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

DEDICATION

To God Almighty and to the memory of my late sister

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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.

iv

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.

v

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

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6

8

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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

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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

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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

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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

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"~~-,, , ", ~~;'.

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.

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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.

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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

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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

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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.

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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.

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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.

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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.

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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