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Published : June 19, 2017 | Author : Siri Sakhamuru
Category : Miscellaneous | Total Views : 684 | Unrated

  
Siri Sakhamuru
student, 3rd year, ICFAI Law School, Hyderabad
 

Definition of Space Law

Demarcating air space and outer space:
The term space is indefinite and has never been formalized in legal terms. According to natural science, it is the portion of universe between celestial bodies and particularly the part of the universe lying outside the limit of the earth’s atmosphere. The question as to what is air space and outer space arises.

JC Cooper defined air space as the space above the earth’s surface in which man-made instruments whether controlled or not can be in operation at any given time i.e the usable space. Air space is defined in terms of one or more combinations of physical factors including velocity, gravitation, altitude, centrifugal force and etc.

Usque as coelom theory:
Prior to the world war 1, the international community despite various differences agreed on one aspect i.e the owner of the land owns the air space over its territory to an unlimited extend. The maxim’s principles were carried through different legal systems of nearly all nations.

Gravitational theory:
This theory was propounded by J.Kroell who proposed that the extension of the jurisdiction of the state should be up to the outer limit of the earth’s gravitational attraction beyond which there is outer space. On the other hand it would be very difficult to locate the exact point or boundary where the earth’s gravitational pull ceases as it reaches deep in the space and even have courage on the moon. Therefore the jurisdictional line if drawn on the basis of such a theory would be as high as 1.5 million kilometers. The extension of jurisdiction to such heights would be meaningless and highly impractical.
Air Space Theory:
This theory recognizes the upper extent of state jurisdiction up to extreme limit of air space in its geophysical meaning. The theory is further divided in to the following into sub-heads;
(a) Atmosphere theory: The theory depicts that the outer space begins at the outer limit of territorial atmosphere. The territorial atmosphere is further divided into troposphere, stratosphere, ionosphere, and exosphere, although there is no proper demarcation of between the layers of the outer space.
(b) Aerodynamic lift theory: According to this theory, it is believed that the state jurisdiction should be extended to heights necessary to life manned aircrafts. According to the jurists in this school, the outer space begins where the possibility to fly the jet planes. The upper limit may be changing due to advanced technology.
(c) Biological theory: the theory proposed that the limitation of outer space continues as long as there is possibility of human life to survive, and beyond that the outer space starts.

Theory of Satellite Orbit:
The theory suggests that the boundary of the state sovereignty should be drawn at the lowest level at which a satellite can be put into the orbit. The theory is subject to a number of criticism as the globe is not perfectly round and that it is affected by its own rotations and by unequal distribution of the masses of the land and water at its surface. Irrespective of the objections the theory of the lowest satellite orbit is acceptable and could be taken as a criterion for the delimitation of space.

Theory of Karman Line:
This theory supported Dr. Theodar Von Karman’s calculations which limit the jurisdiction of the state in the vertical space above its territory and up to a limit of 85 kilometers. At this altitude a body usually moves at the speed of 7kmks per second and is not subjected to areo dynamical elevation force but rather to centrifugal force. This boundary line is known as Karman Jurisdiction Line. On the basis of scientific data Haley opined that the outer space starts from the earth at a distance where there is no longer any friction of air to delay or retreads that speed. This theory is subjected to sever criticism for the instability of suggested critical connected with further improvement of the air craft.

Theory of effective control:
According to this theory the jurisdiction of the state extends up to the limit of its capability and ability to control and maintain affective control over the space above it. They did not think of prescribing and defining the limit of the said height. Here the word “effective control” would mean the power to prevent unauthorized flights. The theory is not recognized for the reason of creating discriminating among the week and the powerful states.

Interest theory:
The theory provides that states jurisdiction in outer space extends as it is reasonably required by the sates to sever their interest. It does not provide or prescribe any limit but leaves it the desecration of the individual states to decide for itself on the basis of its interest which could be based on national security or how far it wishes to exercise its jurisdiction. The theory in reality is a principle rather than criteria for the delimitation of outer space depending upon the interest of the concerned state in the absence of an international agreement which could be the only solution for the cause.

Theory of security:
The theory suggests that it the sovereign right of each state to take all measures for safe guarding its security and to protect itself against any of the infringement by other states to its territorial supremacy. Any attempt to draw up a rule contravening the sovereign right of the stat cannot be in accordance with the international law. The reason being protection of these security of the states is the only or atleast the fundamental criterion for the delimitation of the outer space. in spite of its pious obligation, the theory does not provide any concrete basis for the demarcation but it only narrates of judicial- political principle for a unilateral delimitation.

Intermediate zone theory:
The theory of dividing space over the territories of states into zones was supported and accepted by J.C Cooper. He felt the necessity to establish three zones;
i. The territorial space extending to an altitude where an air craft can fly according to article 1 of Chicago convention.
ii. Continuous space upwards to 300 miles
iii. Thereafter free space.

Two workable approaches:
Functional approach:
The functional approach was initially supported by the US and USSR in whose interest the limits or boundaries would restrict the freedom to get into space. The supporters of the approach proposed ot settled the problem by proceeding from the need to delimit and regulate space and air activity. This approach views no harm in not having any precise demarcation or delimitation of the boundary in outer space. The things cannot be allowed to go considering the security and other divergent interest of all the nations. The states would definitely like to preserve their independence and not to be led by super space powers.
The according to the functional approach, air space and outer space are considered to be single whole and not subject to artificial separation. The legal regimes applicable to the two areas operate in parallel and are applied according to the nature of the activities conducted in space by states and the ultimate objectives of those activities.

Spatial approach:
The functional approach could not gather the support for its proposition for long and gradually it was replaced by the spatial approach. Discussion of the COPOUS legal committees shows that most of the states are in favor of an immediate solution of the demarcation problem. Under the spatial approach to the issue, proposals have been made for the use of various criteria in establishing a boundary, physical and geophysical.
The jurisdictional line between air space and outer space lies at an altitude of approximately 83 kms, at which a body moving at a speed of seven kilometers is not affected by areo dynamic lift but only by centrifugal force.

Existing Legal Regime
Legislative conventions
The space treaties provides firm rules, regulations and norms to the governmental and other non-governmental organizations, which take part in the developmental activities and explore the unknown. These treaties help to mitigate threats to safety, security, and stability in outer space.

With the launch of sputnik in 1957, an international declaration on outer space activities was adopted in the form of a United Nations general assembly resolution called The Declaration of Legal Principles Governing the Activities of States in Exploration and Use of Outer Space. Though the declaration was not legally binding the member states proposed to follow it strictly. The declaration gained such a wide spread support that in five years the principles of the declaration were formalized by the United Nations into a committee called the Committee on Peaceful Uses of Outer Space (COPUOS). The treaty on principles governing the activities of states in the exploration and use of outer space including the moon and other celestial Bodies (the outer space treaty), this instrument is considered to form the basis of the outer space law. Thus the outer space treaty is considered to be the mother of all treaties.

There are five United Nations treaties on space law namely, The Outer Space Treaty, The Rescue Agreement, The Liability Convention, The Registration Convention, and The Moon Space Agreement.

The Treaty on the Principles Governing the Activities of States in the Exploration and the Use of Outer Space; Outer Space Treaty
It is a primary treaty governing the law of space. The Treaty on the Principles Governing the Activities of States in the Exploration and the Use of Outer Space, including the Moon and Other Celestial Bodies or more commonly known as the Outer Space Treaty of 1967. It was created shortly after the UNCOPOUS set fourth its fundamentals governing the use of outer space and incorporates and expands upon those fundamentals and serves as the parent for the subject matter of the other four space law treaties. The overriding principle of the outer space treaty is that space is not the common heritage of all mankind and that all nations have access to space and the resources contained within it and that the territory in the outer space, on the moon or other celestial bodies cannot be claimed by any nation. This prohibition does not extend to private individuals or legal entities.

Agreements on the Rescue of Astronauts, the Return of Astronauts and The Return of

Objects Launched into Outer Space, 1968
The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space the Rescue Agreement, expands on the duties introduced in the outer space treaty to render assistance to astronauts in distress. The rescue agreement delimits the requirements of a state to come to the aid of the astronauts in distress. The rescue agreement also reinforces the principle that a space craft continues to belong to the state that launched it and requires that any space craft recovered by another state in the course of a rescue to be returned.

Treaty consists of a preamble and 10 articles. The preamble notes the principles which calls for the rendering of all possible assistance to the astronauts in the event of accident, distress the emergency or emergency landing the prompt and return of astronauts and the return of objects launched into the outer space. Prompted as the agreement resides by sentiments of humanity it expresses the desire to develop and give further expression to those duties and wish to promote international cooperation in the peaceful exploration and use of outer space.[2]

The Convention on International Liability for Damage Caused by Space Objects, 1972

The convention on international liability for damage caused by space objects has a two hold purpose.
a) To prescribe rules of international liability or damage caused by space objects
b) To provide a procedure for the promote payment of a full and equitable measure of compensation to victims of such damage.

The convention on international liability for damage caused by space objects (the liability convention) expands the principles of liability for damage caused by space objects introduced in the outer space treaty. Two scenarios are envisioned by the liability convention;
1) A space object causes damage to the surface of the earth or an air craft in flight.
2) A space object causes damage some place other than the surface of the earth i.e., outer space or another celestial body.

The first scenario holds a state strictly liable for any damage caused by a space object launched even in the face of circumstances that are outside its control. If more than one state is responsible for the launch of the space object, then both state will held joint and severally liable for the damage caused.

The second scenario holds a state liable only if it can be shown that it was due to the fault of the state or the states as the case may be.it is under the scenario that a cause of action could be initiated.
The liability convention does not specify a method or formula to determine what compensation is due to a claimant, but it does require that compensation be determined according to international law and the principles of justice and equity.

Conventions on Registration of Objects Launched into Outer Space, 1975

The convention on registration of objects launched into outer space (registration convention) builds on the principle of outer space treaty concerning the registration of objects launched by a state. The impetus behind the registration convention is to ensure the peaceful use of outer space by creating a duty for states to create registry of space craft that it launches and to make that registry available for public inspection.
The convention n requires the name of the lunching state or states, any appropriate designator for the space objects or registration number, date and territory or location of launch, basic orbital parameters and the general function of the space object. A comprehensive searchable database containing this information is publically available.

The registration convention requires states to furnish to the United Nations with details about the orbit of each space object. Registration is done by way of registering the space objects in the register maintained by United Nations office for outer space affairs (UNOOSA) and includes;
1) Name of launching state
2) An appropriate designator of the space object or its registration number
3) Data and territory or location of launch
4) Basic orbital parameters (nodal period, inclination, apogee, perigee)
5) General function of the space object.

Agreement Governing the Activities of States on the Moon and Other Celestial Bodies
The final and most controversial child of outer space treaty is the agreement governing the activities on the moon and other celestial bodies (the moon treaty). It is the only one after the five foundation treaties that has not been ratified by the united states, the Russian federation and peoples republic of china. These three hold outs notwithstanding, the moon treaty has a sufficient number of ratifications to be entered into force. The moon treaty takes the concept of non-appropriation by nations from the outer space treaty and closes the loophole for private entities barring them from laying claim to the moon or other celestial bodies and extending that prohibition to resources as well.

The moon treaty expands the ‘common heritage language and subjects that not only is extra-terrestrial property and the resources contain within belong to all mankind, but the technology and means to obtain those resources must be shared with who could not otherwise obtain it on their way.

The 1979 moon agreement which was comprehensively negotiated between 1970 and 1979 reemphasizes some of the basic provisions contained in 1967, OST. It also arguments that agreement in several instances such as by defining the moon to include orbits around or other trajectories are around it. Demilitarization provisions of principles treaty are enlarged by providing that treats are use of force will not take place on the moon relating to the earth. The moon, space craft, the personnel of the said space craft are man-made objects. Wider prohibitions against the use of nuclear weapons or weapons of mass destruction than appear in the 1967 treaty were adopted. Freedom of specific investigations is emphasized in several articles. Explores are specifically authorized to collect and remove from the moon, the samples of minerals and other substances. Moon rocks and other substance may be used in quantities appropriate to the support of national machines. International specific preserves are contemplated.

Space stations may be established on the moon. The state parties retained jurisdiction and control over their personnel and physical objects and are required to provide notification of accidents in certain circumstances. Moon activities may be engaged by judicial and natural persons including non-governmental entities. Inspections by all state parties to the agreement, following advance notice of projected visits are authorized. The agreement encourages consultations amongst parties and sets forth procedures for dispute settlement. It also permits international intergovernmental organizations to become parties. The rights and duties conferred by the agreement are limited to parties. Finally review procedures are established.[3]

Fundamental principles of space law

Principles governing the use by the states of the artificial earth satellites for international direct television broadcasting principles (principles on DBS)
It is widely recognized that the radio and TV broadcasters are critically important in developing and sustaining an informed and engaged society. They play a crucial role in fulfilling development objectives such as ensuring the public rights to receive a diversity of independent information. Public service broadcasters, in particular, serve the needs of minority and other interest groups, including those with low levels of literacy and those living in remote locations.

Direct broadcast satellite, (DBS) refers to satellite television systems through which the subscribers, and users, receives signals directly from geostationary satellites. Signals are sent in digital format at microwave frequencies. DBS is the descendent of direct-to-home satellite services. Direct broadcasting satellites enable direct transmission to the public with the use of land stations. The vastness of the prospective audience and the uncontrollability of the broadcasters threaten the legal interest of the original copyright owners. The central and main issue revolves around the identity as to who is liable for the payment of the royalties.
The principles on DBS marked a change in the outer space law making. This was the first set of legal principles in the felid of outer space which was not adopted in the UNCOPOUS by consensus but adopted by the UNGA by a majority vote. The principles on DBS require the international direct television broadcasting to be carried out in a manner compactible with the sovereign rights of the states and with the right of everyone to seek, receive and impart information and ideas. It stresses on the applicability of the international law, access to broadcasting technology to all the states, international cooperation, state responsibility and notification and consultation with the receding states.

Principles relating to remote sensing of the earth from outer space

The principles on remote sensing were adopted by the general assembly in 1986 after 17 years of negotiations in the UNCOPOUS. The principles advocate for carrying on the remote sensing activities for the benefit and in the interest of all countries and compliance with international law. It also envisages promotion of international cooperation and technical assistance, protection of the environment and protection of the human kind from natural disasters, sensed states right to have access to the data on a non-discriminatory basis and regional cooperation in the establishment and operation of collection, storage, processing and interpretation facilities.
The emergence of satellites capable of producing of providing data of the activities on earth (i.e. remote sensing) raised a host of political and legal issues on the international community. Given that all countries can be sensed from outer space, many states raised concerns at an early stage regarding who could use remote sensing technology, what to be done with the data, who had access to the data, and what, if any, were the rights of those who were being sensed. Fifteen states also recognized the potential, social, and economic benefits that could be derived from this technology and sought to establish common principles that could offer guidance for the development of national and international policies on remote sensing.

The remote sensing principles include the duty to consult with states being sensed as well as an obligation to share data with sensed states on a discriminatory basis. Due to political complexities, the remote sensing principles reframed from addressing certain legal questions, such as whether a state has a proprietary right to images of its own natural resources.

Nuclear power sources principles

The need for Nuclear Power Sources principles was felt after the COSMOS 954 incident. Though the proposal was made immediately after the incident, the tortuous debate and the negotiations took almost fourteen years and finally 1992 UNGA adopted a set of principles in this field.

The preamble of the principles recognizes that the use of the NPS may be essential for some space mission and therefore it cannot be totally prohibited. In order to minimize the risk of harmful radiation, the principles restrict the use of NPS to those space missions which cannot be operated by non-nuclear energy sources in a reasonable way. The use of nuclear reactors in the interplanetary missions may be permitted in sufficiently high orbits. The states should take care and see to it that they do not become critical before reaching their operating orbits. The principles on NPS requires that the states to use the NPS in conformity with the international law to obelize the state launching the NPS to a through safety assessment of the mission which should also be made known to the public. In the event of risk of falling of the nuclear power space object, the launching state is obliged to inform this fact to the other states and the UNSC and also to assist in eliminating any harmful effects caused by the re-entry. The NPS principles reiterate the provisions of outer space treaty regarding responsibility and liability by stating that the states are internationally responsible for their national activities and the launching state is liable to pay compensation for any damage caused by its pace objects.

A set of norms dealing with nuclear power sources is a product of a collaborative effort between UNCOPUOS. It was the Scientific and Technical Sub-committee and the International Atomic Energy agency (IAEA) - the Safety Framework for Nuclear Power Source applications in Outer Space (The Nuclear Power Source Framework). The framework was developed to give high level guidance that provided for both the programmatic and technical aspects of safety, including the design and application of space nuclear power sources. The nuclear power source framework is a set of non-binding guideline based on best-practice measures developed by the Soviet Union and the United States of America, the two states with the most experience in nuclear power source activities.

The declaration of legal principles governing the activities of states in the exploration and uses of outer space, 1963

A year later on 13 December 1963, the UNGA adopted resolution 1962 (XVII), the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. The Declaration set out various fundamental principles which were expanded upon in the Outer Space Treaty of 1967.

The key principles set out are as follows:
1) Space exploration is for the benefit and in the interests of all man-kind. “The exploration and use of outer space shall be carries on for the benefit and in the interests of all man-kind”.

2) Space is free for all states to explore on the basis of equality in accordance with international law.

3) Space and celestial bodies are not subject to national appropriation: “outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupations, or by any other means”.

4) International law applies to all activities in the interest of peace and security and promoting cooperation and understanding.

5) States are responsible for ensuring compliance both of their national activities and for those of “non-governmental entities” which must be authorized and supervised by the state concerned. The activities of international organizations are the responsibility of the participating states.

6) Activities must adhere to the principles of cooperation, and respect the interests of all states.

7) Ownership rights of objects launched into space are not affected by their passage into space or their return to earth, and the launching state that owns them retains responsibility for the objects and people on their registry.

8) States are liable for damage caused to other states or persons by space objects (are parts thereof).

9) Astronauts are the envoys of mankind in outer space and in the event of an accident or emergency landing must assist in the rescue and return of the astronauts. To the state of registry of their space craft.
Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of All States, taking into Particular Accounts Needs of the Developing Countries, 1996
These set of principles were implemented in the light of the growing scope and significance of international cooperation among states and between states and international organizations in the exploration and use of outer space for peaceful purposes. These principles are amongst the very few norms in the sphere of international space regulations that have commercialization of space activities and its resultant economic growth for any nation. The objectives of the principles are;

a) To reach broad and efficient collaboration towards broader international cooperation in this field for the mutual benefit and in the interests of all parties involved in space activities.

b) Facilitating the application of the principle that the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the inserts of all countries, irrespective of their degree of economic or scientific development and shall be the providence of all mankind.[4]

End Notes
[1] https://www.researchgate.net/publication/4716982_Delimitation_of_air_space_and_outer_space_-_Is_such_a_boundary_needed_now
http://www.unoosa.org/pdf/reports/ac105/AC105_769E.pdf
[2] Id, at page 28
[3] See also, Space law, A treatise – francis lyall and Paul.B Larsen
See also, Legal Issues Relating to the Global Public Interest in Outer Space- Ram Jakhu - October 2005
[4]See, CREATING A LEGAL FRAMEWORK FOR THE COMMERCIAL EXPLOITATION OF THE OUTER SPACE, ADELEKE FIYINFOLUWA FADESOLA
See also, Space law, A treatise – francis lyall and Paul.B Larsen
See also, Legal Issues Relating to the Global Public Interest in Outer Space- Ram Jakhu - October 2005

 




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