Space Law

Francis Lyall, Paul B. Larsen

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780754624561
• eBook ISBN: 9781317051961
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The opening of space to exploration and use has had profound effects on society. Remote sensing by satellite has improved meteorology, land use and the monitoring of the environment. Satellite television immediately informs us visually of events in formerly remote locations, as well as providing many entertainment channels. World telecommunication facilities have been revolutionised. Global positioning has improved transport. This book examines the varied elements of public law that lie behind and regulate the use of space. It also makes suggestions for the development and improvement of the law, particularly as private enterprise plays an increasing role in space.

Chapter 1
Introduction: Actors, History and Fora

Introduction

The launch of Sputnik I on 4 October 1957 took the attention of the world. In his non-fiction book Danse Macabre (1981) the horror writer Stephen King tells how the screening of a film in a small-town New England cinema was interrupted. The cinema manager told the audience what had happened, and the screening was abandoned. People went out in a fruitless attempt to try to see the satellite.¹ Nearly fifty years later on 31 May 2007 fourteen space agencies announced the adoption of a mechanism through which their efforts may be co-ordinated in the future exploration and use of outer space.² The developments of the ‘space age’ have massively altered the world. We have seen changes in telecommunications and broadcasting. Remote sensing has increased our knowledge of our world and exposed many problems. Our understanding of the universe has developed, to say nothing of our immediate neighbours, the Moon, the planets and other cosmic bodies. The Preamble of the ‘Space Millennium: Vienna Declaration on Space and Human Development’ adopted by the plenary meeting of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space, Vienna, 30 July 1999, inter alia recognises ‘that significant changes have occurred in the structure and content of world space activity, as reflected in the increasing number of participants in space activities at all levels and the growing contribution of the private sector to the promotion and implementation of space activities’.³

In all this, law has been involved, and has had to be developed.

What is Space Law?

What is ‘Space Law’ and where does it sit within the architecture of international law? At its broadest space law comprises all the law that may govern or apply to outer space and activities in and relating to outer space. Although clearly there is a central body of ‘space law’, the term can therefore be considered as a label attached to a bucket that contains many different types of rules and regulations rather than as denoting a conceptually coherent single form of law. It is different from ‘the law of contract’ or ‘the law of tort(s)/delict’ where ‘the law’ elaborates a series of concepts within a single phylum. ‘Space law’ is akin to ‘family law’ or ‘environmental law’, where many different laws are denoted by reference to the material with which they deal rather than being derived from the pure rational development of a single legal concept. ‘Space law’ is the Law of Space, and can range from the terms of an insurance contract in respect of a particular space launch to the broadest of principles that govern how states act in outer space. Some ‘space law’ is therefore simply the application of the principles of existing domestic law such as contract to a new field of activity. ‘Space law’ is particulate law, developed to deal with the practical problems of the use and exploration of outer space.

Space law is ‘recent’ law. The developments in technology of the last hundred and forty years have required the law to respond.⁴ More properly ‘law never seeks to regulate technology, but rather aims to place order in the competing human interests that result from that technology’.⁵ Regulation has had to be invented, adopted and implemented, and appropriate procedures developed. The process has not always kept the law up to date with developments in technology, and, as will be seen elsewhere in this book, this flaw remains in space law.⁶ Because technical advances have blurred state boundaries and in practice eroded many sovereign competences, international agreement has become necessary.⁷ Space is the main area in which it has become necessary to deal with technology on a global basis. Albeit most take it for granted and do not realise or comprehend the technicalities involved, satellite technology has had immense effects in the last fifty-something years. We watch ‘real-time’ television reports from remote parts of the globe, see wars and disasters in progress, telephone relatives thousands of miles away, conduct business across the continents, range through the Internet and goggle over the latest inanities of the entertainment sub-universe. Weather is forecast with increasing accuracy. De-forestation is observed. Land use is monitored. Sea temperatures are checked. Fishing is controlled. Ships and aircraft are tracked and directed on their courses. Animal and bird migration patterns are discovered. Looking outward we now know so much more about our Universe. Theories have been tested, abandoned, modified and developed. Space tourism is mooted. And in the ultimate there is the prospect at least of travel to and settlement on, first, the Moon, and thereafter …?

Origins

Space law is a very modern field of regulation, but, although its obvious birth-date might be thought to be the launch of Sputnik I on 15 October 1957, its origins lie much further back. Once Sputnik and its successors had shown access to space to be practicable, earlier suggestions, discussions and speculations had to be converted into actual rules and practices. This chapter reviews that progress and the actors and fora through which it has been made. We sketch the very early mentions of space questions before passing on to the period after the Second World War, finishing with the involvement of the United Nations and its family of agencies.

Before the Second World War

As the nineteenth century made way for the twentieth, questions of the regulation of aviation appeared on the stage of the world’s interest. International aviation, at first by un-powered balloon and then by dirigible (notably the Zeppelin) drew the attention of lawyers, academic and otherwise, as well as of government officials and the military. Among the various suggestions was that there should be a series of zones above the territory of a state on the analogy of the law of the sea, with freedom of flight in the uppermost zone, but these were considering only matters of air-space and not space as we now know it. The eventual result was the affirmation in Art. 1 of the Paris Convention of 1919 of the ‘complete and exclusive sovereignty’ of a state over its superjacent air-space.⁸ This principle, which quickly attained the status of dogma, was reaffirmed at Chicago in 1944.⁹ However, as will be seen in Chapter 6 below on the ‘boundary question’, the Chicago Convention does not solve problems of space-flight or of regulating the use and exploration of space.

Discussion of outer space as a region in which rules of law would be required took on immediacy after the Second World War.¹⁰ However, the first harbingers were much earlier.¹¹ In 1910 Emile Laude noted that there was need for law other than that needed to cope with ‘locomotion’ in the layer of ‘breathable air’.¹² Beyond ‘breathable air’ there were layers of ‘unbreathable gas’ and ‘ether’. Laude also noted as an incipient problem the ownership and use of the Hertzian (radio) waves,¹³ and subsumed the requirement of the new law for the new juridical relations needed for these gaseous layers and the Hertzian waves under the name the ‘law of space’. It was not until 1926 that the next mention was made of ‘space law’ as a separate legal category. In the course of a paper devoted mainly to questions of aviation V.A. Zarzar of the Soviet Air Ministry indicated his view that there was an upper limit to a state’s sovereignty over its air-space, and that a separate legal regime would be required to deal with the arena beyond this ‘upper zone’ in which international travel by high-altitude flight and interplanetary communication would be free from control by subjacent states.¹⁴ In 1929 Walter Schönborn of Keil University stated the upward limit of the sovereignty of a state as being the boundary of the atmosphere.¹⁵ In 1928, under the alias Hermann Noordung, Herman Potočnik of Slovenia published The Problem of Space Travel: The Rocket Motor.¹⁶ In it he discussed the establishment of a space station in geostationary orbit which could be used for Earth observation, but his concern was with technicalities, not legalities.

In 1932 an attempt to treat of legal matters to do with space, albeit in short compass, was published by Vladimir Mandl of Pilsen, Czechoslovakia.¹⁷ Mandl’s thought had been triggered by the activities of various rocket experimenters of the 1920s, and he had earlier written on these experiments.¹⁸ He conceived of a ‘space law’ as something distinct and different from the law of the sea and the law of the air, although he was willing to use some of their concepts as analogues through which solutions to the problems of space might be found. In a section of the book entitled ‘The Future’, Mandl expressed the view that state sovereignty should be restricted in its vertical dimension, and that in the area above and beyond state sovereignty there should be freedom. Presciently he also suggested that air law was not suitable for dealing with spacecraft, that, subject only to mitigation by contributory negligence, astronauts should be liable for damage they caused, that spacecraft launched under the sovereignty of a state should when in outer space remain subject to the sovereignty of that state, that the commander of a spacecraft should have authority over its crew, and that the link between an individual and the territorial state of his nationality might change as new communities beyond the Earth developed.¹⁹

The other mention of ideas of ‘space law’ prior to the Second World War is Russian, E. Korovin presenting a paper, later published in France, on ‘Conquest of the Stratosphere and International Law’ at an air law conference held in Leningrad in 1933.²⁰ There Korovin rehearsed the arguments in favour of state sovereignty over air-space which had been put forward before the First World War and acknowledged that some argued for a ‘free zone’ above and beyond state sovereignty, but, on grounds of safety and military security, he came down in favour of unlimited state sovereignty.²¹

There is nothing like war for producing progress in technology. Modern rocketry begins with the experiments of Konstantin Tsiolkovski, Robert H. Goddard, Hermnn Oberth and others in the early years of the twentieth century.²² Various societies were established whose interests lay in the discussion and fostering of space matters.²³ Thus the German Rocket Society (the VfR – Verein für Raumschiffahrt) was founded in 1927, what is now the American Institute of Aeronautics and Astronautics in 1932,²⁴ and the British Interplanetary Society, which came into being in 1933, started to publish its Journal in 1934. By the late 1930s sufficient progress in rocketry had been made that military interests were aroused, and a blanket of secrecy cast over such experiments.²⁵ However, the German use of the V-2 in the latter months of the Second World War revealed the progress that their scientists had made and the potential inherent in such devices. At the end of the War both East and West scrambled to augment their own science and science personnel by expediting the immigration of relevant German scientists apparently without regard to questions of war crimes, and the stage was set.²⁶ At first the military aspects of rocket science had precedence, ballistic and intercontinental missiles being developed. However, the technology was also capable of peaceful uses. The International Geophysical Year of 1957 was to introduce satellites for the scientific ex...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• Preface
• Abbreviations and Acronyms
• Major Treaties
• 1 Introduction: Actors, History and Fora
• 2 Sources of Space Law
• 3 The Outer Space Treaty, 1967
• 4 Space Objects: Control, Registration, Return and Liability – The Treaties and the Practice
• 5 Astronauts
• 6 The Air/Space Boundary Question
• 7 The Moon and Other Celestial Bodies
• 8 Radio and the International Telecommunication Union
• 9 Orbits, Direct Broadcasting and Solar Power
• 10 Environmental Regulation
• 11 Telecommunication Organisations
• 12 Global Navigation Satellite Systems
• 13 Remote Sensing
• 14 Space Activities and International Trade Law
• 15 Commercial Activities and the Implementation of Space Law
• 16 The Military Use of Outer Space
• 17 The Search for Extraterrestrial Intelligence (SETI)
• 18 The Future
• Index