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Published : June 03, 2017 | Author : Siri Sakhamuru
Category : Miscellaneous | Total Views : 530 | Rating :

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

Nature and Evolution of Space Law

History of space law had its roots from various academics points of view. As the need for a new law was first mentioned in a journal in 1910, but space law was an idea without shape or substance for more than two decades after it was first mentioned. In 1932 the first comprehensive monograph appeared by presenting the important and fundamental concepts of the space law. Brief commentaries appeared in the 1930s and 1940s. The first doctoral dissertation dealing with the space law appeared in 1953. By 1954 many international exchanges had taken place among various jurists and commentators concerned about the need for clarification and definition of law anticipating human activity in outer space.

Since when Russia launched its first man-made satellite Sputnik 1 on October 4th, 1957 a new world was opened to man. The quest for knowledge in man to know what is beyond the earth is a driving force for such explorations. After the American astronaut Neil Armstrong became the first person to walk on the moon, questions regarding whether a man can walk on the moon and build houses as he is on earth were further answered. 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 the discovery of the outer space environment. Based on the discovery, it must be added that the pace of space exploration has developed at an ever increasing rate.[1] These space explorations brought new ideas in the development of various fields like science, medicine, communications, and to the life itself. Since then the earlier proposed ideas were not just abstract or limited to academic ideas. As nations began to place their objects in space beyond the atmosphere these concepts began to be considered for including a new body relevant to law for the regulation of human activities in the outer space. Following the launch of sputnik, international talks began to take place with the world community and the jurists of the world for a law for relating to human activities in outer space by addressing possible principles, requirements, and prohibitions as to contemplate a law in outer space. Regulation of such activities in space has only been recently addressed on a serious note. Space law is considered the cumulative body of national and international legislations and regulations, treaties, agreements, and conventions created to enable, manage, and regulate worldwide, the international and national commercial and governmental, and international or national defense activities related to outer space. Space law has enjoyed contributions from numerous juris consultants, pragmatists and innovators and the “law” that had emerged is mercurial, hard and soft, national and international, accepted and debated.

The evolution of space law helps us to understand the phases of the development of space law, the reasons for its development and base on which it emerged. It helps us to understand the existence of the significance of law in space activities. It also helps us to understand the legal scenario relating to the space law which needs to undergo a reform in order to keep in track the growing technology and the legal complications arising out of it. The objective for presenting this article is to explore the factors that led to the field of space law, to analyze the role of the super powers of the world i.e the United States and the Soviet Union in the development of space law, the status and concerns relating to developing countries and the present legal concerns for further development of the space law. This article tries to explore various phases involved in the development of space law, the role of various organizations for its development and the role of developed countries and the developing countries in creating a legal framework for the regulation of activities in the outer space. This article also discusses about the concerns of the developing countries in regards to the formation of the law. Further the current legal issues faced by the world due to its rapid development in space technology and a need for reforms in the current outer space treaty. [2]

2.1 Development of Space Law
During the 20th century the space law evolved in two different phases:
Phase 1- involved the development of concepts of space law before Sputnik: from 1910 to 1957;
Phase 2 - involved the clarification and adoption of basic applicable laws: from 1957 to 1966;
Phase- 3 – involves the development of various space activities and legal issues arising out of them in the 21st century.
Space law is considered the cumulative body of national and international legislation, regulations, treaties, agreements, and conventions created to regulate regional, commercial national and defense activities related to outer space.

Phase 1- Development of Concepts of Space Law before Sputnik

During the first half of the 20th century there were only a handful of concepts relating space law. But these concepts marked as the beginning for the concerns for introducing a different law in space and also formed a base for the principles for the space law to emerge. Most of them were the writings or thesis of various jurists of that time. First among them were eminent jurists[3], had asserted that above the airspace, the physical nature of flight (speeds and altitudes) would be totally different from the aspects of a space craft. The flights in outer space would be beyond the control of the states. Thus, a flight beyond the airspace should be free of the control of the sovereignty. These claims led to the need for a different law. A law which doesn’t relate to the principles of air law and which is based on international integrity. Further the concept of liability of the launch state in case of matters relating safety and security were discussed. The flights of the national territory flying at any speed or altitude could involve threats to safety and security, and states have a right to defend and protect their national integrity by any appropriate means available to them.[4] Such concerns formed a base to the principle of liability in the outer space treaty. Further an assessment was made on the impact of the human society due to the emerging space activities, and explained that there must be an upper limit to national sovereignty. Otherwise “in the course of a day, every country will lay claim to a large part of the universe.”[5] This led to a question of the upper limit of air space whether the states could claim sovereignty over the space above the air space. One aspect which was not dealt by jurists until the mid-1950s was that the question of peaceful use of outer space, and whether the concept of State sovereignty would involve peaceful and scientific purposes or not. Lionel Laming observed that "the conquest of space may mean that all the solar system, and not only the Earth, deserves to be considered as the heritage of mankind."[6] these principles laid the seed and also the roots for the growth and development of the space law.

Phase 2 – Clarification and Adoption of Basic Principles of Law (Post Sputnik Development Era

The evolution of space law began with U.S President’s introduction of the concept into the United Nations in 1957, in connection 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 in the same year a UN General Assembly declaration acknowledged a free international interest in space development and outlined rules assigning on each nation which is individual responsible 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 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.[7]

Need for a legal framework in space

When Sputnik was launched it created a need for bringing out a legal framework in to the space as there was a speculation that many legal issues may arise. Issues regarding political, military and economic matters may arise between the various countries of the world. This led to an alarming need for an implementation of a legal regime in the course of activities and developments that have been taking place in the new world of outer space.

1. Militarization
Militarization is to put weapons and military forces in and during the world war there was a rapid development of nuclear arms and the major players of the world were trying to explore new dimensions in which they could showcase their power. There was an assumption that space could become one such dimension. These explorations were initiated by the two super powers of the world that is the United States and the Soviet Union. This led to a fear that these countries would establish military settlements or fortification in the outer space. This may result in a war with each other in the outer space and the world was not ready for such destruction. Therefore, there was an alarming need to bring an international legal framework which could control such activities to happen in and to make the space a peaceful place for conducting explorations by not allowing such activities to take place in the space.

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 discussion.

2. Privatization and Commercial Space Activities
Privatization is the transfer of business from government to private players. During the early years of space exploration, the space activities were carried completely under the authority of the state for political and military purposes. Further developments in the space technology led to another fear due to a speculation that soon private players would take over the activities in space. As many private entities had started to show their interest in the exploration of space and this may lead to many issues. Issues such as exploitation of resources and appropriation of ownership on the moon and other celestial bodies. Further the activities by the private players are more of profit oriented than of prompting common welfare. These implications made it necessary to develop a legal framework so that such activities by the commercial players would be regulated.

3. Exploitation of Resources
Exploitation of natural resources is using of natural resources for economic growth and sometimes with negative connection of environmental degradation. As explorations in outer space started to grow at a faster phase in order to explore and excavate the resources. Such activities in the outer space by the states which were carrying space explorations may cause various environmental concerns. Growing concerns over such an exploitation led to the establishment of a legal framework in the outer space for regulation.

4. Failure of Launches
As the space explorations developed there may be chances for the launch of the space objects to be a failure. If such a failure occurs it would cause mass destruction. Therefore, there was a growing need for the regulations to be formed to save the earth from such destruction. Failure of the launch of space objects may also cause distress to the astronauts. Therefore, there must be a need for such a provision as to rescue the astronauts if in case such an activity occurs in any state other than the jurisdiction of the state that has launched the space craft.

5. Concerns of the Developing Countries
Further, most of the developing countries and other countries of the world wanted a new environment to be used only for peaceful purposes. Such a desire could only be achieved by establishing a regulatory authority for regulating the activities and promoting peace in the space.
This led to the formation of the united nations committee for peaceful uses of outer space (COPOUS). UN COPUS is an international authority for setting up legal regulations for the countries of the world to follow while conducting the space activities.[8]

Phase 3 - The Development of Various Space Activities and Legal Issues Arising Out of Them in the 21st Century

The advent of the space age opened great prospects for the economic and social wellbeing of all human beings. The international law-making process has produced basic legal principles that represent a fair balance of interests between developed and developing countries. However, growing pressure by a number of countries for increased privatization, commercialization, deregulation, and globalization, along with recent changes in the global geopolitical situation, are creating disturbing disagreements about the interpretation of the Treaty, its implementation, and the direction of future legal development.

Due to the development in the field of space and today space is being in use for the man in his daily activities various other legal problems have started to emerge and the principles in the outer space treaty of 1967 aren’t sufficient to conduct peaceful activities in outer space today. Various problems relating to the commercial activities of the outer space such as space flight and space tourism still don’t have laws to govern them. As the activities in space developed and the sending of objects to space had also increased simultaneously they would lead to the problem of space debris as there are no proper means for disposing the space objects after they get expired or failed. Laws relating to the regulation of space activities in regard to the formation of debris is needed. Further activities such as space mining leads to exploitation of natural resources in the space. this leads to various environmental concerns. Therefore, laws regulating the exploitation of the resources must come into existence. Further there are many legal problems relating to the intellectual property and privacy are required to be strengthened.[9]

Role of Developed Countries Viz-a-Viz the US and the USSR in the Development of Space Law

The launch of the world’s first satellite was from the Soviet Union. This led to an increase in the development of space research in the United Sates and as the first person to land on the moon was an American. If seen from the past, these super powers had always been competing each other in various fields. Therefore, there had been a fast growth in the development of space research by these super powers. This led to the fear in the countries of the world that such a completion may lead to war as it happened in the past and the world was just recovering from such a mass destruction and it had no capacity to hold another war relating to the activities in space. Further it was known that destruction from the space would cause a massive loss to the earth as whole and there wouldn’t be an existence of life on the earth if such a destruction happens. Therefore, the countries of the world shown their concern for implementing laws that would regulate such destructions to happen. By taking such views into consideration the United Sates signed an agreement that it would conduct the space explorations for peaceful activities and would not claim any authorization of the moon and other celestial bodies. This agreement led as a foundation for the formation of the United Nations Committee on Peaceful Uses of Outer Space (UN COPOUS) as the united nations by then was trying to make principles regarding the same issue and this agreement signed by the united states gave a base for it form the principles. The outer space treaty was opened for signature by three depository governments i.e the united states, the Russian Federation and the United Kingdom in 1967.

Concerns Raised by the Developing Countries

The main concerns that were raised by the developing countries during the evolution of space law in regards to their concerns of the issue of the allocation of resources the third world countries or the developing countries have presented to the united nations general assembly the ‘common heritage to mankind’, the principle affirming that the natural resources of space are held in common by all nations and should be distributed equally for the benefit of all human kind as also stated in the ‘common benefit’ principle of the 1967 outer space treaty. The third world countries as the developed countries see the space industries as of economic importance. They therefore argue for the implementation of the common heritage principle and an international regulatory agency to enable developing countries to reach economic and political parity with the developed countries and help to establish a more stable international economic order based on corporation for mutual benefit of all nations. Further they raised a fear of a speculated war that may happen between the super powers while competing in their conquest for the exploration and exploitation of the outer space. Their concerns were therefore taken into the consideration and this led to the emergence of a legal framework in the space. Though their concerns of the enjoyment of the fruits of explorations wholly by the developed countries and the fear of an expected war, were taken into consideration. But their ideas and considerations for formation of principles in the outer space treaty were neglected and the outer space treaty was first signed only the developed countries and later other countries of the world became members. Further the developing countries were not in the race of exploration and exploitation of space due to various reasons which include lack of capital and resources for such expeditions. Therefore, they raised their concerns that the advantages of expeditions in space would only be enjoyed by the developed countries. Their concerns lead to the promotion of space activities for common good for the world at large and not a state in particular and the concept of equal sharing of resources was entertained. But further developments in the law are needed as, to bring into consideration the concerns of the developing countries in various discussions for the formation of new treaties and etc. As they form a large part of the world and some developing nations like India and Brazil are now trying to equally compete in the space expeditions with the United Sates and other developing countries.[10]
**************
Footer:
[1] Creating a legal framework for the commercial exploitation of the outer space – Adeleke Fiyinfoluwa Fadesola, Page 2.
[2] A concise history of space law - Nandasiri Jasentuliyana Keynote Address on Space Law, Stephen E. Doyle, USA, Consultant Honorary Director, IISL, Page 1.
[3] Id. at 2, Laude (1910), Zarzar (1926) and Mandl (1932).
[4] Ibid., Korovin (1934).
[5]Ibid., Arthur C. Clarke.
[6]Id. at page 2.
[7] Id. at 1. acticustom is the most original and the oldest form of the international
[8]See, The evolution of the outer space treaty - Paul G. Dembling and Daniel M. Arons, National Aeronautics and Space Administration,
See also, Space law a treatise – Francis Lyall and Paul B. Larsen
See also, Introduction to space law – Diedericks Werscehoor
[9] 2.Legal issues relating to global public interest in outer space law – Ram Jakhu, LL.M., D.C.L.; Associate Professor, Institute of Air and Space Law, Faculty of Law; the Director of the Center for the Study of Regulated Industries; McGill University, Montreal, Canada.
[10] Creating a legal framework for the commercial exploitation of the outer space – Adeleke Fiyinfoluwa Fadesola

 




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