Theater High Altitude Area Defense system
TMD Theater Missile Defense system
TRIPS Trade Related Aspects of Intellectual Property
UN United Nations
UNCOPOUS United Nations Committee on the Peaceful Uses of Outer
Space ,
WIPO World Intellectual Property Organization
xiv
TABLE OF CONVENTIONS AND TREATIES
American Treaty of Pacific Settlement 1948 259
Land Remote Sensing Commercialization Act 1984 .100,101
Principles Condemning Propaganda for Threat or Breach of International Peace
Principles on Remote Sensing 1986 96
The Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies (the "Moon Agreement") 1979 5,6,43,44, 70, 71,
The Agreement on the Rescue of Astronauts, (the "Rescue Agreement),
1968 59, 60, 61, 62, 63
The Anti Ballistic Missile (ABM)Treaty 1963 76
The Commercial Space Act of 1998 101
The Convention on International Liability for Damage Caused by Space Objects
(the "Liability Convention"), 1972 22,44,64
The Convention on Registration of Objects Launched into Outer Space (the
"Registration Convention") 197? 67,68,69
The Convention on the Law of the Sea 1982 73, 74, 75,259
The European Convention for the Peaceful Settlement of Disputes 1957 103
The Hague Conventions 1899 & 1907 257
The International Telecommunications Union Radio Regulation 1971 31
xv
"~~-,, , ", ~~;'.
The Outer Space Treaty 1967 45, 48,49,51,53
The Principles on Direct Broadcasting Satellite for international television
broadcast 1982 '" , 94
The Principles on Nuclear Power Sources in Outer Space 1992 93, 102, 103
The Principles Relating to the Exploitation and Use of Outer Space for Peaceful
Purposes and for the Benefit and the Interest of all States 1996 105
Th~ Principles Relating to the Prevention of Arms Paces in Outer Space
1999 111 '
The Protocol on the Commission of Mediation, Conciliation and Arbitration to thej
Charter of the Organisation of African Unity 1964 259
The Treaty Establishing the Organisation of Eastern Caribbean States
1981 259
The Vienna Convention on the Law of Treaties 1969 259
The Vienna Convention on the Protection of the Ozone Layer 1985 259
xvi
ABSTRACT
This study examined new trends and recent developments in the law of outer
space while addressing issues that generate controversies from time to time in
the development of this field of law in meeting the demands of the development
in human society. Thus, this research work is an evaluation as well as an analysis
of .the legal framework in the international space law while examining the
current issues in the commercial utilization of outer space with a view to
determining whether the framework suffices in supporting the
commercialization of outer space resources. This work proposed a legal
framework for regulating the commercial exploitation and utilization of outer
space resources given the complicated issues in our present day society.
,
The purpose of this work will be achieved using primary sources of international
space law such as conventions, treaties and basic principles applicable the
development of the law of outer space and also secondary sources such as
textbooks, journals, articles, seminar as well as workshop materials. Internet
research materials would also be instrumental in achieving the basic purpose of
this research.
The study revealed that despite the fact that there is no basic international
convention on the commercial utilization of the resources, countries have
embarked on commercializing the resources of outer space. Thus in the face of
this commercialization, how would the activities of this countries be controlled
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within a definite legal framework. Another issue here would be in form of a
question: "what becomes the lot of developing countries who are yet to fullybe a
part of the commercialization process when they fully choose to join?" These
issues would be addressed in this research work.
The study concluded that since no child attains maturity at birth without going
through a process, it would be said that critical issues which spring up per time
in the development of a viable space law are crucial to the advancement of this
tec~nical yet special branch of law in our society. Thus, I hope this research work
would be a good reference material for persons interested in the study of space
law.
,
xviii
GENERAL INTRODUCTION
0.1 BACKGROUND TO THE STUDY
"The magnitude of man's achievement is best
understood by reflecting on the early history of human
society and noting the following: Firstly, the progress
from crude stone tools to the use of metals; secondly, ,
the changeover from hunting and gathering wild fruit
to the domestication of animals and the growing of
food crops; and thirdly, the improvement in
organization of work from being an individualistic
activity towards being an activity which assumes a
social character through the participation of many. 1"
Given the quotation above, a record of man's developmental advances will not
be complete without a record of his environmental conquests one of which is
the incursion into the outer space.
The first artificial satellite went into orbit around the earth on 4th October
19572 when it was launched by the USSR though prior to this time the legal
status of activities in space was a speculative matter rather than an
I WALTER RODNEY, HO W EUROPE UNDERDEVELOPED AFRICA, 2009 edition, page32 MICHAEL AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LA W, 61h edition,routledge London and New York, page 199.
1
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immediate practical problem. Since that date, the political, military and
economic implications of activities in' space was have been a constant and
growing preoccupation of practical statesmanshlp.t
The quest for knowledge in man as well as the readiness to explore could be
'said to be the driving force for in the first place. Over time, the amount of the
amount of knowledge obtained and collated on the outer space has been vast
and has demonstrated our capacity to embark on discovery of our outer space
environment+ Based on the discovery, it must be added that the pace of space
. exploration has developed at an ever increasing rate,"
The early 1960's witnessed the advent of the commercial uses satellites. This
means that the technology and equipment resulting from the early effort of
man in the exploration of outer space now have wide application in man's
everyday activity. Since then, the issue had on how to regulate man's
activities in outer space.
In carrying out this noble adventure of regulating activities in outer space, it
must be recalled that the whole body of what is known as the international
space law, upon a proper consideration, are treaties, resolutions and
principles established at a time when space policies appear to have been
based on very different motivations as well as the early expectations of a
whole new field of human endeavor and possibilities.
3 Wilferd Jenks, SPACE LAW, London stevens and sons 1965, page 3.4 Malcolm N. Shaw, lNTERNATIIONAL LAW, 1997 fourth edition, page 381.5 Ibid.
2
This is also coupled with the fact that these international treaties do not bind
states unless those states ratify them. '
Given this background, this academic work will be an examination of the
.existing treaties and principles applicable in the law of outer space while
.assessing the viability of those principles and treaties against the background
of developmental issues in our present day world of commercialization.
At inception, commercializing outer space was not really contemplated at the
point of making the treaties and adopting the principles applicable in outerj
'space. Though it was not part of the basic issues in the establishment
international space law, this work will look in to the establishment of a basic
legal framework to accommodate the issues of commercialization as it relates
to space tourism and the development of commercial space transport
applicable in human space flight
Future developments in new areas of space activity can hardly be imagined
let alone be determined at this point in time. Given this simple fact, this work
will only be a reflection of the present situation to determine whether the
international space law suffices in accommodating the trends in human space
endeavor in general and the commercialization process in particular.
It is a trite saying that "the outer space is for all and is to be used for the
benefit of all". This could be construed to mean that no country is to be
excluded from utilization of space resources as well as being a part of the
,
3
commercialization process of the outer space though it is also a well known
fact that some countries would be, excluded because of their level of
development. Based on this fact, the writer will attempt a general
examination of the situations in the developing countries and make
.suggestions on how they can fully benefit from the resources of the outer
, space by being a part of the commercialization process irrespective of their
incapacitation in terms of development.,
. 0.2 STATEMENT OF THE PROBLEM
Commercial exploitation of the outer space poses a challenge under the
international space law. Countries in the forefront of the commercialization
campaign have enacted national space laws to enhance the commercial
exploitation of the outer space for their national benefit but so many
countries are yet to join the commercialization campaign. For example, the
impact of space technology on third world countries have been minimal due
to high cost and lack of expertise
In line with the "res communis" doctrine of outer space, not all countries are
involved in the commercial exploitation of space resources. While some
countries are championing the cause, some are yet to even think about it due
to their dearth of resources. Thus, in line with the postulations of experts,
there is the need for a legal regime that would ensure equitable access to the
4
limited resources of the outer space particularly in meeting the needs of
developing countries.
Thus, as part of the peaceful uses of outer space, the United Nations
Committee on Peaceful Uses of Outer Space (UNCOPUOS) stressed the need
.for international cooperation in the exploitation of outer space. It gave
. considerations to some technically complicated issues and numerous serious
legal problems with a view to providing a creative solution within the
framework of international cooperation. While those solutions must take into
. account the needs of developing countries, they must also comply with the
principles of the general assembly.
It must be noted that the reluctance on the part of states to become
participants in some notable outer space treaties is another serious problem.
Why is this so?
Experts have overtime argued that the current body of international space
laws governing the exploitation and the use of the outer space are
circumventing commercial activities in outer space. A good example is the
moon treaty.
The treaty makes a declaration that the Moon (which the treaty notes
includes all celestial bodies for the purposes of language) should be used for
the benefit of all states and all peoples of the international community. It also
5
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expresses a desire to prevent the Moon from becoming a source of
international conflict To those ends the treaty:
• Bans all exploration and uses of celestial bodies without the approval
or benefit of other states.
• Requires that the Secretary-General must be notified of all celestial
activities
• Bans any state from claiming sovereignty
• Bans any ownership of any extraterrestrial property by any
organization or person, unless that organization is international and
governmental.
• Requires all resource extraction and allocation be made by
an international regime
While the laudable objectives of the moon treaty could be appraised, it has
been described as a real clog in the wheel by space commercialization experts
on major issues dealing with the commercialization of the resources of outer
space. The foregoing necessitated the need for this research.
0.3 AIMS AND OBJECTIVES
The outer space being the province of mankind is of growing importance to us
in view of its economic utility to the world at large.
6
The purpose of this study is to examine the issues involved in the
commercialization of outer space resources against the current legal and
institutional framework The specific objectives of the study are to:
1. Identify the ethical challenges of international law and policy in the
commercial exploitation of outer space;
2. Examine benefits and problems of space commercialization created for
both national and international political and economic institutions;
3. Reflect on the controversy between third and first world nations in the
regulations of activities in the outer space as well as in the allocation of
outer space resources;
4. Consider whether the current legal framework applicable in the law of
outer space suffice in catering for the challenges of the
commercialization of outer space resources; and
5. Examine the need for a definite legal framework to regulate human
activities in the commercialization and exploration of the outer space
will be addressed with a view examining what a prospective
international legislation should be.
7
,
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0.4 JUSTIFICATION FOR THE STUDY
The campaign for the exploration of- the outer space and the commercial
utilization of its resources exponentially increased in less than a decade. As
part of the peaceful uses of the outer space, developed countries now talk
.about commercialization. Developing countries with their developing
, technologies are yet to fully take the benefits of the resources in the outer
space.
Now, of more importance is the need examine the legal issues concerned in
. the commercialization while examining ways by which the current body of
international space laws can be amended to make the current
commercialization campaigns effective. It must be noted that the
effectiveness will be against the backdrop of potent legislation legal regime to
regulate human activities in outer space.
,
0.5 RESEARCH METHODOLOGY
This research work will be conducted using primary and secondary sources
of international space law.
Primary sources such as conventions, treaties, resolutions and basic
principles applicable in the development of the law of outer space will be
examined.
8
Secondary sources such as textbooks, journals, articles, seminar as well as
workshop materials will also be instrumental in achieving the purpose of this
research .
.0.6 STRUCTURE OF THE STUDY
. The project is structured into six chapters covering the development and
growth of commercial issues in space law. Each chapter introduces a new
topic followed by a general summary, recommendation and conclusion .
.Chapter one deals with the nature, evolution and basic features of the law of
outer space.
Chapter two examines the sources of the law of outer space.
Chapter three focuses on the international legal principles applicable to the
outer space.
Chapter four examines the commercial utilization of the outer space in the
light of the recent commercial activities in space.
Chapter five is an analysis of the legal framework for the commercial
utilization of outer space.
Chapter six is concerned with the future of space law and space
commercialization.
,
9
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The project ends with summary, conclusion and recommendations on the
field space commercialization and space law while bearing in mind action
steps for third world countries.
,
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CHAPTER ONE
1.1 HISTORICAL DEVELOPMENT OF THE LAW OF OUTER SPACE
In view of the developments in the world over the past decades, it must be
.noted that the historical development of the law of outer space will not be
'complete without an historical examination of the scientific adeventures in
the universe. It is noteworthy that these scientific prowess of man led to the ,
development of the law made to govern its activities in outer space. At this
.point, it is pertinent to ask the question, what is space exploration?
Space exploration is the use of astronomy and space technology to explore
outer space,e Physical exploration of space is conducted both by human
spaceflights and by robotic spacecraft. While the observation of objects in
space-known as astronomy-pre-dates reliable recorded history, it was the
development of large liquid-fueled rocket engines during the early 20th
century that allowed physical space exploration to become a reality",
Space exploration is our human response to curiosity about Earth, the moon,
the planets, the sun and other stars, and the galaxies. Piloted and unpiloted
space vehicles venture far beyond the boundaries of Earth to collect valuable
information about the universe. Human beings have visited the moon and
have lived in space stations for long periods. Space exploration helps us see
6 How Space is Explored". NASA. http://adc.gsfc.nasa.gov/adc/education/space _exlexploration.html.7 http://en.wikipedia.org/wikilspaceexploration.html
11
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Earth in its true relation with the rest of the universe. Such exploration could
reveal how the sun, the planets, and the stars were formed and whether life
exists beyond our own worlds .
.Common rationales for exploring space include advancing scientific research,
.uniting different nations, ensuring the future survival of humanity and
. developing military/strategic advantages against other countries. Various ,criticisms of space exploration are sometimes made, generally on cost or
safety grounds.I
Space exploration has often been used as a proxy competition for geopolitical
rivalries such as the Cold War. The early era of space exploration was driven
by a "Space Race" between the Soviet Union and the United States; the launch
of the first man-made object to orbit the Earth, the USSR's Sputnik 1, on
October 4, 1957, and the first Moon landing by the American Apollo 11 craft
on July 20, 1969 are often taken as the boundaries for this initial period.
After the first 20 years of exploration, focus shifted from one-off flights to
renewable hardware, such as the Space Shuttle program, and from
competition to cooperation as with the International Space Station.
History of exploration
The history of space exploration is rich. In 1609, people began to explore the
heavens visually thanks to improvements that Italian astronomer Galileo
8 Oberg, James. "Space exploration." World Book Online Reference Center. 2004. World Book, Inc.http://www.worldbookonline.com/wb/ Article?id=ar5225 50.
12
Galilei made to the telescope. Credited as the first to use the telescope for
astronomical purposes, Galileo made 'it possible to observe mountains and
craters on the moon's surface",
Since ancient times, people around the world have studied the heavens and
; used their observations and explanations of astronomical phenomena for
. both religious and practical purposes. Some dreamed of leaving Earth to ,explore other worlds. For example, the French satirist Cyrano de Bergerac in
the 17th century wrote Histoire comique des etats et empires de la lunef
. (1656) and Histoire comique des etats et empires du soleil (1662; together
in English as A Voyage to the Moon: With Some Account of the Solar World,
1754), describing fictional journeys to the Moon and the Sun. Two centuries
later, the French author Jules Verne and the English novelist and historian
H.G. Wells infused their stories with descriptions of outer space and of
spaceflight that were consistent with the best understanding of the time.
Verne's De la Terre a la Lune (1865; From the Earth to the Moon) and
Wells' The War of the Worlds (1898) and The First Men in the Moon (1901)
used sound scientific principles to describe space travel and encounters with
alien betngs.t?
In such beginnings, the dream of lunar and planetary exploration was born.
Now, 12 men have walked on the moon, and a wide range of unmanned
9 11 October 2006, "Future of Space Exploration Depends on International Cooperation".http://www.america.gov/10 The Future of Space Exploration
13
missions to the moon and several planets have been completed. In just the
past 10 years, 150 planets have been discovered beyond our solar systernu.
Closer to home, world citizens have reaped enormous benefits from space
exploration through satellites that support communication, navigation,
.weather observation, and other remote-sensing disciplines. Space-related
. technologies and scientific knowledge have contributed to high-performance ,computing and robotics, scratch-resistant eyeglass lenses, breast cancer
imaging, and much more.I
. In recent times, the first steps into space were taken by German scientists
during World War II while testing the V2 rocket which became the first
human-made object in space. After the war, the Allies used German scientists
and their captured rockets in programs for both military and civilian
research. The first scientific exploration from space was the cosmic radiation
experiment launched by the U.S. on a V2 rocket on May 10, 1946. The first
images of Earth taken from space followed the same year while the first
animal experiment saw fruit flies lifted into space in 1947, both also on V2's
launched by Americans and their German advisors. These suborbital
experiments only allowed a very short time in space which limited their
usefulness.P
11 http://www.america.gov/12 http://www.worldbookonline.com/wb/Article?
14
•
The first successful orbital launch was of the Soviet unmanned satellite 1
mission which ushered in the space age on Oct 4, 1957. On that day, the
Soviet Union launched Sputnik (later referred to as Sputnik 1), the first
artificial satellite to orbit Earth .
.The satellite weighed about 83 kg (184 pounds), and is believed to have
. orbited Earth at a height of about 250 km (150 miles). It had two radio
transmitters (20 and 40 MHz), which emitted "beeps" that could be heard by
any radio around the globe. Analysis of the radio signals was used to gather,
,
. information about the electron density of the ionosphere, while temperature
and pressure data was encoded in the duration of radio beeps. The results
indicated that the satellite was not punctured by a meteoroid. Sputnik 1 was
launched by an R-7 rocket. It incinerated upon re-entry on January 3. 1958.
This success led to an escalation of the American space program. which
unsuccessfully attempted to launch Vanguard 1 into orbit two months later.
On Ianuary 31. 1958. the U.S.successfully orbited Explorer 1 on a Juno rocket
In the meantime, the soviet dog, Laika became the first animal in orbit on
November 3,1957.
The first piloted space flight was made on April 12, 1961, when Yuri A.
Gagarin, 27 year old Russian cosmonaut, orbited Earth in the spaceship
Vostok (later called Vostok 1). The spacecraft completed one orbit around the
globe, lasting about 1 hour and 48 minutes. Gagarin's flight resonated around
15
the world; it was a demonstration of the advanced Soviet space program and
it opened an entirely new era in space exploration, human spaceflight
The U.S. first launched a person into space within a month of Gagarin's flight
with the first Mercury flight, by Alan shepherd. Orbital flight was achieved by
'the United States when John Glenn's Merury-Atlas 6 orbited the Earth on
. Februaary 20, 1962. Valentina Tereshkova, the first woman in space, orbited,
the Earth 48 times aboard Vostok 6 on June 16, 1963.13
j China first launched a person into space 42 years after the launch of Vostok 1,
on October 15, 2003, with the flight of Yang Liwei aboard the Shenzhou 5
(Spaceboat 5) spacecraft.
First planetary explorations
The first successful interplanetary flyby was the 1962 Mariner 2 flyby of
Venus (closest approach 34,773 kilometers). Flybys for the other planets
were first achieved in 1965 for Mars by Mariner 4, 1973 for Jupiter by
Pioneer 10. 1974 for Mercury by Mariner 10, 1979 for Saturn by Pioneer 11,
1986 for Uranus by Voyager 2, and 1989 for Neptune by Voyager 2.14
The first interplanetary surface mission to return at least limited surface data
from another planet was the 1970 landing of Venera 7 on Venus which
returned data to earth for 23 minutes. In 1971 the Mars 3 mission achieved
the first soft landing on Mars returning data for almost 20 seconds. Later
\3 http://www.worldbookonline.com/wb/ Article?14 http://www .america. gov!
16
much longer duration surface missions were achieved, including over 6 years
of Mars surface operation by Viking 1 from 1975 to 1982 and over 2 hours of
transmission from the surface of Venus by Venera 13 in 1982 (the longest
. ever Soviet planetary surface mission).15
1.2 DEFINITION OF SPACE LAW
It is pertinent to ask the question, what is space before an attempt will be
j made to define space law.
What is space and where does it begin?
Space is the near-emptiness in which all objects in the universe move. The
planets and the stars are tiny dots compared with the vast expanse of space-s.
It is worthy of note that the boundry between the atmosphere of the earth
and the ouetr space is not defined anywhere in international law. Experts
have overtime made suggestions in relation to the problem of demarcating
where the outer space begins.
Scientific analysis shows that the earth is surrounded by air, which makes up
its atmosphere. As the distance from Earth increases, the air becomes thinner.
There is no clear boundary between the atmosphere and outer space. But
most experts say that space begins somewhere beyond 60 miles (95
kilometres) above Earth.
15 http://www.worldbookonline.comlwb/ Article?16 Oberg, James. "Space exploration
17
Outer space just above the atmosphere is not entirely empty. It contains some
particles of air, as well as space dust and occasional chunks of metallic or
stony matter called meteoroids. Various kinds of radiation flow freely.
Thousands of spacecraft known as artificial satellites have been launched into
this region of space.
Earth's magnetic field, the space around the planet in which its magnetism
can be observed, extends far out beyond the atmosphere. The magnetic field
traps electrically charged particles from outer space, forming zones of
radiation called the Van Allen belts.
The region of space in which Earth's magnetic field controls the motion of
charged particles is called the magnetosphere. It is shaped like a teardrop,
with the point extending away from the sun. Beyond this region, Earth's
magnetic field is overpowered by that of the sun. But even such vast distances
are not beyond the reach of Earth's gravity. As far as 1 million miles (1.6
million kilometers) from Earth, this gravity can keep a satellite orbiting the
planet instead of flying off into spaceP
Space between the planets is called interplanetary space. The sun's gravity
controls the motion of the planets in this region. That is why the planets orbit
the sun.
,
17 Oberg, James. "Space exploration
18
Huge distances usually separate objects moving through interplanetary space.
For example, Earth revolves around the sun at a distance of about 93 million
miles (150 million kilometers). Venus moves in an orbit 68 million miles (110
million kilometers) from the sun. Venus is the planet that comes closest to
'Earth -- 25 million miles (40 million kilometers) away -- whenever it passes
. directly between Earth and the sun. But this is still 100 times as far away as
the moon.
Space between the stars is called interstellar space. Distances in this regionj
,
.are so great that astronomers do not describe them in miles or kilometers.
Instead, scientists measure the distance between stars in units called light-
years. For example, the nearest star to the sun is Proxima Centauri, 4.2 light-
years away. A light-year equals 5.88 trillion miles (9.46 trillion kilometers).
This is the distance light travels in one year at its speed of 186,282 miles
(299,792 kilometers) per second.
Various gases, thin clouds of extremely cold dust, and a few escaped comets
float between the stars. Interstellar space also contains many objects not yet
discovered.
What is space law?
It must be noted at this point that lawyers have not been able to agree on a
uniform definition for "space law" though most of them agree that outer space
19
generally begins with the lowest altitude above sea level at which object can
orbit the earth at approximately 100km (62 mip8,
Space law had been defined by experts as an area of law which encompasses
the national and international law governing the activities in outer spacet".
.Space law had also been defined as the body of regulations in international
'law that governs conduct in and related to areas of space above Earth's lower
atmosphereso.
'It was also defined as agreements governing the exploration and use of outer,
'space, developed since the first launching (1957) by humans of a satellite into
space-t. Another definition had it that international space law is that branch
of intemationallaw governing relations among its subjects in connection with
their activities on exploration and use of outer space, including celestial
bodies22, Space law, an aspect of international law, has grown under the aegis
of the United Nations,
Evolution of the law
The evolution of space law began with U,S, President Dwight D, Eisenhower's
introduction of the concept into the United Nations in 1957, in connection
18 Wikipedia (2009),Wikipedia the free encyclopedia: http://en.\\<ilcipedia.org.wiki/spacelaw, Wikipediafoundation incorporation19 Ibid.
20 Space law (2009). In Encyclopcedia Britannica. Retrieved June 24, 2009, from Encyclopredia BritannicaOnline: http://w\\·w.britannica.comiEBcheckeditopicl557401/space_law,11 http://www.questia.com/spacelaw22 Legal and institutional framework for space communications, trans-frontier broadcasting, andtelecommunications trade regimes written by Prof Ademola Popoola, published in THE ADVOCATE,2004
20
with disarmament negotiations. Following the successful launchings of the
Soviet satellite Sputnik 1 in 1957 and the U.S. satellite Explorer 1 in 1958,
both the United States and the U.S.S.R. took an active interest in the
development of international space policy. It was established that traditional
, laws of sovereignty that allow any nation to claim for itself uninhabited and
uncivilized lands are not viable in space territories and that countries cannot
extend the boundaries of their dominion indefinitely into the space regions
above them .
.In 1959 a permanent Outer Space Committee was formed for the purpose of
maintaining the United Nations Charter and other international law in space,
which opened the way for peaceful exploration. In 1963 the Nuclear Test Ban
Treaty was signed, followed by an Outer Space Committee resolution to
prohibit nuclear weapons testing in space. Later that same year a UN General
Assembly declaration acknowledged a free international interest in space
development and outlined rules assigning each nation individual
responsibility for dealing with transgressions of international law and for any
resulting destruction. International cooperation was recommended for the
safeguarding of all astronauts in crisis situations.
In 1967 an Outer Space Treaty was ratified by 63 participants in the United
Nations. This agreement reasserted all earlier guidelines for international
space conduct In addition, it banned certain military activities, such as the
,
)
21
deployment of weapons of mass destruction in space and on celestial bodies;
established each state's ownership' of and responsibility for its space
projectiles and components; urged common participation in the protection of
space and terrestrial environments; and provided for the open observation
. and inspection of each state's activities and installations by others. This
'document has been noted as a landmark in the development of international,
space law; like most subsequent space-law agreements generated by the
'United Nations, it remains in effect today among participating countries.
, This treaty was followed in 1968 by an Agreement on the Rescue and Return
of Astronauts and the Return of Objects Launched into Space, which
reinforced international commitment to the safety of humans in
assigned economic responslblllty to each country for the recovery of its
equipment, and confirmed the control of each space power over the vehicles
that it launches.
Another important treaty, the 1YT2 Convention on International Liability for
rules regarding thef
recovery of damages for losses caused by space objects.
Although international diplomacy continues to play an active role in the
debate. Because nations are prohibited from laying claim to space territories,
for instance, there is a need to establish regulations governing the
22
apportionment of usable resources that space may eventually provide. A
method for determining the extent of each country's control over the air
above remains to be agreed upon.
The development of space for a growing array of government and private
. activities also poses significant challenges for space law. The agreements on
, which space law is based were formulated at a time when governments
dominated space activities and commercial space ventures were just
beginning. Whether these agreements remain adequate and appropriate for
. the 21st century requires review.
Various provisions of current space law limit military activities in space, but
there is still no overall framework regulating the military uses of space. The
wisdom of developing space weapons or, alternatively, of keeping space a
weapons-free environment constitutes yet another issue for dtscussion=.
,
1.3 SPACE AGENCIES IN THE WORLD
As part of its response to the first Sputnik launches, the United States
government debated how best to organize itself for its space activities. At the
time, the military services, particularly the air force and the army, hoped that
they would have a leading role in space. As an alternative to this rivalry
between the services, President Eisenhower in February 1958 created the
23 Encyclopcedia Britannica retrieved June 24,2009.
23
Defense Advanced Research Projects Agency (DARPA) and assigned it
responsibility for all U.S. space projects. Soon afterward, he decided to
separate civilian from military space efforts and proposed the creation of
a National Aeronautics and Space Administration to manage the civilian
, segment. After approval by Congress, NASA began operation on October 1,
1958. DARPA was not successful in establishing itself as a military space ,agency. By 1960, after the army had been obliged to relinquish control of JPL
and Braun's rocket team to NASA management, the air force had emerged asI
. the leading military service for space.s+
Eisenhower also decided to create a separate organization to manage the
secret reconnaissance satellite program. This effort resulted in the National
Reconnaissance Office (NRO), jointly directed by the Department of Defense
and the Central Intelligence Agency. The very existence of this organization
was kept secret until 1992. The NRO operated the initial Corona program
until 1972. It continued to manage the development of successor photo-
intelligence satellite systems of increasing technological sophistication and
also developed radar-surveillance and electronic-signals-collection satellites.
All were operated under conditions of the highest secrecy.s>
After it received its mandate to send Americans to the Moon, NASAgrew into
a large organization. From its headquarters in Washington, D.C., it operated
24 hltp://corporate.britannica.com25 "space exploration." Encyclopaedia Britannica. 2009. Encyclopeedia Britannica Online. 14 May. 2009<http://www.britannica.comIEBchecked/topicJ557348/space-exploration>
24
10 field centres established throughout the United States to carry out
research and technology developmentand to manage the various universities
and industrial contractors involved in the U.S. civilian space program. At the
peak of the Apollo program, NASA had 34,000 employees; by the end of the
, 20th century, this labour force had shrunk to 19,000, but NASAremained by
. far the largest space agency in the world. ,The air force had no separate organization for space until 1982, when the U.S.
Air Force Space Command was created to manage its military spacej
. operations, which involved the use of satellites for meteorology,
communication, navigation, and early warning of missile attack. The other
U.S. military services soon created similar organizations to administer their
smaller space activities. In 1985 these organizations were brought under a
unified U.S. Space Command, dominated by the air force, which was
responsible for 85 percent of military space activities. Research and
development efforts related to military space programs were managed by
various government laboratories and carried out primarily by American
industry.26
For example, Cornell University in Ithaca, N.Y. witnessed the birth
International Space Agency on October 1989 with the support and help of
Dr. Norman Scott, Cornell Vice President for Research & Advanced Studies,
26 "space exploration." Encyc10predia Britannica. 2009. Encyclopsedia Britannica Online. 14 May. 2009<http://www.britannica.comIEBchecked/topicl557348/space-exploration>
25
and the approval and understanding of Frank Rhodes the President of Cornell
. Non-Profit Corporation in New York State on June 5th 1990.27
University, and with much help & support of numerous Cornell Professors
and Students. The ISAConcept & Vision was started in a formal Incorporation
Process on September 15th 1989 and was formally approved as a 501c.3
Immediately work began on the first historic International Space Agency ,meeting in Washington, D.C.,which did take place on May 22nd of 1992 at the
Carnegie Endowment for International Peace in Washington, D.C. ManyI
. National Diplomats, National Space Agency Representatives, and Scientific &
Aerospace Representatives attended this first historic International Space
Agency meeting. Since that first historic ISA meeting in Washington, D.C. in
1992, the ISA has conducted 5 formal, and over 200 private informal,
International Diplomatic meetings in Washington, D.C.,and the ISA has had a
presence at both the 1992 and 2002 World Space Congresses.sf
The International Space Agency has faced much resistance, interference, and
misunderstanding over the years due mainly to the fact that people did not
understanding what the IS~ was or why it was needed, but also powerful
space organizations both Government & Private felt threatened by the
Growing ISA Organization & Efforts, as they wrongly perceived ISA as trying
to eliminate them. Indeed, to the contrary the ISA is, and has been from its
27 www.english.pravda.ru/interview/dobsonlisa.html28 http://p201.ezboard.com/bintemationalspaceagency
26
founding, about increasing support and understanding for Human space
efforts, activities, and organizations globally. In the last two years support
and understanding for the International Space Agency has begun to increase
dramatically.
; In contrast to the United States, the Soviet Union had no separate, publicly
. acknowledged space agency. For 35 years after Sputnik, various design
bureaus-state-controlled organizations that actually conceived and
developed aircraft and space systems-had great influence within the SovietI
. system. (For information on the history of specific Soviet aerospace design
bureaus, see Energia, MiG,Sukhoy, and Tupolev.) Rivalry between those
bureaus and their heads, who were known as chief designers, was a constant
reality and posed an obstacle to a coherent Soviet space program. Space
policy decisions were made by the Politburo of the Central Committee of the
Communist Party as well as the Soviet government's Council of Ministers.
After 1965 the government's Ministry of General Machine Building was
assigned responsibility for managing all Soviet space and missile programs;
the Ministry of Defense was also quite influential in shaping space efforts. A
separate military branch, the Strategic Missile Forces, was in charge of space
launchers and strategic missiles. Various institutes of the Soviet Academy of
27
Sciences, particularly the Institute for Space Research (IKI), proposed and
managed scientific missions.t?
Only after the dissolution of the U.S.S.R did Russia create a civilian
organization for space activities. Formed in February 1992, the Russian
, Space Agency acted as a central focus for the country's space policy and
. programs. Although it began as a small organization that dealt with ,international contacts and the setting of space policies, it quickly took on
increasing responsibility for the management of non-military space activities
. and, as an added charge, aviation efforts. It later was renamed the Russian
Aviation and Space Agency.
In 1961, within four years of the launch of the first U.S. and Soviet satellites,
the government of France created the French Space Agency (CNES), which
grew to become the largest national organization of its kind in Europe.
Gradually other European countries formed government or government-
sponsored organizations for space, among them the German Aerospace
Center (DLR), the British National Space Centre (BNSC), and the Italian
Space Agency (ASI). Still others included space as part of their science or
technology mtnlstries.t?
, 29 Space exploration, (2009). In Encyclopcedia Britannica. Retrieved May 14, 2009, from EncycloprediaBritannica Online: http://vl{\'rw.britannica.comfEBcheckeditopic/557348/space-exploration30 Space exploration, (2009) In Encyclopcedia Britannica. Retrieved May 14,2009, from EncycloprediaBritannica Online: http://www.britannica.comIEBchcckedJtopicl557348/space-exploration
28
In 1964, a European Space Research Organisation (ESRO),created at the
initiative of European scientists to pool government resources in support of
space science, began operations. Ten western European countries and
Australia joined the organization. In the same year, a parallel European
:Launcher Development Organisation (ELDO),which had seven European
.member states, was established to develop a space launch vehicle for Europe.
Whereas ESRO was successful in mounting a series of science missions, many
.in collaboration with NASA, ELDO failed in attempts to design and launch a
. European rocket. In 1975 a new European Space Agency (ESA)was formed
from ESRO and ELDO to carry out both of their tasks. At the beginning of the
21st century, ESA had 15 member states-Austria, Belgium, Denmark,
Finland, France, Germany, Ireland, Italy, Norway, The Netherlands, Portugal,
Spain, Sweden, Switzerland, and the United Kingdom. Canada also
participated in some ESA projects. With a budget that made it the world's
second largest civilian space agency, ESA carried out a comprehensive
program in space science, applications, and infrastructure development In
particular, the Ariane series of expendable launch vehicles was developed
under ESA auspices, with France taking the leading role. These launchers
proved to be extremely reliable, and they gave Europe independent access to
space and a leading position in the commercial space launch industry.
29
In Japan the University of Tokyo created an Institute of Space and
Astronautical Science (ISAS) in 1964. This small group undertook the
development of scientific spacecraft and the vehicles needed to launch them,
and it launched Japan's first satellite, Osuml, in 1970. In 1981 oversight of
, ISAS was transferred to the Japanese Ministry of Education. In 1969 the
. Japanese government founded a National Space Development Agency ,(NASDA),which subsequently undertook a comprehensive program of space
technology and satellite development and built a large launch vehicle, calledI
. the H-It for those satellites. In 2001 both ISAS and NASDA came under the
control of the Japanese Ministry of Education, Culture, Sports, Science and
Technology.t!
China's space program evolved largely in secret, under the joint control of the
Chinese military and the Commission on Science, Technology, and Industry
for the National Defense. After the communist takeover of 1949, Qian Xuesen,
who had worked at GALCIT in the 1940s and helped found JPL, returned to
China, where he became the guiding figure in the development of Chinese
missiles and launch vehicles, both originally derived from a Soviet ICBM.
China developed a family of Long March boosters, which are used
domestically and serve as competitors in the international commercial space
launch market. Its space development has concentrated on applications such
31 Space exploration, (2009). In Encyclopcedia Britannica. Retrieved May 14,2009, from EncyclopediaBritannica Online: http://''~w.britannica.comIEBchcckcdJtopic/557348/space-cxploration
30
as communications satellites and Earth-observation satellites for civilian and
military use. In 1998 an independent 'Chinese Aerospace Corporation was
established to oversee most Chinese space-equipment manufacturers.
China initiated its own human spaceflight program in 1992. The spacecraft,
. called Shenzhou, developed for the effort, was modeled on Russia's time-
tested Soyuz design, and relied heavily on Chinese-developed technologies
and manufacturing. Following four years of unmanned spacecraft tests, China
launched its first indigenous astronaut, an air force pilot, into orbit onI
. October 15, 2003. In so doing, it became the third country-after the former
Soviet Union and the United States-to achieve human spacefllght.V
A number of international organizations are involved in space activities. The
United Nations General Assembly established a Committee on the Peaceful
Uses of Outer Space (COPOUS)in 1959 to discuss scientific, technical, and
legal issues related to international space activities; 61 countries were
members of the committee in 2001. The committee has provided the forum
for the development of five treaties and a number of declarations of
principles related to space activities. The most important of them is the 1967
Outer Space Treaty, which sets forth the general legal principles governing
the uses of space. Other parts of the UN system, most notably the
International Telecommunications Union (ITU), are engaged in space-
32 Space exploration: Britannica online.
31
related concerns. The ITU is responsible for allocation of radio frequencies
and orbital locations for various satel1ites providing public and commercial
services.
At the initiative of the United States, an International Telecommunications
. Satellite Consortium (Intelsat) was founded in 1964 to develop and operate
. a global system of communications satellites. By 1969 the organization had
established a system of satellites with global coverage; in the late 1980s it
provided services to more than 200 countries and territories. IntelsatI
,
. membership grew to 144 countries before a decision was made in 1999 to
change the ownership of the organization from national governments to the
private sector. A similar consortium, the International Maritime Satellite
Organization [Inmarsat], was established as an intergovernmental
organization in 1979 to supply maritime and other mobile communications
services via satellite; it also was later transformed into a privately owned
entity. In addition, a number of regional organizations have been created to
operate communication and meteorologic satellites.P
Building the systems and components needed to carry out both government
and commercial space programs has required the participation of private
industry, and a number of firms have grown to have substantial space
involvement Often these firms have also been major suppliers of aviation and
33 Space exploration, (2009). In Encycloptedia Britannica.
32
defense products, a reflection of the common technological foundation for
what has become known as the aerospace industry. Other private firms have
specialized in providing space-based services in such areas as
telecommunications and Earth observation.
1.4 SOVEREIGNTY AND JURISDICTION IN OUTER SPACE ,In the first place, the issue of sovereignty will be dealt with. The first question
will be to answer the question; what is sovereignty?j
. Sovereignty, autonomous, absolute political and military power embodied in
a ruler or governmental body.>' In international relations, a sovereign state is
equal to other states; it can govern its own territory, declare war, and so on.
Contemporary international law, however, as well as the treaties that bind
nations together, have modified the freewheeling absolute sovereignty
conceived of four centuries ago.
In terms of the authority a nation exercises over its own citizens, sovereignty
stands in direct opposition to political expression. A prime function of a state
is to survive; in principle, one way to improve chances of survival is to
eliminate internal dissension. Such dissension, however, is the normal result
of the policies of governments that represent diverse political factions and
..
34 Microsoft ® Encarta ® 2009. © 1993-2008 Microsoft Corporation. AU rights reserved.
33
viewpoints. In modern democracies, therefore, the exercise of sovereignty is
restricted to times when survival is at stake, as in wartime.s''
The concept of sovereignty originated when Europeans in the 16th and 17th
centuries were looking for a secular basis for the authority of the emerging
'nation-states. Four types of territory emerged under the modern
International Law spawned by State practice after the 1648 Peace of
Westphalia. They are as followsw
•. Territory owned by a sovereign State (sovereign territory);
•. Territory not owned by an State due to its special status (trust
territory);
•. Territory capable of ownership, although not yet under sovereign
control (terra nullius);and
•. Territory that is not capable of ownership by any nation (res
communis).
Sovereign Territory
One attribute of a State's sovereignty is the right to the exclusive control and
ownership of its territory. Under International Law, the State is entitled to
exercise sovereignty over the land located within its territorial frontiers. The
extent of that sovereignty is typically limited by natural boundary lines.
35 Ibid.36 WILLIAM R. SLOMANSON, Fundamental Principles on International Law (2nd ed.) West publishingcompany, New York and Los Angeles
34
Oceans, mountains, and other natural frontiers usually provide geographical
limits to a State's ability to control terrttory.'?
Trust Territory
A second category of land is not subject to the sovereignty of any State, due to
; its special status. These territories were the League of Nations "mandates"
and the post-World War II United Nations "Trust Territories". No State,
including the protecting State in whose care the territory has been placed,
may lay claim to ownership or sovereign title over such territorles.wj
. Terra Nullius
Certain territories were capable of being acquired, although no State (in the
Westphalia sense of the word State) controlled them. These were referred to
in an earlier colonial era as territories that were terra nullius. They were
conveniently characterised as belonging to no one and thus capable of being
legally acquired by the colonial European powers.
In a 1971 case before the International Court of Justice, South Africa argued
that it was legally seized with the sovereign right to continue its control of
Namibia (formerly South West Africa) because it was incapable of governing
itself. The Court seized this opportunity to authoritatively declare that those
European States "blundered" when they characterised Africa as terra nullius
in the nineteenth century. As stated by the Court:
37 Ibid. Pg. 21738 Ibid. Pg. 218
35
"It was a monstrous and a flagrant injustice to consider Africa south of the
Sahara as terra nullius, to be shared out among the Powers for occupation and
colonization, even when in the sixteenth century Victoria had written that
Europeans could not obtain sovereignty over the Indies by occupation, for they
. were not terra nullius.t?"
. The expression "terra nullius" was a legal term of art employed in connection ,with "occupation" as one of the accepted legal methods of acquiring
sovereignty over a territory ... and it was a cardinal contention of a validj
. "occupation" that the territory should be terra nullius - a territory belonging
to no one - at the time of the act alleged to constitute the occupation.
Res Communis
The fourth general category of territory is territory incapable of ownership or
control - typically referred to as res communis. It belongs to no one and must
remain available for all to use. Under International Law, the entire
community of nations must have unfettered access to such areas. These
territories cannot be lawfully controlled by any State or group of States
without the approval of the community of nations.
The clearest examples of res communis are the high seas and outer space, as
discussed later in this chapter. It has been argued that Antarctica is a "land"
area that is res communis. Article 4 of the 1959 Antarctic Treaty provides that
39 M. Dixon & R. McCorquodale, cases and materials on internationallaw22S (London and Blackstonepress, 1991)
36
States shall not recognise, dispute, or establish territorial claims there; and,
no new claims may be asserted by parties to this treaty.
Professor Emilo Sahurie of Chile disputes the "occupation" paradigm.
However, he notes that even the high seas have been appropriated .
."Occupation" is becoming obsolete, with advances in modern technology.
Thus, traditionalist scholars should acknowledge that only the moon and ,other celestial bodies are actually res communis. There is no territory on earth
that is totally incapable of exploitation - a more accurate measure of,
.sovereignty than "occupation.r?"
Given an examination of sovereignty as stated above, issues of sovereignty in
outer space will be addressed at this point.
Prior to flight and air transport, jurists were focusing attention upon freedom
of the air.41 The predominating view indorsed the freedom of any nation to
make flights into the international air. Diverse views were expressed,
however, concerning sovereignty of the air, since it is incapable of enclosure,
.,and not subject to continuous occupation. Advocates of the air-freedom
doctrine reviewed the promulgations attributed to define freedom of the air.
Roman Law also was examined for substantiation and support was found in
40 William R. Slomanson, Ibid. Pg 21941 J.H. English, "Air freedom: the second battle of the books" J. Air & Com. 356,359; Jenks,"Internationallaw and activities in space" 5 Int'l. & Compo L. Q. 99-114 (1956)
37
Corpus Juris Civilis, where it was asserted that air, running water, and the
sea, were deemed by natural law, to becommon to all.42
Since Grotius had concluded that the sea is incapable of seizure or enclosure,
then by analogous ratiocination, the air, a limitless mass of fluid atmosphere
surrounding the earth, lacked essential characteristics of sovereignty and
ownership. Since the air could not be enclosed and subjected to possession, ,
the advocates of the free air doctrine reasoned that it, like the sea, should be
,open for all nations, possessed by all natlons+"
At the Brussels conference of the Institute de Droit International in 1906, a
resolution was affirmed which incorporated the free air principle long
advocated by international jurists. Article I of the Resolution states:
'The air is free. States have no authority over it, in time of peace or in time of
war, other than that which is necessary for their own presetvation+"
The inauguration of the "air age" brought attention to a number of legal
questions which required solution in order to determine the rules governing
( man's use of airspace. When the age of space exploration began, it soon
became apparent that rules of air law could not be extended to outer space,
and that the use of outer space required the development of rules pertaining
to space. Nevertheless, a close relationship exists between rules applicable to
~2 ERIN BAIN JONES, Earth Satellites, Telecommunications Systems and International Law, published byUniversity of Texas at Austin, 197043 Ibid. English(356, 359) and Jenks(99-114)44 Am.Llnt'l L 147 (Supp. 1913)
38
)
the" satellite invaded the airspace of sovereign states. The satellite circled the ,
the air and those of outer space. One of the first questions posed related to
the height of each nation's sovereignty since there is no scientific delineation
of airspace from outer space.t>
When the Soviet Union in October, 1957, injected an orbiting satellite into
space, law makers of the world were confronted with the question of whether
earth every 96 minutes and was positioned at an average height of 583 miles
above the territories of sovereign states.w This necessitated a new
consideration of the approximate limits of airspace sovereignty as well as a
reexamination of requisites for national security. Therefore, authorities set
forth their views on the basic conceptions of international space
sovereignty+?
Outer space "sovereignty" was interpreted by given authorities as subject to
use by all, analogous to the high seas or owned by all nations or at least
susceptible of regulations on a basis of voluntary cooperative efforts among
nations+"
The maxim which was adopted in 1919 by the Paris Convention was restated
and some authorities adhere to the opinion that sovereignty over the air,
which has been declared by public international law, is also applicable to
45 Jenks, supra;46 qleng, "from Air Law to Space Law" 13 current legal problems. 228 (1960); RD. Crane, soviet attitudetoward international space law, 56 Am. J Int 'IL. 685 (1962)47 C. G. Fenwick, How high is the sky? 52 Am. J Int 'IL. 96 (1958); Goedhuis, reflections on the Evolutionos Space Law, 13 Netherlands Int 'ILaw Rev. 109 (1966)48 P. C. Jessup & H. J. Taubenfeld, Controls jor Outer Space 279 (1959)
39
conjectural. Thus the doctrine cujus est solum ejus usque ad coelum et ad ,
outer space since existing law fails to define limits of altitude to which
sovereignty extends; therefore, following Roman conceptions, sovereignty is
limttless+?
Furthermore, claims of sovereignty need not be legally recognized by other
nations if effective exercise of control is lacking. At present, it is conceded that
the possibility of actually exercising state sovereignty in outer space is
inferos has been generally rejected by authoritative authors.w
A. fairly wide consensus recognizes that international law principles of
sovereignty applicable to airspace fail to include the infinitude of outer
space.»
Even though internationalists are in disagreement concerning the exactitude
of upper limits of the sovereignty of states over airspace, states have not
renounced all possible claims to sovereignty in outer space. Efforts have been
made to codify certain regulations on outer space mainly in the United
Nations, first through regulations and then by treaty law.52
Certain United Nations representatives expressed opinions indicating that
space was insusceptible of division and therefore not subject to national
jurisdiction. The opinion was also expressed that since protests were not
49 Erin Bain Jones, Ibid. Pg. 43, 50 Ibid. Pg. 44
51 An examination of the treaties as well as conventions on International Space Law will reveal this fact.52 Contained in UN Doc. AlAC. 105/C.2/SR.5,6 (1965)
40
exercised concerning Russian and American orbiting satellites that the failure
to object indicated the lack of national jurisdiction at high altitudes.v'
In the First Committee of the General Assembly, the representative of Chile
(Mr. Pinochet) stated on November 12, 1958, that the first and most
important question related to the ownership of outer space, and that:
'{'TheParis Convention of 1919 and the Chicago Convention of 1944 had,
recognized the sovereignty of each state over the airspace above its territory
...but no State could reasonably claim sovereignty over such airspace....I
National airspace should be limited to a certain height ...and it should be
recognized that the so-called outer space beyond that limit was a res extra
commercium which could be used by all nations. That idea seemed to have
been applied recently since neither the United States nor the USSRhad asked for
permission to launch its satellites, and no government appeared to have
protested .... The second problem was whether outer space could be used
without restriction, in the same way as the high seas.... Unrestricted use by
interplanetary space-ships would endanger the security of mankind. 54"
..
53 Erin Bain Jones, Ibid. Pg. 4554 UN Doc. AlCIISR.991 (1958); First committee, 985TH MEETING (Nov. 1958)
41
A number of United Nations Treaty provisions can have an impact on
property rights in space. Most notably, the Outer Space Treaty prohibits
governments from claiming sovereignty over space or for any celestial body.55
Therefore, no nation can give its citizens or any other nation exclusive use of
any territory. But in practice, few nations actually possess capability to access
celestial bodies, such as the moon or asteroids, which could contain valuable ,resources or function as strategic research locations. Furthermore, because
equipment launched into space or created in space by a nation (or its citizens)
is owned by that nation (or citizen) and controlled by that nation's laws, there
would be an associated right to protect that equipment
The lack of ownership of territory in space does not preclude private sector
for-profit use of the territory nor subject investments in space equipment to
the whims of other nations.
Governments may also be held absolutely liable for the actions of their
citizens in space, although only for terrestrial damage and damage to
airplanes in flight
However, since transporting equipment or payloads into space requires a
launch and since virtually any space activity could have an effect on the Earth,
this ostensibly limited liability has prompted government regulation of safety
and financial responsibility for private activities in space. Because potential
55 Bringing Space Law into the Commercial World: Properly Rights without Sovereignty. Henry R.Hertzfeld and Frans von der Dunk, Law, College of Space and Telecommunications Law ProgramFaculty Publications, University of Nebraska - Lincoln Year 2005
42
liability will rise as more private actors enter space, many nations without
such licensing requirements are currently writing new legislation."
The principle of space as the province of all mankind and using space only for
the benefits for mankind is a central theme of the international agreements.
However, legal scholars continue to debate about the precise legal
~onsequences which should be drawn from the equation that space, as ,province of all mankind, should be regarded as terra communis as opposed to
terra nullius conception under which a nation may eventually claim
sovereignty.57 However, the Outer Space Treaties prohibit nations from
recognizing sovereignty claims over celestial bodies.
The Moon Agreement, the last Outer space Treaty to be adopted, goes further
by declaring the moon to be the common heritage of mankind. This
terminology suggests that an even higher principle of equity would be applied
to the moon's surface-if one nation or its citizens were to exploit lunar
resources, the technology employed to do so and a portion of the proceedsI
thus garnered would have to be shared with all nations. By essentially
precluding proprietary rights and profits, this scenario would greatly
diminish the impetus for commercial development .
. 5~.G yon der Dunk, Current and Future Development $National Space Law and Pokq, discussion paperpresented at the United NationslBrazil Workshop on Space Law, Rio de Janeiro (Nov 22-25, 2004),57 Lotta Viikari, From Manganese Nodules to Lunar Regalith. Publications of the Faculty of Law,University of Lapland, D Series, Rovaniemi 2002).
43
Thus, even with the Moon Agreement's entry into force, only eleven states
have ratified it, and an additional five states have signed it. None of the
sixteen States are major space-faring nations, except for France and India,
which have signed but not ratified the Treaty. Future enforcement of damage
does not attach liability to the state of which that individual is a citizen, at
.least according to the Liability Convention. In the United States, the test of
whether a company must procure a license from the FAA prior to a launch is
based not on any particular percentage of ownership, but on the morej
,
'subjective basis of having a controlling interest in the business venture.
44