Space Law

Space Law A Treatise Francis Lyall and Paul B. Larsen Space Law For our progeny, Astrid, Heidi, Fiona Elizabeth, Gi...

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Space Law A Treatise

Francis Lyall and Paul B. Larsen

Space Law

For our progeny, Astrid, Heidi, Fiona Elizabeth, Gillian Ann, Francis James, Samuel James, Rachel Alice and Abigail Heather – who may yet travel into space.

Space Law A Treatise

Francis Lyall University of Aberdeen, UK Paul B. Larsen Georgetown University Law Center, USA

© Francis Lyall and Paul B. Larsen 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Francis Lyall and Paul B. Larsen have asserted their rights under the Copyright, Designs and Patents Act, 1988, to be identified as the authors of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East Suite 420 Union Road 101 Cherry Street Farnham Burlington Surrey, GU9 7PT VT 05401-4405 England USA www.ashgate.com British Library Cataloguing in Publication Data Space law : a treatise 1. Space law I. Lyall, Francis II. Larsen, Paul B. 341.4'7 Library of Congress Cataloging-in-Publication Data Lyall, Francis. Space law : a treatise / by Francis Lyall and Paul B. Larsen. p. cm. Includes index. ISBN 978-0-7546-4390-6 -- ISBN 978-0-7546-9242-3 (ebook) 1. Space law. I. Larsen, Paul B. II. Title.

KZD1145.L93 2009 341.4'7--dc22

ISBN: (hbk) ISBN: 978 0 7546 9242 3 (ebk.V)

2008053169

Contents Preface Abbreviations and Acronyms Major Treaties 1 Introduction: Actors, History and Fora

vii xi xiii 1

2

Sources of Space Law

31

3

The Outer Space Treaty, 1967

53

4

Space Objects: Control, Registration, Return and Liability – The Treaties and the Practice

81

5 Astronauts

129

6

The Air/Space Boundary Question

153

7

The Moon and Other Celestial Bodies

175

8 Radio and the International Telecommunication Union

199

9

245

Orbits, Direct Broadcasting and Solar Power

10 Environmental Regulation

275

11

Telecommunication Organisations

319

12

Global Navigation Satellite Systems

389

13 Remote Sensing

411

14

443

Space Activities and International Trade Law

15 Commercial Activities and the Implementation of Space Law

467

16

499

The Military Use of Outer Space

Space Law

vi

17

The Search for Extraterrestrial Intelligence (SETI)

533

18

The Future

559

Index

577

Preface This book is the result of many years of our interest in space law. We met in the Space Law class run by Ivan Vlasic in the Institute of Air and Space Law at McGill University in 1963–1964, and Ivan infected us with his enthusiasm. Our paths diverged, but friendship continued. F. Lyall went into academic law, largely at the University of Aberdeen, Scotland. P.B. Larsen went to the Institute of Air and Space Law at Cologne University and Yale University before going to the Southern Methodist University, Dallas, Texas. He then entered US Government service in the legal section of the Federal Department of Transportation, combining this with a teaching appointment at the Georgetown Law Center, both in Washington DC. Our careers over these forty-five years therefore largely match the actual development of space, and its companion, space law. This book is a companion to the collection of essays which we edited in 2007. Writing it has been an interesting task. We have sought to present the bulk of space law as it stands in the 2000s, though neither of us would necessarily defend every word, phrase or opinion – the views of collaborators can diverge. Any book treatment of such a diverse subject is more akin to a mural than to an etching. An etching can do things that are impossible in a mural of c. 300,000 words. We are trying to present a view of space law as a whole. Detail may vanish, but we have cited where further (and less generalised) information and contrary views may be found. Some material cited is of historical interest but is included because we both believe that in order to understand the law as it is you have to know how we got where we are. We have had one major advantage over our predecessors – the Internet. Much documentary material as to space history as well as current legislation and governmental, intergovernmental and agency practice has been made electronically available in the last few years. In addition many journal articles have become accessible without the need to travel to specialised libraries. We would thank the compilers of LEXIS (http://www.lexisnexis.com/), Westlaw (http://www.westlaw. com) and Heinonline (http://www.heinonline.org/), who have made vast quantities of legal material available to researchers. We also thank our respective educational establishments as subscribers to these electronic services. At the same time, having coming close to developing cranial hernias, we might complain about the volume of material that has thus been made accessible. We have read much, skimmed more, overlooked a number and forgotten some. Down to their dates the books of Professors Cheng and Christol are invaluable on the matters they cover and we owe them more than their citations indicate. Since we intend this volume to be a research tool as well as a treatise on space law, we have cited copiously

viii

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though recognising that citation may be the barnacles of the written word. Apart from that caveat we would particularly recommend the annual Proceedings of the International Institute of Space Law (indexed to 1994, with an update pending) and the Annals of Air and Space Law, together with Air and Space Law, the Journal of Air Law and Commerce and the Journal of Space Law. Many other non-spacespecialist journals have also carried important contributions. Not all that has been read has been footnoted: that would have rendered merely a list. We apologise for omissions of articles and data that others may consider more suitable than those we have included. Some cited material has been converted to history by the passage of time – note the publication dates – and is of variable quality, but we hope that this book will be used as a teaching instrument, and students should learn to evaluate their sources for themselves. Many articles contain more data on space law than the particular point or area for which they are cited, and many repeat material available elsewhere in order to inform the readership of a particular non-specialist journal. Finally, we recognise that there are elements missing from our research and citation, in particular from French, German, Italian and Russian sources. This is partly because of our linguistic limitations and part because the material has not been available to us. Even so, once one starts to search there is a vast quantity of articles on and discussions of space law. Given the Internet we have provided URLs for many sites, but users should appreciate that these links may not always work: data can be archived and sites cease to exist. We can do nothing about that, but encourage the e-competent to seek alternative locations for the data. As a result of fatigue, we expect that some citations may be erroneous and would appreciate notification as to their correction. Although there can be problems with Wikipedia, we would recommend that, with due caution, readers pursue some further information within the confines of that intriguing development in the arena of soi-disant knowledge. Its technical articles appear to be sound. At pp. 177–8, towards the end of his treatment of the literature in his seminal Space Law (London: Stevens, 1965), C.W. Jenks suggested that in the wake of McDougal, Lasswell and Vlasic’s monumental treatise Law and Public Order in Space (New Haven, CT and London: Yale UP, 1963) later authors would find themselves constrained by developments and the decisions that would be made subsequent to that work. The ‘purely speculative phase’ of space law had already passed and a beginning had been made to the task of establishing the rule of law in space. Notwithstanding, Jenks felt that there ‘still remains unanswered the fundamental question of chaos or control posed by Jessup and Taubenfeld in their Controls for Outer Space and the Antarctic Analogy (New York: Columbia UP, 1959), whether space would become an arena for power struggles similar to those for territory or whether by “taking time by the forelock” a radical solution for the problem of control of space would be evolved’. In our view radical solutions �� P.-M. Martin, Droit des activities spatiales (Paris: Masson, 1992); F. Francioni and F. Pocar, Il Regime Internationale dello Spazio (Milan: Guifffre, 1993).

Preface

ix

have indeed emerged, perhaps not always as Jenks expected. Basic principles of equality of access to space, of freedom of its exploration and use, of a prohibition of national sovereignty and of the lawfulness only of peaceful uses of space have been developed and applied in a variety of circumstances. Jenks would be intrigued by what we describe in this text. Writers now indeed have ‘an authoritative point of departure to guide and discipline’ their work. The law is not perfect, but it is there. Space affects us all. Thankfully, there are the rules and regulations which we have endeavoured to review. Not all is perfect, developments continue, and in places we have suggested improvement. We have tried to state the law and take account of technical developments and proposals down to 1 January 2008, although on occasion it has been possible to include later data and developments. However we acknowledge some pre-2008 gaps in our reading and recollection of material. The field will not remain still, but we hope that these pages will provide a reliable platform for others to launch their own investigations into many of its areas. Over the years and during the writing of this book many have helped us, unravelled histories and provided materials and insights. Some have done so under condition of anonymity and it would be invidious therefore to list the others. Accordingly we here simply record our thanks for many helps. However, we would expressly thank our wives, Heather and Judith, for their encouragement and much patience. Francis LyallPaul B. Larsen. School of Law Georgetown Law Center University of Aberdeen, ScotlandWashington DC, US

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Abbreviations and Acronyms

AASL Annals of Air and Space Law, McGill University. AJIL American Journal of International Law, 1906–. ATS Australian Treaty Series. Bevans C.I. Bevans, Treaties and Other International Agreements of the USA, 13 vols, 1968–78. BNSC British National Space Centre: http://www.bnsc.gov.uk. BYIL British Year Book of International Law. CFR Code of Federal Regulations (USA). Cheng Bin Cheng, Studies in International Space Law (Oxford: Clarendon Press, 1997). Christol C.Q. Christol, The Modern International Law of Outer Space (New York and Oxford: Pergamon Press, 1982). CNES The French ‘Centre Nationale d’Etudes spatiales’: http://www.cnes.fr. CS ITU Constitution. Immediate reference is to CS articles. Additional numbers in brackets refer to the now customary paragraph numbering. CTS C. Parry, ed., The Consolidated Treaty Series (New York: Oceana). CV ITU Constitution. Immediate reference is to CV articles. Additional numbers in brackets refer to the now customary paragraph numbering. ECSL European Centre for Space Law: http://www.esa.int/SPECIALS/ ECSL/index.html. Gorove S. Gorove, Developments in Space Law: Issues and Policies (Dordrecht: Nijhoff, 1991). Hague Recueil Hague Academy of International Law, Recueil du Cours, cited by vol. no, and year/vol. Hudson M.O. Hudson, International Legislation, 9 vols, 1931–50. IAF International Astronautical Federation: www.iafastro.com. ICJ International Court of Justice, 1946–. ICSC Interim Communications Satellite Committee, 1964–73 (responsible for the initial stages of the INTELSAT global system). IISL International Institute of Space Law: http://www.iafastro-iisl.com. ILC International Law Commission: http://www.un.org/law/ilc/. ILM International Legal Materials, American Society of International Law, 1961–. ITU International Telecommunication Union: http://www.itu.int. J. Sp. L. Journal of Space Law (University of Mississippi). Excluding obvious abbreviated references.

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Legal Problems Symposium Legal Problems of Space Exploration – A Symposium, US Senate, 87th Cong. 1st Sess., S. Doc. no. 26, USGPO, 1961. Lyall F. Lyall, Law and Space Telecommunications (Aldershot: Dartmouth; Brookfield, VT: Gower, 1989). Lyall/Larsen F. Lyall and P.B. Larsen, Space Law in The Library of Essays in International Law (Aldershot and Burlington, VT: Ashgate Publishing, 2007). Manual Manual on Space Law, 4 vols, N. Jasentuliyana and R.S.K. Lee, eds (Dobbs Ferry, NY: Oceana, 1979–81). NASA National Aeronautics and Space Administration (US): www.nasa.gov. OOSA UN Office for Outer Space Affairs, Vienna: www.oosa.unvienna.org. PCIJ Permanent Court of International Justice, 1922–46. RIAA Reports of International Arbitral Awards (Geneva: UN, 1949–). RR ITU Radio Regulations (Geneva: ITU). SPOT Satellite Pour L’Observation de la Terre. UKSP United Kingdom State Papers (includes Reports to Government and both Houses of Parliament). USC United States Code – consolidates federal congressional legislation. ZLW Zeitschrift fur Luft und Weltraumrecht. Institute �� of Air and Space Law, Cologne University.

Major Treaties OST Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, (1968) 610 UNTS 205; (1968) UKTS 10, Cmnd. 3519; 18 UST 2410, TIAS 6347; 6 ILM 386; 61 AJIL 644: in force 10 October 1967. ARRA Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 22 April 1968; 672 UNTS 119; 1969 UKTS 56, Cmnd. 3997; 19 UST 7570, TIAS 6559; 7 ILM 151; (1969) 63 AJIL 382: in force 3 December 1968. Liability Convention on International Liability for Damage Caused by Space Objects, 29 March 1972; 961 UNTS 187; (1974) UKTS 16, Cmnd. 5551; 24 UST 2389, TIAS 7762; (1971) 10 ILM 965; (1971) 66 AJIL 702: in force 1 September 1972. Registration Convention on the Registration of Objects Launched into Outer Space, 14 January 1975; 1023 UNTS 15; (1978) UKTS 70, Cmnd. 7271; TIAS 8480; (1975) 14 ILM 43; (1979) 18 ILM 891: in force 15 September 1976. MA Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, UN Doc. A/34/664. Nov. 1979; UN Doc. A/34/20, Annex 2; UN Doc. A/RES/34/68; 1363 UNTS 3; (1979) 18 ILM 1434: in force 11 July 1984. ITU See the Collection of the Basic Texts of the International Telecommunication Union adopted by the Plenipotentiary Conference, 3rd ed., 2007 (Geneva: ITU, 2007).

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

�� Sputnik I was 58 cm/25 inches in diameter. �� ‘The Global Exploration Strategy: The Framework for Coordination’: http://www. bnsc.gov.uk/assets/channels/media_centre/Global%20Exploration%20Strategy%20Fram ework.pdf; http://www.scitech.ac.uk/Resources/PDF/gesframework.pdf; http://www.nasa. gov/pdf/178109main_ges_framework.pdf. The agencies involved are ASI (Italy), BNSC (United Kingdom), CNES (France), CNSA (China), CSA (Canada), CSIRO (Australia), DLR (Germany), ESA (European Space Agency), ISRO (India), JAXA (Japan), KARI (Republic of Korea), NASA (United States of America), NSAU (Ukraine), Roscosmos (Russia). The voluntary non-binding ‘Coordination Mechanism’ has begun to work. �� The text of the Millennium Declaration is in A/CONF.184/6, 30 July 1999: http:// www.oosa.unvienna.org/unisp-3/res/html/viennadecl.html.

Space Law

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. More properly ‘law never seeks to regulate technology, but rather aims to place order in the competing human interests that result from that technology’. 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. Because technical advances have blurred state boundaries and in practice eroded many sovereign competences, international agreement has become necessary. Space is the main �� We select 140 years to date these changes from the establishment of the International Telegraph Union in 1865: see Chapter 9. �� M. Bourbonniere, ‘National-Security Law in Outer Space: The Interface of Exploration and Security’ (2005) 70 J. Air L. and Comm. 3–62 at 3. �� Cf. W.F. Ogburn’s concept of ‘cultural lag’ – that the pace of change in technologies exceeds the ability of society to cope with it: W.F. Ogburn, Social Change, with Respect to Culture and Original Nature (Chicago: Chicago UP, 1964). (Ogburn’s insight was drawn to our attention by S.M. Jackson ‘Cultural Lag and the International Law of Remote Sensing’ (1997–1998) 23 Brook. J. Int. L. 853–85) [Lyall/Larsen 469–501]. �� M. Lachs, The Development and General Trends of International Law in our Time, 169 Hague Recueil 1980-IV; and his ‘Thoughts on Science, Technology and World Law’ (1992) 86 AJIL 673–99 [Lyall/Larsen 3–29]; L.B. Sohn, ‘The Impact of Technological Changes on International Law’ (1973) 30 Wash. and Lee L. Rev. 1–18; M. Bourquin, ‘Pouvoir scientifique et droit internationale’ 70 Hague Recueil 1947-I, 331; M.W. Mouton, ‘The Impact of Science on International Law’ 119 Hague Recueil 1966-III, 183–260; A.E. Gottleib, ‘The Impact of Technology on the Development of Contemporary International Law’, 170 Hague Recueil 1981-I, 115–329; J.L. Charney, ‘Technology and International

Introduction: Actors, History and Fora

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.

Negotiations’ (1982) 76 AJIL 78–118; P.F. Cowhey, ‘The international telecommunications regime: the political roots of regimes for high technology’ (1990) 44 Int. Org. 169–99; C.B. Picker, ‘A View from 40,000 Feet: International Law and the Invisible Hand of Technology’ (2001) 23 Cardozo L. Rev. 149–219; I. Brownlie, ‘International Law in the Context of the Changing World Order’, in N. Jasentuliyana ed., Perspectives on International Law: Essays in Honour of Judge Manfred Lachs (Dordrecht: Nijhoff, 1995) 49–61; C.W. Jenks, ‘International Law and Activities in Space’ (1956) 5 Int. Law Quart. 99–114; and ‘The New Science and the Law of Nations’ (1968) 17 ICLQ 327–45; his ‘Orthodoxy and Innovation in the Law of Nations’ (1971) 57 Proc. Brit. Academy, 215–35. Cf. C.W. Jenks, Space Law (London: Stevens, and New York: Praeger, 1965), his The Common Law of Mankind (London: Stevens, 1958) and A New World of Law? A Study of the Creative Imagination in International Law (London: Longmans, 1969). As to developments in technology and space programmes see P.V.M. Rao, ed., 50 Years of Space: A Global Perspective (Hyderabad: Universities Press, 2007).

Space Law

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. This principle, which quickly attained the status of dogma, was reaffirmed at Chicago in 1944. 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 �� Convention on the Regulation of Aerial Navigation, Paris, 1919, 11 LNTS 173; 1922 UKTS 2, Cmd. 1609; 1 Hudson 359; 13 Martens (3d) 61; (1923) 17 AJIL Supp. 195. Cf. ‘Draft International Convention on Aerial Navigation’, Paris 1910, Appendix to the Report of the (UK) Civil Aerial Transport Committee, 1918 UKSP vol. V, 17, Cd. 9218: www.bopcris.ac.uk/imgall/ref8301_1_1.html. �� Convention on International Civil Aviation, Chicago, 1944 (1944) 15 UNTS 295; 9 Hudson 168; 61 Stat. 1180, TIAS 1591; 3 Bevans 944; (1953) UKTS 8, Cmd. 8742; (1945) 39 AJIL Supp 111; ICAO Doc. 7300/9, 2006. 10 �� Many pre-Sputnik articles are printed or cited in Legal Problems of Space Exploration – A Symposium, US Senate, 87th Cong. 1st Sess., S. Doc. no. 26, 1961 (Legal Problems Symposium). There was a first edition – Space Law – A Symposium, US Senate, 85th Cong. 2nd Sess., 1959, which we have not seen. Jenks, 97, notes the first ed. contains some material which is not in the second, but the second includes materials not in the first. For a categorised listing of articles on different problems see ‘The Law of Outer Space’ Report to the National Aeronautics and Space Administration, Project Reporters, N. deB. Katzenbach and L. Lipson (American Bar Foundation, 1960) (Legal Problems Symposium, 779–983). See also M. Smirnoff, ‘The Legal Status of Celestial Bodies’ (1961–1962) 28 J. Air L. and Comm. 385–404 for summaries of many articles not only in legal journals down to its date. Cf. for post-Sputnik scientific speculation The Next Ten Years in Space, 1959–1969, Staff Report, House Select Committee on Astronautics and Space Exploration, H. Doc. 115, 86th Cong. 1st Sess. (USGPO, 1959). 11 �� What follows relies on Jenks, 97–179 and S.E. Doyle, Origins of International Space Law and the International Institute of Space Law of the International Astronautical Federation (San Diego: Univelt, 2002) and his ‘Concepts of Space Law before Sputnik’ (1997) 40 Proc. IISL 3–13. We also acknowledge with thanks as yet unpublished material

Introduction: Actors, History and Fora

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 which Dr Doyle made available to us. See also H.D. Hazeltine, The Law of the Air (London: Hodder and Stoughton, 1911) 1–53. 12 Revue International de Locomotion Aérienne, 1910, noted by Jenks 97. 13 �� As to the question of ‘use’ of Hertzian waves, Laude’s questioning seems strange since there had already been the Berlin Preliminary Conference on Wireless Telegraphy of 1906, and the subsequent Convention on Radio-telegraphy of 1909. See Chapter 8. 14 �� Doyle, Origins, n. 11, at 1–4, discussing and quoting extracts from V.A. Zarzar ‘Public International Air Law’, in Problems of Air Law, A Symposium (in Russian) (Moscow, 1927): translated by Leo Kanner Associates for NASA, NASA TM-76913, June 1982. The Doyle quotation is from a revised translation by B. Lehenbauer of 1988. 15 �� W. Shönborn, ‘La nature juridique de territoire’, 30 Hague Recueil 1929, 81–189 at 158. 16 �� The original publisher was R.C. Schmidt, who apparently misdated the book as 1929: see E. Stuhlinger et al., eds, The Problem of Space Travel. (NASA History Series, NASA SP-4026, USGPO, 1999) or www.hq.nasa.gov/office/pao/History/SP-4026/cover. html. Cf. Chapter 11, p. 322. 17 �� V. Mandl, Das Weltraum-Recht: Ein Problem der Raumfahrt [The Law of Outer Space: A Problem of Space-flight] (Berlin: Mannheim; Leipzig: Bensheimer, 1932), 48 pp. (not seen). See V. Kopal, ‘Vladimir Mandl – Founder of Space Law’ (1968) 11 Proc. IISL 357–61, his ‘The Question of Defining Outer Space’ (1980) 8 J. Sp. L., 154–73 at 154, and his ‘The Evolution of the Doctrine of Space Law’, in N. Jasentuliyana ed., Space Law: Development and Scope (Westport, CT and London: Praeger, 1992) 17–32, at 18–19. See also G. Reintanz, ‘Vladimir Mandl – the Father of Space Law’ (1968) 11 Proc. IISL 362–65, who quotes a letter by Mandl reviewing his career. Mandl could not find a publisher willing to take on the book, and himself paid for an edition of 500 copies. Apparently only eighteen

Space Law

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 copies of the booklet sold in 1932, and seven in 1933. He gave the rest away. Mandl also wrote about parachutes, patented a design for a high-altitude rocket and wrote a technical treatment of The Problem of Interstellar Traffic in 1932. An advocate of technocracy, he published Technocracy–Economic System of the Future in Prague in 1934, and Essays of a European Technocrat in Los Angeles in 1936. He died of tuberculosis in 1941. 18 �� Doyle, Origins, n. 11, 5–9. W. Ley, Rockets, Men and Missiles in Space (New York: Signet, 1969); V. Kopal, ‘Vladimir Mandl: Founding Writer on Space Law’, in F.C. Durant III and G.S. James, eds, First Steps towards Space (Washington DC: Smithsonian Press, 1974) 87–90 (not seen). 19 �� See Kopal and Reintanz, supra n. 17, and Kopal, n. �� 18, quoted in Doyle, Origins, n. 11, at 8. 20 �� E. Korovin, ‘La Conquéte de la Stratosphere et le Droit International’ (1934) 41 Rev. Gen. de Droit Int. Pub., 675–86. 21 �� Doyle, Origins, n. 11, 12–14. 22 �� W. Ley, Rockets, Missiles and Space Travel (New York: Viking Press, 1958); W. von Braun and F.I. Ordway, History of Rocket and Space Travel, 4th ed. (New York: Crowell, 1972); D.A. Clary, Rocket Man: Robert H. Goddard and the Birth of the Space

Introduction: Actors, History and Fora

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 exploration of the Earth. Of the more immediate benefits to be brought by space, Arthur C. Clarke’s suggestion in 1945 that rocket science had made possible access to the geostationary orbit, and that that was the place to site communication satellites, is perhaps the most famous.27 It was also Clarke, however, who is identified by Doyle’s extensive research as the first post-War author to articulate as he did in a lecture to the British Interplanetary Society in 1946 the need for an upper limit on state sovereignty in the interests of the development of space science and its applications.28 This lecture was apparently triggered by a statement of US General H. Arnold that the design of a true spaceship

Age (Hyperion, 2003); B.V. Rauschenbach, Hermann Oberth: The Father of Space Flight 1894–1989 (Fine Art, 1994). For Tsiolkovski see www.informatics.org/museum/tsiol.html. 23 �� Doyle cites: F.H. Winter, Prelude to the Space Age – the Rocket Societies 1924– 1940 (Washington DC: Smithsonian Institute, 1983) and A.G. Haley, Rocketry and Space Exploration (New York: Van Nostrand, 1958). See also previous note. 24 �� T.D. Crouch, Rocketeers and Gentlemen Engineers: A History of the American Institute of Aeronautics and Astronautics … And What Came Before (AIAA, 2006). 25 �� On 10 October 1939 the British Interplanetary Society (BIS) circulated a note to all its members to ‘cease activities’. The Society resumed in 1945, bringing under its wing various regional organisations. See BIS Chronology at www.bis-spaceflight.com. 26 �� G. DeGroot, Dark Side of the Moon (London: Jonathan Cape, 2006) 12–28; P.M. Sterns and L.I. Tennen, ‘Ethics and the Conquest of Space: From Peenemunde to Mars and Beyond’ (2007) 50 Proc. IISL 456–67 at 464–7. 27 �� A.C. Clarke, ‘Extra-terrestrial Relays: Can Rocket Stations Give World-Wide Radio Coverage?’, Wireless World (October 1945), 303–8. Clarke foresaw such stations being manned – the transistor lying unperceived in the future. 28 �� A.C. Clarke, ‘The Challenge of the Spaceship: Astronautics and its Impact on Human Society’ (1946–7) 6 J. Brit. Interplanetary Soc., 66–7, quoted by Doyle, Origins, n. 11, at 15–17. Doyle is of the view that Clarke based his thoughts on reason and not on familiarity with the work of Mandl.

Space Law

was ‘all but practicable today’.29 Clarke also observed that action would be needed to forestall extraterrestrial imperialism and consequent conflict. Doyle further notes that various other concepts relevant to space activities also began to appear in the 1940s. That the Moon is ‘the common heritage of mankind’ was stated by one of the Council of the British Interplanetary Society in 1949.30 The idea that an area or region might be set aside under international control for peaceful scientific purposes only emerged in relation to Antarctica.31 Thereafter various international associations and bodies became important for the expression of views and suggestions as to what law might or should govern in matters of outer space. Articles began to be written,32 and in due course there were books.33 It is now time to outline the various organisations and fora within which space law has been developed. These range from academic institutions and formal conferences to international organisations and governments. Space Law Institutions and Fora after the Second World War The International Astronautical Federation (IAF), the International Academy of Astronautics (IAA), the International Institute of Space Law (IISL) and the International Law Association The emergence of the International Astronautical Federation (IAF) in 1950 was a major development.34 Although not many papers were directed to questions of 29 Third Report of the Commanding General of the Army Air Forces to the Secretary of War (Washington DC: US Army Air Forces, 1945), cited by Doyle, Origins, n. 11, at 15. 30 �� ‘Correspondence: Man and his Mark’, by R.A. Smith (1949) 8 J. of the British Interplanetary Society, 131–2, quoted in extenso by Doyle, Origins, n. 11, 18–19. Doyle at 19–20 also quotes a French pamphlet L’Astronautique (Paris: Presses Universitaires de France, 1949) in which one Lionel Laming wrote that ‘the conquest of space may mean that all the solar system, not only the Earth, deserves to be considered as the heritage of mankind’. 31 �� ‘Discussion asked on Territorial Problems of Antarctica’, US Department of State Bulletin, 5 September 1948, 301, quoted by Doyle, Origins, n. 11, 17–18. 32 �� See supra n. 10. 33 �� For example, P.C. Jessup and H.J. Taubenfeld, Controls for Outer Space and the Antarctic Analogy (New York: Columbia UP; Oxford: Oxford UP, 1959); J.G. Verplaetse, International Law in Vertical Space (New York, Rothman, 1960); C. Chaumont, Le Droit de l’Espace (Paris: Presses Universitaire de Paris, 1960); A.G. Haley, Space Law and Government (New York: Appleton-Century-Crofts, 1963); G. Gal, Space Law (Leiden: Sijthoff, 1969); S.H. Lay, and H.J. Taubenfeld, The Law Relating to the Activities of Man in Space (Chicago: Chicago UP, 1970). 34 �� www.iafastro.com/. For an outline and discussion of the creation of the IAF and its eight conferences down to 1957 with special reference to their legal content, see Doyle, Origins, n. 11, 22–79; cf. A.G. Haley (supra n. 33) 343–70. See also R.D. Crane,

Introduction: Actors, History and Fora

law at its early congresses,35 the IAF provided and provides a major forum for the discussion of questions relating to the exploration and use of space, as well as for the dissemination of information by and between its participants both at meetings and through the series Acta Astronautica and the Proceedings of the International Institute of Space Law. In 1960 the IAF established the International Academy of Astronautics (IAA), membership of which is prized by individuals active in all forms of space activities. Its purpose, like those of the academies of classical times, is to bring together individuals to exchange ideas and experience and so to contribute to the advancement of space and astronautics. The IAA has four Sections: Basic Science, Engineering Sciences, Life Sciences and Social Sciences, law falling within the last of these. Membership is through election by the existing members. Full members are elected for life. Corresponding members are elected for five years, but may be considered for election as full members after two years.36 The Eighth IAF International Congress on Astronautics was held in October 1957, four days after the launch of Sputnik I. It elected as IAF President Dr Andrew G. Haley, a US lawyer who had for some years been active within the IAF and in the promotion of ‘space law’.37 It was therefore not surprising that the decision was also taken to establish a special committee of the IAF under the chairmanship of John Cobb Cooper to ‘define the respective areas of jurisdiction for air and space law’. In 1958 a Colloquium on Space Law attracted to The Hague no less than forty-four participants from ten countries. It resolved that a ‘Permanent Legal Committee’ should be established within the IAF that would be open to jurists of associations affiliated to the IAF in order to study problems of space law which might be included in an international convention. This was accepted by the IAF Congress in 1958.38 At a London Colloquium of 1959 the name of the ‘Permanent ‘Background of the International Institute of Space Law’ (1961) 4 Proc. IISL 153–70; C.Q. Christol, ‘Influence of the International Institute of Space Law and the International Law Association on the Development of Space Law’ (1993) 42 ZLW 430–41, and data on the IAF in Legal Problems (supra n. 10), xvi–xxi. 35 �� Stuttgart, 1952 paper by A. Meyer; Innsbruck 1954 by A. Cocca; Rome 1956 by A. Cocca and by E. Pepin; Barcelona, 1957 by A.G. Haley and by E. Pepin. 36 �� V. Kopal, ‘Evolution of the Statutes and Membership of the International Academy of Astronautics’ (1985) 28 Proc. IISL 52–60; his ‘The Contribution of the International Astronautical Federation to International Cooperation in Outer Space and the Development of its Constitution’ (1993) 36 Proc. IISL 48–68; F. von der Dunk, ‘Report on Relevant Work of the International Institute of Space Law’, in K.-H. Böcksteigel ed., Project 2001, Legal Framework for the Commercial Use of Space (Cologne: Carl Heymanns Verlag, 2002), 35–6. See also H. Moulin, ed., IAF: The First 50 Years (Paris: IAF, 2001). 37 �� When A.G. Haley ceased to be President of the IAF and reverted to being its General Counsel, he set up eleven working groups to consider various matters with which space law would have to deal: (1959) 2 Proc IISL iii–vii. 38 �� See M.S. Smirnoff, ‘The Role of the IAF in the Elaboration of Norms of Future Space Law’ (1959) 2 Proc. IISL 147–55 at 150–2 for a draft Space Law Convention.

10

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Legal Committee’ was changed to the ‘International Institute of Space Law’ and the constitution and byelaws of the Institute were accepted by the Bureau of the IAF at the Eleventh IAF Congress, Stockholm 1960.39 The International Institute of Space Law, now (2008) with twenty-two institutional and nearly three hundred individual members, continues to hold annual colloquia during the congresses of the International Astronautical Federation.40 Apart from at least one general session, each colloquium concentrates on three or four main topic areas. The Proceedings of these colloquia form a significant contribution to the corpus of space law. In addition, since 2001 the Institute has arranged regional colloquia in parts of the world remote from the location of recent IAF congresses. In 2001 a regional meeting was held in Singapore,41 in 2004 in Bangalore (postponed from 2003 and relocated from Beijing because of the Severe Acute Respiratory Syndrome, SARS) and in 2006 in Bangkok. Since 1992 the Institute has also arranged the Manfred Lachs Moot Court Competition, an international competition named for the former President of the Institute. Regional finals of the competition are held for North America, Europe and Australasia. The world final is held as part of the annual Colloquium of the Institute, and is judged by three judges of the International Court of Justice. Since 2001 the IISL has also in co-operation with the European Centre for Space Law (ECSL) presented a workshop at the annual meeting of the Legal Subcommittee of COPUOS and since 2008 has official status as an observer to the sessions of the Committee. The IISL was extensively involved in UNISPACE III (infra). The other major international group of lawyers active in space law is the International Law Association (ILA). Founded in Brussels in 1873 the ILA is a non-governmental organisation. Membership is voluntary. Working through branches and international committees, the ILA studies and helps clarify international law. It has consultative status with a number of UN specialised agencies and other organisations. Through its Space Law Committee the ILA has produced a number of reports on space law ranging from consideration of the space law treaties to questions of the commercial use of space. These are referred to elsewhere in this book.42 39 �� E. Pepin, International Institute of Space Law – A Brief History (New York: AIAA, 1982); S.E. Doyle, Origins of International Space Law and the International Institute of Space Law of the International Astronautical Federation (San Diego: Univelt, 2002) 80–93. In reviewing A.G. Haley: Space Law and Government (1963) Alex Meyer criticised as unnecessary the nomenclature of an ‘Institute’ with ‘Directors’: A. Meyer, ‘Space Law and Government: Considerations on the Book with the Same Title by Andrew G. Haley’ (1964) 13 ZLW 4–43 at 42–3. 40 �� See also: www.iafastro-iisl.com and www.iafastro.com. 41 �� Papers published in (2001) 5 Singapore J. Int. and Comp. Law. 42 �� M. Williams, ‘The Role of the International Law Association in the Development of the Law of Space’, in K.-H. Böcksteigel ed., Project 2001, Legal Framework for the Commercial Use of Space (Cologne: Carl Heymanns Verlag, 2002) 37–45. The ILA website is at http://www.ila-hq.org.

Introduction: Actors, History and Fora

11

Academic and Similar Institutions The teaching of space law is important both in spreading knowledge of space law and for its development.43 Various academic institutions and groups have contributed greatly. As might be expected, in most instances space law has emerged as a discipline first introduced as an adjunct or addition to studies in aviation law.44 Some universities offer only a few lectures as part of a general course on Public International Law. Single courses in space law are available in some places, for example at Georgetown Law Center in Washington DC and at the School of Law of the University of Aberdeen in Scotland, offered respectively by one or other of the authors of this book.45 Aviation remains the major thrust of the endeavours of most of the specialised institutes, but their influence in space law cannot be gainsaid. Chronologically the roots of the Institute of Air and Space Law at the University of Cologne extend furthest back in time.46 The Institute offers taught courses and postgraduate supervision as well as organising symposia and colloquia, notably recently the various meetings connected with its Project 2001 directed by Professor H. Böcksteigel, an endeavour which has continued into the new millennium as Project 2001 Plus under his successor Professor S. Hobe. The Cologne Institute publishes the Zeitschrift fur Luftrecht und Weltraumrecht (ZLW) (the German Journal of Air and Space Law), a journal which retains the numbering of, but replaces, the Zeitschrift fur Luftrecht (1952–9) from its vol. 9, and the earlier Archives of Air Law (1931–43).

43 �� On the general importance of such matters in Public International Law, see M. Lachs, ‘Teachings and Teaching on International Law’, 151 Hague Recueil 1976-III, 161– 252. For recent material see ‘Capacity Building in Space Law’, a symposium arranged by IISL/ECSL for the COPUOS Legal SubCommittee, March 2007: http://www.unoosa.org/ oosa/COPUOS/Legal/2007/symposium.html. See also the list of institutions involved in the teaching of space law compiled by UN OOSA – http://www.unoosa.org/oosa/SpaceLaw/ educationdirectory/index.html. 44 �� The IISL has occasionally discussed and heard reports as to the teaching of Space Law in various countries: (1973) 16 Proc. IISL, 342–408 (9 papers), (1986) 29 Proc. IISL, 205–89 (15 papers). See also P.H. Tuinder and T. Masson-Swan, ‘Space Law Training and Education’, in G. Lafferanderie and D. Crowther, eds, Outlook on Space Law over the next 30 Years (The Hague: Kluwer, 1997) 285–301; UN OOSA maintains a directory of educational opportunities in Space Law. 45 �� See Space Law Teaching in Europe, 5th ed. (ECSL, 2007). 46 �� H. Bittlinger and M. Benkö, ‘Institute of Air and Space Law, University of Cologne, 1925–2005’ (http://www.uni-koeln.de/jur-fak/instluft/index-e.html); H. Bittlinger, History of the Institute of Air and Space Law of the University of Cologne (Cologne: IASL). K.-H. Böcksteigel, ‘Report and Reflections on the Teaching of Space Law at the Institute of Air and Space Law at Cologne University’ (1986) 29 Proc. IISL, 208–211. See: www.uni-koeln. de/jur-fak/instluft.

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According to the Centennial Exhibition of the Library at the Peace Palace in The Hague in The Netherlands, the first doctoral thesis on air law was published in 1910.47 It largely drew on analogies from the law of the sea. A quarter of a century later at Leiden University, formal studies in air law began with the appointment of Daniel Göedhuis in 1938, a chair being established in 1947, and the remit of the appointment was extended to space law in 1961. Professor Göedhuis retired in 1977 and was succeeded by Henri Wassenbergh, on whose initiative the Leiden Institute of Air and Space Law was established in 1986. As with the other institutes, in addition to taught courses and postgraduate research, Leiden organises symposia and colloquia, with some concentration on European aspects of space law. The major other space law active academic institution is the International Space University (ISU) (http://www.isunet.edu/). Located in Strasbourg, France, the ISU was founded in 1987. It operates at graduate level and its courses encompass science, technical, engineering, business and policy aspects of space with a view to training space professionals. Courses are run in a two month summer session. A Master’s programme specialising in telecommunications is run at the University of Paris (XI). The European Space Policy Institute (http://www.espi.or.at/) was established in Vienna in 2005 by decision of the ESA Council. Its function is to conduct studies and provide reports on mid- to long-term issues of space policy.48 These are intended to assist relevant decision-makers in their work. It works both through staff and an ‘Academic Network’ (ESPRAN), which is currently being developed. In 1951 McGill University, Montreal, established an Institute of International Air Law under the Directorship of John Cobb Cooper, well-known as an aviation lawyer, but who had contributed significantly to discussions on space law. The Institute was renamed the Institute of Air and Space Law (IASL) in 1957, and over the years many of its graduates (including the authors of this book) have been active in space law.49 Apart from its teaching and postgraduate research supervision, the IASL organises symposia and colloquia and has published the Annals of Air and Space Law since 1976. The University of Mississippi School of Law has been active in space law for many years. The late Professor Stephen Gorove established its Journal of Space Law in 1973, publishing both articles and data on current developments in US and international space law. Subsequent to Gorove’s retirement the space law centre mutated into a (US) National Remote Sensing and Space Law Center of Excellence, which holds symposia and publishes in that area, but publication of the more general Journal continues.50 The Space Policy Institute of the Elliot 47 De Luchtvaart in het Volkenrecht (‘Aerial Navigation according to the Law of Nations’) by Johanna (Jenny) Francina Lycklama à Nijeholt, 1910. 48 �� Reports may be downloaded from the ESPI website. 49 The Institute of Air and Space Law, 1951–1976 (Montreal: McGill University, 1976). See also www.iasl.mcgill.ca. 50 �� See: www.spacelaw.olemiss.edu.

Introduction: Actors, History and Fora

13

School of International Affairs of George Washington University, Washington DC, functions mostly in the area which its title would indicate. However, policy is a significant factor in the development of space law, and its products are influential, particularly in US developments.51 The College of Law at the Lincoln Campus of the University of Nebraska introduced an LL.M. programme in Space and Telecommunications Law in 2008. Elsewhere in the world the study of space law has developed, sometimes through institutes similar to those above, and sometimes through local cooperation between academic and practising lawyers. Thus in South America the University of Salvador in Buenos Aires established a chair of Air and Space Law in 1960, and a National Institute of Air and Space Law in 1962. Now some fifty Argentine universities offer space law courses or lectures in the subject within programmes on Public International Law. Space law is also studied on a similar basis at institutes and law-schools in Brazil, Chile, Mexico and Uruguay. National and international conferences and symposia are also held.52 In Japan a number of universities teach space law. The Japan Aerospace Exploration Agency (JAXA)53 is also involved, its website containing a compilation of links to space-relevant documents with occasional commentary by Professor Dr K. Tatsuzawa.54 Space law is taught at the Moscow Institute of International Relations and at the People’s Friendship University in Moscow.55 It is also taught at the International Space Law Centre of the University of Kiev, Ukraine. In 1990, under the leadership of Dr G. Lafferranderie, then Legal Advisor to the European Space Agency, the European Centre for Space Law (ECSL) was established.56 Those associated with the Centre are academics and practitioners in the field. The Centre seeks through National Sections to foster knowledge about space law and its teaching throughout the ESA states. It also maintains collaborative arrangements with similar bodies throughout the world. ECSL holds symposia, colloquia and workshops on space matters and its website provides 51 �� See: www.gwu.edu/~elliott/researchcenters/spi.html. ESPI and the Elliot School co-operate: http://www.gwu.edu/~spi/. 52 �� A.A. Cocca, ‘Recent Developments in Space Law and Space Policy in Latin America’ 16 ECSL News, May 1996, www.esapub.esrin.esa.it/ecsl/ecsl16/cocca16.htm. 53 �� JAXA was established in 2003 by merging three earlier agencies the Institute of Space and Astronautical Science (ISAS) (space and planetary research), the National Aerospace Laboratory of Japan (NAL) (aviation); and the National Space Development Agency of Japan (NASDA) (large-size launch vehicles, satellites, and Japan’s involvement with the International Space Station). 54 See www.jaxa.jp/jda/library/space-law/contents_e.html. �� The compilation runs to 1998. 55 �� G.P. Zhukov, ‘Teaching of the International Space Law in Russia’, in A.Y. Kapustin and G.P. Zhukov, eds. The Contemporary Problems of International Space Law (Moscow: Peoples’ Friendship University, 2008) 524–8. 56 �� G. Lafferranderie, ‘The European Centre for Space Law’, in K.-H. Böcksteigel ed., Project 2001, Legal Framework for the Commercial Use of Space. (Cologne: Carl Heymanns Verlag, 2002) 47–50.

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much documentation as well as links to other space law sites.57 Every year since 1992 the ECSL has run a two-week course on space law and policy at different locations throughout Europe for students from European universities. Also since 1992 it has run an annual one-day Practitioners’ Forum at ESA headquarters in Paris when current developments and problems in a particular area of space law are reviewed for practitioners by experts in that area. Finally, the ECSL annually organises for the IISL the European regional round of the Manfred Lachs Moot Court competition. Apart from the use of space law as an example in other courses,58 The Hague Academy of International Law has included space law as a specific topic in its annual courses on a number of occasions.59 In addition in 1998 the Study Session of The Hague Academy was devoted to international telecommunications.60 Finally, a number of other legal bodies, societies and associations have either given intermittent attention to questions of space law, or have sections which deal with such matters. Thus the International Law Association has played a part in influencing the development of space law through its Space Law Committee, which has produced a number of influential reports.61 Similarly the International Bar Association has an Outer Space Committee in which an increasing number of practical, legal, commercial and regulatory issues arising from the development of space businesses have been debated.62 The American Society of International 57 �� See: www.esa.int/SPECIALS/ECSL/index.html. 58 �� For example, J.E.S. Fawcett, ‘General Course’, 113 Hague Recueil 1971-III, 468–472, 553–557; A.E. Gottleib, ‘The Impact of Technology on the Development of Contemporary International Law’, 170 Hague Recueil 1981-I, 115–329, particularly at 223 ff. 59 �� The principal considerations of questions of space law at sessions of The Hague Academy of International Law are: R. Quadri, ‘Droit International Cosmique’, 98 Hague Recueil 1959-III, 505–599; D. Göedhuis, ‘Conflicts of Law and Divergences in the Legal Regimes of Air Space and Outer Space’, 109 Hague Recueil 1963-II, 256–346; M. Lachs, ‘The International Law of Outer Space’, 113 Hague Recueil 1964-III, 1–114; G.P. Zhukov, ‘Tendances Contemporaines du Developpement du Droit Spatial International’, 161 Hague Recueil 1978-III, 229–328; N.M. Matte, ‘Aerospace Law: Telecommunication Satellites’, 166 Hague Recueil 1980-I, 119–249; M.G. Marcoff, ‘Sources de Droit International de L’Espace’, 168 Hague Recueil 1980-III, 9–122; I.H. Ph. Diedericks-Verschoor, ‘Similarities with and Differences between Air and Space Law Primarily in the Field of Private International Law’, 172 Hague Recueil 1981-III, 317–423; D. Göedhuis, ‘The Problems of the Frontiers of Outer Space and Air Law’, 174 Hague Recueil 1982-I, 367–407; S. Gorove, ‘International Space Law in Perspective – Some Major Issues, Trends and Perspectives’, 181 Hague Recueil 1983-III, 349–409. 60 �� The Hague Academy of International Law Research Session, 1998: Topic, Space Telecommunications, L. Rapp, Franco-phone Director, F. Lyall, Anglo-phone Director. See Legal Implications of Global Telecommunications, Hague Academy of International Law, 1998 (Dordrecht: Nijhoff, 1999). 61 �� See Christol, supra n. 34. For current reports see www.ila-hq.org/html/layout_ committee.htm and its links. 62 �� See: www.ibanet.org/legalpractice/OuterSpace.cfm.

Introduction: Actors, History and Fora

15

Law has occasionally devoted one of its meetings to space law matters and the American Journal of International Law published by the Society has carried a goodly number of articles on space law. Finally mention must be made of the (UK) David Davies Memorial Institute of International Studies which explores questions of international relations. Its Draft Code of Rules on the Exploration and Uses of Outer Space of 1963 and the accompanying commentary on its provisions were a significant contribution to the thinking of its time.63 Within the United Nations Within the UN system various agencies deal with space matters as part of their responsibilities.64 Fully to enumerate these would be otiose, but, as will be seen elsewhere in this book, the International Telecommunication Union (ITU) (radio) and the World Meteorological Organisation (WMO) (remote sensing) are obvious examples. Others such as the International Civil Aviation Organisation (ICAO), the International Maritime Organisation (IMO), the World Intellectual Property Organisation (WIPO) and the United Nations Education, Scientific and Cultural Organisation (UNESCO) have ‘space’ interests. The United Nations Programme on Space Applications assists nations in using space technology for economic, social and cultural development. There is also a UN interagency co-ordination group, the Interagency Meeting on Outer Space Affairs, part of the UN Coordination of Outer Space Activities (COSA).65 Major matters may also go to the UN Administrative Committee on Coordination which, for example, accepted the suggestion of the ITU as to the holding of the World Summit on the Information Society (WSIS) of 2003–2005.66 63 �� David Davies Memorial Institute ‘Draft Code of Rules on the Exploration and Uses of Outer Space’ 1963 29 J. Air L. and Comm. 141–50; M. Cohen, ed., Law and Politics in Space (Montreal: McGill UP, 1964) App. 5, 153–66; C.W. Jenks, Space Law, supra n. 7 App. X, 419–39 (Jenks also includes the Draft Rules concerning the changes in the Environment of the Earth). 64 �� M. Benkö and M. De Graaff, Space Law in the United Nations (Dordrecht: Nijhoff, 1985); V. Kopal, ‘Evolution of the Main Principles of Space Law in the Institutional Framework of the United Nations’ (1984) 12 J. Sp. L. 12–25; J. Simsarian, ‘Outer Space Co-operation in the United Nations’ (1963) 57 AJIL 854–67. Cf. ‘Coordination of spacerelated activities within the United Nations system: directions and anticipated results for the period 2008–9. Report of the Secretary-General’ A/AC.105/910, 23 January 2008 and previous reports. 65 �� The OOSA website is http://www.uncosa.unvienna.org/. Cf. Report of the InterAgency Meeting on Outer Space Activities on its twenty-fifth session (Vienna, 31 January to 2 February 2005) A/AC.105/842: www.oosa.unvienna.org/Reports/docsidx.html#AC105_ 842; cf. also www.uncosa.unvienna.org/iamos/index.html. 66 �� WSIS was held in two parts. The first phase was convened at Geneva in 2003, where one-hundred and seventy-five countries adopted a Declaration of Principles

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The UN has held three World Conferences on the Exploration and Peaceful Uses of Outer Space (all in Vienna, Austria) together with technical fora and associated preliminary workshops. These were directed to the development of space activities, encouraging the spread of space technology and the benefits of space applications particularly to the developing countries. UNISPACE I was held in 1968,67 UNISPACE II in 198268 and UNISPACE III in 1999.69 These conferences have had significant effects and influence, the Vienna Declaration and associated Reports of UNISPACE III being currently a major statement of priorities and ambitions.70

(www.itu.int/wsis/docs/geneva/official/dop.html) and a Plan of Action (www.itu.int/ wsis/docs/geneva/official/poa.html). The second phase took place in Tunis in November 2005. Although a Declaration was adopted, the financing of action to meet fine words seems destined to be a stumbling-block. See WSIS Outcome Documents (Geneva: ITU 2005) or www.itu.int/wsis/promotional/outcome.pdf. 67 �� Seventy-eight member states, nine specialised agencies and four other international organisations attended. 68 �� Ninety-four member states attended, forty-five intergovernmental and nongovernmental organisations sent observers. See N. Jasentuliyana and R. Chipman, International Space Programmes and Policies: Proceedings of the Second United Nations Conference on the Peaceful Uses of Outer Space (UNISPACE), Vienna Austria, August 1982 (Amsterdam and New York: North Holland, 1984). The Background Papers are A/CONF.101/BP/1-4. 69 �� The composition and working of this conference was different from its predecessors as its decision-making process was not confined to UN member states. Four preparatory conferences held in Asia, Latin America, Africa and Eastern Europe highlighted issues of particular regional relevance. The Conference itself lasted ten days. Fifty-nine member states sent delegations. A further thirteen delegations represented non-member states, while specialised agencies, and many inter-governmental organisations and non-governmental organisations took part in forty technical workshops, seminars and round-table discussions. The Conference was advised by a Legal Workshop – Proceedings of the Workshop in Space Law, UNISPACE III, July 1999 (A.CONF-184/7). 70 �� Resolution adopted by the Third United Nations Conference on the Exploration and the Peaceful Uses of Outer Space: The Space Millennium: Vienna Declaration on Space and Human Development, Vienna 30 July 1999, http://www.oosa.unvienna.org/unisp-3/res/ html/viennadecl.html. Cf. The Space Millennium: Selected Priorities for Space Activities in the 21st Century: An Initiative to Encourage the Engagement of Non-Government Entities: Working with Governments in the Promotion and Implementation of Selected Recommendations Resulting from UNISPACE-III (Washington DC: AIAA, 2000). See also UNISPACE III+5: A/59/174.

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UN OOSA: The United Nations Office for Outer Space Affairs71 Within the operational structures of the United Nations the most obvious forum for the development of space law is the Committee on the Peaceful Uses of Outer Space, COPUOS, which we will discuss shortly. First, however, mention should be made of the Office for Outer Space Affairs (OOSA) formerly at UN Headquarters, New York, and now at Vienna.72 When COPUOS was established in 1958 it was first serviced by the UN Secretariat itself, becoming the responsibility of the Department of Political and Security Council Affairs in 1962 when the permanent COPUOS first met. With increasing business this service group became the Outer Space Affairs Division of that Department in 1968 and was transmuted into the Office for Outer Space Affairs within the Department for Political Affairs in 1992. Relocating to Vienna in 1993 the Office was expanded, inter alia taking over from the Legal Secretariat in New York secretariat services for the Legal Sub-Committee of COPUOS. Headed by a Director, OOSA is now the main node for space affairs within the UN. It has two sections, ‘Space Applications’ and ‘Committee Services and Research’. OOSA co-operates with other elements within the UN system that have responsibilities for space. It maintains the Register of Space Objects on behalf of the Secretary General and various other compilations of space data and documentation. Its databases provide information on space matters (factual and theoretical, including law which is both) to the UN system, to UN member states, to space active entities, to academe and to individual researchers since the OOSA materials are available on the web. Finally, OOSA itself and in partnership with other agencies, governments and academic institutions, has organised various training programmes and conferences including some directed towards the dissemination of expertise and knowledge as to space law.73 It has to be said that, from the later 1990s, and particularly after UNISPACE III, OOSA has been very active in disseminating knowledge of the benefits of space and its regulation.74 71 �� Reference point, n. 73 infra. 72 �� M. Othman, ‘United Nations Office for Outer Space Affairs’, in K.-H. Böcksteigel ed., Project 2001, Legal Framework for the Commercial Use of Space (Cologne: Carl Heymanns Verlag, 2002) 27–33. 73 �� See: Proceedings of the UN/Republic of Korea Workshop on Space Law, ‘United Nations Treaties on Outer Space: Actions at the National Level’, Daejeon, Korea, 2003, ST/SPACE/22: http://www.unoosa.org/pdf/publications/st_space_28E.pdf; Proceedings of the UN/Brazil Workshop on Space Law, ‘Disseminating and Developing International and National Space Law: the Latin America and Caribbean Perspective’, UN/Brazil Workshop, Rio de Janeiro, Brazil, 2004, ST/SPACE/28: http://www.unoosa.org/pdf/publications/ st_space_28E.pdf; Proceedings of the UN/Nigeria Workshop on Space Law ‘Meeting International Responsibilities and Addressing Domestic Needs’, Abuja, Nigeria, 2005, ST/ SPACE/32: http://www.unoosa.org/pdf/publications/st_space_32E.pdf. Cf. also the work of OOSA supra at n. 71: www.uncosa.unvienna.org/iamos/index.html. 74 �� See the OOSA catalogue of publications: http://www.unoosa.org/oosa/Reports/ publications.html#st_space_37. It is clear that OOSA could do more but is constrained by

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COPUOS: The Committee on the Peaceful Uses of Outer Space The Committee on the Peaceful Uses of Outer Space (COPUOS) was first established as an ad hoc Committee of the General Assembly by UNGA Res. 1348 (XIII) of 13 December 1958 on the ‘Question of the Peaceful Use of Outer Space’.75 It was made permanent and its membership increased one year later by the similarly titled UNGA Res. 1472 (XIV) of 12 December 1959.76 That the Assembly saw fit to entrust such matters to a specially denominated committee, and not simply to add ‘space’ to the remit of a main Committee of the Assembly shows a recognition of the peculiar problems involved in the materiél, and also that here was a new area of activity – a tabula rasa – which both called for and provided an opportunity for new thinking and new procedures. Certainly as a result COPUOS has been able significantly to develop space law.77 finance. See paras 47–8 of ‘International Cooperation on the Peaceful Uses of Outer Space’, UNGA Res. 62/217, 21 December 2007 (the UNGA resolution on the COPUOS annual report). Para. 48 asks states to contribute voluntarily to a Trust Fund to enable OOSA’s work to expand. 75 Ad hoc COPUOS had eighteen appointed members: Argentina, Australia, Belgium, Brazil, Canada, Czechoslovakia, France, India, Iran, Italy, Japan, Mexico, Poland, Sweden, the UAR (United Arab Republic composed of Egypt and Syria 1958–61, Egypt continuing to use the name until 1971), the UK, the US and the USSR. However, at that time Czechoslovakia, Poland and the USSR declined to participate: see E. Galloway, ‘The United Nations Committee on the Peaceful Uses of Outer Space: Accomplishments and Implications for Legal Problems’ (1959) 2 Proc. IISL 30–41 at 31. These states participated in the permanent COPUOS. In addition to Galloway, supra, see Cheng, 150–211; P.C. Jessup and H.J. Taubenfeld, ‘The Ad Hoc Committee on the Peaceful Uses of Outer Space’ (1959) 53 AJIL 877–81; P.G. Dembling and D.M. Arons, ‘Space Law and the United Nations: The Work of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space’ (1966) 32 J. Air L. and Comm. 329–86; V. Kopal supra n. 64, and his ‘The Work of the Committee on the Peaceful Uses of Outer Space’, in K.-H. Böcksteigel ed., Project 2001, Legal Framework for the Commercial Use of Space (Cologne: Carl Heymanns Verlag, 2002) 17–26; S. Marchisio, ‘The Evolutionary Stages of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS)’ (2005) 31 J. Sp. L. 219–42. Cf. M. Benkö and Kai-Uwe Schrögl, International Space law in the Making: Current Issues in the UN Committee on the Peaceful Uses of Outer Space (Paris: Editions Frontiéres, 1993). 76 �� The twenty-four members were Albania, Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Czechoslovakia, France, Hungary, India, Iran, Italy, Japan, Lebanon, Mexico, Poland, Romania, Sweden, the United Arab Republic (see supra n. 75), the UK, the US and the USSR [members added to the ad hoc Committee list: Albania, Austria, Bulgaria, Hungary, Lebanon and Romania]. 77 �� N. Jasentuliyana, International Space Law and the United Nations (Kluwer: The Hague, 1999) 23–32. In para. 11 of the Report of the Committee on the Peaceful Uses of Outer Space to the 2007 General Assembly (A/62/20), the Committee notes ‘the instrumental role it had played in constructing the legal regime governing outer space

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Although COPUOS began with eighteen members, over the years its membership has increased to its present sixty-nine (2008).78 This is supposed equitably to represent the interests of the developed and the developing countries, as well as to provide a suitable geographic world coverage. While it does mean that one-third of the UN membership is potentially involved in the development of space law, such a size is unwieldy,79 and deficiencies in the expertise (and interest) of some delegations has led to a slowing down of the rate of productive work of the Committee.80 The tendency to enlargement does represent a democratisation in the development of international law, since more states take part in that development and participate in the discussions and decisions through which progress is made. This allows them to articulate their interests during the process. However, as indicated in the following paragraphs and subject to the reservations there expressed, the result may be a lowering of the standard of the eventual text as

activity for peaceful purposes, which was an entirely new branch of international law, and in providing a unique platform at the global level for enhancing international co-operation for the benefit of all countries, in particular in the area of using space applications for sustainable development’. 78 �� Members in 2007 were Albania, Algeria, Argentina, Australia, Austria, Belgium, Benin, Brazil, Bulgaria, Burkina Faso, Cameroon, Canada, Chad, Chile, China, Colombia, Cuba, the Czech Republic, Ecuador, Egypt, France, Hungary, Germany, Greece, India, Indonesia, Iran, Iraq, Italy, Japan, Kazakhstan, Kenya, Lebanon, Libya, Malaysia, Mexico, Mongolia, Morocco, The Netherlands, Nicaragua, Niger, Nigeria, Pakistan, Peru, the Philippines, Poland, Portugal, the Republic of Korea, Romania, the Russian Federation, Saudi Arabia, Senegal, Sierra Leone, Slovakia, South Africa, Spain, Sudan, Sweden, the Syrian Arab Republic, Thailand, Turkey, the UK, the US, the Ukraine, Uruguay, Venezuela and Vietnam. Of these Libya and Thailand were added by UNGA Res. 59/116, para. 44 of 25 January 2005. Bolivia and Switzerland were added by para. 56 of UNGA Res. 62/217 of 21 December 2007. For a period numbers were sought to be controlled by having some states alternate in membership, but this practice was abandoned in 2001 (UNGA Res. 59/116). The successive increases in membership are catalogued at www.oosa.unvienna. org/COPUOS/members.html. 79 �� COPUOS is one of the larger of the UN Committees. 80 �� S. Neil Hosenball, former General Counsel to NASA and a participant in the early years of COPUOS, told one of the authors that a major reason for the early success of the Committee was that, although the Cold War was then in full swing, the participant delegates were a knowledgeable small group that knew and respected one another, and were friends. In addition they were of sufficient standing that they knew their home governments would support what they worked out. Problems were therefore able to be chewed over informally and solutions arrived at without posturing or polemic. We observe that over the years that advantage may have been dissipated. Cf. the development of space co-operation between the US and USSR during this time, particularly the Dryden-Blagonravov Agreement of 1962 (1963) 2 ILM 195-8: E.C. and L.N. Ezell, The Partnership: A History of the ApolloSoyuz Space Project, NASA History Series SP-4209, 1978; http://www.hq.nasa.gov/pao/ History/SP-4209/toc.htm.

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the urge to reflect all the voices and interests represented may reduce the eventual product to the lowest common denominator, which may be a fudge.81 COPUOS works through the full committee and two sub-committees, the Scientific and Technical Sub-Committee and the Legal Sub-Committee, the latter normally being responsible for the initial drafts in legal matters.82 A Report is made by each sub-committee to the main committee, whose Report goes annually to the General Assembly and every year the Assembly adopts a corresponding resolution. Particular resolutions as to ‘principles’ which states may/should/ought to obey in their space-related activities are therefore determined by and have weight related to the care with which they have been formulated. COPUOS main committee and its sub-committees normally proceed by consensus.83 The one instance in which it 81 �� Cf. G. Hafner, ‘Certain Issues of the Work of the Sixth Committee of the FiftySixth General Assembly’ (2003) 97 AJIL 147–62 at 148–50, discussing the enlargement of UNCITRAL. 82 �� P.G. Dembling and D.M. Arons, ‘Space Law and the United Nations: The Work of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space’ (1966) 32 J. Air L. and Comm. 329–86. Although first four sessions of the Legal Sub-Committee had considered questions of rescue and return, in fact when push came to shove it was not involved in the rapid drafting and presentation to the General Assembly of the 1968 Agreement on Rescue and Return of Astronauts. 83 �� L.B. Sohn, ‘Introduction: United Nations Decision-Making: Confrontation or Consensus?’ (1974) 15 Harv. J. Int. L. 438–45; E. Galloway, ‘Consensus Decision-making by the United Nations Committee on the Peaceful Uses of Outer Space’ (1979) 7 J. Sp. L. 3–13. As to how consensus worked in practice at least in the early days in COPUOS see the comment ‘Consensus is certainly a very painstaking process, it requires great patience and mutual understanding, particularly in an atmosphere of tension and distrust. However, while taxing the patience of delegates it turned out to be effective.’ M. Lachs ‘The Treaty on the Principles of the Law of Outer Space 1961–1992’ (1992) 39 Neth. Int. L. Rev. 291–302 at 293; cf. Sohn, supra n. 7, at 6–10. A less enthusiastic view was expressed by F.B. Shick, ‘Space Law and Communication Satellites’ (1963) 16 West. Pol. Quart. 14–33 at 17–9. See also S.N. Hosenball, ‘The United Nations Committee on the Peaceful Uses of Outer Space: Past Accomplishments and Future Challenges’ (1979) 7 J. Sp. L., 95–113; Dembling and Arons, supra n. 82; M. Benkö, G. Gruber and K.-U. Schrögl, ‘The UN COPUOS: Adoption of Principles Relating to the Use of Nuclear Power Sources in Outer Space’ (1993) 42 ZLW 35–64 at 35–49; C.Q. Christol, ‘The Use of a Nuclear Power Source: Nuclear Power Sources in Outer Space’ (1981) 30 ZLW, 47–71; V. Kopal, ‘The Use of Nuclear Power Sources in Space: A New Set of UN Principles?’ (1991) 19 J. Sp. L. 103–122. See also M. Benkö and G. Gruber, ‘The UN COPUOS: Adoption of Principles on the Remote Sensing of Earth from Space’ (1987) 36 ZLW 17–46. As to ‘Consensus’ generally see: B. Busan, ‘Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea’ (1981) 75 AJIL 324–348; A. D’Amato, ‘On Consensus’ (1970) 8 Can. YBIL 104; A.E. Gotleib, ‘The Impact of Technology on the Development of Contemporary International Law’, 170 Hague Recueil 1981-I, 115–329 at 141–6; C.W. Jenks, ‘Unanimity, the Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decision in International Organizations’, in Cambridge Essays in

Introduction: Actors, History and Fora

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did not do so produced UNGA Res. 27/92, the ‘Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting’ of 1982. This Resolution was approved by majority vote both in COPUOS and in the General Assembly.84 Since almost all the states whose practice it might affect abstained or voted against, it is generally reckoned that this Resolution is without significant effect.85 The realisation that a GA Resolution is not legislation, and that, though adopted by a majority, it can be rendered ineffective by contrary voting, seems to have strengthened the practice of consensus within COPUOS. However, what does consensus mean, and what is its effect? Consensus is a form of agreement reached without a vote on a matter, but it does not imply that there is unanimity among the parties. Absence of dissent is not the same as assent. Abstention from the discussion of a point is not taken to imply dissent and an individualistic or idiosyncratic interpretation of particular language may therefore be passed over, un-noticed by, or even concealed from, other parties. That said, within COPUOS a proposed text, whether it be of a draft treaty, resolution or other formal statement, is negotiated and revised until all are willing to accept it and allow it to go forward as the mind of the SubCommittee. The advantages of consensus are that compromise is facilitated, and, in the case of draft treaties, the parties may be more likely in due course to ratify provisions in whose drafting they have participated. While the space-competent nations obviously tend greatly to influence matters in COPUOS, other states play a part in the process. Indeed, some are influential through acting as mediators between divergent positions.86 More importantly, consensus means that the spacecompetent nations will not get what they want from COPUOS without the consent of the space-incompetent, while the latter will not get their interests represented and articulated without the consent of the space-competent. On the other hand consensus may result in ambiguity, permitting or masking divergent views as to the exact meaning of a phrase, a provision or even a text. Not all participants have equal command of the languages being used and may misunderstand or mistake meaning.87 What are basically rhetorical flourishes International Law: Essays in honour of Lord McNair (London: Stevens, 1965), 48–63 at 55–62. As to consensus in a different area of law see R. Rosenstock, ‘The Declaration of Principles of International Law Concerning Friendly Relations: A Survey’ (1971) 65 AJIL 713–36. 84 �� Because consensus had not been achieved, the draft Resolution was not presented to the Assembly by COPUOS but was moved by group of non-aligned states: see Chapter 9, p. 261 ff. 85 �� Cf. C.Q. Christol, ‘Prospects for an International Regime for Direct Television Broadcasting’ (1985) 34 ICLQ 149. 86 �� Thus Austria was important in the arrival at the text of the ‘Principles Relating to the Remote Sensing of the Earth from Outer Space’, 3 December 1986; UNGA Res. 41/65, as to which see Chapter 13. 87 �� For example, in English the basic meaning of ‘to exploit’ is ‘to make use of’. Some fix on its secondary meaning, which is ‘to enrich oneself at the expense of others’. Cf. discussions of Art. XI of the Moon Agreement in Chapter 7.

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can be included to accommodate personalities, and ‘prolonged negotiations’ can dilute ‘the resulting legal product into a catalogue of platitudes’.88 Further, as time has gone by and more space activities are entered into, the compromise of divergent interests becomes difficult: precision collides with vagueness. More states are active in space, and with the spread of commercialisation and private enterprise, some want precise language, while others seek to fudge. Other points can be made. Not all members of COPUOS attend.89 Some send representatives who lack expertise and standing, often being lower rank diplomats in the local embassy (usually Vienna), for whom space questions are not a priority.90 Some read prepared statements sent from home, do not otherwise participate usefully in discussion and debate, and cannot assent to text without further ‘instructions from home’ and ‘home’ may not be that well informed on the matter at issue in any case. It also has to be said that, unfortunately, such problems are not confined to the nonspace-competent nations. Despite all this, COPUOS has been valuable in the development of space law. It has developed principles and treaties which establish many of the ground rules for the exploration and use of space. However, as space law matures and as what is required tends more and more to be private and domestic law solutions for particular problems, it may be that COPUOS will take a back seat, and substantial developments will be found elsewhere.91 Among the sources of law new springs may break out to deal with space law problems. Indeed this book may be the last that attempts to cover in measure both private and public space law. Principles have to work out in practice.

88 �� Per R.G. Steinhard, ‘Outer Space’, in O. Schachter and C.C. Joyner, eds, United Nations Legal Order, 2 vols (American Society of International Law, Grotius: Cambridge UP, 1995), vol. 2, 753–87, at 759. Cf. D. Tan, ‘Towards a New Regime for the Protection of Outer Space as the “Province of all Mankind”’ (2000) 25 Yale J. Int. L. 145–94 at 165–6. 89 �� Para. 6 of the Report of the Committee on the Peaceful Uses of Outer Space to the 2007 General Assembly (A/62/20) lists the attendance of 56 of the 67 state members of the Committee at the full committee meetings of June 2007. Missing were Albania, Benin, Bulgaria, Cameroon, Chad, Kenya, Nicaragua, Niger, Senegal, Sierra Leone and Sweden. A 16.4 per cent absence is not good for such a committee. 90 �� Cf. N. Jasentuliyana, ‘Lawmaking in the United Nations’, in N. Jasentuliyana, ed., Space Law – Development and Scope (Westport, CT and London: Praeger, 1992) 33–44 at 35–6. 91 �� Cf. F. von der Dunk, ‘The Undeniably Necessary Cradle – Out of Principle and Ultimately Out of Sense’ [Note the italicised capitals] in G. Lafferranderie and D. Crowther, eds, Outlook on Space Law over the Next 30 Years (The Hague: Kluwer, 1997) 401–14. Per contra: the Working Paper by COPUOS Chairman, ‘Future Role and Activities of the Committee on the Peaceful Uses of Outer Space’A/AC.105/L.268, 10 May 2007: http:// www.unoosa.org/pdf/limited/l/AC105_L268E.pdf. (The paper does foresee in effect the contracting out of some matters.) Cf. the recognition by COPUOS of the role of the IADC in debris: see Chapter 10.

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Other Fora The remaining category that contributes to the development of space law is formed by the various national and international agencies that engage or are involved in space both at the policy and the law-making levels. Policy necessarily works out in law. Obviously at its simplest level the Foreign Offices, State Departments or their equivalent, as well as government departments that supervise or control technical matters, are involved. Precisely how this works is a matter for the constitutional arrangements of each state. Thus in China space policy is set by the State Council and complied with by the relevant departments of government,92 India has its own space agency, the Indian Space Research Organisation (ISRO), which operates under the Indian government (http://www.isro.org/).93 The arrangements in some other countries are indicated below. In some instances, however, governments and national agencies have come together co-operatively to engage in space activities with effects on space law. Of these one obvious example is the European Space Agency (ESA), also considered below. Again various ‘operational’ national agencies have come together to establish more or less formal international fora within which matters of common concern are discussed and compatible procedures and ways of doing things are arrived at. Such include the Consultative Committee for Space Data Systems (CCSDS) (http://public.ccsds.org) and the Inter-Agency Space Debris Coordination Committee (IADC) (http://www.iadc-online.org). Within Europe many states have set up a space-related government department or agency. In Italy the Italian Space Agency (ASI) (www.asi.it) promotes and coordinates space activities. Working within the universities and research sphere, ASI is active in the execution of space programmes, for example co-operating in the BeppoSAX programme94 with The Netherlands Institute for Space Research (www.sron.nl), the Dutch agency for space research. In Spain the Instituto National de Technico Aeroespacial (INTA) (www.inta.es) acts as the national space agency. The Danish National Space Center (www.spacecenter.dk) is a research centre within the Ministry of Science, Innovation and Technology. The French Centre Nationale d’Études Spatiales (www.cnes.fr) was founded in 1961 and plays a co-ordinating role in space matters.95 Its powers are extensive, 92 �� ‘China’s Space Activities, a White Paper’, The Information Office of the State Council 22 November 2000: http://www.fas.org/spp/guide/china/wp112200.html or http:// www.spaceref.com/china/china.white.paper.nov.22.2000.html; updated in 2006 by ‘China’s Space Activities in 2006’, The Information Office of the State Council 22 November 2000: http://www.fas.org/spp/guide/china/wp2006.pdf. 93 �� India has also plans for an Aerospace Command within the Indian Air Force: http://www.ipcs.org/Military_articles2.jsp?action=showView&kValue=2220&keyArticle= 1017&status=art. See also J. Guiney, ‘India’s Space Ambitions: Heading towards Space War’ (CDI Policy Brief, May 2008: http://www.cdi.org/pdfs/GuineyIndiaSpace.pdf). 94 �� An X-ray satellite which deorbited in 2003 – see Chapter 4, c. n. 146. 95 �� Loi Française no. 61-1382 du 19 December 1961 (1) Instituant un Centre National D’Etudes Spatiales (CNES) (available at http://www.jaxa.jp/library/space_law/chapter_ 1/1-1-2-4_e.html).

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including the implementation of policy and the execution of space programmes in collaboration with academic and industrial partners, which may include military and defence programmes. Under a contract with ESA its Launch Directorate leads on all matters relating to the Ariane launchers and Arianespace, including the supervision of production, marketing and actual launch. CNES also interacts with ESA as a main channel of French interest in that body. The German Aerospace Centre (DLR) (www.dlr.de) is the major entity involved in space activities at a governmental level. Acting under a Board of Directors basically it is both a space research centre and the German Space Agency. It has many facilities and over 5000 employees. In history the West German Deutsche Forschungs- und Versuchsanstalt für Luft- und Raumfahrt (DFVLR) was formed in 1969 from three related organisations to act as a testing and research institute. �� It was renamed the Deutsche Forschungsanstalt für Luft- und Raumfahrt (DLR) in 1989. Following �� the reuniting of East and West Germany, a new single space agency brought together the operational space interests of both former governments in DARA (Deutsche Agentur fur Raumfahrtangelegenheiten) GmbH. Working through four technical directorates and several Advisory Committees, DARA both formed and executed German space policy, including the overall German Space Programme. In a further reorganisation in 1997, DARA and DLR were brought together under the latter’s title. The DLR now conducts research, encourages industry and administers the German space budget as well as interacting with other national space agencies and industries. It is also active in aerospace matters. In the UK although there is a government minister in charge of ‘Science and Innovation’, space matters are the responsibility of many government departments. The British National Space Centre (BNSC) (www.bnsc.gov.uk) was therefore established in 1985 to co-ordinate the work of some eleven departments and research councils so as to encourage UK civil space activities, to support research and to help UK industries. Funded by its constituent partners, BNSC is a small organisation, but with many links into government and industry. Reorganised in 2005, BNSC now includes a Space Advisory Council (replacing a Space Strategy Council) and a Space Board that advises on policy. Until 2007 UK policy was the attainment of clear scientific and commercial objectives for which space is effective rather than the development of technology as an end in itself.96 In 2008 policy was widened and may include human spaceflight, albeit the motivation

96 �� Cf. UK Space Strategy: 2003–2006 and Beyond (BNSC: 2003): http://www. bnsc.gov.uk/assets/channels/about/5818%20BNSC%20Brochure.pdf. Cf. ‘2007: A Space Policy’ (UK) House of Commons Science and Technology Committee, 2 vols, HC-1 and II, 17 July 2007: http://www.publications.parliament.uk/pa/cm200607/cmselect/ cmsctech/1042/104202.htm. Also cf. the Report of the (UK) House of Commons Transport Committee, Session 2006–2007, 12 November 2007, HC 53: ‘Galileo: Recent Developments’, which doubted the cost/benefit value of Galileo: http://www.publications. parliament.uk/pa/cm200708/cmselect/cmtran/53/53.pdf.

Introduction: Actors, History and Fora

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remains commercially biased.97 Although technically a UK space licence is granted by a Secretary of State, in fact the BNSC deals with the licensing of UK space activities under the Outer Space Act 1986 (c. 38). Apart from the BNSC the other main UK government department of relevance for space is Ofcom, the ‘Office of Communications’, established by the Office of Communications Act 2002 (c. 11) and with its functions and powers enumerated in the Communications Act 2003 (c. 21). Ofcom deals with all questions of radio – essential in virtually all space activities – and is the notifying administrative agency to the ITU for UK frequency assignments. The European Space Agency All the above European agencies, and more, co-operate in the programmes of the European Space Agency, with which the Canadian Space Agency has a cooperation agreement.98 The European Space Agency is a major actor in the exploration and use of space.99 It also participates in the formation of space law through the internal procedures that it has evolved, through the negotiation of international agreements (e.g. the Space Station Agreements100) and through its implementation of international space practices. As its title indicates, it is an international organisation.

97 �� See UK Space Strategy: 2008–2012 and beyond (BNSC, 2008): http://www. bnsc.gov.uk/assets/channels/about/UKCSS0812.pdf. Cf. the Report of the UK Space Exploration Working Group, BNSC 13 September 2007: http://www.bnsc.gov.uk/ assets/channels/discovering_space/SEWG_Report.pdf or http://www.bis-spaceflight.com/ assets/documents/sewgreport.pdf. The UK Government response of 23 October 2007 is in an appendix to ‘2007: A Space Policy’. Cf. ‘2007: A Space Policy’, (UK) House of Commons Science and Technology Committee, 2 vols, HC-1 and II, 17 July 2007: http:/ /www.publications.parliament.uk/pa/cm200607/cmselect/cmsctech/1042/104202.htm. R.C. Wilmouth and R. Sivalingam, ‘The New UK Civil Space Strategy, 2008–2012’ (2008) 24 Space Policy 90–94. 98 �� ‘Canada–European Space Agency: Agreement on Cooperation’ (1979) 18 ILM. 332–6 See also the ‘Arrangement for Cooperation in the Conduct of Remote-Sensing Programs between the Canada Centre for Remote Sensing and the European Space Agency’, 1977 (1978) 17 ILM 107–109. 99 �� G. Lafferanderie, European Space Agency in R. Blanpain ed., International Encyclopedia of Laws, Supp. 20 (The Hague: Kluwer, 2005); K. Madders, A New Force at a New Frontier (Cambridge: Cambridge UP, 1997); The Implementation of the ESA Convention – Lessons from the Past, ECSL ed. (Dordrecht: Martinus Nijhoff, 1994); S. Hobe et al. eds., ‘Legal Aspects of the Future Institutional Relationship between the European Union and the European Space Agency’, Proceedings of a Workshop, Project 2001, Brussels 5–6 December 2002 (Cologne, 2003). See also infra n. 109. 100 �� See Chapter 4 – ‘Space Stations’.

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Immediately after the Second World War some European states had their own separate programmes in rocketry and other technologies. Thus UK efforts to develop in rocketry produced the ‘Blue Streak’ and ‘Blue Steel’ programmes, but these were not very successful.101 By the late 1950s it was clear that co-operation within Europe was necessary to match the financial, technical and intellectual resources available to the USSR and US.102 Europe did not want to be left behind. In the early 1960s Europe was instrumental in the creation of INTELSAT as an international endeavour, thus protecting its nascent space technology industries,103 but steps had already been taken to bring European space activities together so as to match the potential of the US and the USSR. In 1960 the Council of Europe104 recommended the creation of a European agency to promote the peaceful uses of outer space and to develop and build a space vehicle.105 To that end a European Preparatory Commission on Space Research (COPERS) was set up in 1960.106 COPERS discussed whether a single European agency should bring forward all European space efforts, but decided that launches should be dealt with by a separate organisation, in part because not all European states were as interested in launchers as opposed to space technology. In 1962 therefore a Convention for the Establishing of a European Organisation for the Development and Construction of Space Vehicle Launchers (ELDO) was adopted,107 followed shortly thereafter by a Convention for the Establishment of a European Space Research Organisation (ESRO), with slightly different parties, on 14 June 1962.108 However, the ESRO experience was not happy. In due course it was appreciated that having two 101 �� C.N. Hill, A Vertical Empire: The History of the UK Rocket and Space Programme, 1950–1971 (London: World Scientific Publishing, 2001). 102 �� Mid-wifed by UNESCO, the European Organisation for Nuclear Research (CERN) at Geneva is an example of such co-operation. 103 �� See Chapter 11. 104 �� Council of Europe: http://www.coe.int. A.H. Robertson, The Council of Europe (London: Sweet and Maxwell, 1956); Forty Years of Cultural Cooperation at the Council of Europe, 1954–94 (Council of Europe, 1997). 105 �� Council of Europe Recommendation 251, 24 September 1960. 106 �� Agreement setting up a Preparatory Commission to study the possibilities of European Collaboration in the Field of Space Research, 1961 UKTS 60, Cmnd. 1425; 10 Eur. YB. 111–5, extended by: First Protocol, 1962–3 Cmnd. 2091; Second Protocol, 1962–3 Cmnd. 2122; Third Protocol, 1963–4 Cmnd., 2173; Fourth Protocol, 1963–4 Cmnd. 2350. 107 �� Convention for the Establishing of a European Organisation for the Development and Construction of Space Vehicle Launchers, 29 March 1962, in force 29 February 1964, 507 UNTS 177; (1964) UKTS 30, Cmnd. 2391; 1964 ATS 6. The initial parties were Australia, Belgium, France, West Germany, Italy, The Netherlands and the UK. Australia was a member so that its launch facilities at Woomera could be used (cf. Chapter 11, p. 326). 108 �� Convention for the Establishment of a European Space Research Organisation, 14 June 1962, in force 20 March 1964, 528 UNTS 33; (1964) UKTS 56, Cmnd. 2489; 10 Eur. YB. 115; (1965) 4 ILM 306–20. Initially there were ten parties, Belgium, Denmark, France, West Germany, Italy, The Netherlands, Spain, Sweden, Switzerland and the UK.

Introduction: Actors, History and Fora

27

European ‘space’ organisations was not useful, and ESRO and ELDO were fused to form the European Space Agency by the Convention for the Establishment of a European Space Agency (ESA), Paris, 30 May 1975,109 the new organisation working informally for some years before the Convention actually came into force. Apart from the initial membership, accession is competent provided that all existing members so agree (Art. XXII). Denunciation of the Convention is also competent, though financial dues remain exigible for the period until the denunciation takes effect (Art. XIV). The Agency may be dissolved by agreement of its members, and ‘shall be dissolved’ if its membership drops to less than five (Art. XXV). The purpose of ESA is the promotion of European space research, technology and applications (Art. II). This involves co-operation and the internationalisation of national space programmes. To that end members are obliged to notify ESA of their plans for civil space activity, and within the framework of the Agency, to make available co-operation with other members, though not to the exclusion of co-operation with non-ESA members (Annex IV). ESA itself has operational competence (Art. V). In respect of ESA activities themselves, due regard is had to the distribution of procurement and other contracts, establishments, facilities, etc. to reflect contribution to ESA activities (Arts VII and VIII and Annex V). Collaboration with space and other agencies is competent and in practice encouraged (Art. XIV). The exchange of information and data between the Agency and all member states is to be facilitated (Art. III), as is the exchange of personnel (Art. IV). Technical data and inventions that are the property of the Agency are disclosed to all members and may be used by them free of charge (Art. III.4). The ESA structure comprises the Council and a Directorate under a Director General (Art. X). The Council is composed of all members, meeting as required at either delegate or ministerial level (Art. XI.1–2).110 It adopts policy and approves activities and budgets (Art. XI). ESA activities are divided into mandatory activities in which all parties take part and optional activities where a member state may formally declare itself non-participant (Art. V).111 The Director General is appointed for a defined term by a two-thirds majority of the Council and may be removed. Assisted by technical and other staff, he is the chief executive 109 �� Convention for the Establishment of a European Space Agency, 1297 UNTS 161, 187; (1975) Cmnd. 6272; (1981) UKTS 30, Cmnd. 8200; (1975) 14 ILM 855–908, text at 864–908; 23 Eur. YB. 825. M.-G. �� Bourley, ‘Le nouveau cadre de la coopération spatiale européene: L’Agence spatiale européene’ (1975) 29 Rev. fr. de droit aérien 233–67; R.F. von Preushen, ‘The European Space Agency’ (1978) 27 ICLQ 46–60. See also n. 99 �� supra. 110 �� An ESA member that fails in its obligations may have its membership terminated by a two-thirds vote of all member states (Art. XVIII). However, its liability for any unpaid dues or contributions remains (Art. XXIV). 111 �� A member which is non-participant in an optional activity has no vote in decisions as to that activity (Art. XI.6.a). At present (2008) the UK is a non-participant in activities involving human space-flight. This may change in the near future. A member in arrears of its contributions loses its vote until the default is remedied (Art. XI.6.b).

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officer of the Agency and its legal representative,112 and is responsible for the implementation of the decisions of Council, the programmes and the running of the various establishments in which ESA work is carried out (Art. XII). The responsibilities of the Director General and staff are exclusively international and they neither seek nor receive instructions from states or agencies other than ESA. States undertake not to seek to influence staff in the discharge of their duties (Art. XII.4). ESA and its mandatory programmes are financed by its members in threeyearly tranches in accordance with a scale relating to the national income of each for the previous three years, no member being, however, required to pay more than 25 per cent of the total (Arts. I.3, XIII and Annex II). Optional programmes are financed similarly by their participant members (Art. XIII and Annex III). There is provision for dispute settlement by arbitration (Art. XVII). As now constituted, the ESA is the main European intergovernmental organisation engaged in space.113 Other European collaborative agencies outwith ESA also have space interests.114 The European Union The other major institution affecting and to a degree now determining European space policy is the European Union.115 In 2003 a Framework Agreement between the then European Community and ESA was drafted and entered into force in 2004 as the first step toward a formal EU stance as to space and the creation of a ‘Space Council’.116 A White Paper on European Space Policy was also published in 2003.117 This was soon followed up,118 and a Council Resolution on space policy was adopted in 2007.119 The policy aims at the 112 �� ESA has legal personality (Art. XV), its staff having international status (Annex I). A Headquarters Agreement with France has been concluded (Art. I.4 and Annex I). 113 �� For current activities see the ESA Portal: http://www.esa.int/esaCP/index.html. 114 �� K. Suzuki, Policy Logics and Institutions of European Space Collaboration (Aldershot: Ashgate, 2003). 115 �� S. Weatherill, EU Law (London: Penguin, 1999). 116 �� See Consultation on ‘Common Guidelines’ for the signing of the Framework Agreement between EC and ESA, EU Council, RECH 152, 12858/03. The Space Council members are all EU and ESA Member and Cooperating States. 117 �� ‘Space: A new European Frontier for an Expanding Union – An Action Plan for Implementing the European Space Policy’, European Commission COM (2003) 673; cf. European Commission, Green Paper, ‘European Space Policy’, COM (2003) 17: http:// esamultimedia.esa.int/docs/space-green-paper_en.pdf. 118 �� ‘European Space Policy – Preliminary Elements’, EC Commission COM (2005) 208. 119 �� European Council ‘Resolution on the European Space Policy’, EU Council, 22 May 2007, ESA BR 269; Commission Communication, COM (2007) 212: http://ec.europa. eu/enterprise/space/doc_pdf/esp_comm7_0212_en.pdf.

Introduction: Actors, History and Fora

29

better co-ordination of space activities between the ESA, the EU and their member states. We await developments.120 The United States United States space policy is set by the President, and has obvious implications for space law.121 President Kennedy’s setting of the goal of getting to the Moon and back by the end of the 1960s was, of course, a major impetus to technical development.122 Since then various Presidential and Congressional Commissions have had an effect on space policy, and therefore on law.123 Within the US 120 �� N. Peter, ‘The EU’s Emergent Space Diplomacy’ (2007) 23 Space Policy 97–107. For up-to-date information see http://ec.europa.eu/enterprise/space/index_en.html. See also the European Space Policy Institute (supra at n. 48). 121 �� See also n. 123 infra. G.S. Robinson, ‘The U.S. National Space Policy: Pushing the Limits of Space Treaties?’ (2007) 56 ZLR 45–9, with declassified text at 49–57. Cf. ‘US Space Policy 1996’ (Clinton), www.fas.org/spp/military/docops/national/nstc-8.htm, or http://history.nasa.gov/appf2.pdf and ‘US National Space Policy 2006’ (Bush) (2007) XXXII AASL 475–86: http://www.ostp.gov/html/US%20National%20Space%20Policy. pdf, summarised at (2007) 101 AJIL 204. For the Carter Policy of 1978 see W.D. Reed and R.W. Norris, ‘Military Use of the Space Shuttle’ (1980) 13 Akron L. Rev. 665–88 at 673–4. A tabular comparison of the 1996 and 2006 Policy documents is at www.stimson. org/?SN=WS200610101122. Resolving issues as to US National space policy is the remit of the National Science and Technology Council (NSTC). Cf. N.C. Goldman, Space Policy: An Introduction (Ames, IA: Iowa State UP, 1992); R. Cargill Hall, ‘The Origins of US Space Policy: Eisenhower, Open Skies and Freedom of Space’, in J.M. Logsdon, ed., et al., Exploring the Unknown: Selected Documents in the History of the US Civil Space Program (NASA SP-4407, 1995) 213–29. 122 �� President J.F. Kennedy, Special Message to Congress on Urgent National Needs, 25 May 1961, Public Papers of the President: John F. Kennedy (US GPO, 1961) 403–405, or his Address at Rice University on 12 September 1962: http:// www.jfklibrary.org/Historical+Resources/Archives/Reference+Desk/Speeches/JFK/ 003POF03SpaceEffort09121962.htm. It has to be said that going to the Moon in the 1960s had been foreseen as possible by various scientists – see Staff Report, H. Doc. 115, 1959 (supra n. 10) at 3–5, with accompanying testimonies. Cf. the decision of President G.W. Bush in 2004 that the US return to the Moon: www. whitehouse.gov/news/releases/2004/01/20040114-1.html. However, see G. DeGroot, Dark Side of the Moon (London: Jonathan Cape, 2006) as to the background and futility of the first endeavour. 123 �� For example, A Journey to Inspire: Report of the Presidential Commission on Implementation of United States Space Exploration Policy (the Aldridge Commission) 2004 (USGPO 2004: ISBN 0-16-073075-9): www.hq.nasa.gov/office/pao/History/aldridge_ commission_report_june2004.pdf; the Report of the Commission on the Future of the United States Aerospace Industry, 2002 (USGPO, 2002): http://www.hq.nasa.gov/office/ pao/History/AeroCommissionFinalReport.pdf; and the Report of the Advisory Committee

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Government, responsibilities at the federal level depend on the nature and impact of the space technology involved.124 Treaties go through the appropriate procedures for their negotiation, ratification and implementation and usually will involve the State Department. Naturally the Defense Department and the military authorities are heavily involved in space matters.125 In that most satellites require radio for their functioning, the US Federal Communications Commission is engaged both in licensing and in international negotiations such as in various ITU conferences.126 Licensing for space activities is mainly the responsibility of the Federal Aviation Administration, which is part of the Department of Transportation.127 Commerce, environmental agencies and transportation have other obvious space interests.128 However, the US agency with which ‘space’ is most clearly associated in the public mind is the National Aeronautics and Space Administration, NASA.129 The extensive citation of NASA materials in our later pages shows its importance.

On the Future of the U.S. Space Program (the Augustine Commission) 1990 (USGPO 1991): http://www.hq.nasa.gov/office/pao/History/augustine/racfup1.htm. 124 �� The US Space Policy of 1996, supra n. 121, gives an indication of the many departments involved. 125 �� D.R. Terrill, Jr, The Air Force Role in Developing International Outer Space Law (Maxwell AFB, AL: Air UP, 1999; UP of the Pacific, 2004) (http://aupress.maxwell. af.mil/Books/Terrill/terrill.pdf); H.C. Dethloff, Suddenly, Tomorrow Came: A History of the Johnson Space Center 1957–1990 (The NASA History Series: NASA SP-4307, 1993); A.J. Dunar and S.P. Waring, Power To Explore – History of Marshall Space Flight Center 1960–1990 (Washington DC: USGPO, 2000). 126 �� For example, see www.fcc.gov/wrc-07, the FCC website for US preparations for the World Radio Conference held in 2007. The FCC operates under the Communications Act of 1934 as amended. Cf. M.D. Paglin, ed., A Legislative History of the Communications Act of 1934 (New York: Oxford UP, 1989). 127 �� For FAA history see: http://www.faa.gov/about/history/brief%5Fhistory/. A recent example of FAA regulation that may well be relevant (or imitated) worldwide is the ‘Human Space Flight Requirements for Crew and Space Flight Participants: Final Rule’, 2006 71 Fed. Reg. 75616–75645, amending 14 CFR §§. 401, 415, 435, 440 and 460. See Chapter 5. 128 �� See also Chapter 15 – Commercial Activities. 129 �� J.C. Cooper, ‘Memorandum on the “National Aeronautics and Space Act of 1958”’ (1958) 25 J. Air L. and Comm. 247–52 (text of Act at 253–64); S.N. Hosenball, ‘NASA and the Practice of Space Law’ (1985) 13 J. Sp. L. 1–7. The original Act and its current incarnation are respectively available at http://history.nasa.gov/spaceact.html and http://www.nasa.gov/offices/ogc/about/space_act1.html. Cf. Legislative Origins of the National Aeronautics and Space Act of 1958 (NASA History Series, Monographs in Aerospace History no. 8, 1998): http://history.nasa.gov/45thann/images/legorgns.pdf; R. Handberg, Reinventing NASA: Human Spaceflight, Bureaucracy, and Politics (Westport, CT: Praeger, 2003). See http://history.nasa.gov for an extensive list of other materials.

Chapter 2

Sources of Space Law Space law is divisible into various elements and aspects. It has a public international law aspect and a private international law aspect, a national law aspect and hybrid aspects where these categories merge. It manifests within municipal legal systems as these cope with domestic problems of space within a particular municipal or domestic legal system, and as they seek to implement relevant international law within that legal system. Such are the sources of the ‘space law’ which we seek to deal with. In this chapter we treat of these elements seriatim in general before taking up particular issues in the chapters which follow. Sources A source of law is where one looks while determining the law on a particular matter. Within a national legal system the basic sources are legislation and the development of legal concepts by common law where the constitution permits such to happen. As Lord Diplock said in a rather different connection, law ‘is a maze and not a motorway’. The discussion and process of legislation during its enactment, the explanation by judges of their decisions on that legislation or on common law, and the comments and debate of publicists of one type or another all help to clarify the law, indicate its desirable development and identify lacunae and other problems. The international legal system is similar. The literature of space law, both national and international, is considerable, if of variable quality. Some early material remains foundational: other parts are obsolete. Some journalism, and even journal or colloquia articles, are not always well-founded in fact or science. Some writers are vociferous in their conclusions but appear to lack knowledge of legal principle or existing law. Some contributions are �� Per Diplock, J. in Morris v C.W. Martin and Sons Ltd [1965] 2 All E.R. 755. ‘The Law of Outer Space’ Report to the National Aeronautics and Space Administration, Project Reporters, N. deB. Katzenbach and L. Lipson (American Bar Foundation, 1960) (Legal Problems Symposium, 779–983); S.H. Lay and H.J. Taubenfeld, The Law Relating to Activities of Man in Space: An American Bar Foundation Study (Chicago: Chicago UP, 1970); M.S. McDougal, H.J. Lasswell and I.A. Vlasic, Law and Public Order in Space (New Haven, CT and London: Yale UP, 1963), A.G. Haley, Space Law and Government (New York: Appleton-Century-Crofts, 1963); C.W. Jenks, Space Law (London: Stevens, and New York: Praeger, 1965); A.S. Piradov, International Space Law (Moscow: Progress Publishers, 1976).

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simply propaganda and amount to ‘result-oriented jurisprudence’. The reference to publicists in Art. 38.1.d of the Statute of the International Court of Justice is to the ‘teachings of the most highly qualified publicists’, a restriction which it is well to recall. The core of well-considered, well-sourced, cogent writing is surrounded by a penumbra of inadequate and faulty material, but that is of itself a testimony to the vitality of the space effort. The problem to be faced is the disciplining of unthinking entrepreneurial enthusiasm by cogent law. One other problem to be faced when considering the literature is that analysis is not always well-executed. While it is true that much law is a matter of rights and duties, a broader analysis of legal relations can reveal hidden depths and divergences. The matter is not as simple as it can seem if we simply speak of ‘rights’ and ‘duties’. The insights of W.N. Hohfeld are helpful. Legal relationships do consist inter alia of rights and duties, but these are not simple opposites and a simplistic use of an assertion of a ‘right’ which is then taken to imply a ‘duty’ may mask a true complexity of relationships. All legal relationships are fundamentally bilateral and are to be analysed as such. In a given relationship one side has four possibilities, a ‘right or claim’, a ‘privilege or liberty’, a ‘power’ or an ‘immunity’. A ‘right’ is matched by ‘no right’ on the other side, ‘privilege’ by ‘duty’, ‘power’ by ‘disability’, and ‘immunity’ by ‘liability’. For Hohfeld these four relationships are jural opposites. There are also jural correlatives, each being present if the other exists. These are ‘right’ and ‘duty’, ‘privilege’ and ‘no right’, ‘power’ and ‘liability’, ‘immunity’ and ‘disability’. Such analysis can be useful in analysing what we are usually content to lump together as the rights and duties of ‘space law’. Municipal (Domestic) Space Law Much practical space law develops within the varied municipal legal systems of the world, and particularly those of states that are space-active. This has three main aspects, the response of the legal system through the setting up of new structures �� W.N. Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913–1914) 23 Yale L.J. 16; ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1916–1917) 26 Yale L.J. 710; cf. his ‘Faulty Analysis in Easement and License Cases’ (1917–18) 27 Yale L.J. 66: W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, W.W. Cook ed. (New Haven, CT: Yale UP, 1964), or D. Campbell and P. Thomas, eds (Aldershot: Ashgate, 2001). See also W.W. Cook, ‘Hohfeld’s Contributions to the Science of Law’ (1919) 28 Yale L.J. 721; A. Kocourek, Jural Relations (Indianapolis, IN: Bobbs-Merril, 1928, 1973). For Hohfeld in space law see K.A. Baca, ‘Property Rights in Outer Space’ (1993) 58 J. Air L. and Comm. 1041–85 at 1048 ff. �� Cf. National Legislation and Policy: Selected Texts, compiled for the UN/Nigeria Workshop on Space Law, November 2005: www.unoosa.org/pdf/spacelaw/national/ natlegE.pdf. There is a proposal for the US to codify its space law: http://uscode.house. gov/cod/t51/.

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and procedures to deal with space matters, the application of the rules of the domestic legal system to space materiél and the implementation of international agreements within a state. One obvious area of municipal law that can deal with questions of space is Contract. A contract contains the rights and obligations agreed between the parties, subject to any constraints imposed by the governing legal system on grounds of public policy. However, the ‘law of contract’ is not universal: different national systems differ in detail. Similarly other areas of law such as tort (delict) and the procedures for the settlement of legal dispute can have application to space. In such areas of law there is already a settled array of concepts. However in a developing field of application such as space, new ideas or the modification of known concepts may be needed. Then what is agreed in contracts, determined by courts in response to delict/tort, necessary legislation and other emergent practices result in new concepts and fresh analyses of known rights, duties and remedies. These come to be the governing law of the field. Thus the maritime law of today was largely the creation of English merchants, shippers and their lawyers as they coped with the spread of the English merchant fleet. The English courts were willing to take jurisdiction over disputes arising from maritime contracts and disputes irrespective of the locality of their origin. It is possible that, at least to some degree, US law may play a similar role in the development of general world space law. Thus the notion of ‘cross-waivers’ in procurement and launch

�� London courts still hear cases which have no connection with the UK other than that the contract involved specifies English law as its governing law, because over the years the English courts have been recognised as being expert in a complex field. The concepts for rights and duties maritime commerce they worked out are known and trusted. �� F. Lyall, ‘Space Law: What Law or Which Law?’ (1992) 34 Proc. IISL 240–3. Cf. S. Eigenbrodt, ‘Out to Launch: Private Remedies for Outer Space Claims’ (1989) 55 J. Air L. and Comm. 185–222; P.L. Meredith and G.S. Robinson, Space Law: A Case Study for the Practitioner. Implementing a Telecommunications Satellite Business Concept (Dordrecht: Martinus Nijhoff, 1992). Although there have been developments since its publication and although it is written from a US point of view, this book gives a good insight into the complexity of a space business and the various legal obstacles involved. For US cases to its date see S. Gorove, Cases on Space Law: Texts, Comments and References (University of Mississippi: J. Sp. L., 1996) and his ‘The Growth of Space Law through the Cases’ (1996) 24 J. Sp. L. 1–21. Cf. C.Q. Christol, ‘Persistence Pays Off: The Case of Hughes Aircraft Company v U.S.A., 1979–1999’ (1999) 42 Proc. IISL 199–207; B.L. Smith, ‘Recent Developments in Patents for Outer Space’ (1999) 42 Proc. IISL 190–8; S. Eigenbrodt, ‘Out to Launch: Private Remedies for Outer Space Claims’ (1989) 55 J. Air L. and Comm. 185–222; R. Trinder ‘Recent Developments in Space Law Litigation’, (1991) 5 Georgetown J. Law and Tech. 45. See also the cases listed at http://www.esa.int/ SPECIALS/ECSL/SEMT9MMKPZD_0.html; and, from a US point of view, http://www. spacelawstation.com/cases.html#3.

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contracts has been an intriguing development that originates in the US. Again the hearings, procedures requirements and orders of the US Federal Communications Commission make law for those requiring its approval, not only for US nationals. However, the point must also be made that in questions of private law there is no general ‘US law’. Instead there is the law of the several US states that may differ in detail. That said, the precise meaning of particular contractual terms when they are applied to space is being worked out in domestic courts of various countries, not only the US. The space insurance business is refining ideas as to when risk passes, what constitutes a mission failure, and the like. Below the official levels of law and the determination of disputes, concepts are honed and polished as differences are settled between parties without recourse to judicial or arbitral procedures, but with a consequent effect on the language of later agreements. The problem for lawyer/ authors such as the writers is that many space contracts, disputes and settlements are subject to commercial confidentiality, and cannot be examined by independent observers. It is possible that those framing and agreeing space-relevant contracts and settling of all sorts of space disputes are developing concepts and particular ‘space’ meanings for familiar terms of which we are at present unaware. The private international rules of a legal system can also be important for those working in space law. Well-drawn contracts should contain a clause agreeing the legal system to govern the interpretation of the contract and the forum for the settlement of any dispute. Those advising on space law may therefore have to be aware of or take informed advice as to the particular law of many different jurisdictions. The important case of Martin Marietta v INTELSAT (1991) 763 F.

�� P.B. Larsen, ‘Cross-Waivers of Liability’ (1992) 35 Proc. IISL 91–6; P.L. Meredith, ‘Risk Allocation Provisions in Commercial Launch Contracts’ (1991) 34 Proc. IISL 264–73. The device can operate on an inter-state basis as well. See Chapter 4 – ‘Space Stations’ and cf. ‘Agreement between the US and Japan concerning Cross-Waiver of Liability for Cooperation in the Exploration and Use of Space for Peaceful Purposes, Exchange of Notes’, 1995: http://www.jaxa.jp/library/space_law/chapter_4/4-2-2-12_e.html. �� Lyall, supra n. 6. S. Ospina ‘International Satellite Telecommunications: An Assessment of their Past and Future’, in K.-H. Böckstiegel, ed. ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (Cologne: Carl Heymanns, 2002) 283–303 at 301. �� P.L. Meredith, ‘Spacecraft Failure-related Litigation in the United States: Many Failures but Few Suits’ (1996) 38 Proc. IISL 22, summarises instances down to its date. She shows that, often at the end of a dispute, settlement leads to the ‘law’ not being fully argued to a final determination. Thus one ‘celebrated’ case, Martin Marietta v INTELSAT (1991) 763 F. Supp. 1327; (1993) 991 F.2d. 94 is actually unsatisfactory because it was settled between the parties and has left on the law reports puzzling (and in the opinion of some, erroneous) views as to the concept of gross negligence and how it should affect a contractual dispute. K.B. Watson ‘Have the Courts Grounded the Space Law Industry? Reciprocal Waivers and the Commercial Space Launch Act’ (1998) 39 Jurimetrics 45–58. See also the next paragraph.

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Supp. 1327; (1993) 991 F. 2d 94, was a case tried under the law of Maryland.10 The SPOT contract for supply of remote sensing data makes disputes subject to the jurisdiction and law of the Commercial Court of Toulouse, France. How many are familiar with the detail of the laws of Maryland or even of French commercial law? It follows that attempts to harmonise the law are important, and not only in the field of space law. The efforts of UNCITRAL, the WTO and, within Europe, of the European Union towards harmonisation can affect the development of space law. The drafting by the International Institute for the Unification of Private Law (UNIDROIT) of the Convention on International Interests in Mobile Equipment, Cape Town, South Africa, 2001,11 with its Protocol on Space Assets, is a significant step forward, and we hope the Protocol will soon be agreed, come into force and find general acceptance. Other space-relevant ‘harmonisation’ occurs almost without being noticed. The European Union adopts its own space policy.12 The rules and procedures of the ITU as to the allocation of radio frequencies, the registration of assigned frequencies and orbits, the work of co-ordination to avoid harmful interference, standard setting, and the regular meetings of Study Groups, Conferences and Assemblies make all else possible as they are implemented within states.13 The informal co-operation and effective harmonisation brought about through other agencies, to be mentioned below, is also important. The implementation of an international agreement within its domestic law is a matter for the constitutional law of each state. As a general proposition, in international law a state may not plead defects or particularities of its constitutional machinery to avoid international obligation. Whether a duly ratified treaty or other international agreement forms part of the law of a state differs from country to country. In some the participation of the legislature, in whole or in part, is required. For example by Art. II.2 of the US Constitution the ‘advice and consent’ of the Senate is required for the ratification of an international treaty, but a duly ratified treaty is part of US law.14 As this is written, in the UK the ratification of a 10 �� Cf. Lyall, n. 6 above. The 991 F.2d 94 opinion is a later amended version of 978 F.2d 140. 11 �� Convention on International Interests in Mobile Equipment, Cape Town 2001: http://www.unidroit.org/english/conventions/mobile-equipment/main.htm; text at http:// www.unidroit.org/english/conventions/mobile-equipment/mobile-equipment.pdf. Cf. R. Goode, ‘The Cape Town Convention on International Interests in Mobile Equipment: A Driving Force for International Asset-Based Financing’ (2002) 7 Uniform L. Rev. 4–15. See also Chapter 14. 12 �� See http://ec.europa.eu/enterprise/space/themes/intro_space_en.html. 13 �� See Chapter 8. 14 �� For the purpose, an international treaty is a major international agreement. An ‘executive agreement’, which outsiders might also classify as a treaty, can be made by the Executive, duly authorised by an existing treaty or statute to obligate the US. It binds without the requirement of Senate consent. However, note the question of whether a treaty is ‘self-executing’ within the US use of that concept. In a recent US case, Medellin v

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treaty is a matter for the Crown alone, acting on the advice of ministers.15 A treaty duly ratified by the UK and which has come into force invokes the international obligation of the UK. However, as a matter of internal law, the ratification of an international agreement does not itself change UK law.16 That has to be done by legislative procedures.17 Texas (2008) 128 S. Ct 1346. 170 L. Ed. 2d 190, the Supreme Court held that the federal executive could not intervene in a state matter even if US international obligations were involved through the ICJ decision in Avena and Other Mexican Nationals (Mexico v USA) 2004 ICJ Rep. 12. Fifty-one Mexicans had been convicted and sentenced in the US, they and their consuls not having been informed as required under the Vienna Convention on Consular Relations, 1963 (569 UNTS 261). President Bush had issued a memorandum to the effect that state courts should give effect to the ICJ decision. However the majority in the Supreme Court considered that the ICJ Statute was not self-executing and the Executive lacked power to give the treaty internal effect, that power residing with Congress. In June 2008 Mexico asked the ICJ for an Interpretation of the 2004 Judgement and requested Provisional Measures. The Measures, announced on 16 July, included that any execution should not proceed until the Request was dealt with. See the ICJ website: www.icj-cij.org. Medellin was executed on 5 August 2008, the day further appeals to the US Supreme Court for a writ of habeas corpus and for a stay of execution were rejected (171 L. Ed. 2d 833). On 19 January 2009 the ICJ, interpreting its 2004 Judgement, found the US in breach of its international obligations. Cf. ‘Agora: Medellin’ (2008) 102 AJIL 529–72. Other US states complied with the Presidential Memorandum. In another case, Aguilera, the matter was overtaken by a grant of clemency by the Governor of Oklahoma, reducing a death sentence to life imprisonment. Cf. Case concerning the Vienna Convention on Consular Relations (Paraguay v US) 1998 ICJ Rep. 248 (Provisional Measures) (the Breard case: discontinued 1998 ICJ Rep. 426) and Breard v Greene 523 US 371; 118 S. Ct. 1352; 140 L. Ed. 2d 529 (Breard was executed in Virginia the same day); the LaGrand Case (Germany v USA) (2001) ICJ Rep. 466 and Federal Republic of Germany et al. v US et al. (1999) 526 US 111; 119 S. Ct. 1016; 143 L. Ed. 2d 192 (LaGrand was executed in Arizona on the same day). Note: on 5 April 2005 the US withdrew from the Protocol to the Vienna Convention on Diplomatic Relations (which also applies to the Consular Relations Convention) which gives the ICJ jurisdiction in the application of these Conventions on the ground that it was not appropriate that an international court should be able to reverse a decision of the criminal justice system of a country. 15 �� This may alter in the near future. On coming into office in June 2007 Prime Minister Gordon Brown indicated that Parliament may be given a role in the ratification of treaties. 16 �� With the exception of a treaty of peace, which has immediate internal effect in the UK. See F. Lyall, British Law (Baden-Baden: Nomos, 2004) 78–9, 104. 17 �� F. Lyall, ‘UK Space Law’ (1992) 35 Proc. IISL, 385–93; R. Close, ‘UK Outer Space Act 1986: Scope and Implementation’, in K.-H. Böcksteigel, ed., ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (Cologne: Carl Heymanns Verlag, 2002) at 579–90; P. Dann, ‘The Law and Regulation of Satellite Communications in the United Kingdom’ (1992) 20 J. Sp. L. 1. The UK supervisory agency in telecommunications and its intermediary with the ITU is now the Office of Communications, Ofcom, established under the Communications Act 2003 (2003 c. 21).

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Finally the development of national space legislation in various countries is something to be welcomed. The golden age of the space treaties, 1967–79, is now well past and many new legal issues have developed since then. A resurgence of general space treaty-making seems unlikely.18 COPUOS seems stalled in the matter of further UNGA Resolutions. However, usefully, and following UNISPACE III in 1999, UN OOSA has begun to arrange workshops to educate individual countries and encourage the adoption of national space legislation. Some countries that do not have national legislation are beginning to feel that those states that have national legislation exert too much influence over the launch services market in countries without national legislation. These countries are therefore motivated to adopt national legislation. The increasing private commercial uses of outer space are (we hope) regulated in detail by national provisions that implement both multilateral and bilateral international laws and also impose national regulations that are not inconsistent with international laws. Such domestic legislation can regulate more intensively and extensively than can the space law treaties. Space law is therefore made more certain by the intelligent adoption of appropriate national provisions. Memoranda of Understanding (MOUs) In recent decades a practice has arisen whereby parties, whether states, state agencies, companies or individuals, do not conclude a formal contract but rather enter into Memoranda of Understanding. There is no general agreed definition of what a Memorandum of Understanding is as a matter of law. A web search for ‘memorandum of understanding’ can produce in excess of 2,900,000 hits. Some are examples and some attempts to define the terms. However, definitions are varied and even contradictory. A MOU is more formal than a ‘gentleman’s agreement’ but ‘less than a contract’. It may, but need not, precede a contract. It is certainly a record (not necessarily exhaustive) of what the parties intend. In a mutual enterprise it is what the parties set down as their respective commitments, which may include financial provisions, but the ‘obligations’ enunciated are not to be founded on as a matter of law. In itself it can be a form of ‘soft law’. However, irrespective of how the analysts choose to anatomise it and suggest its phylogeny, the MOU has become an integral tool in the elaboration of rights and duties, privileges and immunities, in international space activities. Thus it has been extensively used in the interaction of the participants in the construction and use of the International 18 �� We note that bullet point 7 of Sec. 2 of the 2006 Bush revision of US National Space Policy states that the US ‘will oppose the development of new legal regimes or other restrictions that seek to prohibit or limit U.S. access to or use of space’ – (2007) XXXII AASL 475–86; http://www.ostp.gov/galleries/press_release_files/Unclassified%20Natio nal%20Space%20Policy%20--%20FINAL.pdf. A space treaty that lacks US acceptance will have limited relevance. Cf. R. Byerly, ed., Space Policy Reconsidered (Boulder, CA: Westview, 1989).

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Space Station.19 It also has been used for the introduction and operation of Global Mobile Personal Communications by Satellite (GMPCS). States signatory to the Arrangement implementing the GMPCS MOU of 2003 accept systems registered with the ITU and allow their operation within their territories.20 MOUs do not fit neatly within the traditional analyses of ‘law’, but they are important in space activities. Their major problem comes when parties take different views as to the extent to which a MOU ‘binds’.21 Working Arrangements, Informal Standards, Recommendations, Resolutions and Procedures Apart from MOUs and ITU recommendations etc., it should also be noted that the work of a number of less formal structures and arrangements has relevance for space activities, and hence indirectly, for space law. One such is the Consultative Committee for Space Data Systems established in 1982 (CCSDS – http://public. ccsds.org). Bringing together the major space agencies for mutual support it develops agreed space data handling systems, sets standards for inter-operability and contributes to the reduction of both development costs and time. Intellectual property notwithstanding, the wheel does not have to be constantly re-invented. Separately the Interagency Operations Advisory Group (IOAG – www.ioag. org) was established in 2000. Its members at present comprise ESA and NASA as well as the French, German, Italian and Japanese space agencies. Its remit includes inter alia the co-ordination of space communications policy, high-level procedures, technical interfaces, matters related to interoperability and space communications. Another body, the Space Frequency Coordination Group (SFCG – www. sfcgonline.org) formed in 1980, has a broader membership representing the radio frequency managers of twenty-six space agencies and provides an informal forum in which matters of mutual interest, particularly in the effective use of space-radio frequencies and their management, can be discussed. The SFCG publishes a Handbook (downloadable from its website) containing its resolutions and recommendations. These are not legally binding and depend on their voluntary acceptance and implementation by space agencies. Finally, another important field is covered by the Inter-Agency Space Debris Coordination Committee (IADC) (www.iadc-online.org) which, created in 1981, works on the mitigation of space debris. The IADC work is the basis of UN Guidelines approved in 2007, but

19 �� See Chapter 4 – ‘Space Stations’. 20 �� Global Mobile Personal Communications by Satellite (GMPCS), Arrangements of 2003. See ITU Doc. 11, 7 June 2003: http://www.itu.int/osg/gmpcs/. 21 �� M. Bourely, ‘The Legal Hazards of Transatlantic Cooperation in Space’ (1990) Space Policy 323–31, discussing difference between the ESA and the US.

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compliance remains a matter for individual space agencies and is not formal international law.22 Within the scientific community the work of many bodies ultimately has relevance for space law. Thus the Committee on Space Research (COSPAR) (www.cosparhq.org) was established by the International Council for Science in 1958, in the wake of Sputnik I. Governed by its Charter, the highest organ of COSPAR is its Council, on which representatives of national scientific institutions and international scientific unions serve. COSPAR has an extensive publications programme, arranges meetings and colloquia, advises the UN and other international bodies, and is a major forum for the presentation of the results of space research. The remit of the International Astronautical Federation has been outlined in Chapter 1. The Search for Extraterrestrial Intelligence (SETI) (www. seti.edu) is dealt with in Chapter 17. Public International Space Law Public international space law is part of ordinary public international law, and shares in its sources.23 It is, of course, a new area for the application of law, and one which has burgeoned since the launch of Sputnik I in 1957. Unlike many other areas of law, space law has had to respond quickly to rapid technical developments.24 Whether it has always accomplished that task satisfactorily is a question, particularly as to whether the multilateral space treaties have been 22 �� On 22 December 2007 UNGA Res. 62/217 approved the COPUOS endorsement in its Report (A/61/20) of a set of voluntary guidelines for the mitigation of space debris See Chapter 11, p. 346 ff. Cf. Inter-Agency Space Debris Mitigation Guidelines, IADC-02-01, 15 October 2002: http://www.iadc-online.org/index.cgi?item=docs_pub. 23 �� C. Parry, The Sources and Evidences of International Law (Manchester: Manchester UP, 1965); L.B. Sohn, ‘Sources of International Law’ (1995–1996) 25 Ga. J. Int. and Comp. L. 399–406; I. Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford UP, 2003) (new ed. pending) 3–29; R. Jennings and A. Watts, Oppenheim’s International Law, 9th ed. (London: Longman, 1992) vol. 1, 22–5; H. Thirlway, ‘The Sources of International Law’, in M.D. Evans, ed. International Law (Oxford: Oxford UP, 2003) 117–44 (new ed. pending) all together with the materials they cite. 24 �� To repeat some citations from Chapter 1, see: M. Lachs, The Development and General Trends of International Law in our Time, 169 Hague Receuil 1980-IV; and his ‘Thoughts on Science, Technology and World Law’ (1992) 86 AJIL 673–699 [Lyall/Larsen 3–29]; J.L. Charney, ‘Technology and International Negotiations’ (1982) AJIL 78–118; A.E. Gottleib, ‘The Impact of Technology on the Development of Contemporary International Law’, 170 Hague Recueil 1981-I, 115–329; C.W. Jenks, ‘International Law and Activities in Space’ (1956) 5 Int. Law Quart. 99–114; and ‘The New Science and the Law of Nations’ (1968) 17 ICLQ 327–45; his ‘Orthodoxy and Innovation in the Law of Nations’ (1971) 57 Proc. Brit. Academy, 215–35. Cf. C.W. Jenks, Space Law (London: Stevens, and New York: Praeger, 1965) and The Common Law of Mankind (London: Stevens, 1958). Cf. B.

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framed in terms that are sufficiently clear and able to take account of historic change. When these treaties were adopted only states, and effectively only two states, were capable of engaging in space activities. Now many states are spacecompetent, and many international organisations and private companies engage in such activities and yet others have ambitions. The sources of space law and their applicability to what is actually happening in practice are therefore crucial as the use of space increases. If their applicability is defective, the law will have to change. Article 38.1 of the Statute of the International Court of Justice lists sources to which the Court is to look in determining a case before it. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law (Art. 38.1).

Whether that list is closed or whether it may be added to has been a matter of controversy over the decades, but increasingly it seems that there is an acceptance that the ‘sources of international law’ may include elements not there enumerated.25 Space law is an area in which that may be true. As far as the ‘subsidiary means’ referred to in Art. 38.1.d are concerned, we have already noted the large body of space literature that has emerged over the decades. Much of that is composed of discussions of international law, some from ‘the most highly qualified publicists of the various nations’. As for ‘judicial decisions’, we have a number of decisions by domestic tribunals.26 So far we have no decisions by the International Court itself,27 or published by international arbiters.28 ‘General Beebe, ‘Law’s Empire and the Final Frontier: Legalizing the Future in the Early Corpus Juris Spatialis’ (1998) 108 Yale L.J. 1737. 25 �� L.B. Sohn, ‘“Generally Accepted” International Rules’ (1986) 61 Wash. L. Rev. 1073–80. 26 �� Cf. material collected in Gorove, n. 6. The decisions of NASA, the US Federal Aviation Administration and the US Federal Communications Commission (FCC) should also be borne in mind. 27 �� The ICJ recognises that in the future it may be required to decide on questions of Space Law. 28 �� Arbitrations on space disputes have occurred but are not available for reasons of commercial secrecy.

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principles of law’ is a category too indefinite clearly to connect with the detail of space law. Treaty and custom, however, are very relevant. There is also the question of the legal weight or significance of the various UN Resolutions on Principles on matters of space law, which we will turn to after dealing with custom. Treaties are the major source of international law, indicating as they do the willingness of states ratifying them to be bound by the obligations they contain, to exercise the rights and privileges which they state, and implicitly to allow other parties to exercise their equivalent rights and privileges. The best-known space law treaties are those adopted through the mechanisms of the United Nations: the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, 27 January 1967,29 the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 22 April 1968,30 the Convention on International Liability for Damage Caused by Space Objects, 29 March 1972,31 the Convention on the Registration of Objects Launched into Outer Space, 12 November 1974,32 and the Agreement Governing the Activities of States on the Moon and other Celestial Bodies of 5 December 1979.33 Of them the Outer Space Treaty of 1967 (OST) is generally accepted as foundational, containing in part at least principles of a generality that have passed into customary law.34 We will deal with the detail of these treaties in later chapters. Suffice it here to note that, as of 1 January 2008 one-hundred and seventy-nine states had signed or ratified one or more of the various treaties that are specifically relevant for space law.35 29 �� 610 UNTS 205; 1968 UKTS 10, Cmnd. 3519; 18 UST 2410, TIAS 6347; (1967) 6 ILM 386; (1967) 61 AJIL 644. 30 �� 672 UNTS 119; 1969 UKTS 56, Cmnd. 3997; 19 UST 7570, TIAS 6559; (1968) 7 ILM 151; (1969) 63 AJIL 382. 31 �� 961 UNTS 187; 1974 UKTS 16, Cmnd. 5551; 24 UST 2389, TIAS 7762; (1971) 10 ILM 965; (1971) 66 AJIL 702. 32 �� 1023 UNTS 15; 1978 UKTS 70, Cmnd. 7271; 28 UST 695, TIAS 8480; (1975) 14 ILM 43. 33 �� 1363 UNTS 3; (1979) 18 ILM 1434; UN Doc. A/34/664. Nov. 1979; UN Doc. A/34/20, Annex 2; UN Doc. A/RES/34/68. 34 �� We discuss the question of custom deriving from treaty in Chapter 3 while dealing with the OST. However, it may be noted here that on the tenth anniversary of the OST the UN General Assembly confirmed the importance of the Treaty and expressed itself convinced that it had ‘played a positive role in the implementation of the purposes and principles of the Charter of the United Nations and the progressive development of the law of outer space’, UNGA Res. 32/195. 35 �� The Annual Report of the IISL Standing Committee on the Status of International Treaties relating to Activities in Outer Space gives a table of signatures and ratifications of space-relevant treaties together with information on state action since 1999. See (2008) Proc IISL and ff. or http://www.iislweb.org/committee.html. UN OOSA publishes an annual report on the status of these agreements: http://www.unoosa.org/pdf/publications/ ST_SPACE_11_Rev2_Add1E.pdf.

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The UN Space Treaties are the outcome of compromise, argument and debate. They were birthed through COPUOS, the UN Committee on the Peaceful Uses of Outer Space, a body which generally proceeds on the basis of consensus.36 As a result not all their language is pellucid, easily allowing us to determine the content or ambit of the rights and privileges as well as the duties and obligations which they contain. In addition, the space treaties were adopted at a time that states and state agencies were the sole participants in the exploration and use of outer space. Now we have many commercial space enterprises established, for example, through the privatisation of telecommunications and the development of privately owned remote sensing and direct broadcast satellite services. Wouldbe entrepreneurs clamour for property rights on the Moon and other celestial bodies. Private launch services are willing to meet the demands of entrepreneurs. Commercial space-ports are planned in various places.37 We even have businesses that try to provide simple adventure or to satisfy the ambition of those who can afford it to get into space, manifesting inter alia in space tourism.38 Such were not in contemplation when the space treaties were formulated. The UN Space Treaties are not the sum total of treaty rights and obligations of relevance for space law. Many other treaties and international agreements will be referred to in the following pages. It is well, however, here to point to the Constitution and Convention of the International Telecommunication Union (ITU)39 and its Administrative Regulations (including the Radio Regulations) as being fundamental for all uses of space.40 Other treaties are more limited in their effect on space activities, but, as treaties, if relevant they are the first source to look to in determining a question of space law. Custom ‘International custom as evidence of a general practice accepted as law’ (Art. 38.1.b, of the ICJ Statute) is the other major formal source of international space law. ‘Custom’ is traditionally thought of as requiring both state practice and the ‘opinio iuris sive necessitatis’. The practice need not be wholly uniform, but must 36 �� COPUOS and consensus are discussed in Chapter 1. 37 �� Orbital and sub-orbital spaceports are licensed or planned in Canada, the US (Alaska, California, Florida, New Mexico, Oklahoma, Texas, Virginia), the United Arab Emirates and Singapore (data to 2008). Australia has a potential space-port at the former Woomera missile range. A possible use of Christmas Island for a projected Asia-Pacific Space Centre has been departed from. For current launch sites see http://www.spacetoday. org/Rockets/Spaceports/LaunchSites.html. 38 �� See Chapter 5. 39 �� Collection of the basic texts of the International Telecommunication Union adopted by the Plenipotentiary Conference, 3rd ed. 2007 (Geneva: ITU, 2007). 40 �� The ITU is dealt with in Chapter 8.

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be undertaken in the belief it is binding and required by law as opposed to being merely convenient or mutually beneficial. In the assessment whether an alleged custom exists, recourse may be had to accounts of state practice in digests of international law,41 the internal memoranda and legal opinions of governments insofar as they are available, official statements of governmental attitudes and positions by persons qualified to speak for government,42 and compilations such as the working drafts and discussions of the International Law Commission.43 Recourse may also be had on occasion to treaties, for it is possible for a treaty established in appropriate terms to become formative of customary international law. This is different from the treaty provision that is an articulation of existing custom. We will discuss this more fully in the next chapter in relation to the Outer Space Treaty itself. In the arena of space law, it is interesting to see how often the accounts of UN debates, and the proceedings of COPUOS and its constituent sub-committees are quoted as indicating practice and opinio iuris.44 But how far these accounts are really advocacy and how far reportage is obscure. The fact is that space materiél is in flux. Coming to an opinion as to the ambit and application of international custom in relation to space remains difficult. There has not been an appropriate case or international arbitration by a highly qualified arbiter that could dissolve many uncertainties as to customary international space law. Many are willing to express their views (including the authors), but judicial clarity would be welcome.45 However, space has a further potential source of law, one either self-standing or begetting custom because the community of nations meeting as the General Assembly of the United Nations has to date promulgated five ‘Declarations’ of ‘Principle’ in space matters. What is their standing and effect? UN Resolutions The role of Resolutions of the General Assembly of the United Nations in public international law is controversial.46 A number of UN ‘Declarations’ of Principles 41 �� Cf. M.M. Whiteman, Digest of International Law (US State Department, 1962– 1973) and the regular accounts of US Practice in International Law published in the AJIL, the UK and French equivalents, etc. 42 �� For example by state delegations at meetings of COPUOS. It is said that the autobiographies of statesmen may be helpful, sed quaere. See also n. 44 infra. 43 �� Annually the ILC produces two volumes of material on matters on its agenda. 44 �� The unedited transcripts of COPUOS meetings from 2004 are available from OOSA: http://www.unoosa.org/oosa/COPUOS/transcripts/index.html#COPUOS_T566. 45 �� That said, one appreciates the views expressed in books, articles and lectures by such as Judges Manfred Lachs and Vladlen Vereshchetin of the ICJ. 46 �� Generally, see O. Schachter, ‘United Nations Law’ (1994) 88 AJIL 1–23; F.B. Sloan, ‘The Binding Force of a “Recommendation” of the General Assembly of the United Nations’ (1948) 25 BYIL 1–33, B. Sloan, ‘General Assembly Resolutions Revisited (Forty

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contain interesting and valuable statements, some of which purport to be statements of international law. One notable example is the Universal Declaration of Human Rights of 1948.47 Another is the 1970 ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’.48 However much one would want to see these statements complied with, it has to be recognised that in practice their authority may be limited, and their prescriptions are often ignored or remain controversial. Consider also the chequered history of UNGA Res. 1803 (XVII) on ‘Permanent Sovereignty over Natural Resources’ of 1962, and its successor the ‘Charter of Economic Rights and Duties of States’ of 1974 (UNGA Res. 3281 (XXIX)). Some see a binding element in a repeated sequence of General Assembly affirmations, but there is a contrary argument that repetition of exhortation may Years Later)’ (1987) 58 BYIL 39–130; D.H. Johnson, ‘The Effect of Resolutions of the General Assembly of the United Nations’ (1955) 32 BYIL 97; C.C. Joyner, ‘UN General Assembly Resolutions and International Law: Rethinking the Contemporary Dynamics of Norm-Creation’ (1981) 11 Cal. W. Int. L.J. 445–78; R. Rosenstock, ‘The Declaration of Principles of International Law Concerning Friendly Relations: A Survey’ (1971) 65 AJIL 713–36 at 714–5; H.H. Almond, Jr, ‘General Principles of Law – Their Role in the Development of the Law of Outer Space’ (1986) 57 U. Colo. L. Rev. 871–83; L.F.E. Goldie, ‘A Note on Some Diverse Meanings of “The Common Heritage of Mankind”’ (1983) 10 Syracuse J. Int. L. and Com. 69–112 at 69–91; G. Arangio-Ruiz, ‘The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations’, 137 Hague Recueil 1972-III, 419–572; J. Castaneda, ‘Valeur juridique des resolutions des Nations Unies’, 129 Hague Receuil 1970 I, 205–332; also his The Legal Effect of UN Resolutions (New York: Columbia UP, 1969). Cf. P.C. Szasz, ‘General Lawmaking Processes’, in O. Schachter and C.C. Joyner, eds, United Nations Legal Order (ASIL; Grotius Publications, 1995), vol. 1, 35–108; I. Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford UP, 2003), 14–15. See also Lauterpacht, infra n. 47. As to the making of the Space Resolutions, see N. Jasentuliyana, ‘The Lawmaking Process in the United Nations’ 33–44, and V. Kopal, ‘Evolution of the Doctrine of Space Law’ 17–32, both in N. Jasentuliyana, ed., Space Law: Development and Scope (New York: Praeger, 1992); V. Kopal, ‘The Role of United Nations Declarations of Principle in the Progressive Development of Space Law’ (1988) 16 J. Sp. L. 5–20; F. Pocar, ‘The Normative Role of COPUOS’, in G. Lafferanderie, ed., Outlook on Space Law over the Next Thirty Years (The Hague: Kluwer, 1997) 415–21. 47 �� ‘Universal Declaration of Human Rights’, UNGA Res. 217 (III), 8 December 1948: http://www.un.org/Overview/rights.html. H. Lauterpacht, ‘The Universal Declaration of Human Rights’ (1948) 25 BYIL 354–81, where the author, citing various views and statements by those involved in its formulation, analyses the legal standing and other weight of Declaration. 48 �� ‘Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations’ UNGA Res. 2625/XXV (1970); A/8082: (1970) 9 ILM 1292. Rosenstock, supra n. 46. Cf. Arangio-Ruiz, supra n. 46. We note however that this Declaration was later declared by the ICJ to be declaratory of customary international law: see n. 53, second para.

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simply indicate that the desired practice is not occurring.49 The ICJ did not take an opportunity to express a view in the Nicaragua Case of 1986,50 although as we will see matters were different a decade later. Notwithstanding the equivocal position of a good many General Assembly Resolutions, the Space Resolutions (or certain, or even more restrictively elements of certain of them) may in effect be treated as sources of space law either in the future, or, as we are inclined to argue, even now.51 Every year the UN General Assembly adopts a Resolution on the Report of the Committee on the Peaceful Uses of Outer Space (COPUOS). Normally that has limited relevance in the formation of law other than encouraging the Committee in its work, but there are those Resolutions in which the Assembly has adopted a ‘Declaration’ of ‘Principles’ on space matters. With one exception these have been adopted without vote, and hence are of the highest form of UNGA Resolution. These are the ‘Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space’, UNGA Res. 1962 (XVIII) of 1963, ((1964) 3 ILM 157); the ‘Principles Governing the Use by States of Artificial Earth Satellites 49 �� S.A. Bleicher, ‘The Legal Significance of Re-Citation of General Assembly Resolutions’ (1969) 63 AJIL 444–78; Arangio-Ruiz, supra n. 46 at 476–7 (‘the doctrine of repeated shouting’), 482–6. 50 �� H. Thirlway, ‘The Sources of International Law’, in M.D. Evans, ed., International Law (2003: Oxford U.P.) 117–44 at 141 notes that in the Nicaragua Case, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits, Judgement, 1986 ICJ Rep. 14, the International Court made some reference to General Assembly Resolutions, but chose not to characterise these as a source of law, holding at para. 184: ‘The mere fact that States declare their recognition of certain rules is not sufficient for the Court to consider these as part of customary international law and as applicable as such to these States’. Thirlway comments that, had the Court considered General Assembly Resolutions as a creative source of law independent of custom, it would have taken that opportunity in the Case. 51 �� See n. 46 and: A. Terekhov, ‘U.N. General Assembly Resolutions and Outer Space Law’ (1997) 40 Proc. IISL 87–107; C.Q. Christol, ‘The United Nations and the Development of International Law – Unanimous Resolutions of the General Assembly Dealing with Outer Space’ (1965) 23 Proc. Inst. of World Affairs, reprinted in his Space Law – Past, Present and Future (Deventer: Kluwer, 1991), 311–28; J.G. Sauveplanne ‘Freedom and Sovereignty in Air and Outer Space’ (1965) 12 Neth. Int. L. Rev. 228–50 at 234; D. Göedhuis ‘Reflections on the Evolution of Space Law’ (1966) 13 Neth. Int. L. Rev. 109–49 at 112–22; famously, B. Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’ (1965) 5 Ind. J. Int. Law 23, Cheng 125–49; S.M. Schwebel, ‘The Effect of Resolutions of the U.N. General Assembly on Customary International Law’ (1979) 73 Proc. ASIL 301–9; R.R. Baxter, ‘Treaties and Custom’, 129 Hague Receuil 1970-I, 27–105, discussing UNGA Resolutions at 69–74. See also comments in 1963 I YBILC (Meeting 685 – A/CN.4/685): http://untreaty.un.org/ilc/documentation/english/a_cn4_sr685.pdf0; S. Rosenne at 75 (para. 12) (UNGA resolutions not ius cogens could have some effect); de Luna at 75 (para. 25), G. Tunkin at 75 (para. 30), Yaseen at 76 (para. 32), Bartoš at 77 (para. 36): (Meeting 687 – A/CN.4/687). See also infra n. 71.

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for International Direct Television Broadcasting’, UNGA Res. 37/92 of 1982,52 the ‘Principles Relating to the Remote Sensing of the Earth from Outer Space’, UNGA Res. 41/65 of 1986 ((1986) 25 ILM 1331), the ‘Principles Relevant to the Use of Nuclear Power Sources in Outer Space’, UNGA Res. 47/68 of 1992, and the ‘Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries’, UNGA Res. 51/122 of 1996. In addition account must be taken of other General Assembly Resolutions that ante-date the adoption of the space law treaties, notably, ‘International Cooperation in the Peaceful Uses of Outer Space’, UNGA Res.1721 (XVI) of 20 December 1961 and the same titled UNGA Res.1802 (XVII) of 19 December 1962. It seems to us likely that this sequence of Resolutions falls into those of ‘normative character’ referred to by the ICJ in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons of 1996. Its para. 70 states: The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have a normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution it is necessary to look at its content and also the conditions of its adoption; it is also necessary to see whether an opinio iuris exists as to its normative character. Or a series of resolutions may show the gradual emergence of the opinio iuris necessary for a new rule.53

52 �� This Resolution was adopted by majority vote, most of the states that would be affected by its requirements abstaining or voting against. Many therefore consider that it is therefore without substantive effect. Others hold that some of its elements are effective; cf. V. Kopal, ‘The Role of United Nations Declarations of Principles in the Progressive Development of Space Law’ (1988) 16 J. Sp. L. 5–20. 53 Legality of the Threat or Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 8 July 1996, 1996 ICJ Rep. 226 at para. 70; (1996) 35 ILM 809. Cf. Thirlway, supra n. 51. Cf. also Dean Rusk, the then US Secretary of State appearing in 1962 before the US Senate Foreign Relations in connection with the then pending communications satellite legislation. Speaking of UNGA Res. 1721 (XVI) he said: ‘Although the resolution “commends” the principles to member states, the United States takes the position that these principles are presently the law: the unanimous action of the General Assembly in adopting the resolution as action by the governments of the world assembled, confirms this view’; (1962) Dept. of State Bull. 318; (1963) 57 AJIL 127–8 at 127. In para. 162 of its Judgement in the ‘Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)’, 2005 ICJ Rep. 1 at 56 (para. 162) the Court cited UNGA Res. 3341 (XXIX) of 14 December 1974, on the definition of aggression, and UNGA Res. 2625 (XXV) of 24 October 1970 on friendly relations between states, stating they are declaratory of customary international law. In para. 244 the ICJ commented that the permanent sovereignty of a state over its natural resources is expressed

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Even should the reader be disinclined to accept the normative character of the space resolutions, it is nonetheless clear that, as Boyle and Chinkin put it, the space states may safely ‘proceed on the assumption that there would be no opposition to activities conducted in conformity with the principles endorsed by the resolution’.54 The relevant Space Resolutions fall into two groups, those prior to the 1967 Treaty, and those after it. The Preambles of those prior to the Outer Space Treaty show a development. Resolution 1721 of 1961 ‘Commends to States for their guidance in the exploration and use of outer space’ certain principles. Resolution 1802 of 1962 ‘believes’ that states should act in conformity with international law in the exploration and use of outer space, and stresses the ‘necessity of the progressive development of international law pertaining to the elaboration of basic legal principles governing the activities of States’ while using and exploring space. The famous Space Principles Resolution, UNGA Res. 1962 of 1963, is less tentative.55 It ‘[s]olemnly declares’ that states ‘should be guided’ by the principles it contains in their exploration and use of outer space. The sequence of these Resolutions therefore shows a progression from ‘commending’ to ‘declaring’ and ‘should be guided’. However, after the 1967 Treaty the UN Space Resolutions simply ‘adopt’ the principles which they state. This change in language shows that the UN General Assembly at least considers that it is moving within a defined area of competence, a matter important when considering the Resolutions that were adopted without vote. Only the 1982 Resolution on ‘Direct Broadcast’ Principles (UNGA Res. 37/92) was adopted by a majority. The minority are to be categorised as ‘persistent objectors’.56 The Direct Broadcast Resolution was therefore torpedoed because of the attitude of those who would have been most affected by it. That strengthens the weight that attaches to the other Space Resolutions, all adopted without vote, when considering them as evidence as to the emergence of international custom. Turning to the content of the Resolutions adopted prior to the OST, one finds certain common elements that carry forward into the Treaty. All indicate that the exploration and use of space is to be governed by international law.57 Resolutions in UNGA Res. 1803 (XVII) 14 December 1962, UNGA 3201 (S-VI) 1 May 1974 and UNGA Res. 3281 (XXIX) 12 December 1974. 54 �� Boyle and Chinkin, infra n. 71, at 227; V. Lowe, International Law (Oxford: Oxford U.P., 2007) 41–2 accepts the UN Space Resolutions as formative of law; cf. R.J. Lee, Reconciling International Space Law with the Commercial Realities of the TwentyFirst Century’ (2000) 4 Sing. J. Int. and Comp. L. 194–251 at 204–5. 55 �� For the negotiation of the Space Principles Resolution of 1963 see Soviet Space Programs, 1962–1965: Organization, Plans, Goals, and International Implications, Staff Report, Committee on Aeronautical and Space Sciences, US Senate, 89th Cong. 2d Sess, 30 December 1966, at 498–509. 56 �� Cf. n. 52 supra. For the ‘persistent objector’ see Chapter 3, p. 71. 57 �� UNGA Res. 1721/1961, Part A, para. 1(a): UNGA Res. 1802/1962, Preamble second para. ‘Believing’; UNGA Res. 1962/1963, para. 4. Cf. OST, Art. III.

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1721/1961 and 1962/1963 indicate that outer space and celestial bodies are free for use by all states,58 that national appropriation is barred both for outer space and in respect of celestial bodies,59 and that space is to be used for peaceful purposes.60 Resolution 1721/1961 speaks in its Preamble of a ‘belief’ that ‘the exploration and use of outer space should be only for the betterment of mankind and to the benefit of States irrespective of the stage of their economic or scientific development’. The Preamble of the 1963 Resolution also ‘believes’ using the same formulation and then, under a solemn declaration that states ‘should be’ so guided, provides in its very first numbered paragraph that the ‘exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind’.61 Article I, para. 1, of the OST re‑formulates the language of these preambles and that of para. 1 of the 1963 Resolution as a legal obligation, the fulfilment of which was to cause dissatisfaction, discussion and a further UNGA Declaration in 1996.62 Lastly, UNGA Res. 1802/1962, Part I, para. 3 asked COPUOS to expedite its work on such matters as the basic legal principles that should apply in space, liability for accidents and on rescue and return of astronauts and ‘other legal problems’. Principles as to liability for accidents are dealt with in general terms in para. 8 of the 1963 Resolution, with rescue and return appearing in para. 9. Importantly para. 5 of the 1963 Resolution articulates the principle that states are responsible for national activities, including the activities of nationals, and for seeing that such activities comply with international law.63 All these points were later to appear in the OST, but had, it would seem, been consented to already at least in skeletal form by the membership of the United Nations. The UN General Assembly Space Resolutions adopted after the 1967 OST are of a different character. They are elaborations of ideas to be found in the Treaty, or the application of its generalities in particular instances. It would be otiose to go through them seriatim other than to make that statement, but one example may be given. The major part of Principle II of the Remote Sensing Principles of 1986 58 �� UNGA Res. 1721/1961, Part A para. 1(b); UNGA Res. 1962/1963, para. �� 2. Cf. OST, Art. I, para. 2. 59 �� UNGA Res. 1721/1961, Part A para. �� 1(b); UNGA Res. 1962/1963, para. 3. Cf. OST, Art. III. 60 �� UNGA Res. 1721/1961, Title and Part A, first preambular para., ‘Recognising’, and implication from second, ‘Believing’; UNGA Res. 1962/1963, preambular para. ‘Recalling’. Cf. OST, Art. IV. 61 �� Emphasis has been added in the preceding sentences to bring out the progress shown by the successive language of ‘belief’, ‘should be’ and ‘shall’. 62 �� See the ‘Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries’, 13 December 1996, UNGA Res. 51/122. 63 �� Such responsibility may also be inferred from the general notions of state responsibility in international law, but here our point is that the principles of responsibility and duty of supervision are set out in both the 1963 Resolution on Principles and the Outer Space Treaty.

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repeats verbatim the requirement of Art. II of the OST that the exploration and use of outer space be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Otherwise, it suffices to observe that the UN General Assembly, greatly increased in size since 1967, has adopted three Resolutions without vote, those relating to Remote Sensing (1986, UNGA Res. 41/65), to Nuclear Power Sources in Space (1992, UNGA Res. 47/68) and to Benefit (1996, UNGA Res. 51/122). These, and even the Direct Broadcasting Resolution of 1981 (UNGA Res. 37/92), although it is basically ineffective, show that the generality of states are willing to lay out principles and rules under which the exploration and use of space should be conducted, and the evidence so far at least is that the space-competent states do generally comply with their broad principles. The Resolutions operate in the framework of the general rules of the OST – freedom of access and use, the application of international law, peaceful uses and a ban on territorial claims in space. It is perverse to ignore these statements by the UN General Assembly, and pretend that they are without legal effect. While one might not go so far as to classify them as ‘instant customary international law’,64 with the exception of the Direct Broadcast Principles of 1982, the history of compliance with the UN Space Resolutions has swiftly elevated each at least into the category of ‘soft law’. Further, as time has gone on, that softness has dissipated. The Remote Sensing Principles date to 1986, and the Nuclear Power Principles to 1992. Those states whose activities and practice fall within their compass have been acting within their recommendations. More uncertainty may attach to the effects of the ‘Space Benefits’ Declaration of 1997, but we note with interest the activity within the ITU directed towards the spread of the benefits of space.65 Writing of the 1963 Principles Declaration, C.W. Jenks said: The cautious will, of course, continue to warn us not to read into the approval of the Declaration by the General Assembly more than is really there, but how much is there depends primarily on how much we wish to be there. When governments make it clear in the deliberations of the General Assembly that they regard a declaration about to be adopted as a statement of international law

64 �� The term comes from the title to Bin Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’ (1965) 5 Indian J. Int. L. 23, rep. Cheng, 125–49. In fairness the author does not argue true ‘instant’ for all UN Resolutions though indicating that some Resolutions in appropriate form and adopted unanimously or without vote may show a new emergent opinio iuris. However, the arresting title of his article has stuck, perhaps too easily, in the mind of many. Cf. Arangio-Ruiz, supra n. 46, at 452–60, 471–86; L.B. Sohn, ‘The Law of the Sea: Customary International Law Developments’ (1984–5) 34 Am. U. L. Rev. 271–80. See also discussion in our Chapter 3 of the possibility of a transition from treaty law to custom. 65 �� See Chapter 8, particularly as to the Development Sector (ITU-D), and ITU involvement in the World Summit on the Information Society (WSIS). See also Chapter 11.

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as it is accepted by the members of the United Nations, it is altogether unseemly for responsible scholars to dismiss it as a statement of intention which has not created any new obligations incumbent on Members of the United Nations.66

Manfred Lachs, the President of the International Court of Justice, noting the statements made by delegations during the adoption of the 1963 Principles, wrote similarly: Thus, by expressing their will to be bound by the provisions of the document in question, they consented to be bound, and there is no reason why they should not be held to it. For their intention seems to have been clear, the question of form, therefore, ceases to be of essence.67

Decades on from these words, and given the intervening history of compliance with the UN Space Declarations, the point seems clear. Maybe some will require a judicial statement finally to validate the matter, and in that case they may have to wait. Some may prefer to see the Space Declarations as non-binding instruments similar to a ‘Highway Code’, where reasons for non-compliance have to be extremely cogent. For others the development of space law through UN Declarations is a clear new source of international law as may be seen in their assertion of such as the Space Benefits Declaration or the Remote Sensing Principles as laying down general law.68 We cannot agree with such a broad approach even to the Space Resolutions. What can be said is that certain fundamentals contained in and reiterated in successive Space Resolutions and complied with by states, particularly those whose conduct and practice is most clearly affected, are materials from which custom is formed.69 Soft Law Finally, for completeness, we would say something specifically about ‘soft law’. To some it is anathema, while to others it represents a major category of activity 66 �� C.W. Jenks, A New World of Law? A Study of the Creative Imagination in International Law (London: Longmans, 1969) 210. However, Arangio-Ruiz (supra n. 46) at 476–9 points out that the practice of states in accordance with a statement is necessary for there to be customary law. 67 �� M. Lachs, The Law of Outer Space, 1972, 138 (quoted by D. Göedhuis, ‘Influence of the Conquest of Outer Space on National Sovereignty: Some Observations’ (1978) 6 J. Sp. L. 37–46 at 40). Attention should also be given to the statement of the then US Secretary of State in 1962, supra n. 53. 68 �� Cf. Chapter 13. 69 �� Cf. the already cited V. Lowe, International Law (Oxford: Oxford U.P., 2007) at 41–2 where he accepts the UN Space Resolutions as formative of law.

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in the formation of international law. As a matter of fact ‘soft law’ is present in a number of fields of international law, for example in international environmental law.70 The regularisation of space activities leading to the self-regulation of its participants is but another example of the concept at work.71 The headings above as to ‘Memoranda of Understanding’ and ‘Working Arrangements, Informal Standards, Recommendations, Resolutions and Procedures’ cover some of the fora and practices through which ‘soft’ space law is developing. The UN Space Resolutions are other examples, and yet other examples will be found scattered throughout this book. The ‘law’ of science is directed to the explanation of phenomena, and allows prediction of the consequences of particular sets of circumstances. The ‘law’ of lawyers also allows prediction, but differs in that by legislation or other modes of law-making ‘consequences’ can be changed. In space law ‘soft law’ can be the gestation of law and legal principle, occasionally abortive,72 but often successful. When it works well it produces regularity of practice and reliability, a common understanding of the concepts and a mutual acceptance leading to trust. While ‘soft law’ remains soft it does have disadvantages. By definition it is not binding, which makes lawyers uneasy and its content is dependent on compliance rather than enforcement. Different participants in the process may interpret it differently, leading to a lack of consistency or uniformity of practice.73 On the other hand the ‘soft law’ approach can be useful. Ex natura it is a flexible process allowing its content to adapt to new requirements and changing technologies in a way that treaty finds difficult.74 Again it is quite clear that, while treaty making is a matter for states (which may not always be as well informed as may be desirable), soft law allows non-state entities and particularly those whom it may directly affect

70 �� Cf. Chapter 10. 71 �� Cf. O. Schachter, ‘The Twilight Existence of Nonbinding International Agreements’ (1977) 71 AJIL 296–304; M. Ferrazzani, ‘Soft Law in Space Activities’, in G. Lafferanderie, ed., Outlook on Space Law over the Next Thirty Years (The Hague: Kluwer, 1997) 429–47; G. Danilenko, Lawmaking in the International Community (Dordrecht: Martinus Nijhoff, 1993) 203–10: A. Boyle and C. Chinkin, The Making of International Law (Oxford: Oxford UP, 2007) ‘Soft Law’, 211–29; D. Tan, ‘Towards a New Regime for the Protection of Outer Space as the “Province of all Mankind”’ (2000) 25 Yale J. Int. L. 145–94 at 179–84. See also supra n. 51. 72 �� As in the case of the ‘Direct Broadcast’ Principles of 1982. See Chapter 9 – ‘Direct Satellite Broadcasting’. 73 �� Thus it remains to be seen how far the UN/IADC Guidelines on the mitigation of space debris (supra n. 22) lead to a uniform approach to such matters by the several space agencies. 74 �� In Chapter 4 we suggest that, although the treaties on rescue and return, on liability and on registration have revision provisions, to re-open these would probably be to open a can of worms. As there noted, in fact practice is modifying the way the Registration Convention works; perhaps this is soft law at work.

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to take part in its formation.75 While this can result in special pleading and selfinterest, nonetheless it is desirable that in areas of technical knowledge and swift advance, knowledgeable participants are to be welcomed. To be effective space law has to be made by those who understand the technologies and technicalities which it is to regulate. Soft space law provides a framework for space activities which supplements the hard space law of the treaties and other formal international agreements. It is generally reliable, flexible and effective. Doctrinaire concepts of ‘law’ which would exclude it from consideration do a disservice to the study of law.76 Certainly one can anatomise in order to understand, but one thereby ends up with a corpse. Space law, whether formal hard law or less formal soft law, is a vibrant field.

75 �� The ‘Associate Member’ category in the ITU is a formal example of non-state participation in the formation of international law through the elaboration of practices and requirements via the various study groups: see Chapter 8. 76 �� Cf. W. Twining, ‘General Jurisprudence’ (2007) 15 U. Miami Int. and Comp. L. Rev. 1–60 at 32–52.

Chapter 3

The Outer Space Treaty, 1967 The Treaty on Principles Governing the Activities of States in the Exploration Use of Outer Space, including the Moon and Other Celestial Bodies (the OST) was adopted by the General Assembly of the United Nations on 19 December 1966, opened for signature on 27 January 1967, and entered into force on 10 October 1967. By that date it had been signed by ninety-three states and ratified by sixteen, a total of one-hundred and nine out of a then UN membership of one-hundred and twenty-three. As at January 2008 it had been ratified by ninety-nine states and signed by another twenty-five, a total of one-hundred and twenty-four out of a UN membership of one-hundred and ninety-two. In its annual Resolutions on the Reports of the Committee on the Peaceful Uses of Outer Space (COPUOS), the UN General Assembly regularly exhorts states to sign and ratify the Space Treaties. It is therefore disappointing that the number of states involved by either ratification or signature in this fundamental statement of principles has increased by only fifteen in forty years, a small number given the increase of sixty-nine in the UN membership. Nonetheless the proportion of UN membership is an element to be borne in mind when assessing its importance. Another important element is the fact that arguably no state which is likely to enter space itself – as opposed to buying service from another – is a non-party. The Outer Space Treaty is often spoken of as the Magna Carta of Space. That sobriquet may betray an ignorance of the detail and history of the Magna Carta of

�� Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, London, Moscow and Washington, 27 January 1967 (1968) 610 UNTS 205; (1968) UKTS 10, Cmnd. 3519; 18 UST 2410, TIAS 6347; (1967) 6 ILM 386; (1967) 61 AJIL 644. See P.G. Dembling ‘Principles Governing the Activities of States in the Exploration Use of Outer Space, including the Moon and Other Celestial Bodies’, I Manual 1–51; Cheng 215–64; Christol 12–58; and infra n. 12. �� The Annual Report of the IISL Standing Committee on the Status of International Treaties relating to Activities in Outer Space gives a table of signatures and ratifications of space-relevant treaties together with information on state action since 1999. See (2008) Proc IISL and ff. or http://www.iislweb.org/committee.html. UN OOSA publishes an annual report on the status of these agreements: http://www.unoosa.org/pdf/publications/ ST_SPACE_11_Rev2_Add1E.pdf. �� UN membership rose to 192 with the admission of Montenegro on 28 June 2006. By 1 January 2008 Montenegro had ratified ARRA and the Liability and Registration conventions but not the OST.

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1215. However in adjectival use the term has become part of modern parlance. The OST is certainly ‘one of the key developments in the entire realm of international law’. Even though it can be argued that some of the principles it enunciates were already part of international custom, their incorporation in a treaty confirmed their status as between the parties. Further, as we will argue, those principles may now properly be said to have become customary, and hence binding on all states. It is important that space activities are the subject of rules. What these were needed to be agreed internationally. Whether claims to sovereignty in space could be made had to be clear, responsibility had to be established for supervision, for the ‘ownership’ of space activities at the state level and for liability in the case of damage or devastation. Astronauts should be rescued. Space objects should be ‘returned to sender’ or at least ‘returnable to sender’. Custom and practice would have taken too long to produce rules of sufficient detail to cope with such matters. Something closer to ‘legislation’ was required, and the UN Space Resolutions were not that. The OST certainly provides a solid foundation for the development of much of space law. It translates into treaty obligations the basic ideas expressed in the earlier Space Resolutions. The advantage of treaty form was that in the 1960s there was doubt (which may remain) as to the authority of a UN Resolution. The history of compliance with resolutions of the League of Nations was not reassuring and, although significant declarations on various matters had been adopted as UN General Assembly Resolutions in the 1940s and 1950s, it had always been made clear that those resolutions were without binding legal force. It was therefore better to incorporate the ideas of the 1963 Declaration and the other

�� Magna Carta provided for rights for the Church, for nobles and for ‘free men’ (not a large class in 1215), including trial by a jury of one’s peers if one was ‘free’. There is also a large number of minor provisions. It was forgotten for centuries thereafter, the ‘fundamental’ ideas becoming influential only some four hundred years later in connection with the struggles between Crown and Parliament when it provided a slogan rather than law. For the British Library copy see www.bl.uk/treasures/magnacarta/magna.html. �� A.E. Gotleib, ‘The Impact of Technology on the Development of Contemporary International Law’, 170 Hague Recueil 1981-I, 115–329 at 311 n. 484. See also D. Göedhuis, ‘An Evaluation of the Leading Principles of the Treaty on Outer Space of 27th January 1967’ (1968) 15 Neth. Int. L. Rev. 17–41; M. Lachs, ‘The Treaty on Principles of the Law of Outer Space, 1961–1992’ (1992) 39 Neth. Int. L. Rev. 291–302. �� ‘International Cooperation in the Peaceful Uses of Outer Space’, UNGA Res.1721 (XVI), 20 December 1961; ‘International Cooperation in the Peaceful Uses of Outer Space’, UNGA Res.1802 (XVII) 19 December 1962. ‘Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space’, UNGA Res. 1962 (XVIII) 1963 (1964) 3 ILM 157. �� See the discussion as to the legal weight or relevance of General Assembly Resolutions in Chapter 2. �� Cf. the ‘Universal Declaration of Human Rights’, 1948, UNGA Res. 217 (III).

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Space Resolutions in a treaty in order to remove that doubt. Further, as a matter of non-legal but of political sagacity, a major impetus towards the production of the Treaty was the likelihood that, following President Kennedy’s famous challenge,10 man would reach the Moon in the near future.11 A formal legal regime to deal with space was therefore more than desirable. A number of lunar probes had been launched and the American Gemini programme was already practising techniques of docking and space walk that would be required for a Moon landing. Space law had to advance, and advance quickly. Although it builds on the Space Resolutions which had been argued through in the period 1960–63, negotiation of the Treaty took time.12 As with the Resolutions, much seems to have depended on the personal relationships of the principals involved, relationships which allowed political posturing to be elided in the general interest. It is a truism that lawyers prefer to adapt known agreements and law rather than invent something entirely new. The obvious potential model for outer space was Antarctica and the Antarctic Treaty of 1959.13 That treaty, entered into in the �� J.F. McMahon, ‘Legal Aspects of Outer Space: Recent Developments’ (1965–66) BYIL 417–432 at 417–419. 10 �� President Kennedy set the challenge in the section on Space in a ‘Special Message on Urgent National Needs to a Joint Session of the US Congress’ on 25 May 1961. His much quoted words were: ‘I believe that this nation should commit itself to achieving the goal, before this decade is out, of landing a man on the Moon and returning him safely to Earth’, Public Papers of the Presidents: John F. Kennedy (US GPO, 1961), 403–5, also available via www.presidency.ucsb.edu/ws/index. See also Kennedy’s speech on the space programme at Rice University, 12 September 1962; http://vesuvius.jsc.nasa.gov/er/seh/ ricetalk.htm or http://www.jfklibrary.org/Historical+Resources/Archives/Reference+Desk/ Speeches/JFK/003POF03SpaceEffort09121962.htm. 11 �� Thus on 7 May 1966 while proposing what a space treaty ought to contain, President L.B. Johnson indicated that it was important to ensure that ‘our astronauts and those of other countries can freely conduct scientific investigations of the Moon’ (1966) 54 Department of State Bulletin, 900. 12 �� P.G. Dembling and D.M. Arons – 1. ‘The Evolution of the Outer Space Treaty’ (1967) 33 J Air L. and Comm. 432–56 [Lyall/Larsen 151–88] (cf. P.G. Dembling ‘Principles Governing the Activities of States in the Exploration Use of Outer Space, including the Moon and Other Celestial Bodies’, I Manual 1–51); – 2. their ‘Space Law and the United Nations: The Work of the Legal Sub-Committee of the United Nations Committee on the Peaceful Uses of Outer Space’ (1966) 32 J. Air L. and Comm. 329, continued in – 3. their ‘The United Nations Celestial Bodies Convention’ (1966) 32 J. Air L. and Comm. 535; J.F. McMahon, ‘Legal Aspects of Outer Space’ (1962) 38 BYIL 339–99; H.G. Darwin, ‘The Outer Space Treaty’ (1967) 41 BYIL 278; I.A. Vlasic, ‘The Space Treaty: A Preliminary Evaluation’ (1967) 55 Cal. L. Rev. 507. Both Cheng and Christol (supra n. 1) cite extensively. Cf. B. Cheng ‘The1967 Outer Space Treaty: Thirtieth Anniversary’ (1998) 23 Air and Sp. L. 156–65. 13 �� The Antarctic Treaty 1959, 402 UNTS 71; 12 UST 795, TIAS 4780; (1960) UKTS 71, Cmnd. 1535; (1960) 54 AJIL 477; (1980) 19 ILM 860–2: http://www.antarctica.ac.uk// about_antarctica/geopolitical/treaty/update_1959.php.

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wake of the success of the scientific exploration of Antarctica in the International Geophysical Year of 1957, had frozen the seven territorial sector claims made by Argentina, Australia, Chile, France, New Zealand, Norway and the UK.14 It had opened Antarctica for further scientific exploration (Art. II), but only for peaceful purposes (Art. I), and provided for co-operation and exchange of personnel and information (Art. III).15 Nuclear explosions and the deposit of nuclear waste were prohibited (Art. V). Bases might be established anywhere in Antarctica, and the inspection of bases by other parties to confirm compliance with the treaty provisions was allowed (Art. VII).16 Such agreement as to activities in inhospitable territory provided suitable analogues for the discussions as to a legal regime for outer space.17 Another international instrument affording some guidance in the negotiation and drafting of the OST was the Nuclear Test Ban Treaty of 1963,18 which had entered into force just before the UN General Assembly adopted the 1963 Space Principles Resolution.19 As its full title indicates, the Nuclear Test Ban Treaty bans nuclear weapon testing inter alia in space. Article I of that treaty speaks simply of the banning of nuclear weapon tests ‘in the atmosphere, beyond its limits, including outer space’, but lacks specificity as to where outer space might be. Nonetheless, it provided straw to help make the bricks of the OST. States were already thinking along such lines. Apart from such international agreements, many other materials were germane to the discussions. The US and USSR produced many suggestions and draft agreements.20 Specific proposals had been brought forward to COPUOS and its Legal Subcommittee, and, as noted, the UN General Assembly itself had adopted 14 �� The other original parties to the Antarctic Treaty were Belgium, Japan, the USSR and the US. In 2007 the Antarctic Treaty had forty-six Parties. 15 �� No acts or activities during the currency of the Antarctic Treaty afford any basis for territorial claims (Art. IV.2). 16 �� On the Antarctic Treaty System see C.G. Joyner and S.K. Chopra, eds, The Antarctic Legal Regime (Dordrecht and Boston, MA: Nijhoff, 1988); Antarctic Treaty System: An Assessment (National Research Council: National Academies Press, 1986) See also www.antarctica.ac.uk/. 17 �� P. Jessup and H.J. Taubenfeld, Controls for Outer Space and the Antarctic Analogy (New York: Columbia UP, 1959); H.J. Taubenfeld ‘The Antarctic and Outer Space’, in Joyner and Chopra (supra n. 16) at 269ff. See also O.J. Lissitsyn, ‘The American Position on Outer Space and Antarctica’ (1959) 53 AJIL 126. Cf. J.E. Faria, ‘Draft to an International Covenant for Outer Space – The Treaty of Antarctica as a Prototype’ (1960) 3 Proc. IISL 122–7. 18 �� Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water, Moscow, 5 August 1963, in force 10 October 1963; 480 UNTS 43; 14 UST 1313, TIAS 5433; 1964 2 ILM 883, text at 889–91. 19 �� Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, UNGA Res. 1962 (XVIII) of 1963: 1964 3 ILM 157. 20 �� See materials cited supra n. 12, particularly those of Dembling and Arons.

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three important Resolutions regarding space.21 All such was grist for the mill. It was also important to have the concurrence of as many countries as possible for the sake of universality of the treaty: a space treaty of limited membership would have been less than useful. In 1967 most UN members did not have a space-faring capability, but these represented the vast majority of the votes in the Assembly. They therefore had a bargaining lever; a universally acceptable treaty would not be adopted without their concurrence. Essentially these states wanted to preserve their future options for when they obtained space technology and became actors in space. In principle they wanted future rights to use outer space equal to the rights of the then current space powers. They therefore sought and got the principle of equality in the use of outer space, particularly in the language of Art. I.22 The result was a treaty of seventeen articles, adopted by acclamation.23 This is the base on which the exploration and use of outer space takes place in accordance with legal norms. More particularly, while some of its provisions required (and may still require) elaboration, focus and crystallisation in later agreements, future developments have a good foundation in the 1967 Treaty. Certain of its provisions are fundamental. The Treaty The OST is a universal treaty, open to all states (Art. XIV.1). At the time of its adoption only two states were active in space, the US and the USSR. These, along with the UK, are its depositaries (Art. XIV.2).24 Ratification by these three along with any other two states was made necessary for its coming into force to ensure that the principal space actors were bound by its terms (Art. XIV.3).25 Other states are bound as from the date of deposit of their ratifications (Art. XIV.4). The Treaty applies to the space activities of individual states, to those of their national entities

21 �� See supra n. 6. 22 �� For an explanation of developing countries objectives see N. Jasentuliyana, ‘Article 1 of the Outer Space Treaty’ (1989) 17 J. Sp. L. 130. 23 �� See materials cited supra n. 12; J.F. McMahon ‘Legal Aspects of Outer Space: Recent Developments’ (1965) 41 BYIL 417 [Lyall/Larsen 189–202]; H.G. Darwin, ‘The Outer Space Treaty’ (1967) 41 BYIL 278; I.A. Vlasic, ‘The Space Treaty: A Preliminary Evaluation’ (1967) 55 Cal. L. Rev. 507; Cheng, 215–64; Christol, 12–58. 24 �� Having states as depositaries of the OST rather than the UN Secretary General (which is the case with many other multilateral treaties) allows non-UN members more easily to become parties to the OST. See (supra n. 12), Dembling and Arons 1 at 454, Dembling, Manual I, at 33–4. 25 �� The requirement of only five ratifications being required for coming into force is a feature of all the UN Space Treaties: OST, Art. XIV.3; ARRA Art. 7.3; Liability Convention Art. XXIV.3; Registration Convention Art. VIII.3; Moon Agreement Art 19. Only the OST and ARRA needed the participation of the US and USSR.

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(Art. VI), to joint state activities and to the activities of international organisations of which a state Party to the Treaty may be a member (Art. XIII). Parties may withdraw from the OST on one year’s notice (Art. XVI) and any Party may propose its amendment (Art. XV). An amendment comes into force for accepting Parties when they form a majority, and thereafter for other states on the date of their acceptance of it (Art. XV). We would hope that no party withdraws from the OST, but we also argue below that in any case a withdrawal would not remove a party from those obligations in the OST, which have now passed into customary law. We would also observe that amendments are undesirable unless all parties accept them simultaneously. As a general proposition space law would not be well served were divergent versions of the OST to be the law as between a variety of parties. The Treaty sets out Principles. Their integrity should be preserved. The Preamble to the OST narrates a variety of concerns as lying behind the decision to agree on the treaty. These include the general common interest in space, in its use for peaceful purposes,26 that the use of space should benefit all and the need for mutual understanding and co-operation. In the latter connection we observe that references to co-operation, consultation and due regard for the interests of other states recur throughout the Treaty (Arts I para. 3, X, XI). Co-operation has, however, been patchy and encouraged by economic and financial considerations rather than the aspirations of the OST. However such considerations are not to be despised. One result has been the International Space Station.27 Co-operative institutions have been established. The Consultative Committee for Space Data Systems (CCSDS), set up in 1982 to establish standards for space data and its handling, has contributed greatly to interoperability and has meant that common problems have been given common solutions open to all.28 One recent welcome development is a coherent general international approach to space endeavours, involving a co-ordination of space activities rather than the often apparently competitive activities of the past.29 ‘The Global Exploration Strategy: The Framework for Co-ordination’, 2007, provides for the establishment of ‘a formal, though non-binding and voluntary, co-ordination mechanism’, the ‘International Coordination Mechanism’, in which common interests will be discussed.30 This may augur well for collaboration and 26 �� Specific mention is also made of UNGA Res. 110 (II) of 1947 condemning propaganda likely to cause a threat to peace, and stating that the Parties consider it applies to space. See Chapter 9 – ‘Direct Satellite Broadcasting’. 27 �� See Chapter 4 – ‘Space Stations’. 28 �� See http://public.ccsds.org. Apparently space communications experts from twenty-eight countries presently participate in the work of CCSDS. 29 �� Cf. W.A. McDougall, ‘… the Heavens and the Earth: A Political History of the Space Age (New York: Basic Books, 1985); G. DeGroot, Dark Side of the Moon (London: Jonathan Cape, 2006). 30 �� See http://www.bnsc.gov.uk/assets/channels/media_centre/Global%20Exploration %20Strategy%20Framework.pdf. The Global Exploration Strategy was adopted by the Third ASI/ESA International Co-operation for Sustainable Space Exploration Workshop,

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co-operation as space activities develop in the next few years, although we suspect that national pride may restrict its efficacy. After the Preamble the OST text launches into its catalogue of Principles, most of which were foreshadowed in the GA Resolution of 1963.31 We consider that certain of these, particularly Arts I–III, have now the status of customary as well as of treaty law, and will elaborate that point at the end of this chapter. The fundamental Principles are that international law applies in outer space, that there is freedom in the exploration and use of space, and that there is no national sovereignty in space or over celestial bodies. Some might add that space is to benefit all. How precisely space can or may benefit all is a matter of contention, and we will come to that. Other matters are clearer. It is interesting to note that the fundamental principles can be expressed tersely – just as fundamental particles are themselves small. The first fundamental is the place of law. The role or rule of international law in space is a basic principle now contained in para. 2 of Art. I and in Art. III of the Treaty. This is nothing new. That ‘international law including the Charter of the United Nations applies to outer space and celestial bodies’ was commended to states for their guidance in the exploration and use of outer space by the UN General Assembly on 20 December 1961.32 That the ‘activities of states in the exploration use of outer space shall be carried on in accordance with international law’ is part of para. 4 of the 1963 Declaration on Space Principles.33 Its para. 2 also speaks of the exploration and use of space being carried out ‘in accordance with international law’. In short, ‘space’ is not lawless: it is not somewhere where one is free of legal constraint or principle. The second fundamental is enshrined as OST Art. I para. 2. Outer space and celestial bodies are free for exploration and use by all states. This idea is foreshadowed in the prior UN Resolutions, appearing in Part A 1.b of UNGA Res. 1721 (XVI), 1961, and para. 2 of the 1963 Declaration on Space Principles, UNGA Res. 1962 (XVIII). The Treaty article adds that the exploration and use of outer space is to be ‘without discrimination of any kind, on a basis of equality’ and that Sarteano, Italy, 29 May to 1 June 2007. Fourteen space agencies are involved: ASI (Italy), BNSC (UK), CNES (France), CNSA (China), CSA (Canada), CSIRO (Australia), DLR (Germany), ESA (European Space Agency), ISRO (India), JAXA (Japan), KARI (Republic of Korea), NASA (US), NSAU (Ukraine) and Roscosmos (Russia). Cf. A Journey to Inspire: Report of the Presidential Commission on Implementation of United States Space Exploration Policy (the Aldridge Commission) 2004 (USGPO, 2004: ISBN 0-16-0730759): www.hq.nasa.gov/office/pao/History/aldridge_commission_report_june2004.pdf. 31 �� Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, UNGA Res. 1962 (XVIII) of 1963: 1964 3 ILM 157. 32 �� Part A, para. 1.a, ‘International Cooperation in the Peaceful Uses of Outer Space’, UNGA Res.1721 (XVI), 20 December 1961. 33 �� See para. 4 of the ‘Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space’, UNGA Res. 1962 (XVIII) 1963: (1964) 3 ILM 157.

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‘there shall be free access to all areas of celestial bodies’. It is important to note the way in which these rights are formulated in Art. I. The rights are rights of all states, not just rights mutually recognised by the parties to the OST and restricted to them. In this there are echoes of Art. I of the Paris and Chicago Conventions which ‘recognise’ that every state has rights in the air-space above its territory.34 Every state/country may explore and use outer space. The third fundamental is that there is no national appropriation of space or of celestial bodies. That outer space and celestial bodies are not subject to national appropriation appeared originally in Part A, para. 1.b of UNGA Res. 1721 (XVI).35 The notion is elaborated in para. 3 of the 1963 Space Principles Declaration, where it is added that national appropriation cannot occur ‘by claim of sovereignty, by means of use or occupation or by any other means’. That language is taken over seriatim into OST Art. II. Non-lawyer readers should note that the term ‘occupation’ as used here is a technical term of international law. ‘Occupation’ involves both ‘being there’ and the intention to act as sovereign in relation to the

34 �� Convention on the Regulation of Aerial Navigation, Paris, 13 October 1919, 11 LNTS 173; 1922 UKTS 2, Cmd. 1609; 1 Hudson 359; 13 Martens (3d) 61; (1923) 17 AJIL Supp. 195; Convention on International Civil Aviation, Chicago, 7 December 1944 (1944) 15 UNTS 295; 61 Stat. 1180, TIAS 1591; (1953) UKTS 8, Cmd. 8742; 9 Hudson 168; 3 Bevans 944; (1945) 39 AJIL Supp 111. 35 �� The idea that celestial bodies would not be subject to national appropriation by any claims of sovereignty had been suggested by President Eisenhower to the General Assembly of the United Nations in September 1960: D.D. Eisenhower, ‘Address before the Fifteenth General Assembly of the United Nations, 22 September 1960’; Public Papers of the Presidents of the United States, Eisenhower 1960–61, doc. 302, 707–20, § v at 714 (Univ. of Michigan Digital Library, http://quod.lib.umich.edu/p/ppotpus/); Legal Problems at 1009. Earlier, see O. Schachter, ‘Who Owns the Universe?’ Colliers, 22 March 1952, 36 and 70–71, rep. in C. Ryan, ed., Across the Space Frontier (London: Sidgwick and Jackson, 1952) 118 ff. Cf. Note: ‘National Sovereignty of Outer Space’ (1961) 74 Harv. L. Rev. 1154–75. The setting aside of territory from claims of sovereignty may have begun with discussions early in the twentieth century as to Spitzbergen and the Svalbard archipelago, which gave rise to the proposal of T.W. Balch in 1910 that ‘East and West Antarctica’ [areas not claimed in 1910] should ‘become the common possessions of all of the family of nations’: T.W. Balch ‘Arctic and Antarctic Regions and the Law of Nations’ (1910) 4 AJIL 265–75 at 274–5; cf. J.B. Scott, ‘Arctic Exploration and International Law’ (1909) 3 AJIL 928–41 at 941. These notions, based on what was thought of as the impossibility of permanent settlement, were departed from, but in measure reappear with the Antarctic Treaty (n. 13). The Svalbard Treaty 1920 (2 LNTS 7, 2 Bevans 269 (US) 43 Stat. 18–92, TS 686) recognised Spitzbergen and the rest of the archipelago as Norwegian while providing for freedom of hunting and access to fishing grounds. See W. Østreng, Politics in High Altitudes: the Svalbard Archipelago, R.I. Christophersen trans. (London: Hurst, 1977). Cf. M. Bourbonniere and R.J. Lee, ‘Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict’ (2007) 18 Eur. J. Int. L. 873–901 at 900–1.

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occupied location.36 That intention is excluded by the terms of Art. II.37 A base on a celestial body, or an orbital position – including a geostationary location or a position at a Lagrange point – may be ‘there’, but its position is not amenable to or open for a claim of sovereignty to be made.38 Claims of sovereignty in space being excluded by OST Art. II, something has here to be said as to the Bogota Declaration of 1976,39 although we will consider the Declaration in more detail in Chapter 9. In brief its signatories (Colombia, Ecuador, Indonesia, the Congo, Kenya, Uganda and Zaire (then the Democratic Republic of the Congo) with Brazil present as an observer), asserted that the geostationary orbit (GSO) is a scarce natural resource which is not part of outer space, and each claimed rights in relation to that portion of the orbit above its territory.40 As is clear from various statements within it, the trigger for the Declaration was the increasing use being made of the GSO slots by the developed countries, and the failure of attempts by the equatorial states to be recognised as having a special interest in them.41 It was said to be necessary that the developing countries asserted their interests since the developed countries were likely to act in ways that were unlikely to allow the less-developed to have equitable access or benefit from space. The Declaration therefore appeals specifically to the right of a state to control

36 �� See M. Huber, Arbitrator, Island of Palmas Arbitration (1928) 2 RIAA 831–71 (1928) 22 AJIL 867–920: Sir Robert Jennings and Sir Arthur Watts, eds, Oppenheim’s International Law, 9th ed., Vol. I, ‘Peace’ (London: Longman, 1996), Part 2, 686–96 (§§250–57); I. Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford UP 2003), 124–5 and 133–8. 37 �� As discussed in Chapter 7, p. 183, ‘Sovereignty and Title to Immoveables’, the prohibition of national appropriation excludes appropriation by private individuals and entities. An individual may make a claim, but this is ineffective of itself. A ‘title’, valid against third parties, depends on it being recognised by a national legal system, which cannot happen. The alleged ‘expansion’ of OST Art. II by Art. 11.3 of the Moon Agreement follows on MA Art. 11.2, which restates OST Art, II for the Moon. MA Art. 11.3 is a clarification (for politicians?) and not innovative. 38 �� Cf. the US statute ‘Implantation of the United States Flag on the Moon or Planets’ (PL 91–119, 18 November 1969, 83 Stat. 202) which provides: ‘The flag of the United States, and no other flag, shall be implanted or otherwise placed on the surface of the Moon, or on the surface of any planet, by the members of the crew of any spacecraft making a lunar or planetary landing as a part of a mission under the Apollo program or as a part of a mission under any subsequent program, the funds for which are provided entirely by the Government of the United States. This act is intended as symbolic gesture of national pride in achievement and is not to be construed as a declaration of national appropriation by claim of sovereignty’. 39 �� The Declaration of the First Meeting of the Equatorial States, Bogota, 1976 (1978) 6 J. Sp. L. 193–6; Manual 2: 383. See also Chapter 9, p. 253 – ‘The Bogota Declaration’. 40 �� An application of the ‘lighthouse’ principle? 41 �� Christol, 463–533 with its notes traces the debate down to its date. See Chapter 6.

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its natural resources.42 It argued that experience and foreseeable developments demonstrated major omissions in the OST and ‘force[d] the equatorial states to claim the exclusion of the geostationary orbit’. The OST did not define or delimit outer space, implying that ‘Article II should not apply to geostationary orbit’ and Art. II ‘therefore does not affect the right of the equatorial states that have already ratified the Treaty’. Thirty years on from these statements we would simply note here that the Bogota claims still surface in reservations made by equatorial states to the ITU Final Acts, and in statements in other fora and writings. While such serve to showcase dissatisfaction by developing countries as to their access to and benefit from space activities, in practice the claims in the Bogota Declaration to sovereignty appear dead.43 Mention of the dissatisfaction felt by developing countries as to the distribution of benefit from space activities leads us back to OST Art. I. That the exploration and use of outer space should be ‘only for the betterment of mankind and to the benefit of states irrespective of the stage their economic or scientific development’ appeared in the preambular paragraph Believing of both UNGA Res. 1721 of 1961 and the 1963 Declaration of Space Principles. The 1963 Declaration para. 1 further declares that ‘exploration and use of outer space shall be carried on for the benefits and the interests of all mankind’. This language is brought together in the first paragraph of Article 1 of the OST, which states: The exploration and use of outer space including the Moon and other celestial bodies shall be carried out for the benefit and in the interests of all countries irrespective of their degree of economic or scientific development and shall be the province of mankind.

Here the insistence of the previous Space Resolutions that all countries are to benefit has had added to it the notion of the exploration and use of outer space being ‘the province of mankind’. This latter phrase is difficult to interpret as a matter of law. Rhetorically it adds a little gloss to the freedom of exploration and use in para. 2 of Art. I.44 42 �� In particular citing ‘Permanent Sovereignty over Natural Resources’, UNGA Res. 2692 (XXVII) of 1970, and the ‘Charter of Economic Rights and Duties of States’, UNGA Res. 3281 (XXIX) of 1974 (1975) 14 ILM 251. Apart from these, the UN General Assembly had adopted a number of Resolutions on the topic of Permanent Sovereignty – see UNGA Res. 1803 (XVII) of 1962 (1963) 57 AJIL 710, 1963 2 ILM 223; Res. 2158 (XXI) of 1966; Res. 2386 (XXIII) of 1968, Res. 2625 (XXV) of 1970; Res. 2692 (XXV) of 1970; Res. 3016 (XXVII) of 1972; Res. 3171 (XXVIII) (1974) 13 ILM 238. 43 �� See also Chapter 6 on the Boundary question, Chapter 8 on the ITU and the geostationary orbit, and Chapter 9 – ‘Geostationary Orbit’. 44 �� But see E. Fasan, ‘The Meaning of “Mankind” in Space Legal Language’ (1974) 2 J. Sp. L. 125–31.

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The implications of the requirement that the ‘exploration and use shall be carried out for the benefit and in the interests of all countries irrespective of their degree of economic or scientific development’ are developing as time goes on. It has to be said that the high expectations raised by this statement and indeed by the statements in Resolutions 1721 and 1962 would seem in the early years not to have been met to the satisfaction of the non-space-active countries. The Bogota Declaration is but one example. The question was, and maybe still is, whether the ‘benefit’ must be shared in a practical sense, perhaps including technology transfer,45 or whether the requirement is met simply by the activities being beneficial in a generalised way – which might even encompass merely being non-harmful.46 Dissatisfaction with the flow-through of benefit to the non-space-active states was expressed at the Second United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE II) in 1982. In due course the matter was placed on the agenda of COPUOS, and its product became UNGA Res. 51/122, adopted without vote on 13 December 1996 as the ‘Declaration on international cooperation in the exploration in use of outer space for the benefit and in the interests of all states taking into particular account the needs of developing countries’.47 Paragraph 1 of the 1996 Declaration takes up the language of Art. I of the OST, but makes an interesting addition to it. For the Declaration ‘international co-operation’ ‘shall be carried out for the benefit and the interests of all states irrespective of their degree of economic, social or scientific and technological development and shall be the province of all mankind’ – thus far the words of the OST. However, it adds a sentence: ‘Particular account should be taken of the needs of developing countries’. The Declaration therefore exhorts space-active states to co-operate with developing countries, particularly those with ‘incipient space programmes’ (para. 3), in the most effective manner possible, including through governmental and non-governmental, commercial and non-commercial, global and multi-lateral, regional or bilateral co-operation (para. 4). Such co-operation should be aimed at promoting the outer space and science and technology together with its applications, developing appropriate capabilities and interested states and facilitating the exchange of expertise and technology (para. 5). Organisations and agencies dealing with development aid should consider how they may develop the potential of space in their programmes (para. 6). In all this, however, it is recognised that the emphasis must be on co-operation and that the space competent cannot be required to engage in such activities to their detriment. Co-operation is to be ‘on an equitable and mutually acceptable basis’. The terms of any contract for such 45 �� N. Jasentuliyana, International Space Law in the United Nations (The Hague: Kluwer, 1999) 169–86, an update of the article cited infra n. 47. 46 �� S. Gorove, ‘Implications of International Space Law for Private Enterprise’ (1982) 7 AASL 319 at 321; Bourbonniere and Lee (supra n. 35) at 885. 47 �� Cf. N. Jasentuliyana, ‘Article 1 of the Outer Space Treaty’ (1989) 17 J. Sp. L. 130; M. Benkö and K.-U. Schrogl, ‘History and Impact of the 1996 UN Declaration on “Space Benefits”’ (1997) 13 Space Policy 139–43.

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a venture are to be ‘fair and reasonable’ and in full compliance with ‘legitimate rights and interests of the parties concerned as for example the intellectual property rights’ (para. 2). The facilitation of exchange of expertise and technology is to be ‘on a mutually acceptable basis’ (para. 5). Such qualifying phrases could limit the aspirations of the sentences containing them. The terms and thrust of UNGA Res. 51/122 together with comparable language in the Remote Sensing Principles of 1986,48 and in parts of the ITU Constitution and Convention and other ITU documents,49 reflect an insistent demand from the developing countries. The underlying stratum of thought is similar to the concept of the ‘Common Heritage of Mankind’ – a concept that has developed considerably in the last three decades, particularly since its application to Part XI of the Law of Sea Convention of 1982.50 The International Sea-Bed Authority implements a regime for the exploitation of the deep sea beyond national jurisdiction. The concept is similarly to be found in the Moon Agreement of 1979, Art. 11 of which binds parties to that Agreement to establish a suitable regime for the exploitation of the resources of the Moon once such exploitation becomes feasible.51 Others have sought to interpret the Antarctic Treaty of 1959 as in effect making Antarctica part of the Common Heritage of Mankind.52 It has to be said that in the latter case so to do is to read back into history concepts that were not present when the Antarctic Treaty was being negotiated. Similarly it is inappropriate to interpret OST Art. I as implying at that stage the existence of the notion of a regime of ‘common heritage’. Certainly the concept of ‘common heritage’ as it appears to be developing does have elements which are present in the OST. There is the setting aside of outer space from national sovereignty (OST Art. II). There is the language of benefit and interests in OST Art. I, para. 1 together with its reference to the exploration and use of outer space being ‘province of all mankind’. However ‘common heritage’ requires that there is a formal international regime established for the supervision of the exploitation of the resources of the ‘common heritage’ as is the case with Part XI of the 1982 Law of the Sea Convention, and that is simply not present. More accurately, it was not in the minds of the negotiators and drafters of the OST that there should be such a common controlling regime as the later concepts of common heritage imply. In 1967 it was evident that states were going 48 �� ‘Principles Relating to the Remote Sensing of the Earth from Outer Space’, 3 December 1986; UNGA Res. 41/65 (1986) 25 ILM 1331. See Chapter 13. 49 �� See Chapter 8. 50 �� UN Convention on the Law of the Sea, 1982, 1833 UNTS 3; (1999) UKTS 81, Cm. 4524; (1982) 21 ILM 1261–354: Part XI. The Deep Seabed, as revised by the Agreement to Implement Part IX of the Law of the Sea Convention, UNGA Res. 48/263 (1999) UKTS 82, Cm. 4524; (1994) 33 ILM 1309. 51 �� See Chapter 7. 52 �� Antarctic Treaty 1959, 402 UNTS 71; (1960) 54 AJIL 477. The Treaty set aside Antarctica for peaceful and scientific purposes only, and froze the pre-existing territorial claims for its duration.

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to explore and use outer space. Although some regard was to be had to the interests of others, and all states should benefit ‘irrespective of their degree of economic or scientific development’, the establishment of a binding and directory ‘common heritage’ regime was not in contemplation.53 So much for the language of Art. 1, para. 1, and the 1997 Space Benefits Declaration. However, in addition to the legalese, it should be clearly stated that notwithstanding the legal position, the developing countries have indeed seen significant ‘benefit’ from the use of space by the space-competent. Other chapters in this book deal with direct broadcasting (Chapter 9), satellite telecommunications (Chapter 11), global positioning (Chapter 12) and remote sensing (Chapter 13). In all these areas benefit has come to all the states that wish it. Communications have been revolutionised,54 education has come through satellite broadcasting, sensing from space has helped deal with the exploitation of natural resources and the dangers from natural disasters. While it is true that commercial considerations have entered in, it is also the case that competition has benefited states willing to exploit it. We now move on to consider the remaining articles of the OST. Article IV obliges states not to put nuclear weapons or weapons of mass destruction into space, whether in orbit or otherwise stationed in space, or on the Moon or other celestial bodies. The Moon and other celestial bodies are to be used exclusively for peaceful purposes. Military bases, exercises or the testing of weapons are forbidden. Notwithstanding military personnel may take part in scientific exploration, and the use of military equipment for scientific purposes is permitted.55 Such generalities require further elaboration – as in the Moon Agreement of 1979, albeit that Agreement has not been a success.56 Article V of the OST, repeating the terms of para. 9 of the 1963 Declaration of Principles, holds astronauts (undefined) as envoys of mankind, who are to be given assistance in emergencies and are to be returned to the state of registry57 of their space vehicles in case of accident. States are to inform the UN Secretary General of any phenomena found in space that may endanger astronauts. As with Art. IV these points have been filled out by later agreement, in this case the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects

53 �� Cf. the discussion of the Moon Agreement in the Report, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Committee on Commerce, Science, and Transportation (US) 96th Cong. 2d Sess. (Committee Print 1980) and our Chapter 7 – ‘Common Heritage’. 54 �� Telecommunications has enabled the Internet, with incalculable effects. 55 �� See Chapter 16. 56 �� Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 5 December 1979; A/RES/34/68; 1363 UNTS 3; (1979) 18 ILM 1434. See Ch. 7, infra. See also Chapter 16 on military activities in space. 57 �� As to ‘registry’ see infra at n. 66.

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Launched into Outer Space, generally known as ARRA, which was adopted one year after the OST.58 Articles VI and VII are partially innovative and go together.59 In general a state is responsible only for acts attributable directly to it, or indirectly through the acts of its officials acting in an official capacity. Ordinarily a state is not responsible simpliciter for the activities of its nationals.60 That said, in the Trail Smelter Arbitration of 1935 it had been held that a state could be held liable if it permitted the use of its territory by private individuals in a way that caused damage to another state.61 Article VI clearly lays international responsibility for national activities in outer space on a state party. This includes activities conducted by nongovernmental bodies as well as those conducted by state organs. The activities of non-governmental bodies must be authorised by the state of their nationality and be subjected to its continuing supervision. This sounds well, and in many instances is no doubt satisfactory. However, questions must now be raised as private enterprise enters space and seeks to incorporate and exercise its business activities in states that may lack the expertise, personnel or knowledge properly to discharge the responsibilities which Art. VI enunciates.62 The space activities of an international organisation must also comply with the provisions of the OST. Here the duty is laid on both the organisation and the OST parties that are its members. Article VII then takes these matters a little further providing for liability for damage caused by space activities. Trail Smelter depended partly on the long-standing failure of Canada to curb the activities of the smelter at Trail – a continuing nuisance, as it were. Space is different: any damage is likely to occur swiftly and may often be catastrophic. Space activities are inherently dangerous, so it is right that they should be properly supervised, and that liability should follow in the event of damage. However, should the liability attach to the actor, or to the authoriser/supervisor as well? The decision arrived at was that in space activities the authoriser/supervisor should be liable. Article VII therefore provides that a state is liable for damage caused to another state through its own space activities or of those subject to its jurisdiction, licensing and supervision. Such an extension of responsibility and liability of a state to damage caused by its nonstate entities is unusual in international law. It remains an important innovation in 58 �� Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 22 April 1968; 672 UNTS 119; 1969 UKTS 56, Cmnd. 3997; 19 UST 7570, TIAS 6559; 7 ILM 151; (1969) 63 AJIL 382. See Chapters 4 and 5. 59 �� B. Cheng, ‘Article VI of the 1967 Space Treaty Revisited: “International Responsibility”, “National Activities”, and “The Appropriate State”’ (1998) 26 J. Sp. L. 7–32. 60 �� A state is not liable for an accident caused by the careless driving of a private citizen national. 61 Trail Smelter Arbitrations (US v Canada) (1938 and 1941) 3 RIAA 1905–82. 62 �� See infra at n. 70.

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international law, although the provision of Art. VII has been further refined in the 1972 Liability Convention.63 That Convention, of course, only binds its parties, and has been ratified by fewer than the OST.64 There is therefore a quadruple regime for liability for space activities – that of the OST for its parties, that of the Liability Convention for its parties, one under ‘normal’ international law, should anyone care to try that avenue, and finally there might in appropriate instances be recourse to a remedy under a national law. Article VIII, repeating the terms of para. 7 of the 1963 Declaration of Space Principles, provides that in relation to objects carried on their registry states retain jurisdiction and control over objects launched as well as over any personnel onboard. A space object cannot be abandoned to become a res nullius. It remains the property of its state of registry.65 At the time that OST was drafted reference to the ‘registry’ both here and in Art. V was to an unidentified institution.66 Para. 1 of Part B of UN Res. 1721 (XVI) had called on states to inform COPUOS through the UN Secretary General of launches so that they might be registered, and para. 2 requested him to maintain such a public registry. There was, however, at this stage no formal requirement that states should establish their own registries. Whether the language of Art. VIII implies such a requirement is an interesting problem in treaty interpretation. The matter is made somewhat clearer (at least for its parties) by the Registration Convention of 1976.67 The final sentence of Art. VIII provides for the return of space objects found outwith the territory of their state of registry 63 �� Convention on International Liability for Damage Caused by Space Objects, 29 March 1972; 961 UNTS 187; (1974) UKTS 16, Cmnd. 5551; 24 UST 2389, TIAS 7762; (1971) 10 ILM 965; (1971) 66 AJIL 702. See Chapter 4. 64 �� As at 1 January 2008 the Liability Convention had 85 parties and a further 25 signatories. The OST had 99 parties and 25 signatories. 65 �� A small plaque beside the replica of the Viking I Mars Lander in the Smithsonian Air and Space Museum in Washington DC, affirms the US property right in the Lander located on Mars, NASA having transferred its ownership to the Smithsonian: http://www. nasm.si.edu/exhibitions/GAL100/viking.html. On 11 December 1993, at Sotheby’s New York as part of a sale of Russian space memorabilia, the Lunokhod-1 lunar rover (launched 10 November, landed 17 November 1970 on the Mare Imbrium Sea of Rains) was sold for US$60,000 (estimate US$5,000). The location of the object was stated as ‘resting on the surface of the Moon’. Sotheby’s and the consignor of the object for the sale undertook no obligation to deliver possession. Only the current title rights of the owner were sold, without assurance as to the claims of others, including possible salvagers. See P.D. Nesgos, UN COPUOS Symposium on Commercial Activities in Space, March 1994 (1994) 37 Proc. IISL 305–14 at 305–6; Sotheby’s Auction Catalogue ‘Russian Space History’, December 1993; D.H.R. Spennemann, ‘The Ethics of Treading on Neil Armstrong’s Footprints’ (2004) 20 Space Policy 279–90. 66 �� Reference point, n. 57. 67 �� Convention on the Registration of Objects Launched into Outer Space, 14 January 1975; 1023 UNTS 15; (1978) UKTS 70, Cmnd. 7271; TIAS 8480; (1975) 14 ILM 43. See Chapter 4.

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to that state. As we will see in Chapter 4, the duty as to return of objects was clarified for its parties the year after the OST by the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (ARRA).68 Curiously, however, although the first sentence of OST Art. VIII holds that a state of registry retains jurisdiction over a space object ‘and over any personnel thereof’ there is no reference in its final sentence to the position as to the return or rescue of astronauts – a matter ARRA clearly takes up, its title relegating the return of objects to last place. Given the development of space activities in subsequent years, major questions must be asked in relation to Arts VI, VII and VIII. There are several aspects. Simply, the language is not all that clear. As Bin Cheng has pointed out, a number of terms in Art. VI do not carry the clarity of meaning that might be thought to be desirable.69 Article VI imposes duties as to ‘licensing and supervision’. ‘Liability’ is the concern of Art. VII. ‘Jurisdiction and control’ exercised by a state of registry is a major element of Art. VIII and applies to both the space object and its personnel. Even if one takes the language as inclusively as possible, involving a number of states in the duties enumerated, there is the opportunity for one or other to evade, reckoning that something is someone else’s responsibility. And even if the system does ex facie work, it must be asked whether all states that enter upon space activities are competent to discharge their responsibilities.70 Have they the trained personnel, knowledge of the science and the skills properly to evaluate applications for licences, to scrutinise reports, and to confirm that all is well? And should there be a disaster, have they the funds to meet a claim for damages? ‘Flags of convenience’ are a well-known problem which has been alleviated, but not yet solved, by the 1984 UN Convention on the Law of the Sea and the 1986 UN Convention on Conditions for the Registration of Ships.71 Private enterprise already seeks out tax havens from which to conduct its space business. The matter of the corporate ‘veil’ may therefore be relevant. The beneficial (or real) ownership of an interest in a company or other entity engaged in space activities can be hidden. Entrepreneurs engaged in a space activity may conceal themselves – their identity – behind a sequence of ‘shell’ companies in order to avoid the supervision which 68 �� See supra n. 58. 69 �� Cheng, supra n. 59. 70 �� Some ‘small states’ see licensing space activities as a potential method of generating income. F. Lyall, ‘Small States, Entrepreneurial States and Space’ (2006) 49 Proc. IISL 382–90. 71 �� F. Lyall, ‘Expanding Global Communications Services’ Sess. III, Proceedings of the Workshop on Space Law in the Twenty-first Century, UNISPACE III Technical Forum, 63–80 at 69–71 on ‘flags of convenience’, and ‘Small States …’ supra n. 70. Cf. the ‘Convention on the Law of the Sea’, Montego Bay, 1984, 1833 UNTS 3; (1999) UKTS 81, Cm. 4524; (1982) 21 ILM 1261; ‘Convention on Conditions for the Registration of Ships’ (1987) 26 ILM 1232: National legislation in some countries has, to some extent, helped through setting standards of ship-worthiness and employment protection for shipping entering national waters.

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their real home state would/should be obliged to exercise by virtue of OST Art. VI or to secure by virtue of OST Art. VIII a more relaxed set of legal rules for the operation of their enterprise than their real ‘home state’ might impose. The ratio in the Barcelona Traction case might therefore be unfortunate.72 Perhaps (at least in relation to space) ‘lifting the veil’ should be considered.73 Articles IX, X and XI are mainly directed to the conduct of space activities. Co-operation and mutual assistance is called for in all three. By Art. IX the harmful contamination of the Moon and other celestial bodies is to be avoided, as are adverse changes to the environment of the Earth. Appropriate avoidance measures are to be taken.74 States are also to consult other states whose activities may be subject to ‘potentially harmfully interference’ by an activity or experiment it intends to pursue. This consultation is engaged in either by a state’s own volition (ex proprie motu) or at the request of a state that fears such interference with its activities. By Art. X a state engaging in space activities is to ‘consider on a basis of equality’ any request by another state to observe the flight of space objects it launches. By Art. XI states are required to inform the UN Secretary General, the public and the scientific community ‘to the greatest extent feasible and practicable’ of the ‘nature, conduct, location and results’ of their space activities. The UN Secretary General is to disseminate such information immediately and effectively, and, since it was established, does so through the Office for Outer Space Affairs. Certainly much information is published, but, of the nature of things we cannot know the impact of the test of feasibility and practicability. Although other articles have an application to activities on the Moon and other celestial bodies (particular the contamination and harmful interference provisions of Arts IX) Art. XII is sui generis in the Outer Space Treaty. Doubtlessly derived from Art. VII of the Antarctic Treaty,75 it provides for all ‘stations, installations, equipment and space vehicles on the Moon and other celestial bodies’ to be open to representatives of other parties ‘on a basis of reciprocity’. Reasonable notice is to be given to allow consultations, to allow maximum safety precautions to be taken and to avoid interference with the normal operations of the facility to be visited.76 We will return to the Moon and other celestial bodies in Chapter 7.

72 �� Barcelona Traction, Light and Power Co. Limited (New Application: 1962) (Belgium v Spain) (1962–1970) (Second Phase) 1970 ICJ 3. 73 �� See Chapter 4, towards the end of the discussion of the Registration Convention. 74 �� See Chapter 10. 75 �� Antarctic Treaty, supra n. 13. 76 �� Concerns would include the requirement for oxygen and other essential provisions, together with the capacity of an installation. We note that, in the film 2001: A Space Odyssey (1968), Russian access to US ‘Moon Base Clavius’ is refused on (spurious) health grounds. See also in Chapter 5, discussion of safety and ‘worst case’ problems.

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Elements of the Outer Space Treaty as Customary Law What is the relevance of the OST for states which are not parties to it? Or, what if a party to the Treaty were to avail itself of the provisions of Art. XVI, and withdraw from the Treaty upon the expiry of one year’s notice of denunciation? What if a signatory were to delete its signature?77 What if a party were to propose an amendment of the Treaty that would conflict with certain elements of it, notably with Arts I–III?78 Have any elements of the Treaty passed into customary law with the effect that they cannot be controverted by subsequent agreement or unilateral action? Have any of its obligations become principles of law erga omnes or even ius cogens? Are there principles of space law which cannot now be escaped from? The ideas of Arts I–III cannot be evaded if customary international law on these matters has formed. As stated in Art. 38 of the 1969 Vienna Convention on the Law of Treaties,79 which encapsulates general international law on this question, where a treaty ceases or where a state withdraws from a treaty, this does ‘not in any

77 �� A signatory to a treaty which has not yet ratified it is required to abstain from acts which would contradict the object and purpose of the Treaty: see Art. 18 of the Vienna Convention on the Law of Treaties of 1969 (1155 UNTS 331), which articulates the customary law on the matter. Cf. the withdrawal of the US signature from the Rome Statute of the International Criminal Court: see ‘International Criminal Court: Letter to UN Secretary General Kofi Annan’, US Department of State press release, 6 May 2002: available at www.state.gov./r/pa/prs/ps/202/9968pf.htm; the withdrawal of the US from the Anti-Ballistic Missile Treaty of 1972 effective 13 June 2002. Cf. also the withdrawal of the US from the compulsory jurisdiction of the ICJ in the light of its decision to take jurisdiction in the Nicaragua case (US Dept of State Bulletin, 18 January 1985); the US withdrawal from the Protocol giving the ICJ jurisdiction in relation to the Vienna Convention on Consular Relations in the light of the ICJ decision in Avena and other Mexican Nationals (Mexico v US) 2004 ICJ Rep. 12, which involved breach of the Convention and possible death penalties (March 2005) (see Chapter 2, p. 35); and the withdrawal of France from optional clause of the ICJ (1959) 8 ICLQ 735. 78 �� As is indicated in the later passages of the Bogota Declaration (supra at n. 39). The Declaration is discussed more fully in Chapter 9, p. 253. 79 �� Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331; (1980) BTS 58, Cmnd. 7964; 8 ILM 679; 63 AJIL 875 http://untreaty.un.org/ilc/texts/instruments/ english/conventions/1_1_1969.pdf. Although not all states have ratified this Treaty, it is believed that its statements as to these principles of international law and the interpretation of treaties articulate customary international law, and are not simply provisions applicable only as between its parties. However, R.R. Baxter was of the view that withdrawal can have an effect in modifying custom, since: ‘If enough states cease to be parties and go into the “opposition” customary international law will be changed thereby’ (‘Treaties and Custom’, 129 Hague Receuil 1970-I, 27–105 at 98). We would hope that there would not be such a withdrawal from the OST, at least by those whom its provisions most affect.

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way impair the duty of any State to fulfil any obligation contained in the treaty to which it would be subject under international law independently of the treaty’.80 These questions are not the speculations of academe, without further or real relevance. There are non-signatories to the OST which could afford independently to establish launching facilities and buy in technical expertise in order to venture into outer space. There are non-party countries which might be willing to lease territory for the construction of a space-port, and otherwise grant facilities through which entrepreneurs, hiding behind a framework of shell companies, might engage in space activities. Are such beyond the reach of the law, or would they be caught by the major elements of space law as we know it? We would argue that certain elements of the OST have passed into customary international law. At a minimum these are: that international law applies in outer space (Art. III), that outer space, including the Moon and other celestial bodies, is not subject to national appropriation by any means (Art. II), that outer space is free for exploration and use by all (Art. I), but such exploration and use is to be for the benefit of all (Art. I), that states are responsible for national activities and the activities of their nationals in outer space, that they are under a duty to authorise and a continuing duty to supervise such activities (Art. VI), and that states are liable for damage caused to other states by such activities (Art. VII). The years have seen considerable debate about the relationship between treaty and custom.81 Certainly it is possible that a treaty can put into formal words the 80 �� Cf. Art. 5 of the Vienna Convention on the Succession of States in respect of Treaties, Vienna, 23 August 1978, 1946 UNTS 4; (1980) BSP Misc. 1, Cmnd. 7760; (1978) 17 ILM 1488; 72 AJIL 971. to the same effect. As to the elaboration of the Convention by the International Law Commission, see Sir Arthur Watts, The International Law Commission 1949–1998: Vol. 2: The Treaties (Oxford UP, 1999) Part II, 609–826. 81 �� For example: R.R. Baxter – 1, ‘Multilateral Treaties as Evidence of Customary International Law’ (1967–8) 30 BYIL 275–300; and – 2, his ‘Treaties and Custom’, 129 Hague Receuil 1970-I, 27–105; M. Akehurst, ‘Custom as a Source of International Law’ (1974–5) 47 BYIL 1–54; A. D’Amato, ‘Manifest Intent and the Generation by Treaty of Customary Rules of International Law’ (1970) 64 AJIL 892–902; A. D’Amato, The Concept of Custom in International Law (Ithaca, NY: Cornell UP, 1971); T. Meron, ‘The Geneva Conventions as Customary Law’ (1987) 81 AJIL 348–370; M.E. Villiger, Customary International Law and Treaties (Amsterdam: Martinus Nijhoff, 1985), Chapter 5, ‘Generation of New Customary International Law’, 183–205; B. Cheng, ‘The Contribution of Air and Space Law to the Development of International Law’ (1986) 39 Curr. Leg. Prob. 181–210 (Cheng, 671–97); I. Brownlie, ‘General Course on International Law’ 255 Hague Receuil 1995, 9–227 at 36–50; and his Principles of Public International Law, 6th ed. (Oxford: Oxford UP, 2003), 12–14; J.I. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’ (1985) 56 BYIL 1–24; J.I. Charney, ‘International Agreements and the Development of Customary International Law’ (1986) 61 Wash. L. Rev. 971–96; L.B. Sohn, ‘The Law of the Sea: Customary International Law Developments’ (1984–1985) 34 Am. U. L. Rev. 271–80; L.B. Sohn, ‘Generally Accepted International Rules’ (1986) 61 Wash. L. Rev. 1073–80; V. Kopal, ‘Evolution of the Doctrine of Space Law’, in N. Jasentuliyana, ed., Space Law: Development and Scope (New York:

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content of law which already exists as customary international law. It is arguable that Art. 1 of the Paris Convention on Aerial Navigation, 1919,82 in which the High Contracting Parties ‘recognise that every Power has complete and exclusive sovereignty over the air-space above its territory’ is an example.83 Major portions of the 1982 UN Convention on the Law of the Sea84 and of the 1969 Vienna Convention on the Law of Treaties85 also fall into that category. However, there is the further possibility that a treaty can help ‘make’ international custom through the articulation of propositions that are or become binding on states which are neither parties to nor signatories of the treaty. This is also not purely a matter of academic discussion or theory. As noted above, it is contained in Art. 38 of the 1969 Vienna Convention on the Law of Treaties, and has figured in argument before the International Court of Justice, as well as being discussed in various of its judgements of which the leading instance is the North Sea Continental Shelf Cases of 1969.86 There the argument of Denmark and The Netherlands was that Praeger, 1992) 17–32; T.L. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’ (1985) 26 Harv. Int. L.J. 457–82; A. Terekhov, ‘U.N. General Assembly Resolutions and Outer Space Law’ (1997) 40 Proc. IISL 87–107 [Lyall/Larsen 101–11]; C.L. Carr and G.L. Scott, ‘Multilateral Treaties and the Formation of Customary International Law’ (1997) 25 Denv. J. Int. L. and Pol. 71–94. 82 �� Convention on the Regulation of Aerial Navigation, Paris, 1919, 11 LNTS 173; 1922 UKTS 2, Cmnd. 1609; 1 Hudson Int Leg 359; (1923) 17 AJIL Supp. 195. 83 �� The wording quoted from Art. 1 indicates that the principle of state sovereignty was applicable not only to the Parties to the 1919 Paris Convention. Before the First World War there was no such general agreement. See J.C. Cooper, ‘The International Air Navigation Conference, 1910’, in J.C. Cooper, Explorations in Aerospace Law, 105–24 and J.C. Cooper ‘State Sovereignty in Space, 1910–1914’, in J.C. Cooper, Explorations in Aerospace Law, 126–36. 84 �� UN Convention on the Law of the Sea, 1982, 1833 UNTS 3; (1982) 21 ILM 1261–354, as amended by the ‘Agreement to Implement Part XI of the Law of the Sea Convention’, UNGA Res. 48/263 (1994) 33 ILM 1309; (1999) UKTS 81, Cmnd. 4524 (Treaty) and (1999) UKTS 82, Cmnd. 4525 (Part IX Amendment); see conveniently, The Law of the Sea, United Nations Convention on the Law of the Sea (New York: UN, 1997). 85 Supra n. 79. 86 North Sea Continental Shelf Cases, 1969 ICJ Rep. 1, Cf. Baxter – 2, supra n. 81, at 61–9 on this Case, and 57–74 generally on ‘Multilateral Treaties as Constitutive of New Customary Law’. Discussions on lines similar to what follows, although not directed towards space law as such are: H.W.A. Thirlway, ‘The Sources of International Law’, in M.D. Evans, ed., International Law (Oxford: Oxford UP, 2003) 117–44 at 134–6; and his, ‘The Law and Procedure of the International Court of Justice 1960–1989 (Part Two)’ (1990) 61 BYIL 1–134 at 97–8 dealing with ‘Growth of a Customary Rule Subsequently to a Convention’; Sir Robert Jennings and Sir Arthur Watts, eds, Oppenheim’s International Law, 9th ed., Vol. I, ‘Peace’ (London: Longman, 1996) Part 1, 25–31 (§ 10) on ‘Custom’ and 31–6 (§ 11) on ‘Treaties and Custom’; A. Cassesse, International Law (Oxford: Oxford UP, 2001) at 120 and referring back to 63–4, considers space law as an area in which customary international law has been formed inter alia by the relevant UN Resolutions

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the equidistance rule for division of the continental shelf articulated in Art. 6 of the 1958 Geneva Convention on the Continental Shelf had passed into custom and therefore bound Germany even though Germany was not a party to the Convention. Although declining so to hold in the particular instance, the Court, together with some of the judges who filed separate or dissenting opinions, was clear that a suitably drawn treaty can indeed form the basis of a rule of general international law. Paragraph 71 of the Judgement (as also the first sentence of para. 72) indicates that the relevant provisions of such a treaty must be of a fundamentally normcreating character, or at least have that potential. Where that is the case, then according to para. 71 such a provision, although only conventional or contractual in its origin [passes] into the general corpus of international law’ and is ‘accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognised methods by which new rules of customary international law may be formed.

However, para. 71 concludes with the warning: ‘At the same time this result is not likely to be regarded as having been attained’. According to the Judgement, various elements fall to be considered as part of any process of a conventional rule attaining customary status. These include the lapse of time between the coming into force of the relevant treaty and the point at which international customary law is alleged to have appeared,87 whether nonparty states have objected to the treaty-rule being sought to be categorised as one and the Outer Space Treaty. Curiously Cassesse also cites the Moon Agreement of 1979 as formative of custom, but its lack of success militates against that since it does not meet the ICJ requirements to which we are coming. Cf. G.M. Danilenko, Law-Making in the International Community (Dordrecht: Martinus Nijhoff, 1993) 203–10; H.W.A. Thirlway, International Customary Law and Codification (The Hague: Kluwer, 1972) particularly ‘International Law through the United Nations’, 61–79; Scott and Carr, supra n. 81 ad fin. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 1 ICJ Rep. at 256–7 (paras 75–80) (1996) 35 ILM 869, the Court states that the Hague and Geneva treaties on the Law of Armed Conflict (LOAC) are now part of customary international law. At para. 219 of its Judgement in the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), 2005 ICJ Rep. 1 (2006) 45 ILM 277, the Court refers to certain of the Hague Regulations annexed to Convention IV on the Rules and Customs of War of 1907 (36 Stat. 2277, TS 539, 1 Bevans 631) on bombardment and pillage and on the duties of an occupying power as having become or articulating customary law. 87 North Sea Continental Shelf Cases, 1969 ICJ Rep. Judgement, para. 74. In the Case the periods of time involved were held to be too short. The date of the Judgement was only ten years since the Continental Shelf Treaty had been signed and just five years since it had come into force. The ICJ actions had been brought only three years after the Treaty

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of custom,88 and the numbers and nature of the states party to the treaty. Here the 1969 Judgement is immensely helpful in considering concepts of the OST. Paragraph 73 begins: With respect to the other elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that, even without the passage of any considerable period of time, a very wide-spread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected.

The Court noted that, in the instance of the North Sea Continental Shelf, the level of ratifications of the 1958 Convention was not considerable, and that for a number of states to whom participation was not open, or who, by reason of being landlocked, the matter was of no interest. However: ‘That non-ratification may sometimes be due to factors other than active disapproval of the convention concerned can hardly constitute a basis on which positive acceptance of its principles can be implied: the reasons are speculative, but the facts remain’. As to the matter of time, para. 74 of the Judgement ad med. observes: Although the passage of only a short period of time is not necessarily, or not of itself, a bar to the formation of a rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected should have been both extensive and virtually uniform in the sense of the provision invoked; – and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.

The time between the conclusion of a treaty and some of its principles becoming customary law can therefore be short. It is again indicated that those states most affected by such a potential customary rule should demonstrably comply with it if it is to be considered as a rule of law, as opposed to a mere practice. That leaves the question whether these state parties to a treaty containing a ‘general normcreating’ provision are obeying the treaty or a new rule of customary law. The last sentence just quoted from the 1969 Judgement does not help us. Obviously there is recognition of a rule or legal obligation, but is that a ‘general recognition’? came into force for its parties, and less than one year had elapsed between its coming into force and the breakdown of negotiations between the parties to the case. 88 �� J.I. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’ (1985) 66 BYIL 1–24; T.L. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’ (1985) 26 Harv. Int. L.J. 457–82.

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Here reference to dissenting opinions in the 1969 Case can help. Judge Lachs in considering the creation of custom in Part III of his Judgement89 agreed with the Court majority that a treaty provision can indeed form the basis of a general rule binding on non-parties. He also indicated that ordinarily a long period of time may well be required for the establishing of a new rule of customary as opposed to treaty law. But, he went on: However, the great acceleration of social and economic change, combined with that of science and technology, have confronted law with a serious challenge: one it must meet, lest it lag even farther behind events than it has been wont to do.

Then, very germane to the argument as to space law and the OST, Judge Lachs cited the freedom of access to space above air-space as a clear example of the way in which a rule of customary international law can swiftly develop.90 In his dissent Judge Sorenson took a similar line. At pp. 233–4 of the ICJ Report he took up the question of the length of time needed for the creation of custom, and noted that the Court had previously held that only a short time might be required, based only upon recent state practice. He stated: This is particularly important in view of the extremely dynamic process of evolution which the international community is engaged in at the present stage of history. Whether the mainspring of this evolution is to be found in the development of ideas, in social and economic factors, or in new technology, it is characteristic of our time that new problems and circumstances incessantly arise and imperatively call for legal regulation. In situations of this nature, a convention adopted as part of the combined process of codification and progressive development of international law may well constitute, or come to constitute the decisive evidence of generally accepted new rules of international law. The fact that it does not purport to be simply declaratory of existing customary law is immaterial in this context. The convention may serve as an authoritative guide for the practice of States faced with the relevant new legal problems, and its provisions thus become the nucleus round which a new set of generally recognised legal rules may crystallize. The word ‘custom’, with its 89 North Sea Continental Shelf Cases, 1969 ICJ Rep., Diss. Op. Lachs, 219–40 at 225–32. 90 �� Cf. Sir Gerald Fitzmaurice, ‘A new rule of customary law based on the practice of States can in fact emerge very quickly, and even almost suddenly if new circumstances have arisen that imperatively call for legal regulation – though the time factor is never wholly irrelevant’ – ‘The Law and Procedure of the International Court of Justice, 1951–54: General Principles and Sources of Law’ (1953) 30 BYIL 1–70 at 31. That Sir Gerald made this throwaway but intriguing comment while actually discussing Historic Rights, does not diminish a potential application to space law.

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It is true that in the quoted paragraph Judge Sorenson was writing of the 1958 Continental Shelf Convention, a treaty that had been elaborated through the procedures of the International Law Commission (ILC). The OST was developed through COPUOS, a rather different body with, perhaps, not the complex legal background or expertise of the ILC. However, COPUOS does operate (in the main) by consensus,92 and certainly did so in the elaboration of the OST. The whole process from the establishing of COPUOS to the final draft of the OST took less than a decade. The ILC acts on the basis of years of gathering and sifting state practice, and by the need to consolidate and codify existing law. COPUOS was entering into a new area of law with only some General Assembly Resolutions and the work of a very few academic studies to help guide. Nonetheless, what Judges Lachs and Sorenson write of the 1958 Law of the Sea Convention can apply to elements of the OST. They meet the criteria set out by the Court itself, and by separate opinions in the North Sea Continental Shelf Cases of 1969. Amongst commentators, L.B. Sohn expressed the view that, in the case of the later 1982 Law of the Sea Convention, new norms of customary international law might well be readily developed through the negotiation of general international treaties.93 This view was attacked by J.I. Charney as perhaps unduly liberal an attitude, and fraught with the difficulty that the Law of the Sea negotiations certainly did not necessarily clearly appear in the Travaux Preparatoires.94 While not wholly discounting the possibility that custom could be so developed, Charney preferred to stick with international custom established by the traditional means. He advised caution in considering any suggestion that a rule of custom has been established arising out of a treaty provision. One might agree with that general approach, but the principles of space law enshrined in the OST may well be examples of precisely such an occurrence.95 91 �� As to this last sentence, cf. M. Mendelson, ‘The Subjective Element in Customary International Law’ (1995) 66 BYIL 177–208. 92 �� See Chapter 2. 93 �� L.B. Sohn, ‘The Law of the Sea: Customary International Law Developments’ (1984–5) 34 Am. U. L. Rev. 271–80. Cf. P. Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77 AJIL 413–42. 94 �� J.I. Charney, ‘International Agreements and the Development of Customary International Law’ (1986) 61 Wash. L. Rev. 971–96 at 991–6. At n. 88 Charney notes that much of the negotiation of the Law of the Sea Treaty took place ‘off the record’. The COPUOS negotiations of the OST were comparable. 95 �� Cf. V.S. Vereshchetin and G.M. Danilenko, ‘Custom as a Source of International Law of Outer Space’ (1985) 13 J. Sp. L. 22–35 [Lyall/Larsen 113–26]. M.S. McDougal, ‘The Emerging Customary Law of Space’ (1965) Nw. U. L. Rev. 625; cf. H.H. Almond, Jr, ‘General Principles of Law – Their Role in the Development of the Law of Outer Space’ (1986) 57 U. Colo. L. Rev. 871–83. Treaty morphing into custom may be seen

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What should not be counter-argued is that the Outer Space Treaty was only the traditional package deal. Although the text was arrived at by consensus within COPUOS, and is clearly based upon the General Assembly ‘space resolutions’, the OST was not a codification and consolidation of already existent concepts of law adopted by a general conference where the overall ‘package’ is the result of compromise of existing interests by the several states party to it. In the codification/ consolidation case a rule of customary law may be articulated in treaty form, but other rules agreed by the conference are based on ‘bargain’, their terms being formed to reflect compromise rather than opinio juris. Such treaties do not readily form ‘custom’. By contrast the 1967 OST was, as Lachs might have said, the intelligent foreseeing of the need for legal regulation of a new set of problems and was a major attempt to lay down ground rules for the future worked out by a group of experts and then submitted to the General Assembly for its action. There may have been an element of compromise of interest in some of its terms, but the fundamental principles of space law were considered largely prospectively in an absence of existing rule, albeit with the harbingers of the General Assembly Resolutions.96 As at 2008 there is a high level of ratifications of the OST – ninety-nine out of a UN membership of one-hundred and ninety-one. With the exception (arguably) of North Korea, the ratifying states include all the space-active, and (with the same exception) at present all the space-competent states. By far the vast majority of the states whose interests are affected by the Outer Space Treaty are parties to it. In addition twenty-five signatory states are bound by their signatures not to act contrary to the basic thrust of the Treaty.97 State practice is extensive, and appears to be virtually uniform – there is freedom of access to space, no objections to overflight by satellites, no territorial claims (by states at least) to the Moon or other celestial bodies, and no military use of space (at least in an aggressive meaning of ‘military use’).98 As for the matter of lapse of time, the OST has been in force elsewhere: C.L. Carr and G.L. Scott, ‘Multilateral Treaties and the Formation of Customary International Law’ (1996) 25 Denv. J. Int. L. and Pol. 71–94, and their ‘Multilateral Treaties and the Environment: A Case Study in the Formation of Customary International Law’ (1998–1999) 27 Denv. J. Int. L. and Pol. 313–35. However, cf. L.F.E. Goldie, ‘A Note on Some Diverse Meanings of “The Common Heritage of Mankind”’ (1983) 10 Syr. J. Int. L. and Com. 69–112, and Kelly, infra n. 96. 96 �� See H. Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989 (Part Two)’ (1990) 61 BYIL 1–134 at 98–102 discussing ‘the significance of conventions: voting, participation and the “package deal”’ together with materials there cited. J.P. Kelly, ‘The Twilight of Customary International Law’ (1999–2000) 40 Va. J. Int’l L. 449–543 broadly argues that the traditional concept of ‘custom’ is now inadequate, and that treaty agreement on the basis of full discussion is preferable. However, the broad principles of the OST would seem to lie precisely within such a notion. 97 �� See Art. 18 of the Vienna Convention on the Law of Treaties and supra n. 77. 98 �� Cf. ‘The Space Millennium: Vienna Declaration on Space and Human Development’ adopted by the Plenary Meeting of the Third United Nations Conference on the Exploration

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since 1967. Lastly there has been no formal objection to the OST. In this instance no ‘persistent objector’ argument can really stand.99 Perhaps some of the emergent nations might include it among the ‘law’ that existed before they did, and hence were not concerned in its making,100 but the argument is strong that it forms part of the corpus of the legal system in which they have come into being. Further support for the proposition that elements of the OST have passed into customary international law can be found from the various Resolutions of the General Assembly which deal with space, notably those adopted after the OST.101 Indeed the Space Resolutions (or some of them) may in the future in effect be treated as sources of law in themselves.102 However for present purposes we are and Peaceful Uses of Outer Space, Vienna, 30 July 1999 (A/CONF.184/6 30 July 1999), the Preamble of which inter alia recognises ‘that active support for space activities is expressed in the observance by States and by international organisations of the provisions of the outer space treaties’. Other paragraphs refer to other particular aspects of space law. The text is available at www.oosa.unvienna.org/unisp-3/res/html/vienadecl.html. 99 �� The signatories of the Bogota Declaration (supra n. 39) did state a view that Art. II of the OST did not apply to the geostationary orbit, but even they conceded that satellites in orbit other than on the GSO were travelling in outer space. This is not a real objection to the non-sovereignty principle. 100 �� This point is made in the Bogota Declaration (supra n. 39). 101 �� See Chapter 2 – ‘UN Resolutions’. 102 �� See previous note and: A. Terekhov, ‘U.N. General Assembly Resolutions and Outer Space Law’ (1997) 40 Proc. IISL 87–107 [Lyall/Larsen 101–11]; C.Q. Christol, ‘The United Nations and the Development of International Law – Unanimous Resolutions of the General Assembly Dealing with Outer Space’ (1965) 23 Proc. Inst. of World Affairs, reprinted in his Space Law – Past, Present and Future (Deventer: Kluwer, 1991), 311–28; J. Castaneda, ‘Valeur juridique des resolutions des Nations Unies’, 129 Hague Receuil 1970I, 205–332; also his The Legal Effect of UN Resolutions (New York: Columbia UP, 1969); famously, B. Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’ (1965) 5 Ind. J. Int. Law 23 (rep. Cheng 125–49); S.M. Schwebel, ‘The Effect of Resolutions of the U.N. General Assembly on Customary International Law’ (1979) 73 Proc. ASIL 301–9; L.B. Sohn, ‘The Impact of Technological Changes on International Law’ (1973) 30 Wash. and Lee L. Rev. 1–18 at 6–10. H. Thirlway, ‘The Sources of International Law’, in M.D. Evans, ed., International Law (Oxford: Oxford UP, 2003) 117–44 at 141 notes that in the Nicaragua Case, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits, Judgement, 1986 ICJ Rep. 14, the International Court made some reference to General Assembly Resolutions, but chose not to characterise these as a source of law, holding at para. 184: ‘The mere fact that States declare their recognition of certain rules is not sufficient for the Court to consider these as part of customary international law and as applicable as such to these States’. Thirlway comments that had the Court considered General Assembly Resolutions as a creative source of law independent of custom it would have taken that opportunity in the Nicaragua Case. Cf. the whole concept of ‘soft law’: O. Schachter, ‘The Twilight Existence of Nonbinding International Agreements’ (1977) 71 AJIL 296–304; M. Ferrazzani, ‘Soft Law in Space Activities’, in G. Lafferanderie, ed., Outlook on Space Law over the Next Thirty Years (The Hague: Kluwer, 1997) 429–47.

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content here to cite them only as buttressing the argument as to the development of a customary nature for certain provisions of the OST. Finally, the space treaties adopted after the OST also provide evidence of the customary nature of certain of its elements. The argument is the same as that for the post-OST UN Resolutions. The Space Treaties proceed on the basis that outer space requires regulation within the general framework of law established by the OST. To take recent examples, the revised International Satellite Organisation Agreement (ITSO)103 and the International Mobile Satellite Organisation Agreement (IMSO),104 as well as various co-operation agreements and Memoranda of Understanding relating to space activities all proceed on the basis of the general principles of space law. Practice under such agreements and understandings conforms to the statements as to principle contained in the OST. Both practice and opinio juris are present since the various parties clearly recognise that compliance with these principles is the way to proceed and act accordingly. Of course for these arguments much depends on what one understands by a ‘rule of customary international law’ and how its existence is to be seen.105 Obviously the matter could be closed were the International Court formally to state in a contentious case that certain elements of the OST do have customary status and are therefore binding on all states whether or not they are parties to the Treaty. Short of that we point to various official statements made at the time the UN General Assembly adopted the OST.106 We point to the affirmations of the United Nations Resolutions prior to the Treaty. We point to the virtually unanimous adoption without vote of three of the post-OST Resolutions. Equally, and perhaps more importantly, we look to what states have done – and not done – to state practice. After all, to quote the exact terms of Art. 38.1.b of its Statute, the International Court of Justice is to apply ‘international custom, as evidence of a general practice accepted as law’. The ‘general practice’ is fundamental, but the Statute provides no guidance indicating how it is to be identified as ‘accepted’. Practice is the whole basis of custom. In an article already referred to, Sir Gerald Fitzmaurice, then Legal Adviser to the UK Foreign Office and himself later a distinguished Judge of the International Court, commented on the dissenting 103 �� See Chapter 11. For ITSO text see: www.itso.int. 104 �� Amended Convention of the International Mobile Satellite Organisation (IMSO (INMARSAT)) (1999) XXIV AASL 477–506, or www.imso.org. See Chapter 11. 105 �� There is often a difference of approach discernible between those whose legal background is a code-based legal system, and those from common law systems, just as there is between legal positivists and those that allow a greater role to ‘natural law’. The former tend to want to see equality between practice and formally expressed opinio juris, while the others are more content to rely on practice and deduce opinio from silence. 106 �� These statements, as well as others made at the time the other UN Space Treaties were adopted, can conveniently be found in the Commemorative Edition of United Nations Treaties and Principles on Outer Space published on the occasion of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE III), A/CONF.84/BP/15.

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opinion of Judge Read in the Anglo-Norwegian Fisheries Case of 1951. Read had said: ‘Customary international law is the generalisation of the practice of States’ and had gone on to suggest that the essential element of custom was state practice rather than formal declarations and the like. Fitzmaurice observed: While this point of view must probably not be pressed so far as to rule out the probative value, and the contribution to the formation of usage and custom, of State professions in their various forms (legislation, declarations, diplomatic statements etc.), it is believed to be a sound principle that, in the long run it is only the actions of States that build up practice, just as it is only practice (‘constant and uniform’, as the Court has said) that constitutes a usage or custom, and builds up eventually a rule of customary international law.107

Sir Gerald was writing of an international custom developing, as it were, independently: we are considering custom begotten by treaty. When one puts state practice in relation to space alongside the UN Space Resolutions, the OST and the other space agreements, the MOUs, working arrangements, etc., it is difficult to conclude other than that the fundamental principles of the OST are indeed now custom, and as such bind all states. However, such argument can be taken one step further. There is no real evidence of any ‘persistent objector’.108 There is therefore considerable strength in the argument of Carl Q. Christol that the fundamental principles of the OST now come into the category of ius cogens, principles of law that cannot be receded from, any attempt to legislate to the contrary being void.109 Non-signatories of or withdrawers from the OST cannot avoid its fundamental obligations, and buccaneering entrepreneurs cannot dodge its provisions by sophisticated devices, shell companies and appropriate contracts. Suggestions that they can are misleading chimeras, but it is important for the future of the exploration and use of space as well as that of space law that these chimeras be clearly seen to be such. Bluntly, we consider that there is no lawful method by which the broad principles of the Public International Law of Space can be circumvented. Doubtless in the future new agreements will have to be worked out for aspects of the commercial and private exploitation of space, but the major rights and duties of states that comprise the framework of space law in its public international aspect are clear both under the OST and now under customary international law.

107 �� G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–54: General Principles and Sources of Law’ (1953) 30 BYIL 1–70 at 68. 108 �� In any event the ‘persistent objector’ does not destroy the general principle of customary law objected to. It merely means that that objector is not bound by it. Cf. supra nn. 81 and 88. 109 �� C.Q. Christol, ‘Judge Manfred Lachs and the Principle of Jus Cogens’ (1994) 22 J. Sp. L. 33–45.

Chapter 4

Space Objects: Control, Registration, Return and Liability – The Treaties and the Practice Introduction Three UN treaties, the Agreement on the Rescue and Return of Astronauts (ARRA) of 1968, the Liability Convention of 1972 and the Registration Convention of 1975, expand the provisions of the Outer Space Treaty of 1967, giving for their parties a degree of precision to the rights and duties of states in the exploration and use of space which it had set out. These treaties are now decades old and are capable of improvement, but, with the exception of the ITU documents within its specialised area, they remain the sources of law on major issues. Later chapters will deal with particular uses of space: these conventions provide the responsibilities, the boundaries and the main constraints on state activity. The Moon Agreement of 1979 and questions of celestial bodies require a separate chapter. Here we will deal with space objects, reserving the question of astronauts for separate treatment in Chapter 5. ARRA therefore figures in this chapter only with regard to its technical provisions and as it relates to questions of space objects. We take the material in the order of the control, registration and return of space objects and liability for damage which they may cause before turning to the space stations. In terms of the treaties, that is in effect the relevant content of the OST, the Registration Convention, 1975, ARRA of 1968 and the Liability Convention of 1972. This chronoclastic order exposes and allows appreciation of the overall structure of law that these treaties compose. The literature tends to consider them individually. Separate consideration has its attractions since the ratifications of these treaties vary both as to number and as to parties, and, of course commentators dealt with them as they were adopted or tend to write about each in particular. Nonetheless it is desirable to see the overall package. The formation of space law has been an innovation in international law, bringing together the different and sometimes divergent legal traditions of the world to cope with new problems in a way that the formulation of earlier international law did not. Older �� As will be seen below at n. 17, it is still competent to ‘register’, in terms of UNGA 1721 (XVI). �� To repeat citations from Chapter 1, see: M. Lachs, ‘Thoughts on Science, Technology and World Law’ (1992) 86 AJIL 673–99; C.W. Jenks, – 1 ‘International Law and Activities

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international law emerged over decades and more or less within a fairly coherent set of legal traditions and expectations. Space law has developed in a world where many legal systems, methods of argument and debate and divergent interests have had to be melded together to cope with rapidly evolving technologies. However, together these elements have brought a body of law into being. The current UN space treaties were adopted within a decade and a half. In considering them we also note the UN Resolution on Nuclear Power Sources of 1992, since it interacts with liability and the use of space, although it also figures in consideration of the space environment in Chapter 10. It is vital that there is this overall structure of law to be described. Space activities are dangerous, subject themselves to possibly catastrophic failures, on occasion potentially devastating to others. While an accident on launch may be confined to the territory of a launching state, ex hypothesi it is likely that in many instances another state may be involved. It is therefore important that space activities are the subject of rules and an inter-connecting set of agreements more precise than the principles of the OST. How responsibility should be established for supervision, for ‘ownership’ at the state level and for liability in the case of damage or devastation needed clarification. What is going on should be the subject of common and accurate knowledge so as to avoid difficulties and to establish the connection between an occurrence and its author. Astronauts should be rescued. Space objects should be ‘returned to sender’ or at least ‘returnable to sender’. The 1967 Outer Space Treaty on Principles and the 1968 Agreement on Rescue and Return of Astronauts both required ratification by the US, the USSR and the UK for their coming into force. In that the US and USSR were the spacecompetent states of the time, that ensured that they were part of the package of ‘new law’, but this device has been abandoned for the later space treaties. For the Liability and Registration Conventions and the Moon Agreement, five ratifications by any states sufficed to bring them into force. The three treaties comprising the ‘package’ dealt with in this chapter have now been in force for many years. The Registration Convention and the Liability Convention each have a provision calling for the consideration of its revision to in Space’ (1956) 5 Int. Law Quart. 99–114; – 2 ‘The New Science and the Law of Nations’ (1968) 17 ICLQ 327. See also the argument towards the end of Chapter 3 as to elements of the OST as now being customary law. �� Again cf. A.E. Gottleib, ‘The Impact of Technology on the Development of Contemporary International Law’, 170 Hague Recueil 1981-I, 115; J.L. Charney, ‘Technology and International Negotiations’ (1982) AJIL 78; J.A. Bosco, ‘International Law regarding Outer Space: An Overview’ (1990) 55 J. Air L. and Comm. 609. �� ‘Principles Relevant to the Use of Nuclear Power Sources in Outer Space’, 14 December 1992. UNGA Res. 47/68; (1993) 32 ILM 917. �� OST Art. XIV 2 and 3; ARRA Arts 7 2 and 3. �� Liability Convention, Art. XXIV.3; Registration Convention, Art. VIII.3; Moon Agreement, Art. 19.3.

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be put on the provisional agenda of the UN ten years after it came into force. No revision has been formally undertaken. In both instances the UN did ‘review’ the Convention, but did not go on to revision. That could indicate that these treaties are satisfactory, or that there is indifference as to their contemporary suitability, or simply that other matters have taken the attention of the international community. Of these explanations the last appears most cogent. An alternative, however, could be that to re-open them would be to open the proverbial can of worms and end up with an unacceptable mess. It is unlikely that anything approaching unanimity or consensus would be arrived at were these matters to be re-negotiated. As will be seen, the numbers of ratifications and of signatures of the Space Treaties in general, and in particular the three we here consider, vary greatly. To an extent that falsifies our attempt to consider them as a package, but even granted that point, the implementation of the package is the way forward for space law. In its dealing with the annual reports of COPUOS the General Assembly regularly recommends that all states sign and ratify the UN Space Treaties, but for some years exhortation did not have much effect. Recent years are more reassuring. It would be good (and indeed one would hope) that as more states enter upon space activities their signature and ratification and implementation of the Space Treaties will become the norm. Responsibility, Control and Jurisdiction The fundamental principles as to responsibility for space activities, the control to be exercised over them and jurisdiction in such matters are contained in OST Arts VI and VIII. By OST Art. VI a state bears international responsibility for its own and the activities of its nationals in outer space. The activities of nongovernmental entities are to be duly authorised and to be subject to continuing supervision by the appropriate state. Responsibility for activities by an international organisation is to be borne by that organisation and states parties to the OST that are its members. A state party to the OST on whose registry an object is launched into space retains jurisdiction and control over the object and any personnel (OST Art. VIII). Appropriate registration is therefore important, and the requirements of Art. VIII have been extended by the Registration Convention. Ownership of �� Registration Convention, Art. X; Liability Convention, Art. XXVI. �� ‘Question of the review of the Convention on International Liability for Damage Caused by Space Objects’, UNGA Res. 37/91, 10 December 1982; ‘Question of the review of the Convention on the Registration of Objects launched into Outer Space’, UNGA Res. 41/66, 3 December 1986. Both Resolutions conclude with an exhortation to states to ratify or accede to the Conventions, as do later GA resolutions on the annual COPUOS reports. �� The Annual Report of the IISL Standing Committee on the Status of International Treaties relating to Activities in Outer Space now presents a table of alterations in the level of signatures and ratifications from 1999. See (2007) Proc IISL, and succeeding years.

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a space object is not affected by its launch into space (OST Art. VIII). Similarly the ownership of a space object constructed elsewhere than on Earth is unaffected by that origin (OST Art. VIII). There is no suggestion that a state or other entity can divest itself of obligations in relation to space objects by their abandonment. In short, we believe that a state cannot cease to be ‘responsible for’ or avoid any correlative duties by abandoning a space object.10 Some might argue that under the international law of treaties such provision applies only to parties to the OST. It is difficult to accept such a suggestion, although, particularly in relationship to space debris, an ‘owner’ may be difficult to find. The generality of the rules as to the use of space would be needlessly compromised were a state able to avoid its obligations by a process of abandonment.11 Registration Registration of space objects is largely catered for by the Convention on the Registration of Objects Launched into Outer Space of 1975.12 When an object is launched into space, it should be registered on at least two of three registers. It should be entered on a register maintained by the state of launching as defined in the Registration Convention (Art. I). In addition it should be entered on one of two registers maintained by the UN Office for Outer Space Affairs (OOSA), the one a listing of launches provided to COPUOS under UN Res. 1721 (XVI) 1961, and the other maintained in terms of the Registration Convention itself.13 Internationally this last is the most important, allowing the identification of at least one of the states involved in the launch of a space object. It has other purposes, but this entry is important for grounding responsibility, for ‘ownership’, for the exercise of control and in the worst case, for liability. The concept of an official register for various purposes is old. In most countries information as to the ownership of immoveable property is compiled on an official register.14 Many types of mobile property are similarly dealt with. 10 �� In theory territory may be formally abandoned. ‘Abandonment’ of territory may also be inferred. We are unaware of any consideration of the formal abandonment of ‘things’ as opposed to ‘objects’ in international law. 11 �� See also Chapter 10. 12 �� Convention on the Registration of Objects Launched into Outer Space, 14 January 1975; 1023 UNTS 15; 1978 UKTS 70, Cmnd. 7271; TIAS 8480; (1975) 14 ILM 43. C.M. Dalfen, ‘Towards an International Convention on the Registration of Space Objects: The Gestation Process’ (1971) 9 Can. YBIL 252–68; Christol 213–45; Cheng 286–356, updating I Manual 83–172. 13 �� See ‘Practice of States and International Organizations in Registering Space Objects: Background Paper by the Secretariat’ (COPUOS), A/AC105/C.2/L.255 + Corr. 1 and 2 (2005). 14 �� The general public registers of title to land in Scotland go back to 1617, replacing a less formal but public system that dates from the thirteenth century for most parts of

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Vehicles are registered (licensed), as are ships15 and aeroplanes.16 It was therefore not surprising that in Part B of UNGA Res. 1721 (XVI) of 20 December 1961 the General Assembly called on states to ‘furnish information promptly’ to COPUOS ‘for the registration of launchings’, and requested the Secretary General to maintain a public register of the information received, and this has been done.17 Two years later paras 7 and 9 of the 1963 Declaration on Space Principles refer to a state having a registry of ‘objects launched into outer space’ and to the ‘state of registry’ of a ‘space vehicle’. However, it took a further thirteen years for the idea of registration of space objects fully to emerge in treaty form setting out the data to be registered.18 In the meantime OST Art. VII had, without further explanation, provided that a ‘State Party to the Treaty on whose registry an object launched into outer space is carried’ retains jurisdiction and control over it and its personnel. The Convention on Registration of Objects Launched into Outer Space was adopted by Resolution 3235 (XXIX) of the General Assembly of the United Nations on 12 November 1974, and opened for signature on 14 January 1975 in New York.19 As provided for by its Art. VIII. 3, it entered into force on 15 September 1976. The Depositary is the Secretary General of the United Nations (Art. XII). Scotland. Entry on the land register gives a title valid against all-comers. Curiously land registers are not public in all states. 15 �� Cf. Art. 5 of the Convention on the High Seas, Geneva, 29 April 1958, 450 UNTS 82; 1963 UKTS 5, Cmnd. 1929; 13 UST 2312, TIAS 5200; (1958) AJIL 842; and Art. 91 of the UN Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3; 1999 UKTS 81, Cm. 4524; (1982) 21 ILM 1261; US Tr. Doc. 103–39. Note: Convention on Conditions for the Registration of Ships, 7 February 1986, UN Doc. TD/RS/CONF/19/ Add.1; (1987) 26 ILM 1229, 1236. 16 �� Cf. Art. 6 and Annex A, Convention on the Regulation of Aerial Navigation, Paris, 13 October 1919, 11 LNTS 173; 1922 UKTS 2, Cmd. 1609; 1 Hudson 359; 13 Martens (3d) 61; (1923) 17 AJIL Supp. 195: Arts 17–21, Convention on International Civil Aviation, Chicago, 7 December 1944 (1944) 15 UNTS 295; 61 Stat. 1180, TIAS 1591; (1953) UKTS 8, Cmd. 8742; 9 Hudson 168; 3 Bevans 944; (1945) 39 AJIL Supp 111; ICAO Doc. 7300/9, 2006, and ‘Aircraft Nationality and Registration Marks’, Annex 7 to the Convention. 17 �� Information so supplied is published by COPUOS in the A/AC.105/INF series, available on the OOSA website, http://www.unoosa.org/oosa/en/SORegister/index.html. So far (2007) twenty-eight states have registered data under the Convention procedure. A defect of the Res. 1721 procedure is that it does not require the detail that the Convention does, although some states notifying under it do provide that information. Thus the Italian notification for the ITALSAX F2 (A/AC.105/INF.400) of 26 November 1996 contains data on the weight of the satellite and uplink and downlink frequencies used. 18 �� The first suggestion of international and national registries for spacecraft appears in Arts 6 and 7 of the suggested ‘Project of an International Convention on Space Law’, in M.S. Smirnoff, ‘The Role of the IAF in the Elaboration of Norms of Future Space Law’ (1959) 2 Proc. IISL 147–55 at 150–2. C. Dalfen, ‘Towards an International Convention on the Registration of Space Objects: The Gestation Process’ (1971) 9 Can. YBIL 252–68. 19 Supra n. 12.

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As its full title indicates, the Registration Convention provides for the registration of objects launched into outer space in a formal official registry maintained by a relevant state. It also provides for a central world register with open public access to be maintained by the UN Secretary General (Art. III). These national and international registries create means and procedures to assist in the identification of space objects additional to any other means of identification that may exist. This mandatory system therefore allows space objects to be identified both for the purposes of planning a launch and equally (or more) importantly as a means by which space objects that have caused damage may be traced to their launching states.20 Registration also establishes a link between a space object (and any personnel aboard) and a particular state for the purposes of jurisdiction, control and the return of astronauts set out in Arts V and VIII of the OST. Article I of the Convention defines the terms it employs. The term ‘launching state’ means (1) a state that launches or (2) procures the launching of a space object or (3) a state from whose territory or (4) from whose facility a space object is launched (Art. I(a)). It is therefore conceivable that for the purposes of the Convention the ‘launching state’ may be connected with the actual launch in one of four ways. Whether this is entirely satisfactory under modern conditions is, as we will see, a question. The term ‘space object’ is defined to include the component parts of a space object as well as its launch vehicles and parts thereof (Art. I(b)). This latter definition is important since it means that debris may be included within the compass of the Convention.21 The term ‘state of registry’ is defined to mean a launching state on whose registry a space object is carried in accordance with the Convention (Art. I(c)). By Article II it is the duty of a launching state to maintain a registry of space objects, and to enter a space object which it has launched into Earth orbit or beyond on that registry.22 A launching state is required to inform the Secretary General of the United Nations of the establishment of such a registry (Art. II. 1).23 By Art. II. 2 20 �� While technically the Registration Convention applies only as between parties to it, one may hope that, should a non-party state suffer damage from or by a space object, the procedures of the Convention would allow it to identify which states or states might have caused the damage. Cf. also Art. XXI of the Liability Convention 1972 discussed below. 21 �� A number of notifications relate to ‘debris’ from satellite launches and deployments. See, for example, notifications by the US by Notes Verbale of 1977 (ST/SG/SER.E/5) and 2004 (ST/SG/SER.E/449), both available on the OOSA website. 22 �� See n. 18. Note that the duty to register emerges ‘[w]hen a space object is launched into earth orbit or beyond’ (Art. II.1). Prospective registration or the registration of a failed launch does not happen. An entry on the register is deleted when the object is no longer in Earth orbit (Art. IV.3). 23 �� So far (2007) fourteen states and two international organisations have so notified: Canada, 1976; US 1977; Russian Federation (formerly USSR) 1978; Japan 1983; India 1987; Germany (formerly FDR) 1988; Ukraine 1995; Czech Republic (subsuming Czechoslovak data from 1993) 1996; Argentina 1996; Australia 2003; France 2004; China 2005; ESA 1983; and EUMETSAT 1998. The list and text of such notifications is on the

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where two or more launching states are involved with the space object they are to determine between themselves which one it to enter the object on its register.24 This could be important in two circumstances. First, OST Art. V para. 1 requires the return of astronauts to the state of registry of their space vehicle.25 Second, by OST Art. VIII the state party to the OST on whose registry an object launched into outer space is carried ‘retains jurisdiction and control over such object, and over any personnel thereof, while in outer space or celestial body’. However Art. II. 2 of the Registration Convention acknowledges that other agreements may be concluded among launching states as to jurisdiction and control over a space object and over any personnel thereof. The arrangement for the International Space Station is an obvious example. Article 5.1 of the 1998 Intergovernmental Agreement on the International Space Station provides that each Partner in the enterprise is to register the flight elements that it provides, the European Space Agency being the agent for the European Partner in this matter.26 The actual content of a domestic space registry and the conditions under which it is maintained and kept up-to-date is a matter for the state maintaining that particular registry (Registration Convention, Art. II. 3). The UN Secretary General maintains a separate register to which there is full and open access (Registration Convention, Art. III. 1 and 2). States are required as soon as practicable to send to the Secretary General particular information as to a space object which they have registered (Art. IV. 1). In practice this requirement may set minima for the content of a state register since at least that information is likely to be included amongst the data in the state register.27 The basic information which has to be sent to the UN registry comprises OOSA website in the ST/SG/SER.E/INF series. Other countries may not have notified the existence of a relevant register. Thus the UK, which maintains a Register under the Outer Space Act 1986, and duly notifies OOSA of entries on it, does not appear formally to have notified the UN of the existence of its Register. 24 �� Cf. Art. 10 of the Framework Agreement between the Government of the United States of America and the Government of the French Republic for Cooperative Activities in the Exploration and Use of Outer Space for Peaceful Purposes, 2007 (2006) 32 J. Sp. L. 447–63, under which agreement will be reached as to which party will register each object to be launched under the Agreement. 25 �� Curiously ARRA requires the return of objects or astronauts to the relevant ‘launching state’. 26 �� For the Space Stations see below following n. 156 27 �� Some states record a great deal in their national registers. For example, by Art. 5 of its National Decree no. 125/95, ‘Establishment of the National Registry of Objects Launched into Outer Space’, Argentina registers the following information: (1) If the object has been launched jointly with one or more other launching States, the international conventions concluded with such State or States; (2) an appropriate designator of the space object; (3) anticipated date and territory or location of launch; (4) anticipated basic orbital parameters, including: (a) nodal period, (b) inclination, (c) apogee and (d) perigee; (5) anticipated general function of the space object; (6) name and address of the owners and/or

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(a) the name of the launching state or states; (b) an appropriate designator of the space object or its registration number; (c) the date and territory or location of the launch; (d) the basic orbital parameters including (i) the nodal period,28 (ii) the inclination,29 (iii) the apogee30 and (iv) the perigee31 of the orbit; and (e) the general function of the space object. In addition, since a major purpose of the Registration Convention is the identification of a space object, Art. V provides that, when a space object launched into Earth orbit or beyond is marked with a designator or registration number or both, the state of registry is to notify this datum to the Secretary General when submitting the basic information required under Art. IV.1.32 It is also open to a notifying state to provide additional information should it so wish (Art. IV.2).33 Correlative to the duty to notify an entry in the registry, a state is required to notify the Secretary General ‘to the greatest extent feasible and as soon as practicable’ of space objects already notified to the Secretary General but which are no longer in Earth orbit (Art. VI.3).34 operators of the space object; (7) identification of the firms participating in the construction of the space object and of its launch vehicle; (8) identification of the launch service provider; (9) information on the insurances arranged; (10) identification of the party responsible for exercising control over the space object; (11) location and characteristics of the satellite tracking, telemetry and command (TTC) station and of the master or tracking station, if applicable; (12) on-board transmission power and frequencies of the space station; (13) mass of the space object; (14) anticipated useful life of the space object; (15) precautions taken with regard to non-pollution of outer space, including celestial bodies, in particular whether mechanisms have been provided for placement in a transfer orbit at the end of the useful life of the space object; (16) anticipated date of disintegration, recovery or loss of contact with the space object; (17) identifying mark located on non-disintegrable parts. By Art. 6, when the mission of a registered space object is complete, or at the end of its useful life, or it is disabled by accident or otherwise such that it is unfit for further use, that information is also recorded in the Register. [Source: unofficial translation in National Legislation and Policy: Selected Texts, compiled for the UN/Nigeria Workshop on Space Law, November 2005, available at OOSA website.] The Smirnoff text of 1959 (n. 18) Art. 4 called for data on the spacecraft, place and exact time of flight, its duration and aim. 28 �� How long the object takes to complete one orbit. 29 �� The angle between the plane of the orbit and the plane of the ecliptic stated in degrees, 90° being a polar orbit. 30 �� The high point of the orbit. 31 �� The low point of the orbit. 32 �� Art. 6 of the 1959 ‘Project of an International Convention on Space Law’ Art. 6 would have required clear nationality markings on spacecraft: supra n.18. 33 �� Thus the European Space Agency has taken to providing data on the radio frequency plan being used by space objects which it notifies. See the relevant entries in the ST/SG/SER.E/INF series on the OOSA website. Cf. n. 27 supra. 34 �� For example, Note Verbale of 18 February 2004 from The Netherlands, that a former INTELSAT and later New Skies satellite is no longer in geostationary orbit: A/ AC.105/824. Notwithstanding Art. IV.3, the UN Register still carries data on non-Earthorbiting space probes such as Pioneers 10 and 11: see A/AC.105/INF.255 and 275.

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The UN Register was established on 16 November 1976 following the coming into force of the Convention,35 and is maintained by the UN Office of Outer Space Affairs, located in Vienna. Notifications under the Convention are contained in the ST/SG/SER.E series.36 OOSA has developed a practice of also including in the Register (with appropriate colour coding and square bracketing) data on space objects that have not been formally notified to it, but of which it is aware. This latter data is unofficial. In addition, as noted above, it is still competent for a state to notify a launch to OOSA citing Part B of UN Res. 1721 (XVI).37 Notifications under this procedure are recorded in the A/AC.105/INF series in a practice which ante-dates the coming into force of the Registration Convention. OOSA therefore maintains two registers, the Convention Register and the Resolution Register, which complement each other but need not contain the same data. To an extent this disparity can be partially solved if states re-submit for the purposes of the Registration Convention data already reported under UN Res. 1721 (XVI), but this practice is patchy. Indeed it is possible for the same object to appear on both the 1721 Resolution and the Convention Registers, its launch being on the former, and a change of status being on the latter. One cannot help feeling that a single Register providing the same data for all launches and objects in space would be an improvement.38 OOSA itself mitigates the problem by displaying entries on the two together on its website. While one function of the international Register is the provision of information which states may use on planning their own launch activities, another major use of the Register might be the identification of space objects which have caused damage. However, the published information may be insufficient for identification in a particular case.39 Article VI of the Convention therefore provides that where the information thus publicly available has not enabled a state party to identify a space object which has caused it damage, or which may be of a hazardous or deleterious nature, other parties to the Convention, including those with space monitoring and tracking facilities, have a duty to respond ‘to the greatest extent feasible’ to a request by either the state party or the UN Secretary General for assistance. The state requesting help is ‘to the greatest extent feasible’ to provide information as to the time, nature and circumstances of the events giving rise to 35 �� See ‘Establishment of a Register under the Convention on Registration of Objects Launched into Outer Space: Note by the Secretary-General’, ST/SG/SER.E/INF.1. 36 �� See: http://www.unoosa.org/oosa/en/SORegister/index.html. 37 �� As noted above, para. 1 of UNGA 1721 (XVI) called on states to provide launch information to COPUOS through the UN Secretary General so that launchings could be publicly registered. Para. 2 asked the Secretary General to maintain such a public register. 38 �� ‘Practice of States and International Organizations in Registering Space Objects: Background Paper by the Secretariat’ (COPUOS). A/AC105/C.2/L.255 + Corr. 1 and 2 (2005). 39 �� Cf. L. Perek, ‘The 1976 Registration Convention’ (1998) 47 ZLW 351–360; and his ‘Basic Problems in Space Traffic’ (2003) 46 Proc. IISL 322–31.

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the request. This allows assisting states to use their facilities to project backwards from the events concerned to work out the probable launch site for the space object. Such assistance is not necessarily free, but is to be provided under ‘equitable and reasonable conditions’. The last sentence of Art. XI provides that ‘arrangements under which such assistance shall be rendered shall be the subject of agreement between the parties concerned’. So far there have been no cases. Mutatis mutandis the references to states in the Registration Convention are deemed to be apply to an inter-governmental organisation conducting space activities if the organisation declares its acceptance of the rights and obligations of the Convention, and provided also that a majority of state members of the organisation are state parties to the Convention and to the OST (Art. VII.1). State members of any such organisation, which are party to the Convention, are to take all appropriate steps to ensure the organisation makes such a declaration (Art. VII. 2). Naturally the inclusion of inter-governmental organisations within the Convention excludes the ability of the organisation to sign or ratify the Convention, to propose amendments to it or withdraw from it (Arts VII–XII) – such powers are matters for states alone (Art. VII.1). Regrettably as of 2008 only two organisations had accepted the Convention, the European Space Agency (ESA) in 1983 and the European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT) in 1998.40 It is competent for any state party to propose amendments to the Registration Convention. Such amendments enter into force for those accepting them when a majority of the state parties accept the proposal. Thereafter each remaining state party is bound by an amendment when it accepts it (Art. IX). It is undesirable for a Convention such as the Registration Convention to exist in many forms, as the provisions of Art. IX might make possible: a succession of diverse amendments would mean that different states might be bound by different versions of the Convention and its amendments. Fortunately no amendments have so far been proposed. Withdrawal from the Registration Convention is competent, becoming effective one year after appropriate notice being given to the Depositary the UN Secretary General (Art. XI). So far no state has done so, and that is good, but, per contra, it is disappointing to find that as at 1 January 2008 only fifty-one states had ratified the Registration Convention with another four states having signed but not yet ratified it.41 As noted, the General Assembly regularly recommends that all states sign and ratify the UN Space Treaties including the Registration Convention, but progress in this case seems very slow, especially now that many

40 �� Both organisations provide data on entries in their registers to the UN Register. 41 �� Standing Committee on the Status of International Agreements Relating to Activities in Outer Space of the International Institute of Space Law, Annual Report 2007 Proc. IISL. Brazil and Italy ratified in 2005; Algeria, Lebanon, Montenegro and Turkey in 2006.

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states are procuring launches of their own satellites.42 It is also disappointing that as noted only two international organisations (ESA and EUMETSAT) have so far accepted its rights and obligations. Ten years after the Convention entered into force in 1976 the possibility of its revision was duly included in the provisional agenda of the United Nations General Assembly (Art. X), but this timetabled ‘review’ was decided against.43 Now the revision of the Convention may be considered at the request of onethird, and with concurrence of a majority of its state Parties. In that case a review conference would be convened which would take into account any relevant technological developments including those relating to the identification of space objects (Art. X). Were a general Space Convention ever to be adopted,44 the content of the duties under the Registration Convention should certainly be improved as part of that codification. So far there has been no formal review of the Registration Convention and there is an argument that in practice many of the defects or problems of the Convention are or could be solved by the development of national laws rather than through its revision.45 Alternatively useful changes could be made administratively to the administration of the registration procedures. A major step will have been taken if the Recommendations adopted by the UN General Assembly in December 2007 (UNGA Res. 62/101) are implemented in national requirements.46 These address some of the criticisms we had made in an earlier stage of this chapter and are directed towards the harmonisation of state practice with respect to the Convention.47 The orbital data provided could be made more precise.48 Thus operative para. 2 (a) of UNGA Res. 62/101 recommends that states could notify, where appropriate, any Committee on Space Research (COSPAR) international designator, use Coordinated Universal Time as the time reference for the date of launch, and utilise kilometres, minutes and degrees as the standard units 42 �� As noted supra n. 17, as at 2007 twenty-eight states have notified data to OOSA. 43 �� ‘Question of the review of the Convention on the Registration of Objects launched into Outer Space’, UNGA Res. 41/66, 3 December 1986. 44 �� See Chapter 18. 45 �� K.-U. Hörl and J. Hermida, ‘Change of Ownership, Change of Registry? Which Objects to Register, What Data to Furnish, When and Until When?’ (2003) 46 Proc. IISL 454–63 [Lyall/Larsen 263–72]. 46 �� ‘Recommendations on enhancing the practice of states and international intergovernmental organisations in registering space objects’, UNGA Res. 62/101, 17 December 2007: http://www.unoosa.org/pdf/gares/ARES_62_101E.pdf. These are based on App. III to the Report of the COPUOS Legal Subcommittee on its 46th Sess. March/ April 2007, which contains the conclusions of a Working Group on the Practice of States and International Organisations in Registering Space Objects – A/AC.105/891. 47 �� The Preamble to INGA Res. 62/101 (Noting) that nothing in the Conclusions of the Working Group or the Resolution itself ‘constitutes an authoritative interpretation of or a proposed amendment to the Registration Convention’. 48 �� See Hörl and J. Hermida, supra n. 45. Cf. Finch, infra n. 58.

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for basic orbital parameters, as well as providing any useful information relating to the function of the space object additional to the general functionality that the Registration Convention asks for. Paragraph 2(b) then suggests that additional information could also be provided such as to any geostationary orbit location if appropriate, any change of operational status (including when a space object is no longer functional49), the approximate date of decay or re-entry if states can provide accurate information, and as to the date and physical conditions of the moving of a space object to a disposal orbit. The sub-para then recommends that states provide web links to official information on space objects that they notify. With the development of commercialisation and private enterprise in space, a problem has emerged which the Registration Convention did not have in contemplation.50 Could a ‘launching state’ which carried a space object on its registry transfer its responsibilities? This has implications both for international trade and commerce in space assets, and for the rights and duties of states.51 As a matter of practice transfers between registries do occur. AsiaSat1 and 2 and Apstar-I and IA were transferred from the UK registry to China as part of the transfer of Hong Kong to China.52 This created no difficulties as China was the territorial launch site, but the transfer of INTELSAT satellites to Dutch company New Skies NV was a different matter. Following the transfer the OOSA registry displayed information as to them in square brackets and highlighted them in green, the method OOSA uses to indicate that the data is known to OOSA but has not been officially provided under the Registration Convention.53 A Dutch Note to OOSA of 29 July 2003 refers to this and specifically disclaims The Netherlands being subject to the Registration Convention, the Liability Convention or ARRA in respect of these satellites while accepting that The Netherlands is, as the national state of New Skies NV, responsible for their operation under OST Art. VI and for

49 �� Some states already provide such data: cf. the OOSA ST/SG/SER.E series. 50 �� K.-H. Böckstiegel, ‘The Term “Launching State” in International Space Law’ (1994) 36 Proc IISL 80–83; K.-U. Schrögl and C. Davies, ‘A New Look at the “Launching State”: The Results of the UNCOPUOS Legal Subcommittee Working Group “Review of the Concept of the ‘Launching State’” 2000–2002’ (2002) 44 Proc. IISL 286–301. 51 �� M. Gerhard, ‘Transfer of Operation and Control with Respect to Space Objects – Problems of Responsibility and Liability of States’ (2002) 51 ZLW 571–81. See also Chapter 14. 52 �� See the entries for AsiaSat 1 (1990-030A) and AsiaSat 2 (1995-064A) in the OOSA Registry, together with UK Note Verbale of 27 March 1998: ST/STG/SER.E/333, and related Note Verbale by China, ST/STG/SER.E/334, both covering all four satellites. 53 �� According to its website, OOSA gets its unofficial information from the media, from official press releases, from the Committee on Space Research (COSPAR) and from the World Warning Agency for Satellites which publishes the ‘SpaceWarn Bulletin’: http:// nssdc.gsfc.nasa.gov/spacewarn/. See also ‘Satellite Industry Links: http://www.satellitelinks.co.uk/directory/wwas.html. Other amateur publications also publish satellite data.

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exercising jurisdiction and control under OST Art. VII.54 This illustrates a problem for the utility of the concept of ‘launching state’ or ‘launching authority’ in ARRA and the Liability and Registration Conventions under the circumstances of modern commercial space activities. The difficulty produces a logical anomaly. The national state of the owner of a satellite should carry the satellite on a domestic registry and show up as such in the OOSA register.55 The implementation of the recommendations of UNGA Res. 62/101 would help.56 Its operative para. 4 accepts that changes in registry happen and suggests that, following the change in supervision of a space object in orbit, the state of registry, in co-operation with the appropriate state under OST Art. VI, should notify additional information, such as the date of change in supervision, the identity of the new owner or operator, and any change of orbital position or function of the space object.57 Some problems remain. The central register at OOSA should be more swiftly informed of the required data. A brief scan of the OOSA register shows that many states report late: some report every six months, which is scarcely timeous, and others have been even later. Indeed were the Convention to be revised, one improvement would be a proper time-table within which notifications to OOSA should be made.58 Again, it would be useful to strengthen the identification of a space object under Convention Art. V by requiring that all the larger detachable parts of space objects should have identifiers, designators or an adequate registration number stamped or otherwise contained, embossed or engraved on them, and not only on one or two places on an object, which is the current practice.59 This might assist in a case of a claim for damages. 54 �� Note Verbale of 29 July 2003 from The Netherlands: A/AC105/806 as to satellites 2002‑019A and 2002-057A; http://www.unoosa.org/pdf/reports/ac105/AC105_806E.pdf. Cf. Note Verbale of 18 February 2004 from The Netherlands: A/AC.105/824 as to the removal of 1988-040A from geostationary orbit; http://www.unoosa.org/pdf/reports/ac105/ AC105_824E.pdf. See also the OOSA Registry data on these objects. The Netherlands is party to OST, ARRA, the Liability and the Registration Conventions. 55 �� Thanks to commercial agreements and financial transactions, there is now the possibility of the multiple ownership of a satellite by national entities from several states. We suggest that the largest owner be the ‘appropriate’ owner whose home state should act, and that in the event of equality the home states of the ‘owners’ agree which state will act, on the model of Art. II.2 of the Registration Convention. 56 Supra n. 46. 57 �� This would appear to ratify the actions of the UK and The Netherlands, supra nn. 52 and 54. 58 �� E.R. Finch, Jr, ‘Heavenly Junk II: Recent Developments in Space Debris’ (1994) 8 Air and Sp. L. 8, proposed a limit of two hours within which a report of a launch of a nuclear power source would have to be made to the UN Secretary General and a further limit of twenty-four hours for the reporting of other satellite launches. 59 �� Cf. Art. 17.1 of the Russian Federation Law on Space Activities, 1993: ‘Space objects of the Russian Federation shall … have markings certifying their appurtenance to the Russian Federation’. The Law is translated in Project 2001: Workshop on Legal

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The Convention requires that only one of potentially several ‘launching states’ is to enter a space object on its domestic register, and notify the requisite data to the central world registry.60 This leaves open the possibility that the link between the state of registry and the actual owner/operator of a space object may not be very strong. In that OST Art. VII links the jurisdiction and control over space objects (as well as their return) if lost to the state of registry, the selection of the state of registry could be important. The international community has encountered difficulties with the registry system in international shipping and the concept of the ‘flag of convenience’.61 A ‘genuine link’ between a state and a space object is desirable to forestall commercial entrepreneurs seeking to avoid the rigours of legal requirements as to supervision and liability through setting up shell companies in countries less space-competent than others.62 Tracing back through such arrangements is possible – nowadays we do so routinely to deal with terrorism, organised and trans-national crime, money-laundering and tax evasion. The ‘corporate veil’ should be disregarded where buccaneering entrepreneurs seeking to avoid the supervision which their real ‘home state’ might well exercise try to find a less rigorous ‘home’ for the licensing and supervision of their activities. In space the highest standards should be required in the interests of all. States which meet such standards ought to establish space registers,63 but those incapable of fully discharging their international obligations of supervision and control should refrain from acting as states of registry and their attempts to do so should not Framework for Privatising Space Activities, Vienna, 1999 (Cologne: Inst. of Air and Space Law, 2000) 249–60, and Project 2001 Workshop on Legal Framework for Commercial Launch and Associated Services, Bremen, 2000 (Cologne: Inst. of Air and Space Law, 2001) 313–24. 60 �� Operative para. 3 of ‘Recommendations on Enhancing the Practice of States and Intergovernmental Organisations in Registering Space Objects’, UNGA Res. 62/101, 17 December 2007, suggests that intergovernmental organisations should work out which state member should register, that states that are launcher states by virtue of the use of their territory or facilities should co-ordinate agreement as to the ‘launcher’ for Convention purposes, and that in joint launches each space object should be separately registered. Further, launch service providers should encourage clients to ensure that relevant states register space objects. 61 �� Cf. F. Lyall, ‘Expanding Global Communications Services’, Sess. III, Proceedings of the Workshop on Space Law in the Twenty-first Century, UNISPACE III Technical Forum, 63–80 at 69–71. 62 �� There is an argument that at least in such areas the ratio of Barcelona Traction, Light and Power Co, Limited (New Application: 1962) (Belgium v Spain) (1962–1970) (Second Phase) 1970 ICJ 3, (1970) 9 ILM 227, should be departed from. Cf. F. Lyall, ‘Small States, Entrepreneurial States and Space’ (2006) 49 Proc. IISL 382–90; L. Perek, ‘Strengthening the Registration Convention’ (1985) 28 Proc. IISL 187; cf. the UN ‘Convention on Conditions for the Registration of Ships’, Geneva, 7 February 1986 (1987) 26 ILM 122. 63 �� Cf. UNGA Res. ‘Application of the concept of “Launching State”’, UNGA 59/115, 10 December 2004.

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be given recognition. ‘Flags of convenience’ in space should be unlawful, but even under the existing rules, it would be useful were those states that currently maintain registers of space objects to comply more diligently and accurately with their Registration Convention duties. A related set of questions arises from the concept of ‘launching state’ in the Registration Convention. Article I provides two categories of association with a given enterprise that can constitute a state as a launching state, the one entrepreneurial – launching or procuring the launch – and the other territorial – launch from state territory or facility.64 These may have been satisfactory when the Convention was young, and for many purposes they remain adequate. However, launches nowadays may be very complex. SeaLaunch is but one example.65 In that particular instance the arrangements between the partner-entrepreneurs make their activities subject to US law,66 but other partnership arrangements may be more obscure – perhaps even deliberately. Again, when is a state a ‘procuring’ state? If a sub-contractor provides a part for a mechanism within a satellite, is its national state thereby a procuring state? In instances of complex entrepreneurial arrangements, and/or of multi-national involvement in a launch object, the possibility arises (as indicated above) for a ‘state of registry’ to be selected so as to choose a regime whose competence is not up to the proper exercise of the jurisdiction and control of OST Art. VIII. Finally we must come to the question as to whether the Registration Convention remains useful without substantial revision even with implementation of the recommendations of UNGA Res. 62/101 of 2007. In the light of the above comments, the answer must be equivocal.67 First, the Convention remains in many ways unproven. It has not yet been used to determine whether a particular object

64 �� See also the arrangements for Baikonour: M. Bjornerud, ‘Baikonour Continues: The New Lease Agreement between Russia and Kazakhstan’ (2004) 30 J. Sp. L. 13–36. 65 �� A. Kerrest, ‘Launching Spacecraft from the Sea and the Outer Space Treaty: The Sea Launch Project’ (1998) 23 Air and Sp. Law 16–21 [Lyall/Larsen 333–8], and his ‘The Launch of Spacecraft from the Sea’, in G. Lafferanderie and D. Crowther, eds, Outlook on Space Law over the Next 30 Years (The Hague: Kluwer, 1997) 217–33; J.J. Lee, ‘Legal Analysis of Sea Launch License: National Security and Environmental Concerns’ (2008) 24 Space Policy 104–12. 66 �� Agreement between the Government of the United States of America and the Government of Ukraine regarding International Trade in Commercial Launch Services, 1995, US State Dept Bull. 96–51; 1996 WL 195515; (1996) 24 J. Sp. L. 187–9. (This Agreement expired in 2001.) 67 �� L. Perek, ‘The 1976 Registration Convention’ (1998) 47 ZLW 351–360; M. Bourely, ‘Is it Necessary to Re-Negotiate the Convention on Registration?’ (1988) 30 Proc. IISL 231; Y. Zhao, ‘Revising the 1975 Registration Convention: Time for Revision?’ (2004) 11 Aust. Int. L.J. 106–27; A.J. Young, Law and Policy in the Space Stations Era (Dordrecht: Nijhoff, 1989) 271–91.

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which has caused damage is traceable to a particular state.68 Second, it is clear that not all launches are notified in accordance with its terms, though this may improve.69 Third, some notifications are not made as timeously as is desirable. The latter criticisms mean that the UN Register is not a reliable source of data for those planning launches. The Master International Frequency Register maintained by the ITU might be more helpful, albeit it does not contain data as to debris and other space objects that are not radio stations.70 Unsurprisingly therefore informal arrangements now exist under which some at least of the potential launching states notify each other of some impending launches and exchange data as to the related space objects. While one objective of these arrangements is the avoidance of false alarms as to a nuclear attack, another effect is that states can plan their activities while in possession of relatively up-to-date data.71 Perhaps the future lies along those informal mutual lines rather than the cumbersome procedures of registration with the UN. If not, the Registration Convention should be amended or administrative practice developed to supplement it. A central registration and exchange point for intended launches as well as the timely notification of actual launches would be useful. Of course this raises the spectre of the ‘phantom satellite’ that plagued the ITU procedures,72 and so the principle of ‘first come, first served’ should not be available in such a development. The Return of Space Objects The aphorism ‘what goes up must come down’ is not necessarily true for space objects. However, most objects launched into low Earth orbit (LEO) are likely to return to Earth in due course.73 Other objects may be brought back deliberately, as 68 �� So far as we understand the matter, objects ‘found’ and returned to their ‘owners’ have so far been identified by information on the object, not by the use of the Convention to calculate their probable origin. 69 �� Some military satellites are not registered. 70 �� See Chapter 8. 71 �� S.C. Larrimore, ‘International Space Launch Notifications and Data Exchange’ (2007) 23 Space Policy 172–9; cf. R. Cargill Hall, ‘Comments on Traffic Control of Space Vehicles’ (1965) 31 J. Air L. and Comm. 327–42. See also ‘The Hague International Code of Conduct against Ballistic Missile Proliferation’, 2002 (HCOC) under which state subscribers to the Code notify each other in advance of launches into outer space or test flights giving detail of the planned launch notification window, the launch area and the planned direction of the launch (Art. 4.a.iii): http://www.acronym.org.uk/docs/0211/doc13. htm. See also www.armscontrol.org. 72 �� F. Lyall, ‘Paralysis by Phantom: Problems of the ITU Filing Procedures’ (1997) 39 Proc IISL 187–93. Tightening the requirements of notification under the ITU procedures has diminished the problem. See Chapter 8. 73 �� The useful life of a LEO satellite is about five years, and most re-enter the atmosphere within ten years. See Chapter 9.

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in the de-orbiting of Sky-Lab and Mir, or the return of the Shuttle, ESA or Russian spacecraft. Again, a launch may be unsuccessful, and a space object may get lost either on Earth or in space. This section therefore considers the legal provision for the return of space objects. Of course a spacecraft might well have personnel onboard. Were we dealing with the space treaties seriatim we would now turn to the complete Agreement on the Rescue and Return. However, the topic of ‘astronauts’ deserves a chapter to itself. Accordingly here we will outline the formal terms of ARRA and its provisions that relate to the return of space objects. Astronauts we deal with in Chapter 5. The Agreement on the Rescue of Astronauts, Return of Astronauts and the Return of Objects Launched into Outer Space (ARRA) was adopted by the UN General Assembly on 19 December 1967 (UNGA Res. 2345 (XXII)), opened for signature on 22 April 1968 and entered into force on 3 December 1968.74 As will be seen in Chapter 5, a major impetus for ARRA was the imminent increase in the activities of astronauts, the uncertainty of space technology and therefore the potential need for their rescue. However, associated with that was the question of space objects. Initially it was thought that liability for damage should also be covered in the same instrument but, as it became clear that that topic would require protracted negotiations, liability was sidelined and ‘rescue and return’ dealt with as a priority.75 Its Preamble states that ARRA was designed to ‘develop and give further concrete expression’ to certain duties imposed on parties to the OST. The OST had called for the rendering of all possible assistance to astronauts in the event of accident, distress or emergency landing and the prompt and safe return of astronauts (OST Art. V) as well as a duty to return objects launched into outer space (OST Art. VIII). ARRA is open to all states (Art. 7.1), its depositaries being the UK, the USSR and the US (Art. 7.2). Ratification by the depositaries and two 74 �� Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 22 April 1968; 672 UNTS 119; 1969 UKTS 56, Cmnd. 3997; 19 UST 7570, TIAS 6559; (1968) 7 ILM 151; (1969) 63 AJIL 382. P.G. Dembling and D.M. Arons, ‘The Treaty on Rescue and Return of Astronauts and Space Objects’ (1967–1968) 9 William and Mary L. Rev. 630–63; R. Cargill Hall, ‘Rescue and Return of Astronauts on Earth and in Outer Space’ (1969) 63 AJIL 197; P.H. Houben, ‘Agreement on the Rescue of Astronauts, the Return of Space Objects’ (1968) 15 Neth. Int. L. Rev. 121–32; R.S.K. Lee, ‘Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space’ 1 Manual 53; Cheng 265–85; Christol 152–212. 75 �� Dembling and Arons, supra n. 74 at 631; P.G. Dembling and D.M. Arons, ‘Space Law and the United Nations: The Work of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space’ 1966 32 J. Air L. and Comm. 329–86, details the work of the first four sessions of the COPUOS Legal Sub-committee which considered rescue and return. Houben (n. 74) at 121–2 credits the USSR with taking the initiative and its willingness to compromise, based on its potential need for the rescue of its astronauts in parts of the globe to which it did not otherwise have ready access.

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other governments was essential for its entry into force, thus binding the then space-competent nations into the Agreement (Art. 7.3). Accession to ARRA takes place immediately on deposit of an appropriate notice with the depositaries (Art. 7.4). Amendments to the Agreement may be proposed by any state party and an amendment enters into force for state parties accepting the amendment when it is accepted by a majority of the state parties and thereafter for each remaining state party when it accepts that amendment. Withdrawal from the Agreement is competent, taking effect one year after the giving of written notification to the different depository governments (Art. 9). As of 1 January 2008 ninety states had ratified ARRA, a further twenty-three having signed but not yet ratified.76 ARRA distinguishes between the duties owed by contracting parties to the personnel of a spacecraft and those in relation to a space object. The latter term includes but is not necessarily confined to a spacecraft (i.e. a space object capable of carrying an astronaut), encompassing also ‘component parts’ (Arts 5 and 6). ARRA uses the term ‘launching authority’, a more concise and restricted formulation than that of ‘launching state’ found in the Liability or Registration Conventions. By Art. 6 the ‘launching authority’ is the state responsible for the launching of an object or in appropriate cases the inter-governmental organisation concerned in the launch provided that the organisation has accepted rights or obligations provided for under the Agreement and that a majority of its member states are parties to ARRA and to the OST.77 ARRA therefore is not in harmony with the Liability or Registration Conventions. Its phrase ‘state responsible for launching’ (Art. 6) is highly ambiguous. The definition of ‘launching State’ in the Liability and the Registration Convention represents an advance, particularly the former, whose Art. 1 (b) provides that ‘“launching” includes attempted launching’ – a circumstance where accident is likely. Much of ARRA is about the rescue and return of astronauts, and therefore we reserve that detail to Chapter 5. However, the circumstances of ‘rescue’ may well involve a spacecraft – that is a space object. Even if a ‘rescue’ operation is unsuccessful, the search might find a space object, or parts of a space object. Accordingly we here outline ‘rescue’ elements which would be relevant to both a space object and to personnel. Other detail as to personnel is to be found in Chapter 5. ARRA Art. 1 deals with the initial dissemination of information about an incident. A contracting party either receiving information or discovering that the personnel of a spacecraft have had an accident, are experiencing conditions of distress or have made an emergency or unintended landing has two duties. It must notify the launching authority of the spacecraft, or if it cannot immediately 76 �� Standing Committee on the Status of International Agreements Relating to Activities in Outer Space of the International Institute of Space Law, Annual Report 2008 Proc. IISL (forthcoming 2009). Turkey ratified in 2006. 77 �� See also the problem of the space object transferred post-launch from an owner in one state to an owner in another (supra at n. 54 and infra at n. 97).

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identify it, it is to make an appropriate public announcement (Art. 1(a)). It is also to notify the UN Secretary who ‘should’ disseminate the information without delay (Art. 1(b)). These duties apply whether the incident occurs in territory under its jurisdiction, on the high seas or somewhere not under the jurisdiction of any state. Further duties to inform the UN Secretary General as to the progress of search and rescue operations appear in Arts 2–3 which relate particularly to the personnel of a spacecraft. When the personnel of a spacecraft land in its territory a party to the Agreement is immediately to take ‘all possible steps to rescue them and render any necessary assistance’ (Art. 2). It is to inform the authority that launched the spacecraft and also the UN Secretary General of the steps it has taken and how they are proceeding. The launching authority has no right to intervene but is required to co-operate with the contracting party if its assistance would contribute substantially to the search and rescue operations. However, it is not immediately clear who determines whether assistance by the launching authority would facilitate the rescue. Rescue operations are subject to the direction and control of the contracting party which is to ‘act in close and continuing consultation’ with the launching authority (Art. 2). The thrust of Art. 2 is that it is for the rescuing state, not the launching state, to deal with the matter, inferring that the launching authority has to be invited to participate in rescue operations. It would therefore seem that it is for the territorial state to decide whether to ask for the help of the launching state.78 This could be important where the spacecraft itself may be of acute interest to the launching authority. The language of Art. 3 is different. It applies if the personnel of a spacecraft should ‘have alighted’ on the high seas or anywhere else not under the jurisdiction of any state. Under these circumstances any contracting party ‘in a position’ to extend assistance is to do so ‘if necessary’ to ensure a speedy rescue. There is no division of primary and secondary responsibility similar to that between the territorial state and the launching authority in Art. 2. As in Art. 2 rescuing state parties are to inform the launching authority and the UN Secretary General of progress being made. However, the duty of Art. 3 differs from that of Art. 2 to ‘take all possible steps’. The duty under Art. 3 is laid only on contracting states ‘which are in a position to’ extend assistance if assistance ‘is necessary’. In determining the extent of this duty account is therefore taken of the place where the astronauts have alighted. As we will see in Chapter 5, this has varied implications. A landing on the high seas may not require assistance from states other than the launching authority. The strength of the duty is limited by being ‘in a position’ to assist, and that assistance is ‘necessary’. As Dembling and Arons note,79 because the duty is not expressed as requiring ‘all possible’ steps to be taken, states would not be 78 �� Cf. statements by the US quoted by Dembling and Arons, supra n. 74 at 648/nn.61 and 62, that should the territorial party and the launching authority not agree ultimately ‘the territorial party would of course have the final say in the matter’. 79 �� Ibid. at 651.

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required by Art. 3 to endanger lives to engage on a rescue effort, or to divert shipping from other essential operations. However, as they also note, the fact that persons are in difficulty on the high seas might well bring the matter into the other legal obligations as to safety of life and assistance at sea.80 Article 3 speaks of ‘alighting’ not only on the high seas but also to ‘any other place not under the jurisdiction of any state’. There are not many parts of the surface of the Earth which are ‘not under the jurisdiction of any state’, but in the view of some Antarctica is one. The US does not recognise any of the varied claims to areas of the Antarctic, and some Antarctic claims overlap. We would hope that were the landing in an area of competing claims all the relevant parties would co-operate and not argue where the duty lay, and that in other cases matters would be clear. The search for a spacecraft may or may not produce living personnel. Even so, it might result in the discovery of a space object, or its parts. Space objects and their component parts are the subject of both Art. VIII of the OST and of ARRA Art. 5. Under OST Art. VIII jurisdiction and control of a space object is retained by the state on whose registry it is carried.81 Its ownership is unaffected by being in outer space, by being on a celestial body, or by its return to Earth. Space objects, or their parts, found outside the territory of the state of registry are to be returned to that state, which may be asked first to provide identifying data. These obligations are further explicated by ARRA. Under ARRA Art. 5, when a contracting party receives information or discovers that a space object or its component parts has returned to Earth in its territory it is to notify the launching authority and the UN Secretary General (Art. 5.1).82 The same applies if the returned object is discovered on the high seas or any other place 80 �� Ibid. at 650, citing the Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea, Brussels, 23 September 1910, 212 CTS 217; 1913 UKTS 4, Cd. 6677; 37 Stat. 1658, TS 576; 7 Martens (3d) 728; 1 Bevans 780: and the Convention on the High Seas, 1958, Geneva, 29 April 1958, 450 UNTS 82; 1963 UKTS 5, Cmnd. 1929; 13 UST 2312, TIAS 5200; (1958) AJIL 842. The relevant agreements are now the International Convention on the Safety of Life at Sea, London, 20 January 1914, 219 CTS 177, 1914 108 BFSP, 283; the International Convention on the Safety of Life at Sea (SOLAS) 1184 UNTS 2; (1980) UKTS 46, Cmnd. 7874; 32 UST 47, TIAS 9700; (1975) 14 ILM 963; Art. 98 of the UN Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3; 1999 BTS 82, Cm. 4524; (1982) 21 ILM 1261; US Tr. Doc. 103–39. 81 �� See supra ‘Registration’. 82 �� UN OOSA maintains a list of objects so notified: http://www.unoosa.org/oosa/ sdnps/unlfd.html. An early example is the 1991 notification by Argentina in relation to the re-entry of the Salyut space station and the attached COSMOS-1686, part landing in Argentina: see A/46/92. In 2000 South Africa notified the discovery of three objects, probably the remains of a US Delta launcher: (A/AC.105/740). The (US) Aerospace Corporation lists fifty-seven instances of debris recovered on the surface of the Earth: http:// www.reentrynews.com/recovered.html.

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not under the jurisdiction of a state. In the normal case if the object is in territory under its jurisdiction and at the request of the launching authority a contracting party is required to take such steps as it finds practicable to recover the object or parts (Art.5.2). There is no obligation to recover an object if the launching state does not so request, and what is practicable is for the finding state to determine. In a recovery operation the territorial state has a discretion to ask for the assistance of the launching authority, but the launching authority has no power to intervene other than to make the request for the recovery (Art. 5.2). Objects found beyond the territorial limits of the launching authority are to be returned to or held at the disposal of the representatives of the launching authority (Art. 5.3). If asked, the launching authority is required to provide identifying data prior to the return of the object or parts concerned. The expenses of recovery and return are to be borne by the launching authority (Art. 5.5). Extraordinarily, the object or its component parts may be found to have hazardous or deleterious elements. In this instance the contracting party finding it may (not must) notify the launching authority which is then under a duty to take effective steps under the direction and control of the contracting party ‘to eliminate possible danger or harm’ (Art.5.4).83 These are interesting provisions, but do not clearly deal with the case of all objects that may be found. There are spent robotic probes on the Moon, as well as the landing modules of the Apollo series of landings and debris from various ‘impact tests’. There are active and spent probes on Mars as well as the remains of unsuccessful landings. There are dead satellites, and all sorts of orbiting debris. While Art. 5 largely predicates action on the request of the launching authority, and, of course, ownership is unaffected (OST Art. VIII),84 there may be a case 83 �� Prior to discovery of the debris in the Cosmos 954 incident, the Canadian authorities inquired of the USSR about the fuel the satellite carried. When notifying the USSR of the discovery of the debris on its territory Canada did refer to ARRA. See (1979) 18 ILM 899 at 910–14. In due course the formal claim for compensation was made in terms of the Liability Convention. The USSR was not asked in terms of Article 5.5 of ARRA to ‘take effective steps’ to eliminate the danger, perhaps because Canada (and the US) hoped to learn much from the debris. In the 1991 Salyut/COSMOS-1686 case (previous note) no potentially harmful substances were involved. See also Chapter 10. 84 �� A small plaque beside the replica of the Viking I Mars Lander in the Smithsonian Air and Space Museum in Washington DC, affirms the US property right in the Lander located on Mars, NASA having transferred its ownership to the Smithsonian: http:// www.nasm.si.edu/exhibitions/GAL100/viking.html. On 11 December 1993, at Sotheby’s New York as part of a sale of Russian space memorabilia, the Lunokhod-1 lunar rover, launched 10 November, landed 17 November 1970 on the Mare Imbrium Sea of Rains) was sold for US$60,000 (estimate US$5,000). The location of the object was stated as ‘resting on the surface of the Moon’. Sotheby’s and the consignor of the object for the sale undertook no obligation to deliver possession. Only the current title rights of the owner were sold, without assurance as to the claims of others, including possible salvagers. See P.D. Nesgos, UN COPUOS Symposium on Commercial Activities in Space, March 1994 (1994) 37 Proc. IISL 305–14 at 305–6. See also Sotheby’s Auction Catalogue ‘Russian

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in the future for requiring the removal of some space objects at the expense of their launching authority. However, this may take us into the question of the space environment, which we consider in Chapter 10. In the meantime we would note that there have been some examples of the retrieval of satellites from space.85 In February 1984 the privately financed Palapa B 2 and Westar VI satellites were placed in transition orbits prior to ultimate location in the GSO during the tenth Shuttle mission (Challenger: STS‑41‑B). However, their kick-motors failed to perform and the satellites remained in orbits some 600 miles/1000 km up. Some command facility remained and they were lowered to some 200 miles/300 km in November 1984 and the fourteenth Shuttle mission (Discovery: STS-51-A) was able to capture both and return them to Earth.86 However, it is to be noted that this retrieval and return involved both private and state actors, a mixture not contemplated by the space treaties. In the given case appropriate contracts between NASA and the owners/insurers had to be worked out. In fact costs were paid by insurers and both satellites were refurbished and later re-launched, this time successfully.87

Space History’ December 1993; http://news.bbc.co.uk/1/shared/spl/hi/pop_ups/06/sci_nat_ enl_1164637269/html/1.stm. 85 �� What follows deals with the retrieval of a satellite from orbit and its return to Earth. It should be noted that on occasion a satellite in an initial erroneous orbit can be redirected, including in one case by the use of a trans-lunar orbit (Hughes 601HP/Asiasat 3 in 1998): see E. Belbruno, ed., New Trends in Astrodynamics and Applications: An International Conference (Annals of the New York Academy of Sciences, 2005) 1065. A proposed similar effort was not carried through in the case of Arabsat 4A in 2006 and it was de-orbited on 24 March 2006: http://www.msnbc.msn.com/id/11999597/. 86 �� Space Shuttle Mission STS-51A, NASA Press Kit April 1995 (Release no. 84149): http://www.jsc.nasa.gov/history/shuttle_pk/pk/Flight_014_STS-51A_Press_Kit. pdf. Palapa B-2 was actually caught and guided into the shuttle bay by hand! Cf. ‘The Shuttle at Work’, in H.C. Delhoff, Suddenly, Tomorrow Came, A History of the Johnson Space Center (NASA History Office, 1993) (http://www.jsc.nasa.gov/history/suddenly_ tomorrow/suddenly.htm) 285–305 for servicing missions to scientific satellites and retrieval of experiments. The long duration exposure facility spacecraft (LDEF-1) was put into orbit by the space shuttle Challenger in April 1984. It was approximately the size of a singledeck bus and did not have fuel or engines. On 9 January 1990 the space shuttle Colombia retrieved the satellite and landed it on 20 January 1990. 87 �� See Smith and S.M. Lopatkiewicz, ‘Satellite Recovery: A Lawyer’s Perspective’ (1985) 2 Air and Sp. Lawyer 1, summarised in R.M. Jarvis, ‘The Space Shuttle Challenger and the Future Law of Outer Space Rescues’ (1986) 29 Int. L. 591–621 at 608–9. In the Arabsat 4A instance (supra n. 85) an element of the decision was the willingness of the insurers to declare a total loss.

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Liability Gravity ensures that a satellite injected into low Earth orbit and parts of its launch vehicle will re-enter the atmosphere at some point in the future. A space object eligible for ‘return’, which we have just considered, may have caused damage in coming to rest in the place where it is found. It is therefore not surprising that questions of damages were early present in considerations as to a legal regime for space.88 Indeed, ‘liability’ was intended to form part of the drafting text when what became the 1968 ARRA was first mooted.89 However, it was soon realised that liability was a question more difficult than that of aid to astronauts or the return of space objects, and so liability was left for later, more protracted, negotiations. Of course, the facts of space activities have a bearing on the actual application of law to ‘space’, but it should not be thought that there was no applicable law in the absence of provisions specific to space activities. Ordinary international law might, and could still, be invoked,90 as, in an appropriate instance, might national law.91 General Principles of Liability International Law as to the liability of a state for damage caused to another state has a long history. Such as the Trail Smelter Arbitration,92 the Corfu Channel Case93 and the Chorzow Factory Case94 establish that a state may be liable to another state for damage caused to that other state, and that the obligation requires that reparation is made for that damage. The completion of the work of the International Law Commission on state responsibility has presented a useful succinct statement of the law, which we may expect increasingly to be referred to as authoritative.95 88 �� M.S. McDougal, ‘Artificial Satellites: A Modest Proposal’ (1957) 51 AJIL 74–77. 89 �� P.G. Dembling and D.M. Arons, ‘Space Law and the United Nations: The Work of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space’ (1966) 32 J. Air L. and Comm. 329–86. 90 �� We will see below that Art. XII.2 of the Liability Convention contemplates the possibility of an action for damages being pursued under domestic law or another international agreement and outwith the Convention provisions. 91 �� S. Eigenbrodt, ‘Out to Launch: Private Remedies for Outer Space Claims’ (1989) 55 J. Air L. and Comm. 185–222. 92 Trail Smelter Arbitration (US v Canada) (1938–41) 3 RIAA 1905; (1939) 33 AJIL 182; (1941) 35 AJIL 684. 93 �� The Corfu Channel Case (UK v Albania) 1949 ICJ Rep. 1. 94 �� The Chorzow Factory Case (Merits) (Germany v Poland) 1928 PCIJ 4, Ser. A, no. 13. 95 �� ‘Responsibility of States for Internationally Wrongful Acts’ ILC, 2001. (A/56/10); http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf, and the draft on ‘International liability for injurious consequences arising out of acts not prohibited by international law’: ‘Prevention of Transboundary Harm from Hazardous Activities’ ILC,

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This document accords with the known general principles of international law in such matters. The question remains whether and how these generalities are to be found within space law. There are two elements, the general element of liability for space matters and the more particular provision made within space law for liability for space activities. Liability under the Outer Space Treaty Before considering the more detailed provision made by the Liability Convention, it is important to note that the Outer Space Treaty itself contains relevant material. The matter had been occupying minds for some time. Responding to the Report submitted to it by COPUOS, the UN General Assembly of 1962 specifically requested the Committee ‘to continue urgently its work on liability for space vehicle accidents’.96 In so doing the Assembly referred the Committee back to various proposals annexed to the Report which the Committee had made to it. The following year liability for damage was included in the 1963 Declaration of Legal Principles (UNGA Res. 1962 (XVIII). Its para. 8 holds that a state which launches or procures the launch of an object into outer space, together with a state from whose territory such an object is launched, is internationally liable for damage done to a foreign state or to its national or juridical persons. OST Art. I para. 2 indicates that outer space is to be used ‘in accordance with international law’ and Art. III reiterates that states party to the OST are to carry on their space activities ‘in accordance with international law’. From these alone it may be deduced that the ordinary rules of international law as to compensation for damage caused by one state to another state apply in a space-related incident. The ordinary thrust of international law as to damage would not alter albeit what was involved was damage in space or damage done by a space object. However, taking up para. 8 of the 1963 Principles, OST Art. VII spells the point out in greater detail. Parties that launch or procure the launch of an object into space, or from whose territory or facility a launch takes place, are internationally liable for damage done to another state party or to its natural or juridical persons on the Earth, in air space or in outer space. Concomitant with Art. VII, Art. VI provides that states party to the Treaty bear ‘international responsibility for national activities in outer space … whether such activities are carried on by governmental agencies or by non-governmental entities, and for ensuring that national activities are carried out in accordance with the provisions’ of the Treaty. Further, the activities of nongovernmental entities in outer space ‘shall require authorisation and continuing supervision by the appropriate state party to the treaty’. The effect of these 2001 (A/56/10); http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_7_ 2001.pdf. See also B.A. Hurwitz (infra n. 98) 146–203 for a discussion of the earlier ILC deliberations. 96 �� ‘International Co-operation in the Peaceful Uses of Outer Space’ UNGA Res. 1802 (XVII), Sec. 1.3.

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requirements is that a state cannot wash its hands of the results of the activities of its nationals. It has authorised their activities and is required to supervise them on a continuing basis. If, therefore, the activities cause damage, a nexus is constituted between them and the home state sufficient to impute liability on the part of the state.97 The last plank in the OST liability regime is Art. VIII. As noted elsewhere, this introduces without further explanation the concept of a registry of space objects to be maintained by individual states. A state on whose registry an object launched into outer space is carried retains jurisdiction and control over the object and over any personnel on the object while it is in outer space or on a celestial body. Simply put, this means that a state cannot get out of its international obligations through the abandonment of the object. The provisions of the Outer Space Treaty therefore provide for a regime of liability for damage caused by a space object, fix the responsibility to authorise and supervise space activities, and shut the door on the avoidance of liability and duties as to control and supervision. However the Treaty is imprecise as to the nature of the liability for damage, as it was perhaps entitled to be, given that in the 1960s the International Law Commission was only in the middle of its discussions as to state responsibility. That said, it was something of a relief – not to say a necessity – that the OST provisions as to liability for damage have been further elaborated. The Convention on Registration of Objects Launched into Outer Space of 1974 considered above and the Convention on International Liability for Damage Caused by Space Objects of 1972 provide a system under which states responsible for space objects may be traced, and compensation for damage recovered. The Liability Convention On the Report of the Committee for the Peaceful Uses of Outer Space, the Convention on International Liability for Damage caused by Space Objects was adopted by the UN General Assembly on 29 November 1971.98 Opened for 97 �� The failure of a state to authorise would not allow it to escape liability. Cf. the ILC Draft Articles on State Responsibility (n. 95). However, note also the problem of postlaunch transfer of ownership of a satellite from an owner in one state to an owner in another (supra at n. 54). The Netherlands has indicated its view that such a transfer imposes duties on the state of the new owner as to operation under OST Art. VI and jurisdiction and control under OST Art. VII, but not under ARRA, the Liability Convention or the Registration Convention, although The Netherlands is party to all three. 98 �� Convention on International Liability for Damage Caused by Space Objects, 29 March 1972; 961 UNTS 187; (1974) UKTS 16, Cmnd. 5551; 24 UST 2389, TIAS 7762; (1971) 10 ILM 965; (1971) 66 AJIL 702. See (US) Senate Committee on Foreign Relations, Convention on International Liability for Damage Caused by Space Objects, S. Exec. Rpt 38, and (US) Senate Committee on Aeronautical and Space Sciences, Report on the Convention on International Liability for Damage Caused by Space Objects: Analysis and Background Data (Comm. Print), both 92d Cong. 2d Sess.; B.A. Hurwitz, State Liability for Outer Space

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signature on 29 March 1972, in accordance with its Art. XXIV.3 it entered into force on 1 September of that year. Its Depositaries are the UK, the USSR (as then was) and the US (Art. XXIV.2). By Art. XXVI the question of its revision was to be put on the provisional agenda of the UN General Assembly ten years after it entered into force. Alternatively after five years and on the request of one-third of its Parties and with the consent of a majority, a conference may be held to consider such a revision. Neither of these avenues has so far been pursued. Any party may propose amendments to the Convention (Art. XXV). These enter into force for each state party accepting them upon their acceptance by a majority of states party to the Convention and thereafter for each remaining state party on the date on which it accepts an amendment (Art. XXV). As we have indicated in relation to other international space agreements, we would hope that the universality or commonality of the Liability Convention amongst its Parties is not compromised by such an amending process. Withdrawal from the Convention is competent, becoming effective one year after appropriate notice being given to the Depositary Governments (Art. XXVII). So far no party has withdrawn. The Liability Convention does not affect other international agreements that may have been entered into between states party to it (Art. XXIII.1). Further the Convention is not envisaged as being necessarily the absolute last word on such matters. Article XXIII.2 stipulates that no provision of the Convention is to prevent states from ‘concluding international agreements reaffirming, supplementing or extending its provisions’.99 The Liability Convention can apply to entities other than states. Its provisions (other than those dealing with its signature, ratification and amendment) apply to any international intergovernmental organisation conducting space activities if the organisation declares its acceptance of the rights and obligations provided by the Convention and a majority of the states members of the organisation are parties to the Outer Space Treaty (Art. XXII.1).100 State members of such space-active organisations which are party to the Liability Convention are supposed to take steps to ensure that the organisation does make such a declaration (Art. XXII.2). However, only the European Space Agency (ESA) and the European Telecommunication Satellite Organisation (EUTELSAT) had made such declaration by 1 January 2008.101 In 1977, following its acceptance Activities in Accordance with the 1972 Convention on International Liability for Damage caused by Space Objects (Dordrecht: Kluwer, 1992); P.G. Dembling, ‘A Liability Treaty for Outer Space Activities’ (1970) 19 Am. U. L. Rev. 33–47; W.F. Foster, ‘The Convention on International Liability for Damage Caused by Space Objects’ (1972) Can. YBIL 137–85; C.Q. Christol, ‘International Liability for Damage caused by Space Objects’ (1980) 74 AJIL 346–71; E.F. Hennessey, ‘Liability for Damage Caused by the Accidental Operation of a Strategic Defense Initiative System’ (1988) 22 Cornell Int. L.J. 317–37. 99 �� Note Sundahl, infra n. 110. 100 �� Reference point n. 120. 101 �� Cf. supra n. 41.

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of the Convention by Resolution of its Council, ESA established principles for the apportionment of liability among its members and the Agency itself in appropriate instances.102 The Preamble of the Liability Convention notes that ‘notwithstanding the precautionary measures to be taken by States and international intergovernmental organisations involved in the launching of space objects, damage may on occasion be caused by such objects’. The Preamble then goes on to recognise ‘the need to elaborate effective international rules and procedures concerning liability for such damage and to ensure that in particular the prompt payment … of a full and equitable measure of compensation to victims of such damage’. The Convention was therefore agreed in order to strengthen ‘international cooperation in the field of the exploration and use of outer space for peaceful purposes’. Article I of the Convention defines terms. The purpose of the Convention being to deal with international liability for damage, the term ‘damage’ is defined by Art. I (a) to mean ‘loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or to property of international intergovernmental organisations’.103 For the sake of clarity, Art. I(d) states that the term ‘space object’ ‘includes component parts of a space object as well as its launch vehicle and parts thereof’. It is commonly accepted that ‘parts thereof’ may include debris caused by the break up of a launch vehicle.104 Liability under the Convention attaches to a ‘launching state’. Repeating OST Art. VI, ‘launching state’ is defined by Art. I(c) to mean a state which launches or procures the launching of a space object as well as a state from whose territory or facility

102 �� Resolution of the Council of the European Space Agency on the Agency’s Legal Liability, ESA/C/XXII/ Res. 5, 13 December 1977; (2005) XXX AASL Part II, 265–70. 103 �� There are questions as to what is ‘damage to property’: does it include indirect damage such as loss of profits? Some legal systems do not recognise indirect damage, considering it too speculative. See Hurwitz (supra n. 98) 12–20, and cf. Art. 30 of the Russian Federation Law on Space Activities (infra n. 134) under which the Federation guarantees full compensation for ‘direct damage inflicted as a result of accidents in carrying out space activity in accordance with legislation of the Russian Federation’. 104 �� Thus in its Note Verbale of 16 April 2004 giving Information on Registration of Objects Launched into Outer Space, for January and February 2004, the US includes ‘objects not previously reported’ but which had been identified since the previous US report. These objects for which the required basic orbital characteristics are given, comprise ‘spent boosters, spent manoeuvring stages, shrouds and other non-functional objects’ from a Delta 1 launch on 8 July 1977, a Delta 1 launch of 10 March 1977, a Seasat 1 launch of 27 June 1978 and a NOAA 7 launch of 23 June 1981. See OOSA/COPUOS ST/SG/Ser.E/449.

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a space object is launched.105 For the avoidance of doubt, Art. I(b) provides that ‘launching’ includes attempted launching.106 Articles II and III of the Convention elaborate the notion of liability. In so doing the Convention departs from the generalised notion of liability contained in OST Art. VII and makes an important differentiation between two sorts of liability, absolute liability and fault-based liability, depending upon the circumstances of the occurrence. Article II provides that a launching state is to be ‘absolutely liable’ to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight.107 In so providing the Convention would appear to have adopted the principle found in many legal systems that a person who creates a situation where there is the possibility of acute and catastrophic danger is liable without proof of fault to pay compensation if that danger eventuates – the doctrine of ‘dangerous things’.108 Where damage is caused elsewhere than on the surface of the Earth by a space object to the space object of another launching state or to persons or property on-board it, Art. III provides that the launching state is liable only if the damage is due to its fault or the fault of persons for whom it is responsible.109 That means, of course, that in-orbit accidents caused by orbital 105 �� See again the problem of post-launch transfer of ownership of a satellite from an owner in one state to an owner in another (supra at nn. 54 and 97). The Netherlands has indicated its view that such a transfer imposes duties on the state of the new owner as to operation under OST Art. VI and jurisdiction and control under OST Art. VII, but not under ARRA, the Liability Convention or the Registration Convention, although it is party to all three. 106 �� When does an ‘attempt’ to launch begin – at ignition, at lift-off, at testing? Cf. Hurwitz (supra n. 98) 20–1. 107 �� Absolute liability in international law is otherwise found in relation to damage from aircraft: Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface, Rome, 1952; and nuclear incidents: Convention on Third Party Liability in the Field of Nuclear Energy, Paris, 1960, with Supplementary Convention, Brussels, 1963; Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as amended by the Additional Protocol of 28 January 1964 (956 UNTS 264), and by the Protocol of 16 November 1982: http://www.nea.fr/html/law/nlparis_conv.html; Convention on the Liability of the Operators of Nuclear Ships, Brussels, 1962; International Convention on Civil Liability for Nuclear Damage, Vienna, 1963 (1963) 2 ILM 727–54. See Dembling, supra n. 98. 108 �� Now largely departed from in its simple form, the doctrine of dangerous things has long roots in domestic laws, the famous English case of Rylands v Fletcher (1868) LR 3 HL 330 being but one example. Cf. French Civil Code, Arts 1382–6; German Civil Code, Arts 618, 823, 836–8; Roscoe Pound, An Introduction to the Philosophy of Law (New Haven, CT: Yale UP, 1922) 163ff. We note that in para. 22 of its Claim regarding Cosmos 954 Canada stated that absolute liability attaching to activities involving a high degree of risk is a general principle of international law. See infra n. 148 and following text. 109 �� H.A. Baker, ‘Liability for Damage Caused in Outer Space by Space Refuse’ (1988) 13 AASL 183–225. Cf. the operation of the International Oil Pollution Compensation Funds: http://www.iopcfund.org/.

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debris may well never be satisfactorily dealt with. The idea of sharing these risks among those engaged in space activities makes logical sense, though it seems not to appeal to actual participants.110 Article IV deals with the specific case where damage is caused to a third state by the collision of two space objects belonging to other states. If damage is caused elsewhere than on the surface of Earth to one space object by the space object of another launching state and there is resultant damage to a third state or its natural juridical persons, the first two states are jointly and severally liable to the third state (Art. IV.1). In the event that the damage is caused to the third state on the surface of the Earth or to an aircraft in flight, the liability of the launching states is absolute (Art. IV.1(a)). Where the damage to the third state does not occur on the surface of the Earth, the liability of the first two states is based on fault, that being the fault of either of the first two states or the fault of persons for whom either of them is responsible (Art. IV.1(b)). Where there is joint and several liability in terms of Art. IV.1 the damaged state may seek the entire compensation from all or any of the launching states that are so liable (Art. IV.2). As between the states which are jointly and severally liable the burden of compensation is apportioned between them in proportion to the extent to which they were at fault (Art. IV.2). This means that if the space object of State A by its fault collides with a space object of State B sending it into the space object of State C, State C can claim compensation from State A or State B or from both. As between State A and State B, State A would in due course have to compensate State B for any compensation which it has paid. If the extent of the fault of the joint and several liable states cannot be established, the burden of the compensation is apportioned equally between them (Art. IV.2). Where two or more states jointly launch a space object they are jointly and severally liable for any damage caused (Art. V.1). As already noted the precise nature of that liability is controlled by Arts II and III of the Convention, but, for the avoidance of doubt Art. V.3 makes it clear that what might be termed a passive participant state is included among the states liable for all the events stemming from a launch. Article V.3 provides that a state from whose territory or facility a space object is launched is to be regarded as a participant in a joint launching although that is already provided for by Art. I(c).111 Where there is more than one launching state, a state that has been damaged may seek the entire compensation from all or from any of the jointly and severally liable states at its option (Art. V.2). If a launching state pays compensation it is entitled to claim proportionate indemnification from the other launching states involved (Art. V.2). Article V.2 further envisages that the participants in a joint launch may agree among 110 �� M.J. Sundahl, ‘Unidentified Orbital Debris: The Case for a Market-Share Liability Regime’ (2000) 24 Hastings Int. and Comp. L. Rev. 125–54; B.A. Hurwitz, ‘An International Compensation Fund for Damage Caused by Space Objects’ (1991) 34 Proc. IISL 201–4. 111 �� Cf. Agreement between the French Government and ESA Concerning the Guiana Space Centre, selected provisions (2005) XXX AASL Part II, 253–6.

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themselves as to the apportionment of any potential financial obligations they may incur through liability arising from the launch.112 By Art. VI it is possible for a launching state to be exonerated from absolute liability. Exoneration is granted to the extent that a launching state establishes that the damage has resulted either wholly or partially by the gross negligence of or from an act or omission done with intent to cause damage on the part of a claimant state or its natural or juridical persons (Art. VI.1). One might envisage such exoneration applying where it is shown that the claimant state had negligently or deliberately aggravated the damage, for example by interfering with a nuclear device on a crashed space object. No exoneration is granted where the damage has resulted from activities by the launching state which are not themselves in accordance with international law (Art. VI.2).113 The Liability Convention does not apply to damage caused by a launching state to its own nationals (Art. VI I(a))114 or to foreign nationals while they are taking part in the operation of the space object from the time of its launch or at any stage after that until its descent, or while they are in the immediate vicinity of a planned launch or recovery area if they have been invited into that area by the launching state (Art. VI I(b)). The exclusion of ‘foreign nationals’ may be explained by the brocard volenti non fit iniuria. Nonetheless one would assume (or at least hope) that in such circumstances the launching state would either insure these foreign nationals or be willing as an act of grace to provide full compensation for any damage done to them. A state suffering damage or whose natural or juridical person has suffered damage by a space object may present a claim for compensation to a launching state (Art. VIII.1). The process starts with the sending of an appropriate diplomatic note to the launching state involved (Art. IX). Should there not be diplomatic relations between the damaged state and the launching state the claim may be submitted through a third state or through the UN Secretary General provided that both the claimant state and the launching state are UN members (Art. IX). So far only one such claim has been made – the Cosmos 954 incident dealt with below.115 112 �� For example, ‘Exchange of Notes between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China concerning Liability for Damage during the Launch Stage of the Apstar1, Apstar-2, and Apstar-2 Satellites’, Peking, 28 June 1994 (1995) UKTS no. 7, Cm. 2737; ‘Memorandum of Agreement on Liability for Satellite Launches between the Government of the United States of America and the Government of the People’s Republic of China’, signed 17 December 1988, and proclaimed 16 March 1989 (2005) XXX AASL Part II, 259–60, or http://www.jaxa.jp/jda/library/space-law/chapter_3/3-2-2-8_e.html. See also the ESA Council Resolution of 1977 on the liability of that Agency (supra n. 102). 113 �� Cf. D.S. Rudesill, ‘Precision War and Responsibility: Transformational Military Technology and the Duty of Care under the Laws of War’ (2007) 32 Yale J. Int. L. 517–45. 114 �� Reference point, infra nn. 116 and 117. It did not apply to ground damage in the US from the break-up of the Shuttle Columbia on re-entry in 2003. 115 �� See infra n. 147 and following text.

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The procedures for presenting a claim under the Liability Convention diverge in two major ways from the general rules of international law as to State Responsibility. First the ordinary rule as to ‘Nationality of Claims’ is departed from. Normally one would expect that a state would claim for damage to its national, and if it does not do so that is an end of the matter. However, under the Convention should the state of nationality not present a claim, another state may present a claim in respect of damage sustained in its territory by any natural or juridical person (Art. VIII.2). It therefore is possible for State B to present a claim in respect of a national of State A provided that the State A national suffered damage in the territory of State B and that it is not a national of the launching state nor was engaged in operating the space object (Art. VII).116 Further, should neither the state of nationality nor the state where the damage occurred present a claim, then the state of permanent residence of the damaged person or entity may claim (Art. VIII.3), again subject to the qualification that the injury is not to a national of the launching state or to someone operating the space object (Art. VII).117 The ‘Rule of Nationality of Claims’ is therefore comprehensively breached, though not to the extent of allowing any state to set up as an international agency or broker for space claims. Second, the Liability Convention departs from the ordinary rules of International Law in that presentation to a launching state of a claim for compensation under the Convention does not require the prior exhaustion of local remedies (Art. XI.1). It remains competent for local remedies to be pursued – that is not excluded by this provision of the Convention. However, it is not competent simultaneously to pursue a claim under the Convention and to seek compensation through the remedies of the launching state itself (Art. XI.2).118 Time limits for the presentation of claims are laid down in Art. X. By Art. X.1 a claim for compensation is to be presented not later than one year after the occurrence of the damage or the identification of the launching state which is liable. If, however, a state is ignorant of the occurrence of the damage, or has not been able to identify the relevant launching state, it may present a claim within one year following the date on which it learns of the damage or identifies the launching state (Art. X.2). This period is not, however, unlimited and expires one year following the date on which a state could reasonably have been expected to have learned of the facts through the exercise of due diligence (Art. X.2). A claimant state must not delay presenting a claim until the full extent of the damage it has sustained is known: it may however revise a claim and submit additional documentation once the full extent of damage is so known (Art. X.3). Any compensation payable for damage under the Convention is assessed in accordance with the ordinary rules of international law. It is intended to put the damaged person, state or international organisation so far as is monetarily possible

116 �� Cf. text at n. 114 supra. 117 �� Cf. text at n. 114 supra. 118 �� Eigenbrodt, supra n. 91.

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into the position that would have existed had the damage not occurred (Art. XII).119 Monetary compensation is paid in the currency of the claimant state, or, at its option, in the currency of the state from which the compensation is due unless the claimant state and liable state agree otherwise (Art. XII). If an international intergovernmental organisation is liable under the Liability Convention, that liability together with those of any of its members which are separately also party to the Convention is joint and several (Art. XXII.3).120 However any claim for compensation for damage attributable to the organisation must first be presented to the organisation and only if the organisation has not paid compensation within six months may a claimant state invoke the liability of those members of the organisation which are parties to the Convention (Art. XXII.3(a) and (b)). In the case that an organisation which has declared its acceptance of the rights and duties under the convention is a claimant, that claim is presented to the launching state by any state member of the organisation which is also a state party to the Liability Convention (Art. XXII.4). It is to be hoped that questions of compensation for damage by a space object would be settled without major difficulty through diplomatic negotiation. This happened in the case of Cosmos 954.121 If, however, settlement has not occurred within one year from the date from which the claimant state submits its documented claim to the launching state or states, either party may request the establishment of a Claims Commission (Art. XIV). A Claims Commission is composed of three members, one appointed by the claimant state, one appointed by launching state. If there is more than one launching state they between them may only appoint one member of the Commission (Art. XVII). The third member of the Commission, the Chairman, is chosen by the parties jointly (Art. XV.1). Parties are to appoint their members within two months of the request for the establishment of the Claims Commission (Art. XV.1). If the chairman is not agreed within the four months of the request for the establishment of the Commission, either party may request the UN Secretary General to appoint a Chairman within a further two months (Art. XV.2). A party to a procedure under the Claims Commission system cannot stall others by refusing to make its appointment. If one of the parties does not make its appointment within the stipulated period, at the request of the other party the Chairman constitutes a single member Claims Commission (Art. XIV.1) A vacancy arising during the currency of a Commission is filled by the same procedure as for the original appointment of the person concerned (Art. XVI.2). The Commission determines its own procedure (Art. XVI.3) and where it sits (Art. XVI.4). The expenses of the Commission are borne equally by the parties unless the Commission decides otherwise (Art. XX). 119 �� Cf. the Chorzow Factory Case (Jurisdiction) (Germany v Poland) 1927 PCIJ 4, Ser. A, no. 9. 120 �� International organisations may accept rights and duties under the Convention; see supra text at n. 100. 121 �� See infra at n. 147.

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It is for the Claims Commission to decide the merits of the claim and determine the amount of any compensation (Art. XVIII). Unless the Commission is a single member Commission its decisions are taken by a majority vote (Art. XVI.5): the view taken by the Chairman may therefore be crucial. In making its determination it is to have due regard to international law and principles of justice and equity, restoring the damaged person or state as far as maybe to the position that would have existed had the damage not occurred (Art. XIX.1, referring to Art. XII). The decision or award of the Commission is to be given as promptly as possible and, unless the Commission finds it necessary to delay, is to be given no later than one year from the date of its establishment (Art. XIX.3). The decision or award is to be made public as well as, of course, being given to the parties and to the UN Secretary General (Art. XIX.4). The Commission must state the reasons for its decision or award (Art. XIX.2). Unfortunately the decision or award of a Claims Commission is not necessarily binding on the parties. It is final and binding if the parties have so agreed, but if not the award or decision is only ‘final and recommendatory’ (Art. XIX.2). Although the parties are to consider a recommendation in good faith (Art. XIX.2), we would have preferred the outcome of a Claims Commission proceeding to be binding and therefore more certain to conclude the matter. However, we do note that an international practice is developing that states abide by recommendatory international arbitral decisions.122 Penultimately, we note that Art. XXI of the Liability Convention makes special provision for the catastrophic were a space object to cause damage presenting a ‘large scale danger to human life’ or ‘seriously interfering with the living conditions of the population or the functioning of vital centres’.123 In such an event all states party to the Convention (and in particular launching states) are to examine the rendering of appropriate and rapid assistance on its request to a state which has suffered that form of damage. This provision does not affect the rights or obligations of the states party to the Convention. If appropriate the ‘catastrophe’ provision should be read along with the ‘Principles Relevant to the Use of Nuclear Power Sources in Outer Space’ (UNGA Res. 47/68, 14 December 1992).124 Under its Pr. 5.1 and 2 the ‘launching state’ of a space object with a nuclear power source on-board that becomes aware that the object is malfunctioning and that there is a risk that radioactive materials will return to Earth is required ‘in timely fashion’ to inform states that may be affected and the UN Secretary General.125 The data to 122 �� P.B. Larsen, ‘The US–Italy Air Transport Arbitration: Problems of Treaty Interpretation and Enforcement’ (1967) 61 AJIL 496–520. 123 �� See infra, ‘Practice’. 124 �� As to which see Chapter 10 – ‘Contamination’ and ‘Near Earth Environment’. 125 �� Note: for the purpose of the Nuclear Power Principles, and without affecting their Pr. 9 as to liability and compensation, the ‘launching state’ is the state having jurisdiction and control at the relevant point in time (Pr. 2.1). Cf. Note Verbale by The Netherlands relative to certain satellites transferred from INTELSAT to New Skies NV (supra n. 54).

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be provided comprises the system parameters of the object,126 and the radiological risk involved.127 Information is to be provided as soon as possible, and is to be updated as required and with increasing frequency as re-entry approaches so that affected states may plan for potential problems (Pr. 5.2 and 2).128 In such a case Pr.7.1 requires all states that have space monitoring and tracking facilities to help track the object, resulting in a greater degree of clarity as to which state(s) may be directly affected. After re-entry, by Pr. 7.2 the object’s launching state is to offer to an affected state the assistance necessary to eliminate actual and possible harmful effects. This includes identifying the location of debris and its retrieval and clean-up. Last, we would express the hope that the ethos of Art. XXI of the Liability Convention and the correlative Nuclear Power Principles would inform the reaction of states to potential threats and actual damage caused by things other than ‘space objects’.129 Compensation for Damage, Liability Caps and Insurance The duties as to compensation for damage under both OST Art. VII and, where relevant, the Liability Convention devolve as a matter of international law on the launching state or states. However, a common condition of the grant of the licence to engage in a space activity to non-state entities is that the licensee exhibits an insurance policy covering in whole or in part the compensation for which the state might be liable in the event that the activity cause damage. Thus for the UK Sec. 5.2(f) of the Outer Space Act 1986 allows the Secretary of State to require such insurance and this is usual UK practice. In the US 49 USC § 70112 lays down requirements for the licensing of US commercial space launch activities.130 By Sec. 70112 liability insurance must be obtained or financial responsibility shown in amounts to compensate for damage caused. However, the sums involved vary. First, Sec. 70112.3.B recognises that there may be a limit to the willingness of the 126 �� The name of the launching state and an address for further information, the international designation, the date and territory or location of launch, information required for best prediction of orbital lifetime, trajectory and impact region, general function of spacecraft. 127 �� The type of nuclear power source (radioistopic or reactor), the probable physical form, amount and radiological characteristics of fuel and contaminated materials likely to reach the ground. 128 �� See infra at n. 154 as to the BeppoSax re-entry. Technically the Principles did not apply as the satellite was not nuclear powered, but reports were issued with increasing frequency as to its probable fate. 129 �� See Chapter 10 – ‘Planetary Defence’. 130 �� US Code, Title 49 – Transportation; Subtitle IX – Commercial Space Transportation; Chapter 701 – Commercial Space Launch Activities. See also http://www. faa.gov/licenses_certificates/commercial_space_transportation/.

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insurance industry to accept risk. Accordingly the insured amount may be limited to the maximum liability insurance available on the world market at reasonable cost. Further by 49 USC Secs 70112.1.A and 70112.3.i, the maximum insurable amount for the total claims relating to one launch or re-entry is capped at US$500 million for claims by third parties for death, bodily injury or property damage or loss resulting from an activity carried out under the licence. By Sec. 70112.3.ii the maximum insurable amount for claims by the US for damage or loss to government property resulting from an activity carried out under the licence is capped at US$100 million. However, by Sec. 70112.2, after appropriate consultation with NASA, the US Air Force and others, the US Secretary of Transportation can set lower requirements.131 The purpose of these variable and total limits is to ensure that commercial space activities are not deterred by an inability fully to off-set either by insurance or otherwise any US international liability for damage consequent on the activity. Other countries have capped operator liability at different levels.132 In Australia Sec. 48 of the Space Activities Act 1998 lays down requirements as to financial responsibility or alternative insurance without specifying a figure, save that the arrangements cover the ‘maximum probable loss’ in a manner to be determined by regulations.133 By Art. 25.1 of the Russian Federation Law on Space Activities of 1993 appropriate insurance is required of non-state entities using Russian facilities. The precise insured amount is a matter for the Russian legislature, but by Art. 30 of the Law the Russian Federation guarantees full compensation for direct damage.134 Section 14 of the South African Space Affairs 131 �� We understand that the 2008 cap is c. US$300 million. 132 �� A 2002 Report to the Australian Federal Parliament indicated France then capped operator liability at US$53 million, China at US$100 million, Japan at US$50–100 million, depending on the launch vehicle. Australia was then operating a cap at US$495 million. See Senate Economics Legislation Committee Report on the Space Activities Amendment Bill 2002, August 2002, at 4, available through texts at http://www.asicc.com.au/. Australia has moved to a different method of calculation. See text following this note. 133 �� Australia: Space Activities Act (no. 123, 1998), as amended/consolidated to 2008: http://www.austlii.edu.au/au/legis/cth/consol_act/saa1998167/; 1998 text in Project 2001 Workshop on Legal Framework for Commercial Launch and Associated Services, Bremen, 2000 (Cologne: Inst. of Air and Space Law, 2001) 259–303. The (Australia) Space Activities Regulations 2001 as amended, Division 3.11 ‘Insurance Compliance Plan’ and Part Seven on ‘Insurance/financial requirements’ deal with the detail. Regulation 7.02 lays out how the ‘maximum probable loss’ is to be calculated and a related document ‘Maximum Probable Loss Methodology’ came into force on 3 July 2002: http://www.innovation.gov. au/Section/Industry/Pages/MaximumProbableLossMethodology.aspx. Regulation 7.03 sets out how the minimum total insurance requirement is arrived at. 134 �� The Russian Federation Law on Space Activities, 1993, translated in Project 2001: Workshop on Legal Framework for Privatising Space Activities, Vienna, 1999 (Cologne: Inst. of Air and Space Law, 2000) 249–60, and Project 2001 Workshop on Legal Framework for Commercial Launch and Associated Services, Bremen, 2000 (Cologne: Inst. of Air and Space Law, 2001) 313–24.

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Act 1994 similarly requires insurance or proof of ability to recompense the state for any liability which a licensed activity may incur.135 Section 3 of the Swedish Act on Space Activities of 1982 (1982: 963) allows the licensing of space activities subject to any requirement which is decided on by the Swedish government.136 Other space laws may be accessed through the UN OOSA website.137 Of course, apart from any question of insurance required to cover the international liability of a launching state, there is a small but important insurance market that covers what may be termed industrial space losses. Launchers may explode or be destroyed by ground command, satellites may fail to be put into correct orbit or wholly or partially fail to operate. The intricacies of this area of commerce, law and practice lie outwith the scope of this book. Suffice it to say that there are many intriguing cases, most of which are dealt with by negotiation or arbitration, the terms and findings of which are not usually generally available.138 Sometimes where there is no insurance there has been an interesting case on contract.139 On occasion the insurers have taken over ownership of a failed satellite following settlement and have arranged for its recovery, refurbishment and later sale.140 Insurance premium rates are based on perceived risks, the history of a launcher or of satellite manufacturer and other relevant considerations. Insuring the first launch of a new launcher is difficult, and prohibitively expensive, if not impossible. Practice It is convenient here to sketch some occurrences. So far no major disasters have occurred consequent upon the re-entry of many space objects and large chunks of space debris. Most have ended up in the oceans, or have landed without causing 135 �� South Africa Space Affairs Act, no. 84 of 1993, with Amendment of 1995, in Project 2001 Workshop on Legal Framework for Commercial Launch and Associated Services, Bremen, 2000 (Cologne: Inst. of Air and Space Law, 2001) 325–36. 136 �� Sweden: Act on Space Activities (1982: 963) with related Decree (1982: 1069) translated in Project 2001 Workshop on Legal Framework for Commercial Launch and Associated Services, Bremen, 2000 (Cologne: Inst. of Air and Space Law, 2001) 345–7. 137 �� OOSA maintains links to and data on national space laws at http://www.unoosa. org/oosa/en/SpaceLaw/national/index.html. See also the materials assembled for Project 2001 referred to above. 138 �� As we noted in Chapter 2, contracts including insurance contracts, practice, compromise and agreement are working out concepts suitable for the space business. Unfortunately commercial confidentiality (secrecy) usually means that this developing area is not available for public scrutiny, or to interested academics. 139 �� Thus we have Martin Marietta v INTELSAT (1991) 763 F. Supp. 1327; (1993) 991 F. 2d. 94 and cf. S. Gorove, Cases on Space Law: Texts, Comments and References (U Mississippi: J. Sp. L., 1996). 140 �� See supra n. 87.

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actionable damage.141 The Liability Convention has been activated twice. Parts of Skylab landed on 11 July 1979 east of Perth, Australia, in desert, causing no damage.142 NASA advertised for claims but received none relevant in terms of the Convention.143 More serious was the disintegration of Cosmos 954 over Northern Canada in January 1978.144 Cosmos 954, launched by the USSR on 18 September 1977, was a radar surveillance satellite tracking ships at sea. Subsequent to malfunction, it crashed in the North-West Territories of Canada on 24 January 1978, scattering a large amount of debris including radioactive materials over 124,000 km2 south of Great Slave Lake and spilling over into northern Alberta and Saskatchewan. A clean-up operation, ‘Operation Morning Light’, was mounted by Canada and the United States which lasted until October 1978 and resulted in an estimated recovery of about 0.1 per cent of Cosmos 954’s nuclear power source.145 The Government of Canada inquired of the USSR as to the composition and possible hazardous elements of the satellite but these queries appear not to have been responded to. Canada informed the Secretary General of the United Nations of the discovery of the debris from the satellite.146 On 23 January 1979 by note number FLA-268 the Government of Canada presented a claim to the USSR for CAN$6,041,174.70 in respect of the damage caused by the crash and by note number FLA-813 on 15 March 1979 Canada provided further documentation in support of its claims. The Canadian claim was presented under both the Liability Convention and under general international law.147 The USSR disclaimed liability, and the matter was 141 �� See the BeppoSax FAQ, http://bepposax.gsfc.nasa.gov/bepposax/, and infra at n. 153. 142 �� Cf. US House of Representatives, Committee on Science and Technology, Subcommittee on Space Science and Applications, NASA Skylab Re-entry, Hearing June 4, 1979 (Washington DC, GPO, 1979). 143 �� NASA had publicised that Skylab was on a re-entry course. Apparently some claims were received by NASA for compensation for nervous shock and worry from persons in the Indian sub-continent apprehensive that it would land on them but no state pursued the matter. We also understand that no request was made for return of the debris to the US. Wikipedia states that the Shire of Esperance, West Australia, fined NASA $400 for littering but the fine is so far unpaid; http://www.space.com/news/spacestation/esperance_mir_ 010320.html. Cf. C.W.D. Thompson and C.E. Benson, ‘The De-Orbit of Skylab’ Chapter 19 of Living and Working in Space: A History of Skylab, NASA-SP-4208, 1983. 144 �� See Hurwitz (supra n. 98) 113–40. 145 �� See Q. Bristow, ‘Operation Morning Light – a Personal Account’ (1995) Radiation Geophysics: Geological Survey of Canada; http://gsc.nrcan.gc.ca/gamma/ml_e.php; C.G. Weiss ‘The Life and Death of Cosmos 954’, www.loyola.edu/dept/politics/intel/cosmos954. pdf; L. Heaps, Operation Morning Light (New York: Ballantine, 1979). 146 �� See A/AC.105/214 and 214/corr.1 of 8 February 1978, A./AC/105/217 of 6 March 1978 and A./AC.105/236 of 22 December 1978. 147 �� ‘Canada: Claim against the USSR for Damage caused by Soviet Cosmos 954’ (1979) 18 ILM 899–930.

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settled in 1981.148 Some have argued that this was not an instance of the Liability Convention at work, but the claim was made inter alia under the Convention, and the Convention does contemplate settlement through diplomatic negotiations (Arts IX and XIV).149 Many other re-entries have taken place.150 On 7 February 1991 the USSR Salyut 7/Cosmos 1686 Space Station re-entered the Earth’s atmosphere after nine years’ service. Weighing 36,700 kg there was a threat that part of the space station might land on a populated centre. The Soviet ground controllers did attempt to tumble the object in order to bring it down in the Atlantic Ocean. However this was unsuccessful and Salyut 7 re-entered over Argentina, scattering debris over the town of Capitan Bermudas near Buenos Aires. Parts of the space object did land in the town but no-one was hurt and there was no serious damage caused to objects on the ground. Obviously it is better if large objects are de-orbited under some control.151 The Russian space station Mir was successfully de-orbited on 23 March 2001 following upon braking burns by its engines. Although the debris did not land exactly within the predicted track, no damage was done by its

148 �� ‘Canada–Union of Soviet Socialist Republics: Protocol and Settlement of Canada’s Claim for Damages Caused by Cosmos 954, Moscow, April 2 1981’: (1981) 20 ILM 689; (2005) XXX Part II, AASL 261–3. 149 �� P.G. Dembling, ‘Cosmos 954 and the Space Treaties’ (1978) 6 J. Sp. L. 129; E.G. Lee and D.W. Sproule, ‘Liability for Damage Caused by Space Debris: The Cosmos 954 Claim’ (1988) 26 Can YBIL 273–9; A.F. Cohen, ‘Cosmos 954 and the International Law of Satellite Accidents’ (1984–5) 10 Yale J. Int. L. 78–91; M.S. Straubel, ‘Space Borne Nuclear Sources – the Status of their Regulation’ (1986) 20 Valparaiso U.L. Rev. 187–218; E. Galloway, ‘Nuclear Powered Satellites The USSR Cosmos 954 and the Canadian Claim’ (1979) 12 Akron L.R. 401–15; D. Goren ‘Nuclear Accidents in Space and on Earth: An Analysis of International Law Governing the Cosmos-954 and Chernobyl Accidents’ (1993) 5 Geo. Int. Env. L. Rev. 855–95; C.B. Picker, ‘A View from 40,000 Feet: International Law and the Invisible Hand of Technology’ (2001) 23 Cardozo L. Rev. 149–219 at 178. 150 �� NORAD regularly asks planes to report sightings of re-entrant debris burning up. Sometimes pilots report burning debris below them. However, see the calculation of probability of a collision in the BeppoSax data below. See also R.P. Patera and W.H. Ailor, ‘The Realities of Entry Disposal’ (1998) 99 Advances in Ast. Sc. 1059–71. NORAD, the joint US–Canadian North American Aerospace Defense Command, is based in Colorado Springs, Colorado, US. It was established in 1958 by an US–Canada agreement which has been renewed at intervals thereafter: see http://www.norad.mil. 151 �� Even if it is under some control much depends on the precise angle at which an object (or debris) hits the denser atmosphere and the surface presented to it. In fact it is much like skimming a stone across water – within some parameters, unpredictable. A cinematic representation is to be found towards the end of Moonraker (1979) where Bond destroys (eventually) globular glass vessels containing deadly gas released from Hugo Drax’s space station. Bond’s pursuit vessel and the gas containers skip across the upper levels of the atmosphere.

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re-entry.152 On 4 June 2001 NASA successfully de-orbited the 14,000 kg Compton Gamma Ray Observatory into the South Pacific. Uncontrolled re-entries are more worrying. Thus there was considerable concern as to the re-entry of the BeppoSax satellite in 2003. Launched in 1996 this was an X-ray satellite in roughly circular equatorial orbit as part of a joint Italian–Dutch programme.153 As it was fuel-less its re-entry could not be controlled, and accordingly some thirty-one countries and territories were warned of its re-entry. The satellite did not contain fissionable elements, and so the Nuclear Power Principles did not apply. Notwithstanding the operators did issue with increasing frequency reports as to the possible reentry and impact points.154 As it happened the satellite and associated debris ended without incident in the Pacific east of Hawaii.155 Finally, the disintegration of the Space Shuttle Columbia in 2003 scattered hundreds of pieces of debris over the southern US. This being US territory the Liability Convention did not apply. The most recent example was the probably justifiable US interception of its failing satellite US-193 on 20 February 2008 in order to dissipate the hydrazine propellant on-board, and thereby also to increase the chances that little debris 152 �� See http://www.space.com/missionlaunches/missions/mir_fiery_finale_page.ht ml. Cf. F. Lyall, ‘Mir Matters’ (2000) Scots Law Times 76–9. 153 �� For the project see http://bepposax.gsfc.nasa.gov/bepposax/ and http://heasarc. gsfc.nasa.gov/docs/sax/saxgof.html. The mission was supported by The Netherlands agency for aerospace programmes and the instruments on-board were provided by Italian space industries, by the European Space Agency and by the space research organisation of The Netherlands. At an initial height of some 600 km the BeppoSax orbit was equatorial ranging between plus and minus 3.95°. The satellite was launched by the Italian Space Agency in 1996 (A/AC.105/INF400) as an orbiting observatory studying X-ray radiation of celestial origin. BeppoSax had no engine so its re-entry could not be controlled. The possibility was therefore that some forty fragments with a total mass of 650 kg (of which the heaviest would have been about 120 kg), would reach the ground. Portions of equatorial South America, Africa and the Far East, not to mention shipping and aircraft, were at risk. The Italian government set up a temporary mission with a website in order to supply information as time went on, potentially affected states being requested to provide a local point of contact for receiving and circulating information provided by Italy (A.AC.105/803). BeppoSax was switched off on 30 April 2002 and re-entered on 30 April 2003. During the whole process Italy provided regular reports as to the status of the satellite, its first Note Verbale of 12 December 2002 (A/AC.105/803) providing analysis of the countries which might be affected by the re-entry of the satellite together with population estimates for these areas. In all, this supply of official information of the re-entry must be considered as excellent. The satellite splashed into the Pacific at some point south of Hawaii and north-west of the Galapagos Islands at approximately 22.06 UTC on 29 April 2003 with an alleged uncertainty of seven minutes. However it may be noted that web discussion of the web indicates that the object may have decayed elsewhere: see http://satos.org/seesat/apr-2003-0347.html. 154 �� BeppoSax Re-entry Report no. 21: http://www.asdc.asi.it/bepposax/reentry/. See also next note. 155 �� BeppoSax Re-entry: http://www.asdc.asi.it/bepposax/reentry/ – with Final Report, 30 April 2003.

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would reach the surface of the Earth. Had this not been done the probability that the propellant container would impact the surface with a consequent danger to human life was high. The US also intimated its readiness to aid any state affected by the remains of US-193. Space Stations Three space stations have been established and operated for a number of years, Skylab, Mir and the present International Space Station (ISS).156 Skylab was a NASA initiative. Launched on 14 May 1973 as noted above, it de-orbited on 11 July 1979. Skylab was for its time large, weighing seventyfive metric tons. It provided accommodation for three missions for a total of one-hundred and eighty days occupancy during which many experiments were conducted. The final mission returned to Earth on 8 February 1974. Damaged on lift-off, Skylab was left in orbit until its orbit decayed. The Shuttle programme was initially intended to help refurbish Skylab and to push it into higher orbit, but, because of funding restrictions, the Shuttle was not ready before the Skylab orbit decayed. A second Skylab (the back-up) is in the Smithsonian Air and Space Museum in Washington DC. Being an exclusively US project, and its re-entry having caused no damage, Skylab has limited legal interest.157 Preceded by the Salyut series, Mir, a modular space station, was occupied continuously by successive missions for just on ten years – a record.158 Its first components were launched on 19 February 1986 and, added to thereafter by the Soyuz programme, it eventually had a mass in excess of one-hundred tonnes. Its last inhabitants left in August 1999. In its first years Mir was an entirely Russian programme. However, in 1993, partly it has to be said for financial reasons, the US and USSR agreed to co-operate in the Mir programme as a precursor to the International Space Station. Two additional modules, Spektra and Priroda, were launched and the docking facilities altered to allow use of the US Shuttle. US astronauts visited Mir on several occasions. As noted above, Mir was de-orbited on 23 March 2001. No legal problems ensued.159 156 �� We distinguish the single-module spacecraft that were in the Salyut series. 157 �� See supra nn. 142, 143; L.F. Belew, ed., Skylab, Our First Space Station, NASA History Series SP-400: (NASA 1977); http://history.nasa.gov/SP-400/sp400.htm; W.D. Compton, Living and Working in Space: A History of Skylab, NASA History Series SP4208 (NASA, 1983) which includes as its Chapter 19 C.W.D. Thompson and C.E. Benson, ‘The De-Orbit of Skylab’: http://history.nasa.gov/SP-4208/sp4208.htm. 158 �� The word ‘Mir’ means either ‘Peace’ or ‘World’. D.M. Harland, The MIR Space Station: A Precursor to Space Colonization (New York: John Wiley, 1997); NASA History website, History of Shuttle-MIR, http://spaceflight1.nasa.gov/history/shuttle-mir/. 159 �� By two Notes Verbale of 23 January 2001 (A/AC.105/759) and 28 February 2001 (A/AC.105/759/Add.1) Russia notified OOSA it was going to remove Mir from orbit and sink it safely in the ocean. A Progress M1-5 cargo vehicle, launched on 24 January 2001

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The present International Space Station is the result of many discussions, agreements and reconsiderations.160 In 1984 the US proposed ‘Space Station Freedom’ as a multi-purpose space facility in which others might participate.161 For a variety of reasons, many of them fiscal, it was never built. In 1988 Canada, ESA, Japan and the US agreed to co-operate in the building of a space station.162 docked with the Mir station on 27 January to provide fuel to brake Mir at the concluding stage of its flight. Braking manoeuvres were successfully carried out on 22–23 March. However the actual splash-down of the un-burnt fragments of Mir was some hundred miles from the predicted area, much to the disappointment of those on-board two chartered aircraft who had hoped to see the re-entry. This shows that the controlled re-entry of a space object is not as predictable in its outcome as one might think or hope. 160 �� J. Logsdon, Together in Orbit: The Origins of International Cooperation on the Space Station, NASA Monographs in Aerospace History no. 11, 1998: http://history. nasa.gov/monograph11.pdf; C. Morgan, Shuttle-Mir: The United States and Russia Share History’s Highest Stage (SP-2001-4225). NASA, Lyndon B. Johnson Space Center, 2001: http://history.nasa.gov/SP-4225/toc/toc-level1.htm. See also http://spaceflight1.nasa.gov/ history/shuttle-mir/. For an ISS bibliography see http://www.hq.nasa.gov/office/hqlibrary/ pathfinders/iss.htm. 161 �� President R. Reagan, ‘State of the Union Address’, US Congress, 24 January 1984: http://reagan2020.us/speeches/state_of_the_union_1984.asp. 162 �� Agreement Among the Government of the United States of America, Governments of Member States of the European Space Agency, the Government of Japan, and the Government of Canada on Cooperation in the Detailed Design, Development, Operation, and Utilization of the Permanently Manned Civil Space Station, Washington DC, 29 September 1988; 1989 UK Misc Ser. 9, Cm. 705; US Dept of State 92–65; (1988) 37 ZLW 341. Various Memoranda of Understanding were entered into on its basis between NASA and the other participants. See Moenter, infra n. 166, at 1044–9; E. Sadeh, ‘Technical, Organizational and Political Dynamics of the International Space Station Program’ (2004) 20 Space Policy 171–88. For discussion of aspects of the 1988 arrangements see: N. Goldman, American Space Law (1st ed. Iowa State Press, 1988; 2nd ed. Univelt, 1996); D.D. Smith, Space Stations: International Law and Policy (Boulder, CO: Westview Press, 1979); A.J. Young, Law and Policy in the Space Stations’ Era (Dordrecht: Nijhoff, 1989); Logsdon, supra n. 160; Civilian Space Programs and the U.S. Future in Space (US Cong. Office of Technology Assessment, OTA-STI -241, 1984): http://govinfo.library.unt.edu/ota/Ota_4/DATA/1984/8406.PDF; Space Stations and the Law: Selected Legal Issues – Background Paper (US Cong. Office of Technology Assessment, OTA-BP-ISC-41, 1986): http://govinfo.library.unt.edu/ota/ Ota_3/DATA/1986/8627.PDF; E. Galloway, ‘The Space Station: United States Proposal and Implementation’ (1986) 14 J. Sp. L. 14–39; H. DeSaussure, ‘The Impact of Manned Space Stations on the Law of Outer Space’ (1984) 21 San Diego L. Rev. 985–1014; and his ‘Tort Jurisdiction over the New International Space Station’ (1989) 32 Proc. IISL 404; M. McCord, ‘Responding to the Space Station Agreement: The Extension of US Law into Space’ (1989) 77 Geo. L.J. 1933–58; H. Shin, ‘“Oh, I have slipped the surly bonds of Earth”: Multinational Space Stations and Choice of Law’ (1990) Cal. L. Rev. 1375–1414; S.R. Malpass, ‘Legal Aspects of the United States/International Space Station’ (1991) 14 Houst. J. Int. L. 183–202; A.D. Watson and W.G. Schmidt, ‘Legal Issues Surrounding the

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However before this was implemented various major changes were made to the design and Russia was added to the enterprise. Accordingly a new agreement was adopted in 1998, to replace that of 1988.163 The International Space Station currently under construction in low Earth orbit is the product of the 1998 agreement (the IGA).164 Various Memoranda of Understanding (MOUs) between the participants deal with multitudinous details of the supply of sections of the ISS and its construction.165 The result is a complex of legal and sub-legal arrangements into the detail of which we lack the space to enter.166 International Space Station’ (1996–1997) 7 U.S. A.F. Acad. J. Legal Stud. 159–76; D.C. Stewart, ‘Resolution of Legal Issues Confronting the International Space Station Project: A Step Forward in the Development of Space Law’ (1989) 29 Va. J. Int’l L. 745–62. 163 �� L.F.H. Cline and G. Gibbs, ‘Re-negotiation of the International Space Station Agreements – 1993–1997’ (2003) 53 Acta Astronautica 917–25. See also infra n. 166. 164 �� Agreement among the Government of Canada, Governments of the Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning Cooperation on the Civil International Space Station: Washington DC, 29 January 1998, in force 27 March 2001; (2005) 30 AASL-II, 201–25; ftp://ftp.hq.nasa.gov/pub/pao/reports/1998/IGA. html; http://laws.justice.gc.ca/en/C-31.3/35016.html#rid-35052. Excerpts from the IGA are printed in Annex 5 to F.G. von der Dunk and M.M.T.A. Brus, The International Space Station: Commercial Utilisation from a European Perspective (Leiden: Nijhoff, 2007), 227–41. Parties are indicated in the IGA title. The ISS is an ESA optional programme, and as of 2007 the UK did not participate. This may change: see Spaceflight, February 2008: http://www.bis-spaceflight.com/sitesia.aspx/page/183/id/1664/l/en-gb,en-gb/l/en. 165 �� The MOUs are between NASA and the relevant authorities in: 1. 2. 3. 4.

Canada – ftp://ftp.hq.nasa.gov/pub/pao/reports/1998/nasa_csa.html. Japan – ftp://ftp.hq.nasa.gov/pub/pao/reports/1998/nasa_japan.html. ESA – ftp://ftp.hq.nasa.gov/pub/pao/reports/1998/nasa_esa.html. Russia – ftp://ftp.hq.nasa.gov/pub/pao/reports/1998/nasa_russian.html.

In addition Brazil and others have entered into related co-operation agreements. Cf. ‘Space Station: Memorandum of Understanding Between the United States of America and the European Space Agency’, Washington DC and Paris, 11 and 18 March 1997, TIAS 12844, as to co-operation prior to the IGA. Cf. also R. Veldhuyzen and E. Grifoni ‘No Exchange of Funds – the ESA Barter Agreements for the International Space Station’ (1999) 99 ESA Bulletin: http://www.esa.int/esapub/bulletin/bullet99/veld99.pdf. The legal effect of MOUs is considered in Chapter 2. 166 �� F.G. von der Dunk and M.M.T.A. Brus, The International Space Station: Commercial Utilisation from a European Perspective (Leiden: Nijhoff, 2007); A. Farand, ‘Space Station Cooperation: Legal Arrangements’, in G. Lafferanderie and D. Crowther, eds, Outlook on Space Law over the next 30 Years (The Hague: Kluwer, 1997) 125–60; R. Moenter, ‘The International Space Station: Legal Framework and Current Status’ (1999) 64 J. Air L. and Comm. 1033–56; L.L. Manzione, ‘Multinational Investment in the Space Station: An Outer Space Model for International Cooperation’ (2002) 18 Am. U. Int. L. Rev. 507–36.

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The purpose of the IGA is set out in Art. 1. It is an agreement between ‘partner states’, each providing elements specified in an Annex to the IGA. Withdrawal is competent on one year’s notice, but since withdrawal could have varied effects depending on the contribution a Partner makes, specific provision is made for terms and conditions to be agreed (Art. 28). The human component of the operation of the ISS is crucial, but, as explained elsewhere, we deal with the Code of Crew Conduct (COCC) provided for under Art. 11 of the ISS IGA in Chapter 5, Astronauts. Here we sketch the law relating to the hardware. By Art. 2.1 the ISS is to be developed, operated and used in accordance with international law, including the OST, ARRA and the Liability and Registration Conventions.167 Article 2.2 further specifies that nothing in the IGA modifies the rights and duties of the partners in respect of the space treaties other than under IGA Art. 16 (which deals with cross-waivers of liability) or affects the rights or obligations of the partners in the exploration and use of outer space through activities unrelated to the ISS and that nothing in the IGA can constitute the basis of a claim to national appropriation over outer space or any part of it. By Art. 4 the state parties agree that their respective space agencies are the ‘Cooperating Agencies’ for the purposes of the IGA. Each Partner retains ownership of the elements and equipment which it contributes to the ISS in terms of the IGA Annex (Art. 6). Under Art. 5 each Partner registers as a space object the element which it supplies in terms of the Registration Convention, and retains jurisdiction and control in terms of its Art. II and OST Art. VIII. The transfer of ownership of the ISS elements or equipment does not affect the rights and obligations under the IGA (Art. 6.3) Any transfer requires prior notification to the Partners, and transfer to a non-partner or an entity under the jurisdiction of a non-partner must have the consent of all the partners (Art. 6.4). Partners are responsible for the management, design and development and operation of the various elements they supply but are required to consult and act co-operatively in appropriate areas (Arts 7–10).168 All partners have user rights which relate to their input, they being entitled to select their users, but are able to exchange or barter their rights with other partners (Art. 9). Access to the ISS has, of course, to be agreed so that the ISS can sustain its occupants for a sufficient period. Transport is provided by those with that capability on a reimbursable but equal fee basis (Art. 12). Data and goods are to be exchanged as required (Art. 19) and appropriate customs arrangements made (Art. 18). Funding is on the basis of an equitable sharing of common systems costs, with each partner paying for its specific responsibilities for modules (Art. 15).

167 �� Cf. C.M. Petras, ‘“Space Force Alpha”: Military Use of the International Space Station and the Concept of “Peaceful Purposes”’ (2002) 53 Air F. L. Rev. 135–81. 168 �� Management arrangements are entered into for various matters. For an early discussion of such problems see A. Gorbiel. ‘Orbiting Inhabited Space Stations: Selected International Legal Aspects’ (1984) 7 Hastings Int. and Comp. L. Rev. 509–20.

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However, as is well-known, funding remains a problem.169 Importantly Art. 16 covers a complex set of arrangements for the cross-waiver of liabilities between partners and contractors. Intellectual Property Intellectual property is involved in two separate ways in relation to space. One is the intellectual property that is generated in order that space is used. The other is the intellectual property in discoveries made in space on such vehicles as the ISS. Patent law is inherently territorial. In general, national patent law applies only within the territory of the national state. Patent laws vary greatly from state to state. For example in the US patents are awarded to the first person to invent, whereas most other countries award a patent to the first person to file for a patent. The World Intellectual Property Organisation (WIPO) is striving to create international uniformity,170 but national patent practices are so ingrained in domestic commerce that changes are slow to arrive. Many patent questions have arisen from inventions and applications made and developed for the purposes of space activities.171 In some instances specific provision is made in the documents of international organisations as to the sharing and availability to their members of intellectual property created for the purpose of the organisation.172 In other 169 �� L.L. Manzione, ‘Multinational Investment in the Space Station: An Outer Space Model for International Cooperation?’ (2002) 18 Am. U. Int. L. Rev. 507–34. Cf. P.M. Figlola et al., ‘US Space Programs: Military, Civil and Commercial’ (CRS Issue Brief for Congress, no. IB 92011, Congressional Research Service, Library of Congress, 2006) at 2–3: http://www.fas.org/sgp/crs/space/IB92011.pdf. 170 �� The World Intellectual Property Organisation (WIPO): http://www.wipo.int/ portal/index.html.en. ‘Intellectual Property and Space Activities: Issues Paper prepared by the International Bureau’, April 1994: http://www.wipo.int/export/sites/www/patentlaw/en/developments/pdf/ip_space.pdf, and ‘Inventions Made/Used in Outer Space’: http://www.wipo.int/patent-law/en/developments/inventions.html. Cf. OECD, The Space Economy at a Glance (OECD, 2007). 171 �� For example, Hughes Aircraft v US (1996)�� 86 F.3d 1566; 1996 US App. LEXIS 14848; 39 USPQ 2D (BNA) 1065 (1998) 140 F.3d 1470; 1998 US App. LEXIS 6857; 46 USPQ 2D (BNA) 1285, cert denied 1 March 1999, 525 US 1177; 119 S. Ct. 1112; 143 L. Ed. 2d 108; 1999 US LEXIS 1545 and Boeing v US (2005) 69 Fed. Cl. 397; 2005 US Claims LEXIS 398; 80 USPQ 2D (BNA) 1108; Cf. C.Q. Christol, ‘Persistence Pays Off: The Case of Hughes Aircraft Company v USA, 1979–1999’ (1999) 42 Proc. IISL 199–207; B.L. Smith, ‘Recent Developments in Patents for Outer Space’ (1999) 42 Proc. IISL 190–8. 172 �� F. Lyall, Law and Space Telecommunications (Aldershot: Dartmouth; Brookfield, VT: Gower, 1989) 129–41, and infra Chapter 11, text following n. 59. Cf. Art. 9 and Annex 1 of the USA/UK ‘Agreement for Cooperation in Research and Development of Weapons Detection and Protection-Related Technologies’, Washington, 3 July 2002 (UK) Cm. 6584.

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instances intellectual property claims have been used as part of the commercial struggle between companies. Different questions may arise as to inventions made in space.173 Ordinarily the location where an invention is made will affect where and when it is patentable. When an invention is made in space, where it is made could become a matter of dispute. The US has specific legislation as to inventions in space, making the test of an invention made in space depend on whether it is made ‘under the jurisdiction or control’ of the US. The relevant provision was added to US patent law by the Patents in Space Act 1990,174 and was intended to encourage private commercial participation in space activities.175 It is also part of the terrestrial US attempt to have 173 �� L.B. Malagar and M.A. Magdoza-Malagar, ‘International Law of Outer Space and the Protection of Intellectual Property Rights’ (1999) 17 Boston U. Int. L.J. 311–66; T.D. Guyenne ed. Proceedings of the Workshop on Intellectual Property Rights and Space Activities – A World-Wide Perspective, Paris 1994 (ESA SP-378); S. Mosteshar, ed., Intellectual Property and Invention in Outer Space: Liability and Intellectual Property Rights (Dordrecht: Nijhoff, 1995). 174 �� 35 USC § 105, added by the Patents in Space Act 1990 (Pub. L. 101–580, Sec. 1(a), Nov. 15, 1990, 104 Stat. 2863). See Inventions in Outer Space (US) S. Rep. 101–266 to accompany S.-459. 101st Cong., 2nd Sess. 1990, 19 April 1990 (USGPO, 1990); Patents in Space, Hearing before the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the Committee on the Judiciary, House of Representatives, 99th Cong. 13 June 1985 (USGPO, 1985) and Patents in Space, Hearing before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice of the Committee on the Judiciary, House of Representatives, 101st Cong. on H.R. 2946, Patents in Space Act, 4 October 1989 (USGPO, 1990). See also G.H. Reynolds – The Patents in Space Act (1990) 3 Harv. J.L. and Tech. 13–30; G. Laffarenderie, ‘The United States Proposed Patent in Space Legislation: An International Perspective’ (1990) 18 J. Sp. L. 1–10; D.L. Burk ‘Protection of Trade Secrets in Outer Space Activity: A Study in Federal Preemption’ (1993) 23 Seton Hall L. Rev. 560–640; Ty S Twibell ‘Space Law: Legal Restraints on Commercialisation and Development of Outer Space’ (1997) 65 UMKC L.R. 589–642; J.H. Shoemaker, ‘The Patents in Space Act: Jedi Mind Trick or Real Protection for American Inventors on the International Space Station?’ (1999) 6 J Intell. Prop. L. 395–424. 175 �� G.J. Mossinghoff, ‘Intellectual Property Rights in Space Ventures’ (1985) 12 J. Sp. L. 136–62; F. Kosmo, ‘The Commercialisation of Space: A Regulatory Scheme that Promotes Commercial Ventures and International Responsibility’ (1988) 61 S. Cal. L. Rev. 1055–90; J.F. Kohler, ‘Space Pharmaceuticals: Will the United States Fumble Another High Technology Industry’ (1992) 58 J. Air L. and Com. 511–54; A.M. Balsano, ‘Space Technology and International Cooperation – the Role of Intellectual Property’ (1995) 20 Air and Sp. Law 177–188 [Lyall/Larsen 503–14]; A.M. Balsano and A. de Clercq ‘The Community Patent and Space – Related Inventions’ (2004) 30 J. Sp. L. 1–11; L.L. Risely, ‘An Examination of the Need to Amend Space Law to Protect the Private Explorer in Outer Space’ (1999) 26 West. St. Univ. L. Rev. 47–70; J.A. Jiru, ‘Star Wars and Space Malls: When the Paint Chips Off a Treaty’s Golden Handcuffs’ (2000) 42 S. Tex. L. Rev. 155–82 at 166–75; A.A. Hutcheson, ‘Dollars and Sense: Why the International Space Station Is a Better Investment than Deep Space Exploration for NASA in a Post-Columbia World’ (2004) J.L. Tech. and Pol. 295–320.

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patents registered in the US and therefore made available to US commerce before they are registered elsewhere.176 Not all have seen this as welcome.177 Unlike the US most states have not extended their patent laws to inventions in outer space. A legal vacuum may therefore exist for inventors from those states that have not enacted appropriate legislation. Inventions on board the International Space Station are governed specially and separately by Art. 21 of the ISS Agreement.178 Article 21.2 provides that ‘for the purposes of intellectual property, an activity occurring in or on a Space Station flight element shall be deemed to have occurred only in the territory of the Partner State of that element’s registry, except that for ESA-registered elements any European Partner State may deem the activity to have occurred within its territory’.179 Article 21.1 defines ‘intellectual property’ as having the same meaning as Art. 2 of the Convention Establishing the World Intellectual Property Organization (WIPO), Stockholm, 1967.180 The terms of Art. 21 therefore mean that, as far as inventions or discoveries on-board the ISS are concerned, much will depend upon within which module the invention occurs.181 It should also be noted that 35 USC § 105. b indicates that the US may enter into agreements under which inventions in the other ISS modules would also be registrable in the US. A problem of the current situation is that the arrangements under the ISS Agreement pertains only to the ISS. Any other patent activity deriving from 176 �� Title 35 of the US Code consolidates US patent legislation, while Title 37 of the Code of Federal Regulations deals with Patents, Trademarks and Copyright. 177 �� T. Smith, ‘A Phantom Menace – Patents and the Communal Status of Space’ (2003) 34 Victoria U. Wellington L. Rev. 545–70; cf. D.P. Homiller, ‘From DeepSouth to the Great White North: The Extraterritorial Reach of United States Patent Law after Research in Motion’ (2005) Duke L. and Tech. L. Rev. 0017: http://www.law.duke.edu/journals/dltr/ articles/2005dltr0017.html. 178 Supra n. 164. Art. 21 is complex. We here indicate only its international law elements. 179 �� The second sentence of Art. 21.2 states that that provision is not affected by the participation of an ESA Partner State or its Cooperating Agency in an activity ‘in or on’ the flight element belonging to another partner’s space station element. 180 �� Convention Establishing the World Intellectual Property Organization, Stockholm, 1967, 828 UNTS 5, 21 UST 1749, TIAS 6932, 1970 UKTS 52, Cmnd. 4408, Omitting the literary and artistic elements, the definition of ‘intellectual property’ found in Art. 2 (viii) includes inventions in all fields of human endeavour, scientific discoveries, industrial designs and all other rights resulting from activity in the industrial, scientific or industrial fields. 181 �� The first sentence of ISS IGA Art. 21.1 provides: ‘Subject to the provisions of this Article, for purposes of intellectual property law, an activity occurring in or on a Space Station flight element shall be deemed to have occurred only in the territory of the Partner State of that element’s registry, except that for ESA-registered elements any European Partner State may deem the activity to have occurred within its territory’. The second sentence states that that provision is not affected by the participation of an ESA Partner State or Cooperating Agency.

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invention elsewhere in space is not covered. There is a danger that national divergences will emerge as to intellectual property rights in or generated in space as states enact their own legislation. It would therefore be useful were there to be agreed an international treaty specifically on intellectual property generated in space, that all space-competent states become parties and that they implement it in each of their national patent laws.182 A general and uniform patent protection for inventions made in outer space would give investors confidence in outer space research and encourage such activities. Ultimately ‘space’ could be incorporated in the worldwide uniform patent regime towards which WIPO is working.

182 �� H. van Traa-Engelman, ‘The Need for a Uniform System Protecting Intellectual Property Rights in Outer Space’ (2008) 51 Proc. IISL (forthcoming).

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Chapter 5

Astronauts Who is an ‘Astronaut’? Generally Law should be clear. Thus the OST statement of principles provides clearly for rights and duties, as well as providing in the case of claims as to sovereignty that such rights are excluded (OST Art. II). In relation to astronauts specific treaty-based duties provide for how states are to consider and treat astronauts. Notably there are duties as to their ‘rescue and return’. However, the emergence of the ‘space tourist’ casts doubt on the ambit or content of the concept of ‘astronaut’. What, or who, is an astronaut? At one level the question seems absurd. Everyone knows what an astronaut is. To adopt a phrase from an English case, it has an ‘elephantine quality of being easy to recognise’ – you cannot define it, but you know when you see it. On those lines one might simply accept that, consonant with the principles of treaty interpretation in international law, the ordinary meaning of the term would be applied. But what is the ‘ordinary meaning’ of ‘astronaut’? The word conjures a picture of someone in a space-suit and that certainly was the case when the space treaties were elaborated. However, there is now more to take into account. ‘Astronaut’ can not easily fit the non-professional that is likely to enter space in the coming years whether on a limited flight or in a space-hotel. We do not consider all those on a cruise-liner to be sailors, or passengers on aircraft to be pilots, flight engineers or cabin staff and there is a clear parallel between such cases and touristic space-flight. In fact, there is no formal definition of ‘astronaut’ �� The Russian term is ‘cosmonaut’. We use the Western term. �� Per Lawton, L.J., speaking of ‘fairness’, in Maxwell v Department of Trade and Industry [1974] Q.B. 523 at 539; [1974] 2 All ER 122 at 132. �� Cf. Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331; (1980) BTS 58, Cmnd. 7964; (1969) 8 ILM 679; 63 AJIL 875. By Art. 31 1 terms are normally to be interpreted in accordance with their ordinary meaning in the light of the purpose of a treaty. By Art. 31.4: a special meaning is to be given if that is the intention of the parties. �� Cf. plans of inter alia Bigelow Aerospace: http://www.bigelowaerospace.com/. In the past G. Gál, ‘Air Crew and Space Crew – Comparative Observations de lege ferenda’ (1993) 36 Proc. IISL 272–85 at 279 would include all on/in a space object. Others have questioned this: V. Kopal, ‘Some Problems Relating to the In-flight Personnel Regime of Manned Space Objects’, in K.-H. Böcksteigel, ed., Manned Space Flight: Legal Aspects in the Light of Scientific and Technical Development: Proceedings of an International Colloquium, Cologne, 1992 (quoted by Gál, just cited).

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in international law. National laws similarly lack a definition, speaking for example of ‘crew’ and ‘flight participants’. All this may at first sight appear unimportant, but with the development of ‘space tourism’ the matter becomes crucial. The ambit of the term ‘astronaut’ becomes important. Are the duties owed in international law to astronauts applicable to the clients of a space tourist enterprise, or even to visitors to the ISS were that spacecraft to run into trouble? The original thoughts as to ‘astronaut’ were developed in space law when private space flight by non-professionals was found only in science fiction. The term ‘astronaut’ appears in the paragraph ‘Stressing’ in the Preamble to UNGA Res. 1802 (XVII), of 19 December 1962 as well as in its para. 3 where the Assembly asked COPUOS to ‘continue urgently’ its work on principles of space law, including ‘assistance to’ and the ‘return’ of ‘astronauts’. Paragraph 9 of the 1963 ‘Principles’ Resolution brings in the language of astronauts as ‘envoys of mankind’, calls for them to be aided when required, and for their return to the state of registry of their vehicle in appropriate cases. With minor variation ‘rescue and return’ phrases appear as the first para. of Art. V of the OST, the other paragraphs adding clear duties for astronauts to aid other astronauts in outer space, and for the reporting of phenomena that could endanger their life or health. One might have expected a definition of ‘astronaut’ to appear in the 1968 Agreement on the Rescue of Astronauts, Return of Astronauts and the Return of Objects Launched into Outer Space (ARRA), to which we will come, but, notwithstanding the repetition of the word ‘astronauts’ in its formal title, and in the paragraph ‘Noting’ of its Preamble, the operative text of ARRA refers to ‘the personnel of a spacecraft’ and not to ‘astronauts’. Thereafter the Preambles to the Liability �� V.S. Vereshchetin, (1) ‘Elaborating the Legal Status of Astronauts’ (1984) 7 Hastings Int. and Comp. L. Rev. 501–507; (2) ‘Legal Status of International Space Crews’ (1979) 21 Proc. IISL 164; E. Kamenetskaya, ‘“Cosmonaut” (“Astronaut”): An Attempt of International Definition’ (1988) 31 Proc. IISL 177. �� Paragraph 4 of UNGA Res. 1802 (XVII) specifically referred COPUOS to US and USSR proposals on rescue and return of astronauts. �� This curious term only appears in the 1963 Principles and Art. V of the OST. In both instances the full phrase is ‘envoys of mankind in outer space’, and should be treated as such and not truncated to ‘envoys of mankind’. The phrase should be dismissed as rhetoric and certainly does not import any terrestrial diplomatic status. Cf. V. Vereshchetin, ‘Legal Problems of Man’s Flights into Outer Space’ (in Russian), Moscow, 1986, cited by Gál (supra n. 4) from Y.M. Kolossov at 41. Cf. also Bin Cheng ‘“Space Objects”, “Astronauts” and Related Expressions’ (1992) 34 Proc. IISL 17; Cheng, 259, 460: contra R. Jakhu and R. Battacharya ‘Legal Aspects of Space Tourism’ (2002) 45 Proc. IISL, 112–131 at 119; S. Hobe and J. Cloppenburg ‘Towards a New Aerospace Convention? – Selected Legal Issues of “Space Tourism”’ (2004) 47 Proc. IISL 377–85. �� S. Gorove, ‘Legal Problems of the Rescue and Return of Astronauts’ (1968–1969) 3 Int. Lawyer 898–902 at 898–9 was of the view that ‘personnel’ could refer both to trained pilots of a spacecraft and mission specialists such as scientists or physicians, but not to ‘regular passengers’ or to stowaways(!).

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and Registration Conventions and the Moon Agreement refer to ARRA without further explication of the term ‘astronaut’. MA Art. 3.2 prohibits the use of force or threatened use of force in relation inter alia to the ‘personnel of spacecraft’, not to astronauts. However, MA Art. 10.1 does provide one parameter for the definition of an astronaut, binding its parties to ‘regard any person on the moon as an astronaut’ within the terms of OST Art. V and ‘as part of the personnel of a spacecraft’ within the meaning of ARRA. Yet surely one need not go as far as the Moon clearly to acquire the status of an astronaut. Any definition of an ‘astronaut’ for legal purposes would appear to require two elements, an element of training and an element of altitude. Correlatively there must also be an element of selection. As to training, until recently all but one astronaut were trained personnel and members of either military or civilian governmental space agencies.10 In the emergence of ‘space tourists’ purchasing trips to the International Space Station, an element of training has persisted for those purchasing an orbital flight.11 However, in the near future specifically commercial �� On 8 May 2008 ESA announced the opening of a new round of applications for entry to the ESA Astronaut Corps. The Press Release indicated that criteria for selection included a preferred age of 27–37, competence in relevant scientific disciplines, engineering or piloting skills, a good memory, reasoning ability, aptitude for spatial orientation and manual dexterity. Fluency in English was required, Russian being an asset. In addition high motivation, flexibility, team competence, empathy with others and emotional stability would be looked for. Applicants were required to provide medical reports to the standard required for pilots, this to be supplemented by ESA specialists at a later stage in the process for those initially accepted for consideration. There will be two stages of evaluation of psychological and professional aptitude including tests of behavioural and cognitive skills. See http://www.esa.int/esaHS/SEMPQG3XQEF_index_0.html and http://www.esa.int/ SPECIALS/Astronaut_Selection/index.html. The closing date will have passed before this book is published. ESA last recruited astronauts in 1992. As to selection for the ISS see infra n. 62. 10 �� Christa McAuliffe, killed in the 1986 Challenger explosion, was a civilian school teacher, not a NASA or government employee, this allowing her representatives to bring a claim for damages, which was settled. All later mission specialists, including civilian scientists, have had to become government employees in order to take part in US missions: J.A. Beckman, ‘Citizens Without a Forum: The Lack of an Appropriate and Consistent Remedy for United States Citizens Injured or Killed as a Result of Activity Above the Terrestrial Air Space’ (1999) 22 Bost. Coll. Int. and Comp. L. Rev. 249–78; H.A. Douglas, ‘Death in Pursuit of Space Travel: An Analysis of Current Methods of Recovery for Families of Astronauts and the Need for Reform’ (2004) 26 Whittier L. Rev. 333–57. Cf. J.R. Hansen, First Man: The Life of Neil Armstrong (London and New York: Simon and Schuster, 2005); A. Smith, Moondust (London: Bloomsbury, 2005). 11 �� To 2008 six fee-paying private ‘tourists’ have been ferried by the Russian Space Agency to the ISS: D. Tito (US) 2001, M. Shuttleworth (South African/British) 2002, G. Olsen (US) 2005, A. Ansari (Iranian/US) 2006, C. Simonyi (Hungarian/US) 2007 and 2009 and R. Gariott (US) 2008. In addition some states have paid for their national astronauts to fly: M. Shukor (Malaysian) 2007, Yi So-Yeon (South Korean) 2008. Flights to the ISS

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short sub-orbital flights will involve both trained pilots and paying passengers who will not perform any operational function. The training to be given passengers on the Virgin Galactic flights now being marketed will be rudimentary, health checks being more significant.12 The US FAA rules for space tourists are similar, making a distinction between what is required of ‘crew’ and of ‘space-flight participants’.13 Whether sub-orbital flight confers the status of ‘astronaut’ may at present be considered as internationally uncertain. The development of commercial space tourism makes it likely that there will be media pressure to describe passengers on a spacecraft as ‘astronauts’ at least in the case of orbital flights of extended duration,14 And it might be considered unduly stringent to exclude ‘space tourists’ (even the short-term ‘up-and-down with some minutes weightless’ type) from the benefits of ‘rescue and return’ (to which we will come) on the ground that space tourists are not astronauts.15 In that case the remaining element of definition for are fully booked to 2009. For ‘Principles’ of selection of an ISS tourist/astronaut see infra n. 62. ISS visitors must read and speak English. Contrast the US astronaut requirements, infra n. 13, and those for entry to the ESA Astronaut Corps, supra n. 9. 12 �� The Virgin Galactic website speaks of ‘astronaut passengers’: http://www. virgingalactic.com. 13 �� 49 US Code Sec. 7001 as revised by the Commercial Space Launch Amendments Act, 2004 (Public Law 108–429). For a fuller outline of the US requirements see infra Chapter 15, text c. n. 121 and following. The US Rules are: US Federal Aviation Administration: ‘Human Space Flight Requirements for Crew and Space Flight Participants: Final Rule’ (2006) 71 Fed. Reg. no. 241, 75616–45; 14 CFR Parts 401, 415, 431, 435, 440 and 460 (as amended). ‘Crew’ includes those who perform ‘activities … directly relating to the launch, re-entry or other operation of or in a launch vehicle or re-entry vehicle that carries human beings’. ‘Space flight participant ‘means an individual who is not crew, carried aboard a launch vehicle or re-entry vehicle’ (14 CFR § 401.5). A ‘space flight participant’ is required to waive all claims and assume personal responsibility for participation in a flight (App. E to Part. 440; 2006) 71 Fed. Reg. 75642–3. Basically the requirements for ‘tourist flight’ crew are rigorous while those for the ‘participants’ are largely good health coupled with rudimentary training as to safety and escape procedures (14 CFR § 460.51 (2006) 71 Fed. Reg. 75645). As to what crew and space flight participants are to be informed about so they can give ‘informed consent’ (infra n. 48) and the waivers to be executed see 14 CFR Part 460; (2006) 72 Fed. Reg. 75643–5, as they may be amended. See also FAA ‘Draft Guidelines for Commercial Suborbital Reusable Launch Vehicle Operations with Space Flight Participants’, 11 February 2005: http://www.faa.gov/about/office_org/headquarters_ offices/ast/licenses_permits/media/FD_Passenger_Guidelines_2-11-05.pdf. T.R. Hughes and E. Rosenberg, ‘Space Travel (and Politics): The Evolution of the Commercial Space Launch Amendments Act of 2004,’ (2005) 31 J. Sp. L. 1–79. See also Chapter 15, p. 493–5. 14 �� The term ‘astronaut’ is already used colloquially and by the media for orbital tourists. However, it could be argued that a passenger in a spacecraft is not one of its personnel or that the proposed sub-orbital experiences do not qualify. See following text and materials, infra n. 15. 15 �� The title and text of the US FAA rules (supra n. 13) differentiate between ‘crew’ and ‘space flight participants’ but both might be the personnel of a spacecraft in terms of

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astronaut status would be ‘how high’?16 An orbital flight would clearly qualify, whatever one thinks of the ‘boundary question’, but what of the sub-orbital flight? OST Art. V para. 1 sentence 2 speaks of a ‘space vehicle’ being involved in the landing of an astronaut. What does that mean? All high-altitude penetrating passenger conveyances are pressurised. When does a container become a vehicle: when it is sealed against loss of air? When might it become a ‘space vehicle’? In terrestrial practice the Fédération Aéronautique Internationale accepts the Von Kármán Line at c. 100 km/62 miles (275,000 ft) as marking the space/air boundary for its purposes in recording altitude records. In the US any person going higher ARRA, were one to assume that the vehicle of a sub-orbital flight is a spacecraft. (The US FAA will license the space element of the Virgin Galactic Spaceship Two vehicles as a spacecraft.) Cf. the view expressed by participants in para. 37 of the ‘Report of the UN/Republic of Korea Workshop on Space Law on the theme “United Nations treaties on outer space: action at national level”’, Daejon, Korea, 2003, A/AC.105/814, that under ARRA the term ‘personnel’ on a spacecraft should be construed to ‘encompass all persons on board’. W.D. Reed and R.W. Norris, ‘Military Use of the Space Shuttle’ (1980) 13 Akron L. Rev. 665–88 at 686–7 are also of the view that all on-board a space vehicle are astronauts, pointing out also that the term ‘personnel’ does not distinguish between civilian and military. Cf. Sundahl, cited infra, and citations infra n. 21. But what if a rescue in or from space is needed but not all can be rescued for such technical reasons as the capacity of a rescue craft, or the volume of available air? Is the obligation to ‘crew’ or ‘clients’? Current law is oriented to ‘crew’. See also infra n. 21 and our discussion of ‘Rescue and Return’, as well as text infra ‘Long Range Missions’ at n. 67. On space tourism see also S. Freeland, ‘Up, Up and … Back: The Emergence of Space Tourism and its Impact on the International Law of Outer Space’ (2005) 6 Chic. J. Int. L. 1–22; C.E. Parsons, ‘Space Tourism: Regulating Passage to the Happiest Place Off Earth’ ((2006) 9 Chapman L. Rev. 493–526; J.C. Easter, ‘Spring Break 2023 – Sea of Tranquillity: The Effect of Space Tourism on Outer Space Law and World Policy in the New Millennium’ (2003) Suffolk Transnat. L. Rev. 349–83; S.H. Bromberg, ‘Public Space Travel – 2005: A Legal Odyssey into the Current Regulatory Environment for United States Adventurers Pioneering the Space Frontier’ (2005) 70 J. Air L. and Comm. 639–71; F.G. von der Dunk, (1) ‘Space for Tourism? Legal Aspects of Private Spaceflight for Tourist Purposes’ (2006) 49 Proc IISL 18–28; (2) ‘Passing the Buck to Rogers: International Liability Issues in Private Spaceflight’ (2007) 86 Neb. L. Rev. 400–38; R.D. Launius and D.R. Jenkins, ‘Is it finally time for Space Tourism’ (2006) 4 Astropolitics 253–80; P.S. Dempsey, ‘United States Space Law: Commercial Space Launches and Facilities’ (2006) 49 Proc. IISL 69–78; M.J. Sundahl, ‘Rescuing Space Tourists: A Humanitarian Duty and Business Need’ (2007) 50 Proc. IISL 204–14; S.H. Bromberg, ‘Public Space Travel – 2005: A Legal Odyssey into the Current Regulatory Environment for United States Adventurers Pioneering the Space Frontier’ (2005) 70 J. Air L. and Comm. 639–71. I.H.Ph. Diedericks-Verschoor, ‘Search and Rescue in Space Law’ (1977) 19 Proc. IISL 17, considered that the reference in the 1963 Principles and OST Art. V to astronauts as ‘envoys of mankind’ ruled out from the international obligations as to rescue and return any passive participants (passengers) on a commercial flight, but see supra n. 7. 16 �� Cf. Chapter 6 on the Boundary question.

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than 50 miles is awarded ‘astronaut wings’.17 Whether such straws in the wind contribute to a definition for legal purposes is unclear. The possibility of the ‘space plane’ skipping out of the denser atmosphere for a brief period is also to be considered – would/should its passengers be ‘astronauts’?18 Legal categories therefore need to be reconsidered or more accurately defined to make it clear whether and if so which duties as to ‘astronauts’ apply to those who venture into space, as the ‘crew’ and/or the ‘spaceflight participants’ (sc. passengers).19 This would also provide a basis on which to consider questions of the insurance of non-crew participants, and perhaps some clarity as to questions of waivers of liability. A simple waiver of liability no matter how comprehensively framed will not offset claims based on negligence, gross negligence or wilful misconduct in every jurisdiction of the world.20 Perhaps an analogue of the 1929 Warsaw Convention is required for commercial space-flight passengers. Rescue and Return The second paragraph of this chapter demonstrates that concern for the welfare of astronauts was early present. As noted above, ‘rescue and return’ recurs in UN documents and resolutions as a topic that has to be tackled. Accordingly Art. V.1 of the OST provided for a duty on state parties to give assistance to astronauts in an emergency, accident or distress when found in the territory of another state party or on the high seas. Article V.2 then extends that duty to outer space and on celestial bodies,21 with Art. V.3 requiring the reporting of potential dangers to the 17 �� Each of the US Army, Navy, Air Force, Marine Corps and Coastguard award their own badges. Civilian astronauts are awarded astronaut badges. Astronaut pins are awarded to all ‘astronauts’, silver on completion of training and gold following a space mission. The US FAA gave astronaut wings to Brian Binnie, the pilot of SpaceShipOne. Dr Binnie, an Aberdeen loon by birth and early upbringing was awarded the degree of Doctor of Laws by the University of Aberdeen in 2007. Whether Virgin Galactic will issue its own ‘astronaut’ award to its passengers is not known. 18 �� Cf. Chapter 6, p. 170. 19 �� R. Abeyratne, ‘Space Tourism – Parallel Synergies Between Air and Space Law’ (2004) 53 ZLW 184–202 and materials supra n. 15 including Dempsey at 78. 20 �� The Virginia (US) relevant statute provides for space flight participants to acknowledge having been warned of risks, but also allows action based on gross negligence or intentional injury. See the ‘Space Flight Liability and Immunity Act’ adding Art. 24 to the Virginia Code as Title 8.01, Secs 8.01-227.8, -227.9 and -227.10 (http://leg1.state. va.us/cgi-bin/legp504.exe?071+ful+CHAP0893), Virginia Acts of Assembly, 2007, c. 893, 11 April 2007. See also F. von der Dunk – 2, supra n. 15. 21 �� R. Cargill Hall, ‘Rescue and Return of Astronauts on Earth and in Outer Space’ (1969) 63 AJIL 197 at 205 suggests that the scope of this obligation could include a duty to mount a rescue mission to an orbiting spacecraft from Earth. Sundahl, supra n. 15 recommends that companies providing space tourism should not only rely on state rescue

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life or health of astronauts. That said, the major expositions of obligations as to the welfare of astronauts are in ARRA and the Moon Agreement. The Agreement on the Rescue of Astronauts, Return of Astronauts and the Return of Objects launched into Outer Space (ARRA) was adopted by the United Nations General Assembly on 19 December 1967 (UNGA Res. 2345 (XXII)), opened for signature on 22 April 1968 and entered into force on 3 December 1968.22 The Preamble to ARRA states that it is designed to ‘develop and give further concrete expression’ to the duties imposed on parties to the OST in its call for the rendering of all possible assistance to astronauts in the event of accident, distress or emergency landing and the prompt and safe return of astronauts. Yuri Gagarin had orbited the Earth in Vostok 1 back in 1961 and others had followed, but the impetus for ARRA only one year after the OST was an expected imminent increase of space activities, the likelihood of a Moon landing, development accidents and two tragedies.23 The increasing number of astronauts and the dangers of space obligations, but should also have their own rescue plan. In any event who is to pay the costs of the rescue of space tourists? The law is silent. See infra as to ARRA Arts 2–4. J.W. Doolittle, ‘Man in Space: The Rescue and Return of Downed Astronauts’ (1967) 9 USAF JAG Rev. 4–7 at 7 considers that OST Art. V is unambiguous on the duty to rescue but that where appropriate costs may have to be negotiated. 22 �� Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 22 April 1968; 672 UNTS 119; 1969 UKTS 56, Cmnd. 3997; 19 UST 7570, TIAS 6559; (1968) 7 ILM 151; (1969) 63 AJIL 382. P.G. Dembling and D.M. Arons, ‘The Treaty on Rescue and Return of Astronauts and Space Objects’ (1967–1968) 9 William and Mary L. Rev. 630–663 [Lyall/Larsen 203–36]; R. Cargill Hall, ‘Rescue and Return of Astronauts on Earth and in Outer Space’ (1969) 63 AJIL 197; P.H. Houben, ‘Agreement on the Rescue of Astronauts, the Return of Space Objects’ (1968) 15 Neth. Int. L. Rev. 121; R.S.K. Lee, Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space’ 1 Manual 53; Cheng 265–85; Christol 152–212. 23 �� Three US astronauts V. Grissom, E. White and R. Chaffee died in a fire in the Apollo 1 capsule during training on 27 January and the Russian V. Komarov died when his parachute failed on re-entry on 24 April both in 1967. Later disasters have been the asphyxiation of the crew of Soyuz 11 during re-entry in June 1971 (see ‘Soyuz 11’ in the Encyclopedia Astronautica: http://www.astronautix.com/flights/soyuz11.htm), the Challenger explosion of 1986 (see the Report of the Presidential Commission on the Space Shuttle Challenger Accident (the Rogers Commission Report), June 1986 and Implementations: http://science. ksc.nasa.gov/shuttle/missions/51-l/docs/rogers-commission/table-of-contents.html, and http://history.nasa.gov/sts51l.html) (cf. R. Feynman, What Do You Care What Other People Think? (New York: Norton, 1988) and his Appendix to the http://science.ksc.nasa. gov/shuttle/missions/51-l/docs/rogers-commission/Appendix-F.txt); cf. also http://www. centennialofflight.gov/essay/SPACEFLIGHT/challenger/SP26.htm, and http://pirate.shu. edu/~mckenndo/pdfs/The%20Space%20Shuttle%20Challenger%20Disaster.pdf. As to the Columbia Shuttle breakup during re-entry on 1 February 2003 see the Report of the Columbia Accident Investigation Board – http://caib.nasa.gov/news/report/default.html and http://www.nasa.gov/columbia/caib/html/start.html, together with the ‘Columbia

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exploration indicated a need for rescue arrangements. Initially it was thought that liability for damage should also be dealt with in ARRA but, as it became clear that liability would require protracted negotiations, it was sidelined and ‘rescue and return’ dealt with as a priority.24 The concept of aid to be given to those in danger or difficulty is not an innovation. It is both a moral requirement and one of law. Whether it is a duty in a municipal legal system and its extent if any does vary from state to state, but in international law it has long roots. As can be seen below in Chapter 11, safety of life at sea is of major concern, and, apart from treaty provision,25 rescue has long been treated by seamen as a normal moral imperative, lifeboat services being provided in many maritime countries.26 It is not surprising that astro-nauts (italics added) are considered similarly. In aviation Art. 25 of the Chicago Convention27 imposes on its parties a duty to assist aircraft in distress and to search for missing aircraft. This is elaborated in its Annex 12 on Search and Rescue (complemented by a three part Manual, ICAO Doc. 6731), which sets appropriate Standards and Recommended Practices including the requirement that contracting states provide such services both for their territories and for proximate areas of the high seas.28 In Crew Survival Investigation Report’, NASA/SP-2008-565: http://www.nasa.gov/pdf/ 298870main_SP-2008-565.pdf. There have also been ‘near-misses. On 15 September 1967 Gemini 8 (Armstrong and Scott) had to be brought down in the Pacific instead of the intended Atlantic landing area because coping with an unexpected roll problem had almost exhausted the thruster propellant on the spacecraft. We note that on 18 April 2008 the Russian Soyuz TMA-11 re-entry vehicle returning astronauts from the ISS landed almost 260 miles short of its intended landing zone in Kazakhstan after a steeper than planned re-entry: http:// www.space.com/missionlaunches/080419-expedition16-landing-day.html; http://www. msnbc.msn.com/id/24211848/; http://www.foxnews.com/story/0,2933,191053,00.html. Apparently other re-entries have had similar problems. 24 �� Dembling and Arons, supra n. 22, at 631; cf. P.G. Dembling and D.M. Arons, ‘Space Law and the United Nations: The Work of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space’ (1966) 32 J. Air L. and Comm. 329–86 for the early work on rescue and return by the COPUOS Legal Subcommittee during its first four sessions. 25 �� International Convention on the Safety of Life at Sea, London, 20 January 1914, 219 CTS 177, 1914 108 BFSP, 283; the International Convention on the Safety of Life at Sea (SOLAS), London 1 November 1974: 1184 UNTS 2; (1980) UKTS 46, Cmnd. 7874; 32 UST 47, TIAS 9700; (1975) 14 ILM 963; Art. 98 of the UN Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3; 1999 UKTS 82, Cm. 4524; US Tr. Doc. 103–39; (1982) 21 ILM 1261; (1994) 33 ILM 1309. 26 �� The UK Lifeboat service, the Royal National Lifeboat Institution, is manned by volunteers except for the coxes: http://www.rnli.org.uk/. 27 �� Convention on International Civil Aviation, Chicago, 7 December 1944 (1944) 15 UNTS 295; 61 Stat. 1180, TIAS 1591; (1953) UKTS 8, Cmd. 8742; 9 Hudson 168; 3 Bevans 944 (1945) 39 AJIL Supp 111; ICAO Doc. 7300/9, 2006. 28 �� In 1993 ICAO and IMO set up a joint working group on Search and Rescue (SAR) to co-ordinate their responses to maritime aviation search and rescue.

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compliance with this duty many national air forces have search and rescue units. Bringing aviation and maritime rescue together we also note the involvement of space in the operation of the COSPAR-SARSAT Satellite Search and Rescue System (SASR) which uses LEO and GSO satellites as part of its infrastructure.29 ARRA is open to all states (Art. 7.1). Its depositaries are the UK, the USSR and the US (Art. 7.2), ratification by the depositaries and two other governments having been essential for its entry into force (Art. 7.3). Later ratification or accession is competent, becoming effective when the new party notifies the depositaries (Art. 7.4). An amendment may be proposed by any state party and enters into force for each accepting party when the amendment is accepted by a majority of the states party and thereafter for each remaining state party that accepts the amendment (Art. 8). Withdrawal from the Agreement is competent, taking effect one year after the giving of written notification to the depositary governments (Art. 9). As of 1 January 2008 ninety states had ratified ARRA, a further twentythree having signed but not yet ratified.30 ARRA distinguishes between the duties owed by contracting parties to the personnel of a spacecraft and those in relation to a space object. The latter category is not necessarily confined to a spacecraft (i.e. a space object capable of carrying an astronaut) (Arts 5 and 6) and is dealt with above in Chapter 4. ARRA Art. 1 deals with the initial dissemination of information about an incident. It imposes two duties. First, a party to ARRA must immediately notify the relevant launching authority (defined in Art. 6, infra) if it receives information or discovers that the personnel of a spacecraft have suffered an accident, are experiencing conditions of distress or have made an emergency or unintended landing in territory under its jurisdiction or on the high seas or any other place not under the jurisdiction of any state. If it cannot identify the launching authority or get in touch with it, it is immediately to make a public announcement by all appropriate means (Art. 1(a)). Second, it is also to notify the facts to the UN Secretary General who ‘should’ disseminate the information without delay (Art. I (b)). The relevant ‘launching authority’ is the state responsible for launching or the inter-governmental organisation concerned in the launch provided that the organisation has accepted rights or obligations provided for under the Agreement and a majority of its member states are contracting parties to both ARRA and to the OST (Art. 6). It must be said that the ‘State responsible for launching’ is a very ambiguous phrase which could include a state which finances a launch but which has no actual connection with the technicalities of the launch. ARRA is therefore

29 �� For the COSPAS-SARSAT Satellite Search and Rescue System (SASR) see http:// www.cospas-sarsat.org/MainPages/indexEnglish.htm and from the UN http://www.unoosa. org/oosa/SAP/comm/index.html. 30 �� Standing Committee on the Status of International Agreements Relating to Activities in Outer Space of the International Institute of Space Law, Annual Report (2007) 50 Proc. IISL 804–817. Turkey ratified ARRA in 2006.

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not congruent with the Registration or the Liability Conventions in its definition of an important state involved in any occurrence that requires it to be applied. ARRA Arts 2–4 go on more thoroughly to deal with ‘rescue and return’ of personnel. Curiously, while ARRA Art. 5.5 provides that the expense of recovering and returning a space object or its component parts are to be borne by the ‘launching authority’, Arts 2–4 are silent as to the cost of rescue and return of astronauts, let alone tourists carried aloft by private companies.31 By Art. 2, when a party to ARRA knows that the personnel of a spacecraft have landed in its territory due to accident, distress, emergency or unintended landing, it is immediately to take ‘all possible steps to rescue them and render any necessary assistance’. It is to inform both the launching authority and the UN Secretary General of these steps and how they are proceeding. Additional to the simple question of rescue, an effect, if not a purpose, of these duties, is to achieve openness and publicity, making it much more difficult for a state to sequester the personnel of a foreign spacecraft for military or other reasons. The later requirement for the safe and prompt return to the representatives of the launching authority (Art. 4) ties in with that suggestion.32 In the Art. 2 case, where the rescuing state is acting on its own territory, the launching authority has no right to intervene but is required to co-operate with the contracting party if its assistance would help in a prompt rescue or contribute substantially to the search and rescue operations. The operations themselves are subject to the direction and control of the territorial party which is to ‘act in close and continuing consultation’ with the launching authority (Art. 2). That said, the thrust of Art. 2 is that it is for the affected contracting party, not the launching authority, to deal with the matter. The inference is that the launching authority has to be invited to participate. It is therefore for the territorial state to decide whether to ask for the help of the launching authority.33 The language of Art. 3 is different. Article 3 applies if the personnel of a spacecraft have ‘alighted’ on the high seas or anywhere else not under the jurisdiction of any state. Under these circumstances any contracting party ‘in a position’ to extend assistance is to do so ‘if necessary’ to ensure a speedy rescue. There is no division of primary and secondary responsibility similar to that between the territorial state and the launching authority under Art. 2. As in Art. 2, state parties engaging in a rescue are to inform the launching authority and the 31 �� R.M. Jarvis, ‘The Space Shuttle Challenger and the Future Law of Outer Space Rescues’ (1986) 29 Int. L. 591–621 at 613–8. Cf. P.G. Dembling, ‘Cosmos 954 and the Space Treaties’ (1978) 6 J. Sp. L. 129; Doolittle, supra n. 21. 32 �� G.C.M. Reijnen, The United Nations Space Treaties Analysed (Gif-sur-Yvette, France: Editions Frontiéres, 1992) at 160 makes these points and suggests that the requirements of Arts 1–4 reflect the military nature of the early space flights. 33 �� Cf. statements by the US quoted by Dembling and Arons, supra n. 22, at 648 nn. 61 and 62, that should the territorial party and the launching authority not agree ultimately ‘the territorial party would of course have the final say in the matter’.

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UN Secretary General as to what they are doing and as to progress. However, the duty of Art. 3 differs from that of Art. 2. In the Art. 2 case the duty is to ‘take all possible steps’. The duty under Art. 3 is laid on contracting states ‘which are in a position to’ extend assistance if assistance ‘is necessary’. The extent of the duty under Art. 3 takes account of the location where the astronauts have landed. This has varied implications. First, a landing on the high seas could but does not necessarily require the assistance of states other than the launching authority. For many years the US regularly retrieved its re-entrant astronauts from the Pacific. The involvement of other states is not ‘necessary’ when the ‘alighting’ is in a specified drop zone policed by the launching authority. Were the ‘alighting’ not so arranged another state might or might not be ‘in a position’ to help. In that case we note that the duty to assist is a duty to assist. As noted above, unlike Art. 2, there is no duty to take ‘all possible’ steps to assist. Another state might not be ‘in a position to’ assist for either geographic reasons, or because its participation in a rescue would not be technically feasible. Not all states have facilities adequate for a sea rescue. And as Dembling and Arons note, because the duty is not expressed as requiring ‘all possible’ steps to be taken, a state party would not be required by Art. 3 to endanger lives by engaging in a rescue effort, or to divert its shipping from other essential operations.34 However, as Dembling and Arons also note, the fact that persons are in difficulty on the high seas might bring the matter under the other international legal obligations as to safety of life and assistance at sea.35 Second, Art. 3 speaks of ‘alighting’ not only on the high seas but also to ‘any other place not under the jurisdiction of any state’. Other than the high seas, few parts of the surface of the Earth are now ‘not under the jurisdiction of any state’, but in the view of some Antarctica is one. The US does not recognise any of the varied claims to areas of the Antarctic, and some Antarctic claims overlap. We would hope that were the landing in an area of competing claims all the relevant parties would co-operate and not argue where the duty lay, and that in other cases matters would be clear. However, third, the other obvious place where astronauts might alight and be or get into trouble is the Moon or another celestial body. Few would be able to provide assistance under such circumstances, but were the astronauts of another state in the vicinity, the question might arise. It might, however, result in an

34 �� Dembling and Arons, supra n. 22, at 651. 35 �� Dembling and Arons, supra n. 22, at 650, citing the Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea, Brussels, 23 September 1910, 212 CTS 217; 1913 UKTS 4, CD. 6677; 37 Stat. 1658, TS 576; 7 Martens (3d) 728; 1 Bevans 780: and the Convention on the High Seas, 1958, Geneva, 29 April 1958, 450 UNTS 82; 1963 UKTS 5, Cmnd. 1929; 13 UST 2312, TIAS 5200; (1958) AJIL 842. The relevant agreements are now those cited supra n. 25.

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extraordinarily awkward matter: difficult decisions could hinge on the available volume of air supply.36 Finally it should be noted that ARRA Arts 2 and 3 deal with the instance where the endangered personnel have ‘alighted’ one way or another. At first sight these Articles therefore do not apply to what may come to be the most common instance where a rescue is needed – in-flight difficulties in orbit, including problems with the International Space Station, or a space hotel, or on longer missions such as Apollo 13. However, Dembling and Arons suggest that, in these circumstances, the matter would be covered by the second sentence of Art. V of the OST: ‘In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties’.37 Arguably this language may not require a launch in order to rescue, but that is a semantic point which we would hope would be ignored were a rescue mission otherwise feasible.38 We further note that ARRA Art. 1 speaks of a state receiving information that ‘the personnel of a spacecraft have suffered accident or are experiencing conditions of distress … in any other place not under the jurisdiction of any State’. At first sight such conditions could apply to a spacecraft in orbit. However, the duty under Art. 1 is only to inform the launching authority and the UN Secretary General. It is not to rescue.39 When the personnel of a spacecraft have been found under any of the circumstances of Arts 2–3 they are to be safely and promptly returned to representatives of the launching authority (Art. 4). The obligation is unconditional. Apparently there was discussion as to whether return could be refused on the basis that the personnel had committed a crime (e.g. spying) or had claimed asylum, but these points were considered unnecessary to pursue in the negotiation of the text. The obligation to return is clear.40 The only ‘gap’ in the provision is that the state having custody of the personnel might consider that the landing or alighting did not fall within the ‘emergency or accident’ terms of Arts 1–3, but was in fact intentional.41 Article 4 does not require that the personnel are returned to the territory of the launching authority, only to its representatives. Curiously, while the costs of returning a space object to its launching authority are payable by that

36 �� When teaching Jurisprudence F. Lyall constructed a tutorial problem based on such factors. Within two weeks Apollo 13 launched and had its problem. See also infra at n. 67 as to the perils of long-range missions. 37 �� Dembling and Arons, supra n. 22, at 649–50; cf. Jarvis, supra n. 31. 38 �� But note the difficulties that may attend a ‘rescue’: see ‘Long range missions’ infra at n. 67. 39 �� But cf. Cargill Hall, supra n. 21. 40 �� Cf. Doolittle, supra n. 21. 41 �� Dembling and Arons, supra n. 22, at 652–3, note that Austria stated that in its view under these circumstances the ARRA obligation would not overcome a local rule as to the grant of asylum.

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authority (Art.5.5), Arts 2–3 do not provide for the reimbursement of expenses in relation to the rescue and return of personnel. The other place where duties as to assistance for astronauts are laid down is in the Moon Agreement, the provisions of which, it must be noted, extend to all celestial bodies within the solar system other than the Earth, unless a specific set of legal norms in relation to that other body is in force (MA Art. 1.1).42 While the Agreement is not in force for the bulk of states, and its members do not include any state that currently engages in astronaut activities on its own account, its provisions do cast light on desirable conduct. MA Art. 10.1 requires state parties to take all practicable measures to safeguard life and health of persons on the Moon, and to offer shelter in their stations and installations to those in distress (Art. 10.2). In the event of an emergency involving a threat to life, a state party may use the equipment, vehicles, installations, facilities or supplies of another state party (MA Art. 12.2). As with ARRA Arts 2–4, however, there is no mention of costs. Finally, under MA Art. 13 a state party that learns of a crash or forced or other unintended landing on the Moon of a space object or its component parts which it itself did not launch is to inform the appropriate launching state, but, realistically, no obligation as to rescue is included in this provision. Protection of Astronauts One elementary part of the protection of astronauts is that their space vehicles should be safe, but there will always be a risk involved in complex technologies. The national law of launching states should ensure that risk is minimised, but there have been disasters, and there will be in the future.43 The investigation of accidents is therefore important.44 The effect of space on the human frame remains a matter of acute interest. It is crucial that an astronaut be fit to meet the stresses and strains involved.45 Osteoporosis and muscle deterioration remain problems. Naturally this involves and justifies monitoring and experiment. The ethos and control of experimentation on humans is a matter of profound contention inter alia for reasons of history. While there is no doubt that the results 42 �� The provisions of the Moon Agreement also apply to orbits round the Moon and to trajectories to or around it (MA Art. 1.2); see also Chapter 7. 43 �� See supra n. 23. The 2007 Report of the NASA Aerospace Advisory Panel indicates concern about the safety elements of the planned Constellation Program. See Part II ‘Pivotal Issues’ 28–34; http://www.hq.nasa.gov/office/oer/asap/documents/2007_ASAP_ Annual_Report.pdf. 44 �� See Chapter 15 for information on the laws of various states. 45 �� Cf. NASA Space Flight Human System Standard: Vol. 1, ‘Crew Health’ (NASASTD-3001) (approved 5 March 2007, expiration date 5 March 2012): http://www.nasa.gov/ centers/johnson/doc/173505main_NASA_STD_3001_Vol1Approved.doc.

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of the German experiments on inhabitants of the concentration camps have been of major interest to scientists, the conduct of those experiments was an element of charges brought against those who conducted them. One result was the ‘Nüremberg Code’, first enunciated in the Judgement in the ‘Doctors Trial’ of 1947,46 as subsequently amended by Declarations of the World Medical Association in 1964.47 This sets out ten points upon which human experiment might proceed. They include the voluntary consent of the subject given on the basis of full information, that fruitful results should be obtained which are not procurable by other means, that unnecessary suffering is avoided and that no experiment be conducted where there is reason to believe that death or disabling injury will occur.48 However, of course, there are significant pressures upon would-be astronauts. Care is needed to ensure that the enthusiasms of astronauts, or their controllers, do not lead them to transgress these parameters. Astronauts might otherwise be invited to sign documents releasing their controllers and the manufacturers of their equipment from legal liability in the event that something goes wrong, but the terms of any such release should be narrow. There are degrees of negligence. No astronaut should be invited to sign his/her own death-warrant.

46 Trials of War Criminals before the Nüremberg Military Tribunals under Control Council Law No. 10, Vol. 2 (Washington DC: USGPO, 1949) 181–182. The Code is available on many websites – Google ‘Nuremberg Code’. 47 �� The ‘Declaration of Helsinki’ (1964) of the World Medical Association, as amended, on medical experiments on humans: http://www.wma.net/e/policy/b3.htm. By various Declarations adopted in Geneva in 1948, 1968, 1984, 1994, 2005 and 2006, the Association has amended the correlative Hippocratic Oath as to the duties of a physician which doctors swear on graduation. The current International Code of Medical Ethics adopted by the Association is at http://www.wma.net/e/policy/c8.htm. 48 �� Part VI of the ISS Code of Crew Conduct (cited infra n. 62) provides that ‘No research on human subjects shall be conducted which could, with reasonable foresight, be expected to jeopardise the life, health, physical integrity, or safety of the subject’. It goes on to require research procedures involving ISS crew to be approved by a multilateral review board. For the US, NASA Policy Directive NPD 7100.8E on ‘Protection of Human Research Subjects’ (expiring 14 June 2012) lays down a policy of minimal risk and establishes the requirement of informed consent in experiments on human subjects. The same titled NASA Procedural Requirements NPR 7100.1 (expiring 28 March 2008, but likely to be extended) set out a complex administrative structure for approval of research projects. Chapters 7 and 8 of NPR 7100.1 deal with the necessity of ‘informed consent’ and its documentation. Chapter 11 covers reports on injuries, illness or disease and medical care, both as to record keeping and also the suspension of research when appropriate. On both the NPD and NPR see http://nodis3.gsfc.nasa.gov. See also T. Knutson, ‘What is “Informed Consent” for Space-flight Participants in the Soon-to-Launch Space Tourism Industry?’ (2007) 33 J. Sp. L. 105–22; G. Catalano Sgrosso, infra n. 60 (1998) 26 J. Sp. L. at 172–5; (1999) 42 Proc IISL at 39–40.

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That said, there are other questions to which attention has to be paid. Space is a very dangerous environment.49 It is clear, we hope, that in space the underlying ethos of ARRA would be extended to mutual aid,50 but that Agreement itself is of largely terrestrial application. Article V of the Outer Space Treaty requires Parties immediately to inform other Parties and the UN Secretary General of any phenomena in outer space that pose a threat to life or health of astronauts.51 One such is radiation.52 Suitable provision must be made for the protection of astronauts from the perils of radiation from any nuclear devices powering spacecraft or any base as well from solar and cosmic radiation.53 Radiation threats from solar and cosmic origin are much increased beyond the shield provided by the Earth’s magnetic 49 �� ‘Space Safety Report: Vulnerabilities and Risk Reduction in US Human Space Flight Programs’ (Washington DC: George Washington U, 2005); J.N. Pelton, Space Exploration and Astronaut Safety (Reston, VA: AIAA, 2006) and his ‘Improved Space Safety for Astronauts’ (2005) 21 Space Policy 221–5; Cf. the Final Report of the International Space Station Independent Safety Task Force, 2007 (www.nasa.gov/pdf/170368main_ IIST_%20Final%20Report.pdf) for considerations of risk which are relevant not only for the ISS but also for extended missions. 50 �� See infra, text at n. 75 and following. 51 �� Cf. MA Art. 5.3. 52 �� Perhaps a fertile astronaut should be given the opportunity (or right?) to freeze sperm or eggs so as to obviate possible sterility through exposure to radiation. While this chapter was in draft, NASA published on 3 May 2007 ‘NASA Space Flight Human System Standard: Vol. 1: Crew Health’ NASA-STD-3001: www.nasa.gov/centers’johnson/doc/ 173505main_NASA_STD_3001_Vol1Approved.doc. Problems of radiation are included. See also infra n. 53. 53 �� US National Research Council et al., Managing Space Radiation Risk in the New Era of Space Exploration (Washington DC: National Academies Press, 2008); US National Research Council et al., Radiation Hazards to Crews of Interplanetary Missions: Biological Issues and Research Strategies (Washington DC: National Academies Press, 1996); US National Research Council, Report of a Workshop, Space Radiation Hazards for the Vision of Space Exploration (Washington DC: National Academies Press, 2006): http://www.nap. edu/catalog.php?record_id=11760#toc; L. Lane et al., eds, Workshop Report on Managing Solar Radiation (2007) NASA/CP-2007-214558: http://event.arc.nasa.gov/main/home/ reports/SolarRadiationCP.pdf. T.A. Parnell et al., Report of the Materials Science Panel on Radiation Effects and Protection for Moon and Mars Missions: http://science.nasa.gov/ newhome/headlines/space98pdf/cosmic.pdf. Cf. R.A. English et al., ‘Apollo Experience Report – Protection Against Radiation’ (NASA, Technical Note D-7080, 1973: http://history. nasa.gov/alsj/tnD7080RadProtect.pdf); R.K. Tripathi and J.E. Nealy, ‘Mars Radiation Risk Assessment and Shielding Design for Long-Term Exposure to Ionizing Radiation’ (2007 IEEEAC Paper 1291 – NASA Technical Reports Server, Doc. Id. 20080013522: http:// ntrs.nasa.gov/search.jsp?R=815626&id=2&qs=N%3D4294967190); M. Hempsell and R. Moses, ‘The Impact of Radiation Protection on the Design of Space Habitats’ (2008) 61 J. Brit. Interplan. Soc. 146–53; J.W. Wilson et al., ‘Issues in Deep Space Radiation Protection’ (2001) 49 Acta Astronautica 289–312. See also the discussion in Chapter 10 of the UNGA Nuclear Power Principles of 1992.

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field and the Van Allen belts.54 Space-suits at present are, apparently, not entirely suitable for repelling solar or cosmic radiation: astronauts return to the safety of the International Space Station if a solar storm is detected while they are on a space-walk. Redesign and further invention are required and various institutions are researching such matters and developing appropriate technologies.55 Equally spacecraft and any lunar or Mars base would require appropriate shielding that would last. While a spacecraft can be oriented to present a minimal target to solar radiation, a base cannot. Apart from radiation there is also the potential of meteorite impacts to be guarded against. The topography of the Moon and Mars, as well as the proven meteoric collisions with the Space Shuttle and other spacecraft, show the dangers. Again, suitable design and materials for shielding are required. Medical facilities and suitable arrangements are also important. In low-Earth orbit evacuation to terrestrial accommodation may be feasible. It certainly will not be feasible on long-range journeys, or from the Moon or Mars. In both a spacecraft and a celestial base physical illness, whether congenital or by infection, must be able to be coped with, as must accident and mental trauma.56 What would on Earth be a debility or illness of minor concern might, in the environment of space or an extraterrestrial base, become of major significance.57 Medical training, even at a rudimentary level, should be given to some at least of the personnel, if not all. Some use might be made of tele-medicine, but the inescapable time delay on messaging is a limiting factor. On a long-range mission it is unlikely that specific reserved provision could be made for hospitalisations. After its initial stages a Moon-base may have sufficient specialised provision for medical facilities to cope with many 54 �� Solar radiation is linked to ‘sun-spots’ which largely (but not entirely) follow an eleven year cycle of intensity. Cosmic radiation is quite unpredictable. Cf. http://www. spaceweather.com. The present International Space Station orbits below the Van Allen belts and so astronauts are to a degree protected from solar radiation. However, usual practice is for astronauts to retreat to the protection of the Shuttle during a solar flare. 55 �� Cf. n. 53 supra. See also ‘NASA plans Future Spacesuits for Planetary Missions’ (1999): http://www.space.com/businesstechnology/technology/isuit_991110.html; Mars Spacesuit Prototype Trials Underway in North Dakota (2006); http://www.space.com/ businesstechnology/060505_mars_spacesuit_test.html. See also the Space Suit Laboratory, http://human.space.edu/. A new US space-suit is planned for the US return to the Moon: http://www.nasa.gov/mission_pages/constellation/main/spacesuit.html. 56 �� A.A. Cocca, ‘Legal Aspects of Mental and Physical Workload of Astronauts’ (1994) 37 Proc. IISL 213–21. G.A. Landis, ‘An all-woman crew to Mars: a radical proposal’ (2000) 16 Space Policy 167–9, makes sense. Since 1993 Australia and NASA have run a joint programme on the effects of isolation on human health. Its results have relevance for extended space missions: New Scientist, 3 October 2008: http://space.newscientist. com/article/dn14870-antarctic-bases-offer-lessons-for-space.html; http://www.msnbc.msn. com/id/27000348/; http://www.aad.gov.au/default.asp?casid=13373; http://www.aad.gov. au/default.asp?casid=2034; http://www.abc.net.au/news/stories/2008/10/03/2381490.htm. 57 �� On Apollo 13 one astronaut, F.W. Haise, was affected by a urinary tract infection. On other space missions the common cold has caused problems.

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occurrences. Whether a spacecraft on mission could provide such a facility may be a question. So far as practicable, medical facilities must be provided to cope with all such occurrences, but one must ask what is ‘practicable’ in the context of space. Then there is the matter of criminal activity. What of theft, assault, rape or murder? The arrangements for the International Space Station make provision for such matters.58 By Art. 22 of the ISS Intergovernmental Agreement (IGA)59 the parties retain criminal jurisdiction over their nationals on the ISS.60 Should misconduct of a national affect the life or health of the national of another party or damage the flight element (sc. module or equipment) of another party, the national state of the alleged perpetrator is to consult the other party at its request as to their respective interests in a prosecution. The affected partner state may exercise criminal jurisdiction ninety days after the consultation (or other agreed period) if the national state of the perpetrator so agrees, or fails to prosecute under its legal system. Extradition is possible (ISS IGA, Art. 22.3) and mutual assistance required (ISS Agreement, Art. 22.4). Article 22 does not, however, limit nor is limited by the ISS Code of Crew Conduct provided for under ISS IGA Arts 11.2 and 11.6 or the related Intergovernmental Memoranda of Understanding between the ISS Partners.61 58 �� Cf. A. Farand, ‘Astronauts’ Behaviour on Board the International Space Station: Regulatory Framework’ Sec. 3, ‘Criminal Jurisdiction’, in Legal and Ethical Framework for Astronauts in Space Sojourns (UNESCO, 2005): http://portal.unesco.org/shs/en/file_ download.php/785db0eec4e0cdfc43e1923624154cccFarand.pdf; J. Hermida, ‘Crimes in Space: A Legal and Criminological Approach to Criminal Acts in Outer Space’ (2006) XXXI AASL 405–23; H.P. Sinha, ‘Criminal Jurisdiction on the International Space Station’ (2004) 30 J. Sp. L. 85–127; T.A. de Roos, ‘Disciplinary and Criminal Law in Space’, in F.G. von der Dunk and M.M.T.A. Brus, eds, The International Space Station (Leiden: Martinus Nijhoff, 2006) 115–23. In 1999–2000 a 110-day mission experiment Sphinx-99 (Simulation of Flight of International Crew on Space Station) conducted on the ground in Russia failed partly due to an incompatibility of cultures: http://www.jamesoberg.com/04142000assault_ rus.html or http://eugen.leitl.org/tt/msg02366.html. 59 �� Agreement among the Government of Canada, Governments of the Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation and the Government of the United States of America Concerning Cooperation on the Civil International Space Station: Washington DC, 29 January 1998, in force 27 March 2001; (2005) 30 AASL-II, 201–25; ftp://ftp.hq.nasa.gov/pub/pao/reports/1998/IGA. html; http://laws.justice.gc.ca/en/C-31.3/35016.html#rid-35052. Excerpts from the IGA are printed in Annex 5 to F.G. von der Dunk and M.M.T.A. Brus, The International Space Station: Commercial Utilisation from a European Perspective (Leiden: Nijhoff, 2007), 227–41. 60 �� The question therefore may arise as to jurisdiction over a ‘space tourist’ who is not a national of an ISS participant state. See G. Catalano Sgrosso, ‘Legal Status, Rights and Obligations of the Crew in Space’ (1998) 26 J. Sp. L. 163–86 and her ‘Legal Status of the Crew in the International Space Station’ (1999) 42 Proc. IISL 35–49. 61 �� The MOUs are between NASA and the relevant authorities in: 1. Canada – ftp://ftp.hq.nasa.gov/pub/pao/reports/1998/nasa_csa.html.

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The ISS ‘Code of Crew Conduct’ broadly sets out what its title implies.62 A party to the ISS IGA must approve the Code before providing an ISS crew member, and is to ensure that that crew member observes the Code (ISS IGA Art. 11.2). The Code applies from the time the crew member is assigned to a particular ISS occupation sequence to the end of the post-flight requirements. The Code ranges from a prohibition on taking materials on-board for private gain,63 to questions of harassment, to matters of the protection of intellectual property.64 Disciplinary procedures are a matter for the national state of an astronaut, although there is a commonality in the aims to be secured. All that said, the initial selection of an astronaut, or of a space tourist, remains an important stage in the whole process of manned space-flight.65 Debris Another matter of concern for astronauts is the accumulation of space debris, particularly in low Earth orbit, which is where most current astronaut activity takes place. Threats to life or physical trauma can be caused by space debris. Space debris has been recognised as a major problem, albeit that the efforts to diminish its impact remain recommendations and non-binding practices.66 Although so far 2. Japan – ftp://ftp.hq.nasa.gov/pub/pao/reports/1998/nasa_japan.html. 3. ESA – ftp://ftp.hq.nasa.gov/pub/pao/reports/1998/nasa_esa.html. 4. Russia – ftp://ftp.hq.nasa.gov/pub/pao/reports/1998/nasa_russian.html. 62 �� ‘International Space Station Crew-member Responsibilities’ (US) 14 Code of Federal Regulations (CFR), §§1214.402–4. Selection criteria for ISS crew and of space tourists are outlined in ‘Principles Regarding Processes and Criteria for Selection, Assignment, Training and Certification of ISS (Expedition and Visiting) Crewmembers’ produced by the Multilateral Crew Operations Panel of the ISS Participants, November 2001: http://www.spaceref.com/news/viewsr.html?pid=4578. For the US domestic requirements see supra n. 13. 63 �� Presumably for later sale in the ‘space souvenir’ market, or for advertising purposes. Cf. US Astronaut rules, supra n. 62. 64 �� See outline in Farand, supra n. 58. 65 �� See supra n. 62. 66 �� On 22 December 2007 on the Report of the Committee on the Peaceful Uses of Outer Space (A/62/20) by UNGA Res. 62/217 the General Assembly approved the COPUOS endorsement of a set of voluntary guidelines for the mitigation of space debris. These guidelines are largely the work of the 11 member Inter-Agency Space Debris Coordination Committee (IADC), http://www.iadc-online.org/, and the ‘IADC Space Debris Mitigation Guidelines’: http://www.iadc-online.org/docs_pub/IADC-101502.Mit. Guidelines.pdf. See also Chapter 10 – ‘Debris’. See also the five signatory European ‘Code of Conduct for Space Debris Mitigation, 2004’: http://www.esa.int/SPECIALS/ESOC/ SEMZPBW797E_0.html. For the US see: NASA http://orbitaldebris.jsc.nasa.gov/mitigate/ safetystandard.html; NASA Safety Standard 1740.14 of August 1995 ‘Guidelines and Assessment Procedures for Limiting Orbital Debris’, and the FCC requirements contained

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our experience is with debris in close-Earth orbit, debris mitigation is necessary to prevent problems for all astronauts everywhere. Debris may not constitute ‘harmful interference’ as such, but it is a potential menace. A punctured spacesuit, spacecraft, capsule or Moon-base could spell disaster, raising questions for ‘long-range missions’. Suffice it here to note that collision avoidance manoeuvres are increasing in number for both manned and unmanned spacecraft. Long-range and Long-duration Missions Long-range missions present particular problems.67 Long-duration missions may do so also. Difficulties may be encountered with illnesses caused by psycho-social pressures or inherent personality instabilities that lead to diminished competence or reliability. The environment of a spacecraft or of a Moon or Mars base might aggravate any inherent tendencies to mental instability. What provision might be made for such must be worked out in advance and implemented.68 Long-range missions include the setting up of manned bases on the Moon or Mars or the long-duration space flight and would also include such as the space hotel. We have outlined some medical considerations, but in relation to long-range mission the ‘unthinkable’ must be thought about in advance. Were an astronaut to die, decomposition on-board a space-ship would be unacceptable. It would be better to abandon the body to space,69 although the loss of mass could affect the calculation of any required ‘burns’ for future course corrections.70 Burying a body on the Moon or Mars could be considered as contrary to the international duty not to contaminate celestial bodies, although the disposal of human effluvia seems likely to occur.71 But returning a body to Earth for burial from Earth or Mars is not likely to be practicable, let alone cost-effective, for many decades. in In the Matter of Mitigation of Orbital Debris, Second Report and Order; IB Docket no. 02-54, 19 FCC Rcd 11567; June 2004. See also NASA’s ‘Orbital Debris Quarterly News’: http://orbitaldebris.jsc.nasa.gov/newsletter/newsletter.html. 67 �� Reference point nn. 15, 36 and 38. 68 �� See supra n. 56. 69 �� Cf. David Bowman’s release of the body of Frank Poole towards Jupiter in the film, 2001: A Space Odyssey (1968). Two questions therefore arise: (1) under such circumstances is a dead astronaut a space object, and (2) if so, should he/she be put on the UN Register? Apparently some states have already registered shrouds in orbit (see Chapter 4, p. 106). 70 �� Apparently after the explosion in Apollo 13 the dumping of urine and other waste was prohibited so as not to alter mass and therefore the trajectory of the crippled vehicle. This allowed Ground Control to calculate the necessary ‘burn’ for the return to Earth. 71 �� By OST Art. IX states are ‘to conduct exploration of’ the Moon and other celestial bodies ‘so as to avoid their harmful contamination’. Cf. MA Art. 7.1: ‘In exploring and using the moon, States Parties shall take measure to prevent the disruption of the existing balance of its environment whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or

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Other conditions of ultimate crisis may arise.72 What if there were an air leak in a base, a space hotel or a spacecraft?73 Help might be forthcoming from other astronauts in terms of OST Art. V,74 or under MA Art. 10.2,75 but in most instances such help would probably be impossible. On Earth it is accepted that in submarine navigation water- and air-tight doors may have to be sealed to preserve the submarine as a whole, notwithstanding any consequent loss of life. It must be clear that a similar rule would apply in the air-less conditions of space or an extra-terrestrial base. But then, what if the residual air is sufficient to preserve the life of fewer than the number of surviving personnel?76 What if the ‘shelter’ to be potentially afforded under MA Art. 10.2 were to over-tax the air reserves of a base? Such problems have occupied philosophers and terrestrial courts. On occasion they have been occluded from civil or criminal proceedings.77 As far as court consideration is concerned, one famous English case is Regina v Dudley and Stevens, 14 Q.B.D. 273 (1884); [1881–85] All E.R. Rep. 61, where a cabin boy, Richard Parker, was otherwise’. Article 7.2 then speaks of radioactive materials, but biological contamination may be more to be avoided. One could have fun with the wording of part of MA Art. 8.2.b which allows the ‘placement’ of personnel below its surface, and its Art. 11.3 which, while prohibiting property rights in the Moon, also speaks of such placement below the surface. What of a burial ground? Would cremation be preferable? As for effluvia the environs of the US base at the South Pole is not reassuring. Astronauts must avoid harming the Moon environment: cf. P.B. Larsen, ‘Application of the Precautionary Principle to the Moon’ (2006) 71 J. Air L. and Comm. 295–306. 72 �� We note that President Nixon had a prepared a statement should the engine of the Lunar Excursion Module of Apollo 11 have failed to fire, the module therefore not made the ascent back up to the Command Module and the occupants (Armstrong and Aldrin) been stranded on the Moon. Source: ‘In the Shadow of the Moon’, TV programme 2008; see inter alia http://www.thesmokinggun.com/archive/apollo1.html; http://en.wikipedia.org/ wiki/In_Event_of_Moon_Disaster#Contingency_television_address; and http://watergate. info/nixon/moon-disaster-speech-1969.shtml. Cf. W. Safire, http://query.nytimes.com/ gst/fullpage.html?res=9B0CE2D7103CF931A25754C0A96F958260. Presumably later presidents had similar texts prepared in case of disasters. 73 �� What if there is an air leak on a space hotel, and only some of the clients can be rescued? Cf. Sundahl, supra n. 15. 74 �� OST Art. V para. 2 states: ‘the astronauts of one state Party shall render all possible assistance to the astronauts of another State Party’. See also supra n. 21. 75 �� Art. 10.2 of the Moon Agreement states: ‘States Parties shall offer shelter in their stations, installations, vehicles and other facilities to persons in distress on the moon’. 76 �� In the Apollo 13 incident one problem after the explosion was that the Lunar Excursion Module was designed for two people for two days, but was used to accommodate three people for four days. 77 �� G.R. Stewart, Ordeal by Hunger: The Story of the Donner Party (New York: Houghton Mifflin, 1992); P.P. Read, Alive: The Story of the Andes Survivors (London: Secker and Warburg, 1974), rep. as Alive: Sixteen Men, Seventy-two Days, and Insurmountable Odds (London: Harper Perennial, 2005). Cf. the facts behind Théodore Géricault’s painting ‘The Raft of the Medusa’ (1819).

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killed (perhaps) and eaten (certainly) to preserve the life of others in a lifeboat after the 1884 sinking of the Mignonette off the Cape of Good Hope. A defence of necessity was not accepted and the accused were convicted of murder and sentenced to death. This was speedily commuted to six months’ imprisonment without hard labour.78 A leading US case is United States v Holmes, 26 F. Cas. 360 (1842); (1842) 5 Wheat. 412, where a seaman was tried for manslaughter. He had ordered some to be thrown overboard from an overloaded lifeboat to prevent it sinking, thereby saving the remainder. Holmes was found guilty, sentenced to some months in prison and a fine. Both cases are notable for their discussion of matters on which different legal traditions may arrive at divergent results.79 How should such questions be treated in the context of space? Much depends on the gravity of what is sought to be excused by a defence of necessity. Would not the preservation of many under the conditions of insufficiency of air be defensible?80 It is said that in fact at the time of Dudley v Stevens cannibalism did 78 �� A.W.B. Simpson, Cannibalism and the Common Law (Chicago: Chicago UP; London: Hambledon, 1984). Dudley emigrated to Sydney, Australia, and became a successful boat-builder and ship-chandler, dying in 1900. Stevens went back to sea and died in 1914. Given the offence charged, that hard labour was not imposed was unusual at the time. See also Hanson, infra n. 81. 79 �� See famously, Lon Fuller, ‘The Case of the Speluncean Explorers’ (1949) 62 Harv. L. Rev. 616–54 and (1999) 112 Harv. L. Rev. 1851–75. See also A. D’Amato, ‘The Speluncean Explorers – Further Proceedings’ (1979–1980) 32 Stan. L. Rev. 467–485; W.N. Eskridge, Jr, ‘The Case of the Speluncean Explorers; Twentieth-Century Statutory Interpretation in a Nutshell’ (1993) 61 Geo. Wash. L. Rev. 1731–53; N.R. Cahn et al., ‘The Case of the Speluncean Explorers: Contemporary Proceedings’ [7 new Opinions] (1993) 61 Geo. Wash. L. Rev. 1754–1811; ‘The Case of the Speluncean Explorers: A Fiftieth Anniversary Symposium’ [6 new Opinions] (1999) 112 Harv. L. Rev. 1834–1923; J. Allan, ‘A Post-Speluncean Dialogue’ (1994) 44 J. Leg. Educ. 519–30; J. Allan, The Speluncean Case (London: Barry Rose, 1999); P. Suber, The Case of the Speluncean Explorers: Nine New Opinions (London: Routledge, 1998, 2002). Cf. A.M. Sanders, Jr, ‘Newgarth Revisited: Mrs Robinson’s Case’ (1997–8) 49 Sth. Car. L. Rev. 407–61; J.B. Ruhl, ‘The Case of the Speluncean Polluters: Six Themes of Environmental Law, Policy and Ethics’ (1997) 27 Env. L. 343–73; P.L. Caron and R. Gely, ‘Affirmative Refraction: Grutter v Bollinger through the Lens of the Case of the Speluncean Explorers’ (2004) 21 Const. Comment 63–106. From a philosophical perspective, cf. J.J. Thomson, ‘The Trolley Problem’ (1984– 1985) 94 Yale L.J. 1395–415; E. Rakowski, ‘Taking and Saving Lives’ (1993) 93 Col. L. Rev. 1063–156; T. Stacey, ‘Acts, Omissions and the Necessity of Killing Innocents’ (2001– 2002) 29 Am. J. Crim. L. 481–520; T. Stelzig, ‘Deontology, Governmental Action, and the Distributive Exemption: How the Trolley Problem shapes the Relationship between Rights and Policy’ (1998) 146 U. Penn. L. Rev. 901–59. Similar questions also arise in triage decisions in medical practice and disaster management: J.G. Hodge Jr, ‘Legal Triage during Public Health Emergencies and Disasters’ (2006) 58 Admin. L. Rev. 627–44. 80 �� J.S. Mill, Utilitarianism (1863) (many eds). Cf. Tom Godwin, ‘The Cold Equations’ (1954) – the sacrifice of one in the interests of the many or of the mission. Cf. also John 11: 50.

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occur in similar circumstances, those in lifeboats drawing lots as to who should die – a voluntary giving up of one’s life for the salvation of others.81 We applaud the case of Captain Titus Oates, who left Robert Falcon Scott’s party on its return from the South Pole in 1912 in the (apparent) belief that by sacrificing himself the others might survive to make it to the next food dump.82 The possibility must be faced that in space circumstances may force similar decisions. Should suicide pills be an essential component of the medical kit? And therefore crucially, how are the person or persons to die to be selected? Should it be a volunteer, or determined by ballot, by lot, by majority vote? Should it be the least important for the mission,83 or be identified by fiat of the mission commander, or of Mission Control?84 Before such questions arise the law must be clear. On a similar line of thought, consideration must be given to the possibility that an astronaut becomes deranged and/or murderous. If an astronaut becomes incapable of functioning as a member of the group, that may be one thing, but circumstances are different if he or she becomes a danger to the others.85 Should he or she become murderous or deluded and indifferent to general safety, then summary execution may be prudent. How should such a case be determined?86 81 �� N. Hanson, The Custom of the Sea (New York: Doubleday/Wiley, 2000). 82 �� M. Smith, I Am Just Going Outside: Captain Oates – Antarctic Tragedy (London: Spellmount/Tempus, 2006). 83 �� Here, status as a fee-paying passenger or space tourist could prove crucial: operational crew are essential. 84 �� See citations in n. 79 above, and particularly E. Rakowski, ‘Taking and Saving Lives’ (1993) 93 Col. L. Rev. 1063–156. Cf. A.C. Clarke, ‘Transit of Earth’ (1971), Arthur C. Clarke: The Collected Stories (London: Gollancz, 2000) 883–93. 85 �� The ISS Code of Crew Conduct does not specifically deal with the use of force to quell a problematic crew member. Farand (supra n. 58) at para. 2.3.3.5 states that the negotiators of the Code felt the power of the commander to ‘use reasonable and necessary means’ to discharge his responsibilities would cover the matter, but nonetheless included in the minutes of the meeting that finally approved the Code a statement that such ‘means’ could include proportional physical force or restraint if necessary for the safety of the crew member or of the ISS itself. Cf. Sinha supra n. 58, at 126–7. 86 �� Of course under these circumstances it may be the mission commander who is the problem. Cf. H Wouk, The Caine Mutiny (1951, many eds) and the later film (1954). Mental stability is a factor assessed in astronaut recruitment, but even the best test may fail. Cf. ‘NASA Astronaut Health Care System Review Committee February–June 2007: Report to the Administrator’, http://www.nasa.gov/pdf/183113main_NASAhealthcareReport_ 0725FINAL.pdf. G.S. Robinson, ‘Astronauts and a Unique Jurisprudence: A Treaty for Spacekind’ (1984) 7 Hastings Int. and Comp. L. Rev. 483–99 at 484–91 considers the possible effect of space on the physical and mental health of an astronaut. Present NASA procedures for space station emergencies are contained in the International Space Station Integrated Medical Group (IMG) Medical Operations Book: All Expedition Flights, Mission Operations Directorate, Operations Division, JSC-48511-E1, 24 August 2000, http://www.spaceref. com/iss/ops/iss.MedOps.Final.pdf. Provisions relevant to our text are at http://www.spaceref. com/iss/medical/8647.suicide.emerg.pdf; http://www.spaceref.com/iss/medical/8440.behav.

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It follows that before long-term missions are embarked on, clear decisionmaking processes should be identified to cope with ‘worst’ cases as well as with behaviour of more limited concern. It would also be necessary to establish appropriate codes of conduct. Such should not be unduly precise, but should leave room for the informed input of those administering it. At first we may expect a maritime/military command structure, but that will not be suitable in larger communities. In the case of an extra-terrestrial base, whether on a celestial body or a space station having many occupants and a degree of permanence, it will be necessary in due course to provide some sort of ‘constitution’ as well as administrative and court procedures,87 but such questions take us well beyond what we are prepared at present to discuss. Much is a question of policy other than law. Policy must dictate the answers to many questions relating to the safety of astronauts. The law must follow, incorporating where necessary the decisions and determinations into legal form. In other matters law must provide procedures. The ‘worst case’ scenarios require fuller consideration than they have had to date.88 In this the UNESCO Commission on the Ethics of Scientific Knowledge and Technology (COMEST) may play a role.89 Its work on the ‘Ethics of Outer Space’ is thought-provoking.

suicidal.pdf; http://www.spaceref.com/iss/medical/8441.acute.psychosis.pdf; and http://www. spaceref.com/iss/medical/8648.acute.psychosis.emerg.pdf. These all speak of restraining the individual, the use of tranquillising drugs and the possible removal of the person. Such procedures may not suffice on long-range missions where removal is not an option. 87 �� Cf. M.H. Ryan and I. Kutschera, ‘Lunar-based Enterprise Infrastructure – Hidden Keys for Long-term Business Success’ (2007) 23 Space Policy 44–52; ‘Self-Government in Space’, in G.S. Robinson and H.M. White, Jr, Envoys of Mankind: A Declaration of First Principles for the Governance of Space Societies (Washington DC: Smithsonian Press, 1986), 196–206, and ‘A Convention for Space-kind: Treaty Governing the Social Order of Long-Duration or Permanent Inhabitants of Near or Deep Space’, ibid. at 266–70; Robinson, supra n. 86 and G.S. Robinson ‘No Space Colonies: Creating a Space Civilization and the Need for a Defining Constitution’ (2004) 34 J. Sp. L. 169–79; his ‘Space Law for Humankind, Transhumans and Post-Humans’ (2008) XXXIII AASL 287–324; his ‘Transcending to a Space Constitution: The Next Three Steps Toward a Defining Constitution’ (2006) 32 J. Sp. L. 147–75; D.N. Feofanov, ‘Luna Law: The Libertarian Vision in Heinlein’s The Moon is a Harsh Mistress’ (1995–6) 63 Tenn. L. Rev. 71–141. 88 �� In May 2007 Associated Press reported that NASA is to discuss such matters over the next few years: http://www.cnn.com/2007/TECH/space/05/01/death.in.space.ap/index. html; http://www. msnbc.msn.com/id/18420059. 89 �� For COMEST, Google ‘UNESCO COMEST’ or see: http://portal.unesco.org/shs/ en/ev.php-URL_ID=6193&URL_DO=DO_TOPIC&URL_SECTION=201.html. Cf. M. Couston, ‘Spatioethique – Reflexions sur La Teneur Ethique du Droit Spatial’, in A. Kerrest, ed., L’Adaption du Droit de l’Espace ses Nouveau Défis – Liber Amicorum, Mélanges en l’honneur de Simone Courtieux (Paris: Editions Pedone, 2007) 49–86 (also 2004 Rev. Fr. de Dr. Aer. et Sp.).

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Chapter 6

The Air/Space Boundary Question Introduction One of the stranger things about space law is that when or where that legal regime applies is not yet settled. There is no specific international agreement as to any boundary between air-space and outer space. The Outer Space Treaty of 1967 and its companions are silent on the matter. In the future the regimes of ‘space’ and ‘air-space’ may well be delineated similarly to the distinction that is made between the high seas and other areas of the sea subject to national sovereignty, but as we write there is uncertainty – not that space law exists, but as to the exact location of its application. Needless to say there have been many suggestions. A state exercises sovereignty in a three-dimensional quasi-cone. This comprises in the horizontal plane the land territory of a state together with its territorial sea should there be one. Historically state sovereignty extends downwards in the vertical plane usque ad inferos – down to Hell. Upwards in the vertical plane a state is sovereign over the air-space above its land territory and territorial sea – usque ad coelum – up to Heaven. Above the high seas beyond the territorial sea there is also an air-space. This is not subject to the sovereignty of any state although for the purposes of civil aviation it may be in part subject by agreement to air traffic control, and also may include areas subject to military surveillance and sometimes control. �� The only relevant general statement in international law is in the ITU Radio Regulations, where RR 1.177 defines ‘deep space’ as ‘Space at distances from the Earth equal to, or greater than, 2 × 106 km’ (2,000,000 km/1,243,000 miles); cf. L. Perek, ‘Deep Space at WARC ORB-88’ (1989) 32 Proc. IISL 255–8. By comparison the orbit of the Moon varies between c. 363,000 km/225,000 miles and c. 406,000 km/252,300 miles. ‘Deep space’ is some five times further than the Moon. Where is ‘shallow’ space? Perek indicates that it might be suitable to fix on the limit of possible satellite Earth orbits. �� The statement is loose, but will serve. The modern Law of the Sea recognises a right of innocent passage through territorial waters together with state jurisdiction beyond territorial waters for particular purposes including for regulating the Exclusive Economic Zone and the Continental Shelf. The older simple distinction between the high seas and national waters is now inadequate. �� Various Air Defence Identification Zones (ADIZ) exist in which all aeroplanes are required to identify themselves and may be subject to direction. ADIZs are constituted mainly for aviation safety, but may have security aspects. Most ADIZs lie within national air-spaces, but some apply over parts of the high seas. See ICAO Aeronautical Information Services: Annex 15 to the Chicago Convention (12th ed., ICAO, 2004), and ICAO Air

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Our interest is the air-space above state territory. Corresponding with the suggestions of early writers, it is now clear that above state territory there is somewhere where the rules of outer space apply. Article VI of the Outer Space Treaty speaks of activities ‘in’ outer space while para. 3 of Art. I deals with freedom of scientific investigation ‘in’ outer space – so you can be in the ‘somewhere’. However, the boundary between the regime of air-space and that of outer space is, as a matter of law, uncertain. That said, it is clear from the earliest days that commentators saw the need for recognising the two jurisdictions. The matter is obscured by the language used. ‘Boundary’, ‘delineation’, ‘above’, ‘somewhere’ (italics added), ‘arena’ or ‘area’ subject to sovereignty, space as ‘beyond’ air-space – these and many other formulations used in discussion of the question have overtones, often hidden from their users. The language is metaphoric, drawing upon concepts of space and boundary that are appropriate to physical distinctions, the boundary line between domestic properties or between states being obvious referents. Such language predisposes to the highlighting (not to say the generation) of certain aspects that may unconsciously prejudge the Navigation Commission Doc. AN-WP/7463 + Add.1, 1999, on the ‘Promulgation of Information on Air Defence Identification Zone (ADIZ)’ (effective 2 November 2000). Cf. the US Code of Federal Regulations, Title 14 Aeronautics and Space, Part 99, ‘Security Control of Air Traffic’ (14 CFR Part 99); FAA International Flight Information Manual, ‘Security’ (www.faa.gov/ats/aat/ifim/ifim0104.htm) (with maps: the Guam ADIZ has a radius of 250 nautical miles): Canada: the Canadian Aviation Regulations, 2006, Part VI, Sec. 601.01(4)(g) and the Designated Airspace Handbook (Transport Canada: TP1820E) 90–153 with map at 151; UK: the Air Navigation Order, SI 2005/1970, Arts 59, 60 and 165 as to ‘designated required navigation performance airspace’. Cf. the requirements of the European Aviation Safety Agency and its ‘Implementing Rules’: www.easa.eu.int. See also M. Bourbonniere and L. Haeck, ‘Military Aircraft and International Law: Chicago Opus 3’ (2001) 66 J. Air L. and Comm. 885–978. �� In the 1960s there was much interest in the ‘Harp’ and ‘Martlet’ high-altitude research projects being run by Gerald Bull. Bull hoped eventually to launch a satellite into orbit using a gun (cf. Jules Verne, From the Earth to the Moon, 1865). See J. Adams, Bull’s Eye: The Assassination and Life of Supergun Inventor Gerald Bull (New York: Times Books, 1992); W. Lowther, Arms and the Man: Dr. Gerald Bull, Iraq and the Supergun (London: Macmillan, 1991); D. Grant, Wilderness of Mirrors: The Life of Gerald Bull (Toronto: Prentice Hall, 1991). �� Cf. Chapter 1, p. 2. �� Ibid. An extensive note of the views of commentators down to its date is in A.G. Haley, ‘Space Law and Metalaw – Jurisdiction Defined?’ (1957) 24 J. Air L. and Comm. 286–303. �� For examples, the ‘Wall’ that marked the boundary between East and West Berlin, or the man-made sand banks that demarcate Western Sahara and Morocco. River boundaries can be more fluid – Case concerning the Frontier Dispute (Benin v Nigeria) 2005 ICJ Rep. 90. Cf. the use of Benjamin Franklin’s throwaway remark about a ‘wall of separation between Church and State’, in US constitutional law – e.g. Everson v Board of Education (1947) 330 US 1, and subsequent cases.

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issue. Even a simple phrase such as ‘space lies beyond air-space’ can foster an assumption that a physical distinction must be reflected in the legal differentiation – that ‘space’ is ‘further away’ than ‘air-space’. That is not necessarily true. We must, therefore, always test the language of discourse, not necessarily to eliminate metaphor and analogy, but at least to ensure that the overtones of language do not impede a proper appreciation of the matter under discussion. When questions of space law fully emerged, well-developed concepts of air law were already in existence. To employ another metaphor, space law had to enter a field that was already considerably occupied by the tangled growth and undergrowth of air-space sovereignty. Historically the jurisdiction over a state in relation to air-space above its surface significantly ante-dates any question of an upper limit to air-space sovereignty. However, that ‘jurisdiction’ was simply the right to make and enforce rules as to the uses made of the air-space coterminous with the state concerned. Although the language in some legal writing before the development of aviation may be construed to have a bearing upon the modern question, it is specious to argue that these hyperbolic statements were intended to deal with questions of the use of air-space by transit through or above it. Thus there is the famous gloss by Accursius of Bologna to the effect that ‘cuius est solum eius est ab inferos usque ad coelum’.10 However, the gloss and its variants were conceived in relation to the boundaries of property and the incursion into the air-space over property by tree-branches, projecting balconies and oriel windows. The Romans and the mediaeval commentators had no concept of a sovereignty over or of air-space similar to the modern notions. Problems of sovereignty and the need for legal control over objects in transit through air-space came much later. But come they �� An impossible task, Wittgenstein notwithstanding: L. Wittgenstein, Tractatus Logico-Philosophicus (German ed. 1921: Engl. trans, 1921: many eds). �� Cf. Glanville Williams, ‘Language and the Law’ (1945) 61 Law Q. Rev. I, 71–86; II, 179–95; III, 293–303; IV, 384–406; VI (1946) 62 Law Q. Rev. 387–406. See also C.K. Ogden and I.A. Richards, The Meaning of Meaning, 10th ed. (London: Routledge and Kegan Paul, 1949); H. Palmer, Analogy (London: Macmillan, 1971); P. Ricoeur, trans. R. Czerny, The Rule of Metaphor (London: Routledge and Kegan Paul, 1978); F. Lyall, ‘Of Metaphors and Analogies’, Slave, Citizens, Sons: Legal Metaphors in the Epistles (Grand Rapids, MI: Academie Books, 1984), 183–9. 10 �� Coke, On Littleton, 4a (many eds); W. Blackstone, Commentaries on the Laws of England, 4 vols, 3rd ed., R.M. Kerr (London: John Murray, 1862), Book II ‘Of the Rights of Things’, 16 (18) quoting the cuius est brocard (infra); F. Lardone, ‘Airspace Rights in Roman Law’ (1931) 2 Air L. Rev. 455–67; J.C. Cooper, ‘Roman Law and the Maxim “Cuius est solum” in International Air Law’, Inst. Int. Air Law, McGill Univ. Pub. no. 1, 1952 (rep. I.A. Vlasic ed., Explorations in Aerospace Law: Selected Essays by John Cobb Cooper (Montreal: McGill UP, 1968)) 54–102; F. Lyall, ‘The Maxim “Cuius Est Solum” in Scots Law’ 1978 Jur. �� Rev. 147–69; H.D. Klein ‘Cuius Est Solum, Eius Est … Quousque Tandem?’ (1959) 26 J. Air L. and Comm. 237–54. Cf. for the US, C. Cahoon, ‘Low Altitude Airspace; A Property Rights No-Man’s Land’ (1990) 56 J. Air L. and Comm. 157–98.

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did. We therefore briefly summarise the development of state control over ‘airspace’ as it existed prior to ‘space’, and then turn to the question of a boundary between air-space and outer space. Air-space It took about one-hundred and forty years for the modern concept of air-space to emerge within International Law. At first the problems of over-flight were domestic, and their solution lay within municipal law. The brothers Joseph and Étienne Montgolfier are generally accepted as having begun ballooning, bringing their hot air balloon to Paris in 1783 after experimenting in their home town of Avignon. The first manned flight was made on 21 November 1783 by J.-F. Pilâtre de Rozier, who also became the first casualty when his balloon caught fire and crashed on 15 June 1785. Appreciating the dangers of uncontrolled descents of the new apparatus one Lenoir, a Paris police lieutenant, prohibited balloon flights in the city without special permit as from 23 April 1784.11 In the same year Ypres in Belgium adopted similar legislation, as did Namur, France in 1785 and Hamburg, Germany in 1786.12 The first international flight came in 1785 when Pierre Blanchard and John Jeffries flew from Dover to Calais, and in the next few years ballooning took off, if we may use the expression. In 1815 in the English case of Pickering v Rudd (1815) 4 Camp. 218; 1 Stark 56, the court doubted obiter whether an action of trespass was competent in respect of the mere transit of a balloon over property. In France in 1819 the Count D’Angles, Police Prefect for the Department of the Seine, required balloons to be equipped with parachutes, and prohibited the performance of aeronautical experiments during harvest time.13 Naturally military applications were found. A French Aerostatic Corps was used for observation during the Battle of Fleurus between France and Austria in The Netherlands on 26 June 1794. In the US Civil War the North used tethered balloons

11 �� Cf. the earlier Proclamation published by the French Government on Balloon Ascents, signed by De Sauvigny Lenoir, 27 August 1783, telling the Paris population not to be afraid of balloon experiments starting from the Champs de Mars. Appendix C to E.C. Vivian, A History of Aeronautics (US: Indypublish.com, 2002). See also http://www. worldwideschool.org/library/books/tech/engineering/AHistoryofAeronautics/legalese.html. 12 Shawcross and Beaumont on Air Law, 2nd ed. (London: Butterworths 1951) 3, cited in P.H. Sand, G.M. Pratt and J.T. Lyon, An Historical Survey of the Law of Flight (Montreal: Institute of Air and Space Law, McGill University, 1961) 5; Lord Hope of Craighead, ‘Some Thoughts on the Evolution of Air Law’ (2005) Jur. Rev. 153–71; D.L. Rhoades, Evolution of International Aviation: Phoenix Rising (Aldershot: Avebury Aviation (Ashgate), 2006) 13–20. 13 �� H.G. Hotchkiss, Treatise on Aviation Law (New York) (2nd ed. Baker-Voorhuis, 1938) 4, cited by Sand, Pratt and Lyon (n. 12) 5.

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to observe the landing of cannonades, particularly at the Petersburg trenches.14 During the Siege of Paris in the Franco–Prussian War of 1870–1871 some bold souls made their escape by night by over-flying the German lines in ‘free’ balloons but were threatened as spies if brought down. In the succeeding years ‘dirigible balloons’ were developed by various inventors, allowing a degree of control through the carriage of an engine able to power a suitable propeller. Of these the ‘Zeppelins’, products of the German company founded by Graf von Zeppelin in 1898, are the most famous example. In 1909 Prime Minister Clemenceau of France introduced duties on balloon imports from abroad.15 However by then balloons and dirigibles were regularly crossing international boundaries and governments were becoming concerned. In the meantime academic writing had begun.16 In 1901 Paul Fauchille had published ‘Le domain aerien et le regime juridique des aerostats’17 and the development of the dirigible airship brought questions of air-space jurisdiction into academic prominence. While sporadic and limited municipal regulation had earlier sufficed,18 general uniform national rules were increasingly seen as desirable. Various suggestions were discussed, including analogies with the Law of the Sea, designating internal air-space, a territorial air-space and above it a ‘High Seas of the Air’ in which there would be freedom of navigation. Internationally the regulation of the increasingly common cross-boundary flights made it desirable, not to say necessary, to have international agreement as so whether a state had jurisdiction over its air-space, and, if so, what the nature of that jurisdiction might be.19

14 �� The Union Army Balloon Corps was established in 1861–3 as a civilian adjunct to the Federal Army. 15 �� As to both, see Sand, Pratt and Lyon (n. 12) 5. 16 �� S.E. Baldwin, ‘The Law of the Airship’ (1910) 4 AJIL 95; G.D. Valentine, ‘The Air – A Realm of Law’ (1910) 22 Jur. Rev. 16–27 and 85–104 and his ‘Sovereignty or Freedom in the Atmosphere’ (1911) 23 Jur. Rev. 324–36. Among now almost forgotten authors in the latter article Valentine names Meurer (1909), Henri-Couannier (1910), Loubeyre (1911), Bielenberg (1911) Catellani (1911), H.B. Leech (The Jurisprudence of the Air, 1910), J.F. Lycklama à Nijeholt (Air Sovereignty, 1910) and Hazeltine (infra n. 19). Sand, Pratt and Lyon (supra n. 12) name also Manduca (1891), Pampaloni (1892) and Wilhelm (1891), which we have not traced. 17 �� P. Fauchille, ‘Le domaine aerien et le regime juridique des aërostats’ (1901) 8 Rev. Gen. de Droit Int. Pub. 414 (also Paris: Dalloz, 1901). See also his Report on the ‘Projet de convention sur le regime des aërostats en temps de paix’ to the 1910 Paris Session de L’Institut de Droit International, together with a draft convention (1910) 23 Ann. �� L’Inst. de Dr. Int. 297–311, with response by M Von Bar at 312–9. 18 �� In 1908 the Council of Kissimee City, Florida (now more famous as being next door to Orlando and Disneyland) enacted air traffic control regulation arrogating to itself control to a vertical limit of 20 miles, well above the then ballooning limit. 19 �� On the doctrinal development at this time, see H.D. Hazeltine, The Law of the Air (London: U London/Hodder and Stoughton, 1911) and supra n. 16.

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In 1910 the French Government convened a Conference on the Regulation of Air Navigation.20 Various proposals were made to the Conference which, although a technical failure in that no treaty was adopted at its conclusion, did complete a draft Convention dealing with varied aspects of the subject including nationality of aircraft, registration, documentation of aircraft and of pilots, photographic and radio equipment, rules of the air and prohibited zones.21 However, for a variety of reasons both political and economic, the Conference was unable to come to agreement on a final text.22 Spurred by the varied positions revealed by the Paris Conference, the UK enacted the Aerial Navigation Act of 1911, affirming as part of its Preamble the absolute right of the UK to the air-space above its territory.23 This position was strengthened in the Aerial Navigation Act of 1913 (2 and 3 Geo. V, c.22) which by Sec. 2 authorised the Secretary of State if necessary to order the shooting down of intruding aircraft that had failed to obey instructions.24 The First World War totally changed the attitude of such states as had hankered after air-space analogues to the concept of the high seas beyond a territorial airspace, or to a general right of innocent passage through air-space on the model of the Law of the Sea. The military potential of aviation was made very clear during the years of the War. Although the dirigible was to remain for another fifteen years or so,25 aircraft had been developed which could carry significant loads, and clearly 20 �� J.C. Cooper, ‘The International Air Navigation Conference, Paris, 1910’ (1952) 19 J. Air L. and Comm. 12, reprinted, Cooper, Explorations (n. 10) 104–24. 21 �� ‘Draft International Convention on Aerial Navigation’, Paris 1910, Appendix to the Report of the Civil Aerial Transport Committee, 1918, 1918 UKSP Vol. V, 17, Cd. 9218: http://www.bopcris.ac.uk/imgall/ref8301_1_1.html. 22 �� Crudely, in the UK view concerns of military security required the ‘complete and absolute sovereignty’ of the subjacent state. The then current technology made longdistance access to the ‘British Empire’ across other states improbable. Freedom of innocent passage was therefore not relevant for the UK. German interests were different. Graf von Zeppelin had established dirigible technology, skills and factories in Germany. Germany was topographically ideal for the establishment of a hub-and-spoke system of aerial routes within Europe. Sovereignty subject to a ‘right of innocent passage’ was therefore desired by Germany as it would thereby dominate the new aviation business. Although it had security concerns, France sympathised with the idea of freedom of aerial navigation, subject to necessary safeguards achieved through ‘prohibited zones’. 23 �� This had been the official UK position at Paris, although it is clear that as a result of the debate there the UK negotiators were themselves willing to countenance a more limited right of sovereignty. Their wavering was rejected when they returned, particularly by the military establishment. 24 �� J.C. Cooper ‘State Sovereignty in Space: 1910–1914’, Beitrage zum internationalen Luftrecht: Festschrift fur Alex Meyer (Dusseldorf, 1954), reprinted in Cooper, Explorations (supra n. 10) 125–36. 25 �� Catastrophes such as the destruction of the US Navy dirigibles ‘Akron’ in 1933 and ‘Macon’ in 1933, of the British ‘R101’ in 1930, and the German ‘Hindenburg’ in 1937 saw the virtual end of the large airship as a commercial or military proposition. Interest in dirigibles renewed in the 1990s.

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were faster, more versatile and above all an improvable technology. Therefore, when the French convened a second conference on International Air Law, such matters required little discussion. The first Article of the International Convention on Air Navigation, Paris, 1919,26 recognised that ‘every Power has complete and exclusive sovereignty over the air-space above its territory’. It is important to note the language. This was in effect the creation of an international custom by a treaty provision. It was not an agreement as to the law to be applied solely between the High Contracting Parties: the Parties ‘recognised’ a legal principle applicable to all states, including states not parties to the Convention and including states which, having been on the losing side in the Great War, were not present at the Paris Conference. Of course the absolute rule of sovereignty had to be modified at least between the Parties to permit ease of commerce, but the default position was sovereignty. Thus freedom of innocent passage of aircraft was agreed as between the High Contracting Parties, but its detail was a matter for negotiation between states and would remain subject to the agreement of over-flown states (Art. 2). Where innocent passage was conceded, states could impose conditions as to admission and as to routes (Art. 15), and prohibited zones could be created for military reasons (Art. 3). While therefore there were developments allowing for a greater freedom of aerial navigation in the inter-war years, the base always remained one of state sovereignty over air-space. Other Air Law Conventions in the inter-war period proceeded on a similar basis.27 This legal regime is maintained in the Convention on International Civil Aviation, Chicago, 1944,28 Art. 1 repeating virtually verbatim Art. 1 of the 1919 26 �� Convention on the Regulation of Aerial Navigation, Paris, 13 October 1919, 11 LNTS 173; 1922 UKTS 2, Cmd. 1609; 1 Hudson 359; 13 Martens (3d) 61; (1923) 17 AJIL Supp. 195. J.C. Cooper, ‘United States Participation in Drafting the Paris Convention, 1919’ (1951) 18 J. Air L. and Comm. 266, reprinted, Cooper Explorations (supra n. 10) 137–55. 27 �� The Ibero-American Convention, Madrid, 1 November 1926, 3 Hudson 2032; 45 Stat. 2409, 2 Bevans 617; the Pan-American Convention on Commercial Aviation, Santiago, 20 February 1928, 129 LNTS 223; 40 Martens (3d) 379; 4 Hudson 2354; 47 Stat. 1901; TS 840; 2 Bevans 698; (1928) 22 AJIL Supp. 124. Cf. H.S. Le Roy, International Air Law Trends’ (1945) 31 Virg. L. Rev. 448–56; D. Göedhuis, (1) ‘Civil Aviation after the War’ (1942) 36 AJIL 596–613; (2) ‘Sovereignty and Freedom in the Air Space’ (1955) 41 Trans. Grot. Soc. 137–52. 28 �� Convention on International Civil Aviation, Chicago, 7 December 1944 (1944) 15 UNTS 295; 61 Stat. 1180, TIAS 1591; (1953) UKTS 8, Cmd. 8742; 9 Hudson 168; 3 Bevans 944; (1945) 39 AJIL Supp 111; ICAO Doc. 7300/9, 2006: http://www.icao.int/cgi/ goto_m.pl?icaonet/dcs/7300.html or http://www.luftrecht-online.de/regelwerke/pdf/ICAOE.pdf. See also the Protocol on the Authentic Trilingual Text, Buenos Aires, 1968 (adding French and Spanish), 740 UNTS 21; 19 UST 7693, TIAS 6605, and the Protocol on the Authentic Quadrilingual Text, Montreal, 1977 (adding Russian) printed in ICAO Doc. 7300/9. Further amendments to the Convention adding Arabic and Chinese authentic texts have been agreed, but are not yet in force.

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Paris Convention: ‘every State has complete and exclusive sovereignty over the air-space above its territory’. Various countries have incorporated this concept in their constitutions, or provided for it by legislation.29 The Chicago Convention has not been ratified by every state in the world, but it is a classic case of provisions of a general international agreement expressing the customary international law that had been established by the Paris Convention of 1919. Modern customary international law and the Chicago and other agreements on international civil aviation proceed on the basis that a state is sovereign over its air-space. The evidence in the matter is brutal. In the ultimate a state is entitled to enforce its sovereignty by shooting down an unauthorised intruder as an exercise of sovereignty and over the years a number of aeroplanes, both civil and military, have been shot down.30 While the International Civil Aviation Organisation (ICAO) has added to the Chicago Convention an article which therefore by international agreement would minimise the loss of life and secure that under all circumstances

29 �� In the initial draft of the ‘Space Flight Liability and Immunity Act 2007’ proposed to add Art. 24 to the Virginia Code as Title 8.01, Sec. 8.01-227.8, ‘Definitions’ would have defined ‘suborbital’ as meaning ‘a distance at or above 62.5 miles from the Earth’s mean sea level’. This did not survive to final enactment. See http://leg1.state. va.us/cgi-bin/legp504.exe?071+ful+HB3184 and http://leg1.state.va.us/cgi-bin/legp504. exe?071+ful+CHAP0893. In the New Mexico ‘Gross Receipts and Compensating Tax Act, 2007’ when dealing with deductibles from taxable receipts from space and spaceport activities, Sec. 7-9-54-2.(3), ‘space’ is defined to mean ‘any location beyond altitudes of sixty thousand feet above the earth’s mean sea level’: http://nxt.ella.net/NXT/gateway. dll?f=templates$fn=default.htm$vid=nm:all. 30 �� Cf. the facts of Aerial Incident of July 27, 1955 (Preliminary Objections) Israel v Bulgaria, 1959 ICJ Rep 127; Aerial Incident (Pakistan v India) Application, 10 August 1999, and Judgement 21 June 2000, 2000 ICJ Rep. 12 [cited for background facts: case dismissed for lack of jurisdiction]; ‘Documents concerning the Korean Air Lines Incident’ (1983) 22 ILM 1109ff; ‘Interception of Civil Aircraft’ (1983) 22 ILM 1185; M. Kido, ‘The Korean Airlines Incident on September 1 1983 and some Measures Following it’ (1997) 62 J. Air L. and Comm. 1049–70. Francis Gary Powers was shot down over Russia in 1960 while flying a US U-2 spy plane. In 1995 the balloon D-Caribbean was shot down during a balloon race. Flying from Switzerland it had approached a military aerodrome in Belarus, and had not responded to warnings: http://www.balloonlife.com/publications/balloon_ life/9510/tragedy.htm; http://www.balloonlife.com/publications/balloon_life/9607/belarus. htm. In 1996 Cuba shot down a ‘Brothers to the Rescue’ plane that may have entered its air-space without permission: see UN SC Res. 1067 (1996); ‘Shoot-down of the Brothers to the Rescue Planes’, Hearings before the Sub-Committee on Crime of the US House of Representatives Committee on the Judiciary, 106th Cong. 1st Sess., House Doc. 63-608, Ser 36. In the 1990s and early 2000s various attempts to circumnavigate the globe by balloon without landing ran into problems securing permission to enter the air-space of certain countries. For example, attempts by Richard Branson and Steve Fossett were hampered or delayed by the requirement to get over-flight permission from various states.

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every effort is taken to preserve life in civil aviation,31 the default position – the base from which the law operates – remains the right of a state to take measures to assert its sovereignty, if necessary by the most drastic means. Outer Space Given the proven willingness in history of states to enforce their sovereignty over ‘their’ air-space, it is surprising to find that there is no formal record of any state objecting to being simply over-flown by the satellite of another state.32 Some consider it premature to suggest that there is a rule of customary international law that a state may not object to such over-flight since there is no formal evidence that the view of states is that as a matter of law no valid objection can be made, but the continuance of state silence on the matter will lead inexorably to a position where any inchoate right to object will dissipate, if it has not already done so.33 Certainly in the 1980s there was talk of military efforts particularly in the US and the Soviet Union directed towards the development of technology for the removal of satellites that might be deemed hostile, but these preparations were actuated by military planning for security rather than upon doctrinal principle as to sovereignty.34 There is also a worrying section in President Bush’s Space Policy Determination of 2006 about dissuading or deterring other states from impeding US rights in space, and denying adversaries, if necessary, the use of space capabilities contrary to US 31 �� Chicago Convention (supra n. 28), Art. 3 bis, adopted by the 25th (Extraordinary) Session of the ICAO Assembly, in force 1 October 1998. This provision would apply to Parties to the Convention, but not all states are parties. Certain non-parties might be thought possibly to consider themselves not bound by such ‘law’ were they to be over-flown without prior permission. 32 �� There is a rumour that President Eisenhower, knowing of the Russian plans to launch Sputnik, did not press for the US to be first in space, as, if the US did not complain of over-flight by Sputnik, freedom of space was thus established and the USSR could not later object to over-flight by US satellites: G. DeGroot, Dark Side of the Moon (London: Cape, 2007) 57; see also D.R. Terrill, Jr, The Air Force Role in Developing International Outer Space Law (Maxwell AFB, AL: Air UP, 1999; Univ. Press of the Pacific, 2004), Chapter 1: (http://aupress.maxwell.af.mil/Books/Terrill/terrill.pdf). As to later argument about overflight for the purpose of remote sensing, see Chapter 10. 33 �� Cf. J.I. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’ (1985) 56 BYIL 1–24. 34 �� Such intervention would need to occur earlier in an orbit than ‘over’ the intervening state. Cf. the destruction by China of one of its obsolete weather satellites on 11 January 2007, see http://www.msnbc.msn.com/id/16689558; http://www.cnn.com/2007/TECH/ space/01/18/china.missile/index.html; http://www.timesonline.co.uk/article/0,,256892555576.html. See also F. Walsh, ‘Forging a Diplomatic Shield for American Satellites: The Case for Reevaluating the 2006 National Space Policy in Light of a Chinese Satellite System’ (2007) 72 J. Air L. and Comm. 759–99.

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national interests.35 However, the background of this element of the Bush Space Policy appears to be military considerations rather than a doctrinal position as to sovereignty and over-flight. Interference with a satellite short of its destruction has also been speculated about, for example, as to whether a state might have a right to re-orbit or deflect a satellite that might threaten it but that is based upon the avoidance of damage and not on simple sovereignty.36 All that said, it is logical to differentiate air-space and outer space. The cogency of that logic has increased significantly during the years of space exploration and use. In particular the provisions of arms limitation agreements and treaties distinguish between weapon systems according as they are or are not space located. Such agreements do not themselves define space for their purposes but appear to rely on a common understanding of what or where space ‘begins’.37 The needs of arms limitation agreements may therefore compel towards some resolution of the matter. However it would be entirely proper for a boundary between airspace and outer space to be determined for the purposes of arms limitation without that determination necessarily being read through to rule on questions of civil interest. The long and the short of the matter seems to be that, military questions apart, there has as yet been no objective cogent requirement formally and precisely to differentiate air-space and outer space. The space-capable states have seen no reason potentially to restrict their abilities to use space by coming to agreement as to its lower boundary. The non-space-faring states are in no position to exercise any pressure in the matter. And so one of the questions which we debated at McGill University Seminars back in 1963–4 under the able guidance of Professor Ivan A. Vlasic remains a topic on which argument can continue: ‘How High is Up?’

35 �� See Sec. 5 Principles, bullet point 5, US National Space Policy, 31 August 2006 (2007) XXXII AASL 475–86; http://www.ostp.gov/html/US%20National%20Space%20 Policy.pdf; http://www.gees.org/documentos/Documen-01724.pdf; http://www.spaceref. com/news/viewsr.html?pid=22286. For comparison with the Clinton Space Policy see http://www.stimson.org/?SN=WS200610101122. 36 �� H. DeSaussure ‘An International Right to Re-Orbit Threatening Satellites’ (1978) 21 Proc IISL 92–8; Best Applicant Memorial, Jessup Moot Court Competition 1980 (1980) ASILS Int. L.J. 149–67 at 152–4. On 21 February 2008 a missile from USS Ticonderoga destroyed US-193, a remote sensing satellite that threatened re-entry with a block of frozen hydrazine on-board some 130 miles above the Pacific. The stated justification was the avoidance of harm should the propellant have crashed and contaminated the surface of the Earth. 37 �� Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Moscow, 5 August 1963, in force 10 October 1963, 480 UNTS 43; 14 UST 1313, TIAS 5433; (1964) UKTS 3, Cmnd. 2245; (1963) 2 ILM 883; (1963) 57 AJIL 1026.

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Outer Space/Air-space As indicated above, a boundary between outer space and air-space was early considered necessary. The matter became of concern as technology made access possible into the higher levels of the atmosphere.38 In 1956, for example, the Fourth Session of the Fiftieth Annual Meeting of the American Society of International Law was nominally devoted to ‘International Air Law’ but in practice discussed the vertical delimitation of air-space.39 Naturally the matter was considered by the UN Committee on the Peaceful Uses of Outer Space (COPUOS) during its first meetings, but to the surprise of many40 its first Report of 14 July 1959 took the view that no priority should be given to the question of delimitation and indeed that agreement would be premature. Interestingly the Report also noted that the lower boundary of space and the upper boundary of state jurisdiction need not coincide, but might overlap – a view which still has some resonance. Throughout the intervening years COPUOS has had the ‘boundary question’ on its agenda, but no agreement has been forthcoming.41 Over the years the question ‘where as a matter of law does space begin’ has produced many theories, suggestions and arguments. In the early days military considerations played a role, but that element tended to drop from sight until recently.42 The suggestions can be grouped. The basic division is between theories which concentrate on physical elements – the ‘spatial’ or ‘spatialist’ approach – and the idea that altitude is less important than the purpose or ‘function’ of the instrumentality involved – the ‘functional’ approach.43 38 �� J.C. Cooper, ‘High Altitude Flight and National Sovereignty’ (1951) 4 Int. L.Q. 411–8; Cf. J.C. Hogan, ‘Space Law Bibliography’ (1956) 23 J. Air L. and Comm. 317. 39 �� ‘International Air Law’ (1956) Proc. ASIL 84–115, with Discussion Paper by J.C. Cooper, ‘Legal Problems of Upper Space’ 85–93; Cooper, Explorations (n. 10), 269–97. 40 �� Cf. J.C. Cooper, ‘Fundamental Questions of Outer Space Law’ Cooper, Explorations (n. 10) 287–97 at 289 [Lyall/Larsen, 61–9 at 62]. 41 �� COPUOS Secretariat, ‘Historical summary on the consideration of the question on the definition and delimitation of outer space’, A/AC.105/769 (2002); V. Kopal, ‘The Question of Defining Outer Space’ (1980) 8 J. Sp. L. 154–173 [Lyall/Larsen 129–48]; Christol 435–546. 42 �� For example, D.B. Craig, ‘National Sovereignty at High Altitudes’ (1957) 24 J. Air L. and Comm. 384–97; D.R. Reinhardt, ‘The Vertical Limit of State Sovereignty’ (2007) 72 J. Air. L. and Comm. 65–140, and also next note. 43 �� COPUOS Secretariat, Background paper, ‘Question of the Definition and/or the Delimitation of Outer Space’, A/AC.105/C.2/7 (1970) with A/AC.105/C.2/7/Add 1 (1977) identifies some nine major categories of spatialist theories, with additional sub-categories. See also J.F. McMahon, ‘Legal Aspects of Outer Space’ (1962) 38 BYIL 339–99 at 340–57; C. Voûte, ‘Boundaries in Space’, in B. Jasani, ed., Peaceful and Non-Peaceful Uses of Outer Space (London: Taylor and Francis, 1991) 19–35; R.F.A. Göedhart, The Never Ending Dispute: Delimitation of Air Space and Outer Space (Gif-sur-Yvette: Editions Frontiers, 1996) with extensive bibliography; A.G. Haley, Space Law and Government (New York:

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It would, of course, be possible that there is no upward limit to the jurisdiction of a state above its territory.44 This has three problems. First, there is the ‘lighthouse’ effect. Were the jurisdiction of a state to extend indefinitely, forming a cone projected vertically from the centre of the Earth and bounded by the lateral limits of the state, bodies such as the Moon and the planets would occasionally and briefly come within that cone of ‘illumination’. That is absurd. Second, unlimited upward sovereignty does not correspond with the realities of the use of space as they have developed. No country has formally given permission for over-flight by all or any satellite, but satellites zip around on many different orbits and pass over many states.45 The inference is that no permission is required,46 and hence there is some limit on state jurisdiction, since the ‘complete and absolute sovereignty’ of Art. 1 of the Chicago Convention of 1944 means that permission is required Appleton Century Crofts, 1963) Chapter 4, ‘The Limits of National Sovereignty’, 75–117 cites extensively down to its date (cf. his ‘Survey of Legal Opinion on Extraterrestrial Jurisdiction’ (1960) 3 Proc. IISL 37–92); M.S. McDougal, H.D. Lasswell and I.A. Vlasic, Law and Public Order in Space (New Haven, CT and London: Yale UP, 1963) 321–49 (the relevant index entry in this volume is to ‘Boundaries between outer space and air-space (a comedy of errors)’); D. Göedhuis ‘The Problems of the Frontiers of Outer Space and Air Space’, 174 Hague Recueil 1982-I, 371–407 (cf. his ‘An Evaluation of the Leading Principles of the Treaty on Outer Space of 27th January 1967’ (1968) 15 Neth. Int. L. Rev. 17–41 at 28– 33 on ‘To Which Area do the Rules of the Treaty apply?’; J.G. Verplaetse, International Law in Vertical Space (South Hackensack, NJ: Rothman, 1960); ‘Note: ‘National Sovereignty of Outer Space’ (1961) 74 Harv. L. Rev. 1154–75; Cheng 5–9; Christol, 435–536. See also P. Jessup and H.J. Taubenfeld, Controls for Outer Space and the Antarctic Analogy (New York: Columbia UP, 1959) 265–82; H.J. Taubenfeld, ‘A Regime for Outer Space’ (1961) 56 Nw. U. L. Rev. 129–67 and his ‘Outer Space: The “Territorial” Limits of Nations’ (1969–1970) 38 Fordham L. Rev. 1–22; S.B. Rosenfeld ‘Where Airspace Ends and Outer Space Begins’ (1979) 7 J. Sp. L. 137–48; G. Oduntan, ‘The Never Ending Dispute: Legal Theories on the Spatial Demarcation Boundary Plane between Airspace and Outer Space’ (2003) 1 Hertfordshire L. Rev. 111–24; L. Perek, ‘Scientific Criteria for the Delimitation of Outer Space’ (1977) 5 J. Sp. L. 111–124; Kopal (supra n. 41). 44 �� M. Milde, ‘Considerations on Legal Problems above State Territory’ (1958) 5 Rev. Cont. Law 5–22, ‘Conclusion’ extracted Legal Problems 1102–8; contradicted by J. Zourek, ‘What is the Legal Status of the Universe’ (C.T. Barek trans.) Legal Problems 1109–17; G.V. Leopold and A.L. Scafuri, ‘Orbital and Super-Orbital Space Flight Trajectories – Jurisdictional Touchstones for a United Nations Space Authority’ (1959) 36 U. Det. L.J. 515–34 (rep. Legal Problems 520–39); G.V. Leopold, ‘Cosmic Surveillance by Spaceflight Momentum’ (1960) 6 Wayne L Rev. 311–39. 45 �� A visual appreciation can be gained at http://science.nasa.gov/realtime/ or http:// science.nasa.gov/Realtime/jtrack/3d/JTrack3D.html. If using the 3D J-Track, increase the timing and update rate. See also Chapter 10 – ‘Space Objects in Orbit’ (c. n. 86). 46 �� In 1959 E. Korovin argued that the then satellites were orbiting in accordance with permission contained in the arrangements for the International Geophysical Year, ‘International Status of Cosmic Space’ (1959) Int. Aff. (Moscow) 53–9, rep. Legal Problems 1062–71 at 1065. That argument does not now hold.

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for transit through the air-space of a state. Finally, OST Art. II states that there is no state sovereignty in space, which implies that an unlimited verticality of state sovereignty does not exist. However, is a determinate boundary necessary?47 The Spatialist Approach We now turn to ‘spatialist’ theories and suggestions. One possibility is to consider ‘effective control’.48 Just as once upon a time the ‘three mile limit’ was (inaccurately) explicable as being the distance to which a state could from land control the sea off its coasts, an argument might be made that the sovereignty of a state should extend vertically as high as it can enforce that sovereignty. This has problems. First, it would mean that the sovereignty of different states would extend to different ‘heights’ – a proposition not likely to be generally acceded to. Second, to set a boundary at the height to which the most potent state could exercise control would be nonsense for less able states. Third, anti-satellite tests by the US and USSR in the 1980s, by China in 2007 and the US removal of US 193 in 2008 destroyed satellites above minimum satellite orbital heights.49 Last, because satellites in low Earth orbit travel at speeds in excess of 7 km a second,50 the period that any satellite is ‘above’ many states is extremely limited, and the opportunity for the enforcement or application of ‘effective control’ is transitory. If some boundary has to be recognised, some would prefer to rely on ‘objective scientific determinants’. The problem with many of these is that in practice they do not point to a particular set height.51 Even so a considerable number of proposals for the demarcation of space and air-space are based upon scientific criteria. One 47 �� Cf. S.N. Hosenball and J.S. Hofgard, ‘Delimitation of Air Space and Outer Space: Is a Boundary Needed Now?’ (1986) 57 U. Colo. L. Rev. 885–93. Jacobini (infra n. 48) in 1958 considered it premature to define a boundary, but also reckoned that different instrumentalities (military or civilian) might require different boundaries. 48 �� H.B. Jacobini, ‘Effective Control as Related to the Extension of Sovereignty in Space’ (1958) 7 J. Pub. L. 97–119; J.M. Spaight, Aircraft in War (London: Macmillan, 1914), his The Sky’s the Limit: A Study of British Air Power (London: Hodder, 1940) (not seen) and his Air Power and War Rights (London: Longman, 1st ed., 1924, 3rd ed. 1947). During the Siege of Paris the German authorities indicated that they would treat anyone in a balloon which they manage to shoot down as a spy. 49 �� See Chapter 10 – ‘The Near Earth Environment’, para. 2. Under the ‘effective control’ argument the destruction by China of its weather satellite in January 2007 at an altitude of some 575 miles would mean that Chinese air-space potentially extends well above the orbits of many satellites. Cf. http://www.msnbc.msn.com/id/16689558; http://www.cnn. com/2007/TECH/space/01/18/china.missile/index.html; http://www.timesonline.co.uk/ article/0,,25689-2555576.html. The US destroyed its malfunctioning and uncontrollable US-193 on 30 January 2008 at a height of some 59 miles to prevent possible surface damage were it to re-enter the atmosphere intact. 50 �� A satellite in elliptical orbit travels much faster when approaching its perigee. 51 �� McDougal, Lasswell and Vlasic (supra n. 43) at 338.

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category that is easily dismissed relates to the gravity of the Earth. Gravity-related positions such as the Lagrange points relative to the Earth and Moon may in the future have a significance in the use of space,52 but are inappropriate for setting the limit of air-space. Gravispheres have similar problems as the effect of Earth’s gravity tapers off, but are also variable depending on the location of other gravity possessing objects.53 The notion that a state should by sovereign right control such part of the gravisphere that might result in damage to it by a ‘falling object’ is clearly ridiculous. Re-entrant objects may pass over many states. The varied layers of the atmosphere might be thought to be more useful in determining a space/air boundary. However, whichever atmospheric layer one selects, the fact is that these layers vary in altitude depending on atmospheric heating and cooling and the lessening or increase of density dependent on weather conditions and solar radiation.54 Various heights have different effects on the human frame. At 15 km/9 miles there is no oxygen. At 19 km/12 miles fluids evaporate. At 45 km/27 miles there is no protection from ultra-violet radiation, and at 50 km/31 miles none against cosmic rays. At 200 km/125 miles air resistance is negligible, though it is enough to slow a satellite.55 Whether any of these can be used to indicate a boundary between air-space and outer space is doubtful.56 Only two uses seem to be made of ‘atmosphere’ in relation to ‘space’ as a matter of international 52 �� See Chapter 9 – ‘Lagrange Points’. 53 �� Göedhart (n. 43), ch.5, 39–42. The major gravisphere boundary is where the gravity effect of the Earth is greater than that of the Sun. In fact the centre of the Earth is displaced some 1,000 km towards the Sun because of the Sun’s gravity. It may also be noted that the gravity field of the Earth is not uniform by reason of mountains and deep ocean trenches: see results of the GRACE experiment: http://earthobservatory.nasa.gov/ Newsroom/NewImages/images.php3?img_id=10847 While this is important for satellite orbits, it has no relevance for state sovereignty. 54 �� J.C. Hogan, ‘Legal Terminology for the Upper Regions of the Atmosphere and for the Space beyond the Atmosphere’ (1957) 51 AJIL 362–75; J.C. Cooper, ‘The Problem of a Definition of “Air Space”’ (1958) 1 Proc IISL 38–44. The principal layers are (roughly): the Troposphere (sea level to c.10 km/8.6 nautical miles), the Stratosphere (c. 10 km/8.6 nautical miles to c. 40–50 km/35–44 nautical miles), the Mesosphere (c. 40–50 km/35–44 nautical miles to c. 80 km/70 nautical miles), the Thermosphere (c. 80 km/70 nautical miles to c. 675 km/420 nautical miles) and the Exosphere (c. 675 km/420 nautical miles to 10,000 km/6,200 nautical miles). Air layers are thicker at the Equator and shallower at the Poles. The ozone layer, which protects life on Earth from ultra-violet radiation, lies within the Stratosphere at heights varying between 20 and 25 km (c. 10.5–13.5 nautical miles). Note: Altitude is calculated in nautical miles, not statute miles; 1 nautical miles = 1.15 statute miles, or 1,852 metres. 55 �� Orbiting at c. 350 km/190 nautical miles the International Space Station (ISS) is slightly slowed by residual atmosphere and has occasionally to be raised in orbit. In the last two years of its existence Mir was significantly slowed by the upper fringes of the atmosphere and one reason for its being de-orbited in March 2001 was the difficulty of regularly ‘repairing’ its orbit. 56 �� Göedhart (n. 43), ch. 4, 35–8.

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law. One comes in Art. I.1.a of the Nuclear Test Ban Treaty of 1963,57 by which the Parties undertake ‘to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: (a) in the atmosphere; beyond its limits, including outer space’. This is not very helpful as where ‘beyond its limits’ might be is left uncertain. The other use comes in the ITU Radio Regulations (RR) and is somewhat more sensible. Since 1971 RR 1.64 defined a ‘space station’ as a ‘station which is located on an object which is beyond, is intended to go beyond, or has been beyond the major portion of the Earth’s atmosphere’, and RR 1.178 currently defines a ‘spacecraft’ as a ‘man-made vehicle which is intended to go beyond the major portion of the Earth’s atmosphere’. By contrast an ‘Earth station’ is located ‘either on the Earth’s surface or within the major portion of the Earth’s atmosphere’, thus including ground stations and aircraft (RR 1.63). Such terminology at least recognises some need for a definition of space, albeit that whether a ‘major portion’ of the atmosphere relates to density or height is unresolved – except by common sense.58 Other atmosphere-related possible boundaries concentrate on the ‘instrumentality’ of flight and look to the lifting characteristic of a wing and the use of air-breathing engines, which is, of course, the materiél of international civil aviation now regulated under the Chicago Convention.59 John Cobb Cooper, himself originally an aviation lawyer, was of the view in his later years that national sovereignty should certainly extend to the height at which normal aircraft might operate but with an added belt above that. In his view the ‘normal’ was some 20–25 miles,60 but he considered that an additional 50 miles should be contemplated through which other states might have a ‘right of passage’ for launch and re-entry purposes.61 Above some 100 km/62 miles (275,000 ft) an 57 �� Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, 1963, supra n. 37. 58 �� L. Perek has pointed out that no matter, the problems of the lawyers, scientists know for very practical reasons where space is. See n. 65 infra. 59 �� Cited supra n. 28. Annexes 6 and 8 to the Chicago Convention deals with the Operation of Aircraft, and defines ‘aircraft’ in terms of atmospheric flight. Thus Art. 2 of the ‘Project of an International Convention on Space Law’ of 1959 states: ‘The outer space begins where the possibility to fly ceases for the propelled and jet planes deriving support in the atmosphere from reactions of the air’: M.S. Smirnoff, ‘The Role of the IAF in the Elaboration of Norms of Future Space Law’ (1959) 2 Proc. IISL 147–55 at 151. The ‘space plane’ and the projected vehicles for vertical ‘space tourism’ do not derive lift from the atmosphere for at least part of their flights. What law applies? Cf. S. Hobe and J. Cloppenburg, ‘Towards a New Aerospace Convention: Selected Legal Issues of “Space Tourism”’ (2004) 47 Proc. IISL 377–85. 60 �� Modern commercial aviation flies at up to 47,000 ft (15 km/9.5 nautical miles) though usually at c. 32,000–42,000 ft. Concorde flew at 60,000 ft (19 km/12 nautical miles). Spy planes can reach 100,000 ft (30 km/18.5 nautical miles). 61 �� Cooper at first suggested 300 miles as the upper limit of sovereignty: see his ‘Legal Problems of Upper Space’ 85–93; Cooper, Explorations (n. 10), 269–97 – but reduced that

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aeroplane cannot derive any ‘lift’ from its wing but has to travel so fast that it exceeds escape velocity. This is the Von Kármán Line, named for the person who calculated its position, and strongly urged by Andrew G. Haley as an upper limit of ‘primary jurisdiction’.62 The Von Kármán Line is accepted by the Fédération Aéronautique Internationale as marking the space/air boundary for its purposes. However, although the Fédération does promulgate standards as well as keeping records, it is a non-governmental body and its views do not bind states.63 In any event, ultimately the altitude of the Von Kármán Line is not absolutely constant, being dependent on the density of the air. It is possible to invert the question of a boundary based on atmospheric density and approach the matter from ‘outside’. As a matter of fact an orbit of a space object below some 200 km/110 nautical miles rapidly decays, and an elliptical orbit that descends below some 120 km/65 nautical miles is usually fatal.64 Because of atmospheric drag a satellite cannot ordinarily remain in orbit if it comes below some 90 km/48 nautical miles. This could indicate that a boundary should be set somewhere round about these altitudes.65 On these lines the International Law Association as early as 1968 suggested that the term ‘outer space’ as used in the OST should be interpreted to include all space at or above the lowest perigee attained by 27 January 1967, the date of coming into force of the Treaty.66 to 20–25 miles with an additional 50 miles, in the light of later better scientific knowledge: see ‘The Boundary Between Territorial Airspace and International Outer Space’, Cooper, Explorations (n. 10), 229–304. Cf. his ‘The Upper Airspace Boundary Question’ (1963) 6 Proc. IISL 6. All this is analogous to early Fauchille ideas as to state jurisdiction in airspace. In 1902 Fauchille was suggesting a territorial limit of 500 metres – which curiously may relate to the height of the Eiffel Tower (300 metres – the later communication masts add 24 metres): see supra n. 17. 62 �� A.G. Haley (n. 43) 77–9, 96–107; see also his ‘Space Age Presents Immediate Legal Problems’ (1958) 1 Proc IISL 5–27. 63 �� Founded in 1905, the Fédération Aéronautique Internationale is based in Paris: see www.fai.org/. 64 �� Some orbits are highly elliptical, with very low perigees and very high apogees. Such orbits can remain over areas of the Earth without being geostationary. Low Earth orbits (LEOs) are typically between some 400 and 1,600 nautical miles (740–3,000 km). 65 �� L. Perek, n. 43; cf. his ‘Remarks on Scientific Criteria for the Definition of Outer Space’ (1971) 19 Proc. IISL 191. Writing in 1977 Perek noted that in principle a satellite could be constructed of sufficient durability to go below 60 miles and survive in orbit, but its mass-to-weight ratio would not be cost-effective and little advantage would be gained by a lower altitude. Nonetheless (2008) it is believed that some military surveillance satellites can go lower than 60 miles, and be boosted back to a safe altitude – cf. the L-Sat used during the 1981 Falklands War. 66 �� Report of the Fiftieth Conference of the International Law Association, Buenos Aires, 1968 (London, 1969) xxii and 157ff, drawing on the prohibition in OST Art. IV of the placing of nuclear weapons ‘in orbit around the earth’. The proposal was made specifically without prejudice to an even lower perigee being agreed on at a later date. Cf. Bin Cheng, ‘International Responsibility and Liability for Launch Activities’ (1995) 20 Air and Sp. L. 297 ff.

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The remaining suggestion for a space/air boundary defined in physical terms is that an arbitrary altitude should be selected for the purpose. Thus in 1975 Italy proposed a boundary at 90 km/48 nautical miles based on the reasoning that it was between the 60 km/32 nautical mile upper limit of any aeroplane, and 120 km/65 nautical miles, then thought to be the lowest possible orbit. In 1976 Belgium proposed an arbitrary 100 km/55 nautical miles for similar reasons.67 In 1979 the then USSR proposed to the Legal Sub-Committee of COPUOS that the boundary between outer space and air-space should be fixed ‘by agreement among States at an altitude not exceeding 110 km [60 nautical miles] above sea level’, this to be confirmed by an appropriate treaty.68 Such proposals make a lot of sense. Many of the physical elements impleaded by commentators point to an altitude of 100/110 km (55/60 nautical miles) as being a suitable ‘frontier’. Further, whether a space object was at such an altitude could readily and conclusively be established by radar. In 2002 Australia modified its definition of ‘launch’ and ‘space object’ in its Space Activities Act, 1998, to the effect that a licence is now required only if the vehicle or payload is intended to reach more than 100 km above sea-level.69 This may be symptomatic, and, while in itself not a definition of outer space, is perhaps the first indicator of a future general acceptance of the 100/110 km frontier in practice. An agglomeration of unilateral definitions of the air/space boundary in national legislation would if uniform crystallise the law. The Functional Approach The ‘functional’ approach to the question of an upper limit to the sovereign jurisdiction of a state runs on lines quite different to those of the ‘spatialist’. The ‘functionalist’ is less concerned with physical factors but stresses the purpose for which an instrumentality exists and for which it is being employed at the relevant time. The initial suggestions came from a number of commentators,70 67 �� Italy – A/AC.105/PV.155, 11–12; Belgium – A/AC.105/C.1.76, 13, both quoted by G. Zhukov and Y. Kolosov (B. Belitzky trans.), International Space Law (New York: Praeger, 1984) 164. 68 �� USSR – COPUOS Working Paper, ‘Approach to the Delimitation of Airspace and Outer Space’, A/AC/105/C.2/L.121 (1979), Annex IV to A/AC.105/240; cf. its later paper A/AC/105/C.2/L.139, 4 April 1983. Zhukov and Kolosov (n. 67) 160–2. See also Kopal (n. 41) at 173. 69 �� (Australia) Space Activities Act 1998, Sec. 8 ‘Definitions’ – ‘launch’ as amended by the Space Activities Amendment Act 2002. See also COPUOS Doc. ‘National Legislation and Practice Relating to the Definition of Outer Space’, A/AC.105/865/Add.1, 20 March 2006. 70 �� The first suggestion of the functional approach seems to be M. McDougal and L. Lipson, ‘Perspectives for a Law of Outer Space’ (1958) 52 AJIL 407 (cf. McDougal et al. (n. 43) 352–5). See also Leopold and Scafuri, supra n. 44; R. Quadri, ‘Droit international cosmique’ 98 Hague Recueil 1959-III, 505–97; C. Chaumont, ‘Les perspectives que doit adopter le droit de l’espace’ (1960) 7 Rev. de droit cont. �� 5; Cf. J.G. Sauveplanne ‘Freedom and Sovereignty in Air and Outer Space’ (1965) 12 Neth. Int. L. Rev. 228–50 at 239ff; D. Göedhuis,

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and it remains a potent notion.71 The basic point is that there are two legal regimes with relevance for objects in transit above the surface of the Earth, air law and space law. A distinction can be made between them in that air law should apply to aviation and space law to activities directed towards the use of space.72 Under such a view, space law would apply to a space launch which is aborted without reaching orbit, because it is a space activity, and air law would apply to the carriage of a Space Shuttle on the back of a Boeing 747. Of course silly objections can be put – is the construction of a satellite not space-related and hence by this theory subject to ‘space law’? Common sense can deal with such quibbles. However, more serious objections lie to hand. First, there may be ambiguity and even dispute between states as to the classification of a particular activity. Second, it is not sensible to omit the location of an activity from consideration and fix only on its intention. Given that there is International Air Law some role must be left for the three-dimensional aspect of a space activity. Third, we must have a solution to the boundary question that will survive future developments. Were a ‘functional’ classification to be determinative of the application of air or space law, which law would apply to the space-plane?73 It might, of course, be possible to agree different heights for different purposes, including the application of particular treaties,74 but that would be undesirably complex and difficult to apply.

‘The Question of Freedom of Innocent Passage of Space Vehicles of One State through the Space above the Territory of another State which is not Outer Space’ (1959) 2 Proc. IISL 42–3, and his ‘The Influence of the Conquest of Outer Space on National Sovereignty: Some Observations’ (1978) 6 J. Sp. L. 37–46; M.W. Mouton (G.M. Wilner, ed.) ‘The Impact of Science on International Law’ 119 Hague Recueil 1966-III, 183–257 at 201–2. 71 �� G. Gal, ‘Space Treaty and Space Technology: Questions of Interpretation’ (1972) 15 Proc. IISL 105, his Space Law (Leiden: Sijthoff, 1969) 105ff. and his ‘Thirty Years of Functionalism’ (1997) 40 Proc. IISL 125. 72 �� RR1.64 of the ITU Radio Regulations provides that a ‘space station’ is a ‘station which is located on an object which is beyond, is intended to go beyond, or has been beyond the major portion of the Earth’s atmosphere’ (emphasis added). This definition has been part of the Regulations since 1971. As to the Regulations themselves see Chapter 8 – ‘Radio Regulations’. 73 �� The question is old: G.P. Sloup, ‘The NASA Space Shuttle and Other Aerospace Vehicles: A Primer for Lawyers on Legal Characterisation’ (1978) 8 Cal. West Int. L.J. 403– 53; T.L. Masson-Swaan, ‘The Aerospace Plane; An Object at the Cross-roads of Air and Space Law’, in T.L. Masson-Swaan and P.M.J. Mendes de Leon, eds, Air and Space Law: De Lege Ferenda – Essays in Honour of Henri A. Wassenbergh (Dordrecht: Nijhoff, 1992) 247–61; Hobe and Cloppenburg, supra n. 59. Cf. whether a non-crew member passenger in a spacecraft is an astronaut – Chapter 5, p. 130. 74 �� Voûte (supra n. 43) 22–3 and 34–5. Treaties relating to military uses of technology might adopt divergent altitudes as their zone of application. See Chapter 16.

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A Boundary If a boundary is to be agreed it would seem best to adopt an arbitrary height which does not seriously depart from physical possibilities. The lowest practicable perigee for orbital satellites appears to be approximately 100 km (62 miles). That may alter a little dependent on the speed of the satellite and the actual density of the atmosphere at the time. Notwithstanding, settling on such a figure would remove the underlying question of the OST and the other space treaties and agreements. If outer space is free for all to use (OST Art. I), it is desirable to know where that arena is.75 Similarly it is necessary to know where space ‘is’ if we are intelligently to provide for the regulation of weapons or activities that act ‘ground to space’, ‘space to ground’, ‘air to space’, ‘space to air’ and ‘space to space’. A boundary is also already assumed to exist in one space treaty. The distinction made in the Liability Convention between absolute liability for damage to the surface of the Earth or to aircraft in flight (Art. II) and fault-based liability for damage elsewhere (Art. III) implies a physical boundary. Transit The solving of one fundamental problem by the adoption of a ‘physical’ space/air boundary would raise another. It is all very well to say that anything below a certain altitude above a state traverses the air-space of that state: but, so what? As we have noted, space objects in low Earth orbit travel in excess of 7 km/5 nautical miles a second. That is too fast for states other than those with the most extensive territories effectively to manifest sovereignty. However, the real problem comes not with the space object in orbit, but with its entry to the lower atmospheric regions where it might interact, not to say interfere, with terrestrial aviation. Assuming we are not treating of an occurrence which inflicts damage,76 there is the problem of transit.77 If there is a limit to vertical state sovereignty, the possibility exists that a spacecraft on launch or re-entry might enter the air-space of another state. At present launchings take place from locations such that ‘space’ (wherever that is) is reached either before the territory of the launcher state is left or the launch goes out over the High Seas. This will not remain the position as other states which cannot launch within their own air-space or into ‘free’ air-space decide to establish

75 �� Cf. supra nn. 41 and 43 and text following n. 66. 76 �� This point assumes the transit or entry to air-space is controlled. Other circumstances might obtain. See infra as to space traffic management and Chapter 4 – ‘Liability’. 77 �� Transit has a number of applications in international law. See E. Lauterpacht, ‘Freedom of Transit in International Law’ (1958–9) 44 Trans. Grot. Soc. 313–56.

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their own space-ports.78 Again the re-entry of a satellite, and more importantly a spacecraft (e.g. the US Shuttle), means that such might traverse a state other than a launcher state at a sub-orbital altitude. If only for safety reasons an accommodation between the subjacent state and the state having jurisdiction over the space object would be needed in matters of air traffic control. The point has been recognised in various proposals as to the demarcation of space and air-space. Paragraph 2 of the David Davies Memorial Institute Draft Code of 1962 provides: [No] spacecraft launched from the territory of any State may at any stage of its flight enter the air space of another State without the consent of that State; provided that such consent shall not be withheld if prior notice has been given to that State of the intended flight and it has been shown to its satisfaction that the flight is solely for scientific and peaceful purposes and shall be so controlled as to obviate the danger to aircraft.79

The USSR proposal of 1979 also suggested that notwithstanding an arbitrary ‘boundary’ set at an upper limit of 100–110 km/60–62 miles, a space object should retain the right to over-fly the territory of other states for the purpose of reaching orbit or returning to Earth.80 Were such a proposal generally acceptable then presumably in the lower parts of its trajectory a spacecraft or other space object should be made subject to relevant air traffic control.81 In the meantime we note that Russian legislation itself specifically provides for such matters.82 78 �� Singapore and the United Arab Emirates each have plans to construct a spaceport. Most launches from Baikonur in Kazakhstan travel over Russia and are the subject of agreement between these states. See M. Bjornerud, ‘Baikonur Continues: The New Lease Agreement between Russia and Kazakstan’ (2004) 30 J. Sp. L. 13–36 (with translation of the Lease). 79 �� David Davies Memorial Institute, ‘Draft Code of Rules on the Exploration and Uses of Outer Space’ (1963) 29 J. Air L. and Comm. 141–50. 80 �� See nn. 68 and 70. See also G. Zhukov and Y. Kolosov (trans. B. Belitzky), International Space Law (New York: Praeger, 1984) 160–71; D. Göedhuis, ‘Reflections on the Evolution of Space Law’ (1966) 13 Neth. Int. L. Rev. 109–49 at 122–42. 81 �� A.D. Terekhov, ‘Passage of Space Objects through Foreign Airspace: International Custom?’ (1997) 25 J. Sp. L. 1–16, distinguishes between re-entrant satellites, which, as it were, fall into air-space by natural forces and the deliberate entry of operational space objects into the air-space of a state for purposes of take-off or landing. As to these last he considers that customary law has not yet emerged. Cf. his ‘Passage of Space Objects through Foreign Airspace’ (1989) 32 Proc. IISL 50–55. See also J. Malenovský, ‘To the Problem of the Right of Free Passage through the Airspace of Other States during the PostTakeoff and Return Phases of Space Flight’ (1982) 25 Proc. IISL 131–4; P.L. Meredith ‘The Legality of Launch Vehicle Passage through Foreign Airspace’ (1985) 54 Nordisk Tidsskrift Int. Ret 19–32; Hobe and Cloppenburg, supra n. 59. 82 �� ‘The space object of a foreign state can execute a single innocent flight through the air-space of the Russian Federation with the purpose to insert such an object into an

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Space Traffic Management Perhaps the whole concept of ‘air-space’ is now unhelpful. Sovereignty in the airspace was a functional rather than a territorial concept, a state controlling what is done in the ‘air-space’ rather than being ‘sovereign’ in the way it is sovereign over physical territory. Air traffic control, air safety, pollution, etc. are the matters which concern a state, not ‘ownership’. Were we to get away from concepts of ‘property’ in relation to sovereignty, and concentrate more on the notion of jurisdiction for various purposes, and think of the ‘boundary question’ in these terms, the regime of aviation and of space could be assimilated, with air traffic regulation becoming applicable when a ‘spacecraft’ is proceeding within the same spatial co-ordinates as ‘normal’ aircraft.83 M.W. Mouton observed in 1966: The opening up of the third dimension for human activities, and in particular the first step in outer space, may make a revision of existing notions of law necessary. We may have to give up playing with analogies, such as the regimes of the high seas, territorial seas and contiguous zones, because the third dimension has its own and very different characteristics.84

More recently proposals have emerged for a unified system of control of aviation and space.85 The fusion of terrestrial air traffic and space launch and re-entry traffic control has a certain attraction, and could well be combined with a more general system of space traffic management. We discuss this possibility in Chapter 10.

orbit around the Earth or further in outer space, as well as with the purpose to return it to the Earth under the condition of advance notice of appropriate services of the Russian Federation about time, place, trajectory and other conditions of such flight’, Art. 19.4, Russian Federation Law on Space Activity (translated) in Project 2001: Workshop on Legal Framework for Privatising Space Activities, Vienna, 1999 (Cologne: Inst. of Air and Space Law, 2000) 249–60, and Project 2001 Workshop on Legal Framework for Commercial Launch and Associated Services, Bremen, 2000 (Cologne: Inst. of Air and Space Law, 2001) 313–24. 83 �� Cf. supra n. 70. 84 �� Mouton, supra n. 70 �� at 203; Sauvenplanne et al. supra n. 70; R. Cargill Hall, ‘Comments on Traffic Control of Space Vehicles’ (1965) 31 J. Air L. and Comm. 327–42; P.B. Larsen, ‘Outer Space Traffic Management, Space Situational Awareness Requires Transparency’ (2008) 51 Proc. IISL. 85 �� See Chapter 10 – ‘Space Traffic Management’; R. Jakhu and R. Battacharya ‘Legal Aspects of Space Tourism’ (2002) 45 Proc. IISL, 112–131; R. Abeyratne, ‘Space Tourism – Parallel Synergies Between Air and Space Law’ (2004) 53 ZLW 184–202; Hobe and Cloppenburg, supra n. 59.

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Chapter 7

The Moon and Other Celestial Bodies Introduction The current uses of space largely occur in Earth orbit. The exploration of space takes us further out through the space telescopes and the various probes to the planets and beyond. The legal regime regarding the use of the Moon and other celestial bodies is not entirely settled, and will require adaption as the years pass but some milestones have been passed and markers set. Nomenclature The Moon is one of the naturally occurring celestial bodies, a class which, curiously, is not yet fully defined as a matter of law. The non-governmental International Astronomical Union (IAU) is recognised internationally as the authority responsible for the definition and nomenclature of such bodies. In terms of definition a major furore was caused in 2006 when the Twenty-Sixth General Assembly of the Union adopted a definition of ‘planet’ which was such �� Voyager 1, launched 5 September 1977, reached the heliosheath at 94AU – accepted as the boundary of the solar system – in December 2004 and Voyager 2, launched slightly earlier on 20 August 1977, is approaching it. Other interstellar probes (i.e. they will leave the solar system) are Pioneers 10 and 11 and New Horizons. All seven probes have carried out exploratory surveys of various planets and moons. �� E. Fasan, ‘Asteroids and Other Celestial Bodies: Some Legal Differences’ (1998) 26 J. Sp. L. 33–40; A.A. Cocca, ‘Principles for a Declaration with Reference to the Legal Nature of the Moon’ (1958) 1 Proc. IISL 34. The term ‘celestial bodies’ is used but not defined in several of the space treaties. It does, however, appear to imply that the body should be naturally occurring. In ‘Large Space Structures and Celestial Bodies’ (1984) 27 Proc IISL 243 Fasan asked whether an asteroid hollowed out to provide living quarters for astronauts should lose status as a celestial body and become something else in law (an asteroid base?). Cf. K.I. Roy et al., ‘Shell Worlds: An Approach to Terraforming Moons, Small Planets and Plutoids’ (2009) 62 JBIS 32–8. �� Headquartered in Paris, the International Astronomical Union (IAU) was founded in 1919. It brings together national astronomical societies and is composed of both national unions and individual professional astronomers. Inter alia it defines terms and classification categories, and approves names for celestial bodies and their surface features. It also operates the Astronomical Telegram system which keeps astronomers informed of new observations and discoveries, including comets and asteroids. See http://www.iau.org.

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that Pluto no longer fitted the category and was therefore re-classified as a ‘dwarf planet’. For the layman things became more confused when in 2007 it was shown that Pluto was not even the largest of that category, Eris being about 25 per cent larger. The matter of the definition of a ‘planet’ remains in debate and may be revised by the IAU. The current (2008) position is that the solar system has eight planets, not nine. As for nomenclature, there are, of course, traditional names for the planets, for some planetary satellites, and for particular stars (e.g. Altair, Betelgeuse, Procyon, Rigel, Sirius and Vega). The IAU is the authority recognised internationally as responsible for the cataloguing and the naming of other bodies – planetary satellites, astronomical objects, asteroids, comets and un-named stars. �� IAU Resolution B5 ‘Definition of a Planet in the Solar System’, 2006: http://www. iau.org/static/resolutions/Resolution_GA26-5-6.pdf. By IAU Res. B6 Pluto was recognised as a dwarf planet, and the prototype of a new category of Trans-Neptunian Objects. This category was formalised as ‘plutoids’ in 2008: see n. 5 ad fin. A ‘dwarf planet’ is a naturally occurring object in orbit round the Sun and has a nearly round shape (geoid), but, while it itself may have satellites, its gravitational effect is not such that it has cleared its orbital zone of other bodies. Pluto has a number of small Kuiper Belt bodies near it. A non-round natural body in solar orbit is a ‘small solar system body’. There are many of these in the Kuiper Belt. On the IAU proceedings see L. Perek, ‘The IAU Resolutions on Planet Definition’ (2006) 49 Proc. IISL 523–5; L. Tennen, ‘Legal Implications of the IAU Resolutions on Planet Definition: Some Preliminary Observations’ (2006) 49 Proc. IISL 526–9. For reports of small objects see http://www.hohmanntransfer.com/news.htm. Gustav Holst ‘Planet Suite’ (1916, Op. 32) may have had it right in choosing not to add Pluto (discovered in 1930) to the Suite, though in 2000 the composer Colin Matthews was commissioned to add ‘Pluto, the Renewer’ to the Suite. �� Discovered in 2005, Eris is a Trans-Neptunian body, well out in the Kuiper Belt at a distance of 97AU. It is the ninth largest body orbiting the Sun, and has its own moon, Dysnomia. Eris was the Greek goddess of strife or rivalry, a not inappropriate designation given the circumstances. Pluto has three moons, Nix, Hydra and Charon. In June 2008 the IAU Executive Committee named Trans-Neptunian planet-like bodies large enough to have appreciable gravity (i.e. so far, Pluto and Eris) ‘plutoids’. Satellites of plutoids, even if geoid, will not be classed as plutoids.: IAU Press Release: http://www.iau.org/public_ press/news/release/iau0804/. Ceres (diameter c. 950 km), which orbits in the asteroid belt between Mars and Jupiter is a dwarf planet, but not a plutoid by virtue of its location. However, see in 2008, http://blogs.nature.com/news/thegreatbeyond/2008/08/the_great_ planet_debate.html. �� The principal moons of Jupiter were given names by the early astronomers, but not all their suggestions survived. Discovered by Galileo Galilei (1564–1642) the Galilean moons, Io, Europa, Ganymede and Callisto are now known by names given by Galileo’s rival Simon Marius (1573–1624). The major moons of Saturn are named after the Titans, following a suggestion by John Herschel, son of William Herschel. Other conventions link the names of moons to their primary: Phobos (Fear) and Deimos (Dread) are suitable companions of Mars, the God of War. Mythology has been a useful name-mine. �� See http://www.iau.org/IAU/Activities/nomencalture/. About 165,000 celestial objects have been catalogued and given a designation number. Of these the IAU has sanctioned the formal naming of some 14,000. Under the IAU naming policy the

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It does not recognise and is strenuously opposed to the ‘sale’ or ‘purchase’ of names through the various unofficial entities that purport to peddle such ‘titles’. The Moon is the only natural satellite of the Earth. It controls the tides and influences some biological functions. It is important in some religions, in literature and in art. In years past ‘lunacy’ was a term in common use and it remains a term of abuse. The Moon is romantic and has always fascinated mankind. Hanging in our sky as the deep cream of the full Harvest Moon, the silver disk, or the faint silver crescent that promises fullness to come or imminent demise, it is not surprising that tale-smiths sought it out. Accounts of ‘Voyages to the Moon’ begin in the seventeenth century,10 and, of course, more recently science fiction has made magnificent use of the Moon and other celestial bodies.

discoverer of an asteroid has ten years in which to propose a name after which other suggestions may be made. Asteroids are not normally named for their discoverer. Comets are. Names of questionable taste are not accepted. The name of a political or military figure will not be considered until one-hundred years after death. (This seems wise: cf. the Gadarene reactions to the deaths of John Kennedy and Diana.) Some asteroids are named congruent with the general group of which they form a part – e.g. individual asteroids of the Centaurs that orbit between Saturn and Neptune are named for specific centaurs. Names in use include those of places. Fictional and real persons have been recognised (e.g. 5535 Annefrank and 9007 James Bond). In the main asteroid belt between Mars and Jupiter are 4659 Roddenbury named for the creator of the Star Trek series, asteroid 1994 GT9 renamed in 2007 7307 Takei for George Takei (Sulu), and 68410 Nichols Nichelle Nichols (Lt Uhura). (According to Wikipedia, 2309 Mr Spock was not named for that Star Trek character, but for the discoverer’s cat.) 26734 Farrell is named for Terry Farrell (Jadziah Dax), and 266733 Nana Visitor for Nana Visitor (Major Kira Nerys), named the day before by their discoverer, William K.Y. Yeung, both for actresses in the TV sf series Deep Space Nine (1993–9). Fittingly some asteroids have been named for science fiction authors, including 25924 DouglasAdams, 5020 Asimov, 77185 Cherryh, 4923 Clarke, 7644 Cslewis, 6371 Heinlein and 25395 Vonnegut. See Wikipedia, ‘List of asteroids named after people’ and its ‘List of asteroids’. �� See www.iau.org/BUYING_STAR_NAMES.244.0.html. Cf. www.nameastarlive. com/ run by Space Services Inc. �� Cf. M. Lachs, ‘Some Reflections on the State of the Law of Outer Space’ (1981) 9 J. Sp. L. 3–12 at 3. 10 �� M.H. Nicolson, Voyages to the Moon (New York: Macmillan, 1948, 1960): P.B. Gove, The Imaginary Voyage in Prose Fiction (New York: Columbia UP, 1941; London: The Holland Press, 1961); L.T. Sargent, British and American Utopian Literature, 1516– 1875 (Boston, MA: G.K. Hall, 1979); B.W. Aldiss with D. Wingrove, Trillion Year Spree: The History of Science Fiction (London: Gollancz, 1986). Cf. B.W. Aldiss, Billion Year Spree: The History of Science Fiction (London: Weidenfeld and Nicolson, 1973; Corgi, 1975); J. Gunn, The Road to Science Fiction, Vol. 1, From Gilgamesh to Wells (New York: New American Library, Mentor Books, 1977). See also in J. Clute and P. Nichols, eds, The Encyclopedia of Science Fiction (London and New York: Orbit, 1993), ‘Critical and Historical Works about SF’, 277–81 and ‘History of SF’, 567–72.

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No matter how scientifically accurate and well-written, stories are but stories. The Moon landings of last century,11 the possibility of the discovery of water ice in deep craters at the poles,12 the potential return to the Moon (and beyond) announced in 2004 by President G.W. Bush,13 the similar Russian plans,14 the Japanese, Chinese, Indian and South Korean lunar ambitions,15 the Google Lunar X Prize announced in September 2007 to stimulate a private enterprise race to put rovers on the Moon,16 the ‘sale’ or registration of ‘claims’ to portions of the Moon and other celestial bodies, the call for ‘property rights’ by entrepreneurs, all these require a legal response. What is (or may be) the law? At present the basic materiél remains the 1967 Outer Space Treaty and the 1979 Moon Agreement (MA), perhaps supplemented by slender but unchallenged practice. The MA repeats essentials of the OST but enlarges its scope. It cannot be examined in isolation ignoring its roots in the OST. As at January 2008 the OST is a success with ninety-nine member states and another twenty-five signatories, with all the space-competent states included. In contrast the Moon Agreement languishes with only thirteen members and four signatories, none of which are independently space-competent.17 The MA is in force but none of 11 �� The Moon landings (non-landing pilot in brackets) were: Apollo 11, N.A. Armstrong and E.E. Aldrin (M. Collins), 16–24 July (actual landing 20 July) 1969; Apollo 12, C. Conrad Jr and A.L. Bean (R.F. Gordon Jr), 14–24 November 1969; Apollo 14, A.B Shepard Jr and E.D. Mitchell (S.A. Roosa), 31 January–9 February 1971; Apollo 15. D.R. Scott and J.B. Irwin (A.M. Worden), 26 July–7 August 1971; Apollo 16, J.W. Young and C.M. Duke (T.K. Mattingly II), 16–27 April 1972; Apollo 16, Apollo 17, E.A. Cernan and H.H. Schmitt (R.E. Evans), 17–19 December 1972. In all twelve astronauts landed on the Moon during the Apollo programme. Apollo 13, J.A. Lovell Jr, F.W. Haise Jr and J.L. Swigert Jr 11–17 April 1970, did not land because of the well-known accident en route. 12 �� F. Lyall, ‘On the Moon’ (1998) 28 J. Sp. L. 129–38. 13 �� See NASA The Vision for Space Exploration, February 2004: http://www.nasa. gov/pdf/55584main_vision_space_exploration-hi-res.pdf. 14 �� See announcement by RKK Energia: http://www.msnbc.msn.com/id/1a2273148/. 15 �� The Japanese lunar probe, Kaguya (Selene), was launched on 14 September 2007 and established itself in lunar orbit some days later. It consists of two small probes and a main orbiter. It is to gather information on topography, geology and the Moon environment; http://www.jaxa.jp/topics/2007/09_e.html. We lack data on Chinese plans but China put an exploratory probe into lunar orbit in November 2007. South Korean plans to send a spacecraft to the Moon by 2020 and a lunar lander in 2025. India launched its Chandrayan-1 Moon mission on 23 October 2008. It will orbit and map the Moon and send a probe to the surface in preparation for a future landing. 16 �� The Google Lunar X Prize (www.googlelunarxprize.org) requires the landing of a rover. Cf. the Lachs Moot Court problem of 1998 (1998) 41 Proc. IISL 386–408. Such developments foreshadow exploitative landings. 17 �� As at 1 January 2008, MA members were Australia, Austria, Belgium, Chile, Kazakhstan, Lebanon, Mexico, Morocco, The Netherlands, Pakistan, Peru, the Philippines and Uruguay. Signatories were France, Guatemala, India, and Romania. See the Annual

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the major space-faring countries are currently inclined even to sign it, and wellfounded rumour has it that at least one ratifying state (Australia) has seriously contemplated withdrawal. The Outer Space Treaty, 1967 It can be forgotten that the compass of the Outer Space Treaty goes well beyond Earth-oriented matters. Its full title states that it is a ‘Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies’.18 That ‘inclusion’ of the Moon and other celestial bodies is repeated throughout the initial Articles that lay down general principles as well as in the later articles on responsibility, liability and such-like. We can bring this out by the use of italics. Article III provides that states party to the Treaty are to ‘carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law’.19 By Art. II ‘[o]uter space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means’. Article I provides for the exploration and use of outer space, including the Moon and other celestial bodies, to be carried out for the benefit and in the interests of all countries (Art. I para. 1), for outer space, including the Moon and other celestial bodies, to be free for exploration and use by all states and for free access to all areas of celestial bodies (Art. I para. 2), and for freedom of scientific investigation in outer space, including the Moon and other celestial bodies (Art. I, para. 3). By Art. IV space is to be used for peaceful purposes only. Nuclear or weapons of mass destruction are not to be put into space, or installed on celestial bodies (Art. IV.1). The Moon and other celestial bodies shall be used by all states party to the Treaty exclusively for peaceful purposes (Art. IV.2). So, while it is now usual to think of the OST as laying down principles for the general exploration and use of outer space, the repetition of the phrase ‘the moon and other celestial bodies’ in its Articles should not be overlooked. The OST is concerned not only with man-made satellites in Earth orbit or beyond and with the use of ‘empty space’. It also deals with human interaction with all naturally occurring extraterrestrial physical objects. These general principles bind the parties to the OST (ninety-nine as at 1 January 2008), and in their generality they also constrain those signatories which have not yet Report of the IISL Standing Committee on the Status of International Treaties relating to Activities in Outer Space in recent Proc. IISL for current information. 18 �� Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies: 610 UNTS 205; 1968 UKTS 10, Cmnd. 3519; 18 UST 2410, TIAS 6347; (1967) 6 ILM 386; (1967) 61 AJIL 644. 19 �� Art. I, para. 2, similarly provides for freedom of exploration and use of outer space ‘in accordance with international law’.

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proceeded to ratification (25 as at 1 January 2008).20 Further, if, as we argue in Chapter 3, it is accepted that the general principles enunciated in OST Articles I–IV, have passed into customary international law, they therefore bind all states. That is important. Other provisions of the OST clearly bind only its parties and to an extent its signatories. Of these certain details specifically relate to the use and exploration of the Moon and celestial bodies, but the broad thrust of OST Arts I–IV are not so limited. OST Arts VI–XI and XIII then go on to deal with matters of concern elsewhere in this book, but all contain reference to the Moon and celestial bodies. Article XII specifically deals with activities on the Moon and other celestial bodies dealing with access to ‘stations, installations, equipment and space vehicles on the moon and other celestial bodies’ on a basis of reciprocity and subject to prior notice for reasons of safety and to avoid interference with normal activities being carried on there.21 The ‘moon and other celestial bodies’ are therefore as it were ‘built in’ to the OST, and this was to be expected. One impetus for the 1967 Outer Space Treaty was the space race between the US and USSR superpowers and the prospect that one of them would precede the other on the Moon. What the Moon might be used for, or whether one state might assert sovereign title to it, was a matter of concern.22 Could an alternative to territorial sovereignty be found? There was the Antarctic analogy.23 In 1960 US President D.D. Eisenhower formally expressed the view that the 1959 Antarctica Treaty24 should be used as the model for the new legal

20 �� Art. 18, Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331; (1980) UKTS 58, Cmnd. 7964; (1969) 8 ILM 679; (1969) 63 AJIL 875. Although the Vienna Convention has not been universally ratified, it is widely believed that this provision articulates customary international law. 21 �� On access in emergency see Chapter 5 – ‘Long Range Missions’ and infra n. 54. 22 �� The US statute ‘Implantation of the United States Flag on the Moon or Planets’ (PL. 91–119, 18 November 1969, 83 Stat. 202) provides: ‘The flag of the United States, and no other flag, shall be implanted or otherwise placed on the surface of the Moon, or on the surface of any planet, by the members of the crew of any spacecraft making a lunar or planetary landing as a part of a mission under the Apollo program or as a part of a mission under any subsequent program, the funds for which are provided entirely by the Government of the United States. This act is intended as symbolic gesture of national pride in achievement and is not to be construed as a declaration of national appropriation by claim of sovereignty.’ As to the technicalities of the US flag on the Moon, see A.M. Platoff, ‘Where No Flag Has Gone Before: Political and Technical Aspects of Placing a Flag on the Moon’, NASA Contractor Report 188251: http://www.jsc.nasa.gov/history/flag/flag.htm. 23 �� P.C. Jessup and H.J. Taubenfeld, Controls for Outer Space and the Antarctic Analogy (New York: Columbia UP, 1959). 24 �� Antarctic Treaty, Washington DC, 1 December 1959, 402 UNTS 71; 1961 UKTS 97, Cmnd. 1535; 12 UST 794, TIAS 4780; (1960) 54 AJIL 477; (1980) 19 ILM 860. As of 2007 47 states were parties to the Treaty.

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regime for outer space.25 The Antarctica Treaty had, according to some, declared the region to be common property (terra communis),.26 In any event the Antarctic analogy continues to be relevant for space. Certainly, in terms of OST Art. 1 the Moon is ‘the province of all mankind’ and by Art. II it is ‘not subject to national appropriation by claim of sovereignty.’ The US recently compared its plans for a lunar base to similar bases in Antarctica ‘where nations have cooperated to save and explore the frozen continent.’27 While one should be wary of the easy use of legal (and other) analogies, there are many reflections of the Antarctic regime in our approaches to the Moon. Another aspect where the Antarctic Treaty presented a model for the OST was in respect of demilitarisation. Article IV para. 2 of the OST provides that the Moon and other celestial bodies are to be used for peaceful purposes only. Para. 1 had provided that no nuclear weapons or weapons of mass destruction may be stationed in space. Paragraph 2 takes that further, barring the establishment of military bases, installations or fortifications on the Moon or other celestial bodies. The testing of weapons or military manoeuvres on celestial bodies is forbidden. That said, however, military personnel may be used in exploration as may equipment necessary for scientific research. The Moon Agreement repeats these provisions in its Art. 3.28 The Moon Agreement, 1979 Following the US Moon landing in 1969 public opinion expected exploration and use of the Moon to increase and that therefore a definitive legal regime for the Moon would soon emerge. The initiative was taken by Argentina, presenting a draft treaty to COPUOS in 1970,29 and the USSR, presenting its own draft treaty

25 �� See Legal Problems of Space Exploration, US Senate Committee on Aeronautical and Space Sciences, 87th Cong., Sen. Doc. no. 26, 1961, at 1009. 26 Terra communis: common territory to which sovereignty cannot be acquired. Cf. Jessup and Taubenfeld (n. 23) at 181. This statement is wrong. By Art. 4 of the Antarctic Treaty the then existing claims to Antarctica are frozen or suspended, not cancelled or renounced. Argentina, Australia, Chile, France, New Zealand, Norway and the UK have claims to Antarctic territories, those of Argentina and Chile overlapping with that of the UK. In 2007 the UK extended its jurisdictional claim in respect of the Continental Shelf off its territorial claim. Ructions may be expected. 27 �� ‘Back to the Moon! But Why’, Dennis Overbye, NY Times, 12 December 2006, at D1; or ‘Up and Away: But Where?’: http://www.jsonline.com/story/index. aspx?id=542514. 28 �� See Chapter 16. 29 �� ‘Draft Agreement on the Activities in the Use of Natural Resources of the Moon and Other Celestial Bodies’, A/AC.105/L. 71 and Corr. 1 (1970). This draft included reference to the ‘common heritage of mankind’.

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in 1971.30 However, as indicated elsewhere in this book, following the OST the space-law-creating process had been busy with the rescue and return of astronauts and space objects (1968), and was then occupied by the topics of liability (1972) and the registration of space objects (1975). It has also to be recognised that during that time much international effort was being devoted to the negotiation of what became the 1982 UN Convention on the Law of the Sea.31 Last, the urgency for a definitive legal regime for Moon declined when it became evident that no immediate large-scale exploration or exploitation of the Moon was planned. As a result it was over ten years from the OST that the Moon Agreement was adopted by the UN General Assembly.32 Its six authentic texts33 were approved without vote on 5 December 1979 (A/RES/34/68), and opened for signature on 18 December 1979. The Agreement came into force on 11 July 1984.34 The MA Preamble notes the achievements of states in the exploration and use of the Moon and other celestial bodies, the benefits which may come from their natural resources, and recognises the important role the Moon has in the exploration and use of space. It also expresses a wish to prevent the Moon from becoming an area of international conflict, then recalls the four previous UN space treaties, and takes into account the need to define and develop their provisions in relation to the Moon and other celestial bodies having regard to further progress in the exploration and use of space. Article 1 then makes two statements which are of great importance. First, by Art. 1.2 references to the Moon in the Agreement include orbits round it and trajectories to it. We are not dealing simply with the lunar body. Second, and equally crucially, by Art. 1.1 the provisions of the Agreement apply to all celestial bodies within the solar system, not only our Moon, except in so far as other specific legal norms may enter into force with respect to them. So, while we speak of the Moon Agreement, we are also dealing with all celestial bodies, albeit only celestial bodies in space. ‘[E]xtraterrestrial materials which reach the surface of the earth by natural means’ (sc. asteroids and meteorites) are not covered by the MA (MA Art. 1.3). Thereafter the MA repeats essentials of the OST as to the Moon and celestial bodies, but also enlarges its scope. It repeats the applicability of International Law (Art. 2) and that its exploration and use are to be available for all and for the 30 �� UN Doc. A/8391 and Corr.1. On the processes Cheng, 357–62. 31 �� Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3; 1999 UKTS 81, Cm. 4524; (1982) 21 ILM 1261. 32 �� Agreement Governing the Activities of States on the Moon and other Celestial Bodies, UN Doc. A/34/664. New York (UN) 5 December 1979; UN Doc. A/34/20, Annex 2; UNGA Res. 34/68; 1363 UNTS 3; (1979) 18 ILM 1434. See Cheng 357–80. Christol 246–41 and 342–34; N.M. Matte, ‘Treaty relating to the Moon’ I Manual 253–82; C.Q. Christol, ‘The 1979 Moon Agreement: Where Is It Today?’ (1999) J. Sp. L. 1–33. See also ‘Agreement Concerning the Activities of States on the Moon and Other Celestial Bodies’, US Senate, Committee on Commerce, Science, and Transportation, Parts 1–4 (USGPO, 1980). 33 �� Arabic, Chinese, English, French, Russian and Spanish, MA Art. 21. 34 �� As to its current status see above n. 17.

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benefit of all (Art. 4). The Moon is to be used exclusively for peaceful purposes (Art. 3).35 The MA is therefore closely linked to the OST while developing its language. States committed to the OST remain obliged by the principles of that treaty even should they decline to become members of the MA. However, some provisions of the MA exceed the ambit of the OST in ways that have thrown up barriers to its support. As we will see, the main area of controversy concerns the provision on the common heritage of mankind (CHM) in MA Art. 11. Withdrawal from the MA is competent on one year’s notice (MA Art. 20). Sovereignty and Title to Immoveables36 ‘Who owns the Moon’ is a question commonly thrown at the authors when we disclose our interest in space law. In fact, whether one thinks that ultimately no-one owns the Moon, or that we all do, the idea that there should be no state sovereignty over or on celestial bodies has long roots.37 As far as the law is concerned, the 35 �� See Chapter 16. 36 �� We use the term ‘immoveable’ analogously to its use in terrestrial law. ‘Moveable’ may be different, but, although it moves in space (as does the Moon, not to mention the Earth), an asteroid is for our purposes here immoveable. To avoid the implications of the noun, for reasons we are coming to we avoid the term ‘immoveable property’ although it appears in many relevant discussions. 37 �� O. Schachter, ‘Who Owns the Universe?’ Colliers, 22 March 1952, 36 and 70–1, rep. in C. Ryan, ed., Across the Space Frontier (London: Sidgwick and Jackson, 1952) 118 ff.; O. Schachter, ‘A Preview of Space Law Problems Warning: Early Unilateral Positions’, Bar Bulletin, NY County Lawyers Assoc, June 1958 (rep. Legal Problems, 345–8). In his ‘Legal Aspects of Space Travel’ (1952) J. Brit. Interplanetary Soc. 16–7 Schachter suggested the Moon should be put under UN jurisdiction. GV Leopold ‘Cosmic Surveillance by Spaceflight Momentum’ (1960) 6 Wayne L Rev. 311–39 at 329 called for all ‘non-terrestrial regions’ to be claimed for the UN and put under UN administration, perhaps through modification of the trusteeship system. See also C.W. Jenks, ‘International Law and Activities in Space’ (1956) 5 Int. Law Quart. 99–114 at 99; M.S. Smirnoff, ‘The Role of the IAF in the Elaboration of the Norms of Future Space Law’ (1959) 2 Proc. IISL 151. Cf. UNGA Res. 1721 (XVI), 1961, Res. 1802 (XVII) 1962, and the Principles Resolution Res. 1962 (XVIII) 1963 discussed in Chapter 2. Cf. also Art. 2.1 of the David Davies Memorial Institute ‘Draft Code of Rules on the Exploration and Uses of Outer Space’ (1963) 29 J. Air L. and Comm. 141–50. Cf. also J.G. Verplaetse, International Law in Vertical Space (New York, Rothman, 1960) at 150 quoting a 1947 suggestion by Manuilsky, then USSR Ambassador to the UN, that space be considered as an international entity. See also J.C. Cooper, ‘Who Will Own the Moon? The Need for an Answer’ (1966) 32 J. Air L. and Comm. 155–66, reprinting and updating an article from (1965) University: A Princeton Quarterly. For very early (historical) claims see Pop, Unreal Estates, infra n. 44. For a current US statement see the 2006 Bush Space Policy Statement, Sec. 2 ‘Principles’, bullet point 2: ‘The United States rejects any claim to sovereignty by any nation over outer space, or celestial bodies or any portion thereof …’: http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf. This is a repetition of

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question is cleanly answered by Art. II of the OST: ‘Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means’. This is one of the provisions of the OST which, we argue, has passed into customary law. That being the case a state which is not a member, or a state that withdraws from the OST, would not have a claim recognised by other states should it assert title (whether in whole or in part) to the Moon or any other celestial body. The Moon and other celestial bodies are res extra commercium, to use the Roman law term.38 Nor can an individual establish a right of property simply by claiming it. Only states can have sovereignty and thereby invest others with property rights. History is littered with claims by individuals and others that states have refused to recognise, and that ‘recognition’ is necessary under international law.39 None have grounded a legitimate assertion of a right of property valid against all-comers and to which the legal system of states will give effect. It follows that the various entrepreneurs who purport to sell portions of the Moon, Mars, Venus or any other celestial body cannot and do not transfer any sort of legal title to ‘purchasers’ from them.40 It is argued that the terms of Art. II of the OST prohibit only claims by states, therefore leaving open the possibility of a claim by an individual, and that such a claim creates a title which can then be passed on to a purchaser.41 We disagree. A valid right of property to immoveable estate can exist the wording of the Clinton Space Policy of 1996: http://history.nasa.gov/appf2.pdf or www. fas.org/spp/military/docops/national/nstc-8.htm. 38 �� If a right or thing cannot be owned – if it is extra commercium – it cannot be the subject of a right of property, nor does it devolve according to the law of succession. Justinian, Institutes 2.20.4; Digest 30.39.9 and 10 both refer to purported bequests of land that is extra commercium but the principle applies also to moveables. Cf. Digest 31.49.2 and 3). 39 �� See J.L. Erwin, ‘Footnotes to History’: www.buckyogi.com/footnotes/index. htm for an extensive list with detail of some histories/stories. The point stands whether recognition is considered as declaratory or as constitutive. Whichever, ‘recognition’ by other states is effectively constitutive for small states or states of dubious status. See T.C. Chen, The International Law of Recognition (London: Stevens, 1951); G. Kreijen, ed., State, Sovereignty and International Governance (Oxford; Clarendon Press, 2002); H. Lauterpacht, Recognition in International Law (Cambridge: Cambridge UP, 1947); S. Talmon, Recognition of Governments in International Law (Oxford: Oxford UP, 1998); C. Warbrick ‘States and Recognition in International Law’, in M.D. Evans, International Law (Oxford: Oxford UP, 2003) 205–66. 40 �� See for example, the Lunar Embassy – www.lunarembassy.com; or www. lunarregistry.com/; or moonforsale.com. However, note the Archimedes Institute which holds a draft register of claims to private property rights in outer space. A ‘claim’ is only a claim, not a title valid against all-comers. Registering a claim with the Institute does not confer a title or universally effective property rights as the Institute makes clear. Cf. E.L. Hudgins, Space: The Free-market Frontier (Cato Institute, 2003) (not seen). See also n. 43 infra. 41 �� See the answer to Qu. 2 of the General FAQ on the Lunar Embassy’s US website. F. Lyall cannot find it on other Lunar Embassy websites. The Lunar Embassy claim to be the first to have made such a claim is unproven: cf. Pop, Unreal Estates, infra n. 44.

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only within a legal system established by a state and in relation to property over which that state has sovereignty.42 Since state claims to sovereignty in space cannot exist, neither can title to immoveable property on celestial bodies in space. The US was therefore correct in refusing to give legal redress to one Gregory Nemitz.43 This matter has, of course, been discussed much over the years, and it is regrettable that it continues to generate misplaced interest. The Moon and the other celestial bodies in space as such are not available for ownership either by private individuals or by companies.44 The position as to materials recovered from the Moon and celestial bodies may, however, be different, or may be different in the future. 42 �� That MA Art. 11.3 specifically states that the surface, subsurface or any part of the Moon cannot become the property ‘of any State, international governmental or nongovernmental organisation, national organisation or non-governmental entity or of any natural person’ is irrelevant to the point. It does not leave a gap for an individual to claim title. Since there is no national appropriation (OST Art. II, MA Art. 11.2) no valid legal title can exist. Cf. K.A. Baca, ‘Property Rights in Outer Space’ (1993) 58 J. Air L. and Comm. 1041–85; G.H. Reynolds, ‘International Space Law: Into the Twenty-First Century (1992) 24 Vand. J. Transnat. L. 225–55 at 229–37. 43 �� Gregory Nemitz had registered a claim to the Asteroid 433 Eros with the Archimedes Institute. When the probe NEAR Shoemaker was landed on Eros in 2001, Nemitz sent a bill to NASA for US$20 for parking and the storage of the probe for 100 years. NASA refused to pay. After an exchange of letters Nemitz raised a court action in Nevada, and, following its decision, an appeal in the US Court of Appeals for the Ninth Circuit. He failed. Although the reasoning and argument is cluttered with technicalities of US procedural law, the decision was in effect that Nemitz had no cognisable cause of action (i.e. no right of property) on which to base his claim for payment, since there are no property rights in space. He had argued that his claim was based on his natural right, but had not asked the courts to declare he had a property right. See Gregor William Nemitz v The United States of America et al. no. CV-N-0300599-HDM (RAM), reported in Westlaw as 2003 WL 24268455 (D. Nev.) 6 Nov. 2003; WL 3703798 (D. Nev.) 28 Jan. 2004, WL 3703805, 11 Feb. 2004; 2004 WL 3167042, 26 Ap. 2004; tersely affirmed by the US Court of Appeals for the Ninth Circuit, 7 February 2005, 126 Fed. Appx. 343; 2005 US App. LEXIS 2350. See R. Kelly, ‘Nemitz v United States, A Case of First Impression: Appropriation, Private Property Rights and Space Law before the Federal Courts of the United States’ (2004) 30 J. Sp. L. 297–309, W. Whyte, ‘Nemitz v US – the First Real Property Case in United States Courts’ (2004) 47 Proc. IISL 339–51 (both written prior to the final determination in the case). K.M. Zullo, ‘The Need to Clarify the Status of Property Rights in International Space Law’ (2002) 90 Geo. L.J. 2413–44 at 2414–7 outlines the pre-trial correspondence in the case. See also ‘The Eros Project’: http://www.erosproject.com/appeal/apindex.html, http://www.erosproject.com/legal.html?source=ErosProject and http://www.erosproject. com/index.html?source=OrbDev. The Eros Project is managed by Orbital Development (www.orbdev.com) which has a number of private projects, and argues for the notion of private property rights in space. 44 �� V. Pop, Unreal Estate: The Men who Sold the Moon (Exposure Publishing: 2006) considers many historic examples of claims to the Moon and other celestial bodies. His Who Owns the Moon (Springer 2009) was published after this chapter was written. Cf. V. Pop, ‘Appropriation in outer space: the relationship between land ownership and sovereignty on

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Exploration of the Moon As a matter of law exploration differs legally from the economic exploitation of the Moon. Exploration does not entail permanent appropriation of materials in situ whereas economic exploitation may be thought necessarily to do so. The many legal problems associated with permanent or exclusive appropriation would not occur in lunar exploration. Indeed the OST encourages exploration, one of its purposes being ‘to contribute to broad international cooperation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes’ (OST, Preamble para. 4). OST Art. I para. 1 provides that the exploration and use of outer space including the Moon and other celestial bodies is to be ‘for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind’. Free access to all areas of celestial bodies and freedom of exploration and use without discrimination is accorded to all states by OST Art. I para. 2, and a correlative freedom of scientific investigation is also acknowledged and is to be facilitated by its para. 3. MA Art. 4.1 repeats the substance of OST Art. 1 but adds, perhaps in clarification, that in the exploration and use of the Moon due regard has to be paid to the interests of present and future generations and to a correlative need to promote higher standards of living and conditions of economic and social progress and development in accordance with the UN Charter.45 The initial explorations of the Moon and other celestial bodies were carried out by state agencies. In the future it may be that private entities will engage in

the celestial bodies’ (2000) 16 Space Policy 275–82, and ‘The Men who Sold the Moon: Science Fiction or Legal Nonsense?�� ’ (2001) 17 Space Policy 195–203; F.G. von der Dunk et al. �� ‘Surreal Estate: Addressing the Issue of “Immoveable Property Rights on the Moon”’ (2004) 20 Space Policy 149–56; L.I. Tennen, ‘Article II of the Outer Space Treaty, the Status of the Moon and Resulting Issues’ (2004) 47 Proc. IISL 520–29; P.M. Sterns and L.I. Tennen, ‘Privateering and Profiteering on the Moon and other Celestial Bodies: Debunking the Myth of Property Rights in Space’ (2002) 45 Proc. IISL 56–67. Cf. M.J. Listner, ‘The Ownership and Exploitation of Outer Space: A Look at Foundational Law and Future Legal Challenges to Current Claims’ (2003) 1 Regent J. Int. L. 75–94 particularly at 87–94. Listner appears to suggest that, as the claims of the Lunar Embassy were intimated to the UN and Russia, and were not responded to they may have some basis. At 92 he raises the possibility of the Lunar Embassy seeking a seat at the UN as a way to ‘precipitate an international controversy’. This suggestion is not supportable. See also the ‘Statement by the Board of Directors of the International Institute of Space Law (IISL) On Claims to Property Rights Regarding the Moon and Other Celestial Bodies’: http://www.iafastro-iisl.com. The IAU is trenchant on such matters, suggesting that ‘purchasers’ should not pay over cash until they have actual physical possession of any celestial ‘property’ they buy. See supra n. 8. 45 �� It is difficult to see what legal point is thus made.

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such activities.46 If so it is important that in the implementation of their obligations under OST Art. VI relevant states properly scrutinise proposals, issue appropriate licences and supervise the activities of their nationals. As far as actual exploration is concerned, under Art. IX of the OST, there should be co-operation in the exploration and use of the Moon and other celestial bodies.47 Harmful contamination should be avoided,48 as should any harm to the Earth through the introduction of extraterrestrial material.49 Harmful interference with the exploratory activity of others or their use of the Moon and other celestial bodies is to be avoided, and consultation engaged in if there is a known likelihood of such occurring (OST Art. IX). So as to achieve international co-operation OST parties have agreed to inform the UN Secretary General as well as the international scientific community and the public ‘to the greatest extent feasible and practicable’ of the ‘nature, conduct, location and results’ of their activities (OST Art. XI).50 The Secretary General is to disseminate such information immediately and effectively, a task fulfilled largely through OOSA.51 Modelled on Art. 7 of the Antarctic Treaty,52 OST Art. XII allows for the inspection of ‘stations, installations, equipment and space vehicles on the Moon and other celestial bodies’ ‘on the basis of reciprocity’, reasonable advance notice having been given for safety reasons and so as to avoid interference with normal operations. A similar provision is to be found in MA Art. 15.1.53 Article 10.2 of the Moon Agreement extends the matter of access so that ‘persons in distress on the moon’ are to be offered shelter in the stations, installations vehicles and other facilities’ of states party.54 In terms of the mechanics of exploration the MA contains provisions that may be considered usefully to flesh out the skeletal provisions of the OST. One feature of the Agreement is the number of its articles that require reports to be made to the UN Secretary General. Obviously, if complied with, their effect would be a considerable degree of transparency as to activities on the Moon and other 46 �� See supra n. 16 as to the Google-Lunar X Prize which will stimulate lunar entrepreneurs. 47 �� Cf. MA Art. 4.2. 48 �� This ought to veto the licensing of the Moon Crash programmes of such as Orbital Development that was advertised on eBay in 2004: http://www.orbdev.com/mooncrash. html?source=OrbDev. 49 �� See Chapter10 – ‘Contamination’. 50 �� It would be interesting to compare the transparency of such reports by different agencies. 51 �� Electronic access to OOSA data has speeded such matters. 52 �� Antarctic Treaty, supra n. 24. 53 �� In the film 2001: A Space Odyssey (1968) Russian access to the (US) site at ‘Moon Base Clavius’ is refused on health grounds. Cf. 2001: A Space Odyssey (London: Arrow, 1968). 54 �� The feasibility of such action is raised in Chapter 5. What if affording such shelter would result in there being insufficient air to support the increased number of persons until the air supply can be augmented?

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celestial bodies. It has to be said that it is a question whether such obligations will survive actual practice, even if the MA or something like it comes to rule in such matters. Certainly reporting practice will not prosper if the Moon opens to private commercial exploitation. Commercial enterprises are impatient of red-tape and form-filling not to mention an aversion to the potential disclosure of commercial secrets or market-sensitive information. Under the MA freedom of scientific investigation would include the collection and removal of samples (MA Art. 6.2)55 as has already occurred, the silence of the OST on such matters notwithstanding.56 The setting aside of sites of special scientific interest is contemplated in MA Art. 7.3. This could include the projected establishment of a radio-telescope facility on the lunar far-side.57 Otherwise, Moon bases, manned and unmanned, may be established (MA Art. 9.1). These are to occupy a minimal area and be located so that free access by others to the area is not impeded (MA Arts 9.1 and 2). No property title to the area occupied is created by such activities (MA Art. 11.3). As noted above, under OST Art. XII and MA Art. 15.1 Moon bases and facilities are to be open to inspection by other state parties, the latter provision indicating that the purpose of inspection is to ensure that parties are living up to their obligations under the Agreement. It may be significant that MA Arts 15.2–3 then provide for the raising of problems and suggestions that another party to the Agreement is not living up to its requirements, and for the settlement of resultant disputes. A manned base raises questions as to the potential contamination of the surrounding area. Ideally a base would be fully secured from environmental interaction with the Moon itself, but it has to be said that the state of the present environment round the US Amundsen–Scott Base at the terrestrial South Pole is not reassuring.58 The second sentence of OST Art. X 55 �� Cf. the first sentence of MA Art. 11.3: ‘Neither the surface nor the subsurface of the moon or nor any part thereof or natural resources in place shall become property of any State, intergovernmental or non-intergovernmental organisation, national organisation or non-governmental entity or of any natural person’ (emphasis added). 56 �� Samples returned to Earth have been purloined, leading to later trials for theft. The implication is that the ‘non-appropriation’ principle does not preclude a right of ownership of samples since one cannot ‘steal’ what is not subject to a right of property. Cf. K. Martens ‘United States of America v One Lucite Ball Containing Lunar Material (One Moon Rock) and One Ten Inch by Fourteen Inch Wooden Plaque 252 F. Supp. 2d 1367 (2003)’ (2003) 13 De Paul J. Art and Ent. L. 465–80; cf. also http://query.nytimes.com/gst/fullpage.htm l?res=9C0DEFD91139F931A35751C1A963958260; or http://news.bbc.co.uk/1/hi/world/ americas/2145915.stm; or http://www.usatoday.com/news/nation/2002-07-23-moon-rocks _x.htm. 57 �� C. Maccone, ‘Lunar Farside Radio Lab’ (2005) 56 Acta Astronautica 629–39. See also Chapter 17, p. 548. 58 �� M.S. Race and R.O. Randolph, ‘The Need for Operating Guidelines and a Decision Making Framework Applicable to the Discovery of Non-Intelligent Extraterrestrial Life’ (2002) 50 Adv. Space Res. 1583–91. Cf. the Wikipedia entry for the ‘Great Pacific Garbage Patch’, a huge area of marine debris in the North Pacific gyre. In A.C. Clarke, ‘Before Eden’,

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speaks of the avoidance of ‘harmful contamination’ of the Moon and celestial bodies.59 MA Art. 7.1 would require its parties to take measures ‘to prevent the disruption of the existing balance of’ the environment of the Moon or other celestial body,60 ‘whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise’, and to inform the UN Secretary General of measures adopted for the purpose (MA Art. 7.1). However, this language leaves open the question of precisely when contamination becomes harmful. Under such circumstances, the precautionary principle should be applied, and any error should be on the side of undue rigour and prevention rather than of risk.61 Some areas of the Moon should certainly be specifically protected,62 including the setting up of radio ‘quiet zones’ for radio-astronomic purposes.63 While nuclear weapons are banned from space, it is obvious that nuclear reactors or radioisotropic generators may well be used to power installations and vehicles used on the Moon or elsewhere.64 MA Art. 7.2 would therefore require the UN Secretary General to be informed of the placement and purpose of any nuclear materials on the Moon. Apart from bases, personnel,65 vehicles and equipment may be placed anywhere on a celestial body, including below the surface of the Moon (MA Art. 8.2). All vehicles and equipment will remain under the jurisdiction of the relevant launching state (OST Art. VIII and MA Art. 12.1). However, MA 12.2 also deals with what might be termed ‘lost property’, requiring objects found in places other than their intended location to be dealt with in accordance with ARRA. MA Art. 13 therefore also requires a state learning of a forced or other unintended landing or a crash on the Moon of a space object that it has not launched to inform the UN Secretary General and the relevant launching authority. Such provisions make sense. However, while they are clearly sensible for exploration of the Moon and celestial bodies, matters are different when questions of economic exploitation are concerned.

Tales of Ten Worlds (1962); Arthur C. Clarke: The Collected Stories (London: Gollancz, 2000) 758–66, life on Venus disappears, poisoned by garbage from an Earth expedition. 59 �� See Chapter 10 – ‘Contamination’. 60 �� We expand the language to take account of MA Art. 1.1. 61 �� P.B. Larsen, ‘Application of the Precautionary Principle to the Moon’ (2006) 71 J. Air L. and Comm. 295–306. See also L.D. Roberts, ‘Ensuring the Best of All Possible Worlds: Environmental Regulation of the Solar System’ (1997) 6 N.Y.U. Env. L.J. 126–60 at 158–60. 62 �� Cf. ‘Future Role and Activities of the Committee on the Peaceful Uses of Outer Space: Working Paper Submitted by the Chairman’, 10 May 2007, A/AC.105/L. 268, sec. F, paras 33–5, ‘Protection/conservation of Designated Areas of the Moon and Other Bodies of the Solar System’; http://www.unoosa.org/pdf/limited/l/AC105_L268E.pdf. 63 �� See Chapter 17, p. 548. 64 �� Cf. Chapter 10. 65 �� Matters relating to personnel are considered in Chapter 5.

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Exploitation Historically commercial considerations rather than a quest for scientific knowledge has triggered much of the exploration of the Earth, and, even when the search for knowledge was a major element, much was actuated by the potential improvement of navigation so that commerce might prosper.66 Science has led the way in the exploration of the Moon and other celestial bodies so far, but that will not remain the case. The exploitation of outer space for commercial and practical reasons is prevalent in Earth orbit, and for celestial bodies is on the horizon.67 Resources extracted from the Moon could ease the use of space, particularly were water to be found.68 Metals, rare on Earth, could be mined. Space activities further out in space could be conveniently begun from the Moon, the difficulties of getting up out of Earth’s gravity well and atmosphere being avoided.69 There have been significant calls (enthusiastic but not always legally well articulated) for private enterprise to lead the way (or be given a wide scope) in the exploitation of the resources of the Moon and other celestial bodies.70 ‘Freedom of use’ (OST Art. I) has been appealed to in order to minimise constraints on private activities. On the other hand caution has been advocated given the involvement of states through their licensing responsibilities and through their implementation of the duties to avoid contamination and disruption of the Moon or other celestial bodies.71 That said, any economic exploitation of the Moon (and later, other celestial bodies) poses legal problems, and many suggestions have 66 �� D. Sobel, Longitude (New York: Walker, 1995; London: Fourth Estate, 1996); J.E. Carroll, ‘Of Icebergs, Oil Wells, and Treaties: Hydrocarbon Exploitation Offshore Antarctica’ (1983) 36 Stan. J. Int. L. 207–27. 67 �� Thus the last bullet point of Sec. 2 of President Bush’s reworking of US Space Policy of 2006 speaks of ‘encouraging and facilitating a growing and entrepreneurial US space sector’ and using ‘US commercial space capabilities to the maximum practical extent’ and its Sec. 7 sets out ‘Commercial Space Guidelines’: (2007) XXXII AASL 475–86; http:// www.ostp.gov/html/US%20National%20Space%20Policy.pdf. 68 �� Cf. Lyall, and Cook, both infra n. 72. 69 �� Thus solar power satellites in the GSO might be constructed on the Moon and brought back to their orbital locations: see. Chapter 9 – ‘Solar Power’. 70 �� See n. 67, and: M. Menter, ‘Commercial Space Activities under the Moon Treaty’ (1979–1980) 7 Syracuse J. Int. L. and Com. 213–38; A. Dula, ‘Free Enterprise and the Proposed Moon Treaty’ (1979) 2 Houston J. Int. L. 3–33; L.L. Risely, ‘An Examination of the Need to Amend Space Law to Protect the Private Explorer in Outer Space’ (1999) 26 West. St. Univ. L. Rev. 47–70; E. Husby, ‘Sovereignty and Property Rights in Outer Space’ (1994) 3 J. Int. L. and Pract. 359–72; C.R. Buxton, ‘Property in Outer Space: The Common Heritage of Mankind Principle vs. the First in Time, First in Right Rule of Property’ (2004) 69 J. Air L. and Comm. 689–707. Cf. also the many contributions as to the importance of property rights in space in successive IISL Procs. 71 �� Cf. Chapter 10 as to the application of concepts of terrestrial international environmental law to the Moon. See also Larsen and Roberts, both supra n. 61.

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been made.72 Some argue that concepts of ‘sustainable development’, which has lately become a mantra in terrestrial environmental discussions, should be complied with.73 In licensing activities for the economic exploitation of the Moon or other celestial bodies states will need to be rigorous in their requirements as to the avoidance of disruption and contamination, and in ensuring of compliance with that requirement.74 Analogues of the problems of space debris, not to mention the pollution of the seas75 and the devastation that has been caused by particular 72 �� H.A. Wassenbergh, ‘Speculations on the Law Governing Space Resources’ (1980) 5 AASL 611–24; K.A. Baca, ‘Property Rights in Outer Space’ (1993) 58 J. Air L. and Comm. 1041–85; J. Zullo, ‘The Need to Clarify the Status of Property Rights in International Space Law’ (2002) 90 Geo. Int. L.J. 2413–44; R. Berkeley, ‘Space Law versus Space Utilization: The Inhibition of Private Industry in Outer Space’ (1996–7) 15 Wisc. J. Int. L.J. 221–43; R.P. Merges and G.H. Reynolds, ‘Space Resources, Common Property and the Collective Action Problem’ (1997) 6 N.Y. U. Env. L.J. 107–25; B.M. Hoffstadt, ‘Moving the Heavens: Lunar Mining and the “Common Heritage of Mankind” in the Moon Treaty’ (1994) 42 UCLA L. Rev. 575–621; K.V. Cook, ‘The Discovery of Lunar Water: An Opportunity to Develop a Workable Moon Treaty’ (1994) 11 Geo. Int. Env. L. Rev. 647–706; M.J. Listner, ‘The Ownership and Exploitation of Outer Space: A Look at Foundational Law and Future Legal Challenges to Current Claims’ (2003) 1 Regent J. Int. L. 75–94; J.R. Wilson, ‘Regulation of the Outer Space Environment through International Accord: the 1979 Moon Treaty’ (1991) 2 Fordham Env. L. Rep. 173–94; J.L. Zell, ‘Putting a Mine on the Moon: Creating an International Authority to Regulate Mining Rights in Outer Space’ (2006) 15 Minn. J. Int. L. 489–519; E.J. Reinstein, ‘Owning Outer Space’ (1999) 20 Nw. J. Int. L. and Bus. 59–98; H.H. Hertzfield and F.G. von der Dunk, ‘Bringing Space Law into the Commercial World: Property Rights without Sovereignty’ (2005) 6 Chi. J. Int. L. 81–99; S. Doyle, ‘Using Extraterrestrial Resources under the Moon Agreement of 1979’ (1998) 26 J. Sp. L. 111–128 [Lyall/Larsen 543–60]; F. Lyall, ‘On the Moon’ (1998) 28 J. Sp. L. 129–38; G.H. Reynolds, ‘International Space Law: Into the Twenty-First Century’ (1992) 24 Vand. J. Transnat. L. 225–55 at 229–37; A.D. Webber, ‘Extraterrestrial Law on the Final Frontier: A Regime to Govern the Development of Celestial Body Resources’ (1983) 71 Geo. L.J. 1427–56; C.Q. Christol, ‘The Moon and Mars Missions: Can International Law Meet the Challenge’ (1999) 19 J. Sp. L. 123–36; R. Sattler, ‘Transporting a Legal System for Property Rights: From the Earth to the Stars’ (2005) 6 Chic. J. Int. L. 23–44; D. Collins, ‘Efficient Allocation of Real Property Rights on the Planet Mars’ (2008) 14 B.U. J. Sci. and Tech. L. 201–19H. L. van Traa-Engelmann, Commercial Utilisation of Outer Space-Legal Aspects (Dordrecht: Nijhoff, 1993). 73 �� A.G. Apking, ‘The Rush to Develop Space: The Role of Spacefaring Nations in Forging Environmental Standards for the Use of Celestial Bodies for Governmental and Private Interests’ (2006) 16 Colo. J. Int. Env. L. 429–66; D. Tan, ‘Towards a New Regime for the Protection of Outer Space as the “Province of All Mankind”’ (2000) 25 Yale J. Int. L. 145–94. 74 �� L.D. Roberts, ‘Ensuring the Best of All Possible Worlds: Environmental Regulation of the Solar System’ (1997) 6 N.Y. U. Env. L.J. 126–60. 75 �� Cf. the International Convention for the Prevention of Pollution from Ships (MARPOL Convention) 1973 (1340 UNTS 184), as amended by a number of subsequent Protocols: http://www.imo.org/Conventions/contents.asp?doc_id=678&topic_id=258. This

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examples of terrestrial mining,76 must be avoided. Appropriate obligations to remove disused facilities and equipment should be imposed. There are analogous obligations as to the removal of installations from the continental shelf that could provide a model, although their various loopholes and discretions should be limited in their application in space or to celestial bodies.77

instrument is part of a number of IMO agreements regarding pollution of the seas. A huge area of the Pacific between Hawaii and Japan is covered by various debris, much of it plastic. See a US National Research Council Report, Tackling Marine Debris in the 21st Centur, to be published in late 2008 (National Academies Press, 2008: http://www.nap. edu/catalog.php?record_id=12486). See also supra n. 58. 76 �� Cf. the facts behind: S. Stec et al., ‘Transboundary Environmental Governance and the Baia Mare Cyanide Spill’ (2001) 27 Rev. Cent. and E. Eur. Law, 639–91; A.K-J. Tan, ‘All that Glitters: Foreign Investment Trumps the Environment in the Philippines’ (2005– 2006) 23 Pace Env. L. Rev. 183–20; R.E. Reyes Jr, ‘Nauru v Australia: The International Fiduciary Duty and the Settlement of Nauru’s Claims for Rehabilitation of its Phosphate Lands’ (1996) N.Y. L. Sch. J. Int. and Comp. L. 1–55; A. Anghie, ‘“The Heart of my Home”: Colonialism, Environmental Damage, and the Nauru Case’ (1993) 34 Harv. Int. L.J. 445– 508; Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) 1992 ICJ 240, case instituted 1989 ICJ 1 and discontinued on settlement 1993 ICJ 322. See also UNEP Principles: ‘Draft Principles on the Conduct in the Field of the Environment for the Conduct of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States’, UNEP Governing Council (1978) 17 ILM 1091–9. 77 �� The second sentence of Art. 5.5 of the Geneva Convention on the Continental Shelf, 1958 (499 UNTS 311) stated: ‘Any installations which are abandoned or disused must be entirely removed’. This was weakened by the parallel provision in Art. 60.3 of UNCLOS 1982 (1833 UNTS 3; (1994) 33 ILM 1309) which includes the sentence that ‘Any installations or structures which are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organization’. This allows too great a discretion to the relevant licensing state. The ‘competent international organization’ for UNCLOS is the International Maritime Organisation (IMO) whose Guidelines on such matters were adopted by the IMO Assembly in 1989 – ‘Guidelines Standards for the Removal of Offshore Installations and Structures on the Continental Shelf and in the Exclusive Economic Zone’ A.672(16) 1989 (available via http://www.imo.org/home.asp and the list of IMO Assembly Resolutions). These require that the relevant state ‘should ensure’ the removal of abandoned or dis-used installations and structures ‘as soon as reasonably practicable’ and subject to some exceptions and conditions. Cf. the regional provision in Arts 5 and 7–8 of Annex III to the Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992, the ‘OSPAR Convention’ (1993) ILM. 1069 with text commencing at 1072. The excuse of force majeure in Art. 6 of its Annex III should be ignored in any analogising to space. The OSPAR Commission supervises the application of the Convention: http://www. ospar.org/eng/html/welcome.html. See OSPAR Commission Decision 98/3 on the ‘Disposal of Disused Offshore Installations’ for detailed requirements.

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Common Heritage Discussion of the legal regime for the exploitation of the resources of the Moon has been affected by the inchoate concept of the ‘common heritage of mankind’. Indeed it is not too much to say that the ‘common heritage’ concept has both enriched and trammelled discussion as to the exploitation of the resources of the Moon and other celestial bodies.78 The call for the treatment of the seabed beyond national jurisdiction as what many now call ‘the common heritage of mankind’ was made by Ambassador Pardo of Malta at the 1515th Meeting of the First Committee of the UN on 1 November 1967,79 and this seems to have been accepted as the inception of the notion using the exact words. However, it had previously been introduced by A.A. Cocca at COPUOS meetings, and the ideal of setting aside territory from national sovereignty goes a long way back.80 The associated notion that ‘all’ or 78 �� K. Baslar, The Concept of the Common Heritage of Mankind in International Law (The Hague: Nijhoff, 1998); cf. M.G. Schmidt, Common Heritage or Common Burden: The United States Position on the Development of a Regime for the Deep Sea-Bed Mining in the Law of the Sea Convention (Oxford: Clarendon Press, 1989); and S.K. Chopra, ‘Antarctica as a Commons Regime’ at 163 and H.J. Taubenfeld ‘The Antarctic and Outer Space’ at 269, both in C.G. Joyner and S.K. Chopra, eds, The Antarctic Legal Regime (Dordrecht: Nijhoff, 1988); C.C. Joyner, ‘Legal Implications of the Concept of the Common Heritage of Mankind’ (1986) 25 ICLQ 190; L.F.E. Goldie ‘Title and Use (Usufruct) – An Ancient Distinction Too Oft Forgot’ (1985) 79 AJIL 689–714; L.M. Fountain, ‘Creating Momentum in Space: Ending the Paralysis Produced by the “Common Heritage of Mankind” Concept’ (2003) 35 Conn. L. Rev. 1753–88. Apart from in connection with Antarctica and the Deep Sea-Bed, the ‘common heritage’ concept has also emerged in discussions on a variety of subjects including DNA: M.L. Sturges, ‘Who Should Hold Property Rights to the Human Rights Genome – An Application of the Common Heritage of Humankind’ (1997) 13 Am. U. Int. L. Rev. 219–61; J.A. Bovenberg, ‘Mining the Common Heritage of our DNA: Lessons learned from Grotius and Pardo’ (2006) 8 Duke Law and Tech. Rev. no. 8, and plant resources – C.B. Onuweukwe, ‘The Commons Concept and Intellectual Property Rights: Whither Plant Genetic Resources and Traditional Knowledge?’ (2004) 2 Pierce L. Rev. 65–90. In substance it also appears in discussions as to art, cultural objects and natural heritage: Convention on the Protection of the World Cultural and Natural Heritage (Paris: UNESCO, 1972); (1972) 11 ILM 1358– 66, with Recommendations at 1367–74; http://whc.unesco.org/archive/convention-en.pdf. G. Nicholson, ‘The Common Heritage of Mankind and Mining: An Analysis of the Law as to the High Seas, Outer Space, Antarctica and World Heritage’ (2002) 6 N.Z. J. Env. L. 177–98 at 194–6; A. Strati, ‘The Implication of Common Heritage Concepts on the Quest for Cultural Objects and the Dialogue between North and South’ (1995) Proc. Am. Soc Int. L. 439–43. 79 �� 1515th Meeting of the First Committee, 1 November 1967. See also UNGA Res. 2749 and 2750 (XXV) both dealing with the Sea-bed and Ocean Floor. 80 �� Repeating material from Chapter 3 for convenience: setting aside territory from claims of sovereignty may have begun with early twentieth century discussions as

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‘all countries’ should benefit from the exploitation of resources in an area that has been set aside or that lies outwith sovereignty is more recent. Fundamentally it is part of the drive towards a New International Economic Order (NIEO) which the developing countries introduced into international discussions and negotiations in the 1960s and 1970s.81 As far as the Moon is concerned the matter crystallises in MA Art.11.82 Article 11.1 asserts that the ‘moon and its natural resources are the common heritage of mankind’. The sentence is careful to continue that that common heritage ‘finds its expression in the provisions of this Agreement, in particular paragraph 5 of this article’. The intention of this qualifying clause is to distinguish the common heritage of the Moon from that of the deep sea-bed beyond the limits of national jurisdiction, that is ‘the common heritage of mankind’ in terms of Art. 1 and Part XI (as later amended) of the UN Convention on the Law of the Sea (UNCLOS) which was being negotiated at the same time as the MA,83 and in which NIEO concepts

to Spitzbergen and the Svalbard archipelago. This gave rise to the idea of Balch in 1910 that ‘East and West Antarctica’ (areas not claimed in 1910) should ‘become the common possessions of all of the family of nations’: T.W. Balch ‘Arctic and Antarctic Regions and the Law of Nations’ (1910) 4 AJIL 265–75 at 274–5; cf. J.B. Scott, ‘Arctic Exploration and International Law’ (1909) 3 AJIL 928–941 at 941. That idea was not then carried into law, but a mutant re-emerges with the Antarctic Treaty of 1959 following the 1957 International Geophysical Year (supra n. 24). The Svalbard Treaty of 1920 (2 LNTS 7, 2 Bevans 269 (US) 43 Stat. 18–92, TS 686) recognised Spitzbergen and the rest of the archipelago as Norwegian while providing for freedom of hunting and access to fishing grounds. See W. Østreng (R.I. Christophersen trans.) Politics in High Altitudes: The Svalbard Archipelago (London: Hurst, 1977). 81 �� See ‘Declaration on the Establishment of a New International Economic Order (A/9556)’ UNGA Res. 3201 (S-VI), 1974; the related ‘Programme of Action’ UNGA Res. 3202 (S-VI) 1974, and the ‘Charter of Economic Rights and Duties of States’, UNGA Res. 3281 (XXIX) 1974. M. Hudson, Global Fracture: the New International Economic Order (London: HarperCollins, 1977; Pluto Press, 2005). Discussion of the NIEO lies beyond the ambit of this book, but cf. Chapter 9 – ‘Direct Broadcasting’ as to the New International Information Order. As to space and the NIEO see S.D. Mau, ‘Equity, the Third World and the Moon Treaty’ (1984) 8 Suffolk Transnat. L.J. 221–58; Hoffstadt, supra n. 72, at 6-3-12. 82 �� S.B. Rosenfeld, ‘The Moon Treaty: The United States Should Not Become a Party’ (1980) 74 ASIL Proc. 162–6; A.R. Filiato, ‘The Commercial Space Launch Act: America’s Response to the Moon Treaty’ (1987) 10 Fordham Intl L.J. 763–81; C.Q. Christol, ‘The Common Heritage of Mankind Provision in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies’ (1980) 14 Int. L. 429–84; J. Frakes, ‘The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Countries Reach a Compromise?’ (2003) 21 Wisc. Int. L.J. 409–34. See also US Senate report, supra n. 32. 83 �� UN Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3; US Tr. Doc. 103-39; (1982) 21 ILM 1261–1354; Part XI amended, 1999 UKTS 82, Cm. 4525; (1994) 33 ILM 1309–27.

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and arguments played a role.84 Part XI of the Law of the Sea Convention with Annexes III and IV lay down very detailed provisions setting up an International Seabed Authority that is intended to organise and license the exploitation of seabed resources beyond the limits of national jurisdiction among its one-hundred and fifty-five members as well as setting up the ‘Enterprise’ to conduct activities and mechanisms for the transfer of technology. The ‘common heritage’ provisions of the MA pale by comparison. By MA Art. 11.1 the whole of the Moon Agreement expresses the common heritage of the Moon and its natural resources. What this means in relation to much of the MA is obscure to the point of meaninglessness, but Art. 11.2–8 spells out some matters more clearly, in particular the troublesome Arts 11.5 and 11.7. Article 11.2. repeats the substance of OST Art. II prohibiting national appropriation of the Moon. Article 11.3 makes it clear that the Moon surface or subsurface, or its natural resources in place or structures on the Moon, cannot become the subject of a right of property, though this is specifically without prejudice to a future international regime as contemplated in Art. 11.5. Article 11.4 allows state parties to the MA to explore and use the Moon without discrimination on the basis of equality, in accordance with international law and the MA. These provisions would be acceptable to most in relation to exploratory activities. However, MA Art. 11.5 calls for the establishment of an international regime by and among its parties to govern the exploitation of the natural resources of the Moon when that exploitation is about to become feasible. Article 11.6 calls for the establishment of this international regime to be facilitated by states reporting ‘to the greatest extent feasible and practicable’ to the UN Secretary General, to the public and to the international scientific community of any natural resources discovered on the Moon. Knowledge would apparently therefore trigger the negotiation of the international regime.85 By MA 11.7 the purpose of the international regime will be: the orderly and safe development of the natural resources of the Moon (MA Art. 11.7.a), their rational management (MA Art. 11.7.b) and the expansion of opportunities in the use of these resources (MA Art. 11.7.c). MA Art. 11.7.d then attempts a balance, calling for an ‘equitable sharing’ by all state parties ‘in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed 84 �� Cf. R.L. Friedheim and W.J. Durch, ‘The International Seabed Resources Agency and the New International Economic Order’ (1977) 31 Int. Org. 343–84; G.M. Danilenko, ‘The Concept of the “Common Heritage of Mankind” in International Law’ (1988) 13 AASL 247–63; D. Yarn, ‘The Transfer of Technology and UNCLOS III’ (1984) 14 Ga. J. Int. and Comp. L. 121–54. 85 �� It has been suggested that this means that exploitation cannot start until such a regime is established. That might be true as between MA parties, but it will certainly not impede others from going ahead: cf. Rosenfeld, n. 82 supra. The MA does not specifically provide for a moratorium on development until the regime is agreed. Some states, e.g. the US, are of the view that no moratorium exists: others disagree.

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either directly or indirectly to the exploration of the Moon, shall be given special consideration’. This attempted balance is a complete failure. While ‘equitable’ is not the same as ‘equal’, the interests of both the space-active and the non-spaceactive are to be treated as ‘special’. It is unsurprising that no currently spacecompetent state (i.e. one able to get to the Moon by its own efforts) has committed itself to the MA, and the history of the developing countries’ argumentation makes future commitment to it by space-faring states unlikely. The concept of ‘common heritage’ hinders rather than encourages development. That said, something will have to be done to clarify or establish appropriate rules for the exploitation of the resources of the Moon and other celestial bodies.86 Financiers will not risk capital if the rights to extracted materials are inadequately defined.87 Certainty as to the applicable legal regime is a necessity for lunar economic exploitation.88 One possibility is a revision of the Moon Agreement.89 Another, while leaving the actual licensing, supervision, monitoring and enforcement of compliance with international environmental requirements in the hands of states, would be to adapt an element of the approach of the 1982 UN Convention on the Law of the Sea (LoS).90 Under its Annex II a Commission on the Limits of the Continental Shelf (CLCS) has been established and is functioning.91 The Commission is composed of twenty-one members, all experts in geology, geophysics or hydrography, elected by the states party to the Convention. Its functions include the making of recommendations as to claims of coastal states to a continental shelf extending beyond two hundred nautical miles made in terms 86 �� Cf. M.S. McDougal et al. ‘The Enjoyment and Acquisition of Resources in Outer Space’ (1963) 111 U. Penn. L. Rev. 521–636, also Chapter. 7, 749–871 of M.S. McDougal, H.J. Lasswell and I.A. Vlasic, Law and Public Order in Space (New Haven, CT and London: Yale UP, 1963); H.R. Hertzfeld and F.G. von der Dunk, ‘Bringing Space Law into the Commercial World: Property Rights without Sovereignty’ (2005) 6 Chi. J. Int. L. 81–100; A. Wasser and D. Jobes, ‘Space Settlements, Property Rights and International Law: Could a Lunar Settlement Claim the Lunar Real Estate It Needs to Survive?’ (2008) 73 J. Air L. and Comm. 37–78. 87 �� See Report, ‘Agreement Governing the Activities of States on the Moon and Other Celestial Bodies’ Committee on Commerce, Science, and Transportation (US) 96th Cong. 2d Sess. (Committee Print 1980). 88 �� Baca, supra n. 42. 89 �� F.G. von der Dunk, ‘The Moon Agreement and the Prospect of Commercial Exploitation of Lunar Resources’ (2007) XXXII AASL 91–113; cf. Res. 1/2002, International Law Association, Report of the 70th Conference, Delhi, 2002 at 13–4 (Fr. at 15–6), and related ‘Report of the Space Law Committee’, 192–227 at 201–7. 90 �� UNCLOS, supra n. 83. 91 �� Commission on the Limits of the Continental Shelf (CLCS): http://www.un.org/ depts/los/clcs_new/clcs_home.htm. See UNCLOS supra n. 83, Art. 76.4–6 and Annex II together with the ‘Statement of Understanding Concerning a Specific Method to be Used in Establishing the Outer Limit of the Continental Margin’, Annex II to the Final Act of the Third UN Conference on the Law of the Sea.

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of Art. 76.4–6 of the LoS Convention. Its recommendations are based on data supplied by claimant states, and the Commission can assist states in the preparation of their documentation.92 The Commission therefore provides a legal basis for the actions of states and recognition of their claims, but, unlike the ‘Enterprise’ of Art. 153.2.a and Annex IV of the LoS Convention, without engaging in actual exploitative activities. A similar tribunal to decide on or make recommendations as to the lawfulness of a proposed exploitation of the Moon, the location of a Moonbase and its parameters of operation bears thinking about. Another solution is to recognise that the demand for a ‘right of property’ to be ‘recognised’ is atavistic and culturally limited.93 The concept of usufruct, known throughout civilised legal systems, could suffice.94 Other Celestial Bodies The exploitation of celestial bodies other than the Moon remains unsettled. Certainly legal title to a complete asteroid in space is impossible.95 On the other hand there is a terrestrial market for meteorites, and no-one doubts the title of the American Museum of Natural History in New York to Ahnighito, the Woman and the Dog, found by Peary in Greenland, or the other exhibits in its Arthur Ross Hall of Meteorites. It may therefore be possible in the future that asteroids will be mined in space, and the product either used in space or transferred to Earth. In such a case there would seem little problem in recognising a title in much the same way as title is recognised to fish, ownerless when in the high seas, but readily sold by fishermen on shore. It remains to be seen whether at that stage there will be a clamour to establish a regulatory regime on the analogy of Part XI of the UN Convention on the Law of the Sea.96 Much will depend on how the exploitation of the Moon has progressed. Beyond that there is the question of Mars.97

92 �� To 2008 the Commission has received applications from Russia (2001), Brazil and Australia (2004), Ireland (2005), New Zealand, Norway, and a joint claim by France, Ireland, Spain and the UK (2006), France and Mexico (2007), Barbados, the UK and Indonesia (2008). 93 �� Cf. A. Wasser and D. Jobes, ‘Space Settlements, Property Rights and International Law: Could a Lunar Settlement Claim the Lunar Real Estate it Needs to Survive?’ (2008) 73 J. Air L. and Comm. 37–78. 94 �� L.F.E. Goldie ‘Title and Use (Usufruct) – An Ancient Distinction Too Oft Forgot’ (1985) 79 AJIL 689–714. 95 �� See supra at n. 36, ‘Sovereignty and Title to Immoveables’. 96 Supra n. 83. 97 �� C.Q. Christol, ‘The Moon and Mars Missions: Can International Law Meet the Challenge’ (1999) 19 J. Sp. L. 123–36; D. Collins, ‘Efficient Allocation of Real Property Rights on the Planet Mars’ (2008) 14 B.U. J. Sci. and Tech. L. 201–19.

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Chapter 8

Radio and the International Telecommunication Union Introduction Radio is integral to almost all uses of space. It is essential for most tracking, for all telemetry, command and control functions and for the very fulfilment of the purpose of most satellites. Although tracking can be done by ground-based radar, satellites are mostly tracked through the signals which they themselves transmit. Telemetry monitors the health and performance of a satellite through diagnostic information supplied by radio by the satellite itself. Command and control of a satellite is exercised through ground signals. The fulfilment of the function or purpose of a satellite depends on its ability to receive and to transmit data to Earth. The frequencies required by modern satellites lie in the very high frequency range and above since it is only these that can penetrate the Heaviside layer of ionised gases above the Earth, and only in these ranges is a sufficient precision of signal obtained which allows the modulation and band width necessary for the carrying of very sophisticated digital signals. Any degradation of the quality of the signal to or from a satellite at best diminishes its efficiency and at worst renders it useless. On-board computers control satellites and respond to radio signals in accordance with their programming. However, as is well known, computers only act in accordance with input received. They do not ‘know’ what is ‘meant’ by a particular signal or intended by its sender. A degraded signal may have no effect whatsoever, or it might have an unexpected effect. Problems of interference are therefore of importance in the use of radio in relation to space. Other relevant matters also require international agreement and regulation. Common technical standards are necessary both to avoid the interference just referred to and to ensure compatibility of equipment. That requirement also necessitates that there be international agreement on procedures, protocols and codes connected with signal transmission and receipt. Further, international communications have to be paid for and international agreement is necessary on rates charged for particular services and on procedures through which accounts may be settled between international carriers. Last, and later, it has been found �� Visual astronomy is an exception, but radio astronomy and SETI require the frequencies they use to be secured from radio interference. See infra n. 119. �� On-board computers may cope with routine operations in response to on-board sensors.

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possible to integrate the matter of the orbit of a transmitter/receiver in space with the question of its use of the spectrum. When space exploration and utilisation began there already was an international organisation dealing with such matters at the terrestrial level. Tracing its origins back to times when the electric telegraph was a main modality of international communications, the International Telecommunication Union (ITU) had built significant expertise in relation to the problems of communication by telephone, telegraph and radio. When the UN General Assembly came to consider space matters in any detail it was therefore natural that Part D of Assembly Resolution 1721(XVI) of 20 December 1961, ‘International Cooperation on the Peaceful Uses of Outer Space’ saw a major role for the ITU. In fact the ITU had taken cognisance of the radio requirements of space research as early as 1959, and was already preparing a more structured approach to the needs of space which began with the Extraordinary Administrative Radio Conference of 1963. In subsequent years space has become a very important part of ITU responsibilities. Indeed the requirements of space were a considerable element in the major reconstruction of the Union that took place in 1992–4 which brought into being the present International Telecommunication Union. The ITU: History The history of the International Telecommunication Union has two major strands, the one relating to wired services – the telegraph and the telephone – and the other to radio. The ‘wired’ element came first. �� The World Administrative Radio Conference, Geneva 1959, amended the International Radio Regulations to include definitions of a ‘space station’ and an ‘earth station’ and of a ‘space service’ and an ‘earth/space service’. To avoid confusion it should be explained that ‘station’ in this context refers to a transmitter station, and not to the later manned ‘space stations’. �� Partial Revision of the Radio Regulations: Final Acts of the Extraordinary Administrative Radio Conference to Allocate Frequency Bands for Space Radio Purposes, Geneva, 8 November 1963, 15 UST 887, TIAS 5603; (1964) 3 ILM 91–106. �� For ITU history down to their dates of publication, see O. Mance, International Telecommunications (Oxford: Oxford UP, 1943); G.A. Codding, The International Telecommunication Union: An Experiment in International Cooperation (Leiden: E.J. Brill, 1952; rep. New York: Arno Press, 1972); J.H. Glazer, ‘The Law-making Treaties of the International Telecommunication Union through Time and in Space’ (1962) 60 Mich. L. Rev. 269–316; F. Lyall, ‘The International Regulation of Telecommunications’, Sec. V of his ‘Posts and Telecommunications’, in O. Schachter and C.C. Joyner, eds, United Nations Legal Order (Cambridge: Cambridge UP and ASIL, 1995) 789–823 at 801–23; F. Lyall, Law and Space Telecommunications (Aldershot: Dartmouth; Brookfield, VT: Gower, 1989) 311–409. Cf. G.A. Codding and A.M. Rutkowski, The International Telecommunication Union in a Changing World (Boston, MA: Artech House, 1982).

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An International Telegraph Union was established in 1865 to provide uniformity in tariffs, codes, routing and operational matters through the establishment of regulations for international telegraphy. Three years later a permanent International Bureau was added to handle the routine administrative work of the Union. Reflecting technical developments the membership of the Union also greatly increased. Further telegraph conferences were held at Rome in 1871–2, and at St Petersburg in 1875.10 The 1885 Berlin Telegraph Conference brought the new-fangled telephone mechanism within the competence of the Union and made more detailed provision for the functioning of the International Bureau.11 A Paris Conference in 1925 set up International Consultative Committees for the Telephone (CCIF) and Telegraph (CCIT) to co-ordinate technical studies and to establish international standards for the two facilities.12 In 1928 a further Protocol to the 1875 Convention amended the International Service Regulations of the Telegraph Union.13 Finally, the Thirteenth International Telegraph Conference was held at Madrid in 1932 when the Telegraph Union and a Radio Telegraph Union, which had been developing along with that new technology, fused to form the International Telecommunication Union. Although its invention is controverted, the first UK patent for Wireless Telegraphy stands in the name of Guglielmo Marconi in 1896. Initially because of the hostility of the telephone and telegraph companies to the new competitor, radio found its main market in ship to shore and ship to ship communication. Preceded by a Preliminary Conference in 1903,14 the first international agreement on radio �� International Telegraph Convention, Paris, 17 May 1865, 130 CTS 198: 56 BFSP 295. The parties were Austria, Baden, Bavaria, Belgium, Denmark, France, Hamburg, Hanover, Italy, The Netherlands, Portugal, Prussia, Russia, Saxony, Spain, Sweden, Norway, Turkey and Württemberg. �� International Telegraph Convention, Vienna, 21 July 1868, 136 CTS 292: 1868 59 BFSP 322. �� Newcomers were Great Britain (on behalf of India), Greece, the Holy See, Luxemburg, Persia, Serbia, Switzerland and the United Principalities of Moldavia and Wallachia. �� International Telegraph Convention, Rome, 14 January 1872, 143 CTS 415; 66 BFSP 975. 10 �� International Telegraph Convention, with annexed regulations and schedule of rates, St Petersburg, 22 July 1875, 148 CTS 416; 66 BFSP 19; 3 Martens (2d) 614. 11 �� Regulations in execution of the International Telegraph Convention of 22 July 1875, Berlin, 17 September 1885, 165 CTS 212, 76 BFSP 597; 12 Martens (2d) 205. 12 �� International service regulations, annexed to the International Telegraph Convention of St Petersburg, Paris, 29 October 1925, 57 LNTS 201, 3 Hudson 1695. 13 �� Protocol regarding certain additions and modifications to the International Service Regulations, Brussels, 22 September 1928, 88 LNTS 347, 3 Hudson 1756. 14 �� Preliminary Conference in Berlin on Wireless Telegraphy, Process Verbaux and Final Protocol (1903) Cd. 1832, 120 UKSP 94. The Final Protocol is also printed 194 CTS 46; 97 BFSP, 467; 33 Martens (2d) 471.

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was the outcome of a conference held in Berlin in 1906.15 One important element of the agreement was the introduction of ‘universal compulsory communication’ by Art. 3 under which no ship or shore station might refuse communication from another station on the ground that it used a different system of wireless telegraphy.16 More important for the future were the Service Regulations annexed to the Berlin Convention since these contain provisions which are lineally and intellectually the direct ascendants of principles and mechanisms still operated by the ITU. These are the principles of allocation of specific wave-bands to specified services, the avoidance of harmful interference and the use of the best available technologies. By Regulation II the 300 and 600 metre wavelengths were set aside for general public correspondence and long-distance communication. Special services were available only to postal radio stations and these had to be transmitted at under 300 or over 600 metres thus avoiding interference with the signals carried on those frequencies. Regulation III allocated the 300 metre frequency to all ships carrying equipment capable of transmitting at that frequency. Regulation XIX dealt with interference being caused to transmissions already in progress. Regulation V prohibited superfluous signals and allowed equipment trials and practice for and by operators only in so far as no interference was caused to stations in normal usage. By Regulation XXVIII radio stations were required to exchange signal traffic with the minimum power required for effective communication. The 1906 Regulations therefore dealt with interference, allocated particular frequencies for particular purposes, required the minimising of signal power and established communication procedures. These basic principles remain fundamental to the operation of the ITU system in radio questions today.17 After 1906 finding ‘free’ spectrum in the lower ranges soon became difficult, but technical progress made a wider radio spectrum range available. As early as 1912 a wider Table of Frequency Allocations attempted to extend the number of identified different radio services, but still to limit them to designated frequencies.18 Major alterations were made to the Radio Regulations in 1927.19 The First World War 15 �� Radio Telegraphic Convention, Final Protocol and Regulations, Berlin, 3 November 1906, 1909 UKTS 8, Cd. 4559; 37 Stat. 15665, TS 568; 203 CTS 101; 99 BFSP 321; (1906) 3 AJIL Supp. 330-40; 3 Martens (3d) 147; 1 Bevans 556. 16 �� ‘Intercommunication’ is now required by Art. 11 (501–503) of the ITU Convention. (For breviate citation see infra n. 39.) The UK took powers by the Wireless Telegraphy Act 1904 to enforce this obligation (which was a proposal of the 1903 Berlin Conference) beyond its territorial waters. 17 �� See generally infra ‘Radicommunication’. 18 �� International Radiotelegraph Convention, London, 5 July 1912, 1 LNTS 135, 216 CTS 244, 105 BFSP 219, 1913 BTS 10, Cd. 6873; 38 Stat. 1672, TS 581, 1913 7 AJIL Supp. 229. Compliance with the Table or its successors was not mandatory until after the Second World War. 19 �� Radio Telegraph Convention and General Regulations, Washington DC, 25 November 1927; 84 LNTS 97; 126 BFSP 330; 45 Stat. 2760, TS 767; 3 Hudson 2197; 2 Bevans 683; 26 Martens (3d) 234; (1929) 23 AJIL Supp. 40 (Convention only).

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had produced immense technical advances and was followed by the development of both state and commercial broadcasting with the result that the number of transmitting stations had greatly increased. The 1927 documents therefore reveal a major shift in international radio interest, moving from maritime services to the general regulation of radio wherever it might occur. Frequency bands were allocated to fixed, maritime and aeronautical mobile, broadcasting, amateur and experimental services, and an international registration system was introduced for assignments to transmitting stations made by their home states. In addition a Consultative Committee on Radio (CCIR) was established, mirroring those for the Telegraph and for the Telephone that already existed in the Telegraph Union. As noted above, five years later the Radio Telegraph and the Telegraph Unions fused. In 1932 each Union simultaneously held conferences at Madrid at which the establishment of a single telecommunications organisation under the new name, the International Telecommunication Union (the ITU)20 was agreed.21 Thereafter a conference at Cairo made some changes to the international Table of Allocations for radio frequencies.22 The Second World War occasioned a further major expansion of radio technology. A Plenipotentiary Conference of the Union was held in 1947 at Atlantic City, New Jersey, to sort out what had become a highly disorganised scene.23 An important creation of Atlantic City was the International Frequency Registration Board (IFRB) to which was entrusted both the bringing up to date of the registration of international frequencies, and the operation of a new Master International Frequency Register on which assignments made by states in conformity with the international Radio Regulations would be entered. This Register, as amended, remains crucial to the operation of satellites, and the work of the IFRB, until its replacement in the 1992/4 reconstruction of the Union, was absolutely fundamental. In addition, because the ITU was to become one of the UN family of specialised agencies, the Atlantic City Conference altered the general structure of the ITU to conform to the usual UN pattern. An Administrative Council was established annually to review the operation of the Union and a Secretary General with an appropriate secretariat introduced to take over the day-to-day running of the organisation. However, the nineteenth century system of financing the Union through each member selecting its own contributory class was preserved. 20 �� It is curious how many still try to call it the International Telecommunications Union. 21 �� Telecommunication Convention, General Radio Regulations, Additional Radio Regulations, Additional Protocol (European), Telegraph Regulations and Telephone Regulations, Madrid, 9 December 1932; 151 LNTS 4; 49 Stat. 2391, TS 867; 6 Hudson 109; 3 Bevans 65. 22 �� General Radio Regulations, Cairo, 8 April 1938, 54 Stat. 1417, TS 948, 8 Hudson 41; 3 Bevans 518. 23 �� International Convention on Telecommunications, Atlantic City, 2 October 1947; 193 UNTS 188, 194 UNTS 3; 1950 UKTS 76, Cmd. 8124; 63 Stat. 1399, TIAS 1901; 4 Bevans 470.

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From 1947 the structural pattern of the ITU remained more or less unchanged for some forty-five years until change was forced by another need to cope with developments. In this, space matters were not irrelevant. The ITU had retained divisions traceable to the history of wired and wireless services.24 Successive revisions of the ITU Convention had rendered the whole structure outdated, unnecessarily complex, and unable swiftly or adequately to cope with new developments technical, commercial and political. With the dissolution of the colonial empires the membership of the ITU had greatly increased. The gap between major conferences had become too long.25 Telecommunications in general, and radio in particular, had become extremely complex. The interests of both manufacturing and telecoms service providers were clamant. Technology was swiftly changing. Simplification and efficiency within the ITU became essential. And, of course, the cost of operating the Union was a final element. Dissatisfaction with the structure and the organisational abilities of the Union rose to a climax in the 1980s. A Plenipotentiary Conference in Nice in 1989 was very conscious that the swiftly changing telecommunications environment required the ITU to alter its structures and procedures.26 In particular the globalisation of telecommunications, the increased and increasing pace of technological change, the development of the information economy and its interaction with society and societies around the world had rendered the slow mechanisms of the ITU obsolescent if not obsolete. The Nice Conference took some steps towards revising the ITU structure but recognised that more radical surgery was necessary.27 To that end it established a High Level Committee fully to review the structure and

24 �� The CCIF and CCIT were fused in 1956 to form the CCITT (the Consultative Committee on Telegraph and Telephone) by the decision of the Buenos Aires Plenipotentiary Conference, cited in next note. 25 �� Cf. the dates of the International Telecommunication Convention, Buenos Aires, 22 December 1952, 1958 UKTS 36, Cmnd. 520; 6 UST 1213, TIAS 3266: the International Telecommunication Convention, Geneva, 21 December 1959, 1961 UKTS 74, Cmnd. 1484; 12 UST 1761, TIAS 4892: the International Telecommunication Convention, Montreux, 12 November 1965, 1967 UKTS 41, Cmnd. 3383; 18 UST 575, TIAS 6267: the International Telecommunication Convention, Malaga-Torremolinos, 25 October 1973, 1209 UNTS 32, 255; 1975 UKTS 104, Cmnd. 6289; 28 UST 2495, TIAS 8572: the International Telecommunication Convention, Nairobi, 6 November 1982, 1531 UNTS 1, 1985 UKTS 33, Cmnd. 9557; US Tr. Doc. 99-6. Given the terms of Art. 102 of the UN Charter, it is curious to find that none of the 1952, 1959 and 1965 Conventions were registered with the UN. 26 �� A number of documents considered by the Nice Conference are significant, including The Missing Link (the Report of the Maitland Commission) (Geneva: ITU, 1985), and The Report of the Secretary General‘s Advisory Group on the Changing Telecommunications Environment (the Report of the Hansen Committee) (Geneva: ITU, 1989). 27 Final Acts of the Nice Plenipotentiary Conference (Geneva: ITU, 1990). The Nice treaty was not published in an official series.

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functioning of the Union. This reported in April 1991.28 By the time this Report was available only six countries had ratified the 1989 Nice constitutional documents so the ITU Administrative Council decided to press ahead with reform and arranged an Additional Plenipotentiary Conference to take place in Geneva in December 1992 before the Nice arrangements were to come into force. On the basis of the Report of the High Level Committee, the 1992 Geneva ExtraOrdinary Plenipotentiary Conference of the International Telecommunication Union adopted major structural changes to the ITU.29 However, before these documents came into force they were in their turn overtaken and revised in some details by the Final Acts of the 1994 Kyoto Plenipotentiary Conference. These came into force in 1996.30 One effect of the Geneva/Kyoto decisions was that the ITU Convention, the previous basic single constitutional document, was split into a Constitution and a Convention. These gave the ITU its present form, including the allocation of major areas of working responsibilities to the three new Sectors discussed below. A new four-year cycle of plenipotentiary conferences was adopted within which other more restricted conferences are scheduled and the Sectors work.31 The intention of these changes was the promotion of efficiency, cost-effectiveness and a more swift response to the regulatory needs of a rapidly changing international telecommunications environment. The Geneva/Kyoto arrangements have been further revised and amended by Plenipotentiary Conferences held in Minneapolis, US, in 1998,32 at Marrakesh,

28 Tomorrow’s ITU: The Challenges of Change: the Report of the High Level Committee to Review the Structure and Functioning of the International Telecommunication Union (ITU) (Geneva: ITU, 1991). 29 Constitution and Convention of the International Telecommunication Union: Final Acts of the Additional Plenipotentiary Conference, Geneva, 22 December 1992 (Geneva: ITU, 1993), 1825 UNTS 1; 1996 UKTS 24, Cm. 3145; US Tr. Doc. 104–35. G.A. Codding, ‘The International Telecommunication Union: 130 Years of Telecommunications Regulation’ (1995) 23 Denv. J. Int. L. and Pol. 501–11; F. Lyall, ‘The International Telecommunication Union Reconstructed’ (1993) 36 Proc. IISL 78–88; R. Lauria and H.L. White, ‘The Impact of New Communication Technologies on International Telecommunication Law and Policy: Cyberspace and the Restructuring of the International Telecommunication Union’ (1995) 32 Cal. West. L. Rev. 1–30; A.L. Allison, ‘Meeting the Challenges of Change: Reform of the International Telecommunication Union’ (1993) 45 Fed. Comm. L.J. 491–540. 30 Final Acts of the Plenipotentiary Conference of the International Telecommunication Union, Kyoto, 14 October 1994 (Geneva: ITU, 1994); US Tr. Doc. 104–34. 31 �� Some ITU ‘operations’ run to a four year timetable and others to a two year cycle both intercalated with the plenipotentiary conference. 32 Final Acts of the Plenipotentiary Conference of the International Telecommunication Union, Minneapolis, 1998 (Geneva: ITU, 1999). In the light of the 1998 Strategic Plan, the 1999 Council established a Working Group on ITU Reform (WGR), and Reform Advisory Groups (RAG) were established by the three ITU Sectors. Work continues.

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Morocco, in 2002,33 and at Antalya, Turkey in 2006.34 To some extent these conferences implement further reforms and make minor improvements, but they have not basically altered the fundamental changes of 1992/4.35 In what follows the texts of the Constitution and Convention are taken as amended including by the Antalya Conference of 2006, which came into force on 1 January 2008.36 The ITU Instruments Article 4.1 (29) of the ITU Constitution provides that the ITU Instruments are the Constitution (CS),37 the Convention (CV)38 and the Administrative Regulations.39 The Constitution is the basic instrument (CS Art. 4.2 (30)) and is intended to contain matters less likely to change at successive plenipotentiaries. The Convention complements the Constitution and contains other constitutional provisions (CS Art. 4.2 (30)). The Administrative Regulations complement both Constitution and Convention (CS Art. 4.3 (31)). Amendment of the Constitution and the Convention is both competent and permissible (CV Art. 55 (224–232); CS Art. 42 (519–28))40 33 Final Acts of the Plenipotentiary Conference of the International Telecommunication Union, Marrakesh, 2002 (Geneva: ITU, 2003). 34 Final Acts of the Plenipotentiary Conference of the International Telecommunication Union (Antalya, Turkey, 2006) (Geneva: ITU, 2007). 35 �� The process of simplification continues. The Marrakesh Plenipotentiary Conference, 2002, moved many of the rules as to the calling of conferences and their rules of procedure to a separate document ‘General Rules of Conferences, Assemblies and Meetings of the Union’ and suppressed the previous provision in CV Arts 26–30 (299–323). Detailed rules are now a matter for the particular conferences and assemblies concerned but within the context of the ‘General Rules’. 36 �� The Collection of the basic texts of the International Telecommunication Union adopted by the Plenipotentiary Conference, 3d ed. 2007 (Geneva: ITU, 2007) is a consolidated text of the Final Acts of the Geneva, Kyoto, Minneapolis, Marrakesh and Antalya Plenipotentiary Conferences, and provides a ‘clean text’ of the ITU Constitution and Convention together with relevant Decisions, Resolutions and Recommendations in force from 2006. Technically an unofficial compilation, it (and its Index) are extraordinarily helpful. 37 �� The Constitution is available at http://www.itu.int/aboutitu/basic-texts/constitution. html. 38 �� The Convention is available at http://www.itu.int/aboutitu/basic-texts/convention. html. 39 �� In this text ‘CS’ denotes the Constitution and ‘CV’ the Convention. The numbers in brackets refer to the paragraph numbering in either document which it has become both customary, and, given the complexity, the length of some articles, and the fact that some articles have been suppressed, convenient to use. 40 �� CS Art. 54 1 and 2 (215–6), CS Art. 54 (215–223) and CV Art. 55 42 (519–528) contain detailed rules as to the ratification, and acceptance etc. of amendments. The

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and this has been done by later Plenipotentiary Conferences. The Constitution and Convention are drawn up in the six official languages of the ITU, Arabic, Chinese, English, French, Russian and Spanish (CS Art. 29.1.1 (171) and Art. 58.4 (241)). In the event of a discrepancy between any of the language versions, the French text prevails (CS Art. 58.5 (242)). Should there be an inconsistency between the Constitution and the Convention or the Administrative Regulations, the Constitution prevails (CS Art. 4.4 (32)). In the case of an inconsistency between the Convention and the Administrative Regulations, the Convention prevails (CS Art. 4.4 (32)). The Administrative Regulations are the International Telecommunication Regulations and the Radio Regulations (CS Art. 4.3 (31)). These Regulations are binding international instruments (CS Art. 4.3 (31) – i.e. they have treaty status) and their amendment is competent by appropriate conferences.41 State members of the ITU are bound themselves to abide by the provisions of the Constitution, the Convention and the Administrative Regulations, and also to require the observance of ITU rules by any operating agency which they authorise in all telecommunications activities which relate to international services or which are capable of causing interference to the radio services of other countries (CS Arts 6.1 and 2 (37–8)). A state member is free to fix the conditions on which it, or its recognised operating agencies, exchange telecommunications with a non-member state but a communication which it accepts must be transmitted and charged for in accordance with ITU rules (CS Art. 51 (207)). The only exemption from the binding nature of ITU regulations and decisions is contained in Art. 48 of the Constitution. State members retain freedom in regard to military radio installations (CS Art. 48.1 (202)). Notwithstanding, even military installations are required so far as possible to give assistance in the case of distress and are to prevent harmful interference (CS Art. 48.2 (203)). This even includes compliance with the Administrative Regulations concerning the types of emission and frequencies to be used according to the nature of the service which the military radio installation provides (CS Art. 48.2 (203)). In addition when a military radio installation takes part in public correspondence services or other services governed by the Administrative Regulations (e.g. an armed forces broadcasting network) it is required in general to comply with the relevant ITU Regulations (CS Art. 48.3 (204)).

Marrakesh amendments to the Constitution and Convention came into force in practice on 1 January 2005 and the amendments by the Antalya Plenipotentiary Conference entered into force on 1 January 2008. See Final Acts of the Plenipotentiary Conference (Antalya, Turkey, 2006) Part II (Geneva: ITU, 2007): http://www.itu.int/aboutitu/basic-texts/constitution.html and http://www.itu.int/aboutitu/basic-texts/convention.htm. 41 �� See below as to the Standardisation and Radiocommunication Sectors.

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Membership Membership of the ITU has two different forms, state membership and Sector membership (CS Art. 2 (20–23)). State membership (full membership) is open only to states. As at 1 January 2008 there were 191 state members of the Union – in other words virtually all countries of the world. Sector membership (of which there are different forms) is membership by a non-state entity of one or more of the Sectors through which the ITU develops many of its rules and requirements. As of 1 January 2008 there were 608 Sector members, and 142 associate members of the Sectors.42 By CS Art. 2 (20–23) state membership of the ITU is open to any party to any previous ITU Convention prior to the current instruments (CS Art. 2 a (21)), to any UN member which accedes to the current Constitution and Convention (CS Art. 2 b (22)) with CS Art. 53 (212–4), or to any non-member of the UN whose application for membership is approved by two-thirds of the member states and which duly accedes to the Constitution and Convention (CS Art. 2 c (23)) with CS Art. 53 (212–4). A state becomes a member of the ITU by ratification, acceptance or approval of the successive Constitution and Convention in a single instrument deposited with the Secretary General (CS Art. 52.1 (208)), or by appropriate accession as indicated above. For up to two years after the coming into force of successive versions of the Constitution and Convention signatories which have signed but not ratified them have full rights within the Union (CS Art. 52.2.2 (209)), but thereafter lose the right to vote, but only the right to vote, the right to participate in conferences, consultations etc. continuing (CS Art. 52.2.2 (210)). Sector membership is membership of one or more of the three Sectors established by the 1992/4 reconstruction, either as a full or as an associate Sector member. As will be discussed below, much of the work of the ITU is now carried out through working and study groups within the Sectors. The ITU is very conscious of the need to involve persons and entities active in relevant industries, businesses and interests in its work. Convention Art. 19 (228–41) requires the Secretary General and the Directors of the Sectors to encourage such participation and increased access has been given to ITU materials as an inducement. Sector membership now consists of all state members as of right,43 together with non-state entities authorised by an appropriate state member.44 Such authorisation may be given in a particular case or a state member may generally 42 �� See n. 46 infra. 43 �� Membership of a Sector is not compulsory for states. Information as to the exact membership of each Sector is available on their several websites: see links at http://www. itu.int. 44 �� Non-state Sector members pay a fee for participation, and meet their own costs. A non-state Sector member selects its level of contribution. One-fifth of contributory units from member states is allocated to Sector expenses (CV Art. 3.5 (480)).

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authorise entities under its jurisdiction to apply for membership of a Sector direct to the Secretary General.45 As at 1 January 2008 there were 608 Sector members.46 In addition, the Minneapolis Plenipotentiary Conference introduced a category of associate member, available by permission of the Sector concerned to duly authorised entities which wish to take part in the work of only one Study Group within a Sector.47 As at 1 January 2008 there were 142 associate members. The work of the Sector and associate Sector members has been crucial in the modern telecommunications environment.

45 �� CS Art. 3 (24–8C), Art. 12.3 (86–88), Art. 21.4 (134–6), Art. 17.3 (110–12); CV Art. 19.1. (228–31) and Art. 19.3–4 (234–4C). 46 �� The ITU website (www.itu.int) provides lists of state, Sector and associate members. As at 1 January 2008 there were 608 Sector members and 142 associate members. The actual memberships were: ITU-D 324; ITU-T 314; ITU-R 298 – the cumulative total of 926 being attributable to multiple memberships by single entities and the memberships by other bodies. (In 2005 these figures were 219 Sector members of ITU-D, 300 of ITU-R and 357 of ITU-T, the total of 625 being again attributable to multiple memberships by single entities and others.) The distribution of Sector membership in early 2008 was:

Ordinary members

ITU-D

ITU-T

ITU-R

Any

258

270

218

506

3

3

Res.99 Regional int. orgs

55

34

62

83

Regional telecommunication orgs

10

10

10

11

Int. government orgs plus satcom systems

1

0

5

5

324

314

298

608

Cumulative total: 936 memberships by 608 entities.

The contributory unit position according to Council Doc. C07/6 (2007) reveals that the uptake of units at Marrakesh (2002) was 342 5/8 units while at Antalya (2006) it was 336 7/16 units, a decrease of 6 3/16. The contributory units from Sector members have also decreased. The Marrakesh/Antalya figures are: ITU-R 117/116: ITU-T 144.5/143; ITU-D 28.5/28.25, a total decrease of 2.75 units. In 2008 the value of one contributory unit was 385k Swiss francs. 47 �� CV Art. 19.12 (241A–241E). As at 1 January 2008 on the ITU web-site states there are in total 142 associate members of Sectors: ITU-D 6(2); ITU-T 119(3); ITU-R 27(5), the bracketed figure being that of regional and other international organisations. The fee level for an associate member of a Sector is less than that required of a non-state Sector member (see n. 50, infra).

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Finance All international organisations have to pay their bills. Within the UN system almost all the various agencies rely on mandatory contributions supplemented by voluntary contributions, and charges for services including profit from publications.48 Mandatory contributions are calculated on Gross National Product (Income) adjusted for per capita income and, on occasion, capped. The ITU, however, has never used the usual UN method of assessing contributions for defraying its expenses. It uses a ‘contributory unit’, members, both state members and Sector members choosing the number of units which they will contribute. This funding method which evolved last century (and is still used also by the Universal Postal Union49 (UPU)) is not favoured by the developing countries. They would prefer the usual UN method which can be more favourable to them, which affords no discretion to contributors, and which major countries cannot avoid without patently going into arrears of contribution. However, there is much to recommend the ‘contributory unit’ concept in an organisation with limited financial requirements for its major functions, namely the encouragement and facilitation of international co-operation. ‘Value for money’ is an important element in the efficient operation of any organisation. The ITU financial arrangements are as provided for in CV Art. 28 (155–70) and CS Art. 33 (468–87). By CS Art. 28.3 (160–61A) and 3ter (161H–I) and CV 33, 1.1 (468–8B) both state and sector members of the Union choose a class of contribution from twenty-four possible classes, namely, 40, 35, 30, 28, 25, 23, 20, 18, 15, 13, 11 10, 8, 6, 5, 4, 3, 2, 1 1/2, 1, 1/2, 1/4, 1/8 and 1/16.50 From highest 48 �� On the UN system see V. Lehmann and A. McClellan, ‘Financing the United Nations’: http://www.globalpolicy.org/finance/docs/2006/04factsheet.pdf. While most UN services are free to member states, others have to pay a charge which is sometimes based on a cost recovery system. Thus electronic access to the UN Treaty Series is charged, and individual volumes have to be purchased or the series subscribed to. 49 �� By Art. 125 of its General Regulations the Universal Postal Union operates with nine contribution classes in a range from 50 units down to 1/2 unit, the latter being available only to ‘the least advanced countries’ as identified by the UN. As seen in the following paragraph the equivalent ITU scale has a wider range. 50 �� For states the lowest two classes are available only to those identified by the UN as being least developed or as allowed by the ITU Council (CV Art. 33 1.1 bis (468A)). Sector members may not choose anything lower than the 1/2 unit except in the case of ITU-D sector, although there the 1/16 unit class is reserved for least developed countries as listed by the UN Development Programme (UNDP) as reviewed by ITU Council (CV Art. 33 1.1ter (468B)). The Annex to Res. 34 ‘Assistance and Support to Countries in Special Need for Rebuilding their Telecommunications Sector’ (Rev. Antalya 2006) lists as countries in special need: Burundi, Congo (Democratic Republic of), Eritrea, Ethiopia, Guinea, Guinea-Bissau, Iraq, Lebanon, Liberia, Rwanda, Sierra Leone, Somalia and Timor Leste. In 2008 the value of one contributory unit was 385k Swiss francs (CHF; depending on exchange rates: c. 240k euros, UK£178k, US$353k). In 2006 the contribution from

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to lowest this represents a ratio of 640:1. It is possible to choose to contribute more than 40 units (CV Art. 33.2 (469)). No state currently does so. It is also competent for a state or sector member to increase its contributory units (CS Art. 28.5ter (165B)) but this is unusual.51 Unless with the consent of the Plenipotentiary Conference a state member may not reduce its class of contribution by more than two classes from that previously selected. Such consent may be given when a state shows that it cannot maintain its contribution at its previous level (CS Art. 28.5 (165)). Once made the choice of a state member lasts throughout each four-year cycle of the life of the Union unless the Council approves a reduction on a similar basis of ‘exceptional circumstances’ (CS Art. 28.5 bis (165A)). The Council may also in un-illustrated ‘exceptional circumstances’ agree to the reduction of the dues payable by a sector member on the ground that it cannot maintain its commitment (CV Art. 33.5ter (480B)). Annual shares of the ITU budget are paid in advance (CS Art. 28.8 (168)). A member state in arrears to the extent of its contributions or more for two years loses the right to vote until the deficit is reduced at least to that level (CS Art. 28.9 (169)).52 At its session preceding a plenipotentiary conference the Council considers a draft financial plan for the ensuing quadriennium, and on that basis fixes a provisional value for the contributory unit (CS Art. 28.3 bis (161B-161D)). This assists members in their selection of their class of units. The final value of the contributory unit for the quadriennium is set by Plenipotentiary Conference (CS Art. 28.4–5 (161D–E)). It is disappointing, and perhaps ominous, to note that the choice of classes of contributory units has shown a decline for a number of quadriennia since the reconstruction of 1992–4.53 The Council Report to the Antalya Conference makes plain that financial concerns continue.54 Its para. 27 shows that in the period 2003–6 ITU income adjusted for inflation fell by 12.9 per cent, with an equivalent decline Sector members and associated members was c. 20 per cent of the ITU ordinary budget requirements and to 2007 had been so since 1982. It was proposed to increase that to 25 per cent: see http://www.itu.int/osg/spu/stratplan/2006/sector-member-ratio-rev1-14-august06.pdf, but that was receded from. The unit value for a Sector member is 63600 CHF per year, and is reconsidered by Council every two years. The contributory unit for Associates is ITU-R 10,500 CHF, ITU-T 3937.50 CHF, ITU-D 3937.50 CHF (1968.75 CHF for IYU-D developing country associate Sector members). 51 �� Burkina-Faso increased its contribution from 1/8 to 1/4 in the selection of unit classes for 2008–11: see Annex A to ‘Choice of Class of Contribution for Defraying the Union’s Expenses’, Council Doc. C07/6, 8 May 2007. 52 �� The Plenipotentiary Conference can exercise discretion in these decisions. 53 �� F. Lyall, ‘Article I of the Outer Space Treaty and the International Telecommunication Union’ (2003) 46 Proc. IISL 96–106 at 98–99, Sec. 3.2 ‘Finance’; ‘Re-thinking the ITU’ (2000) 43 Proc. IISL 309–19; ‘The ITU in the Modern World: Fourteen Years from the Reconstruction’ (2007) 50 Proc. IISL 450–55. 54 �� ‘Report of the Council on the Activities of the Union, 2003–2006’, ITU PP-06/20, 14 June 2006.

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in contributions from both state and sector members. Since the 1998 Minneapolis Plenipotentiary Conference the take-up of contributory units has also fallen. In the case of state members it fell from 368 3/16 units to 342 5/8 by Marrakesh, and to 336 7/16 at Antalya. For Sector members the drop was from 360 3/8 to 290 at Marrakesh and to 287 1/4 at Antalya.55 Such figures must concern those well-disposed to the Union. While obviously one would wish the ITU to run efficiently, and expend no more money than is required to perform its tasks, there is a point where lack of finance could impede, not to say damage, the Union. A related problem may be that there remains a colossal imbalance between contributions. As stated earlier the range of unit classes represents a ratio of 640:1 from highest to lowest. In fact the current active range is in a ratio of 360:1. Seventy-two per cent of the state membership contributes 12 per cent of the main income.56 For the small contributors, which include the developing countries, the ITU must be good value for money, and therefore to some extent classifiable as a ‘benefit’ in terms of Art. I of the Outer Space Treaty, for they all make use of space telecommunications, and many gain from other space uses, all of which are dependent on the work of the ITU, particularly the Radiocommunication Sector. An uncharitable question may now be whether the 55 �� Ibid. para. 28. The figures for the 2008–2011 period are in ‘Choice of Class of Contribution for Defraying the Union’s Expenses’, Council Doc. C07/6, 8 May 2007, paras 4–6 and Annex A. 56 �� The Marrakesh selection figures taken from Council Doc. C03/6, ‘Choice of Class of Contribution for Defraying the Union’s Expenses’ (2003) showed that state members contributed a total of 335 13/16 units (335.81). The four largest contributors produced one-third of the State Member contributions – 120 units (35.7 per cent). Down to the 5 unit level, a total of twenty-one member states (including the four maximum contributors) contributed 262 units (78 per cent), and if the thirty-two contributing 1 to 4 units is added, fifty-three member states contributed 295 1/2 units (87.99 per cent). The remaining 40 5/16 units were contributed by 136 member states – twenty-three at the 1/2 unit level, fifty-six at 1/4 (the lowest permissible without special rules and permission), twenty at 1/8 and thirty-seven at the 1/16 level. Those contributing 1 unit or more were: France, Germany, Japan and US each 30 units; Canada 18; Switzerland 15; China, Saudi Arabia 10; Spain 8; Belgium, India, Norway, Russia, South Korea 5; Brazil, Kuwait, South Africa 3; Ireland, New Zealand, Nigeria, Pakistan, Poland 2; Thailand 1 1/2; Algeria, Austria Cameroon, Chile, Colombia, Czech Republic, Greece, Hungary, Indonesia, Iran, Israel, Kenya, Libya, Lithuania, Malaysia, Morocco, Mexico, Poland, Senegal, Singapore, Turkey, United Arab Emirates, Venezuela 1 – a total of 239 1/2 units. ITU Council Doc. C07/6, ‘Choice of Class of Contribution for Defraying the Union’s Expenses’ (2007) show a similar pattern, but a reduction of 6 3/16 units in state contributory units (from 342 5/8 to 336 7/16). Most states have retained the same unit class as previous. Increases are: Burkina Faso +1/8, St Kitts and Nevis +1/16, Montenegro (new member) +1/4, Serbia +1/4, South Africa +1, United Arab Emirates +2, a total of 3 11/16 units. Decreases are: Belgium −1, Denmark −2, Gabon −1/4, Hungary −1/2, Kyrgyz Republic −1/8. Liechtenstein −1/8, Lithuania −1/2, Paraguay −1/4, Switzerland −5 and Yugoslavia −1/4, a total of 10 1/4 units.

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small contributors are not to some extent freeloading. The ITU owes its origin and continuing justification to the need for international co-operation to ensure agreement on the best and most efficient arrangements for telecommunications and broadcasting. However, in its recent years there has arisen an increasing demand that, apart from its technical duties, the Union should serve a major function as a channel through which technical and other assistance might flow to the developing countries – that is the justification of the Telecommunication Development Sector (ITU-D) which exists because of pressure from the developing countries. Since the ITU operates on the normal UN ‘one-state-one-vote’ system, voting power within the Union is becoming grotesquely divorced from its financial implications. This may be reflected in the pattern of reduction in the take-up of contributory units. The developed countries, whose interest in the ITU lies mainly in technical matters, are contributing without their financial commitment being given clear weight in decision-making.57 This is dangerous. Finance has affected the content of Antalya Decision 5.58 Since the Minneapolis Plenipotentiary Decision 5 has related to ‘Income and Expenditure’ for the forthcoming four years and Decision 6 contained the correlative Financial Plan. Antalya Decision 5 now brings these together. Annex 1 to Decision 5 estimates income as 624,614k CHF, and expenditure of 673,662k CHF. Expenditure reduction has been budgeted to reduce this deficit to 39,088k CHF. Annex 2 then lists eighteen ‘options for reducing expenditure’. These include the elimination of various duplications, the centralisation of finance and administration, extending the duration of vacancies, the reduction of the production of paper copies for most meetings and functions, limiting the duration of meetings, the redeployment of staff and the reduction of the number of meetings. New ventures are to be scrutinised for value, and for their non-duplication of existing efforts. As to the effectiveness of such measures, we can but wait and see. Cost recovery in the provision of some ITU products and services will remain important, including the processing of space-relevant notifications to the Radiocommunication Sector.59 Such financial steps are desirable. It is noticeable, however, that here and there in the Antalya documents there are occasional invitations to member states and to Sector members to make voluntary contributions for particular purposes. The brutal fact is that not all state members are willing to finance all that others within the ITU would like to see them do.

57 �� There is, of course, some political weight, which can be augmented by ‘informal understandings’. A weighted decision-making process modelled on (but not as rigorous) as that which applied within the old INTELSAT Board of Governors and the INMARSAT Council before these organisations were privatised would seem a rational solution. 58 �� See Collection, supra n. 36. 59 �� See ‘Cost Recovery for Some ITU Products and Services’, ITU Plen. Res. 91 (Rev. Antalya, 2006) and ‘Processing Charges for Satellite Network Filings and Administrative Procedures’ Res. 88 (Rev. Marrakesh, 2002) (Collection, supra n. 36).

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ITU Structure From the Atlantic City Convention of 194760 down to the Nairobi Convention of 198261 the ITU consisted of seven organs in a federal structure. Three met at intervals – the Plenipotentiary Conference, Administrative Conferences and the Administrative Council. Four permanent organs were charged with the detailed business of the Union. These were the General Secretariat, the International Frequency Registration Board, the International Radio Consultative Committee (CCIR) and the International Telegraph and Telephone Consultative Committee (CCITT).62 Since the 1992/1994 restructuring, according to CS Art. 7 (37–46) the ITU comprises: 1. 2. 3. 4.

The Plenipotentiary Conference, which is the supreme organ of the Union. The Council, which acts on behalf of the Plenipotentiary Conference. World conferences on international telecommunication. The Radiocommunication Sector, including world and regional radiocommunication conferences, radiocommunication assemblies and the Radio Regulations Board (ITU-R). 5. The Telecommunication Standardisation Sector, including world telecommunication standardisation assemblies (ITU-T). 6. The Telecommunication Development Sector, including world and regional telecommunication development conferences (ITU-D). 7. The General Secretariat. We will discuss the Plenipotentiary Conference, the Council and the General Secretariat before turning to the Sectors. Obviously such an organisation is complex. It is therefore useful that a Coordination Committee, composed of the Secretary General (Chairman), the Deputy Secretary General and the Directors of the Bureaux of the three Sectors, acts as an internal management team (CS Art. 26 (145–6); CV Art. 6 (106–111)). The Coordination Committee tries to act unanimously. Should the Chairman not be supported by a majority, the matter ultimately goes to the Council (CV Art. 6.2 (109)). In addition account must be taken of the World Telecommunications Policy Forum, a series of which has been held irregularly over the years. We return to the Forum in the last section of this chapter: ‘Problems and Solutions’.

60 Supra n. 23. 61 Supra n. 25. 62 �� Nairobi Convention (n. 25), Art. 5. As will be noted below, Art. 5 of the Nice Constitution, 1989, added a Telecommunication Development Bureau which had not properly started to function before the 1992–4 revisions were adopted.

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Plenipotentiary Conference Before the reforms of 1992–4 ITU plenipotentiary conferences had been held irregularly.63 Article 8.1 (47) of the present Constitution provides that the plenipotentiary conference ‘shall be convened every four years’. This places a useful constraint and introduces a timetable for the activities of the organisation which, to some extent, helps fit the ITU for coping with the swift technological developments of modern times. The Plenipotentiary Conference is the supreme organ of the Union (CS Art. 7.a (40)) and is composed of delegations representing all member states (CS Art. 8.1 (47)). Its many responsibilities include the determination of general policies, establishing the basis of the budget of the Union and related financial limits, giving general directives as to staffing, and the examination of the accounts of the Union. It elects the member states which are to serve on the Council (CS Art. 8.2.f (54f)) together with the Secretary General, Deputy Secretary General and the Directors of the Bureaux of the Sectors of the Union (55g) and the members of the Radio Regulations Board (56h). It also considers and, if appropriate, adopts proposals for the amendment of the ITU Constitution and Convention for submission to Plenipotentiary Conference (57i). The Council The main provisions as to the ITU Council are Art. 10 of the Constitution (CS Art.10 (65–72)) and Art. 4 of the Convention (CV Art. 4 (50–82)). Members of the Council are elected by the plenipotentiary conference (CS Art. 8.2.f (54f)) with ‘due regard the need for equitable distribution of the seats on the Council among all regions of the world’ (CS Art.9.1.a (61)).64 Membership of the Council is not to exceed 25 per cent of the total number of member states (CV Art. 4.1.2 (50a)).65 For the period 2006–10 it consists of forty-six member states.66 For the 63 �� See the dates of the conferences listed supra n. 25. 64 �� There are five ITU regions, the Americas, Western Europe, Eastern Europe, Africa, and Asia and Australasia. The detailed delimitation of the regions is to be found in Arts 5.2– 5.9 of the Radio Regulations (as to which see infra). Plenary Conference Recommendation 6 (Marrakesh) is that, although there is no formal requirement of a rotation of council membership, regional and sub-regional areas should confer bilaterally and multi-laterally to facilitate rotation on a voluntary basis. This had some effect in the 2006 elections. 65 �� As at 1 January 2008 there were 191 ITU member states: 25 per cent = 48. 66 �� The current representation of the regions on Council is Region �� A (Americas): eight seats – �� Argentina, Brazil, Canada, Cuba, Mexico, Trinidad and Tobago, US, Venezuela; Region B (Western Europe): eight seats – France, Germany, Italy, Portugal, Spain, Sweden, Switzerland, Turkey; Region C (Eastern Europe): five seats – Bulgaria, Czech Republic, Romania, Russian Federation, Ukraine; Region D (Africa): thirteen seats – Algeria, Burkina Faso, Cameroon, Egypt, Ghana, Kenya, Mali, Morocco, Nigeria, Senegal, South Africa,

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future, by Antalya Res. Plen/1 ‘Number of Council Member States’, steps have been initiated which will result in the Council membership being increased by one (to 47), and the regional allocation of seats may be revised. Any member state not elected to the Council may, having given prior notice to the Secretary General, send an observer at its own expense to meetings of the Council, its committees and working groups. Such an observer does not have the right to vote (CV Art. 4.9 bis (60A)). Sector members may also similarly be represented as observers at meetings of the Council, its committees and working groups (CV Art. 4.9ter (60B)). The Council meets annually in Geneva, although an extra or additional session is competent (CV Arts 4.2.1–3 (51–3)). The general functions of the Council include facilitating the implementation of the ITU Constitution and Convention together with the Administrative Regulations, and of the decisions of plenipotentiary conference and other conferences as this may be required (CS Art.10.4 (69–72)). In the interval between plenipotentiary conferences and within the powers delegated to it, the Council acts on its behalf as the governing body of the Union (CS Art.10.3.b (68)). Its functions are more extensively laid out in Section 2 of the Convention (CV Art. 4 (50–82)). In particular it supervises the overall management and administration of the Union, approves staff regulations and financial regulations (CV Art.4.11 (62–68)), decides on the implementation of decisions having financial implications that have been taken by conferences (CV Art.4.11.11 (77)) and takes any other action necessary for the proper functioning of the Union as permitted by the Constitution, Convention and Administrative Regulations (CV Art.4.11.12 (78)). The annual Report to Council prepared by the Secretary General on the implementation of the Strategic Plan adopted by the plenipotentiary conference together with actions taken by the Council thereanent is very useful source of information on what the ITU is doing on a year to year basis (CV Art. 4.10 (61–1b)).

Tanzania, Tunisia; Region E (Asia and Australasia): twelve seats – Australia, China, India, Indonesia, Japan, Republic of Korea, Malaysia, Pakistan, Philippines, Saudi Arabia, Thailand, United Arab Emirates. In the period 2003–7 the forty-six Council members were: Region A – the Americas – Argentina, Brazil, Canada, Cuba, Mexico, Surinam, US and Venezuela; Region B – Western Europe – France, Germany, Italy, Norway, Portugal, Spain, Switzerland and Turkey; Region C – Eastern Europe – Bulgaria, the Czech Republic, Poland, Romania and Russia; Region D – Africa – Algeria, Burkina Faso, Cameroon, Egypt, Ghana, Kenya, Mali, Morocco, Nigeria, Senegal, South Africa, Tunisia and Uganda; Region E – Asia and Australasia – Australia, China, India, Indonesia, Iran, Japan, the Republic of Korea, Malaysia, Pakistan, Saudi Arabia, Thailand and Vietnam.

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The Secretary General, General Secretariat and Officials Assisted by a single Deputy Secretary General (CS Art. 11.1.1 (73)) and a General Secretariat, the functions of Secretary General are to co-ordinate the activities of the Union, to report to the Council on policies and the Strategic Plan adopted by plenipotentiary conference for the Union, to co-ordinate the implementation of that Plan, and to take all actions required to ensure the economic use of the resources of the Union (CS Art. 11.1 (73–5)). He or she also acts as the legal representative of the Union (CS Art. 11.1 (76bis)). The Secretary General and Deputy Secretary General and the Directors of the three ITU Sector Bureaux are elected by the plenipotentiary conference, and are required all to be nationals of different countries (CS Art. 9.1.b. (62)). The Antalya Plenipotentiary Conference amended Art. 2.1 (13) of the Convention to make it clear that these five top elected officials may be re-elected only once to the same post,67 whether the second election is for a term consecutive with the first or not.68 In their election due regard is to be given to an equitable geographic distribution amongst the regions of the world while also paying due regard to the ‘paramount consideration’ of ‘the necessity of securing for the Union the highest standards of efficiency, competence and integrity’ (CS Art. 27.2 (154)). The detailed responsibilities of the Secretary General and the General Secretariat are laid in Art. 11 of the Constitution (CS 73–7) and Art. 5 of the Convention (CV 83–105). Those of the Sector Bureaux and the Radio Regulations Board are dealt with below. CS Art. 27 lays down general principles as to elected officials and staff. As noted a paramount consideration in elections and staff recruitment is ‘the necessity of securing for the Union the highest standards of efficiency, competence and integrity’ while bearing in mind the ‘importance of recruiting the staff on as wide a geographic basis as possible’ (CS Art. 27.2 (154)).69 The Sectors – Introduction The 1992–4 reconstruction of the Union removed three major former organs, the Consultative Committee for Telephone and Telegraph (CCITT), the Consultative Committee for Radio (CCIR) and the International Frequency Registration Board (IFRB). In their place are now three Sectors with responsibilities different from their fore-runners – the Telecommunication Development Sector (ITU-D), the 67 �� In the interest of an efficient ITU states should as far as possible refrain from recalling a national elected to one of the top five posts in the interval between plenipotentiary conferences (CS Art. 27.1.4 (153)). 68 �� The same applies to members of the Radio Regulations Board (CV Art. 2.1 (20)): see infra. 69 �� Can all the requirements of this sentence always be simultaneously met? This seems to be a problem common throughout the UN and its family of agencies.

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Telecommunication Standardisation Sector (ITU-T) and the Radiocommunication Sector (ITU-R). Close co-operation between all three sectors is called for in CS Arts 12.2, 17.2 and 21.1 as well as elsewhere. At first sight the Radiocommunication and Development Sectors would appear to be of the most interest for this book as being the most clearly space-related, but Standardisation is also crucial. It is therefore convenient to discuss them in the reverse of that order. Provisions Common to the Sectors Each Sector is headed by a Director70 who is elected by the Plenipotentiary Conference (CS Art. 8.2.g (55)) and may be re-elected once only for the same post whether that re-election is immediate or at a later time (CV Art. 2.3.1 (13)). Each Sector has a Bureau71 and works through a variety of working groups, study groups, regional conferences (except in the case of ITU-D) and world conferences and assemblies. In the Convention Sec. 8 (CV Arts 19–22 (228–54)) contains provisions common to the three Sectors as to the participation in the work of the Sectors, and their abilities to refer matters to each other and to other international organisations. The Radiocommunication and Standardisation Sectors are also specifically to provide technical assistance to the Development Sector (CV Arts 12.4 (183), 15.4 (207)) and all three Sectors are required to co-operate and mutually co-ordinate their activities including the distribution and sharing of work.72 Study groups are constrained as to the questions on which they work and make recommendations particularly if they have regulatory and policy aspects and/or financial implications (CS Ch. IVA and CV Art. 22.5 bis.4 (246D–H)). The working methods of radiocommunication assemblies, standardisation assemblies and world development conferences (to which we are coming) that put the results of study groups into practice must be compatible with the basic instruments of the Union, that is the Constitution, the Convention and the Administrative Regulations (CS Chapter IVA (145A)). The study groups in the three Sectors conduct their business in accordance with CV Art. 20. The Telecommunication Development Sector (ITU-D) ‘Economic and social development’, words twice used in the Preamble (1) of the current ITU Constitution, have only relatively recently been included in the formal purposes of the Union.73 Article 1 of the Constitution now lists as among 70 �� Development, CS Art. 21.3.c (133); Standardisation, CS Art. 17.2.c (109); Radiocommunication, CS Art. 12 2.e (85). 71 �� Ibid. 72 �� CS Arts 12.1.2 (79), 17.1.2 (105), 21.1.2.(119) and CV Arts 11.5 (158), 11.7 (160) 14.2 (195), 14.4 (197) and 17.2 (215). 73 �� The language first appears in the Preamble of the Nairobi Convention of 1982 (supra n. 25) but is not there as a ‘purpose’ of the Union. See F. Lyall, ‘Space Telecommunications

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the purposes of the Union the promotion of technical developments, including technical assistance to developing countries (CS Art. 1.1.1.b (4)), developments to make telecommunication facilities ‘so far as possible generally available to the public’ (CS Art. 1.1.c (5)) and ‘the extension of the benefits of new communications technologies to all the world’s inhabitants’ (CS Art. 1.1.d(6)). An interesting innovation of the 1992–4 revision was the inclusion of a duty ‘in particular’ as to the promotion ‘with international financial and development organisations’ of ‘the establishment of preferential and favourable lines of credit to be used for the development of social projects aimed, inter alia, at extending telecommunication services to the most isolated areas in countries’ (CS Art. 1.2.i (19)). This is not to say such matters were irrelevant earlier, but now the promotion of co-operation and collaboration among nations particularly to benefit the less-developed is a general undercurrent in the ITU documents. Without prejudice to the generality of CS Arts 1.1.b (4) 1.2.d (14) and 1.2.i (19), the main agent through which development purposes are effected is the Development Sector (ITU-D). It is based in Geneva although it has also established regional offices to help achieve its objectives. The Sector operates under Chapter IV of the Constitution (CS Arts 21–4 (118–45)) and Sec. 6 of the Convention (CV Arts 16–18 (207A–26)) and the already noted provisions common to all Sectors (CV Sec. 8, Arts 19–22 (228–54)). In fact for some decades the ITU had been running appropriate programmes to help developing countries establish good telecommunications facilities.74 However, the 1992–4 reforms go much further than previous ‘development’ activities did. This has not been entirely welcomed by all countries and the funding of the Sector has been placed under constraint. For the period following the Marrakesh Plenipotentiary of 2002 the Sector suffered a cut of 1 per cent in its general financing, and that coupled with a reduction of 4 3/16 contributory units in the sums from its Sector members75 is a matter for concern. Like the other Sectors ITU-D consists of a Bureau (CV Art. 18 (216–26)) headed by a Director, elected by the Plenipotentiary Conference (CS Art. 8.1.g (55)) whose duties are laid out in Art. 18 (216–26) of the Convention. Members of the ITU-D Sector and the various groups through which it works include the state members of the Union as of right, together with any entity or organisation authorised by the appropriate procedures to be a member of the sector (CS Art.

and the Developing Countries’ (1989) 32 Proc. IISL, 242–7, and ‘The International Telecommunication Union and Development’ (1994) 22 J. Space Law 23–32. 74 �� Before 1992–4 the ITU did undertake a certain amount of ‘development’ work in addition to facilitating co-operation between ordinary commercial undertakings and developing countries. In addition the International Frequency Registration Board (IFRB) conducted training courses and workshops for officials responsible for radio matters in newly emergent nations. 75 �� See also ‘Finance’, supra at n. 48.

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21.4 (134–6)).76 The groups include a Telecommunication Development Advisory Group (TDAG) (CV Art. 17A (215C–K)), which reviews the work of the Sector, including the implementation of its previous operational plan and suggesting any necessary corrective measures. It also prepares reports for ITU-D conferences. While ITU-D does much of its work through study groups (CV Art. 17 (214– 15B)), courses and work-shops, an important element of its activity is carried out through telecommunication development conferences. These last, governed by CV Art. 16 (208–13A), are fora for discussion and consideration. Telecommunication Development Conferences take place within the ITU four year cycle on a schedule of one world conference per cycle together with regional conferences subject to resources and priorities (CS Art. 22.3 (141)). ITU-D conferences do not produce final acts (i.e. treaty-level binding agreements), but rather adopt resolutions, decisions, recommendations and reports of varying cogency. These all must, of course, conform to the ITU Constitution, Convention and Administrative Regulations. The foreseeable financial implications of any proposals must be taken into account and conferences are not to adopt resolutions and decisions which might cause expenditure above limits set down by the ITU Plenipotentiary Conference (CS Art. 22.4 (142)). World conferences establish work programmes and guidelines giving direction and guidance for the Development Sector as a whole (CV Art. 16.1.1.a (209)). Regional Conferences deal with matters specific to the region concerned (CV Art. 16.1.1.b (210)). In their meetings Telecommunication Development Conferences fix objectives and strategies for a balanced worldwide and regional development of telecommunications (CV Art. 16.1.c (211)). The paragraph goes on to indicate that the conferences should give ‘particular consideration to the expansion and modernisation of the networks and services of the developing countries as well as the mobilisation of resources required for this purpose. They shall serve as a forum for the study of policy, organisational, operational, regulatory, technical and financial questions and related aspects, including the identification and implementation of new sources of funding’ (CV Art. 16.1.c (211)). Channels of technical assistance and financial aid for developing countries have therefore been opened up and existing channels deepened in a way that would have been impossible under the pre-1992 arrangements. The Sector has thus been significant in developing accessibility, affordability and infrastructure particularly in the developing countries. Major results have been the adoption of Declarations and an Action Plan at successive World Telecommunication Development Conferences (WTDC) at Buenos Aires in 1994,77 Valletta, Malta, in

76 �� See supra at n. 43 and following. 77 �� WTDC-94. The Buenos Aires Action Plan, 1994 – see www.itu.int/ITU-D/bdtint/ general/baapbrochure.htm. For the Buenos Aires Declaration, see www.itu.int/ITU-D/ conferences/wtdc/1994/firstWTDC.html.

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1998,78 Istanbul, Turkey, in 200279 and Doha in 2006.80 The Valletta Plan, as amended, had particular chapters on the development of a global information infrastructure and a special programme for developing countries. The Istanbul Development Plan included a special programme for least developed countries and was divided into six programmes: (i) regulatory reform, (ii) technologies and telecommunication network development, (iii) e-strategies and e-services/applications, (iv) economic and finance, (v) human capacity building and (vi) a special programme for the least developed countries.81 The Istanbul WTD Conference also set further objectives to be attained by ITU-D within the ITU cycle for 2003–7. The Doha Declaration of 2006 indicates that most of the previous Action Plans have been implemented, but calls for an increased pace in progress towards a truly global information society and further striving towards improving the position of the developing countries.82 The Doha Action Plan takes these matters further, and has been able to build on the outcomes of the World Summit on the Information Society (WSIS, 2003–2995) which was an ITU initiative.83 The Digital Divide has been a matter of major concern both to the Sector and to the ITU generally.84 A gulf may indeed come into being between countries which are analogue-based in their telecommunications and those (in the main the developed countries) whose telecommunications are increasingly moving over to digitally based technologies. The WTDC of Istanbul 2002 adopted its Res. 37 on the matter, and by its Res. PLEN/3 the Marrakesh plenipotentiary conference instructed the ITU-D Director to take measures to implement the Istanbul resolution and to take other related actions.85 While the ITU is not the sole organisation active in standard setting, its role is significant.86 78 �� WTDC-98. The Valletta Action Plan, 1998: see www.itu.int/ITU-D/conferences/ wtdc/1998/VAP.html. 79 World Telecommunication Development Conference (WTDC-02, Istanbul) – Final Report (Geneva: ITU, 2002): see www.itu.int/ITU-D/isap/WTDC-02FinalReport/index.html. 80 World Telecommunication Development Conference (WTDC-06-Doha) – Final Report: http://www.itu.int/dms_pub/itu-d/opb/tdc/D-TDC-WTDC-2006-TOC-HTM-E.htm. 81 �� See Istanbul, Final Report (n. 79) at 22. 82 �� See Doha, Final Report (n. 80) and the Doha Declaration at http://www.itu.int/ ITU-D/conferences/wtdc/2006/DohaDeclaration.html. 83 WSIS Outcome Documents (Geneva: ITU 2005): www.itu.int/wsis/promotional/ outcome.pdf. 84 �� T. Kosuge, ‘Bridging the Digital Divide in Asia’ (2001) 5 Sing. J. Int. and Comp. L. 253–8. 85 �� For the Istanbul Action Plan, see WTDC-02 Doc. 272, and for the Istanbul Declaration see WTDC-02 Doc. 270. Cf. the Operational Plan of the ITU Development Sector 2003, available from the Sector website. Cf. also Marrakesh Res. PLEN/4 as to ‘Support for the New Partnership for Africa’s Development’. 86 �� See for example the Okinawa Charter on Global Information Society adopted by the G-8 in 2000, and the follow-up actions co-ordinated through the Digital Opportunity Task Force which it set up: available at www.dotforce.org. The G8 Meeting at Genoa in

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The Telecommunication Standardisation Sector (ITU-T) The Telecommunication Standardisation Sector (ITU-T)87 is largely provided for by Chapter III of the Constitution (CS Arts 17–20 (104–117)) and Section 6 of the Convention (CV Arts 13–15 (184–207)), together with the provisions common to all Sectors (CV Sec. 8, Arts 19–22 (228–54)). The ITU-T Sector is headed by a Director (CV Art. 17.2.c (109)) elected by the Plenipotentiary Conference of the Union (CS Art. 8.1.g (55)).88 Members of the ITU‑T Sector include all state members of the Union as of right together with any entity or organisation authorised by the appropriate procedures to be a member of the sector (CS Art. 21.4 (134–6)).89 The Sector works through World Standardisation Assemblies, study groups and the Telecommunication Standardisation Bureau (CS Art. 17.2 (106–12)) and complies with the provisions common to all Sectors indicated above (CV Sec. 8, Arts 19–22 (228–54)). Its responsibility covers technical, operating and tariff questions and it adopts recommendations on such matters with a view to their standardisation on a worldwide basis (CS Art. 17.1.1 (104)). The need for standard international procedures and practices, for compatibility between equipment, and for operating protocols gave the initial impetus towards international agreement on telecommunication matters in the nineteenth century. It was quite simply necessary that standards were adopted as common between the different telecommunications systems so that messages could be passed across borders and from one system to the next. Fundamentally the position is no different today. Common standards for equipment and protocols and procedures for their operation are essential in the modern international electronic community. Manufacturers want some assurance that their products will sell. Occasionally a question of ‘standard’ may be left to the decisions of the market place – the collision in video recorder standards between the Betamax and VHS system was abrupt and dispositive. The later options as to blue or red ray high-definition television DVD systems may similarly have been clarified by market forces by the time this book is published. However, while some matters can be left to the 2001 approved a plan of action, as to which see the dotforce website and www. eopl-net. org. On these questions see also R.S. Jakhu, ‘Safeguarding the Concept of Public Service and the Global Public Interest in Telecommunications’ (2001) 5 Singapore J. Int. and Comp. L. 71–110. 87 �� The designator ITU-T may confuse English speakers. It derives from the French text. 88 �� As a matter of history, but showing that the CCITT, not the CCIR, was the major standardisation agency within the ITU before the new system was adopted, the Geneva Conference of 1992 provided by its Resolution PLEN/8, ‘Provisional Application of Certain Parts of the Constitution and the Convention of the International Telecommunication Union’ that then Director of the CCITT was to act as Director of the Telecommunication Standardisation Bureau until the post was filled by election by the Kyoto Plenipotentiary Conference in 1994. 89 �� See supra n. 43 and following.

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market place, many questions of telecommunication standards and procedure are better settled internationally by discussion and agreement. The effect of even a substantial (let alone a consensus) view formed by a standardisation agency of the status of the ITU should not be underestimated, especially given manufacturers’ desire for market reasons to follow such advice. Naturally in this process political and economic interests also play major and obvious roles.90 The ITU had served as a forum for such discussions down through the years, through the conferences and the work of Study Groups of both the International Telephone and Telegraph Consultative Committee (CCITT) and the International Consultative Committee on Radio (CCIR). Regulations adopted by Administrative Conferences of the Union and the Recommendations of the CCIs contained standards for the operation of telecommunications and for mechanisms affecting the operation of telecommunications equipment. However, the elaboration of standards under the pre-1992–4 CCITT and CCIR became slow and cumbersome. The separation of the ‘wire’ and ‘wireless’ CCIs together with the involvement of the CCIs with other aspects of ITU work contributed to a deceleration in standard setting. However, there were (and are) other international global and regional fora through which international standards are set.91 There was a risk (some would have said already a practice) that in standard setting the ITU would be bypassed on matters which properly ought to lie within its competence. All this was known before the 1990 High Level Committee began reviewing the structure and functioning of the ITU and was part of the reasons why the High Level Committee was given its task.92 Standards adopted as part of the ITU Administrative Regulations are legal rulings. Recommendations and Administrative Regulations established under the ITU as formerly structured remain in force under the present arrangements until they are amended or repealed. Even so, the process could (and can) be slower than society really needs. Accordingly the World Telecommunication Standardisation Assembly at Montreal in 2000 adopted an ‘alternative approval’ system to provide a fast-track system by which informal approval of new ‘standards’ can be obtained relatively quickly.93 ‘Alternative approvals’ are not binding in the way that WTSA Recommendations are, but their existence has considerably increased the speed at which ITU-T reacts to swiftly developing technologies. 90 �� J.G. Savage, The Politics of International Telecommunications Regulation (Boulder, CO and London: Westview Press, 1989). See also the volumes of the journal Telecommunications Policy. 91 �� G. Wallenstein, Setting Global Telecommunication Standards (Boston, MA and London: Artech House, 1990). Cf. the European Telecommunications Standards Institute, set up in 1988 as a joint project by the European Community and the European Postal and Telecommunication Conference (CEPT) to publish telecommunications standards for Europe. Not all standard setting institutions are intergovernmental or international. 92 �� See supra at n. 28. 93 �� WTSA Res. 37 (2000) ‘Alternative approval process for ITU-T’.

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World Telecommunication Standardisation Assemblies (WTSA) are convened every four years (CS Art. 18.2 (114)) with the possibility of intercalating an additional conference should that prove necessary (CS Art. 18.2 (114)). Dissimilar to ITU-D or ITU-R, there is no provision for regional standardisation conferences of ITU-T. A WTSA deals with specific matters related to telecommunications (CV Art. 13 (184–91D)). Questions to be studied and on which recommendations may be issued may be generated from within the Sector or referred to it by the Plenipotentiary Conference, by other conferences or by the Council (CV Art. 13.2 (185)). Steps are being taken to improve the role of ITU-T and its effectiveness.94 There is also concern in the Sector as to a developing gap between developed and developing countries in the matter of standardisation, and steps are being taken to address the problem.95 The Geneva Conference of 1992 did not take its sword to the Gordian knot of the tangle of questions and responsibilities for standardisation within the pre1992 ITU structure. In compliance with Arts 12.1.2 (79) and 17.1.2 (105) of the Constitution the precise responsibilities of ITU-T and ITU-R have been subject to continuing review with regard to matters of common interest. Duplication of effort (not to say conflict of interest) between the Study Groups of ITU-T and ITU-R had been foreseen as a possible problem, as it had been between the CCITT and the CCIR. CV Arts 11.5 (158) and 14.2 (193) therefore provide for a continuing review and possible change of responsibilities between the Sectors and relevant Study Groups, and that in case of failure to reach timely and effective agreement, the matter is referred to the Plenipotentiary Conference through the Council.96 Over the years this has produced some adjustment between ITU-T and ITU-R. The Radiocommunication Sector The major responsibilities of the Radiocommunication Sector are the formulation of the Radio Regulations and their implementation,97 together with elements of standardisation in the radio sphere. Structurally the Sector has two elements, its Bureau, which carries out the main responsibilities of these elements of the ITU, and the Radio Regulations Board – a new creation albeit lineally the old International Frequency Registration Board.

94 �� See Marrakesh Res. COM5/9, ‘The Evolving Role of the World Telecommunication Standardisation Assembly’. 95 �� See Marrakesh Res. COM5/8, ‘Bridging the Standardisation Gap between Developing and Developed Countries’. 96 �� CV Art. 11.5 (158). Of all the United Nations agencies, the ITU has a history of a pragmatic approach to problems. 97 �� See infra at n. 111.

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The Sector The Radiocommunication Sector is dealt with in Chapter II of the Constitution (CS Arts 12–16 (78–103)) and Section 5 of the Convention (CV Arts 7–12 (112–83)) together with the already noted common sectoral provisions (CV Sec. 8, Arts 19–22 (228–54)). The purpose of the Sector is to ensure ‘the rational, equitable, efficient and economical use of the radio frequency spectrum by all radiocommunication services, including those using the geostationary satellite orbit, and to carry out studies without limit of frequency range’ (CS Art. 12.1.1 (78)). Further, on the basis of its studies the Sector adopts Recommendations on radiocommunication matters (CS Art. 12.1.1 (78)). The Sector works through World and Regional Radiocommunication Conferences, Radiocommunication Assemblies (frequently associated with world radiocommunication conferences), the Radiocommunication Advisory Group (RAG), study groups and the Radiocommunication Bureau headed by an elected Director (CS Art. 12.2 (80–85)). There is also the Radio Regulations Board (RRB).98 Members of the sector are all state members of the Union as of right, together with any properly authorised entity or organisation (CS Art. 12.3 (86–88)). World radiocommunication conferences (WRCs) are normally held every three to four years, although that may be varied through the scheduling of an additional, or the omission, of a conference (CS Art. 13.2 (90)).99 Their powers and duties are elaborated in CV Art. 7 (112–28). A world conference may partially or in exceptional cases completely revise the Radio Regulations and also deal with any questions of a worldwide character (CS Art. 13.1 (89); CV Art. 7.2.1 (113– 17)). It may instruct the Radio Regulations Board or the Radiocommunication Bureau, may put matters on the agenda of future world conferences,100 and may refer questions to the Radiocommunication Assembly (CV Art. 7.2.1.c (116).) Given the importance of the Radio Regulations it is unsurprising that the general scope of the agenda of a world conference should be established four to six years in advance and the final agenda established by the ITU Council ‘preferably’ two years in advance of the conference (CV Art. 7.2.2 (118)). The agenda for a WRC is also to include any matter the Plenipotentiary Conference directs (CV Art. 7.2.3 (19)). The agenda can be changed on the proposal of the Council or at the request of one-quarter of the member states. However, the proposed change cannot finally be adopted until a majority of states so agree.101 98 �� See infra at n. 104. 99 �� Previously World Administrative Radio Conferences (WARC). 100 �� Thus Res. COM 6/7 of the 2007 WRC (WRC-07) (Geneva) puts a number of matters on the agenda for the WRC of 2011. See also ‘Report of the First Session of the Conference Preparatory Meeting for WRC-11’ Rad. Bur. Admin. Circ. CA/171, 20 December 2007. 101 �� Consultation is subject to rules and time-limits. States which do not reply within the limits are not taken into account in compiling the majority. If the number of responses

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Regional radio conferences (RRCs) are also competent. As the name implies they deal with the concerns of a particular region (CS Art. 12.2.a (81); CS Art, 13.4 (92), CS Art. 43 (194)). They are called following the decision of a plenipotentiary conference, on the recommendation of a previous world or regional radio conference if approved by Council, at the request of at least one quarter of the state members in the region concerned or on the proposal of the Council (CV Art. 3.4 (36–40)). Regional conferences adopt or revise provisions of the Radio Regulations, including, for example an ‘allotment plan’ for a particular type of broadcasting in the region concerned.102 An RRC can only consider matters which are included on its agenda (CV Art. 9 (138)). Radiocommunication Assemblies are normally convened every three to four years to provide the technical basis for the work of world conferences (CS Art. 13.3 (91); CV Art. 8.2.5–6 (135–6)). An assembly usually acts on the basis of the reports of study groups (CV Art. 8.2 (130–36)) and deals with and issues recommendations on questions adopted by its own procedures, or referred to it by a Plenipotentiary Conference, by any other Conference, by the Council or by the Radio Regulations Board (CV Art. 8.1 (129) and 8.2). Particularly important is the ability to terminate study groups and to create new ones allocating the questions to be dealt with by them (CV Art. 8.2.3 (133)). The Radiocommunication Advisory Group (RAG) was added to the Sector by the 1998 Minneapolis plenipotentiary conference by CS Art. 12.2.d bis (84A) and CV Art. 11A (160A–160H). Its membership is open to all member states, representatives of sector members and the chairmen of study and other groups (CV Art. 11A.1 (160A)). Meeting annually it advises the Director through reviewing the Sector priorities and strategies as well as monitoring the progress and guiding the work of study groups. The RAG also has a role in fostering co-operation within the ITU. Radiocommunication study groups are regulated by CV Art. 11 (148–60). Their members are appointed by a Radiocommunication Assembly which also determines their remit. In terms of the Convention study groups deal with matters including the use of the radio-frequency spectrum in terrestrial and space radiocommunication and of the geostationary-satellite and other satellite orbits (CV Art. 11.2.a (151)), the characteristics and performance of radio systems (CV Art. 11.2.b (152)), the operation of radio stations (CV Art. 11.2.c (153)) and radiocommunication aspects is less than one-half of the total ITU membership it is re-run and the result is decisive irrespective of the number of states taking part (CV Art. 3.7 (47)). 102 �� For example, the ‘European Broadcasting Plan’, Stockholm, 1961, as revised. See J.-M. Paquet, ‘The Stockholm 1961 Agreement’: www.itu.int/ITU‑R/conferences/ seminars/geneva-2006/docs/E/05-Terrestrial_Plan_ST61_JMP.doc. The first European Broadcasting Plan was the ‘Long and Medium Frequency Plan’ adopted by 29 European countries in 1929. Cf. J. Doeven, ‘Revision of ST61 – Lessons from History’ (2002) 290 EBU Tech. Rev.: http://www.ebu.ch/en/technical/trev/trev_290-doeven.html. The ‘European Broadcasting Area’ is defined in RR 5.14.

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of distress and safety matters (CV Art. 11.2.d (154)).103 Studies and reports are also prepared for WRCs and RRCs (CV Art. 11.3 (156)). Study groups can take economic factors into consideration only when comparing technical or operational alternatives. They do not deal with economic matters in general (CV Art. 11.2.3 (155)). The Radio Regulations Board The Radio Regulations Board (RRB) replaced the International Frequency Registration Board (IFRB) in the 1992–4 reconstruction.104 Back in 1965 at the Montreux Plenipotentiary Conference there was a suggestion that the IFRB should be abolished. However, to have done away with a Board would have been to eliminate something important. The root justification of the IFRB and now of the RRB is the instilling and maintenance of confidence in the international radio regulatory system. In 1965 at Montreux it was mainly the developing nations that stood out for the IFRB, perceiving it useful to them both as an impartial voice in arguments as to frequency allocation, and as a source of disinterested advice. Even with the inception of ITU-D these justifications continue and indeed may have increased with the advent of satellite communications. The composition of the RRB is not more than the greater of twelve, or six per cent of the total state membership of the ITU (CS Art. 14.1 bis (93A)).105 Elected by the plenipotentiary conference (CS Art. 8.2.h (56)) RRB members serve part-time (CS Art. 14.1 (93)), only their travelling, subsistence and insurance expenses being met by the Union (CV Art. 10.4 (142)). In their election regard is had to ‘equitable geographic distribution’ (CS Art. 9.1.c (63)). As in the IFRB, members serve ‘not 103 �� Res. ITU-R 4-5 ‘Structure of Radicommunication Study Groups’ of the Radicommunication Assembly (RA-07) Geneva, 2007, continued six study groups. Group 1 – Spectrum Management; Group 3 – Radiowave Propagation; Group 4 – Satellite services; Group 5 – Terrestrial Services; Group 6 – Broadcasting Services; Group 7 – Science Services. Some joint activities and collaboration is anticipated. See also Res. ITU-R 5-5, ‘Work Programme and Questions of Radicommunication Study Groups’. 104 �� On the creation of the IFRB see G.A. Codding, The International Telecommunication Union: An Experiment in International Cooperation (Leiden: E.J. Brill, 1952; rep. New York: Arno Press, 1972) 241–52. On its working see D.M. Leive, International Telecommunications and International Law: The Regulation of the Radio Spectrum (Leiden: Sijthoff; New York: Oceana, 1970); F. Lyall, Law and Space Telecommunications (Aldershot: Dartmouth, 1989); R.L. and H.L. White, The Law and Regulation of International Space Communication (Boston, MA: Artech House, 1988). On the 1992 proposals see F. Lyall, ‘The International Frequency Registration Board’ (1992) 33 Proc. IISL 394–9. 105 �� As of 1 January 2009 there are one-hundred and ninety-one ITU state members; 6 per cent = 11.46. The 1992–4 version of the Constitution provided for nine members, and this was increased to twelve in 1998.

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as representing their respective Member States, or a region, but as custodians of an international public trust’ (CS Art. 14.3.1 (98)), a statement traceable back to the Atlantic City Convention of 1947.106 In 1947 there was some hope that the notion of ‘public trust’ would result in the election of members of the original IFRB on merit alone, but, following a practice then already emergent in the UN, a regional distribution of membership was adopted. Now, by CS Art. 14.1 (93) RRB members are to be ‘thoroughly qualified in the field of radiocommunications’ and possess ‘practical experience in the assignment and utilization of frequencies’ (CS Art. 14.1 (93)).107 Members must be nationals of different countries and not of the same nationality as the ITU-R Director (CS Art. 9.1.c (63)). Each is to be ‘familiar with the geographic, economic and demographic conditions within a particular area of the world’ (CS Art. 14.1 (93)) and to be of the highest efficiency, competence and integrity (CS Art. 27.2 (154)). That RRB membership is part-time (CS Art. 14.1 (93)) might be thought to detract from independence, since presumably, given the other requirements as to competence and that only expenses are paid to its members, they are likely to be otherwise employed, most probably in telecommunications.108 However, a member of the Board may not intervene in decisions concerning his or her home state (CS Art. 14.3.1 (98)), and CS Art. 14.3.2 (99) prohibits the seeking or taking of instructions from anyone, and from doing anything incompatible with the independent status of the Board. Correlatively CS Art. 14.3.3 (100) requires state members of the Union to respect the international character of the duties of the Board, and not to attempt to influence its members.109 Board members take part in an advisory capacity in radiocommunication conferences. Two RRB members designated by the Board advise at plenipotentiary conferences and radiocommunication assemblies. In such instances Board members are barred from membership of their national delegations (CV Arts 10.3 and 3 bis (141–1A)). The RRB meets up to four times a year and usually at Geneva, at which meetings at least two-thirds of the membership are to be present (CV Art. 10.5.2).110 However, provision is also made that the Board ‘may carry out its duties using modern means of communication’ (CV Art. 10.5.2). In general the Board is to seek unanimity, but if that is not forthcoming it may make a decision by voting, with at 106 �� Atlantic City Convention (supra n. 23), Art. 6.5.1. 107 �� This statement of qualification was an innovation in 1992–4. Members of the previous IFRB were all technically qualified (cf. Art. 57.1.1 of the Nairobi Convention (supra n. 25) and its predecessors). ‘Practical experience in the assignment and utilization of frequencies’ opens the door to those with only administrative experience and (or even) only of the commercial and political side of telecommunications. 108 �� Cf. F. Lyall, ‘The International Frequency Registration Board’ (1992) 33 Proc. IISL, 394–9. 109 �� Again the language of these provisions is traceable to Art. 6.5.1 of the Atlantic City Convention (supra n. 23). 110 �� By Option 18 of Annex 2 to Antalya Decision 5 (Collection, supra n. 36), as part of the general reduction of ITU expenditures the RRB is likely to meet three times a year.

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least two-thirds of the membership voting in favour (CV Art. 10.5.3). Proxy voting is not permitted (CV Art. 10.5.3). The RRB has a Chairman and Vice-Chairman elected by the Board from its members to serve for one year, the Vice-Chairman succeeding the Chairman (CV Art. 10.5.2). In the absence of both, a temporary Chairman may be elected for a particular meeting (CV Art. 10.5.1). The duties of the RRB are wide-ranging (CS Art. 14.2 (94–7), CV Art. 10.2 (140–41A)). It approves Rules of Procedure under which the registration of frequency assignments is made. These can be commented on by Members of the Union, and in the case of a continuing dispute as to their terms, the matter is referred to a WRC (CS Art. 14.2.a (95)). The RRB also considers matters which cannot be solved by the application of these Rules by the Director and the Bureau of the Sector once they have been adopted. The IFRB had a major role in acting in disputes between administrations in respect of proposed and actual assignments. This continues. By CV Art. 10.2.1 (140) the RRB considers reports from the ITU-R Director on cases of harmful interference that have been investigated at the instance of an interested administration, and formulates recommendations on the matter. Further, independent of the ITU-R Bureau, at the instance of one or more of the interested administrations the RRB can consider an appeal against a decision of the Bureau on a frequency assignment (CV Art. 10.2.2 (140)). Radio Communication As stated in the Introduction to this chapter, radiocommunication is integral to almost all uses of space.111 An active satellite is useless unless there is radio communication with it, and interference with the signals it uses can have deleterious or even disastrous effects.112 As such, however, space radio is an aspect of the general regulation of the use of the radio spectrum. That depends on the implementation of a variety of rules and procedures enshrined in the ITU Constitution and Convention, and in the Radio Regulations (RR). The RR are part of the ITU Administrative Regulations (CS Arts 4.1 (29) and 4.3 (31)) and as such are themselves binding international instruments with full treaty 111 �� Reference point, n. 97. 112 �� Sputniks I (Alpha), II (Beta) and IV (Delta) broadcast on frequencies inter alia allocated to the world time standard system and frequencies already assigned by some other national terrestrial systems: M. Aaronson, ‘Space Law’ (1958) Int. Aff. 416, rep. Legal Problems of Space Exploration – A Symposium, US Senate, 87th Cong. 1st Sess., S. Doc. no. 26, USGPO, 1961, 221–38 at 2289; A.J. Haley, ‘Space Age Presents Immediate Legal Problems’ (1958) 1 Proc. IISL 5–27 at 14–25 and particularly 14–16. At 16 Haley notes that at the time, because the transmitters were in space, the status of which had not been defined, the ITU regulations may not have been applicable. Now the jurisdiction of the ITU system extends to space – see infra.

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status (CS Art. 54 (215–23) and particularly Art. 54.1 (215). Under CS Arts 44 and 45 (195–9) member states are to ensure that radio frequencies are properly used.113 More precisely CS Art. 44.2 (196) states that radio frequencies are a limited natural resource, and as such to be used ‘rationally, efficiently and economically’.114 The international interest lies in the prevention or mitigation of ‘harmful interference’ (CS Art. 45 (197–9)) in the use of the minimum power to provide the desired service and in the use of the best available technologies so that the best frequency tolerances are obtained and the use of spectrum bandwidth is minimised.115 Of course as with all regulations and procedures the possibility exists of dispute. As we will see below, ITU procedures call for negotiation and co-ordination. However, in the ultimate a state is sovereign. Apart from any separate agreement between affected states, the ITU does have dispute settlement procedures including arbitration under CS Art. 56 (233–5) and CV Art. 41 (507–18), and the (never yet used) Optional Protocol on the Compulsory Settlement of Disputes.116 However, the only sanction is the Law of Physics. It cannot be amended, altered or repealed by international agreement. If activities authorised by one state cause harmful interference to the activities of another, it itself will suffer harmful interference. That fact undergirds the general success of the ITU procedures, and states’ compliance with them.117 The Radio Regulations and related ITU-R Recommendations are crucial in this process. Radio Regulations are adopted and amended at world and regional radio conferences (supra before n. 102).118 At WRCs and RRCs portions of the usable 113 �� See generally, H.J. Levin, The Invisible Resource: Use and Regulation of the Radio Spectrum (Baltimore, MD: Johns Hopkins UP, 1971). 114 �� CS Art. 44.2 (196) also deals with orbits, but we come to that matter properly in Chapter 9. 115 �� The use of best technologies is now required by RR 3, ‘Technical Characteristics of Stations’ and related ITU-R Recommendations. RR 15 ‘Interferences’ together with RR Apps 2 and 3 deal with unnecessary transmissions, minimising of power, etc. A related but different and difficult problem is that of illegal/unlicensed broadcasting – see (UK) Ofcom ‘Illegal Broadcasting: Understanding the Issues’ 19 April 2007: http://www.ofcom.org.uk/ research/radio/reports/illegal_broadcasting/illegal_broadcasting.pdf. Cf. for enforcement by Ofcom,: http://www.ofcom.org.uk/media/news/2008/02/nr_20080219a, and statistics for UK prosecutions in 2006–07: http://www.ofcom.org.uk/radiocomms/ifi/enforcement/ pstats/stats0607. 116 �� Arbitration has occurred. D.C. Gregg, ‘Capitalizing on National Self-Interest: The Management of International Telecommunication Conflict by the International Telecommunication Union’ (1982) 45 Law and Contemp. Probs 37–52 – written prior to the 1992–4 reforms. 117 �� There can be problems. See RR 15 and RR App. 10. For examples see infra n. 163. 118 �� RR revisions come into force at dates they specify. The WRC-07 amendments apply from 1 January 2009, all prior amendments having previously come into force (RR 59.1–59.10).

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radio spectrum are agreed to be allocated to different services on either a worldwide or regional basis. Agreed decisions are incorporated in the Table of Allocations (RR Art. 5).119 The RR also lay down procedures for administering their use.120 For the purpose, the radio spectrum is notionally divided into nine bands running from extremely low frequency (ELF) to extremely high frequency (EHF).121 The ‘allocation’ of a frequency band may be to one or more services (RR 1.16), and may be on a primary or on a secondary basis, the primary service taking precedence should there be conflict.122 Any exception to a particular allocation (for example for a small group of countries or even a single state) is set out in a ‘footnote’.123 In addition an ‘allotment’ may be made to a particular region or group of states for a particular purpose (RR 1.17).124 Very occasionally a state may indicate by a reservation to the Final Acts of a WRC or RRC its dissent from a generally agreed decision. Such are noted and usually taken account of by other states.125 119 �� Not all spectrum bands are set aside for transmission use. Some are protected for passive use, e.g. by radio astronomy and SETI. M.A. Stull and G. Alexander, ‘Passive Use of the Radio Spectrum and the Frequency Allocation Process’ (1977) 43 J. Air L. and Comm. 459–534. The UK makes special arrangements within its regulations for radio astronomy, e.g. by establishing a quiet zone round each of the five UK radio astronomy sites: cf. UK Ofcom ‘Decision to make the Wireless Telegraphy (Automotive Short Range Radar) (Exemption) (no. 2) (Amendment) Regulations 2008’ (particularly Annex 2 which shows the calculation of each zone) 11 February 2008: http://www.ofcom.org.uk/consult/ condocs/srr/statement. Access to spectrum for radio astronomy is now (like other spectrum uses by public sector users) subject to control as ‘recognised spectrum access’ (RSA), and RSA rights may become tradable: see ‘Spectrum Framework Review for the Public Sector’ Ofcom, 31 January 2008, paras 3.26 and 3.29–36: http://www.ofcom.org.uk/consult/ condocs/sfrps/statement/statement.pdf and the related consultation at http://www.ofcom. org.uk/consult/condocs/sfrps/sfrps.pdf. See also Chapter 17. 120 �� As to the continuing importance of WRCs and RRCs see K.Q. Abernathy, ‘Why the World Radiocommunication Conference Continues to be Relevant Today’ (2003–3004) 56 Fed. Comm. L.J. 287–98. 121 �� The nine bands are ELF, VLF, LF, MF, HF, VHF, UHF, SHF and EHF, and run from 3 Hz to 3000 GHz (RR 2.1). Frequencies are expressed in kHz up to and including 3000 kHz, in MHz from 3 to 3000 MHz, and in GHz from 3 GHz to 3000 GHz. The Table of Allocations (RR 5) makes no allocations below 9 Hz. 122 �� RR 5.23–44 set out the relative ranking of different allocations. 123 �� A ‘footnote’ allocation (or exemption from an allocation in the main text) is as authoritative as the provision of the main text. See ‘Footnotes to the Table of Frequency Allocations in Article 5 of the Radio Regulations’, RR Res. 26 (Rev.WRC-97). 124 �� As in the case of a regional broadcasting plan where a particular frequency or frequencies (and sometimes signal strength and/or transmitter location) are denoted for particular broadcasting stations. Cf. supra n. 102. 125 �� The major exception relates to the Bogota Declaration (q.v.). Signatories to the Declaration usually make a reservation as to RR provisions on use of the GSO and related frequencies. Counter-reservations are made by other states.

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The ‘assignment’ of a frequency to a particular radio station is the sovereign prerogative of the state having jurisdiction over the operator of the station (RR 1.18).126 However, where use of a frequency is likely to affect other countries the RR procedures come into play in order to avoid ‘harmful interference’. The procedures vary depending on the frequency and service in question.127 In broad summary the telecommunications administration of the state involved notifies ITU-R of its intention to make the assignment giving at least certain basic information.128 This notification is published by ITU-R in a Weekly Circular (advance publication) thus putting other states on notice of the intention. ITU-R examines the notification to check for conformity to the Table of Allocations in RR Art. 5. It also makes calculations based on the notification and the characteristics of existing assignment (data which is already in the Master International Frequency Register, as to which see below) to determine whether the proposed assignment would in operation cause or receive ‘harmful interference’ to/from existing assignments. The result may be a ‘favourable’ or an ‘unfavourable finding’. In the latter case the notification is returned to sender for correction.129 The most frequent correction required is the avoidance of ‘harmful interference’, and this involves

126 �� See RR 1.18 and Resolution 1 (Rev. WRC-97) (RES1-1) that ‘unless specifically stipulated otherwise by special arrangements communicated to the Union by administrations, any notification of a frequency assignment to a station shall be made by the administration of the country on whose territory the station is located’. For UK Earth station licences see ‘Licensing Procedures Manual for Satellite (Permanent Earth Stations) Applications’, Ofcom, 7 August 2007: http://www.ofcom.org.uk/radiocomms/ifi/licensing/classes/ satellite/procedure_manuals/PermanentEarthStation.pdf. Such matters as GMPCS and INMARSAT systems are subject to other special agreements: see infra n. 144 for GMPCS and ‘International Agreement on the Use of INMARSAT Ship Earth Stations within the Territorial Sea and Ports’, London, 1985, 1987 BPP Misc. 5; 1993 ATS 42: http://sedac.ciesin.org/entri/texts/acrc/INMARSAT85.txt.html, or http://www.imso.org/ pdfs/Public/Basic%20Documents/SES%20Agreement/P%20-%20SES%20Agreement%20%20English.pdf. On UK procedure for vessels see ‘Policy guidance regarding licensing for Earth Stations on Vessels (ESVs)’ Ofcom, 23 October 2007: http://www.ofcom.org.uk/ radiocomms/ifi/licensing/classes/satellite/applications/esvlicensing.pdf. 127 �� RR Art. 11 sets out the requirements as to the notification of an assignment and details procedures for the different possible cases. For procedures prior to the 1992–4 reconstruction see D. Leive, ‘Regulating the Use of the Radio Spectrum’ (1970) 5 Stan. J. Int. Stud. 21–52. 128 �� If the notification is incomplete or too early ahead of the proposed use of the assignment it is returned to sender. No ‘finding’ is issued – see infra. 129 �� The decision of the Bureau may be reviewed (RR 14). In addition there is the possibility of an appeal to the RRB (CV Art. 10.2.2 (140). This is separate from the normal negotiation between notifying administrations, the arbitral procedures available under CS Art. 56 (233–5) and CV Art. 41 507–18), and the (never yet used) Optional Protocol on the Compulsory Settlement of Disputes.

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consultation with any other affected state to ‘co-ordinate’ assignments.130 If and when there is no problem the assignment is entered with a favourable finding in the Master International Frequency Register (MIFR). Thereafter it is entitled to protection through the operation of these procedures, other states being required to take it into account when making their assignments in order to avoid harmful interference (RR 8). The procedures outlined above apply mutatis mutandis to the ‘planned’ and the ‘un-planned’ radio bands. They similarly apply to space. In ‘planned bands’ a WRC or RRC sets out the use of particular spectrum frequencies, allotting their use to designated states and setting out a variety of technical requirements. This can include permitting others to use the frequencies, etc., until a designated state wishes to use its allotment.131 Such planning (sometimes known as ‘engineering the spectrum’) is said to be more equitable than the alternative. In ‘un-planned’ bands the procedures mean that spectrum is taken up on a ‘first-come, firstserved’ basis.132 This certainly helps comply with the duty as to ‘the rational, equitable, efficient and economical use of the radio frequency spectrum by all radiocommunication services’ (CS Art. 12.1.1 (78)) that states bear in mind that frequencies are ‘limited natural resources [to] be used rationally, efficiently and economically’ (CS Art. 44.2 (196)). On the other hand it does mean that latecomers may find it difficult to satisfy their requirements. Space radio usage presents particular problems. At least one of the radio transmitters is in motion. That space would require special treatment was early realised. The World Administrative Radio Conference (WARC-59) held in Geneva in 1959 inter alia amended the RR to include definitions of an ‘earth station’, a ‘space station’, a ‘space service’ and an ‘earth/space service’.133 This was followed by the 1963 Extraordinary Administrative Radio Conference (EARC-63) whose partial revision of the RR was devoted entirely to space matters.134 However, although the RR were amended by successive radio conferences as to radio 130 �� For example, the frequencies involved may be altered or polarised, hours of use adjusted (cf. short-wave radio services) or transmitter power altered. 131 �� Cf. the European Broadcasting Plan, supra n. 102; RR Apps. 25, 26 and 27 as to allotment plans for certain maritime and aeronautical mobile services. 132 �� We here are speaking of radio spectrum matters. In ‘space’, ‘first-come, firstserved’ has also repercussions for the use of orbits, including the GSO as we see infra. 133 �� An ‘earth station’ is located ‘either on the Earth’s surface or within the major portion of the Earth’s atmosphere and intended for communication with one or more space stations; or with one or more stations of the same kind by means of one or more reflecting satellites or other objects in space’ (RR 1.63). (The contrast is with a terrestrial station, which is for terrestrial service (RR 1.62).) The definitions of ‘space station’ and ‘earth/ space service’ have now been clarified by a number of definitions of different satellites services incorporated into RR 1.19 ff on ‘Radio services’ (q.v.). 134 �� Partial Revision of the Radio Regulations: Final Acts of the Extraordinary Administrative Radio Conference to Allocate Frequency Bands for Space Radio Purposes, Geneva, 1963, 15 UST 887, TIAS 5603; (1964) 3 ILM 91–106. S.D. Estep and A.L. Kearse,

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frequency allocations and associated procedures, it was not until the Minneapolis Plenipotentiary Conference of 1998 that the ITU was given formal jurisdiction in relation to the GSO and other orbits (CS Art. 1.2.a and b (10–12), Art. 12.1.1 (78), Art. 44.2 (196)).135 Now the notification to the ITU-R Bureau of a planned space station includes data as to the proposed orbit a satellite will use. As in general terrestrial radio, in space a distinction is made in the relevant RRs between ‘planned’ and ‘un-planned’ radio bands. In the area of ‘planned’ bands there is the allotment plan adopted by WARC-ORB 1985–8 (as amended by later WRCs) by which for direct broadcast purposes every state has been allocated a slot within a ten degree arc on the GSO arc together with up-link and down-link frequencies.136 Here until a state acts on its allotment others may place satellites in the GSO slot to which its allotment is located. Orbits and frequencies are otherwise available on a ‘first-come, first-served’ basis, provided that the frequencies concerned are lawful within the services laid down in the Table of Allocations (RR Art. 5). Space systems are expensive, satellites take time to build and launch, and once up are unlikely to be serviced, repaired or their characteristics altered. Accordingly the ITU procedures for space radio services are more protracted than those for terrestrial systems.137 The normal pattern for space assignments calls for ‘advance publication’ of the intention to make an assignment for a space service. Accompanying data required to be given includes that of the Earth/space connections in both directions, and signal characteristics.138 This information is made available through the ITU-R Weekly Circular, allowing other states to object, to negotiate/co-ordinate or to take the proposed assignment into account in their own plans. The period within which advance publication is required varies ‘Space Communications and the Law: Adequate International Control after 1963’ (1962) 60 Mich. L. Rev. 873–904. 135 �� CV Arts 11.2.a (151 and 12.2.4.a (177) set out duties for the Sector to help secure the equitable, effective and economical use of orbits. 136 �� See now RR Apps. 30, 30A and 30B. Procedures by which a new ITU member state can enter the allotment plan are contained in RR App. 30B, Art.7. As to argument during the negotiations of WARC-ORB 85–88 see G.C. Staple, ‘The New World Satellite Order: A Report from Geneva’ (1986) 80 AJIL 699–720. See also E.D. DuCharme et al., ‘Direct Broadcasting by Satellite – The Development of the International, Technical and Administrative Regulatory Regime’ (1984) 9 AASL 267–87. 137 �� A non-problematic terrestrial assignment can be brought into use six months from notification. Terrestrial microwave systems operate in VHF or UHF which are not reflected by the Heaviside Layer but travel in straight lines. Microwave signals diverge slightly and therefore are not entirely caught by the next antenna on a system. The ‘uncaught’ transmissions therefore travel on out to space and so can affect satellites whose orbits they intersect. Microwave systems may therefore be included in a consultation/coordination process. 138 �� The notification must comply with requirements of ‘administrative due diligence’, as to which see infra n. 147.

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depending on the service to be provided, and may be as early as nine years and not later than two years from bringing the service into operation. Failure to bring the system into operation within nine years results in the cancellation of the entry in the MIFR.139 After advance publication the assignment passes through the normal scrutiny as to compliance with the Table of Allocations (RR 5), and the possibility of its use causing harmful interference.140 Once that and any required co-ordination with other systems has been carried out satisfactorily the assignment is entered on the Master International Frequency Register. Problems and Solutions It is important that an organisation such as the ITU is well-informed as to what is required of its organs and procedures. Such cannot be entirely carried out through the formal meetings of the Union or of its Sectors. The ITU is very conscious that it deals with complex matters involving acute questions of policy, national and international considerations, and rapidly changing technology. Information has both to come in and be disseminated. The need for a forum in which information could be exchanged, interests canvassed and strategies discussed has produced the World Telecommunication Policy Forum and regional telecommunication policy fora. Fora are convened irregularly and, although official, are gatherings which, though important, are outwith the formal ITU structures of the Constitution and Convention.141 Provision for a world forum was first made by the Kyoto Plenipotentiary Conference, and world gatherings were convened in 1996, 1998 and 2001. The next world forum will be held in Geneva in the first quarter of 2009.142 As indicated, regional forums have also been held and will continue. Apart from the exchange of information, telecommunications exhibitions have 139 �� What bringing the service into operation means is a matter of contention. EUTELSAT had a GSO orbital slot entered on the MIFR. Shortly before the expiry of the nine year deadline it briefly parked a satellite there for testing before relocating it elsewhere on the GSO. Loral claimed use of the position after the period arguing that the MIFR entry had expired since the notified service had not been timeously brought into use. The matter was solved by negotiation, leaving the law on the matter obscure. 140 �� RR 11 contains extensive provision as to the calculations ITU-R has to make. A problem always is that technology can advance faster than RR revision. Required calculations can become obsolete. 141 �� See ‘World Telecommunication Policy Forum’, Res. 2 (Rev. Marrakesh, 2002), ‘World and Regional Telecommunication/Information and Communications Technology Exhibitions and Forums’, Res. 11 (Rev. Antalya, 2006) (Collection, supra n. 36). 142 �� ‘Fourth World Telecommunication Policy Forum’ Decisions 9 and GT-PLEN/ A (Antalya, 2006). Its agenda will include Internet matters, and also the review of the International Telecommunication Regulations – see Decisions just cited and ‘Review of the International Telecommunication Regulations’, Res. 146 and Res. COM5/4 (Antalya, 2006) (Collection, supra n. 36).

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also been organised, sometimes associated with such fora, in order that countries are made aware of technical developments. To this end the ITU has established ‘ITU Telecom’ which helps organise the forums and exhibitions.143 The exchange of information and views both regional and global is important. It allows the ITU more clearly to take account of emergent needs.144 It also allows states to keep up to date in their domestic technologies, and to establish where international improvement is required. But in conclusion we now turn to matters more immediately legal.145 The ‘first-come, first served’ principle led to the major problem of the ‘paper satellite’, which is only now being overcome.146 Once commercial enterprises began to use the GSO in particular for direct broadcasting, entrepreneurs induced administrations to notify space systems that existed only as potential plans rather than actualities. Their intention was to secure an entry on the Master Register, thereby achieving a protected position for the future and which might in itself be an asset. Now it is required that a notifying state exercise ‘administrative due diligence’ in its scrutiny of a proposed notification before submitting it to ITU-R and see that the notification includes the date of firm contracts with the spacecraft manufacturer and with the launch provider in addition to other standard data,147 though this has 143 �� ITU Telecom: see http://www.itu.int/ITUTELECOM/index.html. 144 �� For example the first World Telecommunication Policy Forum, Geneva, 1996, proposed the use of a Memorandum of Understanding as the way to facilitate the introduction of Global Mobile Personal Communications by Satellite (GMPCS). GMPCS is now dealt with under the Arrangements of 2003 which are binding as between its signatories. Systems registered with the ITU are allowed to be operated in the territories of signatories to the Arrangements. See ITU Doc. 11, 7 June 2003 (SG_G_O_00000188E): http://www.itu.int/ osg/gmpcs/. 145 �� Apart from materials to be cited infra, see L.D. Roberts, ‘A Lost Connection: Geostationary Satellite Networks and the International Telecommunication Union’ (2000) 15 Berkeley Tech. L.J. 1095–144 at 1119–34. 146 �� H. Wong, ‘The “Paper Satellite” Chase: The ITU Prepares for its Final Exam in Resolution 18’ (1998) J. Air L. and Comm. 849–79; F. Lyall, ‘Paralysis by Phantom: Problems of the ITU Filing Procedures’ (1997) 39 Proc IISL 187–93. The ‘paper satellite’ problem did lead to some mutual distrust between notifying states. See also K.G. Gibbons, ‘Orbital Saturation: The Necessity for International Regulation of Geosynchronous Orbits’ (1979) 9 Cal. W. Int. L.J. 139–56; S. Cahill, ‘Give Me My Space: Implications for Permitting National Appropriation of the Geostationary Orbit,’ (2000) 19 Wis. Int. L.J. 231–48. And see Chapter 9 – ‘Geostationary Orbit’. 147 �� Resolution 49, Final Acts, World Radiocommunication Conference (Geneva, 1997) (WRC-97 as amended by WRC-03 and WRC-07) together with relevant Radio Regulations, particularly RR 4, and RR 4.2–4 and RR 8, especially RR 8.1, RR 8.3 (international recognition of registered assignments) and RR 8.5 (duty to eliminate harmful interference caused to registered assignments). The data to be provided under ‘administrative due diligence’ is specified in Annex 2 to WRC Res. 49. It includes the identity of the satellite network, the frequency bands and orbits to be used, the spacecraft manufacturer with contract date, the delivery window and number of satellites, and the launch provider

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not been wholly successful.148 Other results of the ‘paper satellite’ phenomenon were a vastly increased work-load for the ITU-R Bureau and associated costs. The introduction of ‘cost recovery’ in the processing of notifications has to some extent alleviated the latter difficulty.149 ‘First-come, first-served’ has other implications for space including the question of the frequencies to be used, and satellite orbits.150 As far as frequencies are concerned the provisions of RR Art. 5 apply, setting aside specific bands for particular services. However, it remains the case that for various users some designated ‘space frequencies’ are more suitable than others151 and ‘first-comers’ making a choice that suits them certainly get the best of the bargain. It is also coming to be recognised that the ‘first’ user of a particular frequency may not be the company/entity that will extract the highest value from it.152 The same is true as to orbits. That may not be so important in relation to many orbits (space is vast), but it certainly can be so in relation to the GSO.153 As already mentioned,

with contract date, the launch or delivery in orbit window, the name of the launch vehicle and the location of the launch. Cf. also CS Art. 1.2.a (11), Art. 6 (37–8), Art. 14.2.a (95), Art. 42 (193), Art. 45 (193–7); CV Art. 12.2.2.e (172). For UK Filing Procedures see: Procedures for the Authorisation of Satellite Networks: A Statement on Procedures for the Management of Filings and Coordination of International Satellite Networks (UK Ofcom, 2007): http://www.ofcom.org.uk/consult/condocs/satellite_networks/statement/satellite. pdf and Procedures for the Management of Satellite Filings (UK Ofcom, March 2007): http://www.ofcom.org.uk/radiocomms/ifi/licensing/classes/satellite/procedure_manuals/ spectrum_filings/satellite_filings.pdf. For Ofcom implementation of these procedures see (in relation to the ICO-P satellite system): http://www.ofcom.org.uk/radiocomms/ifi/ licensing/classes/satellite/procedure_manuals/icop/. 148 �� See RR Res. 81 (WRC-2000), ‘Evaluation of the Administrative due Diligence Procedure for Satellite Networks’. 149 �� See ‘Processing Charges for Satellite Network Filings and Administrative Procedures’ Plenipotentiary Conference Res. 88 (Rev. Marrakesh, 2002) (Collection, supra n. 36). By n. 22 to RR 9.38.1, if the ‘cost recovery payment’ is not received the Bureau will cancel publication of the notification. 150 �� See ‘Equitable Use, by all Countries, with Equal Rights, of the Geostationarysatellite and other Satellite Orbits and of Frequency Bands for Space Radiocommunication Services’ RR RES. 2 (Rev.WRC-03). 151 �� For example for cutting through tropical rainfall and storms. 152 �� This point could interact with the ‘benefit’ aspects of OST Art. I and the ‘Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries’, 13 December 1996, UNGA Res. 51/122; cf. J.N. Pelton. ‘The Economic and Social Benefits of Space Communication’ (1990) Space Policy 311–22; M.A. Rothblatt, ‘Satellite Communication and Spectrum Allocation’ (1982) 76 AJIL 56–77. 153 �� See also the question of equitable access to the GSO discussed in Chapter 9 – ‘Geostationary Orbit’.

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some steps have been taken to ‘plan’ some use of the GSO,154 but there is another problem relating to orbits – the occupation of a particular orbital slot for a prolonged period. Certainly there is no question that the continued presence of a satellite in a particular orbit involves sovereign title. Although ‘title’ is proscribed by OST Art. II, there has been concern that a state might in effect permanently retain the use of a particular orbit by the placement and replacement of a satellite. Most clearly the problem can occur with a GSO position. Since the 1979 WARC by RR Res. 4, the period of use of a frequency assignment is not to be considered as perpetual, but is taken to be that indicated in the first notification, although provision is also made for the extension of that period or the substitution of another satellite with different characteristics.155 ‘First-come, first-served’ also opens the possibility that an ITU state member may seek to derive income by in effect acting as an agent for commercial interests. The first was Tonga,156 but other states have sought such business.157 It must be asked whether this is a good development. One point could be that the function of the ITU procedures should be the satisfaction of the telecommunications needs of its members, not their setting up of a business effectively for profit. Unfortunately because the ITU did not simply refuse to process the Tonga notification on those grounds, the pass has been sold and it would be difficult to re-visit the question.158 Another point, perhaps still weighty, is whether a small state has the ability properly to do ‘due diligence’ in order to evaluate a request for making a filing 154 �� The WARC-ORB 1985-88 Plan. See supra at n. 136. Plans and regional agreements for the broadcast satellite service are in contemplation: see ‘Establishment of Agreements and Associated Plans for the Broadcasting-satellite Service’ RR Res 507 (Rev. WRC-03). 155 �� See ‘Period of Validity of Frequency Assignments to Space Stations using the Geostationary-satellite and other Satellite Orbits’ RR RES. 4 (Rev.WRC-03). This Resolution does not apply to the WARC-ORB 1985–88 Plan (n. 154). Obviously the orbit of major concern is the GSO, and this was the ambit of the original RR RES. 4. However, the Resolution is now applicable to all frequency assignments to space stations, and therefore affects orbital usage. 156 �� D. Riddick, ‘Why does Tonga own Outer Space?’ (1994) 19 Air and Sp. Law, 15– 29; J.C. Thompson, ‘Space for Rent: The International Telecommunication Union, Space Law and Orbit/Spectrum Leasing’ (1996) 62 J. Air L. and Comm. 279–311 [Lyall/Larsen 375–407]; Wong, supra n. 146 at 853–4; F. Lyall, ‘The International Telecommunication Union: A World Communications Commission?’ (1994) 37 Proc. IISL 42–7. 157 �� Examples include Bermuda (which is the state of registration for many space telecommunications companies), Gibraltar, the Channel Islands and the Isle of Man interacting with the ITU through UK Ofcom. 158 �� F. Lyall remains of the view that, although there is no express power given in the ITU basic documents, a power to refuse to process a filing on the grounds that it does not relate to the practical and ‘personal’ requirements of the notifying state could have been implied. See the Advisory Opinion of the ICJ on Reparation for Injuries Suffered in the Service of the United Nations, 1949 ICJ Rep. 174.

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with ITU-R or to supervise and control the activities involved as required by OST Arts VI and VIII.159 The world has had too many problems with the concept of the ‘flag of convenience’ not to want to avoid the intrusion of such into the efficient use of space.160 Correlatively the ‘corporate veil’ should be penetrated to discover who is really behind a particular filing before it is accepted.161 On a correlative line of argument, perhaps complex satellite systems should be notified to ITU-R only by states competent to supervise such things having a real jurisdiction over the commercial interests involved, and not by a minor state of limited competency. However, such a change could be accomplished only by amendment of the ITU rules. The entry of commercial entities into the use of space may be welcome,162 but it has dangers. As said, the assignment of a frequency and orbit is a matter for the sovereign power of a state. In the ultimate states could ignore RR 5, the Table of Allocations, or position a satellite unduly close to another or even in a location identical to that lawfully ‘occupied’ by another in terms of the MIFR.163 ‘Harmful interference’ could be caused, but a state might be willing to accept that and seek by increased power to overcome an alternative signal. Although there are the ITU provisions for consultation and co-ordination, appeal to the RRB against ITU-R Bureau determinations and for the settlement of disputes, ultimately the unalterable Laws of Physics are the only sanction. Short of that the functioning of the ITU depends on the practices of compromise and mutual accommodation on the part of administrations. We hope that previous practice will continue. However, looking at the current commercial environment our fear is that the privatised commercial 159 �� F. Lyall, ‘Small States, Entrepreneurial States and Space’ (2006) 49 Proc. IISL. 382–90. ‘Willingness and ability’ to fulfil international obligations used to be a test for recognition in international law and has recently been resuscitated in the break-up of Yugoslavia; see ‘European Community: Declaration on Yugoslavia and on the Guidelines on the Recognition of New States’ (1992) 31 ILM 1485. On the test cf. M.M. Whiteman, Digest of International Law (Washington DC: USGPO, 1968) Vol. 13, 206ff; S. Talman, Recognition of Governments in International Law (Oxford: Oxford UP, 1998); T. Cheng, The International Law of Recognition (London: Stevens, 1951); H. Lauterpacht, Recognition in International Law (Cambridge: Cambridge UP, 1948) and his ‘Recognition of Governments’ (1946) 46 Col. L. Rev. 37–68 at 53–6. 160 �� Cf. Art. 91, Convention on the Law of the Sea, Montego Bay, 1984, 1833 UNTS 3; (1999) UKTS 81, Cm. 4524: http://www.admiraltylawguide.com/conven/unclostable. html; the Final Act of the United Nations Conference on Conditions for Registration of Ships: (1987) 26 ILM 1229; and the Convention on Conditions for the Registration of Ships (1987) 26 ILM 1232: www.admiraltylawguide.com/conven/registration1986.html. 161 �� Barcelona Traction, Light and Power Co, Limited (New Application: 1962) (Belgium v Spain) (1962–1970) (Second Phase) 1970 ICJ 3. 162 �� See Chapters 11, 14 and 15. 163 �� Cf. the Tonga, Indonesia and China examples noted in F. Lyall, ‘The International Telecommunication Union: A World Communications Commission?’ (1994) 37 Proc. IISL 42–7. Cf. also the 2008 worries of the United Arab Emirates as to the location of Protostar-1.

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providers of space telecommunications may press their governments to engage in dispute for commercial rather than proper or procedural reasons. The (ab)use of ‘the law’ to ‘run interference’ on competitors is not unknown in rampant ‘free markets’. The financial position of the ITU has not yet been solved and remains a matter of concern. ITU financing depends on the contributions of its members, but as we have seen the take-up of unit classes has declined over the years.164 While that can to some extent be offset by the establishing of an appropriate value for the ‘unit’, the fact is that that remedy does not attack the fundamental problem. Within limits ITU members select the level of their contribution.165 Selection, however, reflects the value a member considers it gets from membership and, looking at the figures of selection, it would seem that the developed countries have reservations.166 Since the 1992–4 reconstruction development and aid to less developed countries has figured large in ITU debate and activities. The extension of ITU work into such matters may have contributed to the lessening of the willingness of members to contribute to running cost. One solution to the ITU financial problems would be to convert the financial contribution system to that operating elsewhere within the UN family of specialised agencies, relating contribution to Gross National Product or other international measurement of the ability of a state to pay. However, such a step is wholly unlikely unless some weighting were given to financial contribution in decisionmaking. There is a major discontinuity in the ITU between voting power (one state one vote) and financial contribution: fifty-one of the one-hundred and ninety-one members contribute 90 per cent of the state contributions.167 Unless some way is 164 Supra n. 53. 165 �� A state member may not reduce its class of contribution by more than two classes from that previously selected only with the consent of the Plenipotentiary Conference and for financial cause shown (CS Art. 28.5 (165)). 166 F. Lyall, ‘Article �� I of the Outer Space Treaty and the International Telecommunication Union’ (2003) 46 Proc. IISL 96–106. 167 �� ITU Council Doc. C07/6, ‘Choice of Class of Contribution for Defraying the Union’s Expenses’, 8 May 2007, shows that state members will contribute 336 7/16 contributory units in the period 2008–2011. Four members, France, Germany, Japan, and the US, will contribute 30 units = 120 = 35.6 per cent. Going down to 5 units, a total of eighteen member states (including the four maximum contributors) will contribute 251 units (74.5 per cent), and adding the thirtythree which contributed 1–4 units, fifty-one member states will contribute 302 1/2 units (89.8 per cent). The remainder will be contributed by one-hundred and thirty-seven member states – twenty-two at the 1/2 unit level, fifty-eight at 1/4 (the lowest permissible without special rules and permission), nineteen at 1/8 and thirty-eight at the 1/16 level. The equivalent Marrakesh figures were that the ITU States members contributed a total of 335 13/16 units (335.81). The four largest contributors produced one-third of the state member contributions – 120 units (35.7 per cent). Down to 5 units, a total of twenty-one member states (including the four maximum contributors) contributed 262 units (78 per cent), another thirty-two contributed 1–4 units, i.e. fifty-three member states contributed

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found to resolve that imbalance, major contributors are not likely to agree to move to another financial regime. Other steps, however, might be more promising. As outlined above, ‘cost recovery’ for ITU services triggered by the ‘paper satellite’ avalanche that threatened to overwhelm the infant ITU-R is now an important element. During preparations for the 1997 WARC relating cost not to work but to the nature of the system involved was raised.168 Such ideas could be broadened. If it is accepted that space frequencies are a limited natural resource, there seems little reason why those who make commercial profit from their use should not pay a fee for their use. A ‘Resource Utilisation Fee’ makes sense.169 Whether it should be an annual fee or a one-off payment is a question, but one which we would decide in favour of the annual payment. Other resources are exploited on the basis of a licence and either a fee or an appropriate system of taxation (e.g. off-shore oil in the Continental Shelf).170 Such a line of thought can lead further. We have touched above on the fear that because of the ‘first come, first served’ system space frequencies might not be used to their full value. Many see an auction process as the way to ensure that the best

295 1/2 units. The remaining 40 5/16 units were contributed by one-hundred and thirty-six member states – twenty-three at the 1/2 unit level, fifty-six at 1/4 (the lowest permissible without special rules and permission), twenty at 1/8 and thirty-seven at the 1/16 level. 168 �� ‘Due Diligence Considerations’, UK/Luxemburg June 1996 (submitted as part of the work of RAG96 for the 1997 WARC) spoke in terms of a deposit of 2 per cent of the cost of each satellite in the system multiplied by a charge for the amount of spectrum space sought computed in units of 1000 MHz, the deposit to be returned when the system became operational. The paper also suggested that, were the fee not to be returnable, it would be set somewhat differently, relating it more clearly to processing cost. 169 �� Cf. F. Lyall, – 1‘The Rational, Efficient and Economic Use of Space: Three Suggestions’, in M. Benkö and W. Kroll, eds, Air and Space Law in the 21st Century: Liber Amicorum K.-H. Böcksteigel (Cologne: Carl Heymanns Verlag, 2002) 386–95; – 2 ‘The International Telecommunication Union: A World Communications Commission?’ (1994) 37 Proc. IISL 42–7; – 3 ‘Expanding Global Communications Services’, in Proceedings of the Workshop in Space Law, UNISPACE III, July 1999 (A.CONF-184/7) 63–80; – 4 ‘The Role of the World Interest in Space Telecommunication Activities’ (2001) 44 Proc. IISL 171–80; – 5 ‘The International Telecommunication Union in the Twenty-First Century’, in K.-H. Böcksteigel, ed., Project 2001, Legal Framework for the Commercial Use of Space (Cologne: Carl Heymanns Verlag, 2002), 259–81. – 6 ‘The Role of the International Telecommunication Union’, in An Outlook on Outer Space Law in the Next Thirty Years, G. Lafferanderie and D. Crowther, eds (Amsterdam: Kluwer, 1997) 253–68. See also R.S. Jakhu, ‘Safeguarding the Concept of Public Service and the Global Public Interest in Telecommunications” (2001) 5 Sing. J. Int. and Comp. L. 71. 170 �� J.C. Thompson, ‘Space for Rent: The International Telecommunication Union, Space Law and Orbit/Spectrum Leasing’ (1996) 62 J. Air L. and Comm. 279–311 [Lyall/ Larsen, 375–407] inter alia discusses leasing, another way in which states can generate income from space.

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use is made of resources. Market forces, it is said, sort out anomalies.171 This should be considered further for use in the assignment of space frequencies. Already a number of states have or have in contemplation the auction of portions of the radio spectrum within their several jurisdictions.172 This is often accompanied by 171 �� See K.W. Dam, ‘Oil and Gas Licensing in the North Sea’ (1965) 8 J. L. Econ. 51– 76; ‘The Pricing of North Sea Gas in Britain’ (1970) 1 J. L. Econ. 11–44; ‘The Evolution of North Sea Licensing Policy in Britain and Norway’ (1974) 17 J. L. Econ. 213–64 and cf. R.H. Coase, ‘The Auction System and North Sea Gas: A Comment’ (1970) 13 J. L. Econ. 45–8; P. Klemperer, ‘What Really Matters in Auction Design’, 2002 16 J. of Economic Perspectives, 169–89, and his Auctions: Theory and Practice (Princeton, NJ: Princeton UP, 2005); P. Milgrom, Putting Auction Theory to Work (Cambridge: CUP and Stanford UP, 2004). As to radio see H.J. Levin, supra n. 113; R.H. Coase, ‘The Federal Communications Commission’ (1959) 2 J. L. and Econ. 1–40; C.G. Wihlborg and P.M. Wijkman, ‘Outer Space Resources in Efficient and Equitable Use: New Frontiers for Old Principles’ (1981) 24 J.L. and Econ. 23–44; G.R. Faulhaber, ‘Wireless Telecommunications: Spectrum as a Critical Resource’ (2006) 79 S. Cal. L. Rev. 537–60; P.S. Ryan, ‘Application of the Public-Trust Doctrine and Principles of Natural Resource Management to Electromagnetic Spectrum’ (2004) 10 Mich. Telecomm. and Tech. L. Rev. 285–372 (http://www.mttlr.org/volten/Ryan. pdf); G.L. Rosston and J.S. Steinberg, ‘Using Market-based Spectrum Policy to Promote the Public Interest’, 1997 50 Fed. Comm. L.J. 87–116; R.E. Hundt and G.L. Rosston ‘Communications Policy for 2006 and Beyond’ 2006 Fed. Comm. L.J. 1–35. A. Grunwald, ‘Riding the US wave: spectrum auctions in the digital age’ (2001) 25 Telecommunications Policy 719–28; T.M. Valletti, ‘Spectrum Trading’ (2001) 25 Telecommunications Policy 655–70; R. Frieden, ‘Balancing Equity and Efficiency Issues in the Management of Shared Global Radiocommunication Resources’ (2003) 24 U. Pa. Int. Econ. L. 289–327; J.C. Thompson, ‘Space for Rent: The International Telecommunication Union, Space Law and Orbit/Spectrum Leasing’ 1996 62 J. Air L. and Comm. 279–311, at 308–9 [Lyall/Larsen, 375–407 at 404–5]. 172 �� I. Coe, ‘Legal Issues surrounding Spectrum Auctions’ (1998) 41 Proc. IISL. 194–204. As to the UK see: the Wireless Telegraphy Act 1998 ss. 1 and 3 permitting the use of auctions, and the related Ofcom material: http://www.ofcom.org.uk/radiocomms/, and the spectrum awards home-page http://www.ofcom.org.uk/radiocomms/spectrumawards/. For earlier material at http://www.ofcom.org.uk/static/archive/spectrumauctions/index. htm. On the working of a UK auction see ‘The Auction of Radio Spectrum for the Third Generation of Mobile Telephones’, National Audit Office, Report by the Comptroller and Auditor General, 2001–2002, HC 233, 19 October 2001: Cf. L. Green of the then UK Radiocommunication Agency: ‘The UK Approach to Spectrum Valuation and Pricing’ at http://www.ofcom.org.uk/static/archive/ra/topics/spectrum-price/documents/idee.htm. Since 1993 the US Federal Communication Commission can, and sometimes must, use an auction process, that is competitive bidding for spectrum assignments and other decisions internal to the US (47 U.S.C. § 309(j) as amended), and has done so. For FCC data on auctions, see http://wireless.fcc.gov/auctions/default.htm?job=auctions_home. For a ‘space’ example involving both spectrum and orbit see In the Matter of Auction of Direct Broadcast Satellite Licenses, 19 FCC Rcd. 820; 2004 FCC LEXIS 173, Release Number FCC 04-8, adopted 5 January 2004, released 15 January 2004. The auction involved

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spectrum trading.173 It would be unlawful for a state to auction space frequencies with accompanying satellite orbits. That would amount to an appropriation of space contrary to OST Art. II.174 However, the international auction of spectrum and orbits may be a way forward for the future.175 However, if such a step is taken, the ITU must once more be reformed – towards becoming a World Communications Commission.176 We recognise that it is unlikely that in the foreseeable future the assignment of radio frequencies and orbits would be given to any international body on a global basis.177 However, it is necessary that decisions as to space assignments should take full account of the world public interest. At present a state notifies an assignment based on the needs commercial and otherwise of its national entities or those for which it has notifying responsibilities.178 ITU-R duly processes these assignments for conformity to the Table of Allocations (RR Art. 5), and for any question of ‘harmful interference’. We are of the view that the general world public interest should also be a factor.179 related DBS orbital positions assigned to the US by the 1983 ITU Regional Administrative Radio Conference. However, the FCC may not use competitive bidding for the provision of international or global satellite communications services: see § 647, Open-Market Reorganisation for the Betterment of International Telecommunications Act, 2000, the ‘ORBIT Act’; Pub. L. no. 106–80, 114 Stat. 48, § 647, codified at 47 USC § 765f. To auction non-DBS satellite orbits and slots would be internationally unlawful. See also text at n. 174. 173 �� The UK is investigating spectrum trading. See ‘Spectrum Framework Review for the Public Sector’ Ofcom, 31 January 2008: http://www.ofcom.org.uk/consult/condocs/ sfrps/statement/statement.pdf. 174 �� Cf. S. Mosteshar, ‘Development of the Regime for the Low Earth Orbit and the Geostationary Orbit’, in G. Lafferanderie and D. Crowther, eds, Outlook on Space Law over the next 30 Years (The Hague: Kluwer, 1997) 81–106 at 102–3. 175 �� Cf. Roberts, supra n. 145, at 1135–41. 176 �� F. Lyall, ‘The International Telecommunication Union: A World Communications Commission?’ (1994) 37 Proc. IISL 42–7, and ‘The Role of the International Telecommunication Union’, in Lafferanderie (supra n. 174) 253–67 at 265–7. 177 �� We note that within the European Union steps are being taken which will lead to ‘Europe’ constraining the assignment decisions of its members: L.-J. Smith and K. Levy, ‘Regulation of access to limited resources in [the] telecommunications sector in Europe’ (2005) 48 Proc. IISL 443–53. Cf. Final Acts of the CEPT T-DAB Planning Meeting(4) (the Maastricht 2002 Special Arrangements) (http://www.ero.dk/Maastricht-e) as revised at Constanza, 2007 (see revisions at http://www.ero.dk/C550FB2E-CD61-46EA-87E69B9F2E71B538?frames=no&) (huge original in French and German) and the related (UK) Ofcom, Report by Mason Communications Ltd, ‘International interference analysis for future use of 1452–1492MHz Range’ 31 January 2008: http://www.ofcom.org.uk/consult/ condocs/1452-1492/analysis/analysis08.pdf. 178 �� Thus the US notifies for INTELSAT, the UK for INMARSAT and France for EUTELSAT. See Chapter 11. 179 �� Cf. citations supra n. 169. We understand that the FCC is required to consider world interest in its decisions as to assignments, sed quare.

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The ITU should be able to disallow a proposed assignment on the ground that the general world interest is not well served by it, to limit the duration of the assignment or to allow its registration subject to cancellation when/if a better use is later proposed. This is a development which may be permitted by the future space law we consider in our final chapter.

Chapter 9

Orbits, Direct Broadcasting and Solar Power As we have seen in Chapter 8, communication with a satellite is extremely important for tracking, telemetry and control as well as its use for its intended purpose. This chapter deals with the correlative matter of satellite orbits before turning to two particular uses of space; direct broadcasting, which happens now, and solar power beamed from space, which may happen. Apart from Earth orbits there are, of course, trajectories that take space objects out of Earth orbit. These are used by science probes, and some legal rules have relevance for them. However, this chapter is concerned with Earth orbits and aspects of their use. Orbits General Most satellites are in Low Earth Orbit (LEO) (c. 100–500 km/65–310 miles) taking some ninety-plus minutes for each orbit. LEOs vary from the plane of the equator to polar orbits. Such orbits are roughly circular, their perigee and apogee (low and high points) being comparable. LEO orbits lie below the Van Allen radiation belts and hence are to a degree protected from solar radiation. Satellites in LEO are mostly used for scientific and remote sensing purposes, although some communications systems also make use of them and the International Space Station (ISS) is in LEO. A Highly Elliptical Earth Orbit (HEO) has a wide �� L. Perek, ‘Deep Space at WARC ORB-88’ (1989) 32 Proc. IISL 255–8. Relevant rules include the registration of space objects (see Chapter 4), the use of radio frequencies (see Chapter 8) the use of nuclear power sources and the contamination of outer space (both Chapter 11). See also Chapter 6, p. 153 ff. �� The average working life of a LEO satellite is five years. �� All LEO commercial communications providers are US-based. The Iridium constellation is composed of some sixty-six satellites, with additional back-up spares in orbit. Apart from commercial users it is also used by the US Department of Defense. See http://www.iridium.com/. Other LEO communications providers are Orbcomm, a twentynine satellite constellation (http://www.orbcomm.com/) and Globalstar, a forty satellite system (http://www.globalstar.com/). See Chapter 11, p. 379.

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variation between perigee and apogee. In their apogee phase HEOs can remain visible from a point on Earth for up to twelve hours, and some such are used inter alia by communication satellites (e.g. the Russian ‘Moliyna’ series in the INTERSPUTNIK system). Some Molyina orbits and those of the US GPS system are geosynchronous without being geostationary – that is, their orbits match the Earth’s sidereal rotation with the effect that they return to the same place in the sky at the same time each day. A Medium Earth Orbit (MEO) (or an Intermediate Circular Orbit (ICO)) lies between 2000 and 35,000 km (1240–21,750 miles) and a satellite in MEO takes anything from two to twelve hours to complete an orbit. MEOs are used mainly for global positioning satellite configurations, though they are also used for some communications satellites. The already mentioned Geosynchronous Orbit (GO) is one in which a satellite returns to the same position relative to a point on the Earth each day. Of these the best-known is the Geostationary Orbit (GSO), an eastward circular orbit some 35,786 km/22,236 miles above the equator. It is largely used for communications and remote sensing (mainly meteorological) satellites. A ‘parking orbit’ or ‘transfer orbit’ may be a LEO or a MEO and is used temporarily after launch before a satellite or space probe is put on its final trajectory. A speciality of these orbits is the Geostationary Transfer Orbit (GTO), an elliptical orbit with a LEO perigee and GSO apogee. Its name indicates its function. A ‘graveyard’ ‘disposal’ or ‘junkyard’ orbit is normally higher than the geostationary and is used for satellites which it would be too expensive or difficult to de-orbit to Earth at the end of their useful life. As noted in Chapter 10, defunct satellites with radioactive power sources onboard are to be placed in a ‘sufficiently high’ orbit, normally beyond the GSO, and the ITU Radiocommunication Sector Recommendation S.1003-1 (01/04) on ‘Environmental Protection of the Geostationary-satellite Orbit’ requires that states ensure that at the end of their useful lifetime geostationary satellites are transferred to a ‘supersynchronous graveyard orbit’ which does not intersect with the GSO.

�� ITU Radio Regulations Art. 1.188 ‘geosynchronous satellite: An Earth satellite whose period of revolution is equal to the period of rotation of the Earth about its axis’. Cf. in Chapter 11 – ‘Intersputnik’ and Chapter 12. �� A satellite in a suitable MEO can provide communications facilities for the North and South Polar areas as can a LEO configuration. The GSO will not. �� ITU Radio Regulations, Art. 1.189: ‘Geostationary satellite: A geosynchronous satellite whose circular and direct orbit lies in the plane of the Earth’s equator and which thus remains fixed relative to the Earth; by extension, a geosynchronous satellite which remains approximately fixed relative to the Earth’. �� See Chapters 7 and 10. The GSO is also used for communications intercept monitoring satellites, e.g. the UK Skynet facility. �� This Recommendation was first adopted in 1993 as ITU-R S. 1003 (04/93). The revision of 2004 incorporates IADC originating protocols for the calculation of the new orbit. �� See Chapter 4, p. 97. See infra pp. 294, n. 84, 303–4 at n. 121 ff.

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Access to orbits used not to be a matter of contention because ‘space’ is so large. However, this is changing. Orbital positions that remain ‘constant’ with respect to the Earth are of greater interest than others. Because positions on the GSO remain constant with respect to the surface of the Earth, they are attractive for both scientific and commercial purposes. For science several of the Lagrange points are important. The question of access to Lagrange points or GSO slots emerges as these become congested. GSO, MEO and LEO orbits as well as those well out into inter-planetary space are available on a ‘first come, first served’ basis. The only control currently existing is exercised through the ITU procedures outlined below and in Chapter 8. In the future proposals as to space traffic management should be implemented.10 Some orbits are becoming congested, and the threat of the proliferation of debris from defunct satellites and other sources is real.11 Lagrange Points There are five astronomic Lagrange points. Joseph-Louis Lagrange, for whom they are named, was a French mathematician who, working on the ‘three body problem’ in 1772, inter alia discovered that the position of a third body of negligible mass will remain relatively static relative to two other considerably larger bodies that themselves are in near-circular orbits. A number of Lagrange points in the solar system have been identified as various solar bodies are in appropriate mutual configuration. The Sun–Earth Lagrange Point L-1 lies between the Earth and the Sun and has been used by two scientific satellites, SOHO and ACE.12 Sun–Earth Lagrange Point L‑2 lies beyond the Earth, and is the site for various probes, including in due course the new James Webb Space Telescope when it is launched.13 Lagrange Point L-3 is on the other side of the Sun in the Sun–Earth configuration and at present has no planned use. Sun–Earth Lagrange Points L-4 and L-5 are 60° ahead and behind the Earth in its orbit and are not at present of great interest. Of greater interest are Lagrange Points L-4 and L-5 in the Moon–Earth configuration (sometimes known as the Trojan points) which are 10 �� See Chapter 10 – Space Traffic Management, p. 300. 11 �� See Chapter 10 – Space Objects in Orbit at p. 296 and Space Debris at p. 301. 12 �� The NASA/ESA Solar and Heliospheric Observatory (SOHO) project has placed a Sun observation satellite in halo orbit at Sun–Earth L-1. (A halo orbit orbits the Li-1 point and requires occasional correction.) The NASA Advanced Composition Explorer (ACE) satellite is in a Lissajous orbit round the same point and is sampling the space environment round it. (A Lissajous orbit requires occasional correction but less than a halo orbit.) See also the Stereo Mission: http://www.nasa.gov/mission_pages/stereo/main/index.html; and the Hinobe (Solar B) Missions: http://solarb.msfc.nasa.gov/. 13 �� Already located at Moon–Earth L-2 the NASA Wilkinson Microwave Anisotropy Probe (WMAP) is measuring the residual effects of the ‘Big Bang’. The Herschel Space Observatory and the Gaia Probe (three-dimensional star mapping) are scheduled to be located in Lissajous orbit at Moon–Earth L-2 in 2008 and 2011 respectively.

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60° ahead and behind the Moon in its orbit of the Earth. Satellites located at these points, or in halo or Lissajous orbits round them, are relatively stable,14 and could be of use either for scientific purposes or for Earth–Moon telecommunications from some of the parts of the Moon not normally visible from the Earth.15 The Lagrange points that are practicably usable given present technology and current plans are subject to the basic legal dogma that outer space is not subject to national appropriation (OST Art. II).16 Since a satellite situated at any Lagrange point is useless without radio links, their use is dependent on ITU regulations and procedures which we will outline below in relation to the GSO.17 The Geostationary Orbit The geostationary orbit (GSO) is a circular torus at c. 35,786 km. (22,236 miles) in the plane of the equator.18 While the GSO is a variety of the geosynchronous orbit, it is not to be confused with that configuration.19 Within it a satellite in eastward orbit remains apparently stationary relative to points on the surface of the Earth, although for technical reasons such a satellite does have to be regularly corrected in its orbital positioning.20 First identified by Herman Potočnik (1892–1928),21 the GSO was suggested by Arthur C. Clarke in 1945 as a suitable 14 �� ‘Relatively stable’ – satellites in both orbits do require occasional correction through the use of on-board propellants. Eventually such will be exhausted and the satellite will become uncontrollable. Obviously before that a satellite should be re-located to a parking or a destruction orbit. 15 �� E. Schmid, ‘Lunar Far-Side Communication Satellites’, NASA Technical Note: TN D-4509, June 1968: http://ntrs.nasa.gov/archive/nasa/casi.ntrs.nasa.gov/19680015886_ 1968015886.pdf. A Lissajous orbit at L-1 was used between 2001 and 2004 for the Genesis probe, which was collecting material from the solar wind. The returned element of the probe crashed on its return to Earth on 8 September 2004 but some material was recovered. See the Genesis Mission home-page: http://www.genesismission.org. 16 �� L.D. Roberts, ‘The Law of the Commons: A Framework for the Efficient and Equitable Use of the Lagrange points’ (1990) 6 Conn. J. Int. L. 151–72. 17 �� See also Chapter 8. 18 �� ‘Physical Nature and Technical Attributes of the Geostationary Orbit’ COPUOS Secretariat Study A/AC.105/203 (1977), with Add. 1 (1978), Adds 2 and 3 (1979), Add. 4 (1983) and related Corrections. 19 �� See supra at n. 7. 20 �� GSO satellites that run out of propellant before being relocated to a graveyard orbit tend to drift to positions 60°E and 60°W – the Lagrange positions on the GSO. Cf. R. Jehn and C. Hernandez, ‘International Practices to Protect the Geostationary Ring’ (2001) 1 Space Debris, 221–33; C. Hernandez and R. Jehn, ‘Classification of Geostationary Objects’ (2001) 1 Space Debris, 235–337; L. Perek, ‘Space Debris at the United Nations’ (2002) 2 Space Debris, 123–36. 21 �� Writing under the pseudonym Hermann Noordung, in 1928 Herman Potočnik published The Problem of Space Travel – The Rocket Motor (Berlin: Schmidt and Co., 1928), which envisaged a geostationary orbital space station from which the

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location for a telecommunications satellite system and much modern international telecommunications and direct broadcasting remain dependent on satellites in GSO.22 Although telecommunications are a principal use of satellites on the GSO, they are also used for Earth observation, notably meteorology and, it is understood, electronic and other surveillance.23 The GSO is a good location for many satellite systems. However, because the inhabitable parts of the Earth are not distributed evenly round the globe, certain parts of the GSO are in considerable demand.24 A system using low Earth orbiting satellites has the problem of requiring its ground stations to track satellites as they pass through the visibility of the ground stations. Uninterrupted service requires tracking accuracy maintained by at least two antennae dishes each to catch each satellite in the system configuration as it rises above the horizon, with perhaps a third antenna to provide backup. A geostationary system is much simpler as the transmitting/receiving antenna points to a fixed location or arc on the geostationary orbit.25 This also avoids the problem of signal frequency variation caused by a LEO satellite approaching and then receding from the ground station.26 Points north and south of 82° can not be reached by GSO signals because the Earth is an oblate spheroid not a sphere. That particular arcs of the GSO are in demand has caused problems of access, Such problems were early recognised,27 and over the years many technical studies have investigated how satellites could be located closer to each other in these arcs.28 Earth might be observed for civil and military purposes. He did not suggest its use for telecommunications. A version of his book is at http://www.hq.nasa.gov/office/pao/ History/SP-4026/contents.html. 22 �� A.C. Clarke, ‘Extra-terrestrial Relays: Can Rocket Stations Give World-Wide Radio Coverage?’ Wireless World (October 1945), 303–308. As to telecommunications from GSO see infra, ‘Direct Broadcasting’ and Chapter 7. 23 �� See Chapter 13, re Meteosat and EUMETSAT. 24 �� A. Kogan et al. ‘Stagnating Orbits and Constellations for Communications Applications’ (2004) 54 Acta Astronautica 281–94. For a visual representation of the GSO see the NASA site: http://science.nasa.gov/realtime/jtrack/3d/JTrack3D.html. Adjust to see the GSO from above either pole. 25 �� Cf. materials cited n. 66 infra. 26 �� Cf. the sound of an approaching and receding train. 27 �� K.G. Gibbons, ‘Orbital Saturation: The Necessity for International Regulation of Geosynchronous Orbits’ (1979) 9 Cal. W. Int. L.J. 139–56; C.R. Stevens, ‘The Geostationary Orbit: The Need for an Integrated Policy’ (1995) 23 J. Sp. L. 183–95; S. Cahill, ‘Give Me My Space: Implications for Permitting National Appropriation of the Geostationary Orbit,’ (2000) 19 Wis. Int. L.J. 231–48; J.C. Thompson, ‘Space for Rent: The International Telecommunication Union, Space Law and Orbit/Spectrum Leasing’ (1996) 62 J. Air L. and Comm. 279–311 [Lyall/Larsen 375–407]; G.C.M. Reijnen and W. de Graaf, The Pollution of Outer Space in Particular of the Geostationary Orbit (Dordrecht: Nijhoff, 1989). 28 �� See COPUOS ‘The Feasibility of Obtaining Closer Spacing of Satellites in the Geostationary Orbit’, A/AC.105/340 (Rev. 1) 1985; (1985) 13 J. Sp. L. 76–101. Cf. P. Abdurrasyid, ‘The Outer Space Treaty and the Geostationary Orbit’ (1987) 12 AASL 131.

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Were all satellites uniform in their design and purpose their minimum spacing could be readily arrived at to ensure they did not mutually degrade their signals and services. However the matter is made the more difficult because different satellite systems vary considerably in their technical characteristics. Polarisation of signals and directional antenna can help, but safe GSO satellite spacing is a complex question that has to be calculated for each system, and nowadays has to be taken into account and invoked in both the initial location and any subsequent relocation of satellites.29 Access to Orbit In one sense access to orbit is available to any state that either possesses the appropriate technology or can afford to purchase a launch. Freedom of access to space is provided for by OST Art. I, particularly its second paragraph, and we have argued in Chapter 3 that that is now also a principle of customary international law. The launch purchase option is, however, subject to the existing commitments and willingness of a launch provider.30 In another sense, however, controls on access to space operate through the mechanisms and procedures of the International Telecommunication Union (ITU).31 When the use of space began it was clear that the ITU had a major role to play in ensuring clear communications with and from a satellite. The 1959 ITU World Administrative Radio Conference (WARC-59) inter alia amended the ITU Radio Regulations (RR) to include definitions of an ‘earth station’, a ‘space station’, a ‘space service’ and an ‘earth/space service’.32 In 1963 an Extraordinary The issue remains on the COPUOS agenda: Report of the Committee on the Peaceful Uses of Outer Space, 2008, A/63/20, paras 188–90. 29 �� Cf. ITU-R Recommendation S.1003-1 (01/04) ‘Environmental Protection of the Geostationary-satellite Orbit’, supra at n. 8. 30 �� Cf. Secs 2 and 7 of ‘US National Space Policy 2006’: www.ostp.gov/html/US%2 0National%20Space%20Policy.pdf. See Chapter 1, p. 26. 31 �� For the ITU and its procedures see Chapter 8. Cf. J. Wilson, ‘The International Telecommunication Union and the Geostationary Orbit’ (1998) 23 AASL 241–70; A.M. Solana ‘The International Telecommunication Union and the Third World’s Quest for Equitable Access to the Orbit/Spectrum Resource’ (1984) 4 Bost. Coll. Third World Rev. 183–204. Cf. the 2008 problem encountered by Protostar-1 when it lost its initial sponsorship by Singapore and eventually was registered with the ITU via INTERSPUTNIK and Belarus. See ITU Circular Telegram CTITU 11S(SSD)O-2008003054 of 8 October 2008. 32 �� As indicated in Chapter 8, an ‘earth station’ is located ‘either on the Earth’s surface or within the major portion of the Earth’s atmosphere and intended for communication with one or more space stations; or with one or more stations of the same kind by means of one or more reflecting satellites or other objects in space’ (RR 1.63). (The contrast is with a terrestrial station, which is for terrestrial service (RR 1.62).) The definitions of ‘space station’ and ‘earth/space service’ have now been clarified by a number of definitions of different satellite services incorporated into RR 1.19 ff on ‘Radio Services’ (q.v.).

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Administrative Radio Conference (EARC-63) was devoted entirely to space matters.33 However, although the RR were thereafter amended by successive radio conferences as to radio frequency allocations and associated procedures for space services, it was not until the Minneapolis Plenipotentiary Conference of 1998 that the ITU was given formal jurisdiction in relation to the GSO and other orbits.34 Now, when a state notifies a planned frequency assignment to the ITU Radiocommunication Bureau, the notification includes data as to the proposed orbit a satellite will use.35 If we omit the references to radio frequencies, Art. 44.2 (196) of the 2006 version of the ITU Constitution states that Member States shall bear in mind that … any associated orbits, including the geostationary orbit are limited natural resources and that they are to be used rationally, efficiently and economically, in conformity with the Radio Regulations, so that countries or groups of countries may have equitable access to those orbits … taking into account the special needs of the developing countries and the geographical situation of particular countries.

The first designation of an orbit as a ‘limited natural resource’ came in Art. 33.2 of the 1973 ITU Malaga–Torremolinos Convention,36 the equivalent articles of previous conventions having dealt only with the rational use of the radio spectrum.37 However, in 1973 only the geostationary orbit was so specified, which may match up with Res. 27 of the Malaga conference as to the projected holding in 1977 of a WARC, a World Administrative Radio Conference, to plan on a world-wide basis a broadcasting-satellite service.38 As noted above, the extension of ‘limited natural 33 Partial Revision of the Radio Regulations: Final Acts of the Extraordinary Administrative Radio Conference to Allocate Frequency Bands for Space Radio Purposes, Geneva, 1963, 15 UST 887, TIAS 5603; (1964) 3 ILM 91–106. 34 �� ITU Constitution (CS) Art. 1.2.a and b (10–12), Art. 12.1.1 (78), Art. 44.2 (196). The ITU Convention (CV) Arts 11.2.a (151 and 12.2.4.a (177)) set out duties under which the Radiocommunication Sector helps secure the equitable, effective and economical use of orbits. 35 �� The ITU has three Sectors, the Radiocommunication Sector (ITU-R), the Standardisation Sector (ITU-T) and the Development Sector (ITU-D), each with a Bureau and a Director. For ITU structure and more detail see Chapter 8. 36 �� International Telecommunication Convention, Malaga–Torremolinos, 25 October 1973, 1209 UNTS 32, 255; 1975 UKTS 104, Cmnd. 6289; 28 UST 2495, TIAS 8572. 37 �� Cf. Art. 43 of the International Telecommunication Convention, Buenos Aires, 22 December 1952, 1958 UKTS 36, Cmnd. 520; 6 UST 1213, TIAS 3266: Art. 45 of the International Telecommunication Convention, Geneva, 21 December 1959, 1961 UKTS 74, Cmnd. 1484; 12 UST 1761, TIAS 4892: Art. 46 of the International Telecommunication Convention, Montreux, 12 November 1965, 1967 UKTS 41, Cmnd. 3383; 18 UST 575, TIAS 6267. 38 �� See infra as to ‘Direct Broadcasting’, and Chapter 8.

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resource’ status to all orbits came with the Minneapolis plenipotentiary in 1998. It is important, therefore, to note that the use of an orbit/resource cannot become the permanent preserve of a state or the users it licenses.39 The rational, efficient and economic use of orbits called for in Art. 44.2 (196) is a requirement laid on states. However, with the limited exception of directbroadcast satellites provided for under the WARC-ORB 1985-87 Plan, and subject to the non-permanency referred to above,40 access to an orbit works on a basis of ‘first-come, first served’.41 This notwithstanding, the last phrase of Art. 44.2 (196) of the ITU Constitution quoted above refers to ‘taking into account the special needs of the developing countries’, a phrase first introduced in Art. 33.2 (154) of the 1982 ITU Nairobi Convention.42 The impact of Art. 44.2 (196) is not confined to space matters since its full text ranges across all usage of the radio spectrum. In relation to space, however, the requirement is important for the attainment of the objectives of OST Art. I and of UNGA Res. 51/122.43 Thus RR Res. 2 (Rev. WRC03) requires states to take all practicable measures to facilitate the use of new space systems, and in particular those of developing countries.44 In addition, by ITU Convention Art. 12.2.c (166) a function of the Director of the Radiocommunication Bureau is to provide assistance to the developing countries in their preparation for Radiocommunication Conferences. The needs of these countries are thereby more likely to be reasonable, integrated with existing rules and with developments proposed by others, to be cogently expressed, and therefore more likely to be met. This will be important as progress is made towards agreeing further planning of direct-broadcast services, and perhaps of telecommunications networks.45 Even so, we note that some countries remain concerned about the use of orbits, and particularly of the GSO.46 The last phrase of Art. 44.2 (196) of the ITU Constitution refers to the taking into account of ‘the geographical situation of particular countries’. Like the question of the ‘developing countries’ this phrase was also introduced by Art. 33.2 (154) of 39 �� See RR Res. 4 (Rev. WRC-03) ‘Period of Validity of Frequency Assignments to Space Stations using the Geostationary-satellite and other Satellite Orbits. See also Chapter 8, p. 237. 40 �� See supra n. 39. 41 �� As to ‘first-come, first-served’ see Chapter 8, following nn. 131 and 144. 42 �� International Telecommunication Convention, Nairobi, 6 November 1982, 1531 UNTS 1, 1985 UKTS 33, Cmnd. 9557; US Tr. Doc. 99-6. 43 �� ‘Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries’, 4 February 1997; UNGA Res. 51/122. 44 �� ‘Equitable use, by all countries, with equal rights, of the geostationary-satellite and other satellite orbits and of frequency bands for space radiocommunication services’ RR Res. 2 (Rev. WRC-03). 45 �� See infra as to direct broadcasting. 46 �� See Report of the Committee on the Peaceful Uses of Outer Space, 2007, UNGA A/62/20 para. 162.

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the 1982 Convention.47 It could have been invoked had the ITU tackled the Tonga problem, but it was not.48 The ‘geographical situation of particular countries’ does not give those countries preferential rights,49 but now mainly reflects the unease of some with the possibility that the best orbital slots in the GSO may be taken up on the ‘first-come, first-served’ basis by others before they have the ability to get there. This unease is most manifest in the Bogota Declaration of 1976. The Bogota Declaration Not all states have accepted that the GSO is available for use by any state that has the capacity to do so.50 In the Declaration of the First Meeting of the Equatorial States, Bogota, 1976,51 seven equatorial states, Colombia, Congo, Ecuador, Indonesia, Kenya and Zaire, with Brazil as an observer, asserted rights in the GSO above their respective territories. The argument was that the geostationary synchronous orbit is a physical fact linked to the reality of our planet because its existence depends exclusively on its relation to gravitational phenomena generated by the Earth, and that is why it must not be considered part of the outer space. Therefore, the segments of geostationary synchronous orbit are part of the territory over which Equatorial states exercise their national sovereignty.

The logic of such a statement is obscure, but bears a similarity to the ‘sector’ claims of Chile and Argentina to parts of Antarctica. As is clear from various statements within it, the trigger for the Declaration was the increasing use being made of the geostationary orbit slots by the developed countries, and the failure of attempts by the equatorial states to be recognised as having a special interest

47 Supra n. 42. 48 �� As to Tonga see Chapter 8, p. 238. Tonga had no need for its own communications needs for the assignments it initially notified, nor for all those it ended up with, and its geographical position did not justify its claims. 49 �� S. Gorove, The Geostationary Orbit: Issues of Law and Policy’ (1979) 73 AJIL 444–61 [Gorove, 35–52]; R.S. Jakhu, ‘The Legal Status of the Geostationary Orbit’ (1982) 7 AASL 333–51. The 1985 WARC decided that it lacked competence to deal with the claims of equatorial countries made in the Bogota Declaration (infra) on the ground that the claim was a question of law and not one of planning. See Smith, infra n. 50. The developing countries were earlier vocal in the 1979 WARC: G.O. Robinson, ‘Regulating the Airwaves: The 1979 WARC’ (1980) 21 Virg. J. Int. L. 1–54. 50 �� M.L. Smith, ‘Space Law/Space WARC: An Analysis of the Space Law Issues raised at the 1985 ITU World Administrative Radio Conference on the Geostationary Orbit’ (1986) 8 Houston J. Int. L. 227–45 at 230–6 and 236–8. 51 �� Declaration of the First Meeting of the Equatorial States, Bogota, 1976, (1978) 6 J. Sp. L. 193–6; Manual 2: 383–7. See also Chapter 3, p. 61.

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in it.52 The Declaration appeals specifically to the right of a state to control its natural resources.53 In its Sec. 3 (a) it states that the purpose of the claims to sovereignty is ‘directed towards rendering tangible benefits to their respective peoples and for the universal community, which is completely different from the present reality when the orbit is used to the greater benefit of the most developed countries’. At the time of the Declaration discussions within the ITU were grappling with the problems of geostationary orbital slots.54 Of course, by 1976 the OST had been in force for nine years. Three parties to the Declaration, Brazil, Ecuador and Uganda, had by then ratified the OST, and Indonesia and Zaire had signed it. The others, Colombia, the Congo and Kenya, were neither parties nor signatories to the OST at that time.55 The signatories of the Declaration which were OST parties or signatories had therefore the problem of the prohibition of sovereign claims in OST Art. II. This was confronted in Part 4 of the Declaration, which says that the OST: cannot be considered as a final answer to the problem of the exploration and use of outer space, even less when the international community is questioning all the terms of international law which were elaborated when the developing countries could not count on adequate scientific advice and were thus not able to observe and evaluate the omissions, contradictions and consequences of the proposals which were prepared with great ability by the industrialized powers for their own benefit.

It then goes on to state that there is ‘no valid or satisfactory definition of outer space which may be advanced to support the argument that the geostationary orbit is included in the outer space’. A juridical definition of outer space was therefore needed: without which the implementation of the Treaty of 1967 is only a way to give recognition to the presence of the states that are already using the geostationary orbit. Under the name of a so-called non-national appropriation, what was 52 �� Christol, 463–533 with its notes traces the debate down to its date. 53 �� In particular citing ‘Permanent Sovereignty over Natural Resources’, UNGA Res. 2692 (XXVII) of 1970, and the ‘Charter of Economic Rights and Duties of States’ UNGA Res. 3281 (XXIX) of 1974, (1975) 14 ILM 251. Apart from these the UN General Assembly had adopted a number of Resolutions on the topic of Permanent Sovereignty – see GA Res. 1803 (XVII) of 1962, (1963) 57 AJIL 710, 1963 2 ILM 223; Res. 2158 (XXI) of 1966; Res. 2386 (XXIII) of 1968, Res. 2625 (XXV) of 1970; Res. 2692 (XXV) of 1970; Res. 3016 (XXVII) of 1972; Res. 3171 (XXVIII), (1974) 13 ILM 238. 54 �� See Chapters 3 and 8, on the argument within the ITU as to ‘first come, first served’ v ‘engineered spectrum’. 55 �� By 2008 Indonesia (2005) and Kenya (acceded 1984) had ratified, and Colombia (1967) and the Democratic Republic of the Congo (1967, formerly Zaire) had signed the OST.

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actually developed was technological partition of the orbit, which is simply a national appropriation, and this must be denounced by the equatorial countries.

The argument continues that experience and foreseeable developments show omissions in the OST and ‘force the equatorial states to claim the exclusion of the geostationary orbit’. Because the OST does not define or delimit outer space, that ‘implies that Article II should not apply to geostationary orbit and therefore does not affect the right of the equatorial states that have already ratified the Treaty’. The equatorial states therefore declared that, since the synchronous geostationary orbit was a natural resource lying above their territories,56 they each had sovereign rights in the portion of that orbit above their respective territories,57 and that they would press for recognition of their claims in appropriate fora.58 By Part 3(d) of the Declaration they asserted that the placing of a satellite in a geostationary orbit above one of their territories required ‘prior and express authorisation’ by the subjacent state, and that the operation of such a satellite had to be in accordance with the national regulations of that state. Such permission was considered to be entirely separate from any question of compliance with ITU rules and procedures. Thirty years on from these statements we would note that the Bogota claims still surface in reservations made by some equatorial states to the ITU Final Acts, but, while such serve to showcase dissatisfaction by developing countries as to their access to and benefit from space activities, in practice the Bogota claim to sovereignty is overstated and unhelpful.59 No space-competent state has accepted its validity or complied with its requirements for permission to place a satellite in a geostationary orbital slot claimed by an equatorial state to be under its jurisdiction.60 Its arguments have failed to convince the generality of states or commentators. The synchronous geostationary orbit is not a simple matter of gravity as the Declaration asserts but is dependent on many physical factors.61 It makes no sense to have a claim of sovereignty in space that applies 56 �� As noted earlier, CS Art. 44.2 (196) specifies the geo-stationary orbit as one of the limited natural resources that states should use ‘rationally, efficiently and economically’. 57 �� An application of the ‘lighthouse’ principle? See Chapter 6. 58 �� Thus the signatories of the Bogota Declaration have made reference to their claims in successive reservations to their signatures to Final Acts of the ITU conferences. Corresponding counter-reservations have been made by the developed countries, including the US and UK. 59 �� G. Zhukov and Y. Kolosov (trans. B. Belitzky), International Space Law (New York: Praeger, 1984) 155–60; T. Gangale, ‘Who Owns the Geostationary Orbit?’ (2006) XXXI AASL 425–46. See also Gorove (supra n. 49) at 450–5; text supra at n. 47; Chapters 3 and 8. 60 �� Cf. J.I. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’ (1985) 56 BYIL 1–24. 61 �� A. Gorbiel, ‘The Legal Status of the Geostationary Orbit: Some Remarks’ (1978) 6 J. Sp. L. 171–7. Note also para. 118 of COPUOS Doc. A/AC.105/697 (1998) that in

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to the geostationary orbit torus but not to orbital areas below it where claims of sovereignty are not recognised.62 The legal status of the geostationary orbit cannot be different from that of any other part of space. The general principles of the OST do not permit such claims, and, though its proponents persist in their reference to the Declaration, it is probably to be considered more as a bargaining chip in the continuing quest by developing countries to achieve/receive a greater degree of benefit from space.63 The only realistic role for the equatorial states based on their location would appear not to lie in claims to the GSO but in acting as ground tethers, or bases, for the Space Elevator.64 That said it has been recognised that the efficient use of the geostationary orbit does require rules, and, to some extent, the a priori planning that has been done for direct satellite broadcasting purposes.65 Direct Satellite Broadcasting A major service provided by satellite is that of direct broadcasting (DBS), mainly television programming. Such services are commonly broadcast from satellites in discussions it should be accepted that (a) the orbit of all satellites included in the GSO is largely dependent on gravitational effects generated by the whole Earth, (b) a satellite in GSO orbit is not at a fixed point over the surface of the Earth between the corrective impulses needed for its station-keeping, but is in natural flight and is acted on by gravities of the Earth, Moon and Sun. This was later agreed by COPUOS main committee: see its 1998 Report to the General Assembly A/53/20, para. 107. 62 �� The analogy to a territorial claim beyond an area of high seas is not persuasive. 63 �� Cf. Art. I of the OST, and the UN Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, 4 February 1997; UNGA Res. 51/122. As to any reference to the ‘geographical situation of particular countries’ see supra at n. 49. 64 �� Cf. A.C. Clarke, The Fountains of Paradise (1979). P. Tobias, ‘Opening the Pandora’s Box of Space Law’ (2005) 28 Hastings Int. and Comp. L. Rev. 299–318 at 301–5; G.H. Reynolds, ‘International Space Law in Transition: Some Observations’ (2005) 6 Chic. J. Int. L. 69–80 at 77–9. B.C. Edwards, ‘The Space Elevator Development Program’ (2005) IAC-04-IAA.3.8.2.01: http://www.spaceelevator.com/docs/iac-2004/iac-04-iaa.3.8.2.01. edwards.pdf. D.V. Smitherman, ‘Critical Technologies for the Development of Future Space Elevator Systems’ (IAC-05-D4.2.04): http://ntrs.nasa.gov/archive/nasa/casi.ntrs. nasa.gov/20060000015_2005248072.pdf. See also www.spaceelevator.com. Cf. ‘Space Elevators: An Advanced Earth–Space Infrastructure for the New Millennium’, NASA/CP2000-210-429, 2000. 65 �� L.D. Roberts, ‘A Lost Connection: Geostationary Satellite Networks and the International Telecommunication Union’ (2000) 15 Berkeley Tech. L.J. 1095–1144; M.S. Soroos, ‘The Commons in the Sky: the Radio Spectrum and Geosynchronous Orbit as Issues in Global Policy’ (1982) 36 Int. Org. 665–77; R.S. Jakhu, ‘Legal Issues of Satellite Telecommunications, The Geostationary Orbit and Space Debris’ (2007) 5 Astropolitics, 173–208.

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geostationary orbit, thus avoiding any need for tracking by the ground antenna.66 In most parts of the world TV programming is therefore now accessible by individual households using an appropriate dish aerial and, where necessary, decoders. Some broadcasters encrypt their signals, but many do not and most satellite providers carry TV channels from a number of sources.67 In addition in parts of the world, notably North America, radio broadcasting by satellite is increasing.68 In short, the availability of information and entertainment through satellite telecommunications has vastly increased, and looks likely to continue so to do. Direct satellite broadcasting presents two major problems. One is access to and the use of geostationary or other orbital positions together with appropriate radio frequencies. As to the first of these, frequencies are available under the ‘firstcome, first-served’ basis discussed in Chapter 8 and the matter of orbital locations is covered earlier in this chapter.69 However, pressure from countries apprehensive of the dominance of the space-competent states led to some planning of the direct-satellite broadcasting system. The matter was first raised in the 1970s, and eventuated in the provisions of ITU WARC-ORB 1985–87, which allotted for all 66 �� A. Chayes and L. Chazen, ‘Policy Problems in Direct Broadcasting from Satellites’ (1970) 5 Stan. J. Int. Stud. 4–20; B.A. Hurwitz, ‘The Labyrinth of International Telecommunications Law: Direct Broadcast Satellites’ (1988) 35 Neth. Int. L. Rev. 145–80; Zhukov, supra n. 59, 127–36; A.S. Piradov, International Space Law (Moscow: Progress, 1976) 182–96. Cf. In the Matter of Inquiry into the Development of Regulatory Policy in Regard to Direct Broadcast Satellites for the Period Following the 1983 Regional Administrative Radio Conference (1982) 90 FCC 2d 676 and later developments. See also Georgetown Space Law Group, ‘DBS under FCC and International Regulation’ (1984) 37 Vand. L. Rev. 67–144; and P.B. Larsen, et al. ‘Direct Broadcast Satellites: National and International Regulation’ (2004) 8 Modern Legal Systems Cyclopedia. 67 �� See, for example the channels carried by SES-Global, Astra and associated SES companies: www.ses-global.com/ses-global/index.php and www.ses-astra.com/corpSite/ site_en/index.php; by EUTELSAT (a fifty page list): www.eutelsat.com/products/pdf/ tvlineup.pdf; by Thaicom: www.mlesat.com/Thaicom.html; or by PALAPA: http:// satelindo.boleh.com/index.jsp. The website http://www.satsig.net/ provides a very full listing of satellite signal frequencies including those of direct broadcast services. See also Chapter 11. 68 �� The starting point of US regulation of satellite radio services is the 1979 First Report and Order In the Matter of Regulation of Domestic Receive-only Satellite Earth Stations, CC Docket no. 78-374; 74 FCC 2d 205; 46 Rad. Reg. 2d (P and F) 698; FCC 79-665, adopted 18 October and released 7 November 1979. See also In the Matter of Amendment of the Commission’s Rules with regard to Establishment and Regulations of New Digital Audio Radio Services, Docket no. 90-357, 1990 5 FCC Rcd 5951; ibid. 1992 7 FCC Rcd 7776; 76 Rad. Reg. 2d (P and F) 1489; ibid. 1995 10 FCC Rcd 2310; 76 Rad. Reg. 2d (P and F) 1477. For application of the new rules see In the Matter of Digital Audio Broadcasting Systems and their Impact on the Terrestrial Radio Broadcast Service; MM Docket no. 99–325, 1999 15 FCC Rcd 1722; ibid. 2002 17 FCC Rcd 19990; 27 Comm. Reg. (P and F) 777l ibid. 2004 19 FCC Rcd 7505. 69 �� See supra n 41.

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states locations within a 10° orbital slot on the GSO for direct-broadcast purposes together with uplink and downlink frequencies.70 This Plan has subsequently been revised, most recently at the ITU WRC-2003. The Plan and related procedures also allow for the inclusion of new ITU members.71 It may be in the future that these arrangements will be supplemented by regional arrangements.72 The other, and a major problem presented by satellite broadcasting, relates to its content.73 Balancing the control of content with freedom of expression has produced domestic legislation in most countries,74 as well as regional agreements 70 �� R.S. Jakhu, ‘The Evolution of the ITU’s Regulatory Regime Governing Space Radicommunication Services and the Geostationary Satellite Orbit’ (1983) 8 AASL 3814-7; R.S. Jakhu, J.L. Magdelénat and H. Rousselle, ‘The ITU Regulatory Framework for Satellite Communications: and Analysis of Space WARC 1985’ (1987) Int. J. 276–88; Smith, supra n. 50. 71 �� See now RR Apps. 30, 30A and 30B. Procedures by which a new ITU member state can enter the allotment plan are contained in RR App. 30B, Art.7. See also Chapter 8, p. 234. 72 �� Plans and regional agreements for the broadcast satellite service are in contemplation: see ‘Establishment of Agreements and Associated Plans for the Broadcasting-satellite Service’ RR Res 507 (Rev.WRC-03) and Chapter 8, c. n. 135. 73 �� Cf. A.C. Clarke, ‘I Remember Babylon’ (1960), Arthur C. Clarke: The Collected Stories (London: Gollancz, 2000) 702–10, where the possibility of the moral fibre of a nation being sapped by DBS pornography is outlined. Cf. similarly, the element which gives K. MacLeod, The Execution Channel (London: Orbit, 2007) its title. See also D. Webster, ‘Direct Broadcast Satellites: Proximity, Sovereignty and National Identity’ (1984) 62 Foreign Affairs 1161–74. 74 �� In the UK questions of content initially lie within the remit of the Office of Communications (Ofcom) (established by the Office of Communications Act 2002) acting under Secs 3 and 11–12 of the Communications Act 2003, the Communications Act 2005, Secs 263–347 and the Broadcasting Acts 1990 and 1996 as amended. Cf. Ofcom Content Sanctions Committee action against MTV, June 2008: http://www.ofcom.org.uk/tv/obb/ ocsc_adjud/mtv.pdf. In 2008 Ofcom fined Satellite Entertainment Ltd for breach of the Broadcasting Code by its SportsxxxBabes service: http://www.ofcom.org.uk/tv/obb/ocsc_ adjud/sportxxxbabes.pdf. Questions of content might raise argument as to freedom of speech under the UK Human Rights Act, 1998. In the US the FCC has powers as to content under the (US) Communications Act 1934, Public Law 416, 48 Stat. 1064, 47 USC § 151, Sec. 303 (47 USC 303). Cf. In the Matter of Complaints against various Television Licensees concerning their February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show, 4 May 2006, 21 FCC Rcd 6653, with Forfeiture Order at 21 FCC Rcd 2760, 37 Comm. Reg. (P and F) 1341; In the Matter of Complaints against various Broadcasting Licensees against their Airing of the ‘Golden Globe Awards’ Program, (2003) 18 FCC Rcd 19859, (2004) 19 FCC Rcd 4975, 32 Comm. Reg. (P and F) 78; In the Matter of Complaints Against Various Television Licensees Regarding Their Broadcast on November 11, 2004, of the ABC Television Network’s Presentation of the Film ‘Saving Private Ryan’ (2005) 20 FCC Rcd 4507; 35 Comm. Reg. (P and F) 386. Note: in the US the control of broadcasting content can raise questions of the First Amendment to the Constitution (freedom of speech). The matter is under review: see

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in various areas of the world.75 However, direct broadcasts from a satellite are not so easily made subject to control as terrestrial broadcast may be. Notwithstanding, in terms of general space law we have the Direct Broadcasting Principles of 1982, which were adopted by majority vote first in COPUOS and then in the UN General Assembly.76 The debate that led to the adoption of the Direct Broadcast Principles must be seen in the context of its time and the technicalities of such broadcasts. As to the technicalities, satellite broadcasting signals cannot be simply focussed on a particular state. The ‘footprint’ maps shown on the web-sites of various satellite broadcasters demonstrate that it is not possible to match the area of broadcast to the boundaries of a specific state. There will always be a ‘spill-over’ to adjacent states caused by the angle of the downlink radio beam meeting the curvature of the Earth.77 That also assumes that the broadcaster is not deliberately targeting a state which does not want those broadcasts to be seen or heard in its territory. Such technical constraints aggravated the political argument.78 In the later 1960s and early 1970s many new states had come into being through the dissolution of the old colonial empires. Newly emergent states were dissatisfied through finding that they had limited or no control over their natural resources thanks to contracts and concessions granted by their former colonial rulers. This was rectified through negotiation or on occasion expropriation. In part to justify what was done, the UN General Assembly adopted various Resolutions usually by majority vote.79 Another dissatisfaction among the newly emergent nations related Fox TV et al. v FCC et al. (2007) 489 F.3d 444; 35 Media L. Rep. 2325; 41 Comm. Reg. (P and F) 791; CBS et al. v FCC (2008) 535 F.3d 167; 45 Comm. Reg. (P and F) 712. The Fox case is to be considered by the US Supreme Court: FCC v Fox TV Stations, 2008 US LEXIS 2361, 17 March 2008. Cf. M. Konar-Steenberg, ‘The Needle and the Damage Done: The Pervasive Presence of Obsolete Mass Media Audience Models in First Amendment Doctrine’ (2005) 8 Vand. J. Ent. and Tech. L. 45–70. 75 �� For example, The ‘European Convention on Transfrontier Television’, Council of Europe, Strasbourg, 5 May 1989, ETS 132; 1993 UKTS 22, Cm. 2178; (1989) 28 ILM 859– 69, as amended by Protocol of 1998, CETS no. 171, and the European Council Directive Concerning the Pursuit of Television Broadcasting Activities, 1989, EC OJ no. L 298, 17 October 1989, 23–30 (1989) 28 ILM 1492–9. 76 �� ‘Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting’, 1982, UNGA Res. 37/92; (1983) 77 AJIL 733–6. 77 �� Obviously the more vertical the beam the smaller the spill-over. 78 �� Cf. G.L. Thomas, ‘Approaches to Controlling Propaganda and Spillover from Direct Broadcast Satellites’ (1970) 5 Stan. J. Int. Stud. 167–98. 79 �� ‘Permanent Sovereignty over Natural Resources’, UNGA Res. 1803 (XVII) 1962; (1963) 57 AJIL 710; (1963) 2 ILM 223; ‘Charter of Economic Rights and Duties of States’, UNGA Res. 3281 (XXIX) 1974; (1975) 14 ILM 251. Cf. the New International Economic Order resolutions: ‘Declaration on the Establishment of a New International Economic Order’ (A/9556) UNGA Res. 3201 (S-VI), 1974, and the related ‘Programme of Action’ UNGA Res. 3202 (S-VI) 1974.

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to information and the media, the balance between the media of the developed countries and those of the new states.80 While there was some justification for this dissatisfaction, it has to be said that some ‘new’ governments as well as certain older governments (largely within the Communist bloc) were anxious for political reasons to control the media within their territories, and therefore also to control what came in to their states. At the same time the development of telecommunications had made news-gathering and dissemination much easier and swifter. Direct broadcasting by satellite therefore came on to the international agenda. Of course, unacceptable radio transmissions received within a country whose government objected to such have been a matter of contention for decades. Propaganda, or what is considered to be propaganda whether political or otherwise, has always caused difficulties.81 The Preamble to the Outer Space Treaty of 1967 contains a reference to UNGA Res. 110 (II) of 1947 which condemns propaganda likely to cause a threat to peace and states expressly that the OST parties consider that it applies to space.82 The field was therefore open for action. In 1967 the UN General Assembly asked COPUOS ‘to study the technical feasibility of communications by direct broadcasts by/from satellites (DBS) and the current and foreseeable developments in this field as well as the implications of such developments’.83 COPUOS set up a Working Group on DBS which reported over the next five years.84 On the basis of the COPUOS reports the General 80 �� Cf. ‘Symposium: International Satellite Communications and the New International Information Order’ (1980–1981) 8 Syracuse J. Int. L. and Comm. particularly M. Masmoudi, ‘The New World Information Order and Direct Broadcasting Satellites’ at 322–41 (in English and French); C.Q. Christol, ‘Telecommunications, Outer Space and the New International Information Order (NIIO)’ at 343–64; S.E. Doyle, ‘International Satellite Communications and the New International Information Order: Distressing Broadcasting Satellites’ at 365–74; R.S. Jakhu, ‘Direct Broadcasting via Satellite and a New Information Order’ at. 375–90. 81 �� See H. Lauterpacht, ‘Revolutionary Propaganda by Governments’ (1927) 17 Trans. Grot. Soc. 143–64; V. Van Dyke, ‘The Responsibility of States for International Propaganda’ (1940) 34 AJIL 58–73; E.A. Downey, ‘A Historical Survey of the International Regulation of Propaganda’ (1984) 5 Mich. Y.B. Int. Leg. Stud. 341–60; J.T. Powell, ‘Towards a Negotiable Definition of Propaganda for International Agreements Related to Direct Broadcast Satellites’ (1982) 45 Law and Contemp. Probs 3–35; P. Achilleas, ‘Propaganda via Satellite’ (2002) 45 Proc. IISL 258–62. Cf. J.R. Paul, ‘Images from Abroad: Making Direct Broadcasting by Satellites Safe for Sovereignty’ (1985–86) 9 Hastings Int. and Comp. L. Rev. 329–75; Larsen, supra n. 66. 82 �� ‘Measures to be Taken Against Propaganda and the Inciters of a New War’, UNGA Res. 110 (II), 3 November 1947. 83 �� ‘Report of the Committee on the Peaceful Uses of Outer Space’ para. 13, UNGA Res. 2260 (XXII) 3 November 1967. 84 �� Christol, 605–719, covers the history down to 1981. Cf. A.E. Gotlieb and C.M. Dalfen, ‘Direct Satellite Broadcasting: A Case Study in the Development of the Law of Space Communications’ (1969) 7 Can. YBIL �� 33–60; C. Verdon and C.M. Dalfen, ‘La

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Assembly considered in 1972 that principles governing direct broadcast satellites should be elaborated with the eventual aim of an international agreement. However, this decision was incorporated in two separate and very different Assembly Resolutions, UNGA Res. 2916 (XXVII)85 and UNGA Res. 2917 (XXVII), which were adopted on the very same day.86 This is indicative of the divergent views that had emerged on the matter because in the intervening years a more general international dispute about freedom of the press vis-à-vis the control of media by government had developed and crystallised. The divergence was also shown by the tabling by the USSR at the 1972 General Assembly of a draft convention on DBS, parts of which were very much in favour of control and would have imposed international duties as to content.87 The UN agency concerned with the media and its content is the United Nations Educational, Scientific and Cultural Organisation, UNESCO.88 It also had been coopération régionale: Nouvelle voie ou impasse dans le développement du droit des satellites de radiodiffusion directe?’ (1970) �� 8 Can YBIL 19–60; C.M. Dalfen, – 1 ‘Direct Satellite Broadcasting Towards International Arrangements to Transcend and Marshal the Political Realities’ (1970) 20 U. Tor. L.J. 366–74; – 2 ‘The International Legislative Process: Direct Broadcasting and Remote Earth Sensing by Satellite Compared’ (1972) 10 Can. YBIL 186–211; J.J. Gehrig, ‘Broadcast Satellites – Prospects and Problems’ (1975) 3 J. Sp. L. 25–38; Jakhu supra n. 80. See also the Symposium on Direct Broadcast Satellites and Space Law (1975) 3 J. Sp. L. 3–98. For later see S.L. Fjordbak, ‘The International Direct Broadcast Satellite Controversy’ (1990) 55 J. Air L. and Comm. 903–38 at 907– 11; V. Kopal, ‘The Role of United Nations Declarations of Principles in the Progressive Development of Space Law’ (1988) 16 J. Sp. L. 5–20, at 10–14. The reports of the Working Group on DBS that cover legal questions are A/AC.105/117 (1973) and A.AC.105/127 (1974). 85 �� ‘Preparation of an International Convention on Principles Governing the use by States of Artificial Earth Satellites for Direct Television Broadcasting’, UNGA Res.2916 (XXVII), 9 November 1972, (1972) 11 ILM 1470; (1973) 12 ILM 229–30 gives voting data: adopted by a vote of 102 to 1 against (US), 7 abstentions, 22 absent. 86 �� ‘Preparation of an International Convention on Principles Governing the use by States of Artificial Earth Satellites for Direct Television Broadcasting’, UNGA Res. 2917 (XXVII), 9 November 1972, recalls its Res. 2448 (XXIII) (1968) on freedom of information and that the OST applies UNGA Res. 110 (II) (propaganda as a threat to peace) to outer space. It then simply notes that the work and deliberations on the ‘draft Convention on Freedom of Information’ by the UNGA ‘may be useful in the discussion and elaboration of international instruments or United Nations arrangements relative to direct television broadcasting’. 87 �� USSR Draft Convention on Principles Governing the Use by States of Artificial Earth Satellites for Direct Television Broadcasting, 1972: UN Doc. A/8771; Annex III to A/AC.105/117 (1973); (1972) 11 ILM 1375–81. 88 �� Constitution of the United Nations Educational Scientific and Cultural Organisation, London 16 November 1945; 4 UNTS 275; 1946 UKTS 50, Cmd. 6963; 61 Stat. 2495, TIAS 1580; 9 Hudson 786; 3 Bevans 1311; (1947) AJIL Supp. 1 (current text at http://unesdoc. unesco.org/images/0013/001337/133729e.pdf#page=7).

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discussing satellite broadcasting from its perspective and on 15 December 1972 adopted a ‘Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Information and Greater Cultural Exchange’.89 This Declaration contains articles expressed in the best of terms about the importance of freedom of information and the value of direct broadcasting for education and other benefits. However, in Art. IX.1 the Declaration also spoke of it being ‘necessary that states … reach or promote prior agreements concerning direct satellite broadcasting to the population of countries other than the country of origin of the transmission’. Article IX.2 stated that advertising content in such broadcasts had to be subject to prior agreement. Article IX thus implied a power vested in receiving countries to object to the content of DBS transmissions. Underlying was the notion that such control was necessary both as a recognition of the sovereignty of a state and in the preservation of its political, economic and cultural identity.90 In the later 1970s and in pursuit of such ideas a majority of UNESCO members supported the establishment of a Commission to study communications problems, particularly those relating to the mass media and to the dissemination of news. In what is now known as the ‘MacBride Report’, that Commission called for the establishment of a ‘New International Communication Order’,91 the ‘democratisation’ of communications, the strengthening of national media, and the lessening of dependence on external news sources.92 Implicit in its argument is the idea that governments should be able, and have the right, to control news and other media not only within but also entering and leaving their territories. This was attractive to many of the then members of the Non-Aligned Movement, but not to the US or the UK, which, after major disputes about the implementation of the MacBride Report, withdrew from UNESCO, protesting that such control was incompatible with the freedom of the press.93 89 �� UNESCO General Conference, Records of the 17th Sess. Res. 4.11 (1972) Vol. 1, 67–8; http://unesdoc.unesco.org/images/0000/000021/002136eb.pdf; (1973) A/ AC.105/109; (1972) 11 ILM 1475–9; (1973) 1 J. Sp. L. 161. See Masmoudi supra n. 80 at 324–32; Paul, supra n. 81 at 359–62. 90 �� Certainly, thirty-five years on, it is very evident that cultural identity can be eroded or altered by the broadcasts (particularly television) which express the norms of other cultures. Cf. the Declaration of Bogota, ‘Intergovernmental Conference on Cultural Policies in Latin America and the Caribbean’, 1978: http://www.unesco.org/culture/laws/ bogota/html_eng/page1.shtml. 91 �� Sometimes also called the ‘New Information Order’ (NIO), the ‘New World Information Order’ (NWIO) or the ‘New World Information and Communication Order’ (NWICO). 92 �� S. MacBride, Many Voices, One World: Towards a New, More Just, and More Efficient World Information and Communication Order (UNESCO and other publishers, 1980). 93 �� The US left UNESCO in 1984 and rejoined in 2005. The UK left in 1985 and rejoined in 1997. Letters as to the US withdrawal are at (1984) 23 ILM 220–30 and (1985) 24 ILM 489–9. See ‘United States’ Return to UNESCO’, Contemporary Practice of the

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Another significant step as to direct broadcasting was taken in 1974 when a Convention Relating to the Distribution of Programme-carrying Signals Transmitted by Satellite was agreed at Brussels after a number of preliminary discussions.94 The purpose was the prevention of the re-transmission of DBS and other signals by distributors who were not intended recipients and the protection of copyright (Art. 2). The Convention does not apply to the direct reception of DBS intended for reception by the public (Art. 3). However, as the Brussels Conference proceeded the USSR and others sought the amendment of the draft to include controls as to content. This was resisted but the attempt demonstrated the interest in such questions.95 In the meantime COPUOS had been at work. Its discussions reflected the division of opinion that had become apparent between the proponents of freedom of information and of the press, and those who considered state sovereignty and the preservation of political, economic and cultural identity as of overriding importance.96 Suffice it here to say that the ‘new’ states and the Communist bloc commanded a majority within COPUOS. It may also be that some ‘new’ states mistakenly thought that in the development of international rules a voting majority meant more than in fact it did or does. In any event, in a departure from consensus, the ‘Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting’ was clearly the mind of the majority within COPUOS. There being no consensus allowing COPUOS itself to present the Principles as part of its Report, they were presented to the UN General Assembly by a group of non-aligned states97 which on 10 December 1982 by a vote of

United States (2003) 97 AJIL 977–9; see also M.J. Farley, ‘Conflicts over Government Control of Information – the United States and UNESCO’ (1985) 59 Tulane L. Rev. 1071– 88; P.A. Hoffer, ‘Upheaval in the United Nations System – United States’ Withdrawal from UNESCO’ (1986) 12 Brook. J. Int. L. 161–207; C.C. Joyner and S.A. Lawson, ‘The United States and UNESCO: Rethinking the Decision to Withdraw’ (1985–1986) 41 Int. J. 37–71. 94 �� Convention Relating to the Distribution of Programme-carrying Signals Transmitted by Satellite, Brussels, 21 May 1974, 1144 UNTS 3; US Tr. Doc. 98-31, TIAS 11078; (1974) 13 ILM 1444 at 1447 (with draft Report of General Rapporteur at 1449). C.Q. Christol, ‘The 1974 Brussels Convention relating to the Distribution of Program-carrying Signals Transmitted by Satellite: An Aspect of Human Rights’ (1978) 6 J. Sp. L. 19–35. 95 �� See previous note. The proposed additional article was transmitted along with the records of the conference to the UN Secretary General for forwarding to COPUOS as being relevant to its work on DBS: see (1974) 13 ILM 1444 at 1466. 96 �� See Masmoudi and Jakhu, both supra n. 80; Webster, supra n. 73. 97 �� Not including the USSR, which some assert.

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107,98 with 13 voting against99 and another 13 abstentions100 adopted UNGA Res. 37/92 with the Principles annexed thereto. The negative votes and abstentions are important since they included all the states, other than the USSR, which were then able or likely in the nearer future to be able to launch and operate direct broadcast satellites. The legal authority of the DBS Principles compared with the other UN Space Principles is therefore diminished.101 As with the other UN Principles the Direct Broadcasting Principles have not subsequently been revised.102 The Direct Broadcasting Principles themselves are not as extreme or as mandatory as some states would have wished, and occasionally are so evenhanded that in certain areas the rights and obligations in effect cancel out. It is unexceptionable that DBS should be carried out in accordance with relevant international law (Pr. 4), that all states may engage in DBS (Pr. 5), that states bear international responsibility for DBS activities they license (Pr. 8), that disputes arising from DBS should be settled by peaceful means agreed between the parties in accordance with the UN Charter (Pr. 7), that in order to promote international cooperation the UN Secretary General should be informed of DBS activities and that 98 �� Afghanistan, Algeria, Argentina, Bahrain, Bangladesh, Barbados, Benin, Bhutan, Bolivia, Botswana, Brazil, Bulgaria, Burma, Botswana, Burundi, Byelorussian Soviet Socialist Republic, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Cuba, Cyprus, Czechoslovakia, Democratic Kampuchea, Democratic Yemen, Djibouti, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, Fiji, Gabon, Gambia, German Democratic Republic, Ghana, Guyana, Haiti, Honduras, Hungary, India, Indonesia, Iran (Islamic Republic of), Iraq, Jamaica, Jordan, Kenya, Kuwait, Lao People’s Democratic Republic, Liberia, Libyan Arab Jamahiriya, Madagascar, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Mongolia, Mozambique, Nepal, Nicaragua, Niger, Nigeria, Oman, Pakistan, Panama, Papua New Guinea, Peru, Philippines, Poland, Qatar, Romania, Rwanda, Sao Tome and Principe, Saudi Arabia, Senegal, Sierra Leone, Singapore, Solomon Islands, Somalia, Sri Lanka, Sudan, Suriname, Syrian Arab Republic, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, United Arab Emirates, United Republic of Cameroon, United Republic of Tanzania, Upper Volta, Uruguay, Venezuela, Vietnam, Yemen, Yugoslavia, Zaire, Zambia. 99 �� Belgium, Denmark, Federal Republic of Germany, Iceland, Israel, Italy, Japan, Luxembourg, The Netherlands, Norway, Spain, United Kingdom of Great Britain and Northern Ireland, United States of America. 100 �� Australia, Austria, Canada, Finland, France, Greece, Ireland, Lebanon, Malawi, Morocco, New Zealand, Portugal, Sweden. 101 �� C.Q. Christol, ‘Prospects for an International Legal Regime for Direct Television Broadcasting’ (1985) 34 ICLQ 142–58; S. Gorove, ‘International Direct Television Broadcasting by Satellite: “Prior Consent” Revisited’ (1985–86) 24 Col. J. Transnat. L. 1–11 [Gorove, 65–75]. See also Chapter 2, p. 43. 102 �� In 2006 Greece proposed the review of the DBS Principles with a view to transforming the text into a treaty. This was not debated, but Greece may reintroduce it. See COPUOS Report of the Legal SubCommittee on its 45th Sess., 3–13 April 2006, A/AC.105/871, para. 154 (e).

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he should publicise that information (Pr. 12), and that copyright should be protected (Pr. 11). Yet in other ways the Principles represent or mirror divergent attitudes. The protection of copyright is shaded by reference to the interest of developing states in the use of DBS to further their development (Pr. 11).103 The affirmation of the right to engage in DBS is followed by the entitlement of all to enjoy its benefits, and then by statement that access to the needed technology should be without discrimination albeit on mutually agreed terms (Pr. 5). DBS activities should allow people to seek and receive information,104 but ‘in a manner compatible with the sovereign rights of States, including the principle of non-intervention’ (Pr. 1). DBS should promote the free exchange of knowledge and assist in educational, social and economic development particularly in the developing countries and provide recreation ‘with due respect to the political and cultural integrity of States’ (Pr. 2). Again, to accelerate their national development the needs of developing countries should be given special consideration in DBS activities (Pr. 6). All such additions to or restrictions on the freedom of DBS programmers and providers emasculate the principles to which they are attached. The content of DBS is the ultimate crux of all such matters. While unavoidable overspill is treated as a separate matter (Pr. 15, infra) under the Principles DBS service deliberately provided to another state is effectively subject to the requirement of the prior consent of that state should it so insist. This is what troubled the states that abstained or voted against the Principles both in COPUOS and the UN General Assembly. The interaction of freedom in DBS with ‘nonintervention’ and the ‘political and cultural integrity’ of states is not likely to be easy. By Pr. 6 international co-operation ‘should be’ the basis of DBS activities, and be implemented ‘through appropriate arrangements’. States in or operating a DBS system should enter into consultations with any other state that so requests (Pr. 10). Any state starting a DBS service is without delay to notify another state which is to receive the service and consult with it should it so require (Pr. 13), and it is not to establish the service without complying with Pr. 13 and in accordance with any arrangement entered into between consultees as well as with the DBS Principles (Pr. 14). As noted above, disputes are to be settled by the normal means (Pr. 7). The effective implementation of Prs. 13 and 14 would mean that a state receiving deliberate DBS programming would be able to block the establishment of a DBS services to its territories without its prior consent.105 The only exception 103 �� This is akin to current debate as to patent protection for medicinal drugs in the developing world. 104 �� Cf. Art. 19, ‘Universal Declaration of Human Rights’, UNGA Res. 217 (III), 8 December 1948; http://www.un.org/Overview/rights.html. H. Lauterpacht, ‘The Universal Declaration of Human Rights’ (1948) 25 BYIL 354–81 at 378–81. 105 �� We note that a meeting of the Information Ministers of the 22 member Arab League meeting at Cairo on 12 February 2008 adopted a Charter on ‘Principles for Organising Satellite TV in the Arab World’ (of which we have not seen the full text) under

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is if the service was not actually aimed at the state’s territory, but was received by way of overspill. As far as overspill is concerned the normal rules of the ITU are ‘exclusively applicable’ and therefore are the only relevant controls (Pr. 15). These would include ITU rules as to harmful interference, minimal power and appropriate targeting of intended recipients.106 As a matter of fact, although some still refer to the DBS Principles, commercial pressures seem have become more important in the development of practice as to whether a particular DBS channel is available within a country. Thus in 1994 the contract for what was then the BBC World Service on the STAR-TV DBS system service to China was terminated. It is said that China was dissatisfied with its coverage inter alia of Tibet and Tiananmen Square (1989) and put pressure on the transmitting company.107 Other countries also indicated problems with STARTV programming in the 1990s, but these seem to have been resolved.108 Similar pressures may have lain behind EUTELSAT’s dropping of New Tang Dynasty TV (NTDTV) channel from its Asian DBS network in 2002 while retaining it on its European network. The service was restored in 2004.109 Such and similar

which licences could be withdrawn from satellite broadcasters whose transmissions were considered to offend the leaders or national or religious symbols of Arab countries, or damage social harmony, national unity, public order or traditional values. Erotic content or the promotion of smoking or alcohol was included among offensive content. Broadcasters are to refrain from broadcasting anything which calls into question God, the monotheistic religions, the prophets, sects or symbols of the various religious communities. The protection of Arab identity from the harmful effect of globalisation was desired. Work permits might be withdrawn from non-national employees of offending media companies. Only Quatar, home of Al-Jazeera, did not endorse the Charter, citing legal rather than political concerns. See http://news.bbc.co.uk/1/hi/world/middle_east/7241723.stm; http://allafrica.com/ stories/200802131114.html, http://www.itwire.com/content/view/16679/127/, http://www. broadbandtvnews.com/?p=3697, http://www.christiantelegraph.com/issue883.html. Cf. http://www.rsf.org/article.php3?id_article=25725, http://www.arabnews.com/ services/print/print.asp?artid=107237&d=27&m=2&y=2008&hl=Callous%20Attempt%2 0to%20Control%20Satellite%20TV. Cf. also the Arab Charter on Human Rights, 1994/2004, art. 32 on the right to information and freedom of expression (http://www1.umn.edu/humanrts/instree/arabhrcharter.html; http://www.diplomacy.edu/arabcharter/) and Art. 19 of the ‘International Covenant on Civil and Political Rights’ UNGA Res. 2200a (XXI), 1966: http://www.unhchr.ch/html/menu3/b/ a_ccpr.htm. The Arab Committee for Human Rights has condemned the Cairo Charter. 106 �� See Chapter 8. 107 �� See http://news.bbc.co.uk/1/hi/world/asia-pacific/1107470.stm. Subsequently in 2001 BBC World was granted an independent contract by China. 108 �� See http://www.museum.tv/archives/etv/S/htmlS/startvhong/startvhong.htm. 109 �� See http://www.rsf.org/article.php3?id_article=10439 (Reporters without Borders); http://en.epochtimes.com/news/5-3-14/27005.html and http://www.clearharmony. net/articles/200503/25419.html (Epoch Times).

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instances110 do raise other questions as to the propriety of allowing particular interests to use DBS. Religious and nationalist groups may transgress boundaries in the eyes of DBS recipient states, but all that can be said here is that disputes do arise as to the cancellation of DBS contracts and pressures appear on occasion to have an effect on the satellite operators and licensing authorities.111 Whether complaints are justified is a matter for case by case consideration by the satellite service providers, by politicians and licensing authorities. Another DBS problem occurs when a satellite transponder is overridden by transmissions from the ground and programming unacceptable to a receiving state is transmitted. This is an unacceptable use of radio frequencies in terms of the relevant ITU rules, and is a matter for the state of origin of the intruding signal to deal with.112 However, on occasion it may be that the satellite operator will take appropriate steps.113 The final comment we would make is that there may be future problems were small states to abuse their sovereign rights by seeking to generate revenue through licensing DBS services that are unacceptable to recipient states. While at present DBS platforms are provided by major enterprises which are subject to the jurisdiction of their licensing states, a DBS platform might be launched under contract to a small state which would be the licensing authority for the services it carried. Under these circumstances other sanctions would be required, and, in the penultimate the satellite service could be disrupted through jamming.114 In the 110 �� Examples can be found through web search engines, particularly those specialising in Human Rights. See e.g. http://www.hurisearch.org/. Cf, the entry for AlManar in Wikipedia. 111 �� Cf. the history of Med-TV, a Kurdish satellite service. Contracts are alleged to have been cancelled or refused by various DBS providers. This 1996 case was raised in the UK Parliament and before what was then the UK Independent Television Commission. http://www.kurdistanica.com/english/media/articles/media-articles-03.html. Med-TV’s UK licence was withdrawn in 1999. It was alleged to have broadcast calls for violence and terrorism in breach of its licence. Cf. Wikipedia article on Med-TV. 112 �� Geo-location devices to pinpoint the source of jamming so that the relevant state may be contacted and unauthorised jamming stopped are available from various Defence contractors such as Qinetiq, the privatised UK defence contractor (www.qinetiq.com). 113 �� For example, a Falun Gong broadcast is alleged to have overloaded an AsiaSat satellite in November 2004 and March 2005: www.chinadaily.com.cn/english/doc/200411/22/content_393776.htm; news.bbc.co.uk/1/hi/world/asia-pacific/4034209.stm; cf. Falun Gong denial: www.infowars.com/articles/world/china_falun_gong_denies_pirate_signals. htm. In April 2007 INTELSAT reconfigured the beam of one of its satellites to prevent it being of use to Tamils broadcasting to Sri Lanka, who had overridden the uplink on several previous occasions; see http://www.asiantribune.com/index.php?q=node/5459 cf. http://www.defence.lk/new.asp?fname=20070503_06. See also R. Jakhu, ‘Legal Issues of Satellite Telecommunications, the Geostationary Orbit and Space Debris’ (2007) 5 Astropolitics 173–208 at 185–7. 114 �� M.J. Sundahl, ‘Information Warfare: The Legal Aspects of Using Satellites and Jamming Technologies in Propaganda Battles’ (2006) 49 Proc. IISL 354–65; C.M. Schenone,

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ultimate a fully space-competent state could destroy a broadcast satellite whose transmissions it finds wholly unacceptable.115 Short of such dramatic developments it should be noted that international law and some UN Resolutions may apply to certain broadcasts. The International Convention on the Use of Broadcasting in the Cause of Peace of 1936116 obliges its members to use their broadcasting services in accordance with its title. In addition a series of UN Resolutions contain measures and recommendations. Thus as noted above, the 1947 UN Res. 110 (II) on ‘Measures to be taken against propaganda and the inciters of a new War’ condemns all forms of propaganda that might incite threats to the peace or acts of aggression, but only requests states to ‘promote by all means and propaganda’ in favour of peace and friendly relations among states. In 1950 UNGA Res. 454 (V), ‘Freedom of Information: Interference with Radio Signals’, condemns jamming as contrary to freedom of information but merely invites governments to ‘refrain from radio broadcasts that would mean unfair attacks or slanders against other peoples anywhere’ and in so doing to ‘conform to an ethical conduct in the interest of world peace by reporting facts truly and objectively’. Other UN Resolutions regarding friendly relations among states, non-intervention and the duty to respect each other’s integrity are also

‘Jamming the Stations: Is there an International Free Flow of Information?’ (1984) 14 Cal. W. Int. L.J. 501–29; A.C. Dale, ‘Countering Hate Messages that Lead to Violence: The United Nations’ Chapter VI Authority to Use Radio Jamming to Halt Incendiary Broadcasts’ (2001) 11 Duke J. Comp. and Int. L.J. 109–131; R.B. Price, ‘Jamming and the Law of International Communications’ (1984) 5 Mich. Y.B. Int. Leg. Stud. 391–403; Hurwitz, supra n. 66 at 176–8. Cf. M. Price, ‘Public Diplomacy and the Transformation of International Broadcasting’ (2003) 21 Cardozo Arts and Ent. L.J. 51–85. Google ‘Eutelsat jamming’ or ‘satellite jamming’ for recent examples. Turkey jammed Med-TV (supra n. 111) in October 1998: http://www.hr-action.org/action/med-tv.html. Cf. also www.cogsci.ed.ac.uk/~siamakr/Kurdish/Kurd_lal/LETTER/letteraug97.html. Other countries have acted similarly to disrupt other programming they found unacceptable: http://ics.leeds.ac.uk/papers/vf01.cfm?folder=1259&outfit=pmt; www.guardian.co.uk/ libya/story/0,,1656914,00.html. 115 �� Cf. 1 – the targeting of US-193 in February 2008: see http://www.cnn.com/2008/ TECH/02/15/spy.satellite/index.html; http://www.defenselink.mil/releases/release. aspx?releaseid=11704, and 2 – China’s destruction of its own weather satellite on 11 January 2007: see http://www.msnbc.msn.com/id/16689558; http://www.cnn.com/2007/TECH/ space/01/18/china.missile/index.html; http://www.timesonline.co.uk/article/0,,256892555576.html. China has said it has no further plans for such tests: http://www.msnbc.msn. com/id/17120766. See also F. Walsh, ‘Forging a Diplomatic Shield for American Satellites: The Case for Re‑evaluating the 2006 National Space Policy in Light of a Chinese Satellite System’ (2007) 72 J. Air L. and Com. 759–99. 116 �� International Convention on the Use of Broadcasting in the Cause of Peace, 1936, 186 LNTS 301; 1938 UKTS 29, Cmd. 1714; 36 Martens (3d) 744; 7 Hudson 409; (1938) AJIL Supp. 113.

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relevant,117 including the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’.118 Article 20 of the International Covenant on Civil and Political Rights prohibits propaganda for war or the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.119 UNESCO continues to be active in these matters. Thus in 2001 it adopted a ‘Universal Declaration on Cultural Diversity’120 which has some relevance for the impact of ‘foreign’ programming. How valuable these affirmations still are may be a question: too much depends on the state of world politics rather than on the avowal of such ‘duties’. Solar Power The collection of solar energy in space and its transmission down to Earth for conversion to electrical power may be technically feasible. Solar power from space (SPS), or space-based solar power (SBSP) as proponents refer to it, is a logical development from the terrestrial arrays that are in use in various countries and the solar panels that power many satellites. The concept of a space-based system, first seriously proposed in 1968,121 was under consideration for some subsequent years, but without any great commitment 117 �� UNGA – Res. 1236/XII (9157); Res. 1301/XIII (1958); Res. 1815/XVII (1962), Res. 1966 (XVIII) (1963), Res. 2103 (XX) (1965), Res. 2181 (XXI) (1966), Res. 2327 (XXII) (1967), Res. 2463 (XXIII) (1968) and Res. 2533 (XXIV) (1969). Cf. �� M.S. Dauses, ‘Direct Broadcast Satellites and Freedom of Information’ (1975) 3 J. Sp. L. 59–72 at 72. 118 �� Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV) (1970); A/8082. 119 �� ‘International Covenant on Civil and Political Rights’ UNGA Res. 2200A (XXI), 16 December 1966 – http://www.unhchr.ch/html/menu3/b/a_ccpr.htm. 120 �� Universal Declaration on Cultural Diversity, UNESCO General Conference, Records of the 31st Session, Res. 25 (2001), Vol. I, 61–4; (2002) 41 ILM 57–62. 121 �� P. Glaser, ‘Power from the Sun: Its Future’ (1968) 162 Science 957–61. See also http://www.permanent.com/p-sps.htm. A number of Proc. IISL papers in the period 1977–1982, Vols 20–25, consider solar power. The earliest is S. Gorove, ‘International Implications of Solar Energy’ (1975) 18 Proc. IISL 15, cf. his ‘Solar Power Satellites and the ITU: Some US Policy Options’ (1979) 4 AASL 505 [Gorove, 77–88]; his ‘Energy from Space: An Imperative for International Cooperation’ [Gorove, 89–100]; his ‘Geostationary Orbit’ (supra n. 49) at 444–5; and his ‘Internationalization of Solar Power Satellites: Some Legal and Political Aspects’ [Gorove, 101–111]. See also S. Courtiex, ‘Solar Power Satellites: Legal, Ecological and Institutional Implications’ (1992) 35 Proc. IISL 271–80; Gibbons, supra n. 27 at 145–6. It has to be said that Isaac Asimov set ‘Reason’ (1941 – rep. in I, Robot (1950), The Complete Robot (1982) and Robot Visions (1990)) on a space station supplying solar energy by microwave to the planets.

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to its implementation.122 Recently, however, potential uncertainties in international oil and gas supplies, has made the idea the subject of renewed interest as an alternative power source.123 The most recent major US document on such matters is a Report to the Director of the (US) National Security Space Office.124 A number of legal issues are implicit in any development of SBSP. Any solar power system would require a space segment at or in which the solar power would be initially collected, and a ground segment on Earth where the power could be converted and fed into terrestrial power systems. There are four possible space segment configurations. Collecting apparatus for solar power might be located in LEO, in GSO, at an appropriate Lagrange point, or on the Moon. Of these the Moon is unlikely because of its orbit and distance, the difficulty of establishing the required system, and cost. It might be awkward to download from a low Earth orbiting satellite which would have only a limited time to establish the link with its

122 Solar Power Satellites (US Cong. Office of Technology Assessment, 1981): http://govinfo.library.unt.edu/ota/Ota_5/DATA/1981/8124.PDF. See also materials from the US Department of Energy and NASA, 1978–81, available through ‘Satellite Power System: Concept Development and Evaluation Program’ compiled by the (US) National Space Society at http://www.nss.org/settlement/ssp/library/doe.htm. 123 �� P.E. Glaser, F.P. Davidson and K.I. Scigi, Solar Power Satellites: A Space Energy System for Earth, 2nd rev. ed. (New York, Wiley, 1997); M. Macauley, ‘Can Power from Space Compete? (2000) 16 Space Policy 283–5; M. Macaulay and J.-S. Shih, ‘Satellite Solar Power: Renewed Interest in an Era of Climate Change?’ (2007) 23 Space Policy 108– 20; P.B. Larsen, ‘Current Legal Issues Pertaining to Space Solar Power Systems’ (2000) 16 Space Policy 139–44 ((2000) 16 Space Policy 91–160 has a number of articles on solar power). G.A. Landis, ‘Reinventing the Solar Power Satellite’, 53rd IAF Congress, Houston, 2002, IAC-02-R.3.06 and IAC-02-R.1.07; NASA/TM2004-212743: http://gltrs.grc.nasa. gov/reports/2004/TM-2004-212743.pdf; URSI ‘White Paper on Solar Power Satellites (SPS) Systems’ (draft), 1 September 2006: http://ursi.ca/SPS-2006sept.pdf.; Proceedings of the Fourth International Conference on Solar Power from Space SPS’04, Together with the Fifth International Conference on Wireless Power Transmission WPT 5, Granada, 20 June to 2 July 2004, ESA SP-567; ‘Space-Based Solar Power as an Opportunity for Strategic Security: Phase 0, Architecture Feasibility Structure Study’, ‘Interim Assessment’, A Report to the Director, National Security Space Office, 10 October 2007: http://www.nss. org/settlement/ssp/library/final-sbsp-interim-assessment-release-01.pdf; http://www.nss. org/settlement/ssp/library/nsso.htm; http://spacesolarpower.files.wordpress.com/2007/11/ final-sbsp-interim-assessment-release-01.pdf. See also discussion at http://spacesolarpower. wordpress.com/the-national-security-space-office-study/. Cf. J.C. Mankins, ‘A Fresh Look at Solar Power’ IAF-97-R.203. 124 �� ‘Space-Based Solar Power as an Opportunity for Strategic Security: Phase 0, Architecture Feasibility Structure Study’, ‘Interim Assessment’, A Report to the Director, National Security Space Office, 10 October 2007: http://www.nss.org/settlement/ssp/ library/final-sbsp-interim-assessment-release-01.pdf; http://www.nss.org/settlement/ssp/ library/nsso.htm; http://spacesolarpower.files.wordpress.com/2007/11/final-sbsp-interimassessment-release-01.pdf.

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ground receptor and download.125 While the Lagrange-2 point (beyond the Earth in a halo orbit around the L-2 point) seems possible, the geostationary system may prove to be the most sensible. A solar power system would require a terrestrial station as its ground link. Such a relatively easily constructed station would receive energy in the form of microwave radiation from the space segment by means of an antenna,126 convert it to electrical form and feed the resultant power into a terrestrial network. It would be important that the location of the ground station be suitably remote so that if, for any reason, the downlink microwave beam were to divert from target, this would not have major consequences.127 In space the satellite arrangements would consist of a huge collector to trap solar energy,128 a device to convert that energy to microwave radiation, and a transmitter and antenna to send it down to the ground station. Constructing the space segment would be difficult. Each solar power satellite in a GSO location might weigh as much as 100,000 tons and the cost of lifting such into orbit might be prohibitive. However, once the Moon has been opened to practicable and economic exploitation, the lesser gravity of the Moon might well make it more economic to build an array system from lunar resources and return the required satellites to geostationary Earth orbit. Whether there would be a constellation of satellites to provide power for as many countries as possible is a question. It might be that individual mega-cities would be the first to be served by such technology, with appropriately located satellites and ground stations.129 To a large extent the legal elements of SSPS developments are standard as for any use of space, but specific variations would have to be worked out. Questions of licensing, registration, control and supervision, liability and similar matters that would apply under space law are those considered in Chapter 4. Given the potential for disaster were a downlink beam to stray from its intended target and other questions of damage to the Earth, we would expect comprehensive insurance to be demanded of any private operator (if such could be obtained). The extent to

125 �� A LEO satellite could supply its ground station for only a few minutes in each orbit and might have problems in establishing an accurate download. At the 53rd IAC, Hyderabad, September 2007, a US entrepreneur, Kevin Reed, suggested using Helen Island close to Palau to prove the concept, using a low Earth orbiting satellite as the space segment. See http://www.msnbc.msn.com/id/22397928/. 126 �� The ground antenna might be very large, some studies indicating 3 × 6 miles. 127 �� Access to the area would require to be restricted and aviation would have to avoid the downlink beam. In the Asimov tale (supra n. 121) the fallacy of a distrust of the ability of a positronic robot to maintain the accurate positioning of a microwave beam is the pivot on which the story turns. We also note, however, that therefore there is the potential to use a solar power downlink as a weapon. See Chapter 16. 128 �� The collector might be over 1 km square or anything up to 3 miles square: see Landis and URSI Report both supra n. 123. 129 �� Landis, supra n. 123 at 2–13, ‘Peak Power Markets for Satellite Solar Power’ IAC-02-R.3.06.

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which the enterprise is subject to national laws would be a matter for the national legal systems concerned. In the foreseeable future it does not seem likely that a single state would undertake such a massive project.130 In any event it would require complex financing and probably involve many national and international interests and stakeholders.131 More possibly an international organisation could serve the purpose. One model could be an international arrangement in which a number of states might participate, the International Space Station being a relevant model.132 In such a scheme each nation participant might provide and own one or more of a network of fifteen to twenty solar power satellites in GSO location. Another potential model could be an international commercial co-operative bringing together governmental and commercial providers of electrical power. The International Telecommunication Satellite Organisation (INTELSAT) or the International Mobile Satellite Organisation (INMARSAT) prior to their respective privatisations shows how such an enterprise could work.133 Alternatively the SSPS could be organised as a private global trading company in which ownerships were distributed widely throughout the world. The SSPS might also be a public/private partnership like the European global navigation satellite system, Galileo.134 Were the SSPS to be owned and operated by a public/private partnership, it or elements of it are likely to be financed by banks or other financial institutions. These would probably take a security interest in the assets and register their financial interests in the SSPS satellites in the international registry of space assets to be established by the Space Asset Protocol to the UNIDROIT Convention on International Interests in Mobile Equipment.135

130 �� But see the Reed suggestion, supra n. 125. 131 �� K.E. Lust-Brooke and G.H. Litwin, ‘Organizing and Managing Satellite Solar Power’ (2000) 16 Space Policy 145–56. 132 �� See Chapter 4 – ‘Space Stations’ at n. 131. 133 �� INTELSAT – Agreement relating to the International Telecommunications Satellite Organisation (INTELSAT), Washington DC, 20 August 1971, 1220 UNTS 21; 23 UST 3813, TIAS 7532; 1973 UKTS 80, Cmnd. 5610; 1973 ATS 6; (1971) 10 ILM 909; Operating Agreement relating to the International Telecommunications Satellite Organisation (INTELSAT), 1220 UNTS 149; 23 UST 4091, TIAS 7532; 1973 UKTS 80, Cmnd. 5461; (1971) 10 ILM 946. INMARSAT – Convention on the International Maritime Satellite Organization (INMARSAT), 3 September 1976, 1143 UNTS 105, 1979 UKTS 94, 31 UST 1, TIAS 9605 (1976) 15 ILM 1051; Operating Agreement on the International Maritime Satellite Organization (INMARSAT) (1976) 15 ILM 233. Both the INTELSAT Agreement and the INMARSAT Convention were amended to permit the privatisation of each organisation, and the related Operating Agreements were terminated. See Chapter 11. 134 �� P.B. Larsen, ‘Issues Relating to Civilian and Military Uses of GNSS’ (2001) 17 Space Policy 111. 135 �� See Chapter 15 – ‘The Cape Town Convention and the Draft Space Protocol, 2001’.

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A commercial SBSP organisation could be guided by a UNGA Resolution establishing appropriate principles.136 Such a Resolution would mandate respect for the sovereignty of individual states receiving power by microwave beams from the SPS, international co-operation of states, technical assistance to the developing countries and protection of the environment. All states would have nondiscriminatory access to the SPS electric network on reasonable cost terms, and states duty-bound to engage in consultations to resolve disputes. Such guidance is now established for international commercial satellite activities such as remote sensing,137 direct broadcast satellites138 and global navigation satellite services (GNSS).139 In addition, were an international organisation to be established to create and operate a solar power system we would hope that it would undertake public service obligations and submit itself to the oversight of the International Mobile Satellite Organisation (IMSO) as to compliance with them.140 Alternatively a body analogous to the International Atomic Energy Agency (IAEA) might serve such a function.141 By OST Art. VI, private launches of SBSP satellites would require national oversight by the licensing and launching state. Several states have implemented Art. VI by domestic legislation, for example the US Commercial Space Launch Act (CSLA).142 Other states are preparing national legislation in order to insure the safety of private launches and as means for them to avoid incurring liability under the Liability Convention. In the US a private launch licence must be issued by the Federal Aviation Administration of the Department of Transportation. A private SBSP launch from the Moon by a US company could be considered to be a foreign launch by a private US citizen and thus subject to US licence requirements under the CSLA. A launch licence is only issued if the launch is deemed to be safe. The Act also requires the licensee to obtain insurance in order to protect the US Government from possible liabilities. The licensee is subject to safety oversight of launch and re-entry, as well as payload.143 While the construction of solar power satellites on and launch from the Moon is legally possible under the US CSLA, 136 �� As to the legal significance of a UNGA Resolution see Chapter 2 – ‘UN Resolutions’. 137 �� ‘Principles Relating to the Remote Sensing of the Earth from Outer Space,’ 1986; (1986) 25 ILM 1331; UNGA Res. 41/65. 1986 25 ILM 1331. See Chapter 13. 138 �� ‘Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting’, UNGA Res. UNGA Res. 27/92; (1983) 77 AJIL 733–6. However, see the discussion of the DBS Principles, supra. 139 �� ICAO Doc. C-CW/11026; see Larsen supra n. 134, and Chapter 12. 140 �� See Chapter 11, c. nn. 124 and 128. 141 �� Statute of the International Atomic Energy Agency (IAEA), 276 UNTS 3; 8 UST 1093, TIAS 3873: http://www.iaea.org/. 142 �� Commercial Space Launch Act (CSLA), 49 USC §§70101, et seq. The FAA requires a private launch operator to obtain launch insurance before a permit to launch will be issued. 143 �� Ibid. See also Chapter 15 – ‘United States’.

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the OST prohibits any appropriation of the Moon either by claim of sovereignty, by use or by occupation or by any other means.144 National laws would govern the ownership of solar power satellites located in outer space, OST Art. VIII providing that the ownership of a space object launched into outer space or while located or being constructed on a celestial body (e.g. the Moon) does not change because of the location. Ownership rights established under appropriate national laws therefore continue to exist even when a space object is outside the territory of the launching state. Under the Registration Convention states register their space objects in their national registries and in the international registry maintained by the UN Secretary General.145 Registration must be performed by the launching state. Only one state may register a space object, but in a particular case several states may qualify as the launching state, because the Registration Convention defines the ‘launching state’ broadly.146 However, it is competent separately to register satellites which are launched by one launch vehicle. Thus in the International Space Station Agreement the participant states decided which state would register which particular modules of the ISS.147 Similarly the satellites of a SBSP array owned by nationals of several countries could each be separately registered.

144 �� OST, Arts I and II. See Chapter 7. 145 �� Arts II.1 and IV, Convention on the Registration of Objects Launched into Outer Space, 14 January 1975; 1023 UNTS 15; (1978) UKTS 70, Cmnd. 7271; TIAS 8480; (1975) 14 ILM 43. See Chapter 4 – ‘Registration’. 146 �� Art. I defines ‘launching state’ as (a) a state which launches or procures launching of a space object, and (b) a state from whose territory or facility space object is launched. By Art. II.2 where several states involved in a launch each qualify as a ‘launching state’, they must agree among themselves which eligible state should register a registrable object. 147 �� See Chapter 4 – ‘Space Stations’.

Chapter 10

Environmental Regulation Introduction Space presents a variety of environmental problems to which law must respond. Not all will be treated in this chapter. Radio matters are covered in more detail in Chapter 8. The environment of the Moon and other celestial bodies is largely dealt with in Chapter 7 as is the detail of the Moon Agreement itself on contamination by its exploration. Here, moving from ‘in’ to ‘out there’ we cover generalities of space law before turning to the possibility of the contamination of the Earth from space, the polluting results of space activities (broadly the debris problem), and the protection of the Earth from asteroids, meteors and comets (planetary defence). However, we must begin with some general observations. General It would be wrong to consider the law of the space environment as something separate, distinct and different from the concepts of terrestrial environmental law. Of its nature space presents exceptional difficulties, but these are not sufficient to require unique concepts. Environmental space law is simply a specialised area of environmental law. Matters of law are involved. The Moon Agreement, with its paltry level of ratifications (13 as of 2008) cannot pretend to affirm propositions that bind other than its parties, although many of its provisions are sensible. The Outer Space Treaty has a better legal status. It and the preceding UN Declaration of Legal Principles of 1963 were adopted without vote in the General Assembly. As we have argued in Chapter 3, the fundamental or basic principles expressed �� M. Williamson, Space: The Fragile Frontier (Washington DC: AIAA, 2006) and his ‘Space Ethics and the Protection of the Space Environment’ (2006) 32 J. Sp. L. 217; B.K. Schafer, ‘Solid, Hazardous, and Radioactive Wastes in Outer Space: Present Controls and Suggested Changes’ (1988) 19 Cal. W. Int. L.J. 1–46 (with select bibliography). �� F. Lyall, ‘Protection of the Space Environment and Law’ (2000) 42 Proc. IISL 472–82; A.G. Apking, ‘The Rush to Develop Space: The Role of Spacefaring Nations in Forging Environmental Standards for the Use of Celestial Bodies for Governmental and Private Interests’ (2006) 16 Colo. J. Int. Env. L. 429–66; D. Tan, ‘Towards a New Regime for the Protection of Outer Space as the “Province of All Mankind”’ (2000) 25 Yale J. Int. L. 145–94. L. Viikari, The Environmental Element in Space Law: Assessing the Present and Charting the Future (Leiden: Nijhoff, 2008) was published after this chapter was drafted.

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in the Principles and the OST now form part of customary international law, and therefore also bind states which have neither signed nor ratified the 1967 Treaty. Article III of the OST and para. 2 of the 1963 Declaration state that the exploration and use of outer space is to be carried out in accordance with international law. The principles of general terrestrial environmental international law are therefore relevant for space. What are they? A considerable body of international law now deals with environmental matters. It is even argued by some that its basic principles have become customary law. Certainly there are many environmental treaties, declarations and similar documents, and there is relevant debate in the International Law Commission (ILC) on ‘State Responsibility’, on ‘International Liability for Injurious Consequences Arising from Acts Not Prohibited by International Law’ and on war crimes. While it must be remembered that the function of the ILC is to consolidate and develop, but not to make law, its work is always of interest. �� See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies (1968) 610 UNTS 205; (1968) UKTS 10, Cmnd. 3519; 18 UST 2410, TIAS 6347; (1967) 6 ILM 386; (1967) 61 AJIL 644; ‘Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space’, UNGA Res. 1962 (XVIII) 1963: (1964) 3 ILM 157. Cf. Part A, para. 1.b of UNGA Res. 1721 (XVI), 20 December 1961; Preamble ‘Believing’ of UNGA Res. 1802 (XVII), 19 December 1962. �� P.W. Birnie and A.E. Boyle, International Law and the Environment (Oxford: Clarendon Press, 2002, new ed. 2009); P. Sands, Principles of International Environmental Law, 2nd ed. (Cambridge: Cambridge UP, 2003); D. Hunter, J. Salzman and D. Zaelke International Environmental Law and Policy, 2nd ed. (New York: Foundation Press, 2002); T. Kuokkanen, International Law and the Environment (The Hague: Kluwer Law Int., 2002). �� C.L. Carr and G.L. Scott, ‘Multilateral Treaties and the Environment: A Case Study in the Formation of Customary International Law’ (1999) 27 Denv. J. Int. L. and Pol. 313–35. �� P.W. Birnie and A.E. Boyle, Basic Documents on International Law and the Environment, 2nd ed. (Oxford: Oxford UP, 2002); P. Sands and P. Galizzi, Documents in International Environmental Law, 2nd ed. Cambridge: Cambridge UP, 2004); International Protection of the Environment: Treaties and Related Documents, B. Ruster and B. Simma, eds, 33 vols (New York: Oceana, 1990–). �� ‘Responsibility of States for Internationally Wrongful Acts’ (International Law Commission, 2001). See UNGA Res. 56/83, or http://untreaty.un.org/ilc/texts/instruments/ english/draft%20articles/9_6_2001.pdf, or with commentary at http://untreaty.un.org/ilc/ texts/instruments/english/commentaries/9_6_2001.pdf; See J. Crawford, The International Law Commission’s Articles on State Responsibility (Cambridge: Cambridge UP, 2002); cf. S. Rosenne, The International Law Commission’s Draft Articles on State Responsibility (Dordrecht: Martinus Nijhoff, 1991). �� The codification of International Law has been the responsibility of the International Law Commission since it was set up by UNGA Res. 174 (II) of 1947. Codification is not the same as consolidation, and involves improvement as well as articulation. Over the years the Commission has produced draft Codes, as well as draft treaties.

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One traditional starting point for discussions of state obligations in regard to the environment is the Trail Smelter Arbitration which articulates the duty of a state not to permit the use of its territory to the detriment of another state. Other cases have followed, e.g. the Corfu Channel Case of 1949,10 where again a state was found liable for a use of its territory that damaged another state. However, environmental damage can be caused without the territory, property or personnel of another state being involved. Damage can be done to environmental objects or areas not owned by and beyond jurisdiction of any state. Terrestrial rules are therefore of interest, for space is beyond the limits of national jurisdiction: ‘[O]uter space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means’ (Art. II, OST). That states have a responsibility to ensure activities within their ‘control do not cause damage to the environment of areas … beyond the limits of national jurisdiction’ is a major part of Principle 21 of the Stockholm Declaration of 1972.11 Its Principle 22 then requires that states co-operate in developing further international law as to liability and compensation for damage caused ‘by activities within the jurisdiction or control of such states to areas beyond their jurisdiction.’ Similar language is found in a number of later agreements and Declarations.12 To these one must add the work of the United Nations Environmental Programme (UNEP),13 the UN Conference on Environment and Development (UNCED), Rio de Janiero, 1992 and Agenda 21, the action programme it adopted for a variety of environmental matters.14 �� The Trail Smelter Arbitration (US v Canada) 1938/41 3 RIAA 1905; (1939) 33 AJIL 182; (1941) 35 AJIL 684. Note the possibility of contamination of domestic territory during a space launch, infra n. 46. 10 �� The Corfu Channel Case (UK v Albania) 1949 ICJ Rep. 1. 11 �� ‘The Declaration of the UN Conference on the Human Environment’, Stockholm, 1972; http://www.unngocsd.org/documents/stockholm1972.pdf or http://www.unep.org/ Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503; (1972) 11 ILM 1416. For the Conference Documents see http://www.unep.org/Documents.Multilingual/ Default.asp?DocumentID=97. 12 �� Cf. ‘The Rio Declaration on Environment and Development’ (A/CONF.151/26): http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm; the World Charter for Nature of 1982, UNGA Res. 37/7; (1983) 22 ILM 455 (one-hundred and eleven states voted in favour, the US against, and eighteen abstained on the ground that their sovereignty over their natural resources might be impaired). Cf. N.B. Robertson et al., eds, Agenda 21 and the UNCED Proceedings, 6 vols (New York: Oceana, 1992–3); F. Lyall, ‘Protection of the Space Environment and Law’ (2000) 42 Proc. IISL 472–82. Cf. also Part XII (Arts 192–237) on the protection of the marine environment of the UN Convention on the Law of the Sea, Montego Bay, Jamaica, 10 December 1982, 1833 UNTS 3; 1999 BTS 82, Cm. 4524; (1982) 21 ILM 1261; US Tr. Doc. 103–39. See also materials cited supra n. 6. 13 �� UNEP was established following the 1972 Stockholm Conference on the Human Environment. It encourages and co-ordinates actions on environmental matters by national and regional non-governmental bodies. 14 �� Agenda 21 is an action programme directed particularly to sustainable development and the proper use and management of environmental resources. See Agenda 21 and the

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All these are largely aspirations and intentions and are non-binding, although they are often complied with. Matters might have been taken further had the ILC persevered on lines it considered during the long process that resulted in its Articles on ‘State Responsibility’ of 2001, but these do not figure in the final text.15 In 1996 an Art. 19 for the then Draft Articles did indicate state responsibility in respect of areas not under national jurisdiction.16 It was suggested that an ‘international crime’ would be committed by the breach of any obligation recognised by the international community as ‘essential for the protection of the fundamental interests of the international community’ (Draft Art. 19.2), including obligations ‘such as those prohibiting massive pollution of the atmosphere or of the seas’ (Draft Art. 19.3). Draft Art. 19.4 then provided that an internationally wrongful act short of an international crime was an international delict.17 However, the ILC was divided and departed from the concept of ‘international crime’ partly because of the way the concept of ‘crime’ was being developed within other international jurisprudence, including through the creation of the International Criminal Court and the work of the Tribunals for Yugoslavia and Rwanda. Notwithstanding, the ILC discussion of Draft Article 19 shows a willingness to consider damage to the environment beyond national jurisdiction as being of major importance. The Commentary to ILC Draft Art. 51 of the 1996 version of the Draft Articles indicates that the purpose of the introduction of a category of ‘international crime’ was to set apart or denote ‘a category of wrongful acts to which, because of their seriousness, special consequences should apply’. Later ILC discussion used the term ‘exceptionally serious wrongful acts’.18 However, it is doubtful whether ‘damage’ to the space environment or to a celestial body is so ‘essential for the protection of the fundamental interests of the international community’ that it should be categorised as a crime. However there is an argument that in appropriate circumstances such damage should be classed as an international delict should it be an ‘exceptionally serious wrongful act’.19 Another interesting line of discussion is the ILC work on ‘International Liability for Injurious Consequences Arising from Acts Not Prohibited by International Law’. This also might have produced ideas relevant for space. However, although UNCED Proceedings, 6 vols, N.B. Robertson et al., eds (New York: Oceana, 1992–3). See also the Division for Sustainable Development of the UN Department of Economic and Social Affairs at http://www.un.org/esa/sustdev/documents/agenda21/index.htm. 15 �� See n. 18 infra. 16 �� Draft Articles on State Responsibility, 1996 YBILC II(2); A/52/10: http://untreaty. un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf or with commentaries at http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf. 17 �� L. Berat, ‘Defending the Right to a Healthy Environment: Toward a Crime of Geocide in International Law’ (1993) Boston U. Int. L.J. 327–48. 18 �� 1998 YBILC II(2), paras 241–331, at the end of which it was agreed to put Draft Art. 19 aside ‘for the time being’. 19 �� The Chinese destruction of its weather satellite in 2007 comes to mind. See infra n. 130.

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it still centres on questions of prevention, in order to achieve consensus within the Commission, the ambit of those Draft Articles has been restricted to the ‘Prevention of Transboundary Damage from Hazardous Activities’ of 200120 and the ‘Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising from Hazardous Activities’ of 2006.21 Both clearly refer to environmental harm done to the territory of another state or areas under its jurisdiction, not to areas beyond national jurisdiction. Finally, at one stage in the ILC consideration of ‘War Crimes’, Art. 22 of the ‘Draft Code of Crimes against the Peace and Security of Mankind’ included ‘employing methods or means of warfare which are intended or may be expected to cause widespread, long-term and severe damage to the natural environment’ as one of the ‘Exceptionally serious war crimes’ (Draft Art. 22.2.d).22 Further, Draft Art. 26 included the wilful causing of such damage as a crime in war or in peace for which an individual could be held guilty. However, again in order to achieve consensus within the Commission, such matters did not persist into the final form of the Draft Code.23 The timidity or diffidence of the ILC notwithstanding, a general international duty towards the preservation and conservation of the environment, both within and outside areas of national jurisdiction, is developing. In the Advisory Opinion of 1996 on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict the ICJ stated: The Court recognises that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognises that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure 20 �� ‘Prevention of Transboundary Harm from Hazardous Activities’ (ILC: 2001) (A/56/10): http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_7_ 2001.pdf or with commentaries at http://untreaty.un.org/ilc/texts/instruments/english/ commentaries/9_7_2001.pdf. 21 �� ‘Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising from Hazardous Activities’ (ILC; 2006) (A/61/10): http://untreaty.un.org/ilc/ texts/instruments/english/draft%20articles/9_10_2006.pdf or with commentaries at http:// untreaty.un.org/ilc/texts/instruments/english/commentaries/9_10_2006.pdf. 22 �� ‘Draft Code of Crimes against the Peace and Security of Mankind’ (1995) Report of the Special Rapporteur (A/CN.4/466). See (1991) YBILC 223–8 for discussion of Draft Art. 22. Cf. UNGA Res. 47/37, 1992, on ‘Protection of the Environment in Times of Armed Conflict’. Cf. also H.A. Almond, Jr, ‘War, Weapons and the Environment’ (1988) 1 Geo. Int. Env. L. Rev. 167–97, and ‘War, Weapons and the Environment’ (1990) 3 Geo. Int. Env. L. Rev. 117–82. 23 �� ‘Draft Code of Crimes against the Peace and Security of Mankind’ 1996; 1996 YBILC II.2, http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_4_ 1996.pdf.

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One year later, in a contentious case the Court quoted that statement, noting that it had ‘recently occasion to stress … the great significance that it attaches to respect for the environment, not only for States but also for the whole of mankind’.25 The developing international law on the environment is not confined to post hoc action. The ‘Precautionary Principle’ argues in favour of giving a hard content to international environmental duties to avoid or prevent problems. In such matters it is better to be safe than sorry. It is better to take precautions which may not be needed, than to fail to take them and risk unfortunate consequences. The Precautionary Principle originates in municipal environmental law, but it is making its way into international law.26 It also has its echoes in relation to space. Last we note the concept of the Global Commons – the idea that there are portions or aspects of the Earth, not subject to state sovereignty either at all (e.g. the oceans beyond territorial limits), or not so subject in the normal way (e.g. the atmosphere, notwithstanding that some of the atmosphere necessarily lies within the air-space of states).27 Increasingly it is suggested that Global Commons are held in some sort of trust for the whole of mankind and are to be managed as such.28 Space, being set aside from national sovereignty, would seem to be another 24 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 8 July 1996 (1996) ICJ Rep. 226, para. 29 (240); (1996) 35 ILM 809. At para. 31 the Court also cites para. 64 of its Order of 22 September 1995 in the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgement of 20 December 1974 in the Nuclear Tests Case (New Zealand v France) Case, 1995 ICJ Rep. 288. Para. 64 of the Order dismissing that Request expressly states that it is made ‘without prejudice to the obligations of States to respect and protect the natural environment’ (Rep. at 306). 25 Case Concerning the Gabčikovo–Nagymaros Project (Hungary/Slovakia), 1997 ICJ Rep. 7 at 41 (para. 53), (1998) 37 ILM 168–242. 26 �� H. Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law (London: Graham and Trotman; Dordrecht: Martinus Nijhoff, 1994); A. Trouwborst, Precautionary Rights and Duties of States (Leiden: Martinus Nijhoff, 2006); P.B. Larsen, ‘Application of the Precautionary Principle to the Moon’ (2006) 71 J. Air L. and Comm. 295–306; L.D. Roberts, ‘Ensuring the Best of All Possible Worlds: Environmental Regulation of the Solar System’ (1997) 6 N.Y.U. Env. L.J. 126–60. 27 �� We use the term in its technical legal sense. ‘Global Commons’ is also used freely (and sloppily) by some as a label for any global opportunity which they consider should be subject to little or no constraint. 28 Our Common Future: The Report of the World Commission on Environment and Development, G.H. Brundtland, Chairman (The ‘Brundtland Commission’) 1987, UN Doc. A/42/427 (Oxford and New York: Oxford UP 1987); S.J. Buck, The Global Commons: An Introduction (London: Earthspan, 1998); J. Vogler, The Global Commons: Environmental and Technological Governance, 2nd ed. (London: John Wiley, 2000); cf. L.F.E. Goldie, ‘Title and Use (Usufruct) – An Ancient Distinction too oft Forgot’ (1985) 79 AJIL 689–714.

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obvious example.29 If, in the future, the concept of Global Commons stands, a duty to respect and manage the environment of a Global Commons in space could be inferred from terrestrial international environmental law, even in the absence of a clear universal multi-lateral treaty to that effect.30 Of course, the concept of ‘Global Commons’ links to that of the ‘common heritage of mankind’ which we discussed in Chapter 7, but it is a different thing. The idea of a general duty as to the terrestrial environment that is not limited to the avoidance of direct harm to other states is therefore coming to be accepted. There is a common interest in the avoidance of harm to the planet on which we live. Some global environmental harm can only be remedied through a global approach.31 The same logic applies to outer space, outer space debris being a case in point. Much of the current phraseology is anthropocentric, but we need not be so confined. Harm done to ‘generations unborn’ as the ICJ has put it,32 could well include the degradation of the space environment, both near and far. The point is that terrestrial environmental law is applicable to the global environment as a whole, not just to those parts that lie within the jurisdiction of particular states. Environmental rights and duties go beyond that constraint and constitute obligations erga omnes (owed to everyone), although the idea of an international actio popularis (an action brought by one to enforce a duty owed to many or to the population as a whole) has not yet gained full acceptance in international law.33

29 �� Outer Space Treaty; Art. II; cf. V. Kopal, ‘Outer Space as Global Commons’ (1997) 40 Proc. IISL 108–16; L.D. Roberts, ‘The Law of the Commons: A Framework for the Efficient and Equitable Use of the Lagrange Points’ (1990) 6 Conn. J. Int. L. 151–72. 30 �� Cf. K. Gorove, ‘Protection of the Global Commons: New Customary Law?’ (1998) 26 J. Sp. L. 208–13; V. Kopal, supra n. 29. 31 �� Without entering into this debate, we note the mounting international concern as to ‘global warming’ and the efforts to mitigate the human contribution to this problem. 32 Supra at n. 24. Note also the reference in MA Art. 4.1 to the interest of ‘present and future generations’ in the exploration and use of the Moon. 33 �� See P. Sands, supra n. 4, at 150–4, ‘International Enforcement: Damage to the Environment in Areas Beyond National Jurisdiction’; A. de Hoogh, Obligations Erga Omnes and International Crimes (The Hague: Kluwer, 1996); M. Ragazzi, The Concept of International Obligations Erga Omnes, new ed. (Oxford: OUP, 2000); C.J. Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge: CUP, 2005). Which state might be willing to bring court action to enforce such an erga omnes obligation is moot (in the UK sense of that word = unresolved). Again it is certain that some countries would not be prepared to be sued on an erga omnes basis: analogously cf. the US reaction to the Nicaragua Case of 1986 as manifested in various articles in (1987) 81 AJIL. Effective international judicial proceedings depend on the consent of parties. That said, although they did not proceed to a judgement, the Nuclear Tests cases of 1974 may be considered to have an erga omnes element, contamination of the high seas being an element of the complaints. See the Nuclear Tests Case (New Zealand v France) 1974 ICJ Rep. 157 and the Nuclear Tests Case (Australia v France) 1974 ICJ Rep. 253.

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Notwithstanding, states should exercise ‘due diligence’ in framing and enforcing their laws and regulations so as to secure the environment.34 How does all this apply to space? Environmental Law and Space Questions of the space environment arise in a number of different ways. When C.W. Jenks included a chapter on these sorts of problems in his Space Law he perceptively entitled it ‘Space Cluttering and Contamination’.35 We here deal with seven different matters: astronomy, contamination, the near-Earth environment, space objects in orbit, space traffic management, space debris and planetary defence – the protection of the Earth from meteor, asteroid or cometary impact. Arguably the use of radio frequencies has an environmental aspect, but this is minimal within the parameters of this chapter, and although mentioned below in relation to astronomy and orbital questions, we covered radio more extensively in Chapter 8. Astronomy The interests of optical and radio astronomy are often overlooked in discussions of space activities and space law.36 Astronomy is, however, a valid use of space, which should be borne in mind. Radio astronomy is a ‘service’ for which provision is made in the Table of Allocations in the ITU Radio Regulations. Even so, radio astronomy continues to be subjected to interference from terrestrial sources. We consider this particularly in Chapter 17 on SETI, and Chapter 8 on Radio and the International Telecommunication Union.37 The institution of nationally and internationally protected radio ‘quiet zones’ would ameliorate some of these difficulties.38 Optical astronomy encounters two major problems, light pollution 34 �� ‘Due diligence’ has been a matter of discussion. Cf. Draft Art. 3 of the ILC 1998 Report, Chapter IV, on ‘International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law (Prevention of Transborder Damage from Hazardous Activities)’, ‘Prevention’ and Commentary; www.un.org/law/ilc/reports/1998/ chp4.htm. Cf. also Birnie and Boyle, supra n. 4 at 92–4. 35 �� C.W. Jenks, Space Law (London: Stevens, 1965) 280–2. UN OOSA maintains a useful Index of National Research on Space Debris, Nuclear Power Sources and Other Related Subjects: http://www.unoosa.org/oosa/en/natact/sdnps/sd_nps_docsidx.html. 36 �� Cf. G. Lafferanderie, ‘Space Law relevant to Astronomy’, UN/ESA Basic Workshop. Bonn, 1996: http://www.seas.columbia.edu/~ah297/un-esa/paper-lafferanderie.html. 37 �� For radio interference from satellite stations see infra at n. 103. 38 �� F.G. von der Dunk, ‘Space for Celestial Symphonies? Towards the Establishment of International Radio Quiet Zones’ (2001) 17 Space Policy 265–74. Cf. Chapter 17, c. n. 55.

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from the ground and interference caused by the albedo of space objects and other debris.39 We discuss the problems caused by orbiting objects and space debris below.40 Light pollution from terrestrial sources is also a handicap for astronomers although major observatories are now placed well away from light sources. Amongst others Commission 50 of the International Astronomical Union (IAU) has a Working Group on ‘Controlling Light Pollution’.41 The International DarkSky Association (www.darksky.org) seeks the reduction of light pollution for a variety of environmental reasons, including the needs of astronomers, professional and amateur. In 2005 the Fifth European Symposium for the Protection of the Night Sky adopted the ‘Declaration of Genk’ calling for further action, including by the European Union.42 The responsibility for such matters is, of course, that of municipal law and is perhaps best tackled at any planning stage.43 Contamination Before we turn to the contamination of space, we would first note that contamination of the surface and atmosphere of the Earth can occur during or as a result of a

39 �� ‘Albedo’ is the reflectivity of a body. 40 Infra following n. 87. 41 �� IAU Commission 50 deals with the ‘Protection of Existing and Potential Observatory Sites’, for both radio and optical observatories: see http://www.ctio.noao.edu/ light_pollution/iau50/. 42 �� http://www.britastro.org/dark-skies/articles/genk.html. The Seventh Symposium, October 2007, was to take up the matter again. See now the 8th Symposium, Darksky 2008: http://darksky2008.kuffner-sternwarte.at/. 43 �� Cf. ‘Light Pollution and Astronomy’, (UK) House of Commons, Committee on Science and Technology, Seventh Report (2002–3) (HC 747-I, Evidence at HC 747-II): http://www.publications.parliament.uk/pa/cm200203/cmselect/cmsctech/747/74710.htm. The Committee recommended a variety of measures to reduce light pollution in the interests of professional and amateur astronomers. The Clean Air and Environment Act 2005 Secs 101–103 made artificial light nuisance a statutory nuisance in England and Wales from 2006, but the exemptions are such that astronomy is not helped. Para. 90 of the Guidance Note, ‘Statutory Nuisance from Insects and Artificial Light’ issued by the then Department for Environment, Food and Rural Affairs indicates that light pollution is not necessarily a statutory nuisance, and that the new offence is not a remedy for light pollution per se. Cf. also M.M. Taylor and D. Hughes, ‘Exterior Lighting as a Statutory Nuisance’ (2005) J. Planning L. 1131–44. US law on light pollution is sporadic and patchy. See K.M. Ploetz, ‘Light Pollution in the United States: An Overview of the Inadequacies of the Common Law and State and Local Regulation’ (2002) 36 New Eng. L. Rev. 985–1039: cf. the website of the American Astronomical Society (www.aas.org) (search ‘light pollution’). The Declaration of Genk (supra n. 42), indicates that some European states have taken a variety of measures, but these also are patchy and not always effective.

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launch or particularly of a failed launch.44 Some launches occur into the areas of the high seas. Resultant pollution should come under the head of damage caused to areas outwith national jurisdiction, but unfortunately the ILC has not proceeded with that topic.45 Where a state launches its own satellites from its own territory pollution of that territory will be its own concern. However, we note that during the continued use of the Baikonour Cosmodrome by Russia subsequent to Kazakhstan independence, there was pollution of the Kazakh steppes by rocket fuel and a resultant dispute.46 This is a matter which non-territorial launching states, launch providers using foreign launch sites and commercial purchasers of foreign launches have to consider. We assume (but do not know) that relevant launch contracts either provide for compensation for any damage to launch-site territories or exclude liability. By contrast where contamination is caused to the territory of a non-launching state (to invent a label) liability will be incurred either under the Liability Convention, or in terms of Art. 5.4. of ARRA where material of a hazardous nature is incurred.47 Looking outward from the Earth, space and celestial objects can be contaminated and contamination of the Earth from returning space objects might occur. Discussions on the contamination of and from space have their own jargon. ‘Forward contamination’ is contamination of space or celestial bodies by Earth through our space activities. ‘Back contamination’ is the contamination of Earth from space by the return of astronauts or space objects that potentially might carry viruses or bacteria into the Earth environment. There is also the contamination of Earth orbit, but we come to that in the next section. Caution, not to say fear, as to the possibility of contamination arose early in the history of space. Indeed, the International Astronautical Federation discussed contamination at its Seventh Congress, Rome, 1956 – a year before Sputnik I. In 1958, having previously set up an ad hoc Committee on Contamination by Extraterrestrial Exploration (CETEX), the International Council of Scientific Unions (ICSU),48 formed the international Committee on Space Research

44 �� See ‘Space Rocket Launch Sites around the World’: http://www.spacetoday.org/ Rockets/Spaceports/LaunchSites.html#Hammaguir. 45 �� See supra at n. 20. 46 �� M. Hošková, ‘The 1994 Baikonour Agreements in Operation’ (1999) 42 Proc. IISL 263–72. Kazakhstan suspended Russian use of the site until compensation was agreed. 47 �� See Chapter 4 – ‘The Return of Space Objects’, ‘Liability’ and ‘Practice’. The ARRA liability laid on a launching state is under the direction and control of the state that has found the relevant space object (but only if it so requires) to eliminate the possible danger of harm from hazardous materials. This duty applies not only to national territory but also if a contracting state finds a space object elsewhere than somewhere under its jurisdiction. 48 �� ICSU is now the International Council for Science, but retains its old acronym: http://www.icsu.org/index.php.

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(COSPAR)49 in part to co-ordinate anti-contamination action.50 At first forward contamination was the major concern, especially given the early probes that were targeted to impact the Moon, and emergent plans for similar encounters with Venus and Mars, but when astronauts began to return from space, back contamination rose in prominence. The international law on these matters is sparse, national regulation being in practice crucial through its role in implementing its generalities. The second sentence of OST Art. IX provides: States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter, and, where necessary, shall adopt appropriate measures for this purpose.

In that statement there is a curious tension between the duty to ‘avoid … harmful contamination and … adverse changes’, but only to adopt appropriate measures ‘where necessary’. Further, it is noticeable that contamination per se is not excluded – only ‘harmful contamination’, and what constitutes that contamination is not defined. States are therefore left rather free in their implementation of the duty, albeit that the duty is one with which Art. VI requires them to ensure that their national activities comply. Precise implementation can be awkward, particularly when the OST is considered by a state to be non-self-executing and statutory authority is required.51 The other treaty which covers questions of contamination is the Moon Agreement of 1979. We consider the Agreement more fully in Chapter 7 but note here that its Art. 7.1 provides:

49 �� For COSPAR see http://cosparhq.cnes.fr/. Its Charter is at http://cosparhq.cnes. fr/About/charter.htm. 50 �� ‘Contamination by Extra-terrestrial Exploration’ (1959) Nature 925–8; C.R. Phillips, The Planetary Quarantine Program: Origins and Achievements, 1956–1973 (SP4902: NASA History Office, 1974): http://history.nasa.gov/SP-4902/sp4902.htm; G.S. Robinson, ‘Interplanetary Contamination: The Ultimate Challenge for Environmental and Constitutional Challenge?’ (2005) 31 J. Sp. L. 117–63 at 121ff; L.I. Tennen, ‘Evolution of the Planetary Protection Policy: Conflict of Science and Jurisprudence?’ (2004) 34 Adv. in Sp. Research 2354–62. 51 �� Thus for the US see Robinson, supra n. 50; G.S. Robinson, ‘Forward Contamination of Interstitial Space and Celestial Bodies: Risk Reduction, Cultural Objectives and the Law’ (2006) 55 ZLW 380–99; cf. P.M. Sterns and L. Tennen. ‘Current United States Attitude Concerning Protection of the Outer Space Environment’ (1984) 27 Proc. IISL 398. See also L.D. Roberts, ‘Ensuring the Best of All Possible Worlds: Environmental Regulation of the Solar System’ (1997) 6 N.Y.U. Env. L.J. 126–60 at 157–60; D.A. Cypser, ‘International Law and Policy of Extraterrestrial Planetary Protection’ (1993) 33 Jurimetrics 315–39.

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Space Law In exploring and using the moon, States Parties shall take measures to prevent the disruption of its environment, whether by introducing adverse changes in its environment, by its harmful contamination through the introduction of extraenvironmental matter or otherwise. States Parties shall also take measures to avoid harmfully affecting the environment of the earth through introduction of extraterrestrial matter or otherwise.

Although the Moon Agreement is relatively ineffective through its failure to gain general acceptance, because it was adopted by the General Assembly (UNGA Res. 34/68 of 5 December 1979) it is at least indicative of a generality of opinion as to matters of space contamination.52 In their implementation of duties as to non-contamination states have the benefit of the COSPAR Planetary Protection Policy which has been refined over many years. Its flaw is that it is recommendatory only, not binding.53 The Policy covers questions of biological contamination and deals with them in five categories of combinations of target body and space missions. An important factor in classification of forward contamination is whether the body may be of interest for understanding the process of chemical evolution or the origin of life. In Category I there is no such direct interest, protection of the target body is unwarranted and the policy imposes no protection requirements. In Category II there is significant interest in the target for such understanding, but the chance that contamination carried by a spacecraft could jeopardise future exploration is remote. Only simple documentation of the activity is needed. Category III missions are fly-by or orbital missions where the likelihood of an impact on the target body is small but there is either a ‘chemical evolution and/or origin of life’ interest or scientific opinion thinks there is a significant chance of contamination that could jeopardise a future biological experiment. Here documentation is to be more thorough, and ‘clean room’ and sterilisation procedures should be used in construction of the probe. Category IV missions involve planned landings. Documentation is to be more detailed, and the intended lander sterile.54 The big change of attitude in the Policy 52 �� Cf. M.S. Race and R.O. Randolph, ‘The Need for Operating Guidelines and a Decision Making Framework Applicable to the Discovery of Non-Intelligent Extraterrestrial Life’ (2002) 50 Adv. Space Res. 1583–91. Contamination was a matter which COPUOS was seised of, but ineffectively preferred to refer to the non-binding recommendations of COSPAR to which we are coming: Cypser, supra n. 51 at 317–21. 53 �� COSPAR Planetary Protection Policy, 2002, amended 2005: http://cosparhq.cnes. fr/Scistr/Pppolicy.htm. Cf. J.D. Rummel et al., ‘COSPAR’s Planetary Protection Policy: A Consolidated Draft’ (2002) 30 Adv. Space Res. 1567–71; I. Almar, ‘What Could COSPAR do to Protect the Planetary and Space Environment’ (2002) 30 Adv. Space Res. 1577–81; P.M. Sterns and L. Tennen, ‘The Future of Planetary Protection: Is there Reason for Optimism’ (2006) 49 Proc. IISL 391–400. For a practical example see the environmental assessment for the New Horizons mission of 2006, infra at n. 64. 54 �� An annex to the Policy lists the solar system target bodies to which Category III and IV may apply.

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rules comes in Category V with regard to any mission involving a return to Earth. In order to preserve the Earth–Moon environment Category V missions comprise all Earth-return missions. Documentation requirements are considerable as are the requirements as to the sterility etc. of hardware and materiél. However, where a solar system body has no indigenous life forms the requirements are modified. For these ‘unrestricted Earth-return’ projects only the outbound Category I and II requirements are imposed. All other cases are classed as ‘restricted Earth-return’. In these any destructive impact of a probe upon its return to Earth is absolutely prohibited so as to prevent the escape of material.55 All returned hardware which has directly contacted the target body together with any unsterilised material or samples from the target body is to be contained, such containment persisting through post-mission analysis. Perhaps ominously, ‘[i]f any sign of the existence of a nonterrestrial replicating entity is found, the returned sample must remain contained unless treated by an effective sterilizing procedure’. Of course this last is a staple of science fiction. Terrestrial bacteria may have killed H.G. Wells’s Martians in The War of the Worlds (1898): incoming biological material might reverse that outcome. Protection against contamination is essential, and as a matter of general environmental law is, of course, dictated by the Precautionary Principle.56 Nuclear contamination of the Earth may happen through the crashing of a satellite which has a nuclear power source.57 Indeed we already have the example of COSMOS 954 which came to Earth in Canada in January 1978.58 In addition 55 �� Cf. the crash of the returning element of the ‘Genesis’ probe in September 2004: http://news.bbc.co.uk/1/hi/sci/tech/3638926.stm. See also the Genesis Mission home-page: http://www.genesismission.org. The ‘Stardust’ spacecraft successfully parachuted a capsule to Utah in January 2006 with material from its visit to comet Wild II. The spacecraft itself was sent into Sun orbit. See: http://stardust.jpl.nasa.gov/mission/details.html. See also B.C. Clark, ‘Martian Meteorites do not Eliminate the Need for Back Contamination Precautions on Sample Return Missions’ (2002) 30 Adv. Space Res. 1593–1600; A. Debus, ‘Planetary Protection Requirements for Orbiter and Netlander Elements of the CNES/NASA Mars Sample Return Mission’ (2002) 30 Adv. Space Res. 1607–16. 56 �� For the US rules see NASA Policy Directive NPD 8020.7G on ‘Biological Contamination Control for Outbound and Inbound Planetary Spacecraft’ (1999) (expires 25 February 2013) assigning responsibilities for administering NASA’s planetary protection policy. The Directive refers to OST Art. IX, and stresses the importance of compliance so that contamination in both directions is avoided. See also NASA Policy Directive NPD 7100.10E on ‘Curation of Extraterrestrial Materials’ (expires 11 February 2013). For NASA NPDs and NPRs see http://nodis3.gsfc.nasa.gov. How the Memorial Spaceflights offered by Space Services Inc. (http://www.memorialspaceflights.com/services.asp) are regulated is unknown to us. See infra n. 128. 57 �� We consider the use of space for the disposal of terrestrial nuclear waste unrealistic and dangerous: R. Dusek, ‘Lost in Space: The Legal Feasibility of Nuclear Waste Disposal in Outer Space’ (1998) 22 Will. and Mary L. and Pol. Rev. 181–218. 58 �� ‘Canada – Union of Soviet Socialist Republics: Claim for damage caused by Cosmos 954’ (1979) 18 ILM 899–930; Protocol and Settlement, Moscow, 2 April 1981 (1981) 20 ILM 689. Other nuclear batteries have ended up in the Pacific from the returning

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the world has been alarmed by the 1986 Chernobyl nuclear accident,59 and by memories of the nuclear bombing of Hiroshima and Nagasaki at the end of the Second World War. The possibility of a major disaster involving contamination by plutonium caused the Florida Coalition, a group of environmentalists, to try to stop the launch of the Galileo spacecraft in 1989,60 and the Ulysses Project spacecraft in 1990.61 In both cases the spacecraft were to pass close to the Earth while building up the velocities necessary for their missions.62 However, in both cases the Coalition was unsuccessful. In 1997 a similar result attended an attempt to halt the Cassini Mission.63 More recently it is instructive to peruse the Final Environmental Impact Statement for the New Horizons Mission published in 2005, the initial parts of which assess the potential dangers of an accident during the New Horizons launch.64 Russian unmanned resupply ‘Progress’ spacecraft that serviced Mir and now the ISS. The Cosmos 954 incident is outlined in Chapter 4 in relation to questions of liability 59 �� International Atomic Energy Agency, Convention on Early Notification of a Nuclear Accident, 1986 (1986) 25 ILM 1370–6, and Convention on Assistance in the Event of a Nuclear Accident or Radiological Emergency, 1986 (1986) 25 ILM 1377–86, together with the Documents of the related IAEA Special Session (1986) 25 ILM 1387–1407, including reservations and application to incidents not covered by these agreements; Cf. Tokyo Economic Summit, ‘Statement on the Implications of the Chernobyl Nuclear Accident (1986) 25 ILM 1005–6; International Atomic Energy Agency, ‘Statement Summarizing Decisions Taken at the Special Session of the Board of Governors Concerning the Chernobyl Nuclear Accident’ (1986) 25 ILM 1009. See also D. Goren ‘Nuclear Accidents in Space and on Earth: An Analysis of International Law Governing the Cosmos-954 and Chernobyl Accidents’ (1993) 5 Geo. Int. Env. L. Rev. 855–95; M.S. Straubel, ‘Space Borne Nuclear Sources – the Status of their Regulation’ (1986) 20 Valparaiso U.L. Rev. 187–218. 60 Florida Coalition for Peace and Justice v George Herbert Walker Bush, et al., Civil Action no. 89-2682-OG United States District Court for the District of Columbia, 10 October 1989; 1989 US Dist. LEXIS 12003. S. Gorove, ‘Recent Litigation Involving the Launch of Spacecraft with NPS on Board’ (1993) 36 Proc. IISL 298–303. 61 Florida Coalition for Peace and Justice v George Herbert Walker Bush, et al., Civil Action no. 89-2682-OG United States District Court for the District of Columbia, 5 December 1990; 1990 US Dist. LEXIS 13345. S. Gorove, supra n. 60. 62 �� A number of deep space missions use the fly-by technique to pick up speed. Sometime the Earth is used. New Horizons (n. 64) used Jupiter. The Messenger mission to Mercury used the Earth in July 2007, and will use Venus several times before arriving at Mercury in 2011. ‘Deep Impact’ passed some 10,000 miles above Australia on 31 December 2007 on its way to its next mission. 63 Hawaii County Green Party, Florida Coalition for Peace and Justice, Plaintiffs v William Jefferson Clinton, President of the United States, in his official capacity, et al.; 11 October 1997; US District Court for the District of Hawaii; 980 F. Supp. 1160; 1997 US Dist. LEXIS 16196. The US notified the UN as to the related environmental safety assessment in 1997: A/AC.105/677 – 2 June 1997. 64 �� NASA, Final Environmental Impact Statement for the New Horizons Mission, July 2005: http://spacescience.nasa.gov/admin/pubs/plutoeis/ or its 2 vols; Vol. 1: http://

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The possibility of nuclear contamination of the Earth by a crashing satellite certainly exists and should be planned for by national authorities. International provision comes in UNGA Res. 47/68 of 14 December 1992 on ‘Principles Relevant to the Use of Nuclear Power Sources in Outer Space’.65 The Principles are limited in their application to nuclear power sources ‘devoted to the generation of electric power … for non-propulsive purposes’ generally similar to those in use at the time of the adoption of the Principles (Preamble, ‘Affirming’). While Pr. 11 makes room for the revision of the Principles, that has not yet happened, but we would hope that their general tenor would be complied with in the case of a crash with a more recently developed nuclear source on-board. In the Nuclear Power Principles much is the responsibility of the ‘launching state’ or the ‘state launching’ the space object. The definition of such is limited to the state exercising jurisdiction and control (presumably in terms of Art. VIII of the OST) over the space object at the relevant time,66 but for the purpose of liability by Pr. 9 the ‘launching state’ is defined broadly as in Art. VII of the OST and the Liability Convention (Pr. 2.1). When a space object has a nuclear power source on-board and there is a malfunction and a risk of the re-entry of radioactive materials,67 ‘as soon as the malfunction has become known’ (Pr. 5.2) its launching state is to inform the UN Secretary General and any states that might be affected

spacescience.nasa.gov/admin/pubs/plutoeis/NH-FEIS_Vol1.pdf; Vol. 2: http://spacescience. nasa.gov/admin/pubs/plutoeis/NH-FEIS_Vol2.pdf. The related Record of Decision is at http://spacescience.nasa.gov/admin/pubs/plutoeis/NH-ROD.pdf. The statement was compiled under the US National Environmental Policy Act (NEPA) (42 USC 4321 ff.) to assist in the decision-making process for the project. Launched in January 2006, New Horizons is to explore Pluto and the Kuiper Belt, arriving in 2015. Cf. the US notification to OOSA: A/AC.105/864. Environmental assessments for other NASA launches are in the US Federal Register of Environmental Documents at http://www.epa.gov/fedrgstr/EPAIMPACT/ e.g. http://www.epa.gov/fedrgstr/EPA-IMPACT/2002/June/Day-18/i15348.htm. [The New Horizons probe is currently hibernating in transit from Jupiter to Pluto: http:// pluto.jhuapl.edu/news_center/news/100907.htm.] Cf. also ‘Environmental Assessment for ICESat’ NASA Goddard Spaceflight Centre, Maryland: http://icesat.gsfc.nasa.gov/ publications/12538-r10.pdf; ‘Environmental Assessment for the Sea Launch Project’, ICF Kaiser Consulting for NASA: http://www.fas.org/spp/guide/ukraine/launch/2_99Bslea.pdf. 65 �� ‘Principles Relevant to the Use of Nuclear Power Sources in Outer Space’, 14 December 1992. UNGA Res. 47/68; 1993 32 ILM 917. (1993) 32 ILM 917 at 921–6. N. Jasentuliyana – 1, ‘Multilateral Negotiations on the Use of NPS in Outer Space’ (1989) 24 AASL 297–337; – 2, ‘An Assessment of the United Nations Principles on the Use of Nuclear Power Sources in Outer Space’ (1993) 36 Proc. IISL 312–21. See also infra at n. 80 and following. 66 �� Interestingly this formulation allows for the transfer of responsibility for a satellite by change of its registry. See Chapter 4, p. 92. 67 �� The term used is ‘risk’, not ‘significant risk’ or ‘minimal risk’ or other modification of its level.

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(Pr. 5.1).68 The information required comprises the system parameters (roughly those required by the Registration Convention) but particularly includes ‘information required for the best prediction of orbital lifetime, trajectory and impact region’ (Pr. 5.1.(a)(iv)). Principle 5.1(b) then requires information to be supplied as to the type of the nuclear power source on-board (whether it is a radioisotopic generator or a nuclear reactor) (Pr. 5.1.(b)(i)) and as to the ‘probable physical form and general radiological characteristics of the fuel and any contaminated and/or activated components likely to reach the ground. The term ‘fuel’ refers to the nuclear materials used as the source of heat or power’ (Pr. 5.1.(b)(ii)). Information is to be updated as frequently as practicable and with increasing frequency as the anticipated ‘re-entry into the dense layers of the atmosphere approaches’ ‘so that the international community will be informed … and will have sufficient time to plan for any national response activities deemed necessary’ (Pr. 5.2).69 Principle 6 goes on to require the launching state to respond quickly to requests for further information or consultations. Other states are also to be involved. When under the Principles the launching state notifies the possible re-entry of a nuclear power source all states having monitoring and tracking facilities are expected to get involved. They are to keep the UN Secretary General and other states informed of any information they may have so as to allow potentially affected states ‘to assess the situation and take any precautionary measures deemed necessary’ (Pr. 7.1). Once the re-entry has occurred the launching state is to offer assistance in identifying the location of the impact, the detection of materials and their retrieval or clean-up (Pr. 7.2(a)).70 As indicated in our discussion of the Liability Convention and of the Nuclear Power Principles there, the acceptance of an offer is at the discretion of the affected state. However, in contra-distinction, if the launching state is requested to offer assistance, it is to provide it (Pr. 7.2.(a)). Other states and relevant international organisations with appropriate capabilities are also to offer their help (Pr.7.2.(b)). However, again it is for an affected state to accept or decline an offer. Of course the possible crash of a nuclear power source in its territory is an emergency for which governments should have plans and procedures. There will be short- and long-term risks to the population as well as potentially significant damage to property. Less-developed countries are less likely to have such procedures. Accordingly the last paragraph of Pr.7 states that in the implementation 68 �� M. Hošková, ‘The Notification Principle in the 1992 NPS Principles’ (1993) 36 Proc. IISL 304–11. 69 �� The UN Secretary General is similarly to be kept informed (Pr. 5.3). An example of the Principles in action is the Russian notification of the launch of the Mars-96 probe on 15 November 1996 (A/AC.105/647) and its re-entry east of Australia on 16 November 1996 following a launch failure (A/AC.105/648). 70 �� Principle 3 calls for nuclear sources to be placed in non-frangible containers, but it is realistic to have provision as to a clean-up were such to fail. See also ARRA Art. 5 regarding the clean-up of hazardous and deleterious materials.

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of Pr.7.2.(a) and (b) as to states helping each other, ‘the special needs of developing countries shall be taken into account’. Principle 10 indicates that dispute as to the application of the Principles is to be resolved through negotiation or any other established procedures for the settlement of disputes in accordance with the UN Charter. There have been none such as yet. Penultimately, there are, of course the questions of responsibility, liability and compensation. These are covered in Prs. 8 and 9, and we have dealt with such matters back in Chapter 4. Interestingly, for the purpose of liability under Pr. 9 the ‘launching state’ is defined broadly as in Art. VII of the OST and the Liability Convention, while in connection with other Nuclear Principles the term is restricted to the state exercising jurisdiction and control (presumably in terms of Art. VIII of the OST) over the space object at the relevant time (Pr. 2.1).71 Finally, under Pr. 11 the Principles were to be reopened for revision by COPUOS no later than two years from their adoption (in 1992). Revision has not occurred.72 The Near-Earth Environment We have just outlined questions of contamination of the Earth or celestial bodies. There are also questions of the contamination of the near-Earth environment. Most current space activities take place in Earth orbit where space is becoming cluttered by the deliberate insertion of objects or materials. Debris is, of course, a major problem but we tackle that separately below. The contamination of Earth orbital space, as opposed to the presence of debris, is possible. Regrettably, in the early years of space both the US and USSR deliberately detonated nuclear devices in orbit.73 Apparently this affected the Van Allen radiation belts before they could be examined in their pristine condition. The position as to nuclear explosions is now regulated for its parties by the Nuclear 71 �� Cf. Note Verbale of 29 July 2003 from The Netherlands: A/AC105.806 as to satellites 2002‑019A and 2002-057A; http://www.unoosa.org/pdf/reports/ac105/AC105_ 806E.pdf, and Note Verbale of 18 February 2004 from The Netherlands: A/AC.105/824 as to the removal of 1988-040A from geostationary orbit: http://www.unoosa.org/pdf/reports/ ac105/AC105_824E.pdf. 72 �� A.D. Terekhov, ‘Review and Revision of the Principles relevant to the Use of Nuclear Power Sources in Outer Space’ (1993) 36 Proc. IISL 336–48. 73 �� The three US ‘Operation Argus’ explosions were conducted over the South Atlantic between August and September 1958, with ‘Starfish’ occurring in 1962. The three USSR tests over Siberia were in October/November 1962. Radiation from ‘Starfish’ destroyed three satellites: D.P. Stern, ‘Birth of a Radiation Belt’ http://istp.gsfc.nasa.gov/Education/ wbirthrb.html. See also M.W. Mouton, ‘Artificial Radiation: the Starfish Experiment’, in M.W. Mouton, ‘The Impact of Science on International Law’ 119 Hague Recueil 1966-III, 183–260 at 236–8; A.G. Haley, Space Law and Government (New York: Appleton-CenturyCrofts, 1963) at 11–12, 267–71 and 326.

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Test-Ban Treaty of 1963, Art. I of which prohibits nuclear tests inter alia in space.74 The absence of France from the Nuclear Test Ban Treaty has provoked questions whether this prohibition has passed into customary International Law,75 but we would hope that non-parties to the Treaty would refrain from such actions. The UN General Assembly has unanimously called on states to refrain from placing in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction or from installing such weapons on celestial bodies,76 and OST Art. IV makes similar provision. Unfortunately the UN Comprehensive Nuclear Test Ban Treaty of 1996 has not yet been brought into force.77 By its Art. 1.1 states party undertake not to carry out any nuclear weapon tests or any other nuclear explosion and to prohibit and prevent any such explosions at any place under their jurisdiction or control. This language would encompass nuclear explosions in space, on the Moon or on any other celestial bodies.

74 �� Treaty Nuclear Weapon Tests in the Atmosphere, in Outer Space or Under Water, Moscow, 5 August 1963, 480 UNTS 43; 14 UST 1313, TIAS 5433; 1964 UKTS 3, Cmnd. 2245; (1963) 57 AJIL 1026; (1963) 2 ILM 883: http://www.state.gov/t/ac/trt/4797. htm; M.W. Mouton, ‘Nuclear Bomb Tests’, in M.W. Mouton, ‘The Impact of Science on International Law’ 119 Hague Recueil 1966-III, 183–260 at 242–49; ‘X’, ‘Nuclear Test Ban Treaties’ (1963) 39 BYIL 449–56; E. Schwelb, ‘The Nuclear Test Ban Treaty and International Law’ (1964) 58 AJIL 642–70. Cf. the Nuclear Tests Case (New Zealand v France) 1974 ICJ Rep. 157 and the Nuclear Tests Case (Australia v France) 1974 ICJ Rep. 253, and next note. 75 �� Cf. Paras 105.2.A and B of the Decision, and the Opinion (particularly paras 27–9), the Separate Opinions, Declarations and Dissenting Opinions in the Legality of the Threat or Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 8 July 1996 (1996) ICJ Rep. 226; (1996) 35 ILM 809. 76 �� ‘Question of General and Complete Disarmament’ UNGA Res. 1984 (XVIII), 17 October 1963. Cf. the series of Resolutions on the ‘Prevention of an Arms Race in Outer Space’, e.g. UNGA 61/58, 6 December 2006 and UNGA 62/20, 5 December 2007. 77 �� UN Comprehensive Test Ban Treaty, 1996 (1996) 35 ILM 1439–78, US Senate Doc 105-28. As at June 2008 one-hundred and seventy-eight states had signed, of which onehundred and forty-four had ratified it, but to come into force it requires to be ratified by the forty-four states listed in its Annex 2. These are the states which possess nuclear power or nuclear reactors. As at June 2008 forty-one of these had signed and thirty-five ratified. D.S. Jonas, ‘The Comprehensive Nuclear Test Ban Treaty: Current Legal Status in the United States and the Implications of a Nuclear Test Explosion,’ (2007) 39 N.Y.U. J. Int. L. and Pol. 1007–46. As noted in our text above, this treaty prohibits nuclear explosions anywhere. It would also set up monitoring stations and an organisation to implement its provisions, including verification of compliance, which may be its stumbling block (see the Preparatory Commission for the Comprehensive Test Ban Treaty Organisation (CTBTO): http://www. ctbto.org/). A future problem might be the effect of the treaty on nuclear propulsion systems for spacecraft as these develop.

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While most satellites are powered by solar cells and batteries, some use nuclear power sources.78 These are either nuclear reactors (usually used for long-range missions) or radioisotope thermoelectric generators (RTG) producing heat which is converted to electricity – in effect nuclear batteries. That said, the Nuclear Power Principles (some of which have been outlined already and to which we return to in the next paragraph) specifically state that in order to minimise the quantity of radioactive materials in space and the accompanying risks, nuclear sources should only be used when a mission cannot reasonably use a non-nuclear power source (Pr. 3 preamble). As we will see below, for the further protection of the Earth the Principles also require that after use Earth orbiting satellites with nuclear power sources are to be stored in high orbits (Prs. 3.2.(a)(iii) with 3.2.(b); Pr. 3.3.(a)).79 The previous section considered the potential contamination of the Earth from the crash of a nuclear powered satellite. An explosion on-board any nuclear powered satellite in orbit may result in nuclear debris in space. The Nuclear Principles (UNGA Res. 47/68, 14 December 1992) therefore set goals and guidelines in an attempt to secure the safety of nuclear power sources generally.80 Adopted almost fifteen years after the COSMOS 954 episode of 1978, the Principles recognise that nuclear power sources are ‘particularly suited or even essential’ to some space missions. The Preamble states that they apply only to non-propulsive nuclear power sources used to generate electricity, leaving open the interesting possibilities of propulsion by ramjet, fission, fusion, gas, electric, photon and other methods involving nuclear materials (Preamble, ‘Affirming’). It also recognises that the proper use of nuclear power sources in space requires a thorough analysis of risks to safety and appropriate assessments (Preamble, ‘Recognising further’). The Principles were intended to deal with systems comparable to those in use at the time of their adoption (Preamble, ‘Affirming’) and therefore the need to revise and update them is also recognised (Preamble, ‘Recognising’) but, although Pr. 11 called for COPUOS to re-examine the Principles two years after their adoption, as noted this has not so far happened. Principle 1 re-states the generality that nuclear power sources in outer space are to be used in accordance with International Law including the UN Charter and the OST. Principle 2 then goes on to define terms to establish the meaning of various terms. As we have seen a distinction is made between the ‘launching state’ for the purpose of liability in terms of Pr. 9, and its use elsewhere in the 78 �� S.A. Mirmina and D.J. Den Herder, ‘Nuclear Power Sources and Future Space Exploration’ (2005) 6 Chic. J. Int. L. 149–76; J.J. MacAvoy, ‘Nuclear Space and the Earth Environment: the Benefits, Dangers, and Legality of Nuclear Power and Propulsion in Outer Space’ (2004) 29 Will. and Mary Env. L. and Policy Rev. 191–233. 79 �� See infra n. 84 and following n. 121. 80 �� Principles Relevant to the Use of Nuclear Power Sources in Outer Space, 14 December 1992. GA Res. 47/68; (1993) 32 ILM 917 at 921–6. Cf. V. Kopal, ‘The Use of Nuclear Power in Space: A New Set of United Nations Principles?’ (1991) 19 J. Sp. L. 103–22, Jasentuliyana, supra n. 65, Hošková, supra n. 68 and Terekhov, supra n. 72.

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Principles. For liability the term is defined broadly as in Art. VII of the OST and in the Liability Convention (Pr. 2.2). Otherwise the ‘launching state’ is defined as the state having jurisdiction and control over the space object at the relevant time (Pr. 2.1). Principle 2.3 then deals with other terms and phrases used in the Principles. ‘Foreseeable’ and ‘all possible’ are restricted to a probability of occurrence which is credibly possible for the purpose of safety analysis, and the terms are not absolute. Redundant safety systems for each component in order to achieve ‘defence in depth’ are not necessarily required. ‘Defence in depth’ against a malfunction does, however, require design of equipment and its operation so as to prevent or mitigate the effect of a malfunction. Finally, making a nuclear reactor ‘critical’ does not include zero-power testing. Principle 3 is the major core of UNGA Res. 47/68. Radioactive materials in space are to be limited, and when used, severely controlled. Its introductory paragraph specifically states that ‘in order to minimise the quantity of radioactive materials in space, and the risks involved’ the use of nuclear power sources in outer space is to be limited ‘to those space missions which cannot be operated by non-nuclear energy sources in a reasonable way’.81 Principle 3 then sets out general goals for safety and protection from radiation together with measures as to nuclear reactors and radioisotope generators. Under Pr. 3.1 generally the highest standards of design and manufacture are to be adopted for space objects with nuclear power sources on-board. These should meet the standards set by the International Commission on Radiological Protection.82 A distinction is made between low-probability accidents and others as to levels of radiation exposure, but these levels are under constant review (Pr. 3.1), A general concept of ‘defencein-depth’ is to be applied including the possibility of correction of malfunctions (Pr. 3.1.(d)) and the reliability of safety systems through redundancy,83 physical separation, functional isolation and adequate independence of components. Nuclear reactors are the subject of Principle 3.2. Only enriched U235 is to be used on space missions (Pr. 3.2.(c)). Devices using U235 may be operated on interplanetary missions or in what is defined as ‘sufficiently high’ orbits round the Earth or in low Earth orbit provided that the devices are stored in a ‘sufficiently high’ orbit at the end of the mission (Pr. 3.2.(a)). All satellites with nuclear reactors are to have means to ensure that they can be safely and controlledly disposed of into a ‘sufficiently high’ orbit – colloquially a graveyard, junk or disposal orbit (Pr. 3.2.(f)).84 ‘Sufficiently high’ is defined as an orbit so high that the orbital lifetime 81 �� Global positioning satellites run on nuclear batteries. Deep space probes may use a nuclear furnace. 82 �� Based in Stockholm, and a registered charity in the UK, the International Commission on Radiological Protection is an independent non-governmental advisory body: http://www.icrp.org/. 83 �� Although as per Pr. 2.3, above, not necessarily for all components. 84 �� M. Meija-Kaiser, ‘Taking Garbage Outside: The Geostationary Orbit and Graveyard Orbits’ (2006) 49 Proc. IISL 469–77. In the IADC Guidelines on Debris Mitigation of

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will outlast the decay of the fission products on-board the satellite to approximately the activity of the actinides. Such an orbit would be well beyond the geostationary orbit. In the calculation of the relevant altitude the period for the radioactivity of the reactor itself to reduce to acceptable levels before re-entry is also to be considered (Pr. 3.2.(b)). Apart from zero-power testing (Pr. 2.3) a reactor must not be made critical before reaching either the operating orbit of the spacecraft or an interplanetary trajectory (Pr. 3.2.(c)) and the design and construction of the reactor should be such that it cannot become earlier critical under any circumstances including explosion, re-entry, impact or the incursion of water (Pr.3.2.(d)). Radioisotope thermoelectric generators (RTGs) are treated similarly. They may be used on interplanetary missions ‘and other missions leaving the gravity field of the Earth’ (which presumably means to the Moon, or extra-solar missions). Earth orbital missions are also competent provided that at the end of the mission the satellite is placed in a ‘sufficiently high orbit’. Ultimate disposal will be necessary (Pr. 3.3.(a)). As with reactors, an RTG container is to be such that it can withstand atmospheric re-entry and will not fracture on impact with the ground so that the impact area can be completely cleared of radioactivity by a recovery operation (Pr. 3.3.(b)).85 Obviously such provisions make for the safety of use of nuclear power sources. This is augmented by the specific requirement that, prior to a mission, a launching state carry out a thorough safety assessment of design and construction as well as of the operational systems, and that procedure is to involve designers, manufacturers and contractors as well as any state which would be a ‘launching state’ as defined in the Liability Convention (Pr. 4.1 and 2). In accordance with OST Art. XI the result of the assessment and ‘to the extent feasible’ the time of the intended launch are to be made publicly available, and the UN Secretary General is to be informed of how states may obtain the results of the assessment (Pr. 4.3).86 Of course, despite all such Principles, accidents may happen. We have dealt with the procedures as to the notification of a malfunction, re-entry and liability in the case of a crash on Earth in the immediately previous section. As to how the Principles may work in practice, see the NASA Final Environmental Impact Statement for the New Horizons Mission of 2006 referred to above.87 2002 (infra nn. 110, 141) Guideline 5.3.1 recommends the use of graveyard orbits beyond the GSO for spent GSO satellites to protect the GSO. See generally Guideline 5 on PostMission Disposal for all orbits. Some Russian satellites have at end of mission been boosted out of orbit on trajectories that end in the Sun. For the relevant ITU recommendation see n. 91. See also Chapter 9, p. 246. 85 �� The phrasing may reflect the fact that the RTG on COSMOS 954 did fracture. Specific mention is made of the possibility of a crash on return from a highly elliptical orbit where the re-entry velocity would be very great. 86 �� Thus the US notification to the UN in terms of Pr. 4 for the ‘New Horizons’ mission is at A/AC.105/864. Cf. n. 64 supra. 87 Supra n. 64.

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Space Objects in Orbit The major use of near-Earth space is the orbiting of satellites. When their function is at an end they effectively become debris which is considered separately below. Various orbital configurations are in regular use. To repeat data from Chapter 9, most satellites are in low Earth orbit (LEO) (c. 100–500 km/65–310 miles), taking some ninety minutes for each orbit. These vary from tracks more or less over the equator to polar orbits. Such orbits are roughly circular, their low and high points (perigee and apogee) being comparable. These orbits are lower than the Van Allen radiation belts. A highly elliptical Earth orbit (HEO) has a wide variation between perigee and apogee. Such orbits in their apogee phase remain visible from a point on Earth for up to twelve hours, and are used inter alia by communications satellites (e.g. the Russian Moliyna series). A medium Earth orbit (MEO) or intermediate circular orbit (ICO) is between 2,000 km and 35,000 km (1,240–21,750 miles) and a satellite in MEO takes anything from two to twelve hours to complete an orbit. MEOs are used mainly for global positioning satellite configurations, though they are also used for some communications satellites.88 A geosynchronous orbit is one in which a satellite returns to the same position each day. Of these the most well-known is the geostationary orbit (GSO), an eastwards circular orbit some 35,786 km/22,236 miles above the equator. The GSO is used for communications and remote sensing (mainly meteorological) satellites.89 A ‘parking orbit’ may be in LEO or MEO and is used temporarily after launch before a satellite or space probe is put on its final trajectory. Finally, a ‘graveyard’, ‘disposal’ or ‘junkyard’ orbit is normally higher than the geostationary. It is used for satellites that have reached the end of their useful life, and which it would be too expensive or difficult to de-orbit to Earth. As noted above, defunct satellites with radioactive power sources on-board are to be placed in a ‘sufficiently high’ orbit to remove them from causing problems in the immediate future.90 ITU Radiocommunication Sector Recommendation S.1003-1 (01/04) ‘Environmental Protection of the Geostationary-satellite Orbit’ would have states ensure that at the end of their useful lifetime geostationary satellites are relocated to a ‘supersynchronous graveyard orbit’ which does not intersect with the GSO.91

88 �� A satellite in a suitable MEO will provide communications facilities for the North and South Polar areas. The LEO or GSO will not. 89 �� See Chapters 8, 9 and 13. 90 Supra n. 84. 91 �� This Recommendation was first adopted in 1993 as ITU-R S.1003 (04/93). The revision of 2004 incorporates IADC originating protocols for the calculation of the new orbit. See also n. 84 supra. L. Perek, ‘Planetary Protection: Lessons Learned’ (2002) 45 Proc. IISL 462–5 at 464 notes that only two out of fourteen GSO satellites at the end of their life in 2001 had been relocated. In 1996–2001 some fifty spent satellites had been left in GSO.

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Satellites come in two main forms, passive and active. As we will see, considered simply as objects active satellites have the same potential as passive satellites for interfering with other uses of space, but we first deal more particularly with passive satellites as such. Passive satellites do not possess radio facilities except perhaps for the reception of signals for their initial deployment. They are deliberately placed in low Earth orbit for a variety of purposes. Thus ‘Project West Ford’ (1961–3) involved the insertion of small dipoles (2 cm long copper needles) with the intention of their being used to reflect radio transmissions. Some clusters of Project West Ford needles are still in orbit, and may still cause problems.92 Other launches were of balloons. ‘Echo 1’ (1960) (30 metres in diameter) and ‘Echo 2’ (1964) (41 metres in diameter) were large metallised polymer balloons inflated in orbit to act as passive radio reflectors as well as for geodetic purposes (the measurement of the Earth).93 The Echo balloons re-entered the atmosphere respectively in 1968 and 1969. PAGEOS I, in orbit from 1966 to 1975, was another geodetic project.94 In the NASA Explorer series, Explorers 9 (1961–4), 19 (1963–81), 24 (1964–8) and 39 (1968–81)95 were launched to measure atmospheric density, as was another Mylar balloon launched by the US Department of Defense (1971–91). China has launched two balloons, also to measure atmospheric density (both 1990–91), while one Russian balloon apparently remains in orbit (1991–). Passive satellites have been suggested for other physically larger projects and not always for scientific purposes. In the 1990s Russia considered orbiting large reflectors in low Earth orbit to illuminate portions of the northern hemisphere in winter. The possibility also exists of passive satellites being used for advertising.96 In the remote past it was suggested that vapour released from a pod in a crater of the Moon could by 92 �� J.C. Mandeville and J.-M. Perrin, ‘Interaction between Electromagnetic Radiations and West Ford Needle Clusters: Models and Application’ (2006) 58 Acta Astronautica 587–604; R.M. Goldstein et al., ‘Radar Observations of Space Debris’ (1998) 46 Planetary and Sp. Sc. 1007–13; M.W. Mouton, ‘Project West Ford’, in M.W. Mouton, ‘The Impact of Science on International Law’ 119 Hague Recueil 1966-III, 183–260 at 238–42; A.G. Haley, supra n. 73, at 268–9. 93 �� D.C. Elder, Out from Behind the Eight-Ball: A History of Project Echo (Washington DC: Am. Hist. Soc., 1995) (not seen). A ‘reflecting satellite’ is ‘a satellite intended to reflect radiocommunication signals’ (ITU RR 1.181). 94 �� Geos I and II (1965–75) (Explorer series nos 29 and 36) and some other early experiments allowed triangulation of a flashing or strobing beacon carried by the satellite. Technical advance, particularly through GPS programmes, has rendered such procedures obsolete. Geos I and II should not be confused with later GEOS programmes which provide Earth observation from geostationary orbit. 95 �� Dates are of launch and decay. 96 �� D.E Tomlinson and R.L. Wiley, ‘People Do Read Large Ads: The Law of Advertising from Outer Space’ (1995) 2 Global Leg. Stud. 2; (1995) 47 Fed. Comm. L.J. 535. Russia has displayed an identifiable soft drink container in space, and for $5m has displayed an advert for a pizza product on the side of a Proton launcher.

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appropriate masking, be made to configure in space an advertisement for a wellknown (US) soft drink. That was perhaps extreme, but the fact is that advertising in space has potential. An IAU background paper submitted to COPUOS in 2001 noted proposals to put materials in orbit for advertising (or celebration) purposes including a ‘Ring of Light’ to celebrate the bicentennial of the French Revolution and the centennial of the Eiffel Tower in 1997, a ‘Star of Tolerance’ to consist of two large tethered balloons in low Earth orbit to celebrate the fiftieth anniversary of UNESCO also in 1999, the ‘Space Billboard’, a one square kilometre reflector to be in low Earth orbit, and a similar project to advertise the Olympic Games in Atlanta in 1996.97 As early as 1961 the International Astronomical Union (IAU) was concerned about the effect on its members’ activities of all space objects whether active or passive.98 An IAU paper of 2001 notes that some space activities necessarily affect the work of astronomers but their ‘benefit to national or international interests’ may be ‘perceived to outweigh their adverse effects’. Nonetheless, ‘obtrusive space advertising’ should be controlled, and preferably proscribed.99 ‘Obtrusive space advertising’ would not include the display of

97 �� See: ‘Obtrusive Space Advertising and Astronomical Research: Background Paper by the International Astronomical Union’, COPUOS, A/AC.105/777, 18 December 2001; discussion of the topic by COPUOS Legal Sub-Committee A/AC.105/786, paras 135–42. At para. 138 the Sub-Committee ‘noted with appreciation’ that in 2000 the US banned the commercial launch of material for use in obtrusive space advertising. See 49 US Code § 70109a, added by Pub. L. 106–391, title III, Sec. 322(b), 30 October 2000, 114 Stat. 1598; and rules at (US) Federal Register, 31 August 2006, 51968–72, ‘Miscellaneous Changes to Commercial Space Transportation Regulations: 14 CFR Parts 404, 413 and 420’. ‘Obtrusive space advertising’ is defined in 49 US Code § 70102.(9) as ‘advertising in outer space that is capable of being recognised by a human being on the surface of the Earth without the aid of a telescope or other technological device’. 98 �� Of the passive satellites noted above, the Echo balloons were of magnitude 1, while PAGEOS was magnitude 2. Their progress across the sky affected some astronomical observations. 99 �� IAU paper supra n. 97 at paras 22 and 33–5. Tomlinson (supra n. 96) was of the view that all space advertising should be banned, while his co-author, Wiley, although permitting it, would favour its regulation: see D.E. Tomlinson, ‘The Better Means of Preserving Free Expression: Thoughts on Vigilance, Responsibility, Stewardship, Journalism Education, and the Demise of Value Systems’ (2000) 23 U. Ark. Little Rock L. Rev. 81 at 110. Cf. IAU ‘Resolution on the Protection of the Night Sky’, IAU Gen. Ass. XXIII, 1997: ‘Considering that Proposals have been made repeatedly to place luminous objects in orbit round the Earth to carry messages of various kinds and that the implementation of such proposals would have a deleterious effect on astronomical observations, and that the night sky is the heritage of all humanity, which should therefore be preserved untouched, Requests the President to take steps with the appropriate authorities to ensure that the night sky receive no less protection than has been given to the world heritage sites on earth’: http://www.aas. org/light/lightpollresolution.html. J.H. Huebert and G. Block, ‘In Defence of Advertising in Space’ (2006) 49 Proc. IISL 479–89, argue in favour of no regulation – basing their view on

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advertising on the side of a launch vehicle, as has been done by Pepsi on the Russian Proton launches. Both passive and active satellites can affect visual astronomical observations, as can the larger pieces of space debris. The passage of a Sun-illuminated object or a strobing beacon across the field of a photographic plate can ruin an observation. The object need not be that large – what is important is its albedo100 (for albedo, see n. 39). The satellites of the Iridium constellation are themselves small, but ‘Iridium flares’ are visible to the human eye.101 We would also note that any development of a solar power array system in orbit would necessarily affect visual astronomy, and perhaps radio astronomy might also be affected by the microwave down links from the satellites. In that any ‘catcher’ of solar radiation is bound to be very large, interference with some astronomy is unavoidable.102 Apart from their mere existence in Earth orbit, active satellites affect the use of space through their radio emissions.103 Active satellites are ‘active’ because they require radio for tracking, telemetry and tele-command as well as frequencies for the data and other communications which they receive and transmit. In the ITU Radio Regulations an active satellite is a space station, defined as ‘a station located on an object which is beyond, is intended to go beyond, or has been beyond, the major portion of the Earth’s atmosphere’ (RR S1.64). More particularly it is ‘a satellite carrying a station intended to transmit or retransmit radiocommunication signals’ (RR S1.80). Radio frequencies are a limited natural resource to be used ‘rationally, efficiently and economically’ and the part of the radio spectrum best suited for use by satellites is only a portion of the whole.104 It is therefore important that appropriate measures are available to terminate its radio emissions when the satellite has served its function.105 Whether passive or active satellites are concerned, their impact or effect on the environment of space is a matter clearly within the responsibility and competence concepts of property and free speech that are derived mainly from the US. As to US rules see supra n. 97, but these only apply to US-licensed launches. 100 �� Cf. supra n. 98. 101 �� P.D. Maley and J.C. Pizzicaroli, ‘The Visual Appearance of the Iridium Satellites’ (2003) 52 Acta Astronautica 629–639. The website Heavens Above, http://heavens-above. com/, provides data on expected Iridium flares for requested locations. 102 �� See Chapter 9 – ‘Solar Power’. 103 �� Reference point, n. 37. 104 �� ITU Constitution Arts 44.1 and 2. See Chapter 8, Radio. 105 �� Originally such measures might be tele-command, short battery life or a timing device. Now tele-command is required by Art. RR 22.1 of the ITU Radio Regulations: ‘Space stations shall be fitted with devices to ensure immediate cessation of their radio emissions by tele-command, whenever such cessation is required under the provisions of these Regulations’. Some early US satellites could not be switched off and continued to broadcast on space-ideal frequencies long after their experiments had been hopelessly corrupted by solar and other radiation thus rendering those frequencies unusable for a number of years.

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of states that license space activities (OST Art. VI). In the consideration of whether to license a space activity, ‘due regard to the corresponding interest of other states’ (OST Art. IX) should figure. So should any ‘potentially harmful interference’ to the interests of other states, although that particular factor triggers only consultations with affected states and does not operate as a bar (Art. IX OST).106 Active satellites have to be processed through the ITU procedures outlined in Chapter 8. Both active and passive satellites should also go through the procedures for national and international registration that are outlined in Chapter 4. Space Traffic Management In the light of the above it is clear that in the future a proper system of space traffic management would be desirable. This would have several aspects. First, as discussed in Chapter 6 on the boundary question, the transit of spacecraft through state air-space on launch or re-entry would require co-ordination with relevant air-traffic control. Second, above controlled air-space measures would be required to ensure the safe launch and re-entry through areas used by LEO communications satellite systems such as Iridium and others.107 Finally, there is the question of the use of orbits. Various orbits are better suited for certain purposes than others: polar and near-polar orbits are useful for certain types of remote sensing, the geostationary orbit is excellent for telecommunications and direct broadcasting. It would make sense were the use of these orbits rationalised so that the best can be got from space. We are not yet at the stage that this matter is wholly crucial, but it will become so.108 At that stage the sensible step would be to go to a world regulatory organisation, which is an increasingly urgent step. The surrender of some control of its activities to an international regime or body will not be welcomed in certain quarters.

106 �� See Chapter 3. 107 �� Iridium Satellite LLC (http://www.iridium.com/) provides worldwide communications using a sixty-six (at 2007) satellite system in LEO. It is used inter alia by the US Department of Defense. Polar coverage is available. Teledesic, Orbcomm, Globalstar and ICO-Communications all had similar plans in the 1990s. Cf. Maley, supra n. 101. 108 �� P.B. Larsen, ‘Outer Space Traffic Management: Space Situational Awareness Requires Transparency’ (2008) 51 Proc. IISL (forthcoming); C. Contant-Jorgenson, P. Lala and K.-U. Schrögl, eds, Space Traffic Management, IAF Cosmic Study (Paris: IAA, 2006); http://www.iaaweb.org/iaa/Studies/spacetraffic.pdf; C. Contant-Jorgenson, P. Lala and K.-U. Schrögl, ‘The IAA Cosmic Study on Space Traffic Management’ (2006) 22 Space Policy 283–8. Cf. L. Perek, ‘Traffic Rules for Outer Space’ (1982) 25 Proc. IISL 37; P. van Fenema, ‘Suborbital Flights and ICAO’ (2005) 30 Air and Sp. Law 396–411; K.-U. Schrögl, ‘Space Traffic Management’ ESPI Flash Report #3, October 2007: http://www. espi.or.at/images/stories/dokumente/flash_reports/stmflashrep3f2.pdf. See also Chapter 6, ad. fin. – ‘Space Traffic Management’.

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Space Debris Over the years much has been discussed and written on space debris, technical reports have been compiled and guidelines elaborated. Suggestions and views have been diverse.109 At present the debris problem is a result of what may be termed the civilian or peaceful use of outer space although military launches and spacecraft also produce debris. We therefore deal largely with that ‘civilian’ area. However, at the end of this section we will have to say something about the possibilities of debris resulting from military action. On 22 December 2007 the UN General Assembly resumed discussion of the Report of the Committee on the Peaceful Uses of Outer Space (A/62/20) and by UNGA Res. 62/217 approved the COPUOS endorsement of a set of voluntary guidelines for the mitigation of space debris.110 While this does not bring to an end the long debate over space debris it will probably result in a moratorium on the discussion whether space debris should be a matter of law or of voluntary practice. Voluntary practice rather than legal duty will remain the modus operandi, except insofar as one might suggest that the creation of space debris is ‘potentially harmful interference’ with the activities of other states contrary to OST Art. IX. The Guidelines, each accompanied by the footnoted explicatory comment, are: 1. Limit debris released during normal operations111 2. Minimize the potential for break-ups during operational phases112 109 �� For earlier materials see H.A. Baker, Space Debris: Legal and Policy Implications (Dordrecht: Nijhoff, 1989) and his ‘Liability for Damage Caused by Space Debris’ (1988) XII AASL 183–225; IAA Cosmic Study ‘Orbital Debris’ (1993) 31 Acta Astronautica 168–91; Schafer supra n. 1; COPUOS Scientific and Technical Subcommittee, ‘Technical Report on Space Debris’ A/AC.105/720, 1999. 110 �� COPUOS Report to the 2007 General Assembly (A/62/20), para. 118 and Annex (for space debris see paras 116–28) and ‘International cooperation in the peaceful uses of outer space’ UNGA Res. 62/217 para. 26. This para. was part of the Resolution adopted without vote: some states voted against para. 47 on the endorsement of the work plan for the UN SPIDER programme: see OOSA note, http://www.unoosa.org/oosa/SpaceLaw/ gares/gavotes.html#ARES_62_217. L. Perek, ‘Space Debris at the United Nations’ (2002) 2 Space Debris 123–36 narrates proceedings within the UN to its date. 111 �� COPUOS comment: ‘Space systems should be designed not to release debris during normal operations. If this is not feasible, the effect of any release of debris on the outer space environment should be minimized. During the early decades of the space age, launch vehicle and spacecraft designers permitted the intentional release of numerous mission-related objects into Earth orbit, including, among other things, sensor covers, separation mechanisms and deployment articles. Dedicated design efforts, prompted by the recognition of the threat posed by such objects, have proved effective in reducing this source of space debris.’ 112 �� COPUOS comment: ‘Spacecraft and launch vehicle orbital stages should be designed to avoid failure modes which may lead to accidental break-ups. In cases where a

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3. Limit the probability of accidental collision in orbit113 4. Avoid intentional destruction and other harmful activities114 5. Minimize potential for post-mission break-ups resulting from stored energy115 6. Limit the long-term presence of spacecraft and launch vehicle orbital stages in the low-Earth orbit (LEO) region after the end of their mission116

condition leading to such a failure is detected, disposal and passivation measures should be planned and executed to avoid break-ups. Historically, some break-ups have been caused by space system malfunctions, such as catastrophic failures of propulsion and power systems. By incorporating potential break-up scenarios in failure mode analysis, the probability of these catastrophic events can be reduced.’ 113 �� COPUOS comment: ‘In developing the design and mission profile of spacecraft and launch vehicle stages, the probability of accidental collision with known objects during the system’s launch phase and orbital lifetime should be estimated and limited. If available orbital data indicate a potential collision, adjustment of the launch time or an onorbit avoidance manoeuvre should be considered. Some accidental collisions have already been identified. Numerous studies indicate that, as the number and mass of space debris increase, the primary source of new space debris is likely to be from collisions. Collision avoidance procedures have already been adopted by some Member States and international organizations.’ 114 �� COPUOS comment: ‘Recognizing that an increased risk of collision could pose a threat to space operations, the intentional destruction of any on-orbit spacecraft and launch vehicle orbital stages or other harmful activities that generate long-lived debris should be avoided. When intentional break-ups are necessary, they should be conducted at sufficiently low altitudes to limit the orbital lifetime of resulting fragments.’ 115 �� COPUOS comment: ‘In order to limit the risk to other spacecraft and launch vehicle orbital stages from accidental break-ups, all on-board sources of stored energy should be depleted or made safe when they are no longer required for mission operations or post-mission disposal. By far the largest percentage of the catalogued space debris population originated from the fragmentation of spacecraft and launch vehicle orbital stages. The majority of those break-ups were unintentional, many arising from the abandonment of spacecraft and launch vehicle orbital stages with significant amounts of stored energy. The most effective mitigation measures have been the passivation of spacecraft and launch vehicle orbital stages at the end of their mission. Passivation requires the removal of all forms of stored energy, including residual propellants and compressed fluids and the discharge of electrical storage devices.’ 116 �� COPUOS comment: ‘Spacecraft and launch vehicle orbital stages that have terminated their operational phases in orbits that pass through the LEO region should be removed from orbit in a controlled fashion. If this is not possible, they should be disposed of in orbits that avoid their long-term presence in the LEO region. When making determinations regarding potential solutions for removing for removing objects from LEO, due consideration should be given to ensuring that debris that survives to reach the surface of the Earth does not pose an undue risk to people or property, including through environmental pollution caused by hazardous objects from LEO, due consideration should be given to ensuring that debris that survives to reach the surface of the Earth does not pose

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7. Limit the long-term interference of spacecraft and launch vehicle orbital stages with the geosynchronous Earth orbit (GEO) region after the end of their mission117 All this is a long way from the relative insouciance of the early days when various launch elements – spent boosters, cones, explosive bolts – were simply abandoned to go where they might.118 However, it remains a fact that for the present the mitigation of space debris is a matter of voluntary action, not of clear legal duty. It remains another fact that precise measures for the mitigation of space debris will remain a matter of discussion for many years to come. How did we get here from there? Space debris is not specifically dealt with in the OST because its importance was not recognised at the time the Treaty was negotiated.119 Although for many years space debris has been an increasing problem, its prevention, mitigation and removal has been sporadic and slow. Conceptually terrestrial international environmental law and the ruminations of the ILC could be built on.120 The duty to protect the environment of areas beyond the jurisdiction of states should extend to Earth orbit.121 There is a harbinger of such a duty in the relocation of some spent satellites to orbits remoter than the geostationary. It is regular practice so to push older defunct geostationary satellites into graveyard orbits if not to send them on a Sunwards course, thus making available their former geostationary slots.122 The 1992 UNGA ‘Principles Relevant to the Use of Nuclear Power Sources in Outer an undue risk to people or property, including through environmental pollution caused by hazardous substances.’ 117 �� COPUOS comment: ‘Spacecraft and launch vehicle orbital stages that have terminated their operational phases in orbits that pass through the GEO region should be left in orbits that avoid their long-term interference with the GEO region. For space objects in or near the GEO region, the potential for future collisions can be reduced by leaving objects at the end of their mission in an orbit above the GEO region such that they will not interfere with, or return to, the GEO region’ [GEO = GSO – see COPUOS text]. 118 �� One regularly screened TV shot is of the jettison of an intermediate stage of a Saturn V rocket. 119 �� M. Lachs, ‘The Treaty on Principles of the Law of Outer Space, 1961–1992’ (1992) 39 Neth. Int. L. Rev. 291–302 at 298. Thus M.S. McDougal, H.D. Lasswell and I.A. Vlasic, Law and Public Order in Space (New Haven, CT and London: Yale UP, 1963) 533–4, 620–5, and 733–4 write of the legal effects of collisions between spacecraft, but not about problems of debris (which is not indexed in the book). 120 �� See text at n. 15 ff. 121 �� Cf. Resolution 5 of the Sixty-Sixth ILA Conference, Buenos Aires, 1994, which annexes an ‘International Instrument on the Protection of the Environment from Damage Caused by Space Debris’, International Law Association, Report of the Sixth-Sixth Conference (London: Int. Law Assoc., 1995) 7–15, with Report and Final Text of the Space Law Committee of the ILA, M. Williams, ed., at 304–25. 122 �� See supra text at n. 91.

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Space’ dealt with above shed further light.123 Principles 3.2 (a)(ii), 3.2.(b) and 3.3 speak of ‘high’ orbits into which a satellite carrying a nuclear power source should be placed at the end of its mission, there to stay until the nuclear fuel and its containment chamber have decayed to safe radiation levels. Again various space debris mitigation guidelines indicate that other satellites and launch vehicles should be de-orbited once their operational phase is complete or else their orbits relocated so as to avoid the LEO region. However, such satellites and objects are not debris. They remain identifiable space objects which are the responsibility of (as well as being under the jurisdiction) of their state of registry (OST, Arts VI and VIII) and they should remain controlled at least until parked. The point about much space debris is that it is not always readily identifiable, and certainly is not really under the control of whichever state was responsible for the initial launch that produced it. There can be exceptions: spent boosters, spent manoeuvring stages, launcher cones and shrouds, for example, appear some entries in the UN ‘Register of Objects Launched into Space’ (ST/SG/Ser.) and are identifiable. However, lacking propulsion or tele-command facilities these are no longer controllable. Nor are the many fragments that are in orbit.124 A ‘space object’ such as a glove, a camera, a tool bag,125 even a golf-ball126 retains some identifiability, but ex natura most space debris is fragmentary and hence responsibility for it is indeterminate. Some material has been deliberately jettisoned in space.127 Yet other material has been lofted briefly into space 123 �� See supra at nn. 65 and 78. 124 �� See the early pages of: J.P. Lampertius, ‘The Need for an Effective Liability Regime for Damage Caused by Debris in Outer Space’ (1992) 13 Mich. J. Int. L. 447– 68; C.D. Williams, ‘Space: The Cluttered Frontier’ (1995) J. Air L. and Comm. 1139– 89; J.M. Seymour, ‘Containing the Cosmic Crisis: A Proposal for Curbing the Perils of Space Debris’ (1998) Geo. Int. Env. L. Rev. 891–914. Cf. T. Beer, ‘The Specific Risks Associated with Collisions in Outer Space and the Return to Earth of Space Objects – the Legal Perspective’ (2000) 25 Air and Sp. L. 42–50; J.-C. Liou, ‘Collision Activities in the Future Orbital Debris Environment’ (2006) 38 Adv. in Sp. Res. 2102–6; J. Bendisch et al., ‘The MASTER-2001 Model’ (2004) 34 Adv. in Sp. Res. 959–68; C.S.L. Keay, ‘Pollution Potentials in Interplanetary Space’ (1998) 21 Adv. in Sp. Res. 1603–6; R. Walker and C.E. Martin, ‘Cost-effective and Robust Mitigation of Space Debris in Low Earth Orbit’ (2004) 34 Adv. in Sp Res. 1233–40. 125 �� White lost a glove on the first space-walk, Collins a camera from Gemini-10. Stefanyshyn-Piper lost her tool bag on a Shuttle spacewalk on 18 October 2008. 126 �� In November 2006 a Russian, Mikhail Tyurin, hit a golf-ball from the ISS, the event being videoed and used as publicity for Element 21, a Toronto manufacturer of golf equipment. The ball was likely to remain orbit for only some three days. 127 �� Garbage and urine have been jettisoned from various space vehicles. The Early Ammonia Servicer, the size of a piano, was dumped from the ISS in summer 2007 (Atlantis launch) in accordance with the ISS Jettison Policy adopted in autumn 2006. It re-entered the atmosphere on 2 November 2008 over Alabama with unconsumed debris falling into the sea between Australia and New Zealand: http://www.spaceflightnow.com/news/n0811/03eas/, http://www.msnbc.msn.com/id/27479972/, http://www.msnbc.msn.com/id/2747997. Cf.

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for memorial purposes.128 Even if some debris does not long persist in orbit, it represents a danger for spacecraft. Material in lower orbits travels at least at 7 km per second so the kinetic energy of a collision can be considerable.129 There is also a risk that one collision will produce many fragments that then trigger others – a ‘cascade’ – with the resulting creation of a belt of debris in a particular orbit which could imperil any space object crossing that orbit.130

N.L. Johnson, ‘The New Jettison Policy for the International Space Station’ (2006) 38 Adv. Sp. Research 2077–83. For predictions of re-entries see http://www.aero.org/capabilities/ cords/reentries.html. Normally ISS garbage is packed into an unmanned re-supply Russian ‘Progress’ vehicle and is destroyed along with it on its atmospheric re-entry, usually over the Pacific. The 17 ton ESA Automated Transfer Vehicle ‘Jules Verne’ on such a planned re-entry burned up over the South Pacific on 29 September 2008: http://cosmiclog.msnbc. msn.com/archive/2008/09/29/1464747.aspx. 128 �� Space Services Inc. has sent the ashes of various persons into space, including those of Timothy Leary (‘druggies’ guru of the 1980s), Gene Roddenberry (Star Trek) and James Doohan (‘Scotty’ in Star Trek). Destinations offered include a brief entry to space, Earth orbit, lunar orbit or surface, and deep space: http://www.memorialspaceflights.com/. 129 �� Before starting a return to Earth the Shuttle heat-shield is inspected to see that it has developed no holes through collision with debris. The 14th ISS Mission in May–June 2007 installed a variety of shields intended to protect vulnerable parts of the ISS from damage through collision with space debris. Cf. the ‘Final Report of the International Space Station Independent Safety Task Force’, February 2007: www.nasa.gov/pdf/170368main_ IIST_%20Final%20Report.pdf; and Protecting the Space Shuttle from Meteoroids and Orbital Debris (Washington DC: National Academies Press, 1997); http://books.nap.edu/ catalog.php?record_id=5958. 130 �� A number of articles cited in this chapter outline cascade problems. China’s destruction of its own 1999 Feng Yun 1-C polar orbit weather satellite on 11 January 2007 has produced such a debris-ridden belt round the Earth on more or less the same orbit as the former satellite. Eight-hundred and seventeen fragments had been confirmed within a month and there may well be many thousands large enough to cause trouble: http://www. cnn.com/2007/TECH/space/01/18/china.missile/index.html; see also http://www.space. com/news/070202_china_spacedebris.html and http://www.technovelgy.com/ct/ScienceFiction-News.asp?NewsNum=931. On 19 February 2007 the Breeze M upper stage of a Russian Proton launcher exploded almost one year after its launch, its propellant not having been fully exhausted into space: http://news.bbc.co.uk/go/pr/fr/-/1/hi/sci/tech/6398513. stm. Some1111 fragments have been tracked. The destruction of US 193 on 21 February 2008 as it was about to re-enter denser atmosphere appears not to have caused major debris problems (see Wikipedia, ‘USA 193’). Cf. the Center for Orbital and Reentry Debris Studies, Aerospace Organisation: http://www.aero.org/capabilities/cords/; and the 1992 report ‘On Orbit Collision Hazard Analysis in Low Earth Orbit Using the Poisson Probability Distribution’, Karman Sciences for the (US) Office of Commercial Space Transportation: http://www.faa.gov/about/office_org/headquarters_offices/ast/media/poisson.pdf. F. Walsh, ‘Forging a Diplomatic Shield for American Satellites: The Case for Re‑evaluating the 2006 National Space Policy in Light of a Chinese Satellite System’ (2007) 72 J. Air L. and Com. 759–99.

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The threat to spacecraft and to astronauts from space debris is therefore very real. Space debris is monitored by the radar facilities of a number of states, and their results are co-ordinated through the US Air Force Space Command. Satellites and the Shuttle have altered orbit to avoid debris, but collisions have occurred.131 Science acknowledges that more will happen.132 The debris field round the Earth continues to grow, worryingly in respect of telecommunications since the geostationary orbit is a ‘debris cluster area’ which gravity will not cleanse within any foreseeable period. The issue therefore arises as to the steps to be taken to limit the problem. Obviously steps have to be taken, but, for lawyers the question is whether binding legal obligation is the best route. There is the Liability Convention,133 but its Art. 3 makes liability for damage caused by a space object elsewhere than on the surface of the Earth or to aircraft in flight dependent on 131 �� A number of satellites have ceased functioning and that this has been because of a collision with debris or a meteorite has been occasionally assumed. Thus in March 2006 the Russian Express-AM11 satellite failed on being hit by another object: http://news. skymania.com/2006/04/collision-knocks-out-satellite.html. Although the data was only published in 2008, the first known instance of a collision between identified objects is that a Russian non-functional navigation satellite, Cosmos 1934 (1988-023A, US Satellite Number 18985) and debris from Cosmos 926 in December 1991: http://www.spaceref. com/news/viewsr.html?pid=16201. On 16 July 1996 the UK Cerise satellite was hit by a fragment of Ariane V-16. Its stabilisation boom was halved by the impact but the satellite continued to function: http://www.satobs.org/seesat/Aug-1996/0110.html; http://www.tbssatellite.com/tse/online/sat_cerise.html. Cf. M.N. Sweeting et al. ‘CERISE Microsatellite Recovery from First Detected Collision in Low Earth Orbit’ (2004) 55 Acta Astronautica 139–47. In January 2005 the US rocket body (1974-015B, US Sat. no. 07219) collided with a fragment (1999-057CV, US Sat. no. 26207) from the third stage of a Chinese CZ-4 launch vehicle, which had exploded in March 2000: http://www.spaceref.com/news/viewsr. html?pid=16201. That report includes the statement that ‘Currently, hundreds of close approaches (i.e. passes within less than one kilometre) between catalogued objects occur on a daily basis’. In August 2008 the ISS was lowered in orbit by a mile to avoid debris from a Russian launcher: http://www.msnbc.msn.com/id/26441443/. 132 �� See for example, the Proceedings of the First Conference on Space Debris, Darmstadt Germany, 1993 (ESA SD-01); of the Second Conference on Space Debris, Darmstadt, Germany 1997 (ESA SP-393: SD-02); and of the Third Conference on Space Debris, Darmstadt, Germany, 2 vols, 2001 (ESA SP-473). Cf. IAA ‘Position Paper on Space Debris Mitigation, Implementing Zero Debris Creation Zones’ 15 October 2005: http://www. iaaweb.org/iaa/Studies/spacedebrismitigation.pdf. Cf. R.E. Glickman, ‘Estimating Collision Probability for Coincident Satellite Constellations’ AIAA-96-3635‑CP: http://pdf.aiaa.org/ preview/1996/PV1996_3635.pdf; S. Alfano, ‘Satellite Collision Probability Enhancements’ (2006) 29 J. Guidance, Control and Dynamics 588‑92: http://www.centerforspace.com/ downloads/files/pubs/JGCD.V29.N03.pdf, and their citations; T. Yasaka, ‘Space Debris Protection: A Standard Procedure in Future’ (2003) 53 Acta Astronautica 527–31. 133 �� Convention on the Registration of Objects Launched into Outer Space, 14 January 1975; 1023 UNTS 15; (1978) UKTS 70, Cmnd. 7271; TIAS 8480; (1975) 14 ILM 43. See supra Chapter 4.

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proof of fault. There is a case for a mutual insurance fund to meet damages claims caused by orbital debris to be contributed to by the space active.134 There may be a case to encourage dedicated salvage firms to tackle the recovery of spent satellites through the grant of subsidies from a consortium of space agencies and commercial space users, but in the interim, basically the creation of space debris has to be lessened. When COPUOS was discussing the Report that went to the 2007 UN General Assembly there was argument over its endorsement of its annexed Guidelines on the mitigation of space debris.135 Some delegations were of the view that a set of guidelines which were voluntary and legally non-binding was not sufficient, and disadvantaged the developing countries. They therefore argued for the Legal SubCommittee to develop a legally binding framework (para. 123). Others thought the guidelines should be presented to the Assembly as a draft resolution so as to stress their importance, as well as drawing attention to the effectiveness of COPUOS in space matters (para. 125).136 Yet others thought the guidelines would need to be reviewed as they did not cover all debris-producing situations (para. 128). Of course, ex facie the best way in which to achieve International Law in precision is through the articulation of the required rules in a formal treaty, accepted by as many states as possible, and certainly in this case including all states which are space-competent.137 We will suggest in our final chapter that a legally binding instrument dealing with space debris would be a welcome development while recognising that another space treaty may be unlikely. Short of that the next best is a set of Principles elaborated through the Committee on the Peaceful Uses of Outer Space, and then adopted, preferably without vote, by the General Assembly of the United Nations.138 However, a legal duty to use space for the benefit of all is already enshrined in OST Art. I, and having regard to the ‘interests of other states’ and the avoidance of ‘harmful interference’ with the activities of others is already incorporated in OST Art. IX. There have been calls for these rather vague statements to be supplemented or crystallised so that they may be used to lessen the problem of space debris.139 Apart from the difficulty of getting a 134 �� M.J. Sundahl, ‘Unidentified Orbital Debris: The Case for a Market-Share Liability Regime’ (2000) 24 Hastings Int. and Comp. L. Rev. 125–54. 135 �� Report of the Committee on the Peaceful Uses of Outer Space to the 2007 General Assembly (A/62/20). Cf. the Report of the Scientific and Technical Subcommittee, 44th Sess. 12–23 February 2007, A/AC.105/890, and earlier reports. 136 �� See Chapter 2 as to the effectiveness of a UNGA Resolution. The ‘advertising’ value of the proposal is uncertain. 137 �� Cf. K.-H. Böcksteigel, ‘ILA Draft Convention on Space Debris’ (1995) 44 ZLW 28–34. Schafer, supra n. 1, at 31–9 suggested a UN Office of Outer Space Environmental Protection. 138 �� See previous note. 139 �� Cf. V. Kopal, ‘Present International Law Principles Applicable to Space Debris and the Need for their Supplement’, in Proc. Second European Conference on Space Debris,

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comprehensive agreement on a treaty text,140 a major problem would be one of enforcement. While such would constrain a responsible launch authority, and might constrain an irresponsible launch authority a little, how would one attach either a civil or criminal penalty to conduct which does not mitigate space debris? A decision, whether advisory or in a contentious proceeding, of the International Court would not seem either appropriate or effective. In sum it may be better to rely on the self-interest of space agencies and authorities. Space debris is a major problem. Effective efforts to diminish its impact remain recommendations and non-binding practices as these are applied in national requirements.141 The main international protagonist in this has been the eleven-member Inter-Agency Space Debris Coordination Committee.142 Through the European Space Agency (ESA) European launching states have adopted a similar set of guidelines and procedures.143 Continuing the policy of its predecessors,144 the US has an extensive

Darmstadt, 1997 [ESA SP-393] (Noordwijk: ESA, 1997) at 739–747; and M. Benkö and K.-U. Schrögl, ‘Space Debris in the United Nations: Aspects of Law and Policy’, ibid. at 749–57. Cf. Proceedings of the First Conference on Space Debris, Darmstadt Germany, 1993 (ESA SD-01) – Legal aspects at 673–707; Proceedings of the Second Conference on Space Debris, Darmstadt, Germany 1997, ESA SP-393 (SD-02) – Legal Aspects at 739– 62; Proceedings of the Third Conference on Space Debris, Darmstadt, Germany, 2001. 2 vols (ESA SP-473) – Legal Aspects at vol. 2, 853–881. S. Mirmina ‘The Ballistic Missile Defense System and its Effects on the Outer Space Environment’ (2005) 31 J. Sp. L. 287– 313. See also supra n. 121. 140 �� Mirmina, infra n. 141, at 652–4. 141 �� For the UNGA/COPUOS endorsed Guidelines (COPUOS, A/62/20 and UNGA Res. 62/217): see supra following n. 110. Cf. S. Mirmina, ‘Reducing the Proliferation of Orbital Debris: Alternatives to a Legally Binding Instrument’ (2005) AJIL 649–62. 142 �� The Inter-Agency Space Debris Coordination Committee current members are the space agencies of China, France German, India, Japan, Italy, Russia, the UK, Ukraine, the US, with ESA: http://www.iadc-online.org/. For its Guidelines: http://www.iadc-online. org/docs_pub/IADC-101502.Mit.Guidelines.pdf. 143 �� The five signatory European ‘Code of Conduct for Space Debris Mitigation, 2004’: ESA/IRC(2004)20, Appendix A: cf. http://www.esa.int/SPECIALS/ESOC/ SEMZPBW797E_0.html. 144 �� US Space Policy, 2006 (G.W. Bush) para. �� 11 (2007) XXXII AASL 475–86, www.ostp.gov/html/US%20National%20Space%20Policy.pdf. �� Cf. para. (7) of the section on ‘Intersector Guidelines’ of the US Space Policy, 1996 (Clinton) www.fas.org/spp/ military/docops/national/nstc-8.htm. The 1988 US National Space Policy 1988 was the first to include a provision as to debris: ‘Presidential Directive on National Space Policy 1988, Space Law: Selected Basic Documents (2nd ed.), Committee on Commerce, Science, and Transportation; US Senate, 95th Cong. 2nd Sess., December 1978 (US GPO), 449–68.

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set of rules, regulations and procedures.145 India has also implemented measures in its space programme.146 We will have to wait and see whether the mitigation of the creation of debris in space by voluntary compliance with the international guidelines and with national rules is effective.147 Certainly some debris will continue to be added to the existing plethora. The unasked question, therefore, is what should be done about existing debris. Its removal was raised at the 2007 COPUOS meeting.148 There are some current discussions of the technicalities.149 However, the problems, particularly of smaller fragments, seem immense. The other question of ‘debris’ in its wider formulation relates to the remains of scientific probes. What should happen with apparently abandoned items? We know that such is not formally ‘abandoned’ 145 �� NASA http://orbitaldebris.jsc.nasa.gov/mitigate/safetystandard.html; NASA Safety Standard 1740.14 of August 1995 ‘Guidelines and Assessment Procedures for Limiting Orbital Debris’: http://orbitaldebris.jsc.nasa.gov/library/NSS1740_14/nss1740_ 14-1995.html; and the NASA ‘Procedural Requirements for Limiting Orbital Debris’ NASA NPR 8715.6, 17 August 2007: http://www.orbitaldebris.jsc.nasa.gov/library/NPR_8715_ 6.pdf, read along with NASA Technical Standard ‘Process for Limiting Orbital Debris’, 28 August 2007 (expiring 28 August 2012) NASA STD-8719.14: http://www.hq.nasa.gov/ office/codeq/doctree/871914.pdf, the related ‘US Government Orbital Debris Mitigation Standard Practices’: http://www.orbitaldebris.jsc.nasa.gov/library/USG_OD_Standard_ Practices.pdf and the NASA Debris Assessment Software: http://www.orbitaldebris.jsc. nasa.gov/mitigate/das.html. Cf. (US) FCC requirements contained in In the Matter of Amendment of the Commission’s Space Station Licensing Rules and Policies; Mitigation of Orbital Debris IB Docket no. 02-34; IB Docket no. 02-54, 18 FCC Rcd 10760; 2003 FCC LEXIS 2858; 29 Comm. Reg. (P & F) 201. Adopted 23 April released 19 May 2003, and In the Matter of Mitigation of Orbital Debris, Second Report and Order; IB Docket no. 0254, 19 FCC Rcd 11567; sdopted 9 June, released 21 June 2004. See also NASA’s ‘Orbital Debris Quarterly News’: http://orbitaldebris.jsc.nasa.gov/newsletter/newsletter.html. 146 �� V. Adimurthy and A.S. Ganeshan, ‘Space Debris Mitigation in India’ (2005) 58 Acta Astronautica 168–74. 147 �� S.A. Mirmina, ‘The Regulation of Orbital Debris through National Measures’ (2004) 29 Air and Sp. Law 137–43. For earlier compliance with national rules cf. F. Alby et al., ‘Debris assessment for Skybridge constellation’ (2003) 53 Acta Astronautica 219–28. 148 �� Report of the Committee on the Peaceful Uses of Outer Space to the 2007 General Assembly (A/62/20) para. 128. 149 �� E. Carlson et al., ‘Space Debris Removal System’ 1990: http://www.tsgc.utexas. edu/archive/design/debris3.html; Y. Ishige et al., ‘Study on Electrodynamic Tether for Space Debris Removal’ (2004) 55 Acta Astronautica 917–29; IADC paper, C. Pardini et al., ‘Benefits and Risks of Using Electromagnetic Tethers to De-Orbit Space-craft’ (IAC-06B.6.2.10) October 2006: http://www.iadc-online.org/index.cgi?item=docs_pub. See also the ESA Space Debris Conferences, supra. n. 132. On the ‘orbital tether’ system see also: http://www.space.com/businesstechnology/technology/technovel_tether_041117.html; http://www.technovelgy.com/ct/Science-Fiction-News.asp?NewsNum=252; http://www. technovelgy.com/ct/content.asp?Bnum=698. In fiction A.C. Clarke foresaw the importance of orbital clean-up in The Fountains of Paradise (1978).

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(OST Art. VIII), but will anyone actually retrieve it or clean it up? It remains the responsibility of its ‘owner’ state. Were it sought to establish a legal duty in relation to the debris and abandoned machinery which may be left in orbit or on the Moon and other celestial bodies, probably other steps would have to be sought.150 The duties as to the decommissioning of oil platforms on the continental shelf might provide an analogy. Finally, as indicated at the start of this section, there is the question of space debris resulting from military action in space. We discuss the military use of space more fully in Chapter 16. Here we simply observe that by OST Art. III, and now by international custom, the UN Charter and international law apply in space, and this includes the provisions of UN Charter Chapter VII on ‘Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression’. There the use of force is generally prohibited, but Art. 51 preserves the ‘inherent right of self-defence’ subject to conditions. Exactly what ‘self-defence’ means – its application and constraints in the modern world – is a matter of contention as we indicate in Chapter16. Of course were an all-out war to happen, rules would be ignored. However, a more limited conflict could be subject to environmental considerations. In that connection we note that OST Art. III may imply that military uses of space that do not promote ‘international peace and security’ are prohibited.151 Even so space debris would be created for example by the defence of a satellite system by anti-satellite measures (ASAT). We would hope that so far as possible such debris would be minimised, bearing in mind the duties under OST Art. IX to have ‘due regard to the … interests of all other States Parties to the Treaty’. More particularly Art. 35.3 of the Additional Protocol I to the Geneva Conventions of 1949 prohibits ‘widespread long term and severe damage’ to the 150 �� We use the term ‘abandoned’ colloquially. Under OST Art. VIII a launching state retains jurisdiction and control over an object entered on its registry of objects launched into outer space. In law such objects cannot be abandoned to become res nullius or res derelicta (OST Art. VIII). A small plaque beside the replica of the Viking I Mars Lander in the Smithsonian Air and Space Museum in Washington DC, affirms the US property right in the Lander located on Mars, NASA having transferred its ownership to the Smithsonian: http://www.nasm.si.edu/exhibitions/GAL100/viking.html. Viking I landed on 20 July 1976, and remained active until November 1982. On 11 December 1993, at Sotheby’s New York as part of a sale of Russian space memorabilia, the Lunokhod-1 lunar rover, launched 10 November, landed 17 November 1970 on the Mare Imbrium Sea of Rains) was sold for US$60,000 (estimate US$5,000). The location of the object was stated as ‘resting on the surface of the Moon’. Sotheby’s and the consignor of the object for the sale undertook no obligation to deliver possession. Only the current title rights of the owner were sold, without assurance as to the claims of others, including possible salvagers. See P.D. Nesgos, UN COPUOS Symposium on Commercial Activities in Space, March 1994 (1994) 37 Proc. IISL 305–14 at 305–6. See also Sotheby’s Auction Catalogue ‘Russian Space History’, December 1993. 151 �� S. Mirmina, ‘International Law Implications of the Ballistic Missile Defense System and its Effects on the Outer Space Environment’ (2005) 31 J. Sp. L. 287.

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natural environment.152 The Convention on the Prohibition of Military and Any Other Hostile Use of Environmental Modification Techniques would also have a role in protecting the space environment.153 Of course the question would arise as to how breach of such obligations might be prosecuted. One avenue might be through the Liability Convention, absolute liability being normally involved by its Art. II for damage caused to the surface of the Earth and aircraft in flight, and liability based on fault for damage elsewhere by Art. III. Space debris resulting from hostilities in space causing damage to a neutral in space would be subject to the second of these as the deliberate action would establish fault (dolus).154 Convention Art. VI.1 and 2 would deal with any question of exoneration, and could apply as between states taking mutual hostile action, though not eliding their liabilities towards non-combatants. Planetary Defence Over recent years concern has grown about the possibility of a comet, asteroid or meteor colliding with the Earth.155 A near-Earth object (NEO) could pose a major threat. Every day small meteorites enter the atmosphere and burn up. Every so often a meteorite reaches the surface of the Earth, infrequently causing minor damage. Less frequently a major disaster may occur when a large object, an asteroid, comet or meteor, enters the atmosphere at high speed and either breaks up explosively at height or hits the surface.156 It is these last that are the major matters of concern. The craters on the Moon show that meteor and asteroid impacts occur, 152 �� Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; 1125 UNTS 4; UN Doc.A/34/144 (1977) 16 ILM 1391–441: http://www.icrc.org/ihl.nsf/ FULL/470?OpenDocument. 153 �� UN Convention on the Prohibition of Military and Any Other Hostile Use of Environmental Modification Techniques, 10 December 1976; 1108 UNTS 151; 31 UST 333, TIAS 9614; UNGA Res. 31/72; (1977) 16 ILM 88–94. See M. Bourbonniere, ‘A Legal Regime for Keeping Outer Space Free of Armaments’, (2002) XXVII AASL 109 at 128–21. 154 �� We note that in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ Rep. 226 at 261 (para. 89) the ICJ held that ‘international law leaves no doubt that the principle of neutrality, whatever its content, … is applicable … to all international armed conflict, whatever types of weapons may be used’. 155 �� J.S. Lewis, Rain of Iron and Ice: the Very Real Threat of Comet and Asteroid Bombardment (Reading, MA: Helix Books, 1995). Cf. P. Jenniskens, Meteor Showers and their Parent Comets (Cambridge: Cambridge UP, 2006). For law articles see infra n. 185. Late in 2008 it seems the UN will take action: see ‘Asteroid Threats: A Call for Global Response’, Report of the Association of Space Explorers, 25 September 2008: http://www. space-explorers.org/ATACGR.pdf. 156 �� The mid-August Perseid meteors come in at about 60 km/37 miles a second – some 133,300 mph. See also http://lifeboat.com/ex/asteroid.shield.

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and, although the atmosphere provides protection from minor objects which burn up, it is now known that the surface of the Earth also has a history of asteroidal and meteor collisions.157 The explosion of a meteorite over or near Tunguska in Siberia in 1908 showed that an area may be devastated,158 and the final proof by the late E.M. Shoemaker that Meteor Crater in Arizona was caused by an asteroid or meteor and not by volcanic activity established that surface impact events could occur on Earth despite the protection of the atmosphere.159 Theories as to the demise of the dinosaurs involve the impact of large objects.160 These have been boosted by the discovery of the Chicxulub Crater centred on the Yucatán Peninsula and extending into the western Gulf of Mexico.161 Another collision crater has been recently identified in north-west Scotland.162 The collision of the fragments of the Shoemaker-Levy-9 comet with Jupiter in 1994 aroused much interest not to say excitement, and apprehension has been fanned by such films as Meteor (1979), Asteroid (1997), Armageddon and Deep Impact (both 1998).163 The asteroid Apophis continues to cause a little concern for April in 2036, a previous threat for 2029 having dissipated on further more accurate tracking.164 Threats of collision with the Earth by asteroids and comets are graded on the ‘Torino Scale’.165 157 �� See the Earth Impact Database maintained by the University of New Brunswick, Canada: http://www.unb.ca/passc/ImpactDatabase/. 158 �� W.K. Hartman, ‘1908 Siberian Explosion’: http://www.psi.edu/projects/siberia/ siberia.html; C. Chyba et al., ‘The 1908 Tunguska Explosion: Atmospheric Disruption of a Stony Asteroid’ (1993) 361 Nature 40–44. 159 �� D.M. Barringer in 1903 suggested an asteroid origin for Meteor Crater and until recently the crater was known as the Barringer Crater. 160 �� The Cretaceous–Tertiary extinction (the K–T event) was about 65.5 million years ago. Apparently M.W. DeLaubenfels, ‘Dinosaur Extinctions: One More Hypothesis’ (1956) 30 J. of Palaeontology, 207–18 first suggested asteroid impact as a possible cause and in 1980 L. and W. Alvarez, F. Asaro and H. Michels, basing their argument on the worldwide occurrence of a layer of iridium (not explicable other than by debris from an asteroid impact) also theorised that the K–T event might have been caused by the impact of an asteroid: (1980) 208 Science 1095–1108. 161 �� But see ‘The Chicxulub Debate’: http://geoweb.princeton.edu/people/faculty/ keller/chicxpage1.html for argument that the Chicxulub meteor did not cause the extinction of the dinosaurs. 162 �� K. Amor, S.P. Hesselbo et al., ‘A Precambrian proximal ejecta blanket from Scotland’ (2008) 36 Geology 303–6. 163 �� Cf. L. Niven and J. Pournelle, Lucifer’s Hammer (1977); A.C. Clarke, The Hammer of God (1993). 164 �� The winners of the Planetary Society ‘Apophis Mission Design Competition’ that sought proposals for tracking and accurately measuring the asteroid were announced in February 2008: http://www.planetary.org/programs/projects/near_earth_objects/apophis_ competition/winners.html. 165 �� For the ‘Torino Scale’: see http://neo.jpl.nasa.gov/torino_scale.html. It runs: 0 (white) – no hazard; 1 (green) – normal (a pass near the Earth, but with no danger); 2–4 (yellow) – meriting attention by astronomers; 5–7 (orange) – threatening; 8–10 (red)

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At present there is no international obligation on states either to investigate such matters or to take steps to deal with any threat. Article V para. 3 of the OST requires parties to inform the UN Secretary General of phenomena discovered in outer space that might constitute a danger to life or health of astronauts. It would stretch the language unduly to interpret these words to include danger to Earth itself from asteroids, comets or meteors. Under OST Art. VIII states are required to avoid causing harmful contamination in outer space, or ‘adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter’. They are also to avoid causing harmful interference to the space activities of others. Although one could argue that these obligations could cover the case where the orbit of an asteroid is altered (say by mining or even scientific probe) resulting in collision with a satellite or the Earth,166 threats or dangers from objects proceeding in their natural orbits or trajectories are not covered. Principles X and XI of the Remote Sensing Principles of 1986 refer to the protection of the environment of the Earth and averting harmful phenomena and impending disasters, but these Principles relate to the sensing of the Earth from space, not to ‘sensing’ as it were ‘outwards’ to determine the existence of potential threats from outside. Notwithstanding the lack of legal obligation, various organisations have appreciated the potential dangers and taken steps at least to assess and evaluate them. Initial efforts were varied, inadequately financed, and often amateur. Such were the several ‘Spaceguard’ projects.167 A number of observatories have of their – certain collision, 8 causing localised damage, 9 causing unprecedented regional damage, and 10 causing global climatic catastrophe threatening the future of civilisation. The Torino Scale was first proposed in 1999 and revised in 2004. Apophis is 700–1000 feet/215–305 metres wide. Detected only on 11 October 2007, Asteroid 2007 TU24 went past the Earth on 29 January 2008 at 334,000 miles/500,000 km out (1.4 LD, i.e. 1.4 times the Lunar Distance). Asteroid 4179 Toutatis (c. 2.9 × 1.5 miles/4.7 × 2.4 km) went past at c. 4.0 LD on 29 September 2004. Asteroid 2002 MN (diameter 80 metres/260 feet) was noticed only on 17 July 2002 after it had passed the Earth two days earlier at some 120,000 km/75,000 miles (0.3 LD) out. Asteroid 2008 BC15 was discovered on 30 January 2008 and passed Earth one day later at 0.8 LD. On 9 December 1994 Asteroid 1994 XL1 passed by at some 65,000 miles/105,000 km. Asteroid 2008 TC3 was detected on an Earth-impact course on 6 October 2008 and entered the atmosphere above the Sudan on 8 October, exploding at some tens of miles releasing the equivalent of about 1 kiloton of TNT. The Spaceguard system (infra n. 167) was involved in its tracking (see Wikipedia ‘2008 TC3’). For ‘Potentially Hazardous Asteroids’ (PHAs) see the NASA Near Earth Objects Program: http://neo.jpl. nasa.gov/neo/pha.html (which indicated on 29 January 2008 that there were 931 known PHAs) and http://cfa-www.harvard.edu/iau/lists/PHACloseApp.html. 166 �� While such an occurrence could be categorised as caused by negligence, the Liability Convention could not be appealed to since it deals only with damage caused by space objects that have been launched from Earth. However, proof of negligence in a claim or action on these facts under normal rules of international law seems unlikely. 167 �� ‘Spaceguard’ may have taken its name from the ‘Project Spaceguard’, in A.C. Clarke, Rendezvous with Rama (1972) that detects the incoming object, Kali. Today ESA hosts the Spaceguard Central Node which brings together efforts which are co-ordinated by

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own initiative undertaken work to find and catalogue NEOs, particularly those which might cause trouble. There has also been formal governmental action, including surveys by government-funded observatories.168 In 2000 a Task Force set up by the British National Space Centre noted the inadequacy of current knowledge, the problems of disaster management (if needed) and questions of possible mitigation or avoidance, as matters requiring governmental discussion and action.169 This view was supported by a Position Paper of the American Institute of Aeronautics and Astronautics (AIAA) in 2004.170 The European Space Agency has also taken an interest in NEOs, funding a variety of studies, but most of these are still in a preparatory phase.171 It has also published a report on the priorities for NEO risk assessment and their reduction.172 This stressed the importance of finding NEOs and of investigating their physical characteristics since that might well affect how any threat each posed might be mitigated.173 The report went on to explore various rendezvous mission concepts including SIMONE, ISHTAR and DON QUIXOTE as well as the potential of three observatory missions. In 2004 the Canadian-developed NEOSSAT (Near Earth Object Surveillance Satellite) was announced. This is a small satellite which from low Earth orbit will track both near Earth objects and satellites in other low Earth orbit.174 the Spaceguard Foundation: see www.spaceguard.esa.int or http://www.esa.int/SPECIALS/ NEO/SEMS58OVGJE_0.html. The Spacewatch Foundation also tracks comets and asteroids: http://spacewatch.lpl.arizona.edu/. 168 �� For example, Australian ‘Project Wormwood’: www.ips.gov.au/IPSHosted/neo/ index.html. 169 Report of the Task Force on Potentially Hazardous Near Earth Objects (London: BNSC, 2000), http://www.nearearthobjects.co.uk/report/pdf/full_report.pdf. Cf. the (UK) Near Earth Objects Information Centre: http://www.nearearthobjects.co.uk/. Cf. also Near Earth Objects: http://www.bnsc.gov.uk/assets//channels/resources/publications/pdfs/Near_ Earth_Objects.pdf. and http://www.nearearthobjects.co.uk/report/resources_task_intro.cfm. 170 �� AIAA Position Paper, 2004, ‘Protecting Earth from Asteroids and Comets’ (Reston, VA: AIAA, 2004): http://www.planetarydefense.info/resources/pdf/AsteroidsFinal.pdf. 171 �� See http://www.esa.int/SPECIALS/NEO/ and its links. 172 �� Space Mission Priorities for Near Earth Object Risk Assessment and Reduction: Recommendations to ESA by the Near-Earth Object Mission Advisory Panel (NEOMAP), July 2004: http://www.esa.int/gsp/NEO/doc/NEOMAP_report_June23_wCover.pdf. 173 �� A metallic asteroid would be different from a rocky one, and the degree of cohesion of a conglomerate object would also be of interest. 174 �� NEOSSAT: Near Earth Object Surveillance Satellite – http://www.neossat.ca/. A.R. Hildebrandt et al., ‘The Near Earth Object Surveillance Satellite (NEOSSAT) Mission Enables an Efficient Space-Based Survey (NESS Project) of Interior-to-Earth (IEO) Asteroids’ (2007) 38 Lunar and Planetary Science: http://www.lpi.usra.edu/meetings/ lpsc2007/pdf/2372.pdf; A.R. Hildebrand et al., ‘The Near Earth Object Surveillance Satellite (NEOSSAT) Mission Enables an Efficient Space-Based Asteroid Survey at Low Solar Elongations’ (2008) Asteroids, Comets, Meteors: http://www.lpi.usra.edu/meetings/ acm2008/pdf/8293.pdf.

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Much has been done in the US. In 1990 the US Congress funded NASA activities in the area, and this stimulated interest resulting in a number of conferences and papers.175 In 2004 a Washington conference on ‘Protecting Earth from Asteroids’ sponsored by the American Institute of Aeronautics and Astronautics (AIAA) and The Aerospace Corporation produced a White Paper with recommendations for future studies, which was supported by the AIAA Position Paper already referred to.176 The work was continued by another meeting in April 2007 and a further White Paper.177 This noted the progress that had been made, but stated that while most ‘civilisation killer’ objects (some one kilometre and larger) had been identified, lesser objects of some 140–300 metres in diameter could cause serious damage over a large area and loss of life. Such might impact without warning. Search should be therefore undertaken. It was also a matter of concern that there was no agreed approach to such a disaster, or to methods by which it might be avoided or mitigated. The White Paper then went on to lay out the technical background behind its discussion and recommendations. Perhaps as a result or perhaps coincidentally, shortly after this White Paper was published in 2007 NASA reported to the US Congress on ‘Near-Earth Object Survey and Deflection: Analysis of Alternatives’.178 This recommended that the NEO Survey should be modified in order to identify and track by the end of 2020 ninety per cent of all potentially hazardous objects greater than 140 metres which pass within 0.05 AU of the Earth.179 This would be done in conjunction with other agencies. The report also outlined the advantages and disadvantages in respect of different strategies for the avoidance of a NEO impact, including 175 �� A list of relevant papers is available at ‘Planetary Defence Resources’ maintained by The Aerospace Corporation: http://www.aero.org/conferences/planetarydefense/ resources.html Cf. ‘Preparing for Planetary Defense: Detection and Interception of Asteroids on Collision Course with Earth’: The (US) Air University: http://www.fas.org/spp/military/ docops/usaf/2020/app-r.htm. Cf. also J.M. Urias et al., Planetary Defence: Catastrophic Health Insurance for Planet Earth, A Research Paper presented to Air Force 2025, Oct. 1996: http://www.fas.org/spp/military/docops/usaf/2025/v3c16/v3c16-1.htm. 176 �� ‘The Planetary Defense Conference: Protecting Earth from Asteroids, February 2004, White Paper’: http://www.planetarydefense.info/resources/pdf/conference_white_ paper.pdf. For the AIAA Position Paper of 2004 see supra n. 170. 177 �� ‘Summary and Recommendations from the 2007 Planetary Defense Conference’: http://www.aero.org/conferences/planetarydefense/2007papers/WhitePaperFinal.pdf. See also the Conference papers: http://www.aero.org/conferences/planetarydefense/2007papers. html. 178 �� ‘Near-Earth Object Survey and Deflection: Analysis of Alternatives’, Report to Congress, NASA March 2007: http://www.nasa.gov/pdf/171331main_NEO_report_ march07.pdf. See also http://neo.jpl.nasa.gov/neo/report2007.html. 179 �� An Astronomical Unit (AU) is the average distance between the Earth and the Sun (c. 93,000,000 miles/149,600,000 km). A distance of 0.05 AU (46,500,000 miles/74,800,000 km) is roughly twenty times the distance of the Earth to the Moon (0.0026 AU – 241,000 miles/387,000 km).

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nuclear explosions, the non-nuclear impact of a controlled missile and various methods of deflection by a ‘controlled push’.180 Internationally, ‘Near Earth Objects’ came on the UN scene with the holding of a major conference in 1995.181 The topic entered the COPUOS agenda in 2005 when the General Assembly approved the amended three-year work plan adopted by the Committee (UNGA Res. 60/99). Accordingly the topic was discussed by the Scientific and Technical Sub-Committee of COPUOS in 2006 on the basis of various national reports and several presentations.182 It noted that mitigation measures would require international co-ordination (para. 149) and commended the US for its efforts in identifying objects of near-Earth objects more than 1 km in diameter, and its investigation of methods and systems to identify objects down to 140 metres (para. 151).183 The Sub-Committee concluded by agreeing that efforts to track such objects should be ‘continued and expanded’ at both national and international levels (para. 152). To further its work on NEOs the Sub-Committee set up an inter-sessional working party, which reported in 2007. This group now has a programme of monitoring international progress on co-operation in NEO studies on the basis of national reports, and in 2009 and 2010 of drafting (and perhaps agreeing on) international procedures for the handling of threats.184 The question therefore arises what sort of international procedures might be adopted.185 We are already developing measures to cope with terrestrially 180 �� Cf. C. Maccone – 1, ‘Planetary Defense from the Nearest 4 LaGrange Points plus RFI-free Radioastronomy from the Far Side of the Moon: A Unified Vision’ (2002) 50 Acta Astronautica 185–99; – 2, ‘Planetary Defense From Space: Part 1 Keplerian theory’ (2004) 55 Acta Astronautica 991–1006; S Konyukhov and N. Slyunyayev, ‘Conception of the Creation of Space Rocket Complex as Necessary Link for Anti-Asteroid Protection of the Earth’ (2002) 50 Acta Astronautica 629–32. 181 �� J.L. Remo, ed., Near-Earth Objects: The United Nations International Conference, 1995, 822 Annals N. Y. Acad. Sc. (New York, 1997); J.L. Remo, ‘Policy Perspectives from the UN Conference on near-Earth Objects’ (1996) 12 Space Policy 13–17. 182 �� Report of the Scientific and Technical Subcommittee on its Forty-third Session, Vienna, 20 February to 3 March 2006, A/AC.105/869. 183 �� The US has so far identified 816 such objects (ibid., para. 151). 184 �� Report of the Scientific and Technical Subcommittee supra n. 182, paras 115– 125 and Annex III. Cf. Report of the Committee on the Peaceful Uses of Outer Space, 2006, A/61/20 paras 144–5 and 178. 185 �� M.B. Gerrard and A.W. Barber, ‘Asteroids and Comets: U.S. and International Law and the Lowest-Probability, Highest Consequence Risk’ (1997) 6 N.Y.U. Env. L.J. 4– 49; L.I. Covert, ‘Before Celestial Bodies Collide – Enhanced Dialogue and Coordination: Precursors to a Treaty for Effective New Earth Object (NEO) Response’ (2003) 46 Proc. IISL 276–86; E.R. Seamone – 1, ‘When Wishing on a Star Just Won’t Do: The Legal Basis for International Cooperation in the Mitigation of Asteroid Impacts and Similar Transboundary Disasters’ (2002) Iowa L. Rev. 1091–1139; – 2 his ‘The Duty to “Expect the Unexpected”: Mitigating Extreme Natural Threats to the Global Commons Such as Asteroid and Comet Impacts with the Earth’ (2003) 41 Colum. J. Transnat’l L. 735–94; and – 3, his ‘The Precautionary Principle as the Law of Planetary Defense: Achieving the

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originating disasters. These are not appropriate fully to cope with threats from space.186 First, it would be wise to establish a formal international programme for the detection of incoming threats.187 It may not be sensible to rely on existing national programmes, or even on international programmes such as that of ESA. The survey currently being carried out by NASA is unduly dependent on funding decisions of the US Congress, which may be erratic. The same could apply to ESA activities. A formal international organisation would be a better solution, with funding either from its members or from the United Nations itself. The UN funds peace-keeping forces. The creation and running of a survey and monitoring agency would cost much less, particularly were its operation to be contracted out to an existing agency or entity.188 Second, the preparation of means of diverting an asteroid, meteor or cometary threat should not be delayed until an actual object is detected. Time might be too short adequately to deal with the crisis – missile or other technology has to be prepared.189 Certainly as can be seen from materiél cited in this section, thought has been given to what might be done. A formal organisation (not necessarily one separate from the ‘survey organisation’) should therefore be established with the function of bringing into being several of the potential methods of diverting an incoming threat, or its mitigation (given a suitable composition190). Again elements of this undertaking could be contracted out, but the cost of diverting an incoming asteroid or comet would be much greater than that of simply looking for such things. A central organisation should therefore be established both to provide a channel for appropriate funding and to determine

Mandate to Defend the Earth against Asteroid and Comet Impacts While There is Still Time’ (2004) 17 Geo. Int. Env. L. Rev. 1–23; J.L. Koplow, ‘Assessing The Creation Of A Duty Under International Customary Law Whereby The United States of America Would Be Obligated to Defend A Foreign State against the Catastrophic but Localized Damage of an Asteroid Impact’ (2004–2005) 17 Geo. Int. Env L. Rev. 273–306. 186 �� Certainly such as the ‘Disasters Charter’ organisation might be able to help once a disaster has taken place: ‘Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disasters’ (2000): http://www. disasterscharter.org/main_e.html. See Chapter 13, p. 433. 187 �� In 2008 at least one Internet site, ‘The Tracking News’, reports information derived from a variety of sources as to comets and asteroids and assessments of the risks they pose: http://www.hohmanntransfer.com/news.htm. 188 �� Cf. the ‘Project Spaceguard’ which first picks up the track of the incoming starship in A.C. Clarke, Rendezvous with Rama (1972). Cf. also the ‘Spaceguard Foundation’, supra n. 167. 189 �� As noted supra n. 165, Asteroid 2002 MN (diameter 80 metres/260 feet) was spotted on 17 July 2002. It had passed the Earth two days earlier. Asteroid 2007 TU24 which passed the Earth on 29 January 2008 was detected only on 11 October 2007. Asteroid 2008 BC15 was discovered on 30 January 2008 and passed Earth one day later. 190 �� A cometary ‘snowball’ could (might?) be broken into inoffensive parts by a kinetic impact.

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when appropriate measures are activated.191 It is tempting to suggest an analogue of the former INMARSAT could serve. Funding should come from the UN, the World Bank and the International Monetary Fund, as well as from non-donors to these latter agencies. Since all are under threat, all should bear a portion of the cost of its avoidance. Attention will also need to be given to questions of liability. If an incoming object is diverted, but notwithstanding hits the Earth, or if the object is broken up and parts still cause damage, where might liability (if any) lie?192 Concepts of terrestrial international environmental law may have an unusual role to play.

191 �� Koplow, supra n. 185, discusses whether the US might act alone, and whether there is an international duty to act. 192 �� Cf. R.L. Schweikart, ‘The Near-Earth Object (NEO) Protocol’ (2006) 49 Proc. IISL 574–9 at 578.

Chapter 11

Telecommunication Organisations Introduction Telecommunication by satellite relay is one of the undoubted major developments afforded by the opening of space. Of itself the creation of satellite telecommunication systems has gone a long way to meet the requirement of Art. I of the Outer Space Treaty that the use of space shall be for the benefit of all. We deal with this first. Direct broadcasting by satellite discussed previously in Chapter 9 is another important aspect of telecommunications. As we write, the arena of satellite telecommunications has changed vastly from its inception. The first organisations providing satellite telecommunications were intergovernmental and directed to the public service. The main organisations have now become private enterprises with in each case a residual intergovernmental organisation having a supervisory role in relation to the public interest, a role of variable effectiveness. A ‘public service’ is not the same as a ‘service for the public’ where profit for shareholders is the major motive. Although the satellite telecommunications service remains the business that the major telecommunications companies conduct, profitability rather than public service appears dominant. Investment, routes and service will be determined by profit not need. INTELSAT, INMARSAT and EUTELSAT are now companies active and ‘in play’ in the world of corporate finance and the public services they provide appear to be of secondary importance to their owners. Leveraged buy-outs, the manipulation of the resultant debt with which the basic enterprise has been burdened, and the maximisation of profit so that the debt can be serviced may weaken the provision of public services and may result in differential charges. In terms of public telecommunications services INTELSAT remains dominant, however emergent private companies such as SES Global, outlined towards the end of this chapter, are of growing importance particularly in the ‘direct broadcasting’ of news, entertainment and information. Telecommunications Telecommunication by satellite solves many communication problems. As such its development was seen as a benefit of space, and as a way of justifying the massive expenditures of the 1960s and 1970s. �� Cf. F.B. Shick, ‘Space Law and Communication Satellites’ (1963) 16 West. Pol. Quart. 14–33 at 19–24.

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The causa causans of the opening of space was the International Geo-physical Year of 1957–8, but, while there were military and prestige aspects in addition to the scientific reasons for the exploration of space, taxpayers usually want to see some more immediate and direct benefit from their taxes. The promise of improvement in telecommunications met that expectation, at least in the West, with both Presidents Eisenhower and Kennedy making statements on the matter. Further, the international community could also see benefits accruing from space telecommunications. In December 1961 the UN General Assembly was of the view that: ‘communication by means of satellites should be available to the nations of the world as soon as practicable on a global and non-discriminatory basis’. A year later the Assembly emphasised: ‘the importance of international co-operation to achieve effective satellite communications which will be available on a worldwide basis’. Such developments were attractive given the then state of international communications facilities. When space communications were becoming feasible terrestrial telecommunications relied either on cable networks or on radio. Cable systems had begun in the nineteenth century and were improved thereafter although long-distance submarine telephony had still to come on the scene. However, all ‘wired’ systems present difficulties. They provide point-to-point communications and hence are not flexible of access. A cable system is expensive, static and its route may be determined by reasons other than reason. In the twentieth century outside of Europe and the trans-Atlantic connections the major international cable networks followed the patterns of the old imperial colonies. Thus at that time cable communications between a French and a British colony next to each other in Africa

�� Statement on Communication Satellites by President Eisenhower, Department of State Bulletin, 16 January 1961; Documents on International Aspects of the Exploration and Use of Outer Space, 1954–1962, Staff Report, Committee on Aeronautical and Space Sciences, US Senate, 1963, 88th Cong., 1st Sess. Doc. no. 18 at 186. Cf. President Kennedy’s Special Message to Congress on Urgent National Needs, 25 May 1961, which not only set the famous objective of putting a man on the Moon by the end of that decade, but also asked for additional funding to speed ‘the use of space satellites for world-wide communications’: Public Papers of the President: John F. Kennedy (US GPO, 1961) 403–5, or the above cited Documents … Outer Space 1954–1962, 202–4. �� Part D, International Cooperation in the Peaceful Uses of Outer Space, UNGA Res. 1721(XVI) (1961), 20 December 1961. The US Communication Satellite Act (infra n. 13) required attention to be paid to the needs of developing countries. �� Part E.3, International Cooperation in the Peaceful Uses of Outer Space, UNGA Res. 1802 (XVII)(1962), 19 December 1962. �� The long distance submarine telephone cable only came on the scene in the late 1950s. The first Trans-Atlantic Telephone cable (TAT-1) was laid in 1955–6 and, providing only thirty-six circuits, was of limited capacity compared with the potential of a satellite link.

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connected via Paris and London. Again, cables can break or be broken. Further, until the coming of the fibre-optic cables in the later 1980s, the capacity of cables to carry standard telecommunications signals was limited. Finally wire cables have difficulty in coping with television signals. Television uses a wide bandwidth which can be carried by metal cabling only over a very short distance. Wireless communication (radio) arrived in the early 1900s. In the long, medium and short-wave frequency bands long-distance communication is possible because the radio signals are reflected around the curvature of the Earth by the Heaviside layer, a layer of ionised gases high in the atmosphere. The very high frequency (VHF) and ultra-high frequency (UHF) wave-bands and above are not reflected by this layer, but propagate in line-of-sight, that is the signals pass on out into space unless reflected by solid surfaces such as hills and mountains. VHF and UHF frequencies can carry high volumes of high-quality data, and (apart from broadcasting) are used in the network microwave towers that now have replaced long-distance telephone and data cable networks in many countries. They can also accommodate the broadband requirements of television, hence the microwave tower network is also used to send television signals point-to-point over long distances prior to their being broadcast by local transmitters. Radio was useful for broadcasting, but not for the passing of messages between particular parties unless the parties had transmitters or at least receivers and were willing to have their messages open to all. Broadcast signals were open to interception, and for very long distances only short-wave radio was suitable. However, short-wave radio is subject to solar and other interference, making longdistance services difficult. When satellite telecommunications became feasible �� On the outbreak of the First World War the UK sent trawlers to break all the German cables laid in the North Sea. This forced Germany massively to develop radio communications – and radio signals can be intercepted. The decryption (and amendment?) of the ‘Zimmerman Telegram’ helped bring the US into the First World War. More recently Internet access to and from China was broken in 2001 when a cable was fouled. A cable break isolated Pakistan in 2005. In February 2008 major disruption was caused to Internet connections in the Middle East, Asia and Africa after two cables were damaged apparently in the eastern Mediterranean: SEA-ME-WE 4 (South East Asia, Middle East and Western Europe, linking Singapore, Malaysia, Thailand, Bangladesh, India, Sri Lanka, Pakistan, United Arab Emirates, Saudi Arabia, Egypt, Italy, Tunisia, Algeria and France) and FLAG (Fibre-optic Link Around the Globe, linking from the eastern US to Japan). �� The long distance fibre-optic cable came later than the telecommunications satellite, and, though subject to the breakage problem (see previous note) now provides a less expensive major alternative to the satellite systems on appropriate routes. Conversely satellite links can provide service as back-up when a cable is damaged. Providing point-to-point communication, the usefulness of the fibre optic cable depends on interaction with the terrestrial network. Remote and sparsely populated areas are not served. A worldwide fibre-optic maritime cable network has now been laid. Using light frequencies, the fibre-optic cable can carry traffic of all types of telecommunications and provides wide bandwidth.

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point-to-point microwave transmissions were only being developed. Further even once microwave networks became feasible, they were expensive and often impossible to construct or maintain because of inhospitable terrain. Television transmission across continental distances or over major water obstacles such as the Atlantic could not be contemplated. Satellites obviate many of these problems. Telecommunication by satellites was foreseen by Arthur C. Clarke in a short paper published just after the end of the Second World War. Satellites provide solutions for most of the problems of cable and wireless by avoiding many of the difficulties of traditional terrestrial communication systems. A signal sent to a satellite can be beamed back down to almost anywhere on Earth thus eliminating the need for a physical point-to-point link. The radio frequencies that satellites use are in the UHF bands and above, easily penetrating the ionisation layers and affording a clarity and quality usable by all sorts of signals, from data to television. Satellites afford another advantage. As Clarke pointed out, three satellite relay stations in eastward geostationary orbit at 120° separation could provide worldwide coverage.10 The enthusiasm of the UN General Assemblies of 1961 and 1962 for satellite telecommunications is therefore entirely understandable. Over the next decades the UN desire to see the provision of a global satellite system affording non-discriminatory access to all nations was to be largely met particularly through the establishment of various organisations both international and national. However, reservations must now be expressed with regard to some recent developments. Commercial interests have become increasingly important, and private enterprise has hugely increased its presence in telecommunications. After considering the sui generis US corporation COMSAT, we deal with the major ‘Western’ international telecommunications organisations INTELSAT, �� For the current technology and its history see D. Martin, P.R. Anderson, L. Bartamian, Communication Satellites, 5th ed. (Washington DC: AIAA, 2007). �� A.C. Clarke, ‘Extra-terrestrial Relays: Can Rocket Stations Give World-Wide Radio Coverage?’ Wireless World (October 1945), 303–308. Writing under the pseudonym Hermann Noordung, Herman Potočnik (1892–1928) published The Problem of Space Travel – The Rocket Motor in Berlin in 1928 This envisaged a geostationary orbital space station from which the Earth might be observed for civil and military purposes. He did not suggest its use for telecommunications. A version of the book is at http://www.hq.nasa. gov/office/pao/History/SP-4026/contents.html. 10 �� However: First, because of the attenuation of an up- or down-link signal during its passage through the atmosphere it is more practicable to seek to cover less than the full 120°, thus lessening the depth of atmosphere that has to be penetrated. Four satellites at 90° separation thus provide a better global service, and systems such as INMARSAT use that configuration. Second, Clarke wrote before the transistor was invented, and therefore proposed large manned space stations, the personnel being needed to monitor the system, replace valves and otherwise run the space segment of the relay. The first geostationary satellites were relatively small since they and their successors use transistors. Many modern telecommunications satellites are about the size of a bus.

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INMARSAT and EUTELSAT. These all went through a pupation stage as jointventures in an interim form, and then a mature definitive form before mutating into their present privatised incarnations. Their use of ‘weighted voting’ is a precedent interesting for both international organisations, and for commercial entities active in space. We then turn to INTERSPUTNIK, the Russian response to INTELSAT, which after years as an international organisation has recently adopted a form very like the mature definitive INTELSAT. Whether INTERSPUTNIK will also move to privatised incorporation remains to be seen. We then provide a brief outline of the legal structure and status of ARABSAT and PALAPA, OATS, Thaicom and SES-Global. The chapter concludes with a consideration of the world public interest in such matters. COMSAT11 When space telecommunications began only the US and the USSR had the ability to launch satellites, but only the US looked as though it might be able to set up a system in which other countries would participate. In a lengthy statement on communications matters, President Kennedy indicated that the US favoured the private ownership and operation of the US portion of the global system.12 Construction of the satellite system would also be carried out by US entities. However, while the then existing private US telecommunications companies were willing to undertake the task, it was thought that a special company would be the best vehicle, and the Communications Satellite Act 196213 was passed providing the legislative basis for the Communications Satellite Corporation (COMSAT). Set out in its Sec. 201(a) the policy and purpose of the Act called for the establishment of ‘a commercial communications satellite system, as part of an improved global communications network ‘responsive to public needs and national objectives, which will serve the communications needs of the United States and other countries, and which will contribute to world peace and understanding’. The service was to be extended to provide global coverage at the ‘earliest practicable date’, and ‘care and attention [was to] be directed toward providing such services 11 �� For a fuller treatment of COMSAT down to 1989 see F. Lyall, Law and Space Telecommunications (Aldershot: Dartmouth; Brookfield, VT: Gower, 1989) 30–73. Cf. Richard R. Colino, ‘A Chronicle of Policy and Procedure: The Formulation of the Reagan Administration Policy on International Satellite Telecommunications’ (1985) 13 J. Sp. L. 103. Cf. also G.O. Robertson, ed., Communications for Tomorrow: Policy Perspectives for the 1980s (New York: Praeger, 1978). 12 Statement on Communication Satellite Policy, 24 July 1961; the Kennedy Public Papers, supra n. 2 at 529–32, and excerpted in Documents … Outer Space 1954–1962, supra n. 2 at 207–8. Cf. G.A. Codding, The Future of Satellite Communication (Boulder, CA: Westview, 1990). 13 �� The Communications Satellite Act 1962, Public Law no. 624, 76th Cong., 2d Sess., 76 Stat. 419; (1962) 1 ILM 331–8. The Act was amended during the life of COMSAT.

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to economically less developed countries and areas as well as those more highly developed’ (Sec. 102 (b)). Reflecting the fact that in the US telecommunications services were provided by commercial companies, private enterprise was to participate in the project, and COMSAT was to be the US agent in setting up the global system when it came into being. In due course COMSAT was established by incorporation.14 Stock in the new company went on public offer in 1964 on a Prospectus15 characterised by Newsweek as ‘a litany of caveats’.16 Although some limited foreign ownership of COMSAT stock was permitted, most was reserved for US citizens and companies, and the Directors of the Company were required all to be US nationals.17 As will be seen below COMSAT was important in the creation and development of INTELSAT, acting as Management Services Contractor for the new organisation once it attained its definitive form in its initial years. COMSAT was also important in the evolution of INMARSAT, at one point seeking to play a similar role in that organisation. However, once these organisations were established COMSAT tended to languish. Many of its key personnel transferred to INTELSAT when the definitive arrangements became operational. COMSAT’s major function as the US gatekeeper and portal to the INTELSAT and INMARSAT systems was restrictive, but its attempts to broaden its activities were not particularly successful, for example efforts to become a supplier of satellite services within the US by providing direct TV to hotel chains. Within the US other commercial enterprises were anxious to provide telecommunications satellite services. There was also hostility towards COMSAT on the part of some legislators and telecommunications executives, which did not help. Entrepreneurs also saw the opportunity of profit. All these elements contributed to a pressure, not to say agitation, for the privatisation of both INTELSAT and INMARSAT. Once that goal had been attained COMSAT’s reason for being was no longer compelling and in due course it was broken up and most of its assets sold first to Lockheed Martin and TELENOR (a Scandinavian Company) before being bought by the new privatised INTELSAT in 2002. In short 14 �� For the Articles of Incorporation in their initial form see (1963) 2 ILM, 395–416 and in the Hearings on the nomination of the incorporators; Nomination of Incorporators, Hearing before the Committee on Aeronautical and Space Sciences, US Senate, 19 March 1963, 88th Cong. 1st Sess., 43–51. In the latter source the Bye-laws of the Corporation are at 51–63, and an annotated ‘legislative history’ and an annotation of the final version of the Articles of Incorporation appears at 112–23. 15 �� The COMSAT Prospectus is printed in its preliminary form (1964) 3 ILM, 571– 605. For the final version see: Satellite Communications – 1964, Part 1, Hearings before a Subcommittee of the Committee on Government Operations, US House of Representatives, 1964, 88th Cong. 2d Sess., 597–657. 16 Newsweek, 18 May 1964, 87. 17 �� Communications Satellite Act, 1962, s.303 (a); Communications Satellite Corporation Articles, Art. VIII, s.8.02. Cf. S.A. Levy, ‘Private Diplomacy and Public Business: Public Supervision of the Communications Satellite Corporation’ (1977–1978) 45 Chic. L. Rev. 419–49.

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COMSAT has ceased to exist. Its role was crucial in the early days of satellite telecommunications, but is now spent. INTELSAT – The International Telecommunications Satellite Organisation Interim INTELSAT18 The US decisions creating COMSAT did not determine the form of the international developments. There is evidence that the intention of some in the US was originally that while the US would create the satellite system ‘in conjunction and in cooperation with’ others, the others would be ‘authorised users’ of the system and their participation would be subject to the close US governmental control of the activities of COMSAT.19 Other countries would in effect simply become subscribers to a US system.20 Certainly other countries feared that possibility.21 Further, the Second World War was then relatively recent, and various states were still anxious about their own industries. The design, procurement and construction of telecommunication satellite systems would clearly require technological developments in which a number of non-US states were eager to participate. Europe and the British Commonwealth were groups with an interest in the system not being US-owned.22 The European Conference on Posts and Telecommunications (CEPT)23 was an obvious body within which to consider such matters and it formed a European Conference on Satellite Communications (CETS) precisely to take matters further. Consultations began with which Australia was associated. The implicit threat was that unless the US involved other countries the European states might themselves construct a satellite system, launching 18 �� For a fuller treatment of Interim INTELSAT see Lyall, 74–85. 19 �� Lyall, 34–6, 38–40 and n. 25 below. 20 Satellite Communications – 1964 (supra n. 14), Part II at 660. 21 �� Cf. Statement by the UK Postmaster General, [UK] Hansard (1963–4) 690 House of Commons Debates, col. 421, with comment as to ‘preventing an American monopoly’. 22 �� N. Wright, ‘Formulation of a British and European Policy Toward an International Satellite Telecommunications System: The Role of the British Foreign Office’, in A.J. Butrica, ed., Beyond the Atmosphere: Fifty Years of Satellite Communication (NASA SP-4217) (Washington DC: NASA, 1997). 156–70, and J.F. Galloway, ‘Originating Communications Satellite Systems: The Interactions of Technological Change, Domestic Politics and Foreign Policy’, ibid. at 171–94. 23 �� A semi-formal body in which European postal and telecommunications administrations (PTAs) discuss matters of common interest: ‘Arrangement Constituting the European Conference of Postal and Telecommunications Administrations (CEPT)’ (1959) 7 Eur. YB. 639–59; L. Weber, ‘The European Conference on Posts and Telecommunications’ 6 Encyc. Pub. Int. Law (1983) 147–8; R. Rutschi, The European Conference on Posts and Telecommunications’ 1967 34 Tel. J. 481–3; A.H. Robertson, European Integration, 3rd ed. (London: Stevens, 1973) 366–70; Lyall, 266.

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from Woomera, South Australia,24 and finding its global market among the states formed from the former European empires. Further the US system might not be allowed access to that global market and in particular to the potentially lucrative trans-Atlantic communications market. A conference was therefore held whose participants from the US, Western Europe, Australia, Canada and Japan between them represented approximately 90 per cent of the international telephone traffic of the world. The result was a joint venture, the International Telecommunications Satellite Organisation (INTELSAT) at first in an interim form in 1964.25 The future negotiation of permanent arrangements was provided for, but the important thing in 1964 was to press forward. Although USSR participation in the embryonic INTELSAT was sought – a delegation of the US negotiators met a Soviet delegation in Geneva in 1964 – the USSR refused to join the proposed arrangements or even to attend as members of the conference at which Interim INTELSAT was agreed.26 There are a number of reasons both real and suggested for this decision. First, even at the early stages of consideration of Interim INTELSAT it was clear that most participants favoured an arrangement in which contribution to cost would be reflected in influence, voting weight, share of contracts and proportion of common ownership. The USSR preferred the normal UN ‘one state one vote’ system. Second, as we will see, the main engine in the proposed arrangement was to be an Interim Communications Satellite Committee (ICSC) membership of which would be based on size of contribution to the enterprise in which members have a vote weighted to reflect the size of their contribution. The size of the original contributions (the investment share or quota) was to be based on ITU statistics as to international telecommunications traffic. The then ITU statistics for the USSR meant that the USSR would not be entitled 24 �� Woomera was developed following the Second World War as a testing range for the European Launcher Development Organisation (ELDO, one forerunner of ESA, the other being the European Space Research Organisation (ESRO)) and the British Blue Streak and Blue Steel rocketry projects. For a history of Woomera see http://homepage.powerup.com. au/~woomera. The area is presently used for the incarceration of asylum seekers, but over the years use of the Woomera range and facilities has been negotiated as an alternative landing site for US and Japanese space shuttles and for hyper-plane testing. 25 �� Agreement Establishing Interim Arrangements for a Global Commercial Communications Satellite System, and Relative Special Agreement, 1964, 514 UNTS 25; 1966 UKTS 12, Cmnd. 2436 and 2940; 15 UST 1705, TIAS 5646; (1964) 3 ILM 805–14. In 2005 the US Court of Appeals for the District of Columbia Circuit referred to ‘INTELSAT, the US-based, 143-nation, international satellite consortium created by the Communications Satellite Act of 1962’: Northpoint Technology, Ltd v FCC, 367 US App. D.C. 170; 414 F.3d 61 at 72. This assertion is simply at variance with the facts. 26 �� N.M. Matte, Aerospace Law (Toronto: Carswell; London: Sweet and Maxwell, 1969) 197. The USSR sent observers: I. Cheprov, ‘Global or American Space Communications System?’ (1964) Int. Aff. (Moscow: December) 69–70; Cf. D. McDaniel and L.A. Day, ‘INTELSAT and Communist Nations Policy on Communications Satellites’ (1973–1974) 18 J. Broadcasting 311–21.

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to individual membership of the ICSC and might not even make the required quota weight even with the addition of Soviet allied states. Third, even had the USSR become a member of the ICSC, it would certainly have had a very minor voting weight (possibly 1–2 per cent) while the US would, on the likely original figures, have had a quota weight of c. 60 per cent. Fourth, there was the question of finding convertible foreign currency sufficient to meet the expected costs of contribution, a major difficulty for the Communist bloc in the 1960s. Fifth, there were questions as to the technology to be developed and used. Would the West be willing to allow the East access to the techniques, inventions, procurement contracts and the like? And vice-versa. Last the negotiations of interim INTELSAT were taking place not very long after a major confrontation between the USSR and the US – the Cuba Crisis of 1962. Although at the time both sides had indeed been involved in the COPUOS discussions that had led to the Space Principles Declaration of 1963, it was not a time for agreement on a satellite telecommunications system. Interim INTELSAT, which existed from 1964 to 1973, was a consortium of joint-venturers, not a formal international organisation. Nonetheless its structure and principles foreshadowed the definitive arrangements. It took the initial decisions as to the creation of the INTELSAT system, and brought it into being. The interim arrangements consisted of two interrelated Agreements, one intergovernmental, and the other between telecommunications operating entities (PTTs). The Interim Agreement (Int. Ag.) was an agreement between states.27 The other, the Special Agreement (Sp. Ag.), was an agreement between agencies operating telecommunications, one per state Signatory to the Interim Agreement, each being designated to sign it by its parent state. All but one of the Signatories to the Special Agreement were governmental bodies, departments or agencies, because, with the sole exception of the US, at that time throughout the world telecommunications were run by and were the responsibility of government departments. COMSAT, designated by the US to be its Signatory to the Special Agreement, was to act as manager in the setting up of the new system (Int. Ag. Art. VIII). Under the Interim Agreement any member of the UN or of the ITU might become a member of INTELSAT (Int. Ag. Art. XII). However the actual initial membership of the joint-venture was based on invitation having regard to the international ranking of each potential member state in its volume of international telecommunications based on ITU statistics.28 Nineteen states entered into the Interim Agreement, each nominating a Signatory to the Special Agreement and each Signatory was allocated a percentage quota for the initial purposes of the

27 �� The ‘Interim Agreement’ was so titled by Art. I(c) of the later Agreement as to the definitive arrangements, infra n. 37. 28 �� The CCITT of the ITU had these statistics by virtue of its then role in the settlement of interstate accounts for international services. See below as to the importance of these statistics.

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venture, based at first upon its share of international telecommunications traffic.29 The largest quota (US) was set at 61 per cent and the minimum (the Vatican) at 0.05 per cent. The importance of the quota was that by Int. Ag. Art. III and Sp. Ag. Art. 2 each Signatory was to contribute that proportion of the cost of the design, development construction and operation of the system, and in return was a proportionate joint owner of the system. Quotas were to be recalculated when a new member joined or a party withdrew, but in the latter case the quota of a remaining Signatory could be increased only with the consent of its holder (Int. Ag. Art. XI(d)).30 A quota system made economic and political sense. The joint-venturers were very diverse both in terms of technical abilities and in economic and financial strength. It was necessary that these disparities should be reflected in the contribution to be made to the venture, but the quota system was also an innovation in international law. Normally decision-making in a modern international body is on the basis of the equality of states – ‘one state, one vote’. Size is unimportant.31 In Interim INTELSAT as with Definitive INTELSAT, financial contribution was a factor in the most important decision-making body. The quota determined the voting weight of the Signatory within the Interim Communications Satellite Committee (ICSC),32 the smaller group within the venture which was responsible for major decisions (Int. Ag. Art. V(a)). The ICSC was composed of one representative of each Signatory with a quota greater than 1.5 per cent, together with representatives of groups of Signatories each holding less than 1.5 per cent but who agreed to be represented together (Int. Ag. Art. IV(b)). The function of the ICSC may be summarised as being to bring the new global system into being (Int. Ag. Art. IV). Within the ICSC each member had the voting weight held by the Signatory or Signatories each represented (Int. Ag. 29 �� The nineteen initial members and the quotas effeiring to their telecommunications entities were: Australia 2.75 per cent, Austria 0.2 per cent, Belgium 1.1 per cent, Canada 3.75 per cent, Denmark 0.4 per cent, France 6.1 per cent, Germany 6.1 per cent, Ireland 0.35 per cent, Italy 2.2 per cent, Japan 2.0 per cent, The Netherlands 1.0 per cent, Norway 0.4 per cent, Portugal 0.4 per cent, Spain 1.1 per cent, Sweden 0.7 per cent, Switzerland 2.0 per cent, UK 8.4 per cent, US 61.0 per cent, Vatican City 0.05 per cent (Sp. Ag., Annex). 30 �� No Party withdrew during the currency of the interim arrangements. 31 �� Cf. Convention on the Rights and Duties of States, Montevideo, 26 December 1933, 165 LNTS 19; 49 Stat. 3097; UST 881; 40 Martens (3d) 452’ 3 Bevans 145; 6 Hudson 420; (1934) 28 AJIL Supp. 75: Art. 4: ‘States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.’ 32 �� Intriguingly, although technically neither Interim INTELSAT nor the ICSC was an international organisation and neither had legal personality, the ICSC was recognised for the purposes of the US International Organisations Immunities Act of 1962 by Presidential Executive Order 1127 of 30 April 1966 (F.R. Doc. 66-1899): 1966 5 ILM 615. This step exempted it from US taxation.

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Art. V(a)). Since there was great disparity in the size of quotas (and in particular because the initial US quota was 61 per cent), special rules existed as to quorum,33 and as to decision making on particularly crucial matters,34 including the choice of system, standards, establishment of budgets by major categories, rates of charge for service, the placing of major contracts, launches, ground stations and access to the system, together with conditions of accession and withdrawal from the venture (Int. Ag. Art. V(c)). That said, the ICSC was to endeavour to act unanimously and usually did so (Int. Ag. Art. V(c)).35 As to the operation of the system it is important to note that a degree of nondiscriminatory access was provided for. By Sp. Ag. Arts 8(a) and 8(b) applicants for approval of an Earth station were to make ‘equitable and non-discriminatory arrangements’ for its use by all Signatories and others they might authorise. As to charges for services, by Sp. Ag. Art. 9 these were set to cover costs, not to maximise return. Unlike the definitive arrangements, nothing was said as to their global uniformity. By Int. Ag. Art. I(a) it was the intention that basic global coverage by the new system should be established by late 1967 and this was achieved. By Art. IX the ICSC was to make recommendations as to definitive arrangements which should replace the interim arrangements. A report was supposed to be made ‘within one year of the initial global system becoming operational and in any case not later than 1 January 1969’ (Int. Ag. Art. IX(a)). The parties were to consider these recommendations with a view to the entry into force of definitive arrangements by 1 January 1970 (Int. Ag. Art. IX(c)). However, as might have been expected this timetable was departed from. In 1969 a plenipotentiary conference was convened by the US. Membership had by then risen to sixty-eight, and only one member did not attend the conference. Negotiations took some further eighteen months.36 33 �� A quorum for any meeting consisted of representatives having in total a number of votes exceeding that of the representative having the largest vote by not less than 8.5; (Int. Ag. Art. V(b)). 34 �� In these matters any decision had to have the concurrence of representatives whose total votes exceeded that of the representative with the largest vote by not less than 12.5. By the initial quotas this meant that at the minimum decisions could be taken by a group consisting of the US, UK, and either France or Germany. In fact voting did not occur, consensus being preferred. 35 �� To comment in retrospect, it was also important that those who sat on the ICSC in the main had a technical background and were intent on establishing a global satellite system. Cf. n. 46 below. 36 �� P.B. Trooboff, ‘INTELSAT: Approaches to the Renegotiation’ (1968) Harv. Int. L.J. 1–84; Bin Cheng, ‘Communications Satellites’ (1971) Curr. Leg. Prob. 211– 45; Colino, infra n. 43. Wright, supra n. 22, cites J.T. Kildow, Intelsat: Policy Maker’s Dilemma (Lexington: Heath, 1973) and J. Galloway, The Politics and Technology of Satellite Communications (Lexington: Lexington Books, 1972) as giving US views of the negotiations. See also J.F. Galloway, ‘Originating Communications Satellite Systems: The Interactions of Technological Change, Domestic Politics and Foreign Policy’, in A.J.

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Definitive INTELSAT37 A conference in May 1971 attended by seventy-eight of the by then seventy-nine members agreed on the definitive arrangements for INTELSAT. The documents, adopted by seventy-three votes, with France, the Malagasy Republic, Mexico and Monaco abstaining, were signed on 20 August.38 As with the interim arrangements the basic documents were an Agreement between states (Ag.) and an Operating Agreement between Signatories designated by each state member (Op. Ag.) (Ag. Art. II). The new arrangements were not as favourable to COMSAT as some within the US had hoped, largely because of distrust of the relationship between COMSAT and the US Department of State, and of general US space diplomacy.39 The definitive arrangements met requirements as to the number of ratifications together with a minimum proportion of quota held by ratifying states (Ag. Art. XX(a)) and came into force on 12 February 1973. This INTELSAT had international personality (Ag. Art. IV),40 and was headquartered in Washington DC.41 Definitive INTELSAT itself may be said to have come fully into being after a transitional period that ended on 1 January 1979 when the Director General and the new Executive Organ entered into their full responsibilities, assuming duties formerly the responsibility of COMSAT under the prior Management Services Butrica, ed., Beyond the Atmosphere: Fifty Years of Satellite Communication (NASA SP4217) (Washington DC: NASA, 1997) 171–94. 37 �� For a fuller treatment of INTELSAT down to 1989 see Lyall, 85–122. Cf. J.R. Alper and J.N. Pelton, eds, The INTELSAT Global Satellite System (New York: American Institute of Aeronautics and Astronautics Inc., 1984). 38 �� Agreement relating to the International Telecommunications Satellite Organisation (INTELSAT), Washington DC, 20 August 1971, 1220 UNTS 21; 23 UST 3813, TIAS 7532; 1973 UKTS 80, Cmnd. 5610; 1973 ATS 6; (1971) 10 ILM 909. Operating Agreement relating to the International Telecommunications Satellite Organisation (INTELSAT), 1220 UNTS 149; 23 UST 4091, TIAS 7532; 1973 UKTS 80, Cmnd. 5461; (1971) 10 ILM 946. Minor amendments were made at Copenhagen in 1995 (1996 ATS 14): Ag. Art. XVII(f) was amended to remove the upper limit for the entry into force of an amendment, and Op. Ag. Art. 6(d)(i) and (h) as to alteration of investment shares and deleting Art. 22(f) as to the upper limit for the entry into force of an amendment. 39 �� F.G. Nixon, ‘INTELSAT: A Progress Report on the Move toward Definitive Agreements’ (1970) 20 U. Tor. L.J. 380–85; W.A. McDougall, … the Heavens and the Earth: A Political History of the Space Age (New York: Basic Books, 1985) esp. Chapters 17 (34–60) and 20 (415–35). 40 �� Protocol on INTELSAT Privileges, Exemptions and Immunities, Washington DC 19 May 1978, 1981 UKTS 2, Cmnd. 8103; given effect to for the UK under the INTELSAT Privileges and Immunities Order, 1979, 1979 SI 911, and amended by 1999 SI 2032. 41 �� Headquarters Agreement between the Government of the United States of America and the International Telecommunications Satellite Organisation, effective 24 November 1976 by exchange of letters dated 31 January and 1 February 1977 between INTELSAT and the US Department of State, 28 UST 2248, TIAS 8542.

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Contract.42 As part of this process a number of key personnel transferred from COMSAT to INTELSAT. Definitive INTELSAT had a quadripartite structure – an Assembly of Parties, a Meeting of Signatories, a Board of Governors and an Executive Organ under a Director General (Ag. Art. VI(a)).43 Meeting biannually, the Assembly was the ‘principal organ’ of INTELSAT (Ag. Art. VII(a)) and consisted of the states party to the INTELSAT Agreement. It took its decisions on the basis of ‘one state one vote’ (Ag. Art. VII). It gave consideration to matters of general policy and longterm objectives, ‘primarily of interest to the Parties as sovereign states’ (Ag. Art. VII(a)).44 The Meeting of Signatories (Ag. Art. VIII) was composed of all the Signatories to the Operating Agreement, and met annually, or more frequently if required (Ag. Art. VIII(c) and (d)). In it every Signatory had one vote (Ag. Art. VIII(c)).45 The Assembly or the Board of Governors could transmit resolutions, recommendations or views to the Meeting for consideration, comment and, on occasion, decision. The responsibilities of the Meeting included decisions as to finance, and the making of general rules (based on the recommendations of and for the guidance of the Board of Governors) as to Earth station approval, allotment of space segment capacity and rates of charge for its use (Art. VIII (b)(v)). The Meeting also annually fixed the minimum investment share which entitled a Signatory or group of Signatories to representation on the Board of Governors (Ag. Art. VIII (b)). Notwithstanding that the Agreement identified the Assembly as the ‘principal organ’, in reality the Board of Governors (Ag. Art. IX) was the most important and interesting organ within INTELSAT.46 Its responsibility was the design, development, construction, operation and maintenance of the INTELSAT satellite telecommunications system (Ag. Art. X(a)). Accordingly a long list of powers and duties was vested in the Board (Ag. Art. X(a)(i)–(xxvii) and (b)). 42 �� The management of the transition to the permanent structure was provided for by Ag. Art. XII. Transition provisions were contained in Ag. Annex D and Op. Ag. Annex. 43 �� R.R. Colino, The INTELSAT Definitive Arrangements: Ushering in a New Era in Satellite Telecommunications (Geneva: European Broadcasting Union, 1973); M. Snow, The International Telecommunications Satellite Organisation (INTELSAT): Economic and Institutional Challenges Facing an International Organisation (Baden-Baden: Nomos Verlag, 1987); Lyall, 91–122. 44 �� As to procedure see the Assembly of Parties, Rules of Procedure, INTELSAT Doc. AP-2-24. 45 �� Cf. Meeting of Signatories, Rules of Procedure, INTELSAT Doc. MS-6.17. 46 �� The background of the personnel of the Board was important. In the early years of INTELSAT Governors tended to be drawn from the technically qualified elements of signatories. They were more intent on setting up a satisfactory global system, and less motivated by political questions and financial considerations. As time went on ‘managers’ lacking a technical background but with accounting and political skills came on the scene. Opinions differ as to the value of this change. Cf. T. Pratchett, Going Postal (London and New York: Doubleday, 2004).

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The Board consisted of up to twenty-seven members. A complex system determined the right of a Governor to sit which could and did mean that not all Signatories were represented on the Board (Ag. Art. IX(a)–(h)). Broadly, between twenty and twenty-two governors (usually twenty-two) sat on the basis that the investment share each represented was not less than the minimum investment share fixed by the Meeting of Signatories under Ag. Art. VIII(b).47 Such a Governor might therefore sit as representing one major Signatory or a group of Signatories which had agreed so to be represented (Ag. Art. IX(a)(i) and (ii)).48 The other five governors were elected by the Meeting of Signatories and had each to represent a group of not less than five Signatories which were not otherwise represented on the Board and were drawn from one of the five primary regions into which the world is divided for ITU purposes, so long as not more than two such governors represented one single region. The cumulative total investment share which a ‘geographic’ governor might represent was irrelevant to the right to sit except when a decision had to be made between geographic groupings tying in election in which case size was determinative (Ag. Art. VIII(a)(iii)). Investment shares were recalculated annually or on changes to the membership of INTELSAT (Op. Ag. Art. 6). In practice investment shares were calculated to six decimal places. This was important in decision-making within the Board of Governors. Each governor had the voting weight he or she represented except that no governor could exercise more than 40 per cent of the voting weight of the Board. When this was numerically possible the ‘excess’ was divided equally among all other Governors (Ag. Art. IX(g)(iv)). While the Board attempted to take decisions unanimously (Ag. Art. IX(j)), special rules applied for substantive and procedural decisions (Ag. Art. IX(j)(i)).49 In practice voting was very rare, consensus being the norm. That said, the retention of the quota mechanism based on the use of the system, for determining shares of ownership, financial liability and profit-sharing, and its use within the Board of Governors for appointment and decision-making, was excellent, and is a model that other international organisations could with profit consider. The minuting practice of the Board was intriguing. Individual governors were not identified as making particular points. The contributions made by governors were tersely summarised and discussion omitted. The form of a minute was that 47 �� The Meeting set the minimum so as to produce twenty to twenty-two governors. 48 �� When the designation of multiple signatories by a party was permitted in 1995, it was also provided that no more than one governor might represent one or more of the Signatories appointed by a single party, thus potentially tying each governor to individual parties as well as to the signatories each represented. See below at n. 60. 49 �� By Ag. Art. IX(j) substantive decisions could be taken by a majority of at least four governors having a voting weight of at least two-thirds of the voting weight represented within the Board, or by an affirmative vote of the members of the Board less three irrespective of voting weight. Procedural questions were taken by simple majority of those present and voting.

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‘The Board took up item “XX” on the Agenda’. The Board then ‘took note that’ or ‘considering that’ [a sequence of summarised points] and ‘decided …’. This meant that were a Signatory to be dissatisfied with a Board decision, a governor could refer to the minutes to show that the Signatory’s point had been made, albeit unsuccessfully. A governor was a ‘representative’ not a ‘delegate’.50 As indicated above, and as with representatives on the ICSC, and at least in the early stages of INTELSAT governors were usually technically qualified, experienced in the setting up and maintenance of telecommunication systems and intent on getting the system up and working efficiently, as opposed to running a business. Given the anonymised minuting conventions, a governor might make points the Signatory wanted made, but himself be willing, in the broader interests of INTELSAT, not to fight to the extent of a vote. Much was accomplished by personal discussion in the corridors outside the formal meetings of the Board. The Executive Organ was responsible for carrying the decisions of the Board into effect (Ag. Art. XI). It was headed by a Director General, who was also the legal representative of INTELSAT (Ag. Art. XI(b)(i)), and who was appointed by the Board subject to confirmation by the Assembly (Ag. Art. XI(b)(iii)).51 Although the Executive Organ had many functions, technical and operational functions to do with the satellite system were as far as possible contracted out (Ag. Art. XI(c)(ii)). The ‘prime objective’ of the definitive INTELSAT was ‘the provision on a commercial basis of the space segment required for international public telecommunications services of high quality and reliability to be available on a non-discriminatory basis to all areas of the world’ (Ag. Art. III(a)).52 ‘International’ public telecommunications services were therefore the main objective, but there were additions to the category. By Ag. Art. III(b) certain ‘domestic public telecommunications services’ were considered on the same basis as international services. These were services between areas of a state ‘separated by areas not under 50 �� That said, it is also alleged that on occasion the US Governor would have behind him an open telephone link to the State Department. Cf. S.A. Levy, ‘Private Diplomacy and Public Business: Public Supervision of the Communications Satellite Corporation’ (1978) U. Chic. L. Rev. 419–49. 51 �� The Director General could be removed for cause by the Board on its own authority. This happened when R.R. Colino (DG 1983–6) was convicted of fraud in relation to kickbacks from companies involved in the construction of the new headquarters building in Washington DC. Colino was later required to pay US$8.6 million in damages to INTELSAT (damages trebled to US$25.8 million under the Racketeer Influenced and Corrupt Organizations Act (RICO)), 18 USCS §§ 1961–68: International Telecommunications Satellite Organisation v Richard R. Colino, Civil Actions 87–2749 and 88–1266, US District Court for the District of Columbia, 1992 US Dist. LEXIS 4887 and 8031; 1992 WL 93129, 1992 WL 151809 (D.D.C.). 52 �� ‘Public telecommunications services’ were defined in Ag. Art. I(k) in generous terms, as being services of many kinds, fixed or mobile, ‘available for use by the public’, but excluding what we now classify as air or maritime mobile services.

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the jurisdiction of the state concerned’53 or separated by the high seas,54 or, subject to prior approval by the Meeting of Signatories acting on the recommendation of the Board, services within a state between areas not linked by terrestrial wideband facilities which were ‘separated by natural barriers of an exceptional nature’ impeding the provision of such facilities.55 Finally, and importantly for the developments of the twenty-first century, beyond such international services and their extensions, the INTELSAT space segment was also available for ‘other domestic services’ on a non-discriminatory basis so long as INTELSAT ability to meet its primary purpose was not impaired (Ag. Art. III(c)). As it happened, having met its international requirements the INTELSAT system had much ‘spare capacity’ in part because of the increasing capacity of successive series of INTELSAT satellites, and also because most of them considerably exceeded their design life-times. As a result, by the time INTELSAT was privatised in 2001 some thirty-five countries were dependent on INTELSAT for domestic as well as international communications. This was to prove a matter of concern when the privatisation occurred. The pricing policy for INTELSAT services was dealt with by Ag. Art. V(d).56 This laid down that there was to be a standard worldwide price for each type of utilisation of the space segment for all applicants for space segment capacity for that type of utilisation. A user therefore in effect paid the average cost of the provision of that particular utilisation worldwide; and its payment was not related to the volume of usage it generated (traffic density) or to the actual cost of providing the particular link being used. Low traffic density users were therefore subsidised by users of links with a higher density of usage. A question, important in the early days, was what should happen were a member of INTELSAT to join another satellite system set up after and in possible competition with INTELSAT.57 It was obviously appropriate that the technology of the later system should not interfere with the INTELSAT signals, and INTELSAT members were therefore required to consult to ensure that any new system they joined was technically compatible with the INTELSAT system. In the case of a domestic system the consultation was with the Board of Governors (Ag. Art. XIV(c)). In the case of an international system consultation was again with the Board, but in this case the Assembly was also required to express a view

53 �� For example, Alaska and mainland US, or, prior to 1971, East and West Pakistan. 54 �� For example, Hawaii and mainland US. 55 �� For example, Peru, which extends from Pacific sea-level over the Andes into the upper Amazon basin. 56 �� General rules as to prices were set by the Meeting of Signatories on the recommendation of and for the guidance of the Board of Governors (Ag. Art. VIII(v)). The actual charges were set by the Board of Governors (Op. Ag. Art. 8). 57 �� No space satellite systems were established prior to INTELSAT.

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on the matter after having been advised by the Board (Ag. Art. XIV(d)).58 More important than technical co-ordination was the possibility of loss of revenue. The errant INTELSAT member might divert traffic that otherwise would have been carried by the INTELSAT system. Under Ag. Art. XIV(d) an INTELSAT member joining another international system had to consult the Assembly through the Board to ‘avoid significant economic harm’ to the INTELSAT system. Acting on the advice of the Board, the Assembly expressed its findings on the matter by way of recommendation, but had no power to enforce its view. There was debate as to the meaning of the phrase ‘significant economic harm’. Did it mean the total diversion of revenue from INTELSAT to other systems including the particular diversion under consideration, in which case a minor diversion might put the total of diversions unacceptably high? Or did the phrase refer only to the particular diversion under consideration? In fact the Assembly never objected to the proposed entry of an INTELSAT member to another system, and in the 1990s INTELSAT Board of Governors decided that a diversion of even 100 per cent of revenue was acceptable. Under these procedures co-ordination was agreed for many ‘separate systems’ including INMARSAT, EUTELSAT, ARABSAT, PANAMSAT, INTERSPUTNIK and PALAPA.59 Another question was the distribution of procurement contracts. States tend to be protective of their own industries – that was one reason why INTELSAT existed, rather than allowing the US to build, own and operate the satellite system. In the negotiation of both the interim and definitive arrangements for INTELSAT there was therefore concern as to the distribution of contracts, particularly procurement contracts, and as to access to the technology and intellectual property generated by these contracts. Both the Agreement and the Operating Agreement therefore made provision to ensure that, within limits related to the technical competence of states and their contractors there was a ‘juste retour’ related to the investment contribution quotas of Signatories (Ag. Art. XIII; Op. Ag. Art. 16). Provision was also made for access at least for INTELSAT purposes to intellectual property including patented technology invented and developed for INTELSAT purposes (Op. Ag. Art. 17). Disputes between Signatories, Signatories and parties, and either with INTELSAT 58 �� There was similar consultation in regard to specialised telecommunication services (Ag. Art. XIV(e)). Such services included radio navigational, direct broadcasting, meteorological, space research and Earth resources services (Ag. Art. I(l)). Of course in all cases technical co-ordination had also to occur through the ITU procedures outlined in Chapter 7. 59 �� Lyall, 154–208; R.R. Colino, ‘International Cooperation between Satellite Systems: An Overview of Current Practices and Future Prospects’ (1977) 5 J. Sp. L. 65–92; I.B. Schwartz, ‘Pirates or Pioneers in Orbit? Private International Communications Satellite Systems and Article XIV(d) of the INTELSAT Agreements’ (1986) 9 Bost. Coll. Int. and Comp. L. Rev. 199–242. Cf. L.A. Caplan, ‘The Case For and Against Private International Communications Satellite Systems’ (1985–6) 26 Jurimetrics J. 180–201; D.M. Leive, ‘INTELSAT in a Changing Telecommunications Environment’ (1984–5) 25 Jurimetrics 82–93.

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were referable to arbiters drawn from a Panel of Legal Experts (Ag. Art. XVIII; Op. Ag. Art. 20; and Ag. Annex C), but this procedure was never invoked. So INTELSAT began, and prospered. A global satellite telecommunications system was established operating on a commercial basis albeit it not primarily for profit (Ag. Art. III(a)). The USSR and many Eastern bloc countries joined in the 1980s and 1990s. Within each country the local INTELSAT Signatory was the gateway to the space segment, providing service on a wholesale basis to other telecommunications providers. INTELSAT public telecommunication services were open to all states, either by way of membership of the organisation or by buying service. Direct access to the system without the need to go through the Signatory designated for the state concerned was introduced informally in the late 1980s and permitted by several Signatories. Thereafter the Agreement was amended by the Twentieth Assembly of Parties meeting in Copenhagen in 1995 to allow the designation of more than one Signatory by a state party, though this was not necessary for direct access.60 Charges for a particular type of service were uniform throughout the world. Procurement contracts were distributed among INTELSAT members with the capacity to fulfil them, and correlatively there was a limited degree of co-operation in and access to the intellectual property such contracts generated. Public services were provided for geographically divided states, or states having natural barriers to normal telephony. In addition, INTELSAT provided normal domestic services to many other states without impairing its primary services.61 INTELSAT services made money. Signatories were not asked for capital payments for the last two series of INTELSAT satellites prior to its privatisation. Instead these series were paid for from accumulated revenue. In short, at this stage the aspirations of the early UN Resolutions in favour of the provision of a global telecommunications satellite system with nondiscriminatory access for all were in the main fulfilled. The sole obvious exception 60 �� Amendment of the Agreement relating to the International Telecommunications Satellite Organization ‘INTELSAT’ of 20 August 1971 to implement Multiple Signatory Arrangements, Copenhagen, 31 August 1995, Select Documents on International Affairs no. 46 (1998), Australian Department of Foreign Affairs and Trade. For the US authorisation of direct access for US companies, see In the Matter of Direct Access to the INTELSAT System, FCC Report and Order, adopted 15 September 1999, released 16 September 1999; 14 FCC Rcd 15703; 16 Comm. Reg. (P & F) 769; Release no. FCC 99–236; IB Docket no. 98–192. Other signatories and countries permitted direct access by simpler procedures. The UK signatory, British Telecom (BT), latterly permitted some twenty-five UK companies direct access to the INTELSAT space segment. Depending on their projected usage of the system these had to pay an equitable proportion of the BT investment contribution to INTELSAT as well as the relevant user charges. 61 �� It also provided certain important inter-state services, for example a circuit was maintained between the US and USSR for notification of nuclear risks; ‘Agreement on the Establishment of Nuclear Risk Reduction Centers’ (1988) 27 ILM 76. However a special service for the UN was turned down: ‘INTELSAT Resolution on UN Request to Utilize INTELSAT System’ 21 May 1971 (1971) 10 ILM 965.

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was the provision of maritime services which for political and financial reasons were provided through the separate system, INMARSAT. However, as noted below, in the 1990s pressures grew for the privatisation of the major satellite telecommunications providers. We will consider these pressures more fully later, for they represent a departure from the aspirations of the early days. The emergence of New Skies NV from INTELSAT in 1998 showed how things could develop.62 A view had developed within INTELSAT that it ought to act more commercially than it had been doing, but this was not possible to do within the constraints of the INTELSAT Agreements. Accordingly New Skies NV was spun-off as a wholly separate company incorporated in The Netherlands, and five INTELSAT satellites were transferred to it.63 This was, however, insufficient to satisfy the proponents of privatisation both within and outwith INTELSAT. Suffice it here to state that their arguments were soon successful. In this the US ORBIT Act was important.64 Privatised INTELSAT and the New International Telecommunications Satellite Organisation For privatisation to occur the structure set up by the INTELSAT Agreements had to be tackled. It was obviously unsuited to the projected commercial enterprise. At the same time there were elements in the prior arrangements which it might be desirable to carry forward into the new. Appropriate amendment of the interstate Agreement, competent under its Art. XVII could take some account of such considerations. Other decisions were simpler. The concept of the Signatories and the Operating Agreement between Signatories would not fit the new commercial entity structure. The Operating Agreement had to cease and the status of Signatory was abolished. Similarly in the new structure the Board of Governors was obsolete. However, recognising the proven importance of satellite telecommunications which INTELSAT had established there was a reluctance simply to convert INTELSAT into a purely commercial enterprise. INMARSAT, which had reformed itself first, had already shown that a role for a supervisory entity to ensure compliance with 62 �� See: In the Matter of New Skies Satellites, N.V.; For Authorization to Access the U.S. Market, FCC, 6 August 1999, 14 FCC Rcd 13003; 1999 FCC LEXIS 3818; 17 Comm. Reg. (P & F) 109. 63 �� The Netherlands notified OOSA that although it bore international responsibility for their operation, it was not the ‘launching state’, ‘State of registry’ or ‘launching authority’ for the purposes of the relevant space treaties in respect of satellites transferred ‘in orbit’ to New Skies (A/AC.105/806, 22 August 2003). New Skies NV was bought by SES Global in 2005, the purchase becoming final in 2006. See below: SES and Astra. 64 �� Open-market Reorganisation for the Betterment of International Telecommunications Act, 2000, Public Law no. 106–80, 114 Stat. 48 (2000) [codified at 47 USC § 765f.], discussed more fully infra at n. 224.

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at least some public service standards could be desirable, and it was agreed that there should be such. The new arrangements for INTELSAT were agreed in November 2000. A new International Telecommunications Satellite Organisation (ITSO) was created by appropriate amendments to the original definitive intergovernmental Agreement of 1973 and the effective termination of the Operating Agreement.65 Formally these amendments came into force on 30 November 2004, when the required number of ratifications was reached. However, in practice the business of INTELSAT was transferred to an inter-related set of commercial companies (known as INTELSAT Ltd) on 18 July 2001, and the new structures were operated thereafter.66 After a Preamble which inter alia genuflects to UN Res. 1721 (XVI) and makes reference to ‘Core Principles’ and to operating on a ‘commercial basis’,67 Art. I of the ITSO Agreement provides a list of definitions.68 Article II creates the new ITSO and Art. VI gives it juridical personality. The duration of the new ITSO Agreement is at least twelve years from the transfer of operations to the private company (i.e. to 2013), at which point the Assembly of Parties may decide to terminate it by an affirmative vote of two-thirds of the parties present and voting (Art. XXI with Art. IX(f)69). Parties may withdraw from the Agreement (Art. XIV) and its amendment is possible (Art. XV). In structure the new International Satellite Telecommunication Organisation consists of an Assembly of Parties which meets every two years or extraordinarily as needed and an Executive Organ headed by a Director General (Art. VIII). The ITSO Assembly of Parties is composed of all the Parties to the Agreement (Art. IX(a)) and has the responsibility of considering general policy and long-term objectives (Art. IX(b)). The Director General is the chief executive of the Executive Organ, and is the legal representative of the organisation (Art. X(b)(i)). Appointed by the Assembly for four years or such period as the Assembly determines (Art. X(b)(iii)), the Director General has specific responsibilities as to monitoring the compliance of the INTELSAT Companies both with the Core Principles in general (Art. X(e)), and with particular duties as to Lifeline Connectivity Obligation contracts and customers including the performance of such contracts, petitions 65 �� The ITSO Treaty Agreement 2001, the ‘Agreement relation to the International Telecommunications Satellite Organisation’, is available through www.itso.int or at www.216.119.123.56/dyn4000/dyn/docs/ITSO/tpl1_itso.cfm?location=&id+5&link_src= HPL&lang=English:or http://www.itso.int/php_docs/tpl1_itso.php?dc=agreement or www. itso.int/pdf_docs/Web-Agrmt.pdf#search=%22itso%20agreement%22. [These sites do not always work.] The Amended Agreement seems not to have been published in an official series. Within the US the 1962 Communications Satellite Act was amended to permit the new developments: (US) Public Law 109–34, 12 July 2005. 66 �� For the provisional application of an international agreement, see materials cited infra n. 121. 67 �� As to the definition of ‘Core Principles’ and ‘commercial basis’ see infra. 68 �� The list of definitions is not alphabetical. 69 �� A Party may appoint a proxy (also Art. IX(f)). Art. IX(f) is therefore ambiguous.

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for eligibility to enter into such contracts,70 conciliation in disputes between the INTELSAT company and customers and advice on the selection of arbiters in case of dispute (Art. X(f)). A so-far unpublished Public Service Agreement between ITSO and the new commercial company outlined mutual responsibilities and duties, and was enforceable between them. One matter that had to be dealt with was the position of the radio frequencies and the orbital locations used by the old INTELSAT. By Art. XII, after a transition period during which responsibility for existing ITU notifications and any coordinations in progress were retained by any relevant ITSO member, one ITSO Party was to be selected as the Notifying Administration for the INTELSAT Company (Art. XII(c)). The Notifying Administration is to report ‘at least annually’ to the Director General of ITSO as to transparency and non-discrimination. It is also to seek his views as representing ITSO as to what is needed for compliance with the Core Principles (to which we are coming), and to consult both the Director General and the ITU on matters of concern for global connectivity and the availability of ‘lifeline services’.71 The main function of ITSO is contained in Art. III: ‘[T]he main purpose of ITSO is to ensure through the Public Services Agreement, that the Company provides, on a commercial basis, international public telecommunications services, in order to ensure performance of the Core Principles’.72 Further, by Art. V ITSO is to ‘take all appropriate action including entering in to the Public Services Agreement, to supervise the performance … of the Core Principles, in particular the principle of non-discriminatory access to the Company’s system for existing and future public telecommunications services offered by the Company when space segment capacity is available on a commercial basis.’ The Core Principles are that the Company: ‘(i) maintain global connectivity and global coverage; (ii) serve its lifeline connectivity customers; and (iii) provide non-discriminatory access to the Company’s system’ (Art. III(b)).73 A ‘Lifeline Connectivity Obligation’ (LCO) is constituted by specific agreement with particular 70 �� Lifeline Connectivity Obligation contracts (LCO contracts) are discussed below. 71 �� Thus, for example, one would expect the Notifying Administration to consult the Director General as to the re-assignment of orbits and possible retiral of satellites or their non-replacement as part of the assimilation by INTELSAT of PanAmSat (2006) (see below at n. 88). 72 �� The 2001 Agreement has some odd, some might say illiterate, phraseology. This is one example. What does it mean to ‘ensure performance of the Core Principles’? (Art. III; cf. similar language in Art. V). Principles are complied with or observed, not performed. The problem seems to be the method of drafting the new Agreement. The text ‘Amendments of the Agreement Relating to the International Telecommunications Satellite Organisation “Intelsat” of August 20, 1971’ (US) State Dept. Doc. no. 04-778 (2004 WL 3214809) does not reassure, but rather implies verbal amendments were agreed without being properly considered in their context or the structure of the sentences they modified. 73 �� The stilted language is another example of awkward drafting. It appears to be a ‘cut and paste’ from Art. IX (c) on the duties of the Assembly of Parties.

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countries to provide continued telecommunications services to the Lifeline Connectivity Obligation customer (Art. I(h)). Of some thirty-five applicants for this status, twelve countries qualified for LCO status as being least developed and dependent on INTELSAT for telecommunication services. The duration of an LCO contract is twelve years. ‘On a commercial basis’ (Arts III, V and IX(c)) is defined by Art. I(e) as meaning ‘in accordance with usual and customary commercial practice in the telecommunications industry’, but one may ask whose telecommunications industry is the comparator? Correlatively we note that the new arrangements free INTELSAT from the former restrictions implicit in the ‘juste retour’ sharing of procurement contracts among the industries of the then Parties that was required under the previous Agreements. ‘Non-discriminatory access’ is defined by Art. I(o) as a ‘fair and equal’ opportunity to access the company’s system – but ‘fair and equal’ is not unequivocal. ‘[W]hen space segment capacity is available’ is a phrase that could fudge the requirements of the Core Principles as to the provision of ‘service’. Universal access was a principal element of the old arrangement. Uniformity of utilisation charges for particular services was another. Yet another, albeit not formally part of the 1971 schema, was the reliance that had grown up of a number of countries (all ‘less developed’) on the INTELSAT system for their domestic as well as their international communications. How well such notions have been preserved in the new INTELSAT business may be a question, particularly as history has developed. Concerns about the new INTELSAT/ITSO system have several elements. First, there is a severe question as to the permanence of these arrangements. As noted, the new Agreement has a twelve year life from the date of the transfer of the business assets to the privatised company (18 July 2001) (Art. XXI). It can then be terminated by the Assembly of Parties. The quorum of the Assembly is a majority of the Parties. A proposal to terminate the Agreement is specifically defined as a matter of substance to be determined by a two-thirds majority of Parties present and voting (Art. IX(f)), each Party having one vote (Art. IX(g)) but also having the right to appoint a proxy (Art. IX(f)). In 2013 commercial interests will doubtless argue for the removal of the constraints imposed by the Agreement (and the then (2001) relative Public Service Agreement74). If the constraints are removed the remaining public service element of INTELSAT will evanesce. Second, there has been a knock-on effect as to non-US space industries, which no longer have the protection of the requirements of the old system as to a share of procurement contracts. The obvious response is that merit will always secure a contract 74 �� In fact the Public Service Agreement was swept aside when Zeus Holdings bought 100 per cent of the share capital of INTELSAT (see infra at n. 79). Such removal required share-holder unanimity, and with 100 per cent the new Board was able to remove the Agreement from the INTELSAT company statutes. See ITSO, 29th Assembly of Parties, 30 January to 2 February 2005: www.icp.pt/template20.jsp?categoryId=123299&contentI d=343325.

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even against a domestic US supplier. However, experience in other industries including aviation undermines that argument. The US is extremely protective of the ‘interests’ of its domestic market suppliers, especially where, as in ‘space’, military considerations can be invoked. Third, the new INTELSAT operational entities have ceased to be an independent international entity and through the FCC implementation of US law are now subject to the requirements of the US. That loss of independence may increase in the current international and domestic political environment. There are official US statements indicating a willingness to treat INTELSAT as required to serve the interests of the US.75 This could militate against the provision of non-discriminatory access to satellite services on a global basis and perhaps permit the withdrawal of INTELSAT services from states of which the US disapproves. Under the new arrangements the operational and business elements of the former INTELSAT were transferred at 7.59.59 (US) EDT on 18 July 2001 to a set of interrelated companies, INTELSAT Ltd (a holding company registered in Bermuda), INTELSAT Bermuda Ltd (operational matters) which wholly owned INTELSAT Services Corporation (Delaware) which became INTELSAT LLC, based in Delaware. The shareholders of the new companies were the former Parties to the INTELSAT Agreements, holding shares in proportion to their previous investment shares in INTELSAT. The new Board did reflect the geographic responsibilities of the system, not merely those of the majority shareholders, but some very soon sold their shares to other shareholders thus realising the value of their investments. Section 625(5) of the ORBIT Act called for a fuller privatisation through the offering of shares for public subscription by 1 October 2001 in order substantially to dilute the ownership held by former INTELSAT Signatories. That deadline was successively postponed first by an amendment to the Act, and then under that amendment by decision of the FCC up to a limit first of 30 June 2004,76 and later further extended to 31 December 2005.77 The major reason given for these postponements was that the instability of the financial markets in the period might result in an unsatisfactory outcome for the Initial Public Offering. In March 2004 INTELSAT finally started the process of an Offering, but withdrew it in May because other options had emerged. In October 2004, the US Congress again amended the ORBIT Act, adding new Secs 621(5)(F) and (G), under which the FCC might certify compliance with the requirements of the Act as to an Initial Public Offering as an alternative to the former requirements as to dilution under ss. 621(5)(A) and (B).78 The reason for this amendment became apparent when it was disclosed that Zeus Holdings, a consortium of four private equity fund 75 �� See Part IV, ‘Impact of Privatisation’ in successive FCC Reports to Congress under the ORBIT Act, infra n. 230. Cf. fears expressed in F. Lyall, ‘Privatisation and International Telecommunications Organisations’ (1995) 38 Proc. IISL 168–74. 76 �� (US) Public Law no. 107-233 §1, 116 Stat. 1480 (1 October 2002). 77 �� (US) Public Law no. 108-228, 118 Stat. 644 (18 May 2004). 78 �� (US) Public Law no. 108-371, 118 Stat. 1752 (25 October 2004).

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managers, had shown interest in buying INTELSAT. In December 2004 the FCC duly decided that ownership by Zeus Holdings would meet the requirements as to the dilution of INTELSAT shareholding contained in the ORBIT Act as amended.79 Zeus Holdings set up INTELSAT Holdings as the vehicle for the transfer, and on 28 January 2005 completion of the acquisition was announced.80 In April 2005 the FCC duly certified that the requirements of the ORBIT Act had been met.81 In 2006, therefore, new INTELSAT was wholly owned by private equity funds. The purchase was financed in part by borrowing against INTELSAT assets, raising fears that INTELSAT might go bankrupt, and use that as an excuse to free itself from the ITSO obligations that it had undertaken.82 The new owners replaced the former Board, eliminating from it five members who, reflecting the geographic governors of pre-privatised INTELSAT, had a role in seeing that the organisation served global needs. Subsequently the relationship between new INTELSAT and ITSO appears to have become strained, the ITSO Director General having complained of not being adequately informed of INTELSAT activities.83 In 2006 ITSO presented a petition to the FCC raising some of its concerns and seeking modifications to some INTELSAT licences to ensure compliance with the ‘Core Principles’.84 However, some of the state members of ITSO (US, Canada, UK and Australia) though not the ITSO Secretariat, appeared less concerned about developments.85 Notwithstanding and following a submission from the US Department of State, the FCC did amend the INTELSAT licences as requested in order to clarify the INTELSAT obligations as to the Core Principles and the life-

79 In the Matter of Intelsat, Ltd, Transferor, and Zeus Holdings Limited, Transferee; Consolidated Application for Consent to Transfers of Control of Holders of Title II and Title III Authorizations and Petition for Declaratory Ruling under Section 310 of the Communications Act of 1934, as Amended, IB Doc. no. 04-366, 19 FCC Rcd 24820; 2004 FCC LEXIS 7267, Adopted and Released 22 December 2004, with erratum IB Docket no. 04-366, 2005 FCC LEXIS 539, 28 January 2005. 80 �� Acquisition procedures were briefly delayed by the failure and loss of the INTELSAT IS-804 satellite serving the South Pacific on 14 January 2005. This might have aborted the deal or required the renegotiation of the purchase price. 81 �� In the Matter of Intelsat, Ltd; Petition for Declaratory Ruling that Intelsat, Ltd Complies With Section 621(5)(F) of the ORBIT Act, FCC, IB Docket no. 05-18; 20 FCC Rcd 8604; 2005 FCC LEXIS 2326; Release no.: FCC 05-86. Decided 8 April, released 15 April 2005. 82 �� See para. 54 and related notes in the FCC Decision, below at n. 88, for this argument put in relation to the purchase of PanAmSat. 83 �� Assemblies 29 and 30 of ITSO considered such questions. 84 Petition of the International Telecommunications Satellite Organization under Section 316 of the Act; Pleading Cycle Established, IB Docket no. 06-137; File no. SATMSC-20060710-00076, 2006 FCC LEXIS 3866, 18 July 2006; released 17 August 2006. 85 �� Cf. ANACOM Report, www.anacom.pt/template20.jsp?categoryId=123299&con tentId=343325.

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line connectivity obligations.86 (The ITSO Panel of Legal Experts (Ag. Art. XVII) may also still be involved in settling argument as to questions of the connectivity obligations.) Commercial considerations, however, continue. In April 2007 it was reported that INTELSAT was for sale, at a considerable profit to its then owners. An application for consent to transfer its stock-holding to Serafina Holdings by which BC Holdings in effect acquired c. 71 per cent of the business was filed with the FCC in August 2007 and approved the following December.87 Serafina Holdings, a Bermuda company, was re-named INTELSAT Global in February 2008. Subsequent to privatisation the INTELSAT companies became active in the commercial telecommunications arena as well as being part of its prey as noted. Thus soon after privatisation the new INTELSAT made approaches with a view to purchasing EUTELSAT, but these were not proceeded with. In July 2006 it bought a 50 per cent holding in Horizons Satellite LLC. More importantly earlier in 2006 it purchased PanAmSat,88 the largest domestic US satellite telecommunications provider, making INTELSAT the largest satellite telecommunications provider in the world. In so doing it took on a large debt burden additional to the borrowing against INTELSAT assets that had been required for the initial privatisation. How the financial turmoil of September 2008 onwards will affect INTELSAT developments remains to be seen.

86 In the Matter of Petition of the International Telecommunications Satellite Organization under Section 316 of the Communications Act, as Amended, IB Docket no. 06-137; File no. SAT-MSC-20060710-00076, Release-Number: DA 07-4715; released and adopted 23 November 2007; 22 FCC Rcd 20093; 2007 FCC LEXIS 8772: with further modification 21 February 2008, 23 FCC Rcd 2764; 2008 FCC LEXIS 1489. 87 INTELSAT Holdings, Ltd, Transferor, and Serafina Holdings Limited, Transferee, seek FCC Consent to Transfer Control Of Licenses and Authorizations; Pleading Cycle Established, IB Docket no. 07‑181, DA 07-3972, FCC, 22 FCC Rcd 16957; 2007 FCC LEXIS 6839; Memorandum Opinion and Order In the Matter of Intelsat Holdings, Ltd, Transferor, and Serafina Holdings Limited, Transferee, Consolidated Application for Consent to Transfer Control of Holders of Title II and Title III Authorizations, IB Docket no. 07-181; FCC 07-220, 2007 FCC LEXIS 9749. Adopted 18 December 2007, released 18 December2007. Cf. http://www.fcc.gov/transaction/intelsat-serafina.html. 88 �� The purchase was approved by the FCC in June 2006: In the Matter of Constellation, LLC, Carlyle PanAmSat I, LLC, Carlyle PanAmSat II, LLC, PEP PAS, LLC, and PEOP PAS, LLC, Transferors and Intelsat Holdings, Ltd, Transferee, Consolidated Application for Authority to Transfer Control of PanAmSat Licensee Corp. and PanAmSat H-2 Licensee Corp., IB Docket no. 05-290, 2006 FCC LEXIS 3505; 38 Comm. Reg. (P & F) 960, 19 June 2006 released; adopted 19 June 2006.

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INMARSAT – The International Mobile Satellite Organisation89 INMARSAT was established by international agreements of 1976, which came into force in 1979.90 It was birthed through the International Maritime Organization (IMO) in its previous incarnation as the International Maritime Consultative Organization (IMCO).91 The involvement of a maritime agency is readily explained. Radio is the only reliable way to communicate with ships over a long distance. Indeed maritime communication was a major market area in the first years of radio. However, a satellite service was more attractive than terrestrial radio links. Satellites provide not only ordinary telecommunication services on a dial-up basis when needed,92 but also afford a much greater variety of service unaffected by the vagaries that can affect short-wave radio. And crucially, a maritime service also has an obvious role in securing the safety of life at sea. The role of radio for safety ��

89 �� What follows is summary. For more detail to 1989 see Lyall 209–43. The original name was the ‘International Maritime Satellite Organization’ (INMARSAT), but this was changed in 1994 to reflect the extension of the Organisation’s activities into land and air mobile services. The ‘INMARSAT’ acronym was (and has been) retained for business reasons. 90 �� Convention on the International Maritime Satellite Organization (INMARSAT), 3 September 1976, 1143 UNTS 105, 1979 UKTS 94, 31 UST 1, TIAS 9605 (1976) 15 ILM 1051; Operating Agreement on the International Maritime Satellite Organization (INMARSAT) (1976) 15 ILM 233. The Convention and the Operating Agreement on the International Maritime Satellite Organization as amended are printed in Basic Documents: INMARSAT, 4th ed. (London: INMARSAT, 1989). See Lyall, 209–17; H.H.M. Sondaal, ‘The Current Situation in the Field of International Maritime Communications Satellites: “INMARSAT”’ (1980) 8 J. Sp. L. 9–39; S.E. Doyle, ‘The International Maritime Satellite Organization’ (1977) 5 J. Sp. L. 45; N. Jasentuliyana, ‘International Maritime Satellite System (INMARSAT)’ 1 Manual 439; N. Jasentuliyana, ‘The Establishment of an International Maritime Satellite System’ (1977) 2 AASL 323. P.K. Menon ‘International Maritime Satellite System’ (1976–77) 8 J. Maritime L. and Comm. 95–106. 91 �� IMCO Res. A.305 (VIII) 23 November 1973 called for an international conference to consider the setting up of an international maritime satellite system. Meetings were held in 1975–6 at which fifty-four countries were present at one or more sessions with three others sending observers. In addition various international governmental and nongovernmental organisations sent observers. See: ‘Sessional Act of the Second Session of the International Conference on the Establishment of an International Maritime Satellite System’ (1976) 15 ILM 219. 92 �� Advantages include that radio-operators do not have to be ‘on watch’, messaging can be less terse and more precise, engine, container, refrigerating and other mechanisms can be monitored from ‘home’ thus reducing the need to carry personnel, navigation can be directed by the most efficient routes avoiding bad weather, navigational hazards, ‘queues’ at certain straits and canals etc., and re-directing among destinations is facilitated.

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of life at sea emerged starkly with the sinking of the RMS Titanic in 1912.93 The immediate result was �� maritime radio provisions in the London Radio-Telegraph Convention of 1912,94 and the International Convention on the Safety of Life at Sea, of January 1914,95 These are now paralleled by the provisions of the 1974 International Convention on the Safety of Life at Sea (SOLAS).96 INMARSAT was created as an independent global provider of maritime satellite services at least in part because the Soviet Union and the Communist bloc had not joined the INTELSAT arrangements. Various reasons may be suggested for that refusal as we outline elsewhere.97 INTELSAT could have provided a maritime service, but the Eastern bloc, which at that stage had declined to be involved in INTELSAT, would not have used it. On the other hand because of its vast shipping and fishing fleets the Eastern bloc had a major interest in a maritime communications satellite system. INTELSAT could have provided maritime service for the West and a variant of INTERSPUTNIK similarly for the East, but that was not sensible. A service common to all shipping was logical and prudent. Again some considered that since the new system would be using a different technology, mobile terminals, and would be operating in a specialised environment a separate dedicated provider was in any case a better solution. There was a question whether IMCO (as it then was) should be involved, but it was felt that that organisation, being consultative in its purpose, was unsuitable to run an operational service. The solution was therefore the creation of a new international organisation dedicated to the provision of maritime services and in which the interests of shipping nations might properly be secured. Like INTELSAT the documents establishing INMARSAT consisted of an intergovernmental agreement, the Convention (Conv.), and an Operating Agreement (Op. Ag.) between telecommunications entities designated by each Party.98 These 93 �� ‘U.K. Shipping Casualties (Loss of the Steamship “Titanic”): Report of a Formal Investigation into the circumstances surrounding the foundering on 15 April of the British Steamship “Titanic” of Liverpool, after striking ice in or near Latitude 41° 46′ N., Longitude 50° 14′ W., North Atlantic Ocean, whereby loss of life ensued’, 1912–13 76 BFSP, Cd. 6352. 94 �� International Radio-telegraph Convention, Final Protocol and Services Regulations, London, 5 July 1912, 1 LNTS 135; 191; 81 BFSP 79; (1912) UKTS 10, Cd. 6873; 38 Stat. 1672, TS 581; 216 CTS 244. 95 �� International Convention on the Safety of Life at Sea, London, 30 January 1914, 219 CTS 177, 1914 108 BFSP, 283. 96 �� International Convention on the Safety of Life at Sea (SOLAS) 1184 UNTS 2; (1980) UKTS 46, Cmnd. 7874; 32 UST 47, TIAS 9700; 1975 14 ILM 963. 97 �� See text, supra at n. 26 and infra at n. 165 ff. 98 �� Convention on the International Maritime Satellite Organization (INMARSAT), 3 September 1976, 1143 UNTS 105, 1979 UKTS 94, 31 UST 1, TIAS 9605 (1976) 15 ILM 1051–1076. Operating Agreement on the International Maritime Satellite Organization (INMARSAT) 1143 UNTS 213; 1979 UKTS 94; (1956) 15 ILM 233; Basic Documents: INMARSAT, 4th ed. (London: INMARSAT, 1989).

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came into force respectively after having been accepted by states holding at least 95 per cent of the total investment shares of the organisation (Conv. Art. 33(1), Op. Ag. Art. XVII). Reservations were not permitted (Conv. Art. 32(5)). Amendments to the Convention (Conv. Art. 34) and the Operating Agreement (Op. Ag. Art. XVIII) were competent, and came into force after approval by two-thirds of the states and Signatories holding at least two-thirds of the total investment shares.99 INMARSAT had legal personality (Conv. Art. 25) and was entitled to the privilege and immunities normal for an international organisation (Conv. Art. 27).100 It was headquartered in London.101 The original purpose of INMARSAT was the provision of maritime services. In due course that was extended to aeronautical and land mobile services (Conv. Art.3). As INMARSAT developed its space segment was opened to ships, aircraft and mobile Earth stations of all nations as well as to sea platforms (Conv. Art. 7). Communications services in case of distress and for safety of life were fundamental.102 Service was provided without discrimination on the basis of nationality (Conv. Art. 7(1)), and the organisation sought to provide service wherever there was need (Conv. Art. 3(2)) on conditions laid down by the INMARSAT Council (Conv. Art. 7(1)). The INMARSAT system was to be used exclusively for peaceful purposes (Conv. Art. 3(3)).103 INMARSAT operated on a commercial basis and was financed by the capital contributions of Signatories and by operating revenues (Conv. Art. 5; Op. Ag. Art. III). It had power to own or lease its space segment (Conv. Art. 6). Ownership of the INMARSAT space segment was shared by Signatories to the Operating Agreement in proportion to their investment share (Conv. Art. 5 (1)). The Operating Agreement made complex provision for financial matters, payments, the settlement of accounts and coping with defaulters. Procurement policy was to encourage worldwide competition (Conv. Art. 20), and provision was made for access to intellectual property and technical information developed in connection with INMARSAT contracts (Conv. Art. 21). 99 �� The initial investment shares prior to their recalculation on the basis of usage was contained in an Annex to the Operating Agreement (1976) 15 ILM 246. 100 �� Protocol on the Privileges and Immunities of the International Maritime Satellite Organisation (INMARSAT); 25 February 1980, 1328 UNTS 149; 1982 BPP Misc 6, Cmnd. 8497; INMARSAT: Basic Documents, 3rd ed. (INMARSAT, 1986). 101 �� Headquarters Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Maritime Satellite Organisation, 1203 UNTS 131;1980 UKTS 44, Cmnd. 7917, INMARSAT: Basic Documents 3rd ed. (INMARSAT, 1986). 102 �� Cf. infra as to the protection of safety and distress services in the privatised INMARSAT. 103 �� A problem of that requirement was INMARSAT’s inability to detect any breach and therefore the impossibility of any enforcement. The content of messages was not known to the service provider. INMARSAT traffic has been known to increase at times and in areas where there is conflict. Cf. W. von Noorden, ‘INMARSAT use by Armed Forces: A Question of Treaty Interpretation’ (1995) 23 J. Sp. L. 1–17.

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The structure of INMARSAT was simpler than that of INTELSAT. It consisted of an Assembly of Parties, a Council and a Directorate under a Director General (Conv. Art. 9). There was no Meeting of Signatories, or Board of Governors. The telecommunications entities designated by Parties to sign the Operating Agreement supplied the membership of the Council.104 The INMARSAT Assembly met every two years although extraordinary sessions were competent (Conv. Art. 10(2)).105 It comprised all the parties to the Convention (Conv. Art. 10(1)), each having one vote (Conv. Art. 11(1)). Responsible for giving general guidance to the organisation and for long-term policy (Conv. Art. 12(1)(a)), it ensured that INMARSAT activities conformed to the Convention, the UN Charter and other INMARSAT treaties (Conv. Art. 12(1)(b)), decided on recommendations from the Council, and gave its views on reports from that body (Conv. Art. 12(1)(d)). Importantly the Assembly could, on the proposal of the Council, authorise facilities for distress or safety of life (Conv. Art. 12(1)(c)) additional to those contemplated as part of INMARSAT general services (Conv. Art. 7)). By Art. 13 of the Convention the INMARSAT Council consisted of twenty-two representatives of Signatories, eighteen nominated by the Signatories or groups of Signatories which were largest by quota,106 and four elected by the Assembly to represent world areas not otherwise represented (Conv. Art. 13(1)(e)).107 The Council met at least three times a year (Conv. Art. Art. 14(1)). Its decisions were taken unanimously whenever possible (Conv. Art. 14(2)).108 When voting was required on procedural questions a simple majority of Council members present and voting, each with one vote, sufficed (Conv. Art. 14(2)). For matters of substance voting weighted by reference to investment share was employed, and a majority holding at least two-thirds of the investment share represented on the Council was required (Conv. Art. 14(2) and (3)(a)) (the same as the Council quorum). However, no Council member might exercise more than a 25 per cent voting weight of the total voting weight of the organisation (Conv. Art. 14(3)(a)). Detailed procedures existed for the re-allocation of voting weight above that proportion (Conv. Art. 14(3)(b)–(c)). 104 �� The US Signatory was COMSAT and that for the UK was British Telecom. The USSR created a special entity to act as its Signatory, Morsviaz Sputnik: see Statute of the All-Union Maritime Satellite Communications Association (1982) 20 ILM 1365–70. 105 �� INMARSAT Assembly: Rules of Procedure of the Assembly: Basic Documents: INMARSAT, 4th ed. (London: INMARSAT, 1989) 87–96. 106 �� If a Signatory and a group of Signatories had the same total investment share, the single Signatory took precedence (Conv. Art. 13 1(a)). If two or more Signatories or group of Signatories had the same total investment share and tied for the eighteenth seat on the Council, then exceptionally all were represented on the Council (Conv. Art. 13 1(a)). 107 �� The quorum was a majority of representatives holding at least two-thirds of the voting shares of the Council (Conv. Art. 14 (4)). 108 �� INMARSAT Council Rules of Procedure: Basic Documents: INMARSAT, 4th ed. (London: INMARSAT, 1989) 99–105.

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Under Conv. Art. 15 the function of the Council was that of making provision for the construction, maintenance and operation of the global maritime satellite system including procurement conditions and financial policy. More detailed provision as to procurement was set out in Conv. Art. 20, and as to inventions and technical information in Conv. Art. 21.109 The Council approved Earth stations (Conv. Art. 7(1)–(3); Op. Ag. Art. XIV), and authorised access to the INMARSAT space segment (Conv. Art. 7; Op. Ag. Art. XV).110 It set utilisation charges for the system, the charge for Signatory members of the organisation for each type of service being uniform on a worldwide basis (Conv. Art. 19(1) and (2)). NonSignatory users might be charged a different rate for such services, but the charge for each service was also uniform among non-Signatory users on a worldwide basis (Conv. Art. 19(3)). The Council also supervised annually the allocation and redistribution of investment shares among Signatories on the basis of utilisation, or on the entry of withdrawal of a Signatory (Op. Ag. Art. V). The Directorate was the executive organ of INMARSAT (Conv. Art.16). The Director, appointed by the Council subject to approval by the Parties, was the chief executive and legal representative of the organisation (Conv. Art. 16(1)–(2)). Senior members of the Directorate reporting directly to him had to have council approval, but other members were simply appointed by the Director (Conv. Art. 16(3)–(4)). INMARSAT established its maritime business as soon as it began operation.111 Functioning informally until its constituent Agreements came into force in 1979 before its own satellites came into service, INMARSAT leased transponders on the COMSAT-built MARISAT satellites112 and on the ESA MARECS satellites.113 109 �� Disputes between INMARSAT, the Parties and Signatories were to be dealt with by arbitration (Conv. Art. 31; Op. Ag. Art. XVI; Conv. Annex). 110 �� The delicate matter of the use of INMARSAT terminals by non-national ships while within the territory or the territorial sea of a state, and therefore technically subject to that state’s sovereignty in radio telecommunications, was solved only in 1985 by the ‘International Agreement on the Use of INMARSAT Ship Earth Stations within the Territorial Sea and Ports’, London, 16 October 1985; 1987 BPP Misc. 5; 1993 ATS 42: http:// sedac.ciesin.org/entri/texts/acrc/INMARSAT85.txt.html or http://www.imso.org/pdfs/ Public/Basic%20Documents/SES%20Agreement/P%20-%20SES%20Agreement%20%20English.pdf. See also http://www.imso.org/pdfs/Public/Public/Member%20States/ 4.%20Member%20States%20-%20Parties%20to%20SES%20Agreement.pdf. For UK procedure see ‘Policy Guidance Regarding Licensing for Earth Stations on Vessels (ESVs)’ (UK) Ofcom, 23 October 2007: http://www.ofcom.org.uk/radiocomms/ifi/licensing/classes/ satellite/applications/esvlicensing.pdf. 111 �� Lyall, 209–243. 112 �� MARISAT (Maritime Communications Satellite) was a maritime satellite system built for the US Navy and other customers and launched in 1976. 113 �� The MARECS (Maritime European Communications Satellite) satellites were a development and redesign of the ESA Maritime Orbital Test Satellite. Three were launched between 1981 and 1984.

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The first purely INMARSAT satellite was launched in 1990. Two satellites of the fourth series of INMARSAT satellites have so far been launched (2007). Although the Convention initially contemplated a maritime service only, the Convention and Operating Agreement were amended to allow the provision of air114 and land-mobile communications.115 Accordingly in 1994 the name of the organisation was changed to the International Mobile Telecommunications Satellite Organisation,116 Notwithstanding, ‘INMARSAT’ was retained as an acronym for reasons of business recognition. Apart from its normal services it may also be noted that INMARSAT is designated or recognised as an appropriate means of telecommunication for their purposes in several international instruments.117 As business developed, the land-mobile service using small terminals began to seem an attractive commercial prospect particularly as developed within the US.118 Certain larger INMARSAT members also saw good prospects for handheld terminals. Other commercial operators including Globalstar and Iridium were on the same track. After much discussion a separate private limited company,

114 �� INMARSAT Assembly, Fourth Session, October 1985, in force 13 October 1989; (1988) 27 ILM 691–4. J.L. Magdelénat, ‘Inmarsat and Satellites for Air Navigation Services’ (1987) 12 Air Law 266; W. Von Noorden, ‘Space Communications to Aircraft: A New Development in International Space Law’ (1987) 15 J. Sp. L. 25; W.D. Von Noorden and P. Dann, ‘Land Mobile Satellite Communications: A Further Development in International Space Law’ (1989) 17 J. Sp. L. 1–12. The start of non-shipping use seems to have been in 1982 when INMARSAT terminals were removed from ships in Beirut Harbour and taken inland up into the hills during Israel’s invasion of Lebanon. 115 �� INMARSATAssembly, Sixth (Extraordinary) Session, January 1989. International Maritime Satellite Organization: Amendments to the Convention and Operating Agreement, 1991 UKTS 27, in force February 1997. 116 �� INMARSAT Assembly, Tenth (Extraordinary) Session, 5–9 December 1994. 117 �� For example, Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, Annex 4.6, 5 September 2000 (2001) 40 ILM 278; Antarctic Treaty Consultative Parties: Recommendation XVIII1 on Tourism and Non-governmental Activities, Kyoto 1994, Attachment A.2 (1996) 35 ILM 1178; Sec. X. 13 USSR-US Verification Protocol to the Treaty on the Limitation of Underground Nuclear Weapon Tests, Washington DC, 1 June 1990 (1990) 29 ILM 971; Sec. X.10, USSR-US: ‘Verification Protocol to the Treaty on Underground Nuclear Explosions for Peaceful Purposes’, Washington DC, 1 June 1990 (1990) 29 ILM 1026. 118 �� See the spectrum allocation made at the initiative of various US companies, Amendment of Parts 2, 22 and 25 of the Commission’s Rules to Allocate Spectrum for and to Establish Other Rules and Policies Pertaining to the Use of Radio Frequencies in a Land Mobile Satellite Service for the Provision of Various Common Carrier Services; Applications of Hughes Communications Mobile Satellite, Inc. [and others], 4 FCC Rcd 6041; 1989 FCC LEXIS 1306; 66 Rad. Reg. 2d (P & F) 1378.

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ICO Global Communications119 was set up to move ahead with this project.120 INMARSAT itself was to hold up to 15 per cent of the shares in ICO, the rest being divided between private investors and INMARSAT Signatories. However, the US FCC insisted on a strict separation between INMARSAT and ICO. As it happened ICO struggled to establish itself and filed for Chapter 11 protection under the US Bankruptcy laws in August 1999. Emerging from that protection in May 2000 ICO was later that year purchased and merged with Teledesic, and, although ICO continues to exist (www.ico.com) it accordingly passes beyond the bounds of this inquiry. Its parent INMARSAT itself continued to provide its other maritime, air and land mobile services. However, INMARSAT, like INTELSAT, came under pressure to privatise. In its case the arguments were not identical, size and different membership being a factor, as we will see discussing privatisation below. Suffice it to say here that the pressures were effective. INMARSAT and the New International Mobile Satellite Organisation The privatisation of INMARSAT was an interesting process.121 Although INMARSAT effectively privatised on 15 April 1999 by the provisional application of the new agreements, the relevant Amended Convention did not come into in force until 31 July 2001, binding all Parties including those that had not

119 �� The acronym comes from ‘Intermediate Circular Orbit’, the satellites being in medium Earth orbit: ‘Middle Earth’, a term already in use by the Tolkien estate, was unavailable. ICO began as INMARSAT-P, a private company owned by members of INMARSAT, and on whose Board INMARSAT itself had two seats. Curiously a company involved in early negotiations sought to patent the idea of the intermediate circular orbital system and prevent INMARSAT taking the idea further. 120 �� For history see In the Matter of Communications Satellite Corporation, Applications for Authority to Provide International Land Mobile-Satellite Services Outside of North America via the INMARSAT System, 1993 8 FCC Rcd 638; 1993 FCC LEXIS 343; 71 Rad. Reg. 2d (P & F) 1232 and In re Petition of Motorola Satellite Communications, Inc. for Declaratory Ruling Concerning Participation by COMSAT Corporation in a New INMARSAT Satellite System Designed to Provide Service to Handheld Communications Devices, 9 FCC Rcd 7693; 1994 FCC LEXIS 5900; 76 Rad. Reg. 2d (P & F) 849, released; adopted 17, released 22 November 1994. 121 �� D.W. Sagar – 1, ‘The Privatisation of INMARSAT: Special Problems’, in International Organisations and Space Law (ESA SP-442) 127–46; – 2, ‘The Privatisation of Inmarsat’ (1998) 41 Proc. IISL 205–23; and – 3, his ‘Inmarsat since Privatisation’, in Legal Framework for Satellite Telecommunications. Proceedings of the Project 2001 – Workshop on Telecommunications Held 8–9 June 2000 at Berlin (Cologne: Institute of Air and Space Law, University of Cologne, 2000) 163–8. cf. M.A. Rogoff and B.E. Gauditz, ‘The Provisional Application of International Agreements’ (1987) 39 Maine L. Rev. 29–81.

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accepted the revision up to that date.122 The Operating Agreement between the telecommunications entities was terminated and under the amended Convention, the INMARSAT Council disappeared and a newly constituted residual intergovernmental organisation, the International Mobile Satellite Organisation (IMSO) is now charged with the oversight of duties as to the provision of public services, notably the Safety of Life at Sea (GMDSS), and a Public Services Agreement entered into between IMSO and INMARSAT. On privatisation INMARSAT’s business and operational functions were transferred to INMARSAT Ventures Ltd (www.inmarsat.int), a UK company, and associated subsidiary companies based in Bermuda. The original shareholders of the new Company were the former Parties to the INMARSAT Agreements, holding shares in the new companies in proportion to their previous investment shares in INMARSAT. Although the US ORBIT Act as amended had called for the dilution of INMARSAT shareholding by public offerings of its shares, as in the case of INTELSAT, deadlines for that step were extended to take account of the market instability of the early 2000s.123 Eventually listed on the London Stock Exchange on 22 July 2005, a public offering of shares in the Company was made in October 2005 thus complying with the requirements of the US ORBIT Act. INMARSAT Ltd is now operational as a company providing service at commercial rates to mobile Earth stations. These include the ship station services that were the initial focus of the original organisation, services to aircraft (airmobile services) and services to mobile terrestrial carriers of INMARSAT terminals (land-mobile services – mostly freight traffic). The INMARSAT system is now also frequently used by news media services, the portability of its transmitters and receivers being a benefit that even makes available vision using digital cameras. However, INMARSAT continues to provide global maritime distress and safety services and in particular those specified by the 1974 International Convention on the Safety of Life at Sea (SOLAS).124 It is to comply with the ITU Radio Regulations as these relate to the Global Maritime Distress and Safety System (set up by the International Maritime Organisation) (Art. 3.1). Apart from such ‘safety-of-life’ duties, the purposes of INMARSAT Ltd fall into four major groups. It provides telecommunications services without discrimination on basis of nationality (Art. 122 �� The revised Convention is available at www.imso.org/public/convclean1. pdf. See also Amended Convention of the International Mobile Satellite Organisation (IMSO (INMARSAT)) with Public Service Agreement (1999) XXIV AASL 477–506. ‘Amendments to the Convention and Operating Agreements on the International Mobile Satellite Organisation, London 24 October 2001’ (2001) UKTS 49, Cm. 5274; 02–57, 1998 UST LEXIS 213; ‘Amendments to the Convention on the International Maritime Satellite Organisation (INMARSAT) and Amendments to the Operating Agreement on the International Maritime Satellite Organisation (INMARSAT)’ (1999) UKTS 85, Cm. 4553. 123 �� For the US ORBIT Act see infra n. 224. 124 �� International Convention on the Safety of Life at Sea (SOLAS), London 1 November 1974: 1184 UNTS 2; (1980) UKTS 46, Cmnd. 7874; 32 UST 47, TIAS 9700; (1975) 14 ILM 963.

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3 (b)), acts exclusively for peaceful purposes (Art. 3 (c)), seeks to serve all areas where mobile satellite communications are needed giving due consideration to the rural and remote areas of developing countries (Art. 3 (d)),125 and operates consistent with principles of fair competition and subject to relevant laws and regulations (Art. 3 (e)). That its activities serve these purposes is monitored and supervised by IMSO, the International Mobile Satellite Organisation. IMSO, established by Art. 2 of the amended Convention,126 formally consists of an Assembly and a Secretariat.127 Still headquartered in London,128 and with ninety-two members (2008)129 IMSO has legal personality (Art. 12) and the usual privileges and immunities of an international organisation.130 The Secretariat (Art. 9) operates under a Director who serves for a four year term or terms (Art. 9(1)). The Assembly is composed of all the Parties (Art. 6(1) and (3)), at which each Party has one vote (Art. 7(1)). It meets in ordinary session every two years (Art. 6(2)), but with extraordinary meetings possible at the request of one-third of the Parties, or the Director, or as the Assembly Rules of Procedure provide (Art. 6(2)). The functions of the Assembly are set out in Art. 8. It considers and reviews the purposes, general policy and long term objectives of the Organisation as well as the activities of the INMARSAT Company relative to the basic principles laid out in Art. 3 to which we are coming (Art. 8(a)). The Assembly takes into account any recommendations which the Company may make on the matter under discussion. It can take steps to ensure observance of the basic principles of IMSO, including dealing with the Public Services Agreement (Art. 8(b)). The Assembly decides on formal relations with other international persons (Art. 8(c)), and appoints and may remove the Director (Art. 8(e)). IMSO is to co-operate with the UN and other relevant international organisations (Art. 13). The present IMSO Agreement has no specific provision for its termination, but presumably that also lies within the competence of the Assembly, doubtless as a matter of substance (Art. 7). The running costs of IMSO are paid by the Company under a Public Services Agreement (Art. 10). The purposes of IMSO are set out in Art. 3 of the Convention. They are to secure the observance by the INMARSAT Company, INMARSAT Ltd, of basic 125 �� In later discussion, to which we are coming, this was been sharpened to mean particularly countries which are dependent on satellite communications, or where nonsatellite telecommunications are not available. 126 �� Amended Convention of the International Mobile Satellite Organisation (IMSO (INMARSAT)) with Public Service Agreement (1999) XXIV AASL 477–506. See n. 122. 127 �� There is also a small ‘extra-conventional’ Advisory Committee. 128 �� Headquarters Agreement between the International Mobile Satellite Organisation and the Government of the United Kingdom of Great Britain and Northern Ireland (1980) UKTS 44, Cmnd. 7917. 129 �� List of Parties to the Convention on the International Mobile Satellite Organisation: http://www.imso.org/member_states.asp. 130 �� Protocol on the Privileges and Immunities of the International Mobile Satellite Organisation: www.imso.org/public/protocol.pdf.

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principles incorporated in the Public Services Agreement, and which are laid out seriatim in Art. 3. The IMSO/INMARSAT Public Services Agreement131 allows IMSO to enforce compliance with the basic principles of Art. 3, including if necessary by court action in the UK. One main element in the Agreement is the preservation of the Global Maritime Distress and Safety System (GMDSS) (set up by the International Maritime Organisation) as an operational responsibility of the INMARSAT Company. The provision of global maritime, aeronautical and land mobile services is also important, but it should be noted that while the basic distress signal element of GMDSS is a free service, follow-up signals in connection with a distress signal are charged at a reduced rate, reflecting INMARSAT’s new character as a privatised company providing services for profit. IMSO has also concluded an Agreement of Cooperation with the International Civil Aviation Organization (ICAO) under which the Organisations have established and maintain close, but non-exclusive, consultation and co-operation in matters of common concern relating to aeronautical mobile satellite communications. Under this Agreement IMSO ensures that in conducting its business the INMARSAT Company takes into account the relevant ICAO Standards and Recommended Practices in line with the Public Services Agreement and will regularly inform ICAO accordingly. Given that INMARSAT is now a profit-making enterprise, the question naturally arises whether the Company could free itself from unwelcome obligations or constraints. The international telecommunications scene is changing quickly and new competitors are providing mobile satellite services.132 Entrants to the field and those expanding their interests in it are not interested in remote and rural areas or in developing countries as there is no immediate profit achievable. Nor are they particularly interested in the provision of maritime safety services. Such might compete with INMARSAT free of the constraints that affect it. Might not INMARSAT wish to shuck off these constraints? Might the Public Service Agreement be terminated so as to allow INMARSAT to compete on a 131 �� See the note by J. Vonau, Secretary General, on ‘Restructured INMARSAT and Public Service Obligations’ at www.imso.org/public/psaeng.pdf. 132 �� Within many countries radio services for land, sea and air mobile stations have been available for many years. The US was the first to move into satellite services for mobile stations, by for example Aeronautical Radio Inc. and the American Mobile Satellite Corporation. The FCC issued its decision on such services in 1986, in the so-called ‘Spectrum Allocation Order’, In the Matter of Amendment of Parts 2 and 22 of the Commission’s Rules Relative to Cellular Communications Systems; … to Establish Other Rules and Policies Pertaining to the Use of Radio Frequencies in a Land Mobile Satellite Service for the Provision of Various Common Carrier Services, 2 FCC Rcd 1825, 61 Rad. Reg. 2d (P & F) 165; Ibid. 2 FCC Rcd 2515; 1987 FCC LEXIS 3971; 62 Rad. Reg. 2d (P & F) 1329. See also the related Report and Order, FCC 86-333, 51 Fed. Reg. 37398 (22 October 1986), 61 RR 2d 165 (1986); and the Memorandum Order and Authorization (1989) 4 FCC Rcd 6041; 66 Rad. Reg. 2d (P & F) 1378 allowing eight companies to participate in the American Mobile Satellite Corporation.

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basis of equality? The new arrangements provide that such a step can not happen without IMSO consent. Apart from its already mentioned ability to enforce the Public Service Agreement by court action, IMSO itself holds a special share in the INMARSAT Company,133 which allows it to block an amendment to the public service obligations contained in the Company’s constituent documents, or proposals that would seriously affect compliance with them. It can also block the voluntary winding up of the Company. Of course at first before the dilution of share-ownership consequent upon the public offering of June 2005, the majority of share-holders in the Company were Parties to IMSO and likely to think the same way in both arenas. However, now that INMARSAT shares are available to entrepreneurs, money-managers and speculators, that may no longer obtain. The IMSO ‘special share’ mechanism is therefore conducive to the IMSO/INMARSAT Public Services Agreement being honoured. One potential difficulty for INMARSAT Ltd could arise in connection with its duties as to safety of life at sea. By its Res. A.888(21) of 25 November 1999 the Assembly of the International Maritime Organisation adopted general criteria as to the provision of GMDSS services.134 This was in response to developments in the design and technical capabilities of new satellites that allow newer operators to meet the requirements set by the IMO as to the GMDSS system. The effect of the Resolution would be that a new provider of these services would be able to take at least some of the revenue presently going to INMARSAT Ltd for GMDSS, but without the constraint that INMARSAT Ltd has under its public service obligation as to continuing to provide such a service, or as to providing service to remote and rural areas. IMSO is adapting to meet these challenges by making itself available as a general supervisor of compliance with public service obligations. Amendments to the IMSO Convention are in train.135 The new mandate of IMSO would extend to supervise any ‘Provider’ of telecommunications services, whether a PTT or a commercial company, willing to come under its jurisdiction. Article 3 still makes it clear that ensuring that GMDSS obligations are met is the primary purpose of IMSO, but the rest of Art. 3 is adapted to require that Providers provide services without discrimination on basis of nationality, act exclusively for peaceful purposes, 133 �� Memorandum of Association of INMARSAT Ventures Plc, Clause 6; Articles of Association of INMARSAT Ventures Plc, Arts 21–25, UK Company no. 3674573, as updated and altered. 134 �� ‘Criteria for the Provision of Mobile-Satellite Communication Systems in the Global Maritime Distress and Safety System (GMDSS)’, IMO Res. A.888(21). See also In the Matter of the Establishment of Policies and Service Rules for the Mobile Satellite Service in the 2 GHz Band, 2000 15 FCC Rcd. 16127; 22 Comm. Reg. (P & F) 807, adopted 14 August, released 20 August 2000. 135 �� F. Lyall, ‘The Protection of the Public Interest in the Light of the Commercialisation and Privatisation of the Providers of International Satellite Telecommunications’ (2004) 47 Proc. IISL 441–51, Sec. 6 at 445–7. Correlatively the Public Service Agreement with INMARSAT Ltd will be amended and available for any new service providers.

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and act in a manner consistent with fair competition. The previous element in Art. 3 as to rural and remote areas is transplanted to a new Art. 5 allowing IMSO to assist Providers in ensuring that remote and rural areas of developing countries are served and technical assistance and capacity building to be facilitated. Others wishing to enter the satellite telecommunications field to provide inexpensive basic services to the rural and remote areas might wish to place themselves under IMSO supervision as to whether they meet their stated intentions, particularly if such developments were to tie in with the concerns of the World Summit on the Information Society 2003–5 and questions of the Digital Divide.136 Another area of interest might be companies or organisations providing aeronautical safety and traffic management.137 In the light of terror threats from ship-borne devices it is likely that Long-Range Ship Identification services will be introduced. The providers of these also could be supervised by IMSO. Again global positioning services are of great public benefit and therefore a business in which providers might reasonably reassure the world at large as to non-discrimination, fair competitive practices and global access.138 Whatever the future may hold, as at 2008 IMSO still has ninety-two members.139 This speaks volumes for the interest of states in the continuance of this organisation, whose function in supervising and securing compliance with the non-commercial purposes of a company whose purpose is also profit, is to be welcomed.

136 �� See WSIS information on the ITU website: www.itu.int. Cf. F. Lyall, ‘The New Global Satellite Telecommunications Systems and International Law’ (2002) XVII AASL 429–45, as to possible international duties on telecommunications service providers. 137 �� Aeronautical safety was considered at meetings of the Intersessional Working Group which considered the development of the IMSO Convention, but related draft amendments were withdrawn, ICAO expressing no view on what it considered as a matter for IMSO alone, while noting that aeronautical communications were a matter for ICAO SARPS and PANS. See IWG2R 5.4.2–5.4.2.3; IWG2R para. 6.3.2–6.3.2.7, available in the Report: ‘Outcome of the Intersessional Working Group to the IMSO Assembly’, adopted at the third session of the IWG, 8 February 2004, IMSO IWGARF – also available at www. state.gov/e/eb/rls/rpts/othr/32557pf.htm. There is a non-exclusive, consultation and cooperation Agreement between ICAO and IMSO. Cf. ‘Use of Aeronautical Mobile Satellite Services (AMSS) for Communication and Surveillance’, a paper presented by IMSO at the Fourth Meeting of the ALLPIRG/Advisory Group, 6–8 February 2001. 138 �� In a private communication, David Sagar, a former INMARSAT legal officer, has pointed out to F. Lyall that there might be problems where a private enterprise/governmental partnership was involved. In the IMSO model the Organisation has no responsibility for INMARSAT financing or the management of the system. The proposed Galileo system is differently structured; see Chapter 12 and F.G. von der Dunk, ‘Liability for Global Navigation Satellite Services: A Comparative Analysis of GPS and Galileo’ (2004) 30 J. Sp. L. 129–167 [Lyall/Larsen 429–67]. 139 �� List of Parties to the Convention on the International Mobile Satellite Organisation: http://www.imso.org/member_states.asp.

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EUTELSAT – The European Telecommunications Satellite Organisation140 The creation of the European Telecommunications Satellite Organisation (EUTELSAT) was part of the intention of European states to develop and maintain a space industry east of the Atlantic. As we have seen, that intention helped produce INTELSAT as an intergovernmental organisation. In the discussions and negotiations that led to Interim INTELSAT the European Conference of Posts and Telecommunications (CEPT) and its European Conference on Satellite Communications (CETS) were important. However, the European interest in satellite communications was not exhausted by involvement with INTELSAT. CETS continued to exist, studying space telecommunications and encouraging other organisations and associations active in the area. In 1961 various members of the European space industry had formed ‘Eurospace’ to consider matters of common concern.141 It began to produce economic and other studies. The European Broadcasting Union (EBU) which had been founded in 1950 saw the potential of satellite broadcasting.142 In 1967 the European Space Research Organisation (ESRO) was urged to consider the requirements of the EBU for a broadcast satellite system. Also in 1967 France and Germany drafted the ‘Symphonie’ telecommunications satellite project as a possible bilateral endeavour.143 In the meantime the European Launcher Development Organisation (ELDO) struggled on. The inter-relationships of these various bodies were not satisfactory. So, on the initiative of the European Launcher Development Organisation (ELDO), a co-ordinating body, the European Space Conference (ESC) was formed in December 1966, but without legal status. In 1969 ESC brought together the CEPT, CETS, EBU, ELDO, ESRO and the ESC itself to consider how CEPT and EBU needs might be met by a European satellite system. The result was a recommendation that the space organisations should produce a programme for various satellite applications including telecommunications and broadcasting, and that a single organisation should carry that programme forward. One outcome was that ESRO began a European Communications Satellite (ECS) programme in 1971. Another was the fusion of ESRO and ELDO to form the European Space Agency (ESA).144 When ESA began de facto operation in 1975145 it was very willing to encourage developments in telecommunication and broadcasting satellites. There was a large European market to be served. ESA member states wanted to foster their domestic 140 �� What follows is summary. For detail down to 1989 see Lyall, 244–95. 141 �� Eurospace, the Association of the European Space Industry, remains important in European space activities: www.eurospace.org. 142 �� The European Broadcasting Union: http://www.ebu.ch. 143 �� B. Deloffre, ‘The Symphonie Project’ (1974) 13 La Recherche Spatiale, 1–6. 144 �� See supra Chapter 1. 145 �� ESA began operation before its constituent documents came into force in 1980: see Chapter 1, p. 25.

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space industries which, because of deficiencies in their technologies compared with US firms, had not been as successful in gaining INTELSAT contracts as had been hoped. A ‘domestic’ market might allow European firms to hone their skills sufficient to be able to match the US competition. Military and security considerations argued for European developments separate from INTELSAT. A satellite system would justify the continuance of launcher programmes independent of the US. Some governments also saw the possibility of a financial return on any investment. Of course, these factors did not weigh equally with each ESA member and not all the European PTTs were as keen as their governments. For them the existing terrestrial systems they already operated were satisfactory and relatively easily improvable when required. A satellite system might prove to be a competitor, and the support of space industries did not lie within the PTT remit. That said the overall balance of governmental opinion and hence that of ESA was in favour of the creation of a European satellite telecommunication system. The building blocks were already there since the ESRO European Communications Satellite programme was advancing, as was its Orbital Test Satellite (OTS) programme. Of these OTS-2 had tested various communications technologies, and at this stage ESA was minded to persist with the maritime system (MAROTS).146 Like INTELSAT, EUTELSAT began in an interim form as an association of sixteen members as joint-venturers.147 Membership was open to any member of CEPT or a recognised private operating agency (an ITU category) duly authorised by its CEPT member administration, provided that only one Signatory might be designated by each CEPT Member (Int. Ag. Art. 13(a)). Thereafter accession to the Agreement was competent if the Interim EUTELSAT Assembly of Signatory Parties agreed. The structure of Interim EUTELSAT consisted of that Assembly, two Councils (one for the ECS space segment and the other for the MAROTS Council) and a General Secretariat under a Secretary General (Int. Ag. Art. 4).148 The Assembly consisting of all Signatories, each with one vote (Int. Ag. Art. 5(c)) met at least annually (Int. Ag. Art. 5(g)). Its duties included the framing of general policy, approving budgets and establishing general principles for procurement contracts (Int. Ag. Art. 6). Within their separate spheres of responsibility the ECS and MAROTS Councils were each the principal organ of Interim EUTELSAT 146 �� Lyall, 246–8. 147 �� ‘Agreement on the Constitution of a Provisional European Telecommunications Satellite Organisation, “Interim EUTELSAT”’, Paris, 13 May 1977, in force 30 June 1977: Space Law: Selected Basic Documents (2nd ed.), Committee on Commerce, Science, and Transportation; US Senate, 95th Cong. 2nd Sess., December 1978 (USGPO), 469–85. The Agreement was modified by Supplementary Agreements as to the ECS space segment and a maritime mobile service (MAROTS): N.M. Matte, Aerospace Law: Telecommunications Satellites (Toronto and London: Butterworths, 1982), Appendices IX, X and XI. The initial members of Interim EUTELSAT were Austria, Belgium, Denmark, West Germany, Finland, France, Italy, Luxemburg, The Netherlands, Norway, Portugal, Spain, Switzerland, Turkey and the UK. Yugoslavia joined before operations commenced. 148 �� For detail, see Lyall 270–3.

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with full powers to fulfil their remits (Int. Ag. Art. 8). EUTELSAT members had to decide the extent to which they invested in the activities of the two Councils and voting within each Council was weighted by investment share (Int. Ag. Arts 3 and 7). The MAROTS Council did operate for a time, but before the permanent EUTELSAT arrangements were entered into, the nascent INMARSAT had indicated its willingness to take over portions of the MAROTS system and the EUTELSAT MAROTS Council ceased. The ECS Council carried on and laid the basis on which Definitive EUTELSAT was established. The constitutive documents of Definitive EUTELSAT were a Convention (Conv.) and an Operating Agreement (Op. Ag.) signed by a national telecommunications entity designated by each Party to the Convention.149 As with INTELSAT and INMARSAT each EUTELSAT Signatory was assigned an investment share or quota, which in due course was revised on the basis of usage of the system. The EUTELSAT structure was simpler than that of INTELSAT, explicable by its intended smaller area of operation and fewer members. However, it also differed from INMARSAT in being tripartite: an Assembly of Parties, a Board of Signatories and an Executive Organ. EUTELSAT had legal personality and full capacity to attain its objectives (Conv. Art. IV).150 The Executive Organ was responsible for implementing the decisions of the other organs of the enterprise, notably the Board, and for servicing the other organs. It was headed by a Director General appointed by the Board of Signatories (Conv. Arts XIII(a) and XII(b)(xvi)). The Director General was the chief executive and legal representative of EUTELSAT (Conv. Art. XIII). The Assembly of Parties, in which each Party had one vote (Conv. Art. VIII (a)) met at least every two years and was composed of all Parties to the Convention, although a Party might additionally represent up to two others at their request (Conv. Art. VII).151 Inter alia the Assembly set general policy, expressed views on reports by the Board of Signatories and the Executive Organ, had a role in the accession of new Parties, and authorised the utilisation of the space segment. The Board of Signatories was responsible for the design, development, construction, operation and maintenance of the EUTELSAT space segment and 149 �� Convention and Operating Agreement of the European Telecommunications Satellite Organisation (EUTELSAT), Paris, 12 July 1982 (1983) UK Misc. 25, Cmnd. 9069. Note also: Protocol Amending the Convention and Operating Agreement of the European Telecommunications Satellite Organisation (EUTELSAT), Paris, 15 December 1983 (1984) UK Misc. no. 4, Cmnd. 9154; and Amendment no. 1 to the EUTELSAT Convention, Intergovernmental Conference, Paris, 15 December 1983 (printed with the EUTELSAT documents as available from EUTELSAT). 150 �� Cf. Protocol on the Privileges and Immunities of the European Telecommunications Satellite Organisation (EUTELSAT), Paris 13 February 1987 (UK) 1988 Misc. 3, Cmnd. 305; EUTELSAT (Immunities and Privileges) Order 1988, 1988 SI 1299. 151 �� This allowed minor parties such as Monaco, San Marino and Liechtenstein to be represented in the Assembly by larger neighbours while designating their own Signatories to the Operating Agreement.

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was given all powers necessary to that end (Conv. Art. XII). The Board was composed of Signatories to the Operating Agreement without regard to investment quota, but, as with the Assembly, each Board member might represent up to two additional Signatories (Conv. Art. X). This difference from the former INTELSAT rules meant that every Signatory had the option of representation on the Board either by itself or through another Signatory. The Board endeavoured to act with unanimity (Conv. Art. XI(g)), but where this was not possible a Board member had a voting weight equal to the investment participation it represented (Conv. Art. XI(a) and (e)). However, subject to minor exception, no Board member might exercise a voting weight of more than 20 per cent of the total investment participation in the organisation, any excess being redistributed to other Board members (Conv. Art. XI). EUTELSAT operated ‘on a sound economic and financial basis having regard to accepted commercial principles’152 being financed by the Signatories in accordance with their investment shares and through revenue (Conv. Art. V). Initial investment shares were set in Annex B to the Operating Agreement, but, once the system was operational, investment shares were recalculated annually on the basis of usage, or when a Signatory was added or withdrew (Conv. Art. XI (b), (d) and (e); Op. Ag. Art. 6). The Board set utilisation charges with a view to covering costs, amortising investment and compensating Signatories for use of capital. Charges for a particular service were uniform for Signatories, though those for non-member users could be set a different rate (Op. Ag. Art. 8). The sharing out of procurement contracts was an obvious matter of concern given that the fostering of national space industries was a motive for the setting up of the organisation. Accordingly ‘due consideration to the general and industrial interests of the Parties’ was an element behind procurement decisions, and affected also the availability of intellectual property rights generated under EUTELSAT contracts (Conv. Art. XIV). By good foresight EUTELSAT was not confined to providing services to Europe only. Its primary objective was international public telecommunications within Europe (Conv. Art. III(a)) but domestic services between the territories of Parties separated by the high seas or by another Party were considered as ‘international services’ (Conv. Art. III (b)). Other domestic services or international services could then be provided as secondary objectives (Conv. Art. III(c)). When EUTELSAT had met its primary telecommunications objective it was empowered to provide other specialised services such as radio navigation, remote sensing, space research and broadcasting, only military services being excluded (Conv. Art. III(e)–(f)). However, as the years went on another concept additional to that of the ‘primary objective’ became current within EUTELSAT. This was the notion of ‘primary services’, a concept which permitted the broadening of the EUTELSAT portfolio of services into television and entertainment. Over time these became 152 �� Interestingly it was not until privatisation that the new ITSO Agreement for INTELSAT contained similar language.

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the major contributors to revenue, as was evidenced by the EUTELSAT website (www.eutelsat.int). EUTELSAT also permitted Signatories and others to acquire non-preemptible rights in its transponders, and began to enter into commercial arrangements with other providers such as INTERSPUTNIK. Privatised EUTELSAT EUTELSAT was a successful provider of satellite services, but as its business developed in the 1990s and as a number of its member states and Signatories reviewed the arguments for the privatisation of INTELSAT and INMARSAT, it became clear that EUTELSAT would not be exempt from that process. Exactly why EUTELSAT privatised is not as well documented as the other instances. It may be noted, of course, that in Europe the privatisation in whole or in part of telecommunications services and the opening up of the telecommunications market to providers other than the traditional government departments was occurring. Signatories were becoming more commercial in their consideration of business imperatives. Accordingly one element arguing for privatisation would seem to be the desire of at least some Signatories to realise the value of their investment. Another element came to be the question of access to commercial sources of funding to finance the replacement of satellites and the future growth of the EUTELSAT system. At the time of its privatisation EUTELSAT had forty-eight members, a considerable increase from its original sixteen. The decision to privatise was taken at an Assembly of Parties held in Cardiff, Wales, in 1999. EUTELSAT being active within the European telecommunications arena, its privatisation had to be approved by the Commission of the European Union, and was overseen by it. The necessary restructuring was approved by the Commission on 27 November 2000, on the basis that an initial public offering of 30 per cent of the shares in the new company would be made by July 2003. However, as with INTELSAT and INMARSAT, market conditions resulted in a postponement of this offering which eventually went to market on 2 December 2005.153 Notwithstanding, the assets, commercial liabilities and operational activities of EUTELSAT were transferred on 2 July 2001 to EUTELSAT S.A., a French société anonyme (a limited liability company) with a share capital of 1,000 million euros then held by the existing Signatories in proportion to their investment shares. Various Signatories sold their shares thereafter,154 and in April 2005, the major shareholders of EUTELSAT S.A. (by this time mainly investment vehicles) holding c. 95 per cent of the company 153 �� Thirty-four per cent of EUTELSAT shares were marketed, resulting in a capitalisation of c. 2.5bn euros. 154 �� At the privatisation of EUTELSAT British Telecom had a 20.8 per cent shareholding in EUTELSAT S.A., this reducing to a 15.8 per cent shareholding which it finally sold in November 2004 to an investment partnership for £363 million ($675 million).

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established ‘Eutelsat Communications’ (www.eutelsat-communications.com) as the holding company for the EUTELSAT Group. EUTELSAT S.A. has continued to trade, and appears to be prospering, providing some eighteen hundred television and nine hundred radio stations with material, dedicated networks for commercial firms, and still to some extent the public telecommunications that was its original justification. Like INMARSAT, a vestigial intergovernmental organisation exists to supervise the activities of EUTELSAT to see that it respects basic principles of pan-European coverage, universal service, non-discriminatory access to its services and fair competition. As with the privatisations of INTELSAT and INMARSAT, the privatisation of EUTELSAT required radical revision of the EUTELSAT arrangements including the termination of the Operating Agreement and modification of the Convention. The relevant revisions were approved by the EUTELSAT Assembly of Parties at Cardiff in May 1999. The amended Convention formally came into force on 28 November 2002 but was applied provisionally from 2 July 2001 in accordance with a Resolution of the Cardiff Assembly.155 No reservation may be made to the revised Convention (Art. XVI(c)). Further amendment of the Convention is competent, proposals being made by Parties and decided on by the Assembly of Parties within six months, or less if Parties so agree by a two-thirds majority of those present and voting (Art. XIV(a)). In making such a decision the Assembly is to take due account of the views of EUTELSAT S.A., which must be consulted if the proposal would affect the activities of the company. If adopted an amendment comes into effect onehundred and twenty days after its acceptance by two-thirds of the Parties which were parties at the time of its adoption. An amendment then binds all Parties (Art. XIV(b)). Termination of EUTELSAT is also competent. That requires a two-thirds vote of all Parties, but unless the company agrees, no such decision may be taken if EUTELSAT rights as to international radio frequencies are still vital (Art. XIV(c) and (e)). The termination of the intergovernmental organisation would not affect the existence of EUTELSAT S.A. (Art. XIV(d)). By Art. II(a) of the revised Convention EUTELSAT is (re)established. By Art. II(b) the Parties undertook to create the Société Eutelsat S.A. to operate the EUTELSAT system and provide satellite services, and as noted above this process has been completed. The continued EUTELSAT intergovernmental organisation now has only a supervisory function, not an operational function. It remains an 155 �� The Amended EUTELSAT Convention is available through www.eutelsatigo.int. Cf. Amendments to the Convention and the Operating Agreement relating to the European Telecommunications Satellite Organization (EUTELSAT), 2000 (UK) Cm. 4572. For the official French text see: Loi 2000-534 of 16 June 2000 of the French Parliament, data published in the Journal Officiél of 20 June 2000, p. 9239; cf. (2001) 217 Rev. Fr. de Droit Aérien et Spatiale, 305–23. The relevant French legislation is the Loi of 18 February 2000, no. 2173. For ‘provisional application’ see supra n. 121.

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international organisation with legal personality and has the full capacity necessary for its functions (Art. IV). By Art. XII(b)–(c) it has the usual privileges and immunities,156 and there is a Headquarters Agreement with France.157 Structurally, the former EUTELSAT Board has disappeared, and the organisation itself now consists of an Assembly of Parties and a Secretariat under an Executive Secretary (Art. VI). No Party is liable for the acts and obligations of EUTELSAT unless liability results from a treaty to which both EUTELSAT and the Party are parties (Art. XIX). Obviously the members of the prior organisation are members of the EUTELSAT supervisory organisation. Further accessions to the new EUTELSAT Convention are competent within limits. Any state which had the right to be or become a party to the Provisional EUTELSAT Agreement may accede to the EUTELSAT Convention (Art. XVI(a)(iii)), as may any other European state member of the ITU.158 However, there is no right of accession. An application to accede is made to the Executive Secretary together with all relevant information. Once he certifies he is in possession of all such information he transmits the application to the Assembly of Parties which decides on the application within six months, and may impose conditions on the accession (Art. XVIII(c)–(f)). Withdrawal on three months notice or on expulsion from EUTELSAT is competent. In the latter case a decision that a Party be deemed to have withdrawn is a matter of substance to be taken by secret ballot of the Assembly of Parties and made on the ground that the Party has failed to comply with any obligation under the Convention (Art. XIII). Disputes between Parties and between a Party and the organisation are to be settled by arbitration (Art. XV and Annex B). The EUTELSAT Assembly of Parties consists of all Parties as of right, although it is competent for a member to represent up to two others (Art. VII(a) and (b)). It meets annually, though an extra-ordinary meeting is possible at the request of one or more parties and supported by at least one-third of the parties (Art. VII(c)–(d)) or to deal with matters raised by the company EUTELSAT S.A. (Art. VII(d)). Its quorum is a simple majority of Parties, with at least one-third present at particular 156 �� See Protocol on the Privileges and Immunities of the European Telecommunications Satellite Organisation (EUTELSAT) (www.eutelsatigo.int/en/docs/Protocol_en.pdf) and Amending Agreement to the Protocol on the Privileges and Immunities of the European Telecommunications Satellite Organisation (EUTELSAT) (www.eutelsatigo.int/en/ docs/Amending_agreement_Protocol.pdf) with Corrigendum (www.eutelsatigo.int/en/ docs/Corrigendum_1_en.pdf). For the UK the EUTELSAT (Immunities and Privileges) (Amendment) Order 2001 (2001) SI 963, restricted the immunities formerly afforded to EUTELSAT so as to take account of the privatisation and to contain them to the requirements of the residual organisation. 157 �� Headquarters Agreement between the European Telecommunications Satellite Organisation (EUTELSAT) and the Government of the French Republic (www.eutelsatigo. int/en/docs/HQ_agreement.pdf). Cf. Amendments to the previous Agreement adopted by the French Senate 10 July 2002: Document no. 41. 158 �� The term ‘European state’ is undefined.

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sessions (Art. VIII). Each Party has one vote, abstention being considered as not voting, substantive matters requiring a two-thirds majority (Art. VIII(b)). Under Art. IX the Assembly considers inter alia the activities of EUTELSAT S.A., ensuring that they conform to the principles of Art. III and to the Arrangement between EUTELSAT and EUTELSAT S.A (infra). It decides on external relations, including the negotiation of privileges and immunities and the Headquarters Agreement,159 adopts the budget,160 and as noted above can decide on applications for accession or the expulsion of a Party. The Executive Secretary is appointed by the Assembly of Parties for a four year term, but may be removed by it for cause (Art. X(a)-c)). She161 or he is the legal representative of EUTELSAT, and acts under the direction of the Assembly (Art. X (d)). The Executive Secretary and a small secretariat appointed by him subject to the approval of the Assembly (Art. X(e)) serve the purposes of the organisation. Staff terms and conditions are dealt with through the Administrative Tribunal of the International Labour Office.162 By Art. III of the amended Convention the purpose of the new EUTELSAT is to ensure that EUTELSAT S.A. acts in accordance with certain Basic Principles. These are the provision of public/universal communications services including Pan-European services; the provision of service particularly where there is need within the territories of EUTELSAT members; non-discriminatory access to its services; operation on an economic basis; compliance with national and international regulations, including the European Convention on Trans-frontier Television;163 and compliance with the ITU regulations as to the use of radio frequencies. Although other documents speak of it, what is ‘fair competition’ is not specified within Art. III, but in that the Company works within the European Union, the understanding and the rules of that organisation as to ‘fair competition’ determine its meaning. The question therefore arises as to how EUTELSAT is informed as to the activities of EUTELSAT, S.A. as to compliance with the Basic Principles. Article II(c) indicates that the relationship between EUTELSAT and EUTELSAT S.A. was to be contained in an Arrangement setting out mutual duties and rights and ‘in particular providing a framework to enable EUTELSAT to oversee and ensure the observance 159 �� See supra nn. 156 and 157. 160 �� By Art. V and the Arrangement, EUTELSAT is financed by Eutelsat S.A. 161 �� The first Executive Secretary was Mrs Birgitta Näslund of Denmark, the second M. Christian Roisse of France. 162 �� See ILO GB.294/PFA/18/3: ‘Recognition of the Tribunal’s jurisdiction by the European Telecommunications Satellite Organization’. 163 �� The ‘European Convention on Trans-frontier Television’, Council of Europe, Strasbourg, 5 May 1989, ETS 132; 1993 UKTS 22, Cm. 2178; (1989) 28 ILM 859–69, as amended by Protocol of 1998, CETS no. 171, and the European Council Directive Concerning the Pursuit of Television Broadcasting Activities, 1989, EC OJ no. L 298, 17 October 1989, 23–30 (1989) 28 ILM 1492–9.

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by the Company of the Basic Principles’ (quoted from Art. I(l)). It is understood that this Arrangement can be terminated only by the consent of both parties to it. The Arrangement is not publicly available. The reason for this is obscure. However, its terms may be deduced from the ‘EUTELSAT Communications Basic Document’ and in the ‘Prospectus for the Initial Public Offering of Shares in EUTELSAT S.A.’ Chapter VIII, para. 8.2.2.2 of the French version of the Basic Document (Document du Base)164 states that within the structure of EUTELSAT S.A. a post of ‘Censeur’ (Censor), is held by the Executive Secretary of the EUTELSAT intergovernmental organisation. The Censeur has the right to attend all meetings of the EUTELSAT S.A. Board, to receive its papers, and to contribute to its discussions, albeit without vote. The only exception to such participation is when the Board is discussing its relationship with the intergovernmental EUTELSAT organisation. Such an arrangement means that the Executive Secretary is fully aware of the activities of EUTELSAT S.A. and is able to bring any troubling matters to the attention of the EUTELSAT Parties without the need for a formal communication procedure. This seems a better system than that obtaining as to communications and the flow of information between INTELSAT and ITSO. That said, it remains unclear what the residual supervisory EUTELSAT can do were it of the view EUTELSAT S.A. or its successor were in breach of the obligations set out in Art. III of the Convention. The Company is a commercial organisation, owned by investment companies that may or may not retain their investment, and whose interest may be more in profit than in universal public service. ‘Owners’ can change, with a consequent possible alteration in business strategy. However, at present the system works. INTERSPUTNIK Original INTERSPUTNIK165 As noted above, although USSR participation in the embryonic INTELSAT was sought, the USSR refused to join the proposed arrangements.166 Various reasons 164 Eutelsat Communications: Document du Base (www.eutelsat.com/investors/ pdf/2005-09-07.pdf) registered by the French ‘l’Autorité des marchés financiers’ on 7 September 2005, no. �� I-05-117. The ‘Document du Base’ of French law corresponds to the Memorandum and Articles of Association of a company in UK law. 165 �� What follows is summary. This INTERSPUTNIK is discussed more fully in G. Zhukov and Y. Kolosov (B. Belitzky trans.), International Space Law (New York: Praeger, 1984) 109–20; Y.M. Kolosov, ‘International System and Organisation of Space Communications (INTERSPUTNIK)’, I Manual 401–14, and Lyall, 296–303. 166 �� N.M. Matte, Aerospace Law (Toronto: Carswell; London: Sweet and Maxwell, 1969) 197. Cf. D. McDaniel and L.A. Day, ‘INTELSAT and Communist Nations Policy on Communications Satellites’ (1973–1974) 18 J. Broadcasting 311–21.

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may explain this decision. First, Interim INTELSAT was to be an arrangement in which contribution to cost would be reflected in influence, voting weight and proportion of common ownership. The USSR preferred the normal UN ‘one state one vote’ system. Second, international telecommunications traffic in and from the USSR meant that the USSR would not have then been entitled to individual membership of the Interim Communications Satellite Committee (ICSC), and even with the addition of quotas from Soviet allied states, might not have reached the quota weight required. Third, even had the USSR been a member of the ICSC, it would have had a voting weight significantly minor when compared with that of the US, which, on the original figures, had a quota weight of 61 per cent, and one not even comparable with countries such as France, Germany and the UK. Fourth, there was the difficulty of finding the convertible foreign currency to meet the costs of setting up the INTELSAT system. Fifth, there were questions as to the technology to be developed and access to the techniques, inventions, procurement contracts and the like. Sixth, the USSR objected to an arrangement in which telecommunications operators rather than governments made the effective decisions. Last the negotiation of Interim INTELSAT took place shortly after the Cuba Crisis of 1962. On the other hand there were reasons why the USSR was itself keen to establish a telecommunications satellite system. First, it had to keep up in invention, technology, manufacturing and operational skills. This fed a determination to provide an alternative to INTELSAT. Second, there were practical advantages. The land-mass of the USSR is huge, encompassing ten time zones with terrain often difficult to traverse by cable, telephone line or even microwave.167 Like Canada, telecommunications by satellite made sense for the USSR. In January 1964 the USSR launched two trial communication satellites in the Electron series, and in 1965 and 1966 began the Molniya series, which had telecommunications, direct broadcasting and weather observation functions. These were put into highly elliptical low Earth orbits with their apogees high above the northern hemisphere so as to provide maximum visibility within the major portion of the Communist bloc. In 1967 a group of experts from Bulgaria, Cuba, Czechoslovakia (as then was), East Germany, Hungary, Mongolia, Romania and the Soviet Union drew up a programme for international co-operation in the exploration and use of outer space, which was to become the INTERCOSMOS programme in 1976.168 The group was also of a mind that a satellite telecommunications system open to all countries that wished to take part should be developed. To that end a

167 �� Point-to-point microwave transmissions were then only under development. 168 �� V.S. Vereshchetin, ‘Agreement on Cooperation in the Exploration and Use of Outer Space for Peaceful Purposes (INTERCOSMOS), I Manual 415–26; Text of INTERCOSMOS Agreement, II Manual 253.

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Draft Agreement was put forward at the first UN Conference on the Peaceful Uses of Outer Space (UNISPACE I) in 1968.169 By this time the Interim INTELSAT system was operational, and its arrangements were preferred by its members over the Intercosmos suggestion. Notwithstanding their own proposal the nine negotiating countries of Intercosmos signed the ‘Agreement on the Establishment of the “INTERSPUTNIK” International System and Organisation of Space Communications’ at Moscow on 15 November 1971. This came into force 12 July 1972.170 Membership was open to states signing and ratifying the Agreement (Art. 2.2.) and those later acceding to the Agreement (Art. 22).171 At this stage the INTERSPUTNIK organisation consisted of a governing body, the Board, and an executive body, the Directorate. The Board consisted of one representative from each member of the organisation (Art. 12.1), each having one vote (Art. 12.2), and met at least annually though more often if required. Chairmanship of the Board rotated annually in Russian alphabetic order (Art. 12.5). The Board tried to act unanimously, failing which decisions could be taken by a two-thirds majority (Art. 12.7). However, Board decisions did not bind a member that did not vote for them unless it changed its mind (Art. 12.7). The Board elected and supervised the work of a Director General and his deputy (who had to be nationals of different countries (Art. 13.5)) and that of an Auditing Commission which dealt with financial matters (Art. 12.6.8 and 9). It was responsible for the creation of the INTERSPUTNIK system, for setting charges and generally for arranging all that was required (Art. 12.6). The Directorate was responsible for the implementation of the decisions of the Board. The Director General and Deputy Director General served for four years, but the Deputy was normally elected only for one term (Art. 13.5). There were no restrictions on other staff of the Directorate, save that they had to be nationals of member countries, and were to be appointed

169 �� ‘Draft Agreement on the Establishing of an International Communications System using Artificial Earth Satellites’, 9 August 1968, A/AC.105/46; (1968) 7 ILM 1365–75; (1968) 35 Telecommunication J. 508–10. S.E. Doyle, ‘An Analysis of the Socialist States’ Proposal for “INTERSPUTNIK”: An International Communication Satellite System’ (1970) 15 Vill. L. Rev. 83–105. 170 ‘�� Agreement on the Establishment of the “INTERSPUTNIK” International System and Organisation of Space Communications’, Moscow, 15 November 1971; 862 UNTS 3. 2 Manual 159: Space Law: Selected Basic Documents (2nd ed.), Committee on Commerce, Science, and Transportation; US Senate, 95th Cong. 2nd Sess., December 1978 (USGPO) 385–98, and www.intersputnik.com/archive/Agreement_1971_eng.pdf; or www. jaxa.jp/jda/library/space-law/chapter_2/2-2-2-17_e.html. See also the related ‘Agreement on the Legal Capacity, Privileges and Immunities of the “INTERSPUTNIK” International Organisation of Space Communications’, Berlin 20 September 1976, 1389 UNTS 79; (1971) 16 ILM 1. 171 �� There were nine initial members.

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with due regard to their professional qualifications and an equitable geographic distribution (Art. 13.6).172 The Board had to act within the resources determined by the parties to the Agreement (Art. 12.8). Finance was overseen by the Auditing Commission composed of three individuals of different nationality (Art. 14.1) who were elected by the Board (Art. 12.6.9) but held no other office within the organisation (Art. 14.1). At first finance was derived on an ad hoc basis from INTERSPUTNIK members (Art. 15.4) but from 1983 it came from a Statutory Fund to which contributions were made on a basis proportional to the usage each member made of the system (Art. 15).173 Contributory shares were recalculated on the occurrence of any change in membership (Art. 15.5). Members defaulting on payments might have their membership partially or totally suspended (Art. 15.8). All this was not unlike the INTELSAT arrangements. Additional funding was derived from service charges. These were set by the Board (Arts 12.6.17 and 16.3), and were calculated in gold francs (Art. 16.3). Any profit might be distributed to members, put into the Statutory Fund or into a special account (Art. 15.9). The organisation INTERSPUTNIK was itself liable only for its own obligations and then only to the extent of its own assets, while its members were liable only for their own obligations (Art. 10). The space segment was owned by INTERSPUTNIK or might be leased from members, but ground stations were the property of individual members (Art. 4.2, 3 and 4). Satellites owned by the organisation were launched and operated by members having that capacity on the basis of agreement between them and the organisation (Art. 6). INTERSPUTNIK was therefore different from INTELSAT which operated its own satellites though contracting out for launch services. More importantly much of the actual procurement etc. for INTERSPUTNK was left to appropriate members, with the organisation serving to co-ordinate and lease, while also running the system. There may therefore be an analogy here between the role of COMSAT as Management Contractor in Interim and early Definitive INTELSAT and that of the USSR in INTERSPUTNIK. That said, by contrast INTERSPUTNIK seems to have worked well within its membership. As noted above,174 the INTERSPUTNIK system as such cannot really be called a global system in the sense that the INTELSAT and INMARSAT system were/are global, but once there was agreement as to the interaction of INTERSPUTNIK and INTELSAT that changed. Thus in 1985 INTERSPUTNIK and INTELSAT regularised their interrelationships, including access to and use of INTERSPUTNIK

172 �� As Doyle’s critique of the original proposals (n. 169) indicates, what was meant by ‘equitable geographic distribution’ was not clear. Did it mean proportionate to population, to contribution, to economic or political importance, to technical competence, or to a mix of these? 173 �� A Special Protocol set up this fund. We have not seen its text. 174 �� See text following n. 167 supra.

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ground stations by and with the INTELSAT system.175 In addition by then many INTERSPUTNIK members were themselves using the INTELSAT system on a paying or service basis and some had become INTELSAT members. In the 1980s these seemed promising developments and a move towards a unified global system that would fulfil the UN hopes of the early Space Resolutions. Revised INTERSPUTNIK Questions similar to those that induced the privatisation of INMARSAT appear to have had a role in recent developments of INTERSPUTNIK.176 Without going quite so far as formal privatisation INTERSPUTNIK members have adapted its constitution, moving considerably towards a structure akin to that of the preprivatisation INMARSAT.177 In addition INTERSPUTNIK has opened up its activities, for example by now allowing the possibility of contracting out operational matters beyond the member states of the organisation, and the employment of nationals of non-INTERSPUTNIK member states.178 The move to the new INTERSPUTNIK constitution was accomplished by a Protocol179 amending the original INTERSPUTNIK Agreement to form a new Basic Agreement (Basic Ag.)180 and the adoption three months later of an Operating Agreement between telecommunications entities designated by the states party to the main Agreement (Op. Ag.).181 No reservation is permitted for either the Basic Agreement or the Operating Agreement (Basic Ag. Art. 22.4). A Member may withdraw by written notice from the Agreement and this entails 175 �� Memorandum of Understanding between INTELSAT and the Ministry of Posts and Telecommunications of the USSR, Attachment 1 to INTELSAT Doc. BG-64-69, 27 August 1985. 176 �� These problems were the cost of replacement satellites particularly for the former Communist bloc states, and the difficulties of an international organisation having immunity to secure funding from normal commercial sources. 177 �� V.S. Veshchunov and V.D. Stovboun, ‘INTERSPUTNIK: International Organisation of Space Communications: An Overview’ (2003) 31 J. Sp. L. 121–30; G. Zhukhov and V. Veshchunov, ‘Fundamental Agreements of INTERSPUTNIK: Towards Consensus’ (1996) 38 Proc. IISL 134–8; M. Hošková ‘INTERSPUTNIK – New Legal Developments’ (1996) 38 Proc. IISL 139–48. 178 �� See below at nn. 184 and 189. 179 �� The Protocol on Amendments to the Agreement on the Establishment of the Intersputnik International System and Organization of Space Communications, 4 November 2002: (2003) 31 J. Sp. L. 131–46; www.intersputnik.com/archive/Protocol_on_ amendments_eng.pdf. 180 �� The revised Agreement is at (2003) 31 J. Sp. L. 131–46. The new Agreement is defined as the ‘Basic Agreement’ by Art. 1.1.1 of the new Operating Agreement (next note). 181 �� The Operating Agreement of the Intersputnik International Organization of Space Communications, 4 February 2003: (2003) 31 J. Sp. L. 162–82; www.intersputnik. com/archive/Operating_agreement_eng.pdf.

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the simultaneous withdrawal of any Signatory which it has designated to sign the Operating Agreement, such withdrawal becoming effective in three months from notice of withdrawal being given (Basic Ag. Art. 17.1 and 2). A Signatory may withdraw from the Operating Agreement also with three months’ notice, and must either be replaced by the relevant Member designating a replacement before the expiry of the notice, or the Member’s own membership of the organisation terminates (Basic Ag. Art. 17.3). A Member may substitute a Signatory, the transfer of the rights and duties of the two Signatories becoming effective when the new Signatory signs the Operating Agreement (Basic Ag. Art. 17.4). In all cases of withdrawal procedures exist for the settling of debts and other obligations between the relevant entities (Basic Ag. Art. 17.2). The new Basic Agreement may be terminated with the consent of all Members. Such a step involves dissolution of the organisation in accordance with procedures determined by the Board on the recommendation of the Operations Committee (Basic Ag. Art. 18.1; Op. Ag. Art. 12 bis 2.16). In the event of dissolution any surplus from the sale of assets is, after debts have been paid, to be made over to Members in proportion to their contribution to the share capital of the organisation (Basic Ag. Art. 10.2). As implied by the previous paragraph, the major change in INTERSPUTNIK is the division of the organisation into governmental and operational elements and the introduction of ‘share capital’ contributed by the Signatories. Moscow is retained as the seat of the organisation, although that could be changed (Basic Ag. Art. 3).182 The languages of the organisation remain English, French, Russian and Spanish, although, depending on the actual requirements of the organisation, the Board determines the extent to which a language is used (Art. 19). INTERSPUTNIK therefore now consists of state Members which have signed and ratified or acceded to the Agreement (Basic Ag. Art.1.3 with Arts 20, 22 and 23), and Signatories of the Operating Agreement designated by state Members (Basic Ag. Art. 2).183 Unlike the early INTELSAT, a Member may designate more than one Signatory to sign the Operating Agreement (Basic Ag. Art. 2.1). Members are not liable for the obligations of the Signatories (Basic Ag. Art. 2.4) or for the obligations of the organisation (Basic Ag. Art. 10.2). Similarly the organisation is not responsible for the obligations of members (Basic Ag. Art. 10.2). Article 10.1 of the Basic Agreement, like its predecessor, appears to afford INTERSPUTNIK some sort of limited liability in that it states that the organisation ‘shall be liable with respect to its obligations within the limits of the property which it owns’. Contractors with the new INTERSPUTNIK should take note. INTERSPUTNIK has legal personality including the ability to contract, to acquire, lease and alienate property, and to sue (Basic Ag. Art. 8). It enjoys within the territories of its members the legal capacity necessary to attain its goals and to carry out its functions as determined by appropriate agreements with such members (Basic Ag. 182 �� Under Basic Ag. Art. 3 the Operations Committee may recommend moving the seat to another Member state but the decision is the prerogative of the INTELSAT Board. 183 �� A Member may designate more than one Signatory (Ag. Art. 2.1).

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Art. 10). The INTERSPUTNIK space segment system may now be owned by the organisation or leased from Members (Basic Ag. Art. 4.2). As before, launches, orbital positioning and the control of satellites are dealt with by Members having appropriate facilities, but in addition, under the new arrangements, it appears that these matters may be contracted out to others (Basic Ag. Art. 6).184 Ground stations remain the property of the relevant state or operating agency (Basic Ag. Art. 4.3). The structure of the new INTERSPUTNIK is composed of a Board, an Operations Committee, a Directorate and an Auditing Committee (Basic Ag. Art. 11.1). The Board, as before, contains one representative from each state Member (Basic Ag. Art. 12.1), each with one vote (Basic Ag. Art. 12.2). Its chairmanship rotates for each session on a Russian alphabetic basis (Basic Ag. Art. 12.5). It meets annually or extraordinarily at the request of any Member, or the Operations Committee or the Director General, provided that one-third of the Members so agree (Basic Ag. Art. 12.3). The Board endeavours to act unanimously, failing which decisions are taken by a two-thirds majority of those present and voting (Art. 12.7). Such decisions bind all members except a Member that does not agree and as a direct consequence withdraws from the organisation (Basic Ag. Art. 12. 7). Any change in the structure of INTERSPUTNIK or its major goals is, however, to be approved by common consent of its Members (Basic Ag. Art. 12.7). Given the introduction of the Operating Agreement and an Operations Committee, it is not surprising that Art. 12.6 of the original Agreement, which outlined the responsibilities of the former Board, has been considerably amended. Now, by Basic Ag. Art. 12.6 the functions of the Board include the determination of general policy and long-term objectives (Basic Ag. Art. 12.6.1) and adopting its own rules of procedure (Basic Ag. Art. 12.6.7), seeing that the organisation conforms to requirements of the UN Charter and other international agreements (Basic Ag. Art. 12.6.3), the supervision of the activities of the organisation on the basis of annual reports from the Operations Committee (Basic Ag. Art. 12.6.5) and the Directorate (Basic Ag. Art. 12.6.6), decisions on recommendations of the Operations Committee (Basic Ag. Art. 12.6.4) on official relations (Basic Ag. Art. 12.6.9), and decisions on amendments to the Agreement or Operating Agreement (Basic Ag. Art. 12.6.10). The Board can establish further subsidiary bodies to help it perform its tasks (Basic Ag. Art. 11.4). Importantly the Board determines geographic regions so as to provide fair geographic representation in the Operations Committee and elects the members of that Committee accordingly (Basic Ag. Art. 12.6.8; Op. Ag. Art. 3.4). Jointly with the Operations Committee it also elects the Director General (Basic Ag. Art. 13.5). The major structural innovation in the new INTERSPUTNIK is the Operations Committee introduced inter alia by the new Op. Ag. 12 bis. This new organ of INTERSPUTNIK takes over many functions formerly those of the Board in addition to supervising the working of the new ‘share’ system. 184 �� Reference point, n. 178 supra.

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Any Signatory may be a member of the Operations Committee (Op. Ag. Art. 3.2), but it does not consist of representatives of all Members. As noted the Committee is elected by the Board (Basic Ag. Art. 12.6.8). The Committee has seventeen members, thirteen of which represent a Signatory or group of Signatories having the largest shares in the investment share capital of the organisation (Op. Ag. Art. 3.3.a),185 and four of which are elected by the Board with due regard to geographic spread from among the Signatories not otherwise represented (Op. Ag. Art. 3.3.b). Within the Committee each member has a vote weighted to reflect the investment share or shares represented by that member (Op. Ag. Art. 3.5). However, no member can exercise a vote of more than 25 per cent of the total weighted vote within the Committee. Any excess over 25 per cent is distributed among the other Committee members in proportion to their weighted votes. So far, so like Definitive INTELSAT. However, there is a major difference from the old INTELSAT in that provision is made for the possibility that more than one Signatory designated by a Member may be on the Committee by virtue of their share-holding. In the case the aggregate vote of these Signatories exceeds 25 per cent of the total weighted voting in the Committee that surplus is also distributed among the other Committee members in proportion to the weight of their votes, but it is for the designating Member to determine the proportion of voting reduction among the Signatories so affected (Op. Ag. Art. 3.6). Each Signatory member of the Committee appoints its representative and a deputy representative, and ‘decisive votes’ can be cast only by one of these individuals (Op. Ag. Art. 3.7). The Committee meets at least twice a year usually in the host country (presently Russia) though another Member may invite the Committee and pay for the expenses of the meeting (Op. Ag. Art. 4.1).186 Extraordinary meetings are convened at the request of a Member or the Director General provided that at least four Committee members agree (Op. Ag. Art. 4.1). Any Signatory not being a member of the Committee may send observers to a meeting of the Committee (Op. Ag. Art. 4.2). The Committee elects its Chairman and his deputy from among its members, these serving for one year terms but eligible for re-election for another term (Op. Ag. Art. 4.3). The quorum of the Committee is one-half plus one of its members, so long as the aggregate voting share so represented is at least two-thirds of the total weighted votes of the Committee (Op. Ag. Art. 4.5). The Committee is to endeavour to act by consensus Op. Ag. Art. 10), which failing, matters of order or whether the decision is one of substance or not are settled by a simple majority vote of those present and voting (Op. Ag. Arts 3.10.2 and 3 and Art. 4.7). Matters of substance require a qualified majority vote which has regard to the weighted voting of the Committee (Op. Ag. Art. 3.10.1). If required such a ‘qualified majority’ consists of one half of 185 �� The Committee’s Rules of Procedure (not seen) define how such group representation works (Op. Ag. Art. 3.3.a). 186 �� In exceptional circumstances the Committee may take decisions without meeting in formal session by methods set by its Rules of Procedure (not seen) (Op. Ag. Art. 4.8).

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the members attending and voting that represent at least two-thirds of the total weighted votes of all the members of the Committee (Op. Ag. Art. 4.6). The Operations Committee is to give prompt consideration of and decisions as to INTERSPUTNIK activities (Basic Ag. Art. 12 bis 1). Major elements of its functions relate to the technical, to the financial operations and to the normal operation of the organisation. The Committee can establish further subsidiary bodies to help it perform its tasks (Basic Ag. Art. 11.4; Art. 12 bis 2.8). It adopts its own rules of procedure (Basic Ag. Art. 12 bis 2.21). In relation to technical matters the Operations Committee examines and approves the construction, procurement including relevant leasing, and the operation of the INTELSAT system, as well as approving plans for its development and improvement (Basic Ag. Art. 12 bis 2.1–2). It defines the specifications for the satellite system, examines and approves in-orbit delivery programmes, channel allocations and the specifications for Earth stations and their operation (Basic Ag. Art. 12 bis 2.3–7). It approves the organisation’s action plan on an annual basis (Basic Ag. Art. 12 bis 2.10). Bridging technical and financial matters, the Committee sets the Intellectual Property policy for the organisation (Basic Ag. Art. 12 bis 19). In relation to financial matters the Operations Committee determines the size of the share capital of the organisation (Basic Ag. Art. 12 bis 12), which we will deal with separately below.187 Importantly in the new commercial environment of telecommunications in the twenty-first century, it decides on financing arrangements including finance from the commercial world and other sources (Basic Ag. Art. 12 bis 2.13; Op. Ag. Art. 12). It adopts a financial policy for the organisation (Basic Ag. Art. 12 bis 2.11; Op. Ag. Art. 10). This is revised every two years having regard to market forces and any need to upgrade the INTERSPUTNIK system (Op. Ag. Art. 9.2). The Committee sets tariffs for use of the system including the allocation of space segment capacity, tariffs being set in freely convertible currencies (Basic Ag. Art. 12 bis 2 11; Op. Ag. Art. 9.1). It may be noted that, partially echoing Art. V (b) of the old INTELSAT arrangements, the tariff for each service is the same for all users, discounts, however, being exceptionally permitted by the Committee (Op. Ag. Art. 9.3). The Committee authorises Earth stations and sets the criteria which they must meet (Op. Ag. Art. 14). It also determines the criteria for and authorises actual access to the space segment (Op. Ag. Art. 15). It can set the order of priority of access ‘without rejecting the principle of direct access’ (Op. Ag. Art. 15.2). Applications for space segment capacity are made to the organisation by Signatories or any other duly authorised entity (which presumably may mean any other approved telecommunications provider) (Op. Ag. Art. 15.1). The Operations Committee has also responsibility to decide on investment shares and their redistribution (also Basic Ag. Art. 12 bis 2 11; Op. Ag. Art. 6). No

187 �� For the ‘share capital’ see infra, text surrounding n. 192.

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transfer or reduction of investment share can affect the minimum investment share to be held by a Signatory (Op. Ag. Art. 8.3).188 As noted above, in relation to the operation of the organisation the Committee approves the action plan for the next year (Basic Ag. Art. 12 bis 2.10). It approves the reports of the Director General on the work of the organisation (Basic Ag. Art. 12.14). It approves the staff structure of the Directorate (Basic Ag. Art. 12 bis 2.9) and elects the Chair and members of the Auditing Commission as well as approving its procedures and reports (Basic Ag. 12 bis 2.15). Should INTERSPUTNIK be involved in an arbitration it is for the Committee, not the Board, to appoint an arbitrator to a panel (Basic Ag. Art. 12 bis 2.18). Finally, the Committee has the power to recommend that the seat of INTERSPUTNIK be moved from Moscow to one of the Member states though that decision remains with the Board (Basic Ag. Art. 3). The day-to-day functioning of INTERSPUTNIK is in the hands of the permanent Directorate led by a Director General which has executive and administrative functions (Basic Ag. Arts 11.1 and 13.1). The bulk of the staff of the Directorate are nationals of member states, and are appointed with due regard to their professional qualifications and an equitable geographic distribution, though now it is competent to employ nationals of states which are not members of INTERSPUTNIK (Basic Ag. Art. 13.6).189 The Director General is elected jointly by the Board and the Operations Committee and may be recalled by them (Basic Ag. Art. 13.5). He and his deputy have to be nationals of INTERSPUTIK Members but of different countries (Basic Ag. Art. 13.5).190 The Director General is the chief executive of INTERSPUTNIK and represents it in all matters (Basic Ag. Art. 13.2) including in the conclusion of international and other agreements (Basic Ag. Art. 13.4.4). He is responsible both to the Board and the Operations Committee and is guided by and implements their decisions (Basic Ag. Art. 13.3 and 13.4.1), the Directorate making reports to both bodies for their approval (Basic Ag. Arts 12 6.6; 12 bis 2.14 and 20; Op. Ag. Art. 3.9). The Director General negotiates the design of the INTERSPUTNK system, the manufacture of the space segment and its delivery and launch (Basic Ag. Art. 13.4.2 and 3). He drafts the budget for the approval of the Operations Committee, and reports to the Board on the execution of the budget (Basic Ag. Art. 13.5). All financial matters dealt with by the Directorate are open to the scrutiny of the Auditing Commission (Basic Ag. Art. 14.2). The Auditing Commission consists of three persons, including a Chairman, all nationals of the Member states, none of whom may hold any office in

188 �� The current minimum share is 1 per cent (Op. Ag. Art. 6.2). 189 �� Cf. S.E. Doyle’s criticism of Art. 13.6 of the original Agreement, supra n. 169. 190 �� There appears to be a lacuna in the revised Basic Agreement in that, while the electors of the Director General are specified, it is silent as to those (or that) for the Deputy Director.

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INTERSPUTNIK (Basic Ag. Art. 14.1).191 They are elected for three years by the Operations Committee (Basic Ag. Art. 12 bis 2.15). The Commission supervises the financial activities of INTERSPUTNIK (Basic Ag. Art. 11.3), has access to all necessary information (Basic Ag. Art. 14.2) and reports to the Operations Committee (Basic Ag. Art. 14.3; Op. Ag. Art. 10.8). The accounting standards of INTERSPUTNIK are those approved by the International Accounting Standards Committee of London (Op. Ag. Art. 10.6). In the new INTERSPUTNIK a fundamental move has been to introduce a ‘share capital’ system on the basis of which, as indicated above, weighted voting has been introduced. The size of the share capital is fixed by the Operations Committee and may be increased taking into account the plans of the organisation and the ratio of debt to capital (Op. Ag. Art. 5.1 and 2).192 The share capital is derived from investment shares contributed by the Signatories (Op. Ag. Art. 7.4). These shares have four types, a mandatory minimum investment share, a mandatory investment share proportionate to the use of the system, an additional mandatory investment share, and a voluntary investment share (Op. Ag. Art. 6.1). The proportions in which these elements are used to form the share capital is a matter for the Committee (Op. Ag. Art. 6.1 ad fin). The mandatory minimum investment share is 1 per cent of the share capital, but that may be revised by the Committee if required (Op. Ag. Art. 6.2). The mandatory investment share for each Signatory is revised annually having regard to the use it has made of the system (Op. Ag. Art. 6.3). Any increase in the additional mandatory investment share is proportionate to a Signatory’s investment share. Investment shares are recalculated on the entry or withdrawal of a Signatory (Op. Ag. Art. 6.7). Although ordinarily shares are calculated in freely convertible funds selected by the Operations Committee (Op. Ag. Art. 7.1.1 and 7.2), it is possible for services and other resources contributed by a Signatory to be taken into account and quantified for the purpose (Op. Ag. Art. 7.1.2). By Op. Ag. Art. 8 an investment share may be reduced, provided that other Signatories take up the obligation involved, and operates to augment the voting weight of any Signatory making the extra contribution, but reduction below the minimum investment share is not competent (Op. Ag. Art. 8). The other source of funding for INTERSPUTNIK is the revenue from the use of the system. As noted above, the Operations Committee sets the tariffs for usage which are such as to cover costs and make a profit (Op. Ag. Art. 9.1). Revenue is used to pay for leasing, operational and maintenance charges and for other necessary operations, and thereafter any sums remaining go to the Signatories as dividend in proportion to their contribution to the share capital and any profit is similarly distributed (Op. Ag. Arts 10.2 and 3). Should revenue not meet running

191 �� Is there a distinction between holding ‘office’ and being an employee for this purpose? 192 �� Interestingly debts and credits in the share capital are expressed in US dollars (Op. Ag. Art. 5.2). Given fluctuations in the US currency, this may change.

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costs any deficit is met first from reserves, second from the additional mandatory investment shares, or last from external funding sources (Op. Ag. Art. 10.5). Such, then, is the transformed INTERSPUTNIK. As commented above, the new arrangements have close resemblances to the definitive INMARSAT prior to its privatisation. The new organisation is functioning now (2008) with twentyfive members.193 With the exception of Cuba, Nicaragua and the Yemen, these are located relatively closely together. The membership and the service areas provided for being largely territorially confined, the ‘global’ aspect of INTERSPUTNIK is therefore on one argument tenuous. INTERSPUTNIK itself presently (2008) operates five geostationary satellites in the Express and Express-AM series and another which is joint-venture with Lockheed Martin. It also provides coverage through transponders on INTELSAT 904 SI and EUTELSAT W4.194 However the organisation also provides global services through its many trading and commercial links with other satellite networks and service providers, links which are now co-ordinated through a wholly owner subsidiary Intersputnik Holdings Ltd, established in 2005.195 Other Telecommunications Providers ARABSAT196 The Agreement of the Arab Corporation for Space Communications (ARABSAT) was signed by twenty-one parties on 14 April 1976.197 Members of the organisation 193 �� Afghanistan, Azerbaijan, Bulgaria, Belarus, Cuba, Czech Republic, Georgia, Germany, Hungary, India, Kazakhstan, Kyrgyzstan, Laos, Mongolia, Nicaragua, North Korea, Poland, Romania, Russian Federation, Syria, Tajikistan Turkmenistan Ukraine, Vietnam and Yemen. 194 �� For INTERSPUTNIK coverage see its site map at http://www.intersputnik.com/. The INTERSPUTNIK Service Regulations, including the procedures for access to the space segment and for ground station approval are also available through the site map. ISR-401 is particularly important. 195 �� See http://holding.intersputnik.ru/eng/. According to last paragraph of a press release of 1 October 2004 on the occasion of Azerbaijan joining the organisation: ‘Intersputnik provides integrated communications services to broadcasters, telecom operators and corporate customers via the LMI-1 satellite (75° E) of Lockheed Martin/Intersputnik joint venture as well as Russian Express-A series satellites. Under corresponding agreements, Intersputnik provides marketing and sales of satellite capacity and telecom services of the Eutelsat system that includes twenty-four communication satellites as well as those of the Gascom system (Yamal-200-series satellites). The Intersputnik system incorporates about 150 ground stations for trunk links and more than 1500 VSAT and TV distribution terminals.’ See www.intersputnik.com/press_300904.htm. 196 �� Lyall, 304–10. 197 �� 1185 Official Gazette of the State of Bahrain, 22 July 1976 (Amiri Decree no. 25/1976), Gulf Public Relations Translation Service trans., Space Law: Selected Basic

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are states, and there is no provision for any ‘membership’ equivalent to that of the Signatories of INTELSAT. The Agreement entered into force in February 1977, and the organisation was set up with its headquarters in Riyadh, Saudi Arabia, with branches in other countries (Art. 4(2)). Membership of ARABSAT is open to members of the Arab League (Art. 23) who contribute to the capital requirements of the organisation (Art. 4(2)) by ratification of the Agreement or accession to it (Art. 20). Withdrawal is competent on one year’s notice although a withdrawing member remains liable for obligations contracted by the organisation up to the effective date of withdrawal (Art. 17). The structure of ARABSAT is tripartite with a General Assembly, a Board of Directors and an Executive Organ headed by a Director General.198 The General Assembly consists of the Ministers of Communications of all member states or their representatives (Art. 10(1)). In addition observers may attend, those from organisations that share the objectives of ARABSAT being approved by the Assembly (Art. 10 (7)), while observers from the Arab League, the Arab States Broadcasting Union, the Arab League Telecommunications Union and the Arab League Educational, Scientific and Cultural Organisation are named as entitled to attend by the Agreement itself (Art.10 (7)). A majority of members form a quorum (Art. 10(5)). Each member has one vote (Art. 10(1)). Decisions on procedural matters require a simple majority, while substantive matters require a two-thirds majority of those present and voting (Art. 10 (6)). The functions of the Assembly listed in Art. 11 include setting general policy, planning, rate setting rates for the use of the space segment, general specification for Earth stations, financial allocations and adjustments, suspension and withdrawal of members, investment shares, budgets and amendments to the Agreement. The Assembly can delegate some of its authority to the Board (Art. 11 (21)). As in the former INTELSAT, the real power within ARABSAT lies with the Board of Directors which consists of nine members from separate states (Art. 12 (1)). Five of the nine represent the states having the largest financial share in the undertaking. In the event of a tie for a seat, the Assembly elects (Art. 12(1)(a)). The remaining four Board members are elected by the Assembly from among those members not entitled to a ‘reserved’ seat. A Board member so elected holds the seat on a rotating basis for two years, and a holding member state cannot be immediately re-elected. Decisions are taken by a simple majority, each Board Documents (2nd ed.), Committee on Commerce, Science, and Transportation; US Senate, 95th Cong. 2nd Sess., December 1978 (USGPO), 449–68; text only (omitting financial protocol) (1977) 5 J. Sp. L. 157–73; 2 Manual 345–60. The original parties were Algeria, Bahrain, Democratic Yemen, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates and Yemen. See also http://www.arabsat.com/Arabsat/English/default.htm. 198 �� We use the terms which ARABSAT itself does, although the translation of the Agreement speaks of a General Body, an Executive Body or Department and a General Manager.

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member having one vote (Art. 12 (6) and (7)). The function of the Board is to execute the policy of ARABSAT as set by the Assembly and to provide and maintain the space segment of the ARABSAT system (Art. 13). It decides on design, procurement and implementation, and subject to the Assembly, on rates for usage, access, capacity and budgets. It also appoints the Director General. The Director General heads the Executive Organ which implements the decisions of the Board. Its personnel are appointed by the Director General with due regard to capability and efficiency, and also with due regard, where possible, to geographic distribution (Art. 14). ARABSAT was at first financed by a capital levy of different amounts based on share units of 0.1 per cent of capital, ranging from 26.6 per cent for Saudi Arabia down to 0.2 per cent. This was later converted to a system based on usage of the system. Shares are reassessed on the accession or withdrawal of members (Art. 6(5)). Up-to-date information on the ARABSAT system is lacking. Other Service Providers For the sake of completeness it should be noted that a number of countries have arranged for the construction and launch of one or more communications satellites, in some instances using satellites with other functions. For example India combines communications facilities with Earth observation in its INSAT series. However, certain satellite telecommunications systems deserve special notice as providing international services. Most of these have now a company structure with investors both private and public. The interlocking within the elements of that structure and cross-over share holding with other telecommunications entities can be complex. In addition it should be noted that various international ‘tele-communities’ exist. Consideration of these lies beyond the ambit of this book. OATS Various South American countries, all parties to the Cartagena Accord of 1969 on regional co-operation, came together in 1988 to form an Andean Telecommunication Satellite Organisation (OATS). This, using the Simon Bolivar satellite located within the GSO arc at 67°W, provides regional satellite services within the Andean Community. In 2007 it revised its regulatory arrangements.199

199 �� We have not been able to find these: the above data is Google-based. See K.-H. Böcksteigel and M. Benkö, eds, Space Law: Basic Legal Documents Part IV B.1 at 973–87 for previous constituent documents. OATS was similar to the original INMARSAT.

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PALAPA The PALAPA system was established to provide domestic telecommunications facilities among the thousands of the inhabited islands of Indonesia.200 The first satellite was launched in 1976 by a government-owned company, Permutel, but the system was operated by Satelindo, an Indonesian private company (PT Satelit Palapa Indonesia; http://satelindo.boleh.com/index.jsp), now wholly owned by INDOSAT. In 1990 following a reordering of Indonesian media companies and privatisation, INDOSAT was created as a general media and telecommunications company (www.indosat.com and www.palapasat.com). In the mid-1980s the PALAPA B series afforded increased coverage in the Asian region, and service agreements were entered into for Malaysia, Singapore and the Philippines.201 Australian customers are also catered for. PALAPA is now operating its Series C satellite (a Boeing HS601 satellite) providing data and voice telecommunications as well as video and direct broadcasting of both radio and television. Thaicom In 1991 Thailand granted a thirty-year concession to Shinawatra Computer and Communications Co. Ltd to arrange for the building and operation of a suitable system for Thailand, the enterprise being known as Thaicom (www. mlesat.com/Thaicom.html). The first Thaicom satellite, built by Hughes Space and Communications Company entered service in 1993. It is understood that four satellites are now operational and providing coverage from Central Europe through to the Asia coasts. The precise arrangements between users of the system and Thaicom are not known to the authors. SES and ASTRA It would be wrong in this narrative and discussion of international satellite communications to omit SES-Global S.A., a private company based in Luxemburg, 200 �� Palapa means ‘fruit of labour’. M.D. Ibrahim, ‘Planning and Development of Indonesia’s Domestic Communications Satellite System’ (2005) 8 Online J. Sp. �� Comm.: http://satjournal.tcom.ohiou.edu/issue8/his_marwah.html. 201 �� Famously, PALAPA B2, launched from the Shuttle in February 1984, failed to reach geostationary orbit. The insurers paid for the loss, and arranged for the Shuttle ‘Discovery’ to retrieve the satellite. (In fact the recovery tool did not work well, and the satellite was caught and lowered manually into the Shuttle bay by the crew – the occasion was captured on photo and became a poster.) The satellite was sold, refurbished and successfully launched in 1990, when it was sold again to Permutel and operated as PALAPA B2R. See Space Shuttle Mission STS-51A, NASA 1985 and H.C. Dethloff, Suddenly, Tomorrow Came, … A History of the Johnson Space Center (NASA SP-4307, 1993; USGPO, 1994) (NASA, www.jsc.nasa.gov/history/suddenly_tomorrow/suddenly. htm), Chapter 15, 285–305 at 291–4.

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and its allied companies which include Astra. SES-Global S.A. is the holding company involved.202 Under Art. 2, the company statutes of SES, which are available on the company website, indicate that its general purpose is to ‘take generally any interest whatsoever in electronic media and to be active, more particularly, in the communications area via satellite’. In 2006 SES Global held a 100 per cent interest in SES Americom, SES New Skies and SES Astra, and is a major shareholder of a number of other satellite service companies, which themselves own in whole or in part yet other companies active in the satellite business sector. SES services are largely broadcast services and dedicated communications links (often for governments), not public communications. The shareholders of SES Global themselves comprise a diverse body of investors.203 In 2006 the SES associated companies operated forty-three satellites on geostationary orbit, providing a worldwide service of all varieties of telecommunications. So far the Astra satellites have been built by Boeing Satellite Systems, EADS Astrium or Lockheed Martin, and launched by Arianespace or International Launch Services.204 US Companies Finally we note that a number of US companies provide domestic and international satellite services. These are all under the supervision and licensing control of the US Federal Communications Commission. Low Earth orbit constellations are Globalstar,205 Iridium,206 and Orbcomm.207 ICO Satellite Management (formerly ICO Communications208) now plans to provide a service from the geostationary orbit.

202 �� For what follows, see the SES website at www.ses-global.com/ses-global/index. php and cf. www.ses-astra.com/corpSite/site_en/index.php. 203 �� Interestingly, under Art. 5 of the SES-Global Statutes no shareholder may hold more than 20.1 per cent of the total shareholding of all classes of shares only if the Government of Luxemburg does not object on grounds of the general public interest, and an extraordinary meeting of the company approves the shareholding by a two-thirds majority vote. This device would seem to ensure that SES-Global is unlikely to fall into single or consortium ownership. 204 �� Arianespace launches from French Guiana. International Launch Services, a joint venture originally owned by Lockheed Martin, Khrunichev Enterprises and RSC Energia, and now by the latter two, launches from the Baikonur Cosmodrome in Kazakhstan using the Proton rocket series. See also Chapter 15. 205 �� Globalstar Inc. runs a forty-satellite system: http://www.globalstar.com/. 206 �� Iridium Satellite LL.C. The Iridium constellation is composed of some sixty-six satellites, with additional back-up spares in orbit. Apart from commercial users it is also used by the US Department of Defense. See http://www.iridium.com/. 207 �� Orbcomm, Inc. has a twenty-nine-satellite constellation (http://www.orbcomm. com/). 208 �� See supra at n. 119 ff.

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Privatisation, Modern Conditions and the World Public Interest Privatisation In the early 1990s the international global satellite telecommunications organisations were providing the services for which they were created and going a long way to meeting the aspirations of the UN Resolutions of thirty years before.209 Their structures seemed to be working well, and an outsider might have expected that to continue, but for a variety of reasons that expectation was falsified. Privatisation of the INTELSAT, INMARSAT and EUTELSAT organisations has happened. The vision of the 1960s was of a satellite telecommunications system operating in the general world public interest. The question therefore must be asked whether the developments of the 1990s and later serve that interest, either to the same extent, or at all. The reasons for the transmutation of the major Western satellite telecommunications service providers are many and various. They are not entirely coherent, nor are they mutually consistent. Not all were clearly expressed or in some cases adequately revealed. What factor influenced which party and to what extent cannot always be determined, or ascribed to sources. However, a common determination emerged that privatisation should go ahead that was sufficient for the variant premisses on which the different parties operated to be glossed over, or at least to be not fully acknowledged. Mutatis mutandis much the same arguments can be made as to INTELSAT, INMARSAT and EUTELSAT. In fact as will be seen from the dating in the narrative above, INMARSAT was first to privatise. INTELSAT, however, as the largest organisation provides better material since the reasoning behind its privatisation covers most elements and the push for its privatisation seems to have started first.210 INTERSPUTNIK is somewhat different and it seems unlikely to privatise on the Western model in the near future. In general the reasons, justifications and excuses for privatisation are many.211 In the 1980s Thatcherism and Reaganomics occurred and many ideas as to the 209 �� Part D, International Cooperation in the Peaceful Uses of Outer Space, UNGA Res. 1721(XVI) (1961), 20 December 1961; Part E.3, International Cooperation in the Peaceful Uses of Outer Space, UNGA Res. 1802 (XVII)(1962), 19 December 1962. 210 �� F. Lyall, ‘On the Privatization of Intelsat’ (2000) 26 J. Sp. L. 101 at 105–110; or 2001 5 Sing. J. Int. and Comp. Law. 111 at 116–121. Cf. ‘Market Developments in the Global Satellite Services Industry and the Implementation of the ORBIT Act’, Testimony of J.Z. Hecker before the (US) House of Representatives Subcommittee on Telecommunications and the Internet, Committee on Energy and Commerce, 14 April 2005, GAO-05-550T: http://www.gao.gov/new.items/d05550t.pdf. 211 �� Cf. M.A. Einhorn, ‘INTELSAT: A Reform Proposal’ (Economic Analysis Group, Antitrust Division, US Department of Justice) AG 96-6, 15 July 1996 (www.vii.org/papers/ einhorn.htm); I. Goldstein, ‘INTELSAT: Transforming a Market Leader to Meet Changing Global Telecommunications’ (1994–5) 47 Fed. Comm. L.J. 243–49; B.W. Rein and C.R. Frank, ‘The Legal Commitment of the United States to the INTELSAT System’ (1989) 14

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proper role of the state changed. Competition came to be seen as preferable to monopoly in the public interest.212 Governments divested themselves in whole or in part of responsibility for rail and air services. Postal services were privatised or opened to competition by new private companies. A similar pattern appeared in the explosive growth of the high-technology telecommunications industry in the 1980s and 1990s. Many states moved to deregulate and privatise telecommunications services, and new companies were allowed to seek to share in both national and international telecommunications markets. Indeed, telecommunications became part of global business and came to be considered less as a public service and more as a commercial enterprise. As such telecommunications have now been swept into questions of international trade as that arena has extended from trade in goods to trade in services.213 INTELSAT could not be immune from the underlying premisses of such developments. As an international organisations possessing immunity it was said that INTELSAT214 had no ready access to the international financial market and was unable to act as ordinary commercial enterprises since commercial funding sources could be reluctant to lend without the ability to take and enforce an adequate security interest. On the other hand there was evidence that on occasion it could borrow at rates unavailable to its potential competitors, which might amount to unfair competition.215 Again in that investment in INTELSAT came only through the Signatories, there was an argument that privatisation would N. C. J. Int. L. and Com. Reg. 219–37; A.M. Field, ‘INTELSAT at a Crossroads’ (1994) 25 Law and Pol. Int. Bus. 1335; R. Frieden, ‘Privatisation of Satellite Corporations: Smothering a Golden Goose?’ (1996) 36 Va. J. Int. L. 1001. 212 �� It is difficult to underestimate the effect within Europe of the requirements of the EU as to competition in what was originally conceived of as ‘The Common Market’. Cf. F. Lyall, ‘Privatisation, Jurisprudence and Space’ (1999) 42 Proc. IISL 149–58, and, from an earlier age, P.F. Cowhey, ‘The International Telecommunications Regime: The Political Roots of Regimes for High Technology’ (1990) 44 Int. Org. 169–99. 213 �� World Trade Organisation: Agreement on Telecommunications Services (Fourth Protocol to the General Agreement on Trade in Services) (1997) 36 ILM 354–95. Cf. A. Henderson, I. Gentle and E. Ball, ‘WTO Principles and Telecommunications in Developing Countries: Challenges and Consequences of Accession’ (2005) 29 Telecom. Policy 205– 221. The US commitment to the WTO Fourth Protocol is in the FCC Disco II decision: Amendment of the Commission’s Regulatory Policies to Allow Non-U.S.-Licensed Space Stations to Provide Domestic and International Satellite Service in the United States, Report and Order, 1997 12 FCC Rcd 24094. See also the Disco II, First Reconsideration Order, IB Docket no. 96–111, 1999 15 FCC Rcd 7207. 214 �� INTELSAT’s immunity in the US was discussed inter alia in Alpha Lyracom Space Communications v COMSAT Corp. 968 F. Supp. 876; 1996 US Dist. LEXIS 12915; 1997-1 Trade Cas. (CCH) P 71,679. 215 �� Cf. Testimony of Jack Gleason Acting Associate Administrator, Office of International Affairs. NTIA, on ‘International Satellite Reform’, Sub-Committee on Communications of the Committee on Commerce, Science, and Transportation, US Senate, 30 July 1997 (www.ntia.doc.gov/ntiahome/congress/gleason.html) indicating that in January 1993 INTELSAT was able to place investment notes due in 2000 at 6.75 per

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allow private investors to contribute and benefit from the business opportunities which it offered. Although in the 1990s INTELSAT finances were healthy it was suggested that might change were INTELSAT revenues to lessen through loss of market share to new competitors offering both satellite and fibre-optic cable services.216 Some argued further that INTELSAT did not compete on that mythical ‘level playing field’.217 This argument had two prongs: that the privileges of INTELSAT as an international organisation including its tax exemptions, was an unfair distortion of competition in broad, and that the designation by each member state of a Signatory through which access to the INTELSAT system was given meant Signatories had a privileged position and ipso-facto were anti-competitive.218 INTELSAT was alleged to be slow, inefficient and unable to meet the challenge of new competitors and emergent telecommunications technologies. Re-modelled, a ‘better INTELSAT’ would be leaner, more responsive to market requirements and able to meet competition from other providers including the optical fibre networks which were making inroads in the long-distance telecommunications market. The entrepreneurial ‘Ego’ cannot be ignored: there is a fundamental difference between competition and competitiveness.219 Some governments/Signatories saw that a privatisation would result in them holding the share equivalent to their former investment share which could be sold on the open market thus freeing resources for other uses.220 In the US the original US view remained attractive: that the US should build, manage and operate a global system from which others would take and pay for service. Again the requirements of the Definitive Arrangements as to procurement enshrined the dispersion of contracts and the availability of information as to patents and inventions among many states and enterprises.221 As a result INTELSAT could be considered or presented as a restriction on US enterprise and as a conduit through which contracts and Intellectual Property left US control. The removal, or at least a reduction or alteration of the INTELSAT role was therefore something to be sought. Not unrelated to such notions COMSAT cent, while PanAmSat was burdened with 9.75 per cent, with 11.3 per cent thereafter, and Echostar with 12.75 per cent. 216 �� That INTELSAT’s profitability might decline were it saddled by debt incurred by purchasers in order to buy it seems not to have been considered. 217 �� It is curious how many advocates of the ‘level playing field’, not only in telecommunications, consider the field level only when they are standing on the pitcher’s mound. 218 �� Cf. R. Frieden, ‘Privatisation of Satellite Cooperatives: Smothering a Golden Goose?’ (1996) 36 Va. J. Int. L. 1001–19. ‘Direct access’ to the INTELSAT system weakened this argument, but not many states permitted such access. Cf. text supra at n. 60. 219 �� F. Lyall, ‘Privatisation, Jurisprudence and Space’ (1999) 42 Proc. IISL 149–58, sec. 4, ‘Ego’. 220 �� Where a Signatory had itself been privatised, its duty to make profit for its shareholders could make such a step very attractive. 221 �� INTELSAT Definitive Arrangements (supra n. 38): Ag. Art. XIII, Op. Ag. Arts 16 and 17.

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had been under attack throughout its existence. Some opposed the privileged position within the US telecommunications market which COMSAT possessed by reason of its statutory role as the US Signatory in INTELSAT and as US gateway to INTELSAT facilities. Indeed, some of the argument for the privatisation of INTELSAT was really argument for diminishing COMSAT.222 Finally many business-men saw in the modern telecommunications network an opportunity to make profit were ‘business’ allowed freely to operate. Mutatis mutandis the arguments for privatising INMARSAT included most of those for INTELSAT, but there were additional elements. In terms of membership INMARSAT was always a smaller organisation than INTELSAT, and was roughly only 10 per cent of INTELSAT in terms of revenue and turnover. Its fleet of satellites was also smaller but by the late 1980s the fleet lifetime was coming to an end. Replacement was becoming necessary. A high proportion of INMARSAT members came from the Communist bloc, and the cost of contribution to replacement costs would be difficult to meet. With the collapse of the Communist bloc in 1991 such financial considerations became even more important. However, as noted above in respect of INTELSAT, as an international organisation with immunity INMARSAT did not have ready access to the normal financial sources open to an ordinary commercial enterprise. Privatisation was an avenue of escape from such difficulties. Finally – although it came late in its final form – we must note that the US ORBIT legislation contained an amalgam of many of the above arguments.223 The Openmarket Reorganisation for the Betterment of International Telecommunications (ORBIT) Act of 2000224 amended the 1962 Communications Satellite Act of 1962 by adding a new Title VI, on ‘Communications Competition and Privatisation’. Dealing with both INTELSAT and INMARSAT,225 this new Title (and particularly sub-title B) required the US Federal Communications Commission and the US President to ensure a ‘pro-competitive (sic) privatisation’ of both international organisations. It was difficult for many observers to see how the Act squared with the international obligations binding on the US through its ratification of the INTELSAT Definitive 222 �� Apart from its INTELSAT links, once it lost the INTELSAT Management Services role COMSAT tried to become a supplier of satellite services within the US, for example by providing direct TV to hotel chains. Eventually COMSAT was broken up and sold first to Lockheed Martin and TELENOR (a Scandinavian Company) before being bought by the new INTELSAT in 2002. 223 �� H. Wong, ‘Comment 2001: A Space Legislation Odyssey – a Proposed Model for Reforming the Intergovernmental Satellite Organisations’ (1998) 48 Am. U. L. Rev. 547–88 discusses the House and Senate bills that eventuated as the ORBIT legislation. 224 �� Open-market Reorganisation for the Betterment of International Telecommunications Act, 2000, Public Law no. 106–180, 114 Stat. 48 (2000) [codified at 47 USC § 765f.]. 225 �� Many of the provisions of Title VI as to INMARSAT were redundant when the Act was passed, its privatisation having been accomplished fifteen months earlier.

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Agreements.226 By the new Sec. 644(b) of the COMSAT Act the President and FCC were to ‘take the action necessary to ensure that the United States remains the ITU notifying administration for the privatised INTELSAT’s existing and future orbital slot registrations’, a provision that could not square with international law on the matter. Much was to depend on where the new INTELSAT was incorporated. By Sec. 624 the relationship between INMARSAT and its spun-off company ICO Global Communications Inc. was hedged with restrictions. By Sec. 625 rules were created through which non-members of the World Trade Organisation and states which do not support competition in telecommunications, could (and may still) be penalised. All such steps represented Congressional interference in matters which outsiders might consider to lie entirely within the sovereign competence of other states. It was extraordinary that the legislature of any state should have sought in this way to pre-empt and influence the outcome of sensitive discussions of reform of an international organisation.227 Had another state sought so to do the US reaction may be imagined. That said, the various stages by which this legislation was arrived at and the several Hearings involved make it apparent that many in the US were intent upon the privatisation of INTELSAT basically in their interest.228 Other governments did not assert themselves successfully to oppose these developments. Some were pleased when in signing the ORBIT Act into law on 17 March 2000, President Clinton indicated that he construed certain of the Act’s provisions as advisory rather than mandatory, and that the new INTELSAT should be permitted to compete within the US. However, not all Presidential statements stand the test of time.229 As it happens under the ORBIT Act the FCC 226 �� In 2000 INTELSAT considered invoking the arbitration provisions of its Agreement to deal with this point. The decision not to proceed to arbitration would appear to have been commercially and politically motivated rather than based on a fear that argument as to the international lawfulness of the US legislation was not well-founded. 227 �� In Northpoint Technology, Ltd v FCC, 367 US App. D.C. 170; 414 F.3d 61; 2005 US App. LEXIS 14401, the US Court of Appeals for the District of Columbia Circuit noted (414 F.3d 61 at 72) that: ‘The ORBIT Act, passed in 2000, compels the privatization of the International Telecommunications Satellite Organization, or INTELSAT, the US-based, 143-nation, international satellite consortium created by the Communications Satellite Act of 1962. It primarily protects and regulates INTELSAT and other US-based international or global satellite service providers.’ Such ‘compulsion’ is contrary to International Law. Also we again note the assertion that INTELSAT was created by the COMSAT Act of 1962, cf. supra n. 25. 228 �� P. Salin, ‘New US Space Legislation affecting World-wide Satellite Communication Regulations’, in International Organisations and Space Law, Proceedings of the Third European Centre for Space Law Colloquium (ESA SP 442) (Noordwijk, The Netherlands: ESA, 1999) 387–94; J.M. Logsdon, ‘The United States, the Only Space Superpower’ (1997) Space Policy 273–7. 229 �� Cf. the early suggestions that the Ariane programme was redundant as the US would guarantee to accommodate ESA payloads on the Shuttle. However, all non-US launches which had been booked on the Shuttle were suspended in the aftermath of the

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makes annual reports to Congress as to how the Act is operating. The tenor of these make it plain that the FCC now considers INTELSAT to be a US enterprise, albeit that some of the new company structures are incorporated elsewhere. INTELSAT now has to get FCC permission for most of its operations.230 The new INMARSAT operating company is also under FCC scrutiny and reported on under the ORBIT Act although it is incorporated in the UK and subject to that jurisdiction, while other elements of its new structure are incorporated in Bermuda.231 The World Public Interest So where does this leave us? Have the hopes of UNGA Res. 1721 of 1961 been met? The answer must remain uncertain. It is true that satellite telecommunications are generally available. In the main the satellite systems are available without discrimination. In the main, thanks to the multiplicity and interconnectivity of systems, the networks make global access possible. However, the initial arrangements for international global telecommunications systems were established to provide a public service and to be financed by the members of the organisations that established them and by operational revenues. Their purpose was to establish systems that served the world public interest. They were self-financing and to an extent non-profit-making. That has certainly changed with the facts of the privatisation of INTELSAT, and may have changed with the privatisation of INMARSAT and EUTELSAT. The problem of privatisation is that the concern of the ultimate owners is shareholder value. This may involve the manipulation of finance as much as Challenger incident of 1986. Cf. also US attempts to dissuade Europe from embarking on the Galileo GPS Programme – see Chapter 12 – ‘Galileo’. 230 �� For an example as to the relocation of a satellite see, In the Matter of Intelsat North America, LLC; Application to Modify the INTELSAT 602 Authorization to Relocate INTELSAT 602 from the 50.5° E.L. Orbital Location to the 150.5° [degrees] E.L. Orbital Location; Request for Special Temporary Authority for INTELSAT 602 to stop drift at the 150.5° E.L. Orbital Location, File no. SAT-MOD-20050512-00098; SAT-STA-2005052700111; 20 FCC Rcd 11833; 2005 FCC LEXIS 3701; release no. DA 05-1904 adopted 29 June and released; 30 June 2005, together with related material of 21 April 2005 at 20 FCC Rcd 8127; 2005 FCC LEXIS 2384. 231 FCC Report to Congress under the ORBIT Act, See 15 FCC Rcd 11288, 2000 FCC LEXIS 3106; ibid. 2001 16 FCC Rcd 12810, 2001 FCC LEXIS 3272; ibid. 2002 17 FCC Rcd 11458, 2002 FCC LEXIS 2995; ibid. 2003 FCC Rcd 12525, 2003 FCC LEXIS 3315; ibid. 2004 19 FCC Rcd 10891; 2004 FCC LEXIS 31125; 32 Comm. Reg. (P & F) 737; ibid. 2005 20 FCC Rcd 11382; 2005 FCC LEXIS 3369; 36 Comm. Reg. (P & F) 120; ibid. 2006 21 FCC Rcd 6740; 2006 FCC LEXIS 3463; 38 Comm. Reg. (P & F) 887; ibid. 22 FCC Rcd 11347; 2007 FCC LEXIS 4672; 41 Comm. Reg. (P & F) 966; ibid. 2008 FCC LEXIS 5035; 45 Comm. Reg. (P & F) 444.

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the provision of service although that obviously remains of importance. In 2005 INTELSAT bought PanAmSat, the major US domestic satellite communications provider and to finance the purchase put up the assets of INTELSAT as security. What will happen if INTELSAT goes bankrupt? Might global services be disrupted? Might the owners of INTELSAT shrug off the public service obligations of the revised INTELSAT Agreements by going through a bankruptcy procedure? Again, the dividends payable by INTELSAT to its shareholders have been increased. All this may be ‘natural business practice’ since the interests of the ultimate ‘owners’ (pension funds) must be to seek as large a return on investment as possible, not to mention the officers of the relevant ‘funds’ whose salaries and bonuses depend on the profits they extract from the funds they manage. However, it is a question how far the provision of international public telecommunications services may be compromised as a result. How long will the ‘life-line connectivity contract’ system remain? The current INTELSAT Boards do not now have any Directors with the specific function of geographic representation or an ability to block unwelcome decisions, so how committed is the new INTELSAT to the older concepts of worldwide service? If the principle of a single price for the same service worldwide that was the rule under Definitive INTELSAT is departed from, how does that affect the international telecommunications capabilities of countries?232 Similar questions may be posed in the other privatisations. These are difficult matters. Some argue for allowing commerce to be ruled by market forces as the best way to organise. However, we note that in private law the operation of an enterprise purely in the interest of its shareholders is being departed from. It is becoming more common to consider that a commercial enterprise has ‘stakeholders’. Stakeholders are those affected directly or indirectly by the actions of the enterprise. While including the shareholders, stakeholders can also include employees, pensioners and those for whom the enterprise provides a service.233

232 �� INTELSAT Op. Ag. Art. V(d). �� See supra at n. 55. 233 �� ‘Stakeholder interests’is a developing field.A. Friedman and S. Miles, Stakeholders: Theory and Practice (Oxford: OUP, 2006). Cf. S. Greathead, ‘TheMultinational and the “New Stakeholder”: Examining the Business Case for Human Rights’ (2002) 35 Vand. J. Transnat. L. 719–28; M.J. Lowenstein, ‘Stakeholder Protection in Germany and Japan’ (2002) 76 Tul. L. Rev. 1673–90, part of a Symposium on ‘Socio-Economics and Corporate Law: The New Corporate Social Responsibility’ (2002) 76 Tul. L. Rev. 1187–748. Cf. Sec. 172.1 of the (UK) Companies Act 2006 (c. 46) under which a company director in performing his duty to promote the success of the company: ‘must act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole, and in doing so have regard (amongst other matters) to (a) the likely consequences of any decision in the long term, (b) the interests of the company’s employees, (c) the need to foster the company’s business relationships with suppliers, customers and others, (d) the impact of the company’s operations on the community and the environment, (e) the desirability of the company maintaining a reputation for high standards of business conduct, and (f) the need to act fairly as between members of the company.’ While these

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The concept can also be applied in international environmental law.234 Notions of the ‘stakeholder’ as all those affected could usefully inform discussion and decisions as to the activities of international telecommunication entities and the operation of monitoring organisations such as ITSO and IMSO. We also note that many countries curb the ‘free market’ with regulators with powers both to ensure fair competition, and to prevent the abuse of a dominant position. There may be a case for an international telecommunications regulator acting in the world public interest and supervising the international public trust. The ideal that ‘communication by means of satellites should be available to the nations of the world … on a global and non-discriminatory basis’ requires to be secured.235 The role of IMSO as to compliance with public service obligations might provide an avenue through which international telecommunication providers could be obliged by inter-state agreement to assume and discharge such obligations. Only the ITU could provide such regulation. We return to these questions in Chapter 18.

requirements are indefinite, they do indicate a set of considerations wider than serving the interests of shareholders only. 234 �� A.S. Rieu-Clarke, ‘Overview of Stakeholder Participation – What Current Practice and Future Challenges – Case Study of the Danube Basin’ (2007) 18 Colo. J. Int. Env. and Pol. 611–32. The use of many international rivers is governed by agreements between their co-riparians: cf. the International Law Commission drafted Convention on the Law of the Non-Navigational Uses of International Watercourses, 21 May 1997, UNGA Res. 51/229; A/51/49; (1997) 36 ILM 700-20 (not yet in force) and the ILC discussions thereanent. 235 �� Part D, International Cooperation in the Peaceful Uses of Outer Space, UNGA Res. 1721(XVI) (1961), 20 December 1961. Cf. Part E.3, International Cooperation in the Peaceful Uses of Outer Space, UNGA Res. 1802 (XVII)(1962), 19 December 1962.

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Chapter 12

Global Navigation Satellite Systems Introduction The global navigation satellite system (GNSS) was identified as a potential benefit of space quite early in the space age. Accurate knowledge as to the location and velocity of spacecraft is essential. One spin-off from the technology required to provide such data has proved to be a most interesting matter of law – satellites providing accuracy of time and location for terrestrial purposes. Interest in GNSS has increased in recent years, with UNISPACE III, 1999, providing an impetus on the international stage. Global Navigation Satellite Systems are space-based positioning and navigation systems designed to provide worldwide, all weather, passive, three-dimensional position, velocity and timing data. Originally designed for military purposes, they are now also commonly used for many civilian purposes including the navigation and positioning of airplanes, ships, trains, cars and the fleet management of

J.T. Hayward, ‘Space Technology for World Navigation’, in S. Ramo, ed. Peacetime Uses of Outer Space (New York: McGraw-Hill, 1961) 55–84; �� C.W. Jenks, Space Law (London: Stevens, and New York: Praeger, 1965) 268–9. Time is now set internationally by reference to Coordinated Universal Time (UTC), the successor of Greenwich Mean Time since 1961, which is determined by a complex scientific process, worldwide accuracy being co-ordinated and maintained by time signals. Curiously one of the first problems caused by space technology was the interference of Sputnik I signals with the time broadcasts. Radiolocation remains important, particularly for aviation, the five volumes of Annex 10 to the Chicago Convention detailing PANS and SARPS on ‘Aeronautical Telecommunications’ (see infra n. 87). Particular spectrum bands are allocated within the ITU Radio Regulations for GNSS services. See Report of the Action Team: Follow-Up to the Third United Nations Conference on the Exploration and Peaceful Uses of Space (UNISPACE III) (UN: ST/SPACE/24, 2004) (‘UN Report, 2004’). �� E. D. Kaplan and C. Hegarty, Understanding GPS: Principles and Applications, 2d ed. (Boston, MA: Artech House, 2005). See Galileo Applications: http://www.galileoju.com/doc/Maritime.pdf. See Galileo Applications: http://www.galileoju.com/doc/Rail_Applications.pdf.

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trucks, as well as satellites. Fishermen, farmers, surveyors10 and hikers use the systems. They can be used to track individuals,11 including children12 and criminal offenders,13 and questions of human rights and privacy can arise.14 The technology is even used to time-stamp contractual agreements, which can be crucial for example in currency and other financial transactions.15 The service offered by GNSSs can be viewed as being similar to the Internet. Both are global, easily accessible with appropriate technology, and free. The use of GNSSs is spreading almost as quickly and as widely as that of the Internet. The technology is developing rapidly. Both GNSS and the Internet are dual use; that is both have military and civilian uses, and the military had a significant role in their See Galileo Applications: http://www.galileoju.com/doc/Road_Applications.pdf. See Galileo Applications: http://www.galileoju.com/doc/Agriculture%20&%20Fis heries.pdf. See Galileo Applications supra; J.C. Kluge, ‘Farming by the Foot: How SiteSpecific Agriculture can Reduce Nonpoint Source Water Pollution’ (1998) 23 Colum. J. Env. L. 89–135. 10 P.B. Larsen, ‘Use of Global Navigation Satellite System (GNSS) Evidence for Land Surveys: Legal Acceptability’ (1995) 38 Proc. IISL 285–93. 11 K.E. Edmundson, ‘Global Positioning System Implants: Must Consumer Privacy be Lost in Order for People to Be Found?’ (2005) 38 Ind. L. Rev. 207–38. 12 A UK retailer, Bladerunner, sells jackets which can be tracked by GPS technology and appropriate mapping tools: http://www.bladerunner.tv/product/details. php?id=CHILDRENS. In December 2007 it was suggested that sufferers from Alzheimer’s could be similarly tracked were they to wander from their accommodation. The idea will spread. 13 Some US states (e.g. Florida, Missouri, Ohio, Oklahoma, South Carolina and Wisconsin) require sex and other offenders to be so tracked after liberation: cf. http://www. isecuretrac.com/, a provider of the technology. See also Mickelson v US, 433 F.3d 1050; 2006 U.S. App. LEXIS 256, where the Court of Appeals for the Eighth Circuit permitted GPS tracking as a condition of release of a convicted person. R. (on the Application of Gulliver) v Parole Board �� [2006] EWHC 2976 (Admin), shows the use of similar tracking in the UK. 14 US v Garcia (2007) 434 F.3d 994, cert. denied, US Sup. Ct. 1 Oct 2007; 2007 U.S. App. LEXIS 2272, held that the use of a GPS tracking device attached to the defendant’s car was not a violation of the Fourth Amendment of the US Constitution prohibiting unreasonable searches and seizures. In Garcia, Kyllo v US (2001) 533 U.S. 27; 121 S. Ct. 2038; 150 L. Ed. 2d 94; 2001 U.S. LEXIS 4487, in which the Fourth Amendment was held to be breached by the use of a thermal-imaging device on a house where the growing of marijuana was suspected, was distinguished. See Case Note: (2006–2007) 120 Harv. L. Rev. 2230–7. See also Hinkley v Roadway Express, 2007 U.S. App. LEXIS 21938, on the use of GPS data for disciplinary purposes (appeal pending). Cf. ‘On Your Tracks: GPS Tracking in the Workplace’, (US) National WorkRights Institute: http://www.epic.org/ privacy/workplace/gps-traking.pdf. 15 Cf. http://www.galileoju.com/doc/Finance_Banking_Insurance.pdf; and http:// www.gpsclock.com/gps.html.

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creation. Their universal adoption and acceptance have not been without legal controversies but these have not stopped their progress. Both have developed with considerable speed, and in fact, the two are beginning to be integrated.16 Like the Internet, GNSS offers immediate economic benefits that will further develop. GNSSs operation has three major segments: the space segment, its control and the service users. Precise timing is the basic component of satellite navigation. Atomic clocks on the satellites keep nearly perfect time within nanoseconds. Timing is monitored by a ground control segment that corrects as required. GNSS may be active or passive. In an active system (the Chinese Bedou) a ground receiver interrogates a satellite, and its position is then determined by an interactive process. In a passive system (GPS, GLONASS and Galileo) each satellite in the system continuously broadcasts signals that are intercepted by receivers operated by the users. Depending on the precise location of each satellite, its signal will reach a particular receiver at a marginally different time. The ground terminal receiving equipment is most accurate if signals from three or more satellites are being received. The receivers are pre-programmed to compare the signals and, by integrating the precise times of their reception, to establish where in three dimensions the receiver is located. That data is then mapped onto normal terrestrial cartographic co-ordinates. Suffice it to say that in the near future it will be possible to pinpoint the location of an object or a person to an accuracy of one centimetre.17 The Systems GPS The US space-based radio navigation system, the Global Positioning System (GPS)18 was inaugurated by the orbiting of a total of eleven satellites in the period 1978–85, security considerations being a major emphasis in its development. From 1989 to 1994 the system was expanded to its present configuration, and with later satellites being orbited to replace failing ones. The GPS system comprises a minimum of twenty-four satellites in six orbital planes, each with a period of twelve hours in a circular 20,200 km/10,900 nautical miles orbit inclined at 55° (medium Earth orbit, MEO).19 Currently (2008) seven additional satellites provide 16 Several recently announced mobile phones have a global positioning facility. 17 Seattle Times, 7 November 2005 at C1. 18 On GPS see http://www.gps.gov/; UN Report, 2004 (n. 3) 5–19, paras 10–71; B.M. Orschel, ‘Assessing a GPS-based Global Navigation Satellite System within the Context of the 2004 US Space-based Positioning, Navigation and Timing Policy’ (2005) 70 J. Air L. and Comm. 609–35. 19 US Federal Radionavigation Plan (2008) at http://www.navcen.uscg.gov.pub/ frp2008/2008Federal_Radionavigation_Plan.pdf at B-4 to B-5.

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an increased accuracy and also can be deployed readily whenever a GPS satellite fails. GPS has a number of ground stations round the world that monitor the system. A master control station at Colorado Springs checks the satellite clocks and orbits and updates the navigation message of each satellite.20 Any updating message is transmitted to the satellite by a radio signal from ground antennas at the monitoring stations. Two services are provided by GPS, the Standard Positioning Service (SPS) and the Precise Positioning Service (PPS). The Standard Positioning Service is available to all users without restriction,21 whereas the Precise Positioning Service is available only for US military services, for US government use and for authorised foreign governments and military forces. The latter service uses a special code (the P-code), which, being encrypted, is more difficult to jam than the civilian code (the C/A code – sc. the ‘coarse acquisition’ code). Each GPS satellite transmits signals on two L-band radio frequencies, L.1 in the 1559–1620 MHz band and L.2 in the 1215–1260 MHz band. A third civil signal, L-5, is scheduled to transmit at 1176.45 MHz in the 1164–1215 MHz band. GPS provides global coverage which, for civilian use, is accurate to 13 metres (best)/36 metres (worst) horizontally, and 22 metres (best)/77 metres (worst) vertically. Reliability is 99.94 per cent.22 GPS is constantly being upgraded. The first GPS Block IIR-M satellite, which has two civilian signals effectively separating future military and civilian GPS service, was launched in 2005, and GPS is entering into its third phase of development (GPS III). GPS III satellites will have a greater capability than their predecessors and will be more resistant to jamming than the current satellites. The initial contract for the GPS III satellites includes twelve satellites and launching will start in 2014.23 Military uses of GPS are extensive. Soldiers use GPS positioning to locate themselves on the ground. Military air planes navigate by GPS. Bombs may be 20 This is necessary because an orbit, and therefore the accuracy of its signalling as received on Earth, can be affected by gravitational anomalies, the pressure of the solar wind, and other factors. Though the orbit may be affected minimally, uncorrected signals, travelling at the speed of light, will misinform a receiver. 21 The specific capabilities of this service are available in ‘Global Positioning System Standard Positioning Service Performance Standard’ (2001): http://www.navcen.uscg.gov/ gps/geninfo/2001SPSPerformanceStandardFINAL.pdf. 22 SPS Standard (n. 21) 15, Table 3-6; Figures A-5-1/2 (pp. A-5–6) show how GPS accuracy degrades as a function of latitude. See also US Report, 2004 (n. 3) 16–17, paras 61–3. Cf. discussion in M. Bourbonniere, ‘Law of Armed Conflict (LOAC) and the Neutralisation of Satellites or IUS in Bello Satellitis’ (2004) 9 J. of Conflict and Security L. 43–69 [Lyall/Larsen 515–41]. 23 Space News, 17 September 2007 at 21, and 14 November 2005 at 9. The �� first GPS‑III satellite was launched on 15 March 2008. The whole GPS system will convert to GPS‑III by 2014. �� The introduction of upgraded GPS technology may be compared with the Galileo plans for introduction of its upgraded technology that will begin about 2020. See infra.

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guided by GPS not to mention cruise missiles. Many military uses remain secret.24 In terms of volume civilian use of GPS now surpasses the military use. The duality of the civilian and military uses of GPS is both an advantage and a disadvantage to civilian users. It is an advantage because GPS is funded by the military and might well not exist but for the military connection. However, the military connection can be a liability because of the technical capability of the military pre-emption of GPS, and the degrading or withdrawal of the civilian service.25 That said, GPS is free and the US Government does not plan to impose user charges for the system.26 The US military GPS provider is of the view that, if the GPS service is free for all users, then the civilian users do not have a legal basis for complaint if the service is faulty. The US provider has no appetite for negligence claims from civilian users.27 Within the US the GPS system is the responsibility of a number of US agencies, with the Department of Defense as lead, as is clear from the Federal Radionavigation Plan,28 although that Plan is the responsibility of three Departments, those of Defense, Transportation and Homeland Security. A National Space Based Positioning Navigation and Timing Committee (the National PNT EXXCOM) established in terms of the 2004 Policy Statement on such matters and chaired by the Deputy Secretaries of Defense and Transportation, makes recommendations to the various agencies involved.29 The Federal Communications Commission has also a role. 24 Space News, 12 November 2005 at 16. See discussion of military uses of outer space in Chapter 16. 25 We state this, notwithstanding the White House announcement of 18 September 2007, that procurement of new GPS-III satellites will not have the ability to degrade the civilian signal for the Standard Positioning Service: http://www.whitehouse.gov/news/ releases/2007/09/20070918-2.html. Time will tell. As it is no intentional degradation of GPS signals has occurred since May 2000. That said occasionally the GPS system suffers degradation for civilian services when the system is being tested or re-calibrated. In the UK Ofcom provides an email service to provide notice of such tests: �� http://www.ofcom.org. uk/static/subscribe/select_list.htm. In addition it is known that the weak GPS signals can be interfered with including by small portable equipment: Google ‘GPS jamming’. Cf. E.S. Waldrop, ‘Integration of Military and Civilian Space Assets: Legal and National Security Implications’ (2004) 55 Air F.L. Rev. 157–231 at 207–8. See also Chapter 16 infra. 26 See Presidential Policy Statement on US Space-Based Positioning, Navigation and Timing Policy, 15 December 2004, at III, bullet point 2: http://pnt.gov/policy/ or http://ostp. gov/html/FactSheetSPACE-BASEDPOSITIONINGNAVIGATIONTIMING.pdf. 27 J. Huang, ‘Development of the Long-term Legal Framework for the Global Navigation Satellite System’ (1997) 22-I AASL 585; E.S. Waldrop, supra n. 25 at 213–5; B.E. Ehrhart, ‘A Technological Turned Legal Nightmare: Potential Nightmare Liability of the United States Under the Federal Torts Claims Act for Operating the Global Positioning Service’ (2000) 33 Vand. J. Transnat. L. 371–425. 28 US Federal Radionavigation Plan (2008), supra n. 19. 29 See Presidential Statement, supra n. 26. EXXCOM members include the Departments of Commerce, Defense, Homeland Security, State and Transportation, together with the Joint Chiefs of Staff and NASA: see http://pnt.gov/site.shtml.

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The US GPS is likely to remain the primary common worldwide radio navigation system in the short term until the European Galileo system begins to function, the Russian GLONASS recovers its global capability and other systems including the Chinese are globally operational. GLONASS GLONASS, begun by the former USSR, is the Russian counterpart to GPS and like it is of military origin.30 It was designed and is intended to be a global system with approximately the same number of satellites as GPS. GLONASS satellites orbit in three planes separated by 120° in MEO at c. 19100 km, with a period of eleven hours fifteen minutes, and an inclination of 68.4°.31 GLONASS was made freely available to civilian use when the US GPS was so opened. It provides a standard precision navigation signal for civilians and a high-precision navigation signal access to which is restricted. The accuracy of the civilian signal is 25 metres horizontal and 60 metres vertical with a service performance of 95 per cent.32 According to the UN Report of 2004, intentional degradation of the civilian service is not applied,33 but as seen in the following paragraph that policy was departed from. The system transmits signals at L-1 (1.6 GHz) and L-2 (1.2 GHz) frequencies and performance is monitored and corrected through ground stations in Russia and a central control station in the Moscow region. The GLONASS system achieved a full complement of satellites in the 1990s, but the lifetime of the satellites was then only three to four years. The number of active satellites dwindled since, because of political and economic difficulties in the former USSR in the 1990s, GLONASS did not renew its system or substitute active satellites for those going out of service. The remaining active satellites were concentrated over the territory of the former USSR in order that the USSR successor states could use them for navigation within their several territories. For a time public access to GLONASS was also restricted for reasons of national security. However, Russian Defence Minister Ivanov announced on 15 November 2006 that restrictions on public access would be removed on 1 January 2007.34 He also announced that while the then current number of satellites in orbit had declined to fourteen, the constellation would be increased to eighteen satellites which would 30 The acronym GLONASS is derived from the Russian ‘GLObal NAvigation Sputnik Systems’. As to the system see UN Report, 2004 (n. 3) at 19–25, paras 72–114; and http://www.GLONASS-ianc.rsa.ru. 31 UN Report, 2004 (n. 3) 21, para. 86. As noted in the following text above, recent orbits were in a more elliptical configuration in order to provide service to the USSR successor states. When global service is resumed this will be re-adjusted. 32 �� UN Report, 2004 (n. 3) 22–3, para. 99. 33 �� Ibid. 34 ‘Access Restrictions on Best GLONASS Signal to End’, Space News, 20 November 2006, at 7.

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be sufficient to cover all Russian territory.35 The system is intended to be restored to its full complement of twenty-four satellites by the end of 2008.36 Galileo Now expected to go into service in 2013 at the earliest, Galileo will be the European contribution to GNSSs.37 It is planned as a thirty satellite system orbiting in MEO, although global Galileo will be a less complex system than GPS and is designed to serve only civilian users. This makes a significant difference to system cost. As of 2007 Galileo was planned to cost 3 billion euros (c. US$4 billion): by contrast since 1974 the US Government has spent US$16.3 billion in building and deploying GPS. A number of reasons, not always self-consistent, lie behind the decision to build Galileo given that civilian European users could access either GPS or GLONASS.38 These include, first, the alternatives are controlled by the US and Russian military services and are subject to the decisions of their governments. Second, while both services are currently ‘free to user’ that might not continue; other governments could be asked for a subvention. Third, although access to the other systems is not at present degraded for civilian use, access in the future might be so restricted, or even interdicted.39 Fourth, when the EU was starting to consider such matters the Europe Union Task Force felt that Russia’s then political and financial problems made investment in GLONASS risky and not a credible alternative to GPS.40 Fifth, it was considered unlikely that the US would share control of its system so Europe would be better to have control of a separate navigation and positioning and timing service.41 Sixth, the experience of a European augmentation to GPS has shown 35 The GLONASS system is also to be made available for India from 2008. 36 Information in these paragraphs is compiled from a variety of media sources and Wikipedia. 37 Galileo is a joint effort between the European Union (EU) and the European Space Agency (ESA) and is to be funded by the EU (Space News, 1 June 2008 at 1). As the major funding source the EU is the dominant partner. As to the structure of Galileo see infra. 38 ‘EU Galileo Task Report to Commissioner Neil Kinnock’, 4 June 1999. Cf. ‘Involving Europe in a New Generation of Satellite Navigation Systems’, EU Commission 1999 (54 Final); Project 2001: Workshop on Legal Framework for Privatising Space Activities, Vienna, 1999 (Cologne: Inst. of Air and Space Law, 2000) 210–48. 39 Although the US has said that this capability would be omitted from the GPS III satellites (n. 25, supra), a local jamming system could selectively deny service to civil users within a specific area. Note also that Russia did restrict civilian use of its system in the 2000s (supra n. 34). Finally the US Presidential Policy Statement of 2004 on GNSS (supra n. 26) indicates in Sec. II and Sec. III bullet point 3 that the US will develop its capability to prevent the hostile use of GNSS services generally, and according to Sec. VI may deny access to GPS under appropriate circumstances. 40 EU Task Force (n. 38) at para. 3.2. 41 Similar reasoning lies behind the Chinese and Indian developments noted infra.

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the advantages of a more accurate positioning than that available from civilian GPS.42 An even more accurate service is needed for aviation, navigation and various safety services. Seventh, European space industries and services could be stimulated by the construction and operation of a European GNSS system. Eighth, there were and are legal questions as to potential liabilities arising from reliance on a malfunctioning system, as to which see infra. In terms of its history, Galileo began as part of an EU Commission programme for the greater efficiency of European transportation systems and the greater mobility of people and goods.43 A major step was the approval of the Commission Communication on Galileo of 22 November 2000 which rehearses the history in its Introduction.44 Thereafter, it has to be said, matters became complex. As Galileo was to charge for some of its services, it was hoped that the costs of the enterprise would be contributed to a major extent by the private sector. That has not, however, happened, and in June 2007 the EU Council decided to terminate negotiations with possible private partners.45 It now seems that the EU itself will fund the project, aided by ESA.46 However, it has to be said that as we write the future structure of Galileo is obscure. A Galileo Supervisory Authority was established to own the system by EU Council Regulation no. 1321 (2004) of 12 July 2004, which also provides for the participation of non-EU states that are members of ESA (Norway and Switzerland).47 Headquartered in Brussels the Galileo Supervisory Authority consists of an Executive Director, a Management Team supervising various departments,48 an Administrative Board on which contributing states and the EU Commission are represented, a Technical and Scientific Committee and a System Safety and Security Committee. In May 2007 the Authority signed a co-operation 42 Egnos: see ‘Augmentation’, infra. 43 European Parliament and Council: Decision no. 1692/96/EC, 23 July 1996; OJ L, 228, 9.9.96. See also Commission Doc. COM (1999) – 54 Final, 10 February 1999, ‘Involving Europe in a New Generations of Satellite Navigation Services’, Project 2001: Workshop on Legal Framework for Privatising Space Activities, Vienna, 1999 (Cologne: Inst. of Air and Space Law, 2000), 210–48. 44 COM 2000, 750 Final: http://ec.europa.eu/dgs/energy_transport/galileo/doc/gal_ com_2000_750_en.pdf. 45 Council Resolution on Galileo: 2805th Transport, Telecommunications and Energy Council Meeting, Luxemburg, 6–8 June 2007: http://ec.europa.eu/dgs/energy_transport/ galileo/documents/doc/council080607en.pdf. 46 ‘Progressing Galileo: Re-profiling the European GNSS Programmes’, Commission Communication, COM(2007) 534, 19 July 2007; related Staff Working Document (SEC(2007) 1210); ‘Council Conclusions on the European Galileo and EGNOS Satellitenavigation Programmes’, 2821st Transport, Telecommunications and Energy Council Meeting, Luxembourg, 1–2 October 2007; http://ec.europa.eu/dgs/energy_transport/ galileo/documents/doc/council_conclusions_021007.pdf. 47 Galileo Supervisory Authority: http://www.gsa.europa.eu/. 48 The Departments are: Technical, Concession, Market Development, Finance and Administration, Legal and Personnel.

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agreement with ESA which clarifies their relationship. Procurement is based on EU rules.49 Since 2005 China has been associated with Galileo in research and development through an EU–China agreement on industrial and technical co-operation, but at present China is not represented in the official structure. The current plan (2008) is that Galileo will offer several kinds of GNSS services providing different levels of accuracy. This may alter before the system goes active, but at present planned services consist of: an open access service (corresponding to the GPS Standard Positioning Service); a safety of life service (which GPS is also to offer on the L5 frequency); an encrypted high accuracy commercial service for which Galileo will charge fees; and a Public Regulated Service (PRS) to be used by government agencies that will also be encrypted.50 Galileo intends to guarantee the quality of the high-end service. It will therefore accept liability for defective high quality service, a liability which GPS will not contemplate. Galileo expects that its guarantee of high-end services will attract users and will motivate high-end users to pay its charges. It has to be said that originally the US was not in favour of the emergence of Galileo.51 However, it does recognise that for the foreseeable future there will be more than one GNSS system.52 Accordingly the US and the Galileo states entered into an agreement in June 2004.53 That said, the inception of Galileo may run into difficulties. Even as it was being planned the US raised difficulties as to the radio frequencies which Galileo might use.54 Galileo will have to subcontract for 49 See http://www.gsa.europa.eu/go/gsa/procurement. 50 Cf. the terms of the Cooperation Agreements, infra n. 60. Space News 27 June 2008 carried an item indicating that the encrypted Galileo signal would be used to a considerable extent by the military. See also the ‘PACIFIC’ Project (PRS Application Concept Involving Future Interested Customers): http://www.prs-pacific.eu/. 51 The Presidential Policy Statement of 2004 on GNSS (supra n. 26), indicates that the US intends GPS to remain dominant. There are also considerations of a useful market for US technology if Galileo were to be abandoned. 52 Presidential Policy Statement of 2004 on GNSS (supra n. 26) Sec. III para. 1 list as one of the goals of US GPS policy (no. (4)) the provision of ‘civil services that exceed or are competitive with’ foreign GNSSs. Under Sec. III bullet point 6, while encouraging the foreign development of GNSS services based on GPS, the US also seeks to ensure that foreign GNSSs will be interoperable with civil GPS. This will inter alia provide mutual back-up of separate systems: see infra ‘Inter-operability and Redundancy’ following n. 74. At a minimum the US would want to see the mutual compatibility of systems to avoid interference or hostile interference. 53 �� ‘Agreement on the Promotion, Provision and Use of Galileo and GPS Satellite Based Navigation Systems and Related Applications’, UKTS European Communities no. 2 (2008), Cm. 7384. 54 The matter was solved in July 2007 with an EU/US agreement on frequency usage: http://useu.usmission.gov/Dossiers/Galileo_GPS/default.asp; http://useu.usmission. gov/Dossiers/Galileo_GPS/Jul2607_Civil_Signal_Accord.asp; http://www.msnbc.msn. �� com/id/19976802.

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GNSS equipment, and may have to go to the US for some material. However, because most space assets also have military uses, the US has a strict national security policy on the export of space assets.55 Before granting export licences for US GNSS equipment, the US Government may insist that Galileo space assets be assembled in the US.56 Furthermore, the US Government might veto launches of US-built Galileo space assets by Chinese launch vehicles. This could cause problems because of the financial stake in Galileo acquired by China in recognition of which it might seek to influence the selection of launch providers.57 Again, Galileo will encounter competitive pressure from GPS in its efforts to keep on upgrading its services. As noted, the US is moving to GPS III, a new generation and higher level of technology. Galileo will have to make a similar technological leap in order to stay competitive with GPS – an expensive undertaking. In any event, the initial system of thirty satellites necessary to establish Galileo will all be identical and is expected to serve at least until 2020. The opportunity for Galileo to launch a new generation of technology will therefore not occur until after 2020. We would note that NATO uses GPS, which could encourage the EU if under financial pressure, to abandon Galileo.58 The UK Parliament House of Commons has strongly queried whether the Galileo project should go ahead.59 It does, however, look likely to progress, co-operation agreements having been negotiated with a number of potential users other than the EU members.60 On the other hand none of these agreements is yet in force. 55 See Chapters 14 and 16. 56 However, Sec. V of the Presidential Policy Statement of 2004 on GNSS (supra n. 26) does indicate some flexibility. On export controls see Chapters 14 and 16. Cf. the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies: Basic Documents, Issue 7, 2007, http://www.wassenaar.org/ publicdocuments/index.html. 57 Chinese satellite launch prices are very competitive. For the EU–China cooperation agreement (separate from financial matters) see infra n. 60. The involvement of China raised questions of technology transfer and secrecy. 58 It must be said that abandonment does not now appear very likely. The time to abandon would have been with the collapse of the joint undertaking between government and private investment in 2007. The juggernaut seems to have acquired momentum. See supra n. 46. 59 (UK) House of Commons Transport Committee, Session 2006–2007, 12 November 2007, HC 53 –‘Galileo: Recent Developments’: http://www.publications.parliament.uk/pa/ cm200708/cmselect/cmtran/53/53.pdf. The Committee had earlier expressed reservations as to the project in House of Commons Transport Committee, Session 2003–4, ‘Galileo’, HC 1210 (not available electronically). 60 �� See the Co-operation Agreements on a Civil Global Navigation Satellite System (GNSS) between the European Community its Member States and (1) The Ukraine (Kiev, 1 December 2005) (UK) European Communities no. 11 (2007) Cm. 7199; (2) Israel (Brussels, 13 July 2004) (UK) European Communities no. 10 (2007) Cm. 7200; (3) Morocco (Brussels, 12 December 2006) (UK) European Communities no. 9 (2007) Cm. 7201; (4) China (Beijing 30 October 2003) (UK) European Communities no. 7 (2007) Cm. 7202; (5)

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BeiDou The Chinese BeiDou system is under development.61 Of military origin it is under military operational control. The first phase, Beidou-1, consisting of four satellites (BeiDou 1-A to 1-D), was launched in 2000–2007 to geosynchronous orbit.62 Unlike GPS, GLONASS and Galileo, therefore, Beidou-1 is accessible only within the area of its satellite visibility and signal direction (70–140°E and 5– 55°N). As noted above, unlike the other systems the mode of operation of BeiDou1 is active, not passive. A signal is sent from a user terminal on the ground to the satellites,63 which calibrate the reception of it and transmit the result to a central ground station, which then calculates the location of the origin of the original user signal. That datum is then communicated to the user via the satellite system. The satellites transmit at 2491 MHz and user stations at 1615 MHz. The system has three tracking stations, ground correction stations and mobile user stations. Accuracy is of the order of 100 metres, but this can be increased by differential methods. Up to 150 users can be served at any one time and up to 540,000 per hour. BeiDou-1 is to be replaced. The first satellite of the Beidou-2 (or ‘Compass’) system, which will be expanded into a global system, was launched in April 2007. BeiDou-2 will operate through a mixed configuration of thirty-five satellites, five in geostationary and thirty in medium Earth orbit. As with other systems, one of its services will be restricted to military and government users, while another will provide a free service for civilian users within China affording an accuracy of 10 metres.64 Augmentation The accuracy of existing GNSSs indicated in the separate outlines above is for many purposes insufficient. However, it is possible to ‘augment’ their accuracy making it possible, for example, to use them to land aeroplanes or manoeuvre large ships within docks.65 This is done through sophisticated triangulation and The Republic of Korea (Helsinki, 9 September 2006 (UK) European Communities no. 8 (2007) Cm. 7203. 61 The name ‘BeiDou’ (alt. ‘BeDou’) is derived from the Chinese name for the Great Bear constellation (alt. the ‘Plough’ or the‘Big Dipper’). 62 Beidou 1-A is no longer in use. At present the system uses two satellites with Beidou 1-C as an in-orbit back-up. 63 User terminals are much larger than those for GPS, and require 20 cm antennae. 64 The information is this paragraph has been taken from the SinoDefence.com website: http://www.sinodefence.com/strategic/spacecraft/beidou1.asp and http://www. sinodefence.com/strategic/spacecraft/beidou2.asp, as well as gleaned from media sources and Wikipedia. 65 The US Space-Based Positioning, Navigation, and Timing Policy Statement of 15 December 2004 (n. 26) Sec. I, defines GNSS augmentation as: ‘space and/or ground-based

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the introduction of a third navigational and positioning reference point which may be on a satellite or may be provided by ground-based beacons. Various systems presently exist. The Wide Area Augmentation System (WAAS) was developed and commissioned by the US Federal Aviation Administration (FAA) to interact �� for aviation purposes with the World Meteorological Organisation (WMO) Global Observing System (GOS), but it can�� be used with any suitably adapted GPS receiver.66 WAAS allows accurate vertical and lateral separation of airplanes for all phases of flight, except Category II and Category III flights – these involve landing at particular major US city airports. A Local Area Augmentation System (LAAS) will in the future provide the accurate GNSS augmentation landing at these airports. LAAS will use multiple land-based reference points located at airports. LAAS will be used for parallel runways, runway incursion warnings, high-speed turnoffs, missed approaches, departures and all aircraft surface movements at the airports it will serve.67 Maritime navigation also requires GNSS augmentation, particularly in ports and in narrow navigation channels. The maritime differential service augments the accuracy of GNSS by use of land-based reference beacons which transmit correction messages to maritime users. The US maritime differential GPS Service provides an accuracy better than 1 metre and is available for all US coastal areas and on US navigable rivers. This kind of GNSS augmentation is also available inland in the US through the use of inland towers as reference points. Thus augmented GPS is used for safety management of trains and for many emergency uses, for example to provide location services for ambulances and fire engines. The European Geostationary Navigation Overlay Service (EGNOS) is an all-purpose augmentation system for all kinds of users and it will become an augmentation of Galileo when that system becomes operational.68 EGNOS is a joint undertaking. The EU provides political and financial support for EGNOS under the Telematics Research Program for traffic management. ESA was responsible for the design and development of the EGNOS system. Eurocontrol developed the aviation certification requirements and tested the system.69 EGNOS currently systems that provide users of space-based positioning, navigation, and timing signals with additional information that enables users to obtain enhanced performance when compared to the un-augmented space-based signals alone. These improvements include better accuracy, availability, integrity, and reliability, with independent integrity monitoring and alerting capabilities for critical applications’. 66 UN Report 2004 (n. 3) paras 176–81. �� For the WMO GOS system see http://www. wmo.int/pages/prog/www/OSY/GOS.html. 67 US Federal Radionavigation Plan (2005) (n. 28) Chapter 3. 68 �� See http://www.esa.int/esaNA/egnos.html; www.Galileoju.com; UN Report 2004 (n. 2) paras 169–75. 69 Eurocontrol deals with the safety of air navigation within Europe: http://www.esa. int/esaNA/egnos.html.

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augments GPS by means of navigation payloads on INMARSAT III satellites. EGNOS may also be used to augment GPS outside of Europe. China, Japan, India and some other countries are also establishing systems to augment GPS and eventually other GNSS systems as necessary.70 Naturally Canada is extending its use of GPS with appropriate augmentation.71 Using specifications based on the US WAAS Japan provides augmentation through its Multifunctional Transport Satellite programme (MSAS) and a Quasi-Zenith Satellite System (QZSS).72 An Indian GNSS programme called GAGAN (GPS and Geo Augmented Navigation),73 a project of the Indian Airports Authority and the Indian Space Research Organisation, is scheduled for certification in 2010.74 Inter-operability and Redundancy Logically only a single GNSS is required. Multiple providers use radio spectrum unnecessarily, their satellites occupy orbital positions, and their launches may well increase the space debris problem. However, to argue for a single system is to ignore historical, economic and political realities. There are military reasons for the existence of GPS, GLONASS and BeiDou. Economics and politics are, however, not irrelevant, and these elements are certainly present for the civilian Galileo. However, as the global dependency on GNSSs increases, there are advantages in a multiplicity of systems. Provided that there is either interoperability or that users can access more than one system, a useful redundancy is created. GNSS is inherently fragile. Space debris can knock out satellites, as may solar storms. These last together with terrestrial interference, natural and artificial, may also degrade a GNSS or an augmentation signal.75

70 UN Report 2004 (n. 2) paras 162–203. F. Lyall, ‘Legal Issues of Expanding Global Satellite Communications Services and Global Navigation Satellite Services’ (2001) 5 Sing. J. Int. and �� Comp. L. 227–45 at 230–3. 71 �� UN Report 2004 (n. 2) paras 195–203. 72 �� MTSAT Satellite-based Augmentation System: UN Report 2004 (n. 2) paras 162–4. On QZSS, see UN Report at 165–8. See also the annual ‘Joint Announcement on US–Japan GPS Cooperation’, http://www.mofa.go.jp/region/n-america/us/gps0705.html; http://www. state.gov/g/oes/rls/or/85848.htm and related Technical Working Group Statement; http:// qzss.jaxa.jp/is-qzss/US-Japan_TWG_Statement_24May07Web_Version.pdf. 73 ‘Gagan’ is Hindi for ‘Sky’. 74 UN Report 2004 (n. 2) paras 182–94. http://www.india-defence.com/reports/2239; S.V. Kibe, ‘Indian Plan for Satellite-Based Navigation Systems for Civil Aviation’ (2006) Online J. Space Comm.: http://satjournal.tcom.ohiou.edu/issue9/indian_plan.html. For US–India co-operation in GPS/GNSS see the Joint Statement, http://www.state.gov/g/oes/ rls/or/81450.htm. India may later develop its own regional navigational satellite system. 75 As noted, the GPS system is occasionally unavailable to civilian users when being tested and notice is provided to users in advance (supra n. 25).

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Under any of the foregoing scenarios the multiplicity of systems can provide mutual back-up,76 an advantage increased were there to be full interoperability between them. The case of aviation is perhaps the clearest. On long-range flights an aircraft may pass through the operational area of all the GNSSs together with several area augmentations. A multiplicity of navigation systems requiring airplanes to change from one GNSS provider to another in mid-flight can create an air safety problem. The multiple providers seek to make seamless the use of the multiple systems so that users do not have to be conscious of shifting from one system to another. As we will see the International Civil Aviation Organization (ICAO) adopts uniform navigation standards and recommended practices for all the GNSS systems and the ICAO Assembly has adopted international GNSS guidelines.77 Further co-operative steps are being taken through an informal and voluntary International Committee on Global Navigation Satellite Systems (ICG).78 Wisely the US would as a minimum seek to ensure that non-GPS systems are at least mutually compatible so as to lessen the problems of mutual harmful interference or the hostile use of GNSSs.79 GNSS Law UN COPUOS has evinced an interest in GNSSs, and has encouraged their development.80 All states currently providing GNSS services are parties to the Outer Space Treaty, ARRA, the Liability Convention and the Registration Convention. As far as Galileo is concerned ESA has declared its acceptance of the rights and obligations of ARRA, the Liability Convention and the Registration Convention and the majority of ESA members and the EU are parties to the OST. Effectively therefore GNSS is subject to the normal rules as to the use of outer space.

76 There are potential situations (e.g. very severe solar radiation, or massive space debris caused by military actions in outer space or the ‘cascade effect’ described in Chapter 10) which could adversely affect all the satellite systems simultaneously. In that case the GNSS users will have to fall back on the alternative methods of positioning, navigation and timing that existed before satellite navigation and positioning – if they can remember how to do them. 77 See infra n. 87. 78 The ICG is serviced by UN OOSA, and has a ‘Providers Forum’ in which desirable developments are discussed: see http://www.unoosa.org/oosa/SAP/gnss/icg/ providersforum.html#gps, http://www.unoosa.org/pdf/icg/2007/icg2007-pfE.pdf, http:// www.unoosa.org/pdf/icg/2007/icg2007-jstatE.pdf and http://www.unoosa.org/oosa/SAP/ gnss/icg/providersforum.html. 79 US Presidential Policy Statement, 2004, on GNSS (supra n. 26) Sec. III bullet point 6. See also supra n. 54 as to the US–EU agreement on frequency compatibility for GPS and Galileo. 80 Cf. UNGA Res. 2223 (XXI), 19 December 1966, para. 4.

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As space objects GNSS satellites are subject to the various rules and requirements indicated in Chapter 4. GNSS satellites entered in the registry of a particular state party remain subject to its jurisdiction and control while in outer space.81 The nature of the ownership of a satellite does not change merely because it is in outer space (OST Art. VIII), but the financing of GNSS satellite systems remains subject to national laws. If the space protocol to the 2001 Convention on International Interest in Mobile Equipment (the Cape Town Convention) is in force for a party, then that Convention will apply to financial securities constituted over the satellite.82 By OST Art. VIII, a GNSS satellite found outside the state of registry, if requested, must be returned to that state after proper identification. By contrast, should ARRA apply, its Art. 5 provides that the state that finds a satellite is to make it available to its launching state, but that the expenses incurred in retrieval and return are to be borne by the launching authority.83 Lost GNSS satellites are more likely to be found and retrieved on Earth following an unsuccessful launch rather than while in orbit.84 Under OST Art. VI states ‘bear international responsibility for national activities in outer space … and for assuring that national activities are carried out in conformity with’ the Treaty. By OST Art. III state parties conduct their space activities in accordance with international law, including the UN Charter. This might be thought to impose some restrictions on GNSSs. The GPS, GLONASS and BeiDou systems basically provide a military service although civilians are permitted to use them, a permission that can be withdrawn. It follows that all the UN Charter provisions as to the maintenance of international peace and security (UN Charter Art. 1), non-intervention (Art. 2), the settlement of disputes (Art. 2) and non-aggression (Arts 39–51) have relevance. The use of GNSS as part of a self-defence action would be sanctioned under Art. 51.85 OST Art. IV provides that state parties may ‘not place in orbit around the Earth any object carrying nuclear weapons or any other kinds of weapon of mass destruction’. In that some GNSS systems are dual-use serving both military and civilian purposes they could be used to guide weapons of mass destruction. It does not seem to be argued, however, that they therefore are part of these weapons and prohibited by OST Art. IV. 81 OST Art. VIII: Convention on the Registration of Objects Launched into Outer Space, 14 January 1975; 1023 UNTS 15; (1978) UKTS 70, Cmnd. 7271; TIAS 8480; (1975) 14 ILM 43. 82 Convention on International Interests in Mobile Equipment, UN Doc. no. A/AC.105/ C.2/2002/CRP.3, 16 November 2001: http://www.unidroit.org/english/conventions/mobileequipment/main.htm. The draft Protocol as to Space Assets is at http://www.unidroit.org/ english/publications/proceedings/2004/study/72j/s-72j-13rev-e.pdf. See also Chapter 14. 83 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 22 April 1968; 672 UNTS 119; 1969 UKTS 56, Cmnd. 3997; 19 UST 7570, TIAS 6559; 7 ILM 151; (1969) 63 AJIL 382. Cf. Chapter 4. 84 Satellites in incorrect orbits have been recovered by the Shuttle in an operation paid for by their insurers, refurbished and sold to other users. See p. 102, n. 86. 85 See Chapter 16 on military uses of outer space.

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OST Art. 1 provides that ‘use of outer space shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development’. Further ‘outer space … shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law’. Clearly while GNSS access remains free for civilian users a potential benefit for all is provided by GNSSs.86 However, the language of OST Art. I does not specifically require that all countries or users shall have access to particular space benefits and that must include the GNSS systems. This could be important in international transport were a GNSS system to lock out a user. Notwithstanding, we note that in the case of aviation, the 1998 ICAO ‘Charter on Rights and Obligations of States Relating to GNSS Services’ states that states and aircraft ‘shall have access on a non-discriminatory basis under uniform conditions, to the use of GNSS services’.87 This obligation would apply to all ICAO members, which includes all current GNSS providers. OST Art. IX, provides that state parties shall conduct their activities in outer space ‘with due regard to the corresponding interests of all other States Parties to the Treaty’.88 Consultation may be requested if a state suspects interference with its space activities from those of another party. Further, by OST Art. VII a state may be liable for damage caused by its space object. Liability is, of course, the material of the Liability Convention as well, another treaty which the GNSS providers have ratified.89 What we may call ‘normal liability’ is not in question for GNSS – a crashing GNSS satellite will be dealt with under OST Art. VII or the Liability Convention, failing which the traditional rules as to inter-state damage apply. More interesting is the question whether GNSS providers have liability if their system fails or delivers inaccurate positioning thus causing damage to a user reliant on it. The Liability Convention Art. II provides that a ‘launching state shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight’. Art. III holds a launching state 86 Cf. ‘Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries’, UNGA Res. 51/122, 4 February 1997. 87 ICAO ‘Charter on the Rights and Obligations of States Relating to GNSS Services’, ICAO Res. A32-19 (1998): in ‘Assembly Resolutions in Force (as of 8 October 2004)’ ICAO Doc. 9848. GNSS is provided for in Annex 10 to the Chicago Convention detailing PANS and SARPS on ‘Aeronautical Telecommunications’. 88 Compare UK v Iceland, 1974 ICJ 3 where the Court held that, on the high seas, states have ‘the obligation to pay due regard to the interests of other States in the conservation and equitable exploitation of these resources’. This principle of customary law is articulated in Arts 56–9 of UNCLOS, 1984: UN �� Convention on the Law of the Sea, Montego Bay, 1984, 1833 UNTS 3; (1999) UKTS 81, Cm. 4524. (1982) 21 ILM 1261. 89 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972; 961 UNTS 187; (1974) UKTS 16, Cmnd. 5551; 24 UST 2389, TIAS 7762; (1971) 10 ILM 965; (1971) 66 AJIL 702.

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liable for ‘damage caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on-board such space object by a space object of another launching state’ only if the damage is its fault or the fault of persons for whom it is responsible. What if an aircraft reliant on a faulty GNSS crashes or collides with another aircraft – is absolute liability to be imposed? What if a space-launch reliant on the GNSS of another state goes amiss through defective satellite signals? The language of Arts II and III might at first sight appear to apply to damage caused by reliance on faulty GNSS. However, the Liability Convention has been interpreted by some to apply only to direct damage attributable to a crashing space object or a collision between space objects in outer space. On this view the Liability Convention would not apply to damage caused indirectly through an orbiting GNSS space object transmitting faulty navigation and positioning information.90 On the other hand the language of the Convention does not specifically dictate such a narrow interpretation. Some are of the view that the Liability Convention applies to direct and indirect damages caused by space objects.91 Some states that are not party to the Liability Convention are parties to the OST. Its Art, VII holds launching states liable for damage caused on Earth, in air-space and outer space. Neither Art. VII nor its origin, para. 5 of the UNGA ‘Declaration of Legal Principle Governing the Activities of States in the Exploration and Use of Outer Space’, UNGA Res. 1962 (XVIII) of 13 December 1963, specify the narrow view of liability that is applied by some major space powers. It is an interesting question whether damages could be recovered from a state operating a faulty GNSS system either because of the fault itself (OST Art. VII), or because the fault indicates a failure properly to supervise and control its own space activities or those of its nationals under OST Art. VI. Another question may be whether the national law of a GNSS provider can be brought into play. That is a matter for the several legal systems that may become involved. Some would probably refuse an action through applying a doctrine of ‘sovereign immunity’.92 Other states might apply a doctrine of ‘injurious reliance’ 90 This is the US interpretation expressed at the Senate Hearings on the ratification of the Liability Convention. 91 Cf. Cheng, 506. Several states party to the Convention have not expressed their views on this question. 92 Under the US Foreign Sovereign Immunities Act, 28 USC 1604 et seq., foreign governments enjoy immunity from suit in US courts. GPS is subject to the US laws on governmental immunity because it is provided directly by the government. US governmental immunity is governed by the US Federal Tort Claims Act (FTCA), 28 USC 1346, 1402, 2402–5, 2671–80. The FTCA permits the US Government to be held liable for its negligent acts if those acts are not ‘discretionary acts’ – a term which is not defined in the statute, but cf. Dalehite v United States, 346 US 15 (1954); United States v Union Trust, 350 US 907 (1955). GLONASS and BeiDou are governmental activities. Galileo may claim sovereign immunity although it will charge for high-end use: F.G. von der Dunk, ‘Liability for Global Navigation Satellite Services: A Comparative Analysis of GPS and Galileo’ (2004) 30 J.

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and allow an action. Again, action against the manufacturer of a defective satellite might be contemplated. The solution may be the drawing up of an international agreement on GNSS liability, akin to the Warsaw Convention (1929, as amended93) or the Conventions on Third Party Liability in the Field of Nuclear Energy.94 Other International Law Radio is fundamental to all GNSSs and their augmentations. The navigation and positioning satellites cannot function without clear radio signals. Harmful interference with GNSS radio frequencies creates safety hazards for navigation of airplanes, ships and trains, and its avoidance or elimination is therefore particularly important. GNSS radio signals are weak and as it happens the radio frequencies used by the service providers are all close to each other, increasing the potential of harmful radio interference between the GNSS providers themselves entirely apart from other terrestrial interference. The international use of radio is a matter for the ITU, discussed in Chapter 8. Briefly, Art. 44.1 (195) of the ITU Constitution provides that ITU members shall limit their use of the radio spectrum to the absolute minimum necessary for the services since radio frequencies are a limited natural resource. Such frequencies are to be used rationally, efficiently and economically, and in conformity with the provisions of the Radio Regulations so that all may have equitable access to the resource (Art. 44.2 (196)). Causing harmful interference to other users of the radio spectrum is prohibited by Art. 45 of the ITU Constitution. Under the ITU Radio Regulations various spectrum bands are allocated to particular uses,95 and states should assign frequencies to the users they license accordingly. Assignments in the space bands are given advance publicity through the ITU, and data as to frequencies and satellite orbits made known. Before a firm assignment is notified to the ITU Radiocommunication Bureau an assigning state should try to ensure that no interference will be caused to another user, entering into appropriate negotiations if needed. An assignment is processed by the Radiocommunication Bureau, and, if all is well, is entered on the Master Sp. L. 129–67 [Lyall/Larsen 429–67] at 153–7 (written before the collapse of the projected public/private joint-undertaking arrangement). 93 �� Convention for the Unification of Certain Rules Relating to International Transportation by Air, Warsaw, 12 October 1929; 137 LNTS 11; 49 Stat 3000; (1934) TS 876; 1933 UKTS 11, Cmd. 4284; (1934) 28 AJIL Supp. 84. 94 Convention on Third Party Liability in the Field of Nuclear Energy, Paris, 29 July 1960, 956 UNTS 251; 1969 UKTS 69, Cmnd. 3755; (1971) 55 AJIL 1082. We believe that Supplementary Conventions of 1963 (1963) 2 ILM 685 and 1997 (1997) 36 ILM 1473 are not yet in force. 95 �� The most useful frequencies for GNSS are also sought by Mobile Satellite Service users and mobile phone service providers. That GNSS has major safety, emergency and guidance purposes argues they should be given priority within the allocation process.

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International Frequency Register. Thereafter a registered assignment is entitled to protection from interference by later-comers. Two other international organisations play an important role as to GNSS, the ICAO and the International Maritime Organisation (IMO). Membership of the Convention on International Civil Aviation, Chicago, 194496 includes all states that provide GNSS services. ICAO inter alia regulates safety in the air at the international level. Its Art. 28 requires ICAO parties to provide air navigation facilities in their territories that comply with the international standards and practices which ICAO establishes under powers conferred by Art. 37. In 1998 by Resolution A32‑20 the ICAO Assembly instructed the ICAO Council and the Secretariat ‘to consider the elaboration of an appropriate long term framework to govern the operation of GNSS systems, including consideration of an international convention for this purpose’.97 In the meantime Annex 10 to the Chicago Convention is the vehicle for establishing navigation standards for both GNSS and for augmented GNSS. That said, the Thirty-second ICAO Assembly also adopted a Charter on Rights and Obligations of States Relating to GNSS Services.98 This Charter is not legally binding; it is not part of Annex 10 to the ICAO Convention. However, as the resolution of an Assembly with worldwide competence within its field, it may be considered to be significant. The major elements of the ICAO GNSS Charter are: 1. States recognize that ‘the safety of international civil aviation shall be the paramount principle’ in providing and using GNSS. 2. States and aircraft ‘shall have access, on a non-discriminatory basis under uniform conditions, to the use of GNSS services’. 3. (a) States possess sovereignty over their own air space and the right to control aircraft operation in their sovereign air-space; and (b) GNSS providers shall not restrict states’ control over their sovereign air space. 4. GNSS providers ‘shall ensure the continuity, availability, integrity, accuracy and reliability of such services, including effective arrangements to minimize the operational impact of system malfunctions or failure, and to achieve expeditious service recovery. Such State shall ensure that the services are in accordance with ICAO standards’. 96 �� Convention on International Civil Aviation, Chicago, 7 December 1944 (1944) 15 UNTS 295; 61 Stat. 1180, TIAS 1591; (1953) UKTS 8, Cmd. 8742; 9 Hudson 168; 3 Bevans 944; (1945) 39 AJIL Supp 111; ICAO Doc. 7300/9, 2006: http://www.icao.int/cgi/ goto_m.pl?icaonet/dcs/7300.html. 97 ICAO Assembly Res. A32-20, ‘Development and Elaboration of an Appropriate Long-term Legal Framework to Govern the Implementation of GNSS’: ICAO Assembly Resolutions in force (as of 8 October 2004) ICAO Doc. 9848. 98 ICAO Assembly Res. A32-19, ‘Charter on Rights and Obligations of States Relating to GNSS Services’, Assembly Resolutions in force (as of 8 October 2004) ICAO Doc. 9848.

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5. States shall ‘co-operate to secure the highest practicable degree of uniformity of GNSS services’ including regional and sub-regional services. 6. GNSS charges are to comply with Art. 15 of the Chicago Convention. 7. In planning and providing GNSS services states are to be ‘guided by the principle of co-operation and mutual assistance’. 8. In providing GNSS states are to have due regard to the interests of other states. 9. States may provide GNSS services jointly with other states. Much of this is unexceptionable. However, the suggestion in ‘1’ that safety in civil aviation is the paramount principle in the provision and use of GNSS is at variance with reality. Other uses have an equal claim to importance. That said, we do recognise that the ICAO Communication, Navigation and Surveillance/Air Traffic Management (CNS/ATM) developments rely on GNSSs, and these developments are important.99 ICAO continues to play an important role in the development and use of GNSSs.100 In an effort to control GNSS use, as noted, under A32-20 ICAO is working on a broader legal framework in addition to its GNSS Charter which might include issues such as air navigation, regulation of GNSS providers, liability for faulty GNSS services,101 and related issues. However, as noted, ICAO interests cannot take precedence over those of non-aviation users. The IMO102 is the maritime counterpart to ICAO and there is a considerable overlap in membership of the two organisations. Article 16 of the IMO Convention authorises the IMO to regulate international maritime safety. IMO establishes standards and practices for maritime transportation. Universality and uniformity of GNSS navigation standards for maritime transportation are as important for maritime navigation as are the ICAO standards for air navigation. IMO actively adopts and reviews maritime navigation rules and procedures for navigation by GNSS. GNSS search and rescue functions are also particularly important for maritime activities. In 1997 IMO established a maritime policy for all future 99 CNS/ATM is a major development in aviation. See ICAO Assembly Res. A29-11 on ‘Use of space technology in air navigation’; and A32-15 on consolidated policies and practices as to CNS/ATM. 100 B.D.K. Henaku, The Law on Global Air Navigation by Satellite (Leiden: AST, 1998); J. Huang, ‘Sharing Benefits of the Global Navigation Satellite System within the Framework of ICAO’ (1996) 39 Proc. IISL at 128–31. 101 �� We understand that liability may well not figure in any ICAO proposals since ICAO interest is limited to aviation, while GNSS has a plethora of users represented by many agencies both national and international. Again, relevant GNSS providers may claim state immunity and be unlikely to accede to any treaty-based variation of their rights. 102 Convention on the International Maritime Consultative Organization, Geneva, 6 March 1948; 289 UNTS 48; 1958 UKTS 54, Cmnd. 589; 9 UST, TIAS 4044; (1959) 53 AJIL Supp. 516. The title of the organisation was changed to the International Maritime Organisation in 1975, effective 1982 (35 UST 497, TIAS 10374). For current text see http:// www.imo.org/.

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GNSS systems,103 and since 2000 it has required GNSS receivers to be carried on all ships engaged in international carriage.104 The International Mobile Satellite Organization (INMARSAT) provides and supports global, regional and domestic satellite services, including radio determination and radio navigation. As noted in Chapter 11, INMARSAT has been privatised but the organisation continues its GNSS maritime navigation and safety functions as well as its augmentation support of GNSS through EGNOS. The Future It seems clear that GNSS has an important future. The problems encountered by Galileo indicate that GNSS provision is likely to remain a matter of state action rather than private finance, let alone provision by private enterprise. State cooperation and the inter-operability of systems will be important. Co-operation will also have to extend to action within the ITU to set aside appropriate frequencies, and states will have to ensure that, as the ITU Constitution requires, the best use is made of these resources by the systems. There remains the worrying fact that GNSS is a dual-use facility, and the requirements of the military forces of all providers will remain a fundamental element. Such considerations take us into rather different territory (see Chapter 16). In the meantime we hope that GNSSs will continue to provide their variety of useful services.

103 IMO Res. A860(2), 27 November 1997. IMO Basic Documents. 104 P.B. Larsen, ‘Expanding Global Navigation Services’, Proceedings of the Workshop on Space Law in the Twenty-first Century, UNISPACE III, July 1999 (UN: ST/ SPACE/24, 2004) 155.

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Chapter 13

Remote Sensing Introduction Sensing from space can provide data invaluable for many purposes, ranging from archaeology to meteorology (infra), to disaster management (infra), environmental and other monitoring, to the policing of agreements, not to mention cartography and the delimitation of international boundaries. Sensing �� Commission on Behavioral and Social Sciences and Education (D. Liverman et al.), Peoples and Pixels: Linking Remote Sensing and Social Science (US National Academies Press, 1998): http://www.nap.edu/catalog.php?record_id=5963); R.R. Rowberg, ‘Commercial Remote Sensing by Satellite: Status and Issues’ (UN Cong. Research Services: 2002) (RL31218): http://www.licensing.noaa.gov/RL31218-RemoteSensing.pdf. See also http://rsd.gsfc.nasa.gov/rsd/RemoteSensing.html. �� For NASA data see: http://wwwghcc.msfc.nasa.gov/archeology/. Google ‘remote sensing’ ‘archaeology’ ‘satellite’. Results in March 2008 included: http://www.freerepublic. com/focus/f-news/1973759/posts (Guatemala); http://cipa.icomos.org/fileadmin/papers/ olinda/99c506.pdf (Angkor); http://www.informatics.org/france/resarea.html (Burgundy). See also N. Short, ‘The Remote Sensing Tutorial’: http://rst.gsfc.nasa.gov/. �� The US TIROS-I was launched in 1960 as the first Earth observation satellite. It gathered meteorological data. �� C. Davies, S. Hoban and B. Penhoet, ‘Moving Pictures: How Satellites, the Internet and International Environmental Law Can Help Promote Sustainable Development’ (1999) 28 Stetson L. Rev. 1091–1153; Ginzky, infra n. 9. �� See, for example, http://www.eyesondarfur.org/. �� M. Onoda, ‘Satellite Earth Observation and “Systematic Observation” in Multilateral Environmental Treaties’ (2005) 31 J. Sp. L. 339–411. N. Peter, ‘The Use of Remote Sensing to Support the Application of Multilateral Environmental Agreements’ (2004) 20 Space Policy 189–95. �� In the Case Concerning the Frontier Dispute, Benin v Nigeria, 2005 ICJ 90, Benin referred to SPOT data (para. 41) as did the Chamber to aerial photographs and SPOT (para. 116). In the Case Concerning the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) 2007 ICJ 1, Honduras apparently introduced a satellite photograph as part of its argument (see para. 276). The ICJ has referred to and accepted aerial photography and satellite imagery: e.g. the above cases, Case Concerning Kasikili/Sedudu Island (Botswana v Namibia) 1999 ICJ 1045 at para. 31, 33–6, and Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) 2002 ICJ 303 at paras 88, 90, 93 and 95. There seems no good reason to separate aerial from satellite imagery. Cf. the ICJ Chamber on the probative value of maps: Case Concerning the Frontier Dispute (Burkina Faso v Republic

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for military purposes, whether reconnaissance, compliance with arm control agreements or ‘confidence building’, is hugely important, as indicated in Chapter 16. The use of its product in municipal courts has increased, although this has been the subject of argument. Technical progress has been massive since the early days of remote sensing, but lawyers were early interested in the regulation of the new facility.10 However, when remote sensing from space came on the scene its legal problems were not novel.

of Mali) 1986 ICJ 554 at paras 54–6. Satellite photography has increased the reliability of maps (para. 55) but the weight to be put on maps depends on whether and how they express the will of states (paras 54–6). Photography can illustrate the changing course of a river, but the effect of that evidence will depend on other factors. �� Here we simply cite: 1, Anonymous, ‘Note: Legal Aspects of Reconnaissance in Airspace and Outer Space’ (1961) 61 Col. L. Rev. 1074–1102; 2, C.M. Petras, ‘“Eyes” on Freedom – A View of the Law Governing Military Use of Satellite Reconnaissance in US Homeland Defense’ (2005) 31 J. Sp. L. 81–115; 3. D.A. Koplow, ‘Back to the Future and Up to the Sky: Legal Implications of Open Skies Inspection for Arms Control’ (1991) 79 Cal. L. Rev. 421–96. �� The admissibility of remote sensing data is subject to the requirements of a national court as to scientific data, including reliability, the chain of custody and data security. Different courts may apply different and different levels of requirements: cf. the US reasoning in Daubert v Merrill Dow Pharmaceuticals Inc. (1993) 509 US 579; 113 S. Ct. 2786; 125 L. Ed. 2d 469, 1993 US LEXIS 4408, and cases it cites in considering and departing from Frye v United States (1923) 54 App DC 46, 293 F 1013, 34 ALR 145 (Daubert, cert. denied, 516 US 869; 116 S. Ct. 189; 133 L. Ed. 2d 126). See H.A. Latin, G.W. Tennehill and R.E. White, ‘Remote Sensing Evidence and Environmental Law’ (1976) 64 Cal. L. Rev. 1300–446; L.J. Steele, ‘The View from on High: Satellite Remote Sensing Data and the Fourth Amendment’ (1992) 6 High Tech. L.J. 317–34; C Artz, ‘Use of Satellite Imagery in Legal Proceedings’ (1999) 24 Air and Sp. L. 195–203; H. Ginzky, ‘Satellite Images in Legal Proceedings relating to the Environment – a US Perspective’ (2000) 25 Air and Sp. L. 114–28; R. Abeyratne, ‘The Use of Satellite Imagery as Evidence in Pre-Trial and Trial Hearings’ (2003) 52 ZLW 221–36; S.H. Hodge, ‘Satellite Data and Environmental Law: Technology Ripe for Litigation Application’ (1997) 14 Pace Env. L. Rev. 691–732; R. Purdy, ‘Legal and Privacy Implications of “Spy in the Sky” Satellites’ (1999) 3 Mountbatten J. Leg. Stud. 63–79; R. Purdy and R. Mcrory, ‘The Use of Satellite Images as Evidence in Environmental Actions in Great Britain’ (2001) 51 Droit Et Ville, 70–8, and their ‘Satellite Photographs – 21st Century Evidence?’ (2003) 153 New L.J. (UK) 337–8. 10 �� N. Mateesco-Matte and H. De Saussure, Legal Implications of Remote Sensing from Outer Space (Leiden: Sijthoff, 1976).

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The Technology Remote sensing is the gathering of data from a distance by a variety of means.11 Although the development of space systems has greatly increased remote sensing activity, its roots and legal regulation go far back. Relevant rules are to be found in a variety of municipal legal systems as well as in both terrestrial and international space law. In abstract theory simple ocular observation is a form of remote sensing,12 but it is commonly accepted that the remote sensing we are to discuss involves the use of a mechanical recording medium. The invention of photography in the mid-nineteenth century was significant. Camera technology has since been consistently improved, most recently with the introduction of digital electronic photography. Flight, whether by free balloon, by dirigible balloon or by airplane afforded a platform from which camera observations could be made. Remote sensing from space at first depended on the use of orthodox film, canisters of film of Earth objects being ejected from satellites and recovered for processing. Now digital technology permits the transmission of data from satellites to ground stations for later analysis and interpretation. In all cases the acquisition of varieties of electromagnetic data is the material of the observation. Electromagnetic data may be emitted by an object as infra-red, ‘normal’ to human vision parameters or ultra-violet radiation, or diffracted or refracted by an object illuminated either by natural light or by artificial radiation (radar) being directed onto it and reflected. Traditional ‘film’ systems involve the capture of data by the alteration of chemical layers on the film. Digital systems capture the wavelengths of radiation reaching the individual pixels of a sensor array,13 with the advantage that that data can be transmitted by radio to a ground station, and then that data can be processed by appropriate computer programmes. Sensors used in space are either panchromatic (PAN) or multispectral (MS). Panchromatic sensors produce data in black and white, while multispectral sensors produce data in a variety of wavelengths that can be manipulated more easily to provide ‘coloured’ images. The ‘resolution’ that a particular remote sensing system provides is extremely important. There are four aspects to ‘resolution’. ‘Spatial resolution’ depends on the relation between an individual pixel and the object it represents.14 The spatial resolution is the smallest dimensions that an object can have and still be distinguishable from another object beside it. Thus ‘one metre resolution’ means 11 �� P.J. Gibson, Introductory Remote Sensing: Principles and Concepts (London: Routledge, 2000). 12 �� Cf. Gunnery officers posted by US General Grant in the gondolas of tethered balloons to observe and calibrate the shelling of the Confederate trenches at Petersburg during the US Civil War; ‘Balloons in the Civil War’ http://www.centennialofflight.gov/ essay/Lighter_than_air/Civil_War_balloons/LTA5.htm. 13 �� A ‘pixel’ is a single unit of data which contributes to an array of pixels, which if properly processed eventually produces an ‘image’ which human perception can interpret. 14 �� As to a ‘pixel’ see supra n. 13.

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that one square metre is recorded by each pixel, and ‘ten metre resolution’ that ten square metres are so recorded.15 Present commercial space remote sensing systems provide a resolution of down to two-thirds of a metre (2 feet) at a distance of two to three hundred miles. Half-metre (c. 19.5 inches) resolution will shortly be commercially available.16 ‘Temporal resolution’ or ‘re-visit time’ is the frequency at which data of the target may be acquired. This depends on the orbit, the sensing capacity and the periodicity of the remote satellite. ‘Spectral resolution’ is the narrowness of the radio frequency band that is employed for scanning. ‘Radiometric resolution’ measures the number of levels of grey that can be determined on a black and white image. Sensing may be active or passive. Active sensing requires the sensing device to illuminate electromagnetically the target being sensed (usually by radar), and for the reflection of that illumination to be captured by its sensors. In passive sensing, the sensing device simply collects electromagnetic or other radiation emanating from the target whether that is reflecting radiation (e.g. sunlight) or originates in the target itself (e.g. heat, visible in the infra-red bands). Basically there are two major manifestations of remote sensing. The first lies in the gathering of information by observation using the above techniques from aeroplanes. Indeed, remote sensing from aeroplanes remains a valuable data source. However, in the general imagination it is the second manifestation, remote sensing by satellites, that takes the attention, particularly through the availability of Google Earth to anyone with Internet access. Satellite sensing has developed from being the exclusive preserve of states to that of a mixed economy. States and intergovernmental organisations still run very active satellite systems and programmes, but there is an increasing input from commercial companies. Some of these handle data provided by the state systems. Others are now launching their own satellite systems and enter into contracts with states and other commercial entities to provide remote sensing services.17

15 �� The difference between resolutions is apparent in some of the images available through Google Earth (www.google.earth.com). 16 �� Two-foot resolution pixels show two square feet, and fifteen inch resolution fifteen square inches. DigitalGlobe launched its Worldview-1 satellite on 17 September 2007: see http://www.digitalglobe.com/. The first satellite of the Geo-eye series offering a spectral resolution of 16 inches (40 cm) in panchromatic and 57.5 inches (1.46m) in multispectral imaging, was launched on 6 September 2008. See http://www.geoeye.com. Others will follow. 17 �� J.I. Gabrynowicz, ‘The Perils of Landsat from Grassroots to Globalisation: A Comprehensive Review of US Remote Sensing Law with a Few Thoughts for the Future’ (2005) 6 Chi. J. Int. L. 45–67. See also various of the notes to this chapter.

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Aerial Remote Sensing Remote sensing from the air is a matter for both international law and the rules of the relevant municipal legal system. International Law has been concerned with such questions for over one-hundred years. As indicated in Chapter 6, balloon flights crossing international boundaries provoked discussion in the 1890s and 1900s of the rights of states in and to the air-space above their territories. This was triggered in part for reasons of state security. The Paris Conference on Aerial Navigation of 1910 spent much time discussing what rules should apply to the new activities and produced a variety of sensible suggestions. However there was no final agreement on the text of a Convention.18 The major failure to agree was on the nature of access of foreign aircraft to the air-space of a state: should access be permitted as a ‘right of innocent passage’, or should it be subject to the specific permission of the over-flown state because of its absolute rights in respect its air-space.19 That military officers had been found to be carrying cameras aboard ‘foreign’ dirigible balloons that just happened to over-fly military fortifications was but a strand in the 1910 argument. The development of aviation spurred by the exigencies of combat in the First World War and the potential threat that that posed swept aside vacillation. The ‘complete and exclusive’ right of sovereignty of a state over its air-space was easily agreed and appears as Art. 1 of the Paris Convention on the Regulation of Aerial Navigation, 1919.20 However, it is noteworthy that in Art. 1 the High Contracting Parties recognised the complete and exclusive sovereignty of ‘every Power’. The language of Art. 1 therefore purported to articulate customary law as to the ‘complete and exclusive sovereignty’ of all states, not just as between the parties to the Convention, and, while that notion may have been an overstatement at the precise time of its promulgation, it was swiftly accepted as being indeed a principle of customary law. As a matter of law therefore, since Paris 1919 all states have had ‘complete and exclusive sovereignty’ over their own air-space, and that sovereignty has over the

18 �� Draft International Convention on Aerial Navigation, Paris 1910. See Appendix to Reports of the Civil Aerial Transport Committee, 1918, UKSP Reports, Vol. V, 17, Cd. 9218 (www.bopcris.ac.uk/imgall/ref8301_1_1.html). See also J.C. Cooper, ‘The International Air Navigation Conference, 1910’, in J.C. Cooper, Explorations in Aerospace Law, 105–124, and his ‘State Sovereignty in Space, 1910–1914’, ibid. 126–36. 19 �� It seems that the UK negotiators were persuaded of the desirability of relative freedom of access, but considerations of military security and sensitivity to fears of invasion from the Continent overruled. See the Reports of the Civil Aerial Transport Committee, 1918, above n. 18. 20 �� Convention on the Regulation of Aerial Navigation, Paris, 1919, 11 LNTS 173; 1922 UKTS 2, Cmd. 1609; 1 Hudson 359; 13 Martens (3d) 61; (1923) 17 AJIL Supp. 195; http://www.aviation.go.th/airtrans/airlaw/1914.html.

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years been enforced, sometimes with disastrous results for intruders.21 However, Art. 2 of the Paris Convention also provided as between its parties for the freedom of innocent passage of civil aircraft subject to compliance with various conditions. These included controls on what we would now call remote sensing. During the First World War aerial reconnaissance had been highly important and included the photographing particularly of enemy trench emplacements and mustering areas. It was therefore not surprising that Art. 27 of the 1919 Convention permitted states to regulate or forbid not only the use, but even the carriage, of photographic apparatus over their territory. Article 3 permitted states for military or public safety reasons to establish zones through which aircraft were not to fly, and Art. 15 required overflying foreign aircraft to follow prescribed routes. By Art. 32 foreign military aircraft required specific permission for entry to or transit of a state. Remote sensing by camera from the air could therefore be considerably constrained. Similar provision is made in the now ruling Convention on Civil Aviation, that of Chicago, 1944.22 Its Art. 1 repeats the 1919 general recognition of the complete and exclusive sovereignty of subjacent states over the air-space above their territory. Article 3.c requires over-flight by foreign state aircraft23 to be authorised. Article 9 allows states to create prohibited areas, and by Art. 36 a state may regulate or prohibit the use of photographic apparatus in aircraft over its territory.24 An addition to the 1919 provisions is that by Chicago Art. 8 no pilotless aircraft may be flown over the territory of a state without special authorisation. Aerial surveillance by foreign aircraft therefore depends on the consent of the over-flown state. Consent may be for a particular flight or flights or be more open-

21 �� See the facts behind Aerial Incident of July 27, 1955 (Preliminary Objections) Israel v Bulgaria, 1959 ICJ Rep 127, and Aerial Incident (Pakistan v India) Application, 10 August 1999, and Judgement, 21 June 2000, 2000 ICJ Rep. 12 (case dismissed for lack of jurisdiction). See also: ‘Documents concerning the Korean Air Lines Incident’ (1983) 22 ILM 1109, O.J. Lissitsyn, – 1, ‘The Treatment of Aerial Intruders in Recent Practice and International Law’ (1953) 47 AJIL 559; – 2, ‘Some Legal Aspects of the U-2 and RB47 Incidents’ (1962) 58 AJIL 135; F. Hassan, ‘A Legal Analysis of the Shooting Down of Korean Airlines Flight 007 by the Soviet Union’ (1984) 49 J. Air L. and Comm. 555–90; M. Kido, ‘The Korean Airlines Incident on 1 September 1983 and Some Measures Following It’ (1997) 62 J. Air L. and Comm. 1049–70. Cf. Chapter 6, p. 159. 22 �� Convention on International Civil Aviation, Chicago, 7 December 1944 (1944) 15 UNTS 295; 9 Hudson 168; 61 Stat. 1180, TIAS 1591; 3 Bevans 944; (1953) UKTS 8, Cmd. 8742; (1945) 39 AJIL Supp 111; ICAO Doc. 7300/9, 2006: http://www.icao.int/cgi/ goto_m.pl?icaonet/dcs/7300.html or http://www.luftrecht-online.de/regelwerke/pdf/ICAOE.pdf. 23 �� ‘State aircraft’ are defined as aircraft used in military, customs and police services: Chicago Convention, Art. 3.b. 24 �� The French text speaks of photographic apparatus ‘á bord’ an aircraft, which is clearer for our purpose than the ‘in’ of the English, Spanish and Russian texts.

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ended.25 Thus the Open Skies Treaty of 1992 provides for its parties to overfly the territories of other parties to carry out military inspections.26 Such an agreement had been first proposed to Soviet Premier Khrushchev by President Eisenhower in July 1955.27 These things take time. The laws of various countries have dealt with remote sensing, or on occasion ignore it. Of course the balance between privacy and the requirement for information is a matter of concern.28 In the UK some local authorities use cameras mounted on model aircraft to identify unlicensed building and other activity. The legal basis for this is unknown.29 However, surveillance by state agencies for environmental purposes is possible. Over-flight is permitted by the UK Civil Aviation Acts, and 25 �� On the U-2 and the RB-47 incidents see O.J. Lissitsyn, ‘The Treatment of Aerial Intruders in Recent Practice and International Law’ (1953) 47 AJIL 559; and ‘Some Legal Aspects of the U-2 and RB-47 Incidents’ (1962) 58 AJIL 135; Cheng, 103–19. 26 �� Treaty on Open Skies, Helsinki, 24 March 1992, in force 1 January 2002; 2002 UKTS 27, Cm. 5539; US TS 102–37: http://www.state.gov/t/ac/rls/fs/12691.htm. The twenty-six states party to the Open Skies Treaty as at 2005 were: Belarus, Belgium, Bulgaria, Canada, Czech Republic, Denmark, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, The Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Slovak Republic, Spain, Turkey, UK, Ukraine and US. It was thought that Kyrgyzstan might ratify in 2006. At the option of the state to be over-flown one of its national planes may have to be used for such inspection. As to what may be seen, cf. on Google Earth (www.google.earth.com) the aircraft graveyard south east of Tucson, AZ, at roughly 32.10°N by 110.53°W. Of course in some countries there may be constitutional obstacles to be overcome: J. Boulden, ‘Open Skies: the 1955 Proposal and its Current Revival’ (1990) 13 Dalhousie L.J. 611–49; D.A. Koplow, ‘Arms Control Inspection: Constitutional Restrictions on Treaty Verification in the United States’ (1988) 63 N.Y.U.L. Rev. 229–359, and his ‘Back to the Future and Up to the Sky: Legal Implications of Open Skies Inspection for Arms Control’ (1991) 79 Cal. L. Rev. 421–96. 27 �� D.D. Eisenhower, ‘Statement on Disarmament Presented at the Geneva Conference, July 21, 1955’, Public Papers of the Presidents of the United States, Eisenhower 1955, doc. 165, 713–6, at 715–6 (U Michigan Digital Library, http://quod.lib.umich.edu/p/ppotpus/). See also R. Cargill Hall, ‘The Origins of US Space Policy: Eisenhower, Open Skies and Freedom of Space’, in J.M. Logsdon, ed., et al., Exploring the Unknown: Selected Documents in the History of the US Civil Space Program (NASA SP-4407, 1995) 213–29; J. Boulden, ‘Open Skies: the 1955 Proposal and its Current Revival’ (1990) 13 Dalhousie L.J. 611–49; D.R. Terrill, Jr, The Air Force Role in Developing International Outer Space Law (Maxwell AFB, AL: Air UP, 1999; UP of the Pacific, 2004) (http://aupress.maxwell. af.mil/Books/Terrill/terrill.pdf) at 6–9. 28 �� A.M. Froomkin, ‘The Death of Privacy’ (2000) 52 Stan. L. Rev. 1461–1543; Davies, supra n. 4 at 1141–4; famously, S.D. Warren and L.D. Brandeis, ‘The Right to Privacy’ (1890) 4 Harv. L. Rev. 193–220, and much subsequent discussion. 29 �� Entry into the air-space of a UK curtilage without authority or permission is unlawful: Cf. F. Lyall, ‘The Maxim “Cuius Est Solum” in Scots Law’ 1978 Jur. Rev. 147– 69. Note also ‘The Fly’s a Spy’, 358 The Economist, 3 November 2007, 99–100, and Leader at 16. It was announced in August 2008 that the UK may introduce unmanned aircraft for policing, planning and other reasons.

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in Bernstein v Skyviews [1977] All ER 902, interdict against the over-flight of a property for the purpose of taking photographs later to be offered for sale to the owner or others was refused.30 In the US such questions involve consideration of the Constitution. Over-flight by aircraft above safety height is permitted,31 as is over-flight for the purpose of surveillance by official agencies.32 Remote Sensing from Space Sensing from space has many advantages over aircraft-based sensing. Once a satellite is in an appropriate orbit it is easily controlled and can regularly re-visit sites of interest. Subject to the arguments indicated infra it requires no permission for over-flight of territory and raises no questions of sovereignty. Depending on its equipment it can image a large area or provide significant detail for a smaller target. Nowadays, in that the satellite imagery is in digital form, it readily allows processing by computer to provide a vast quantity of data. Given the position as to aerial surveillance (remote sensing) and the unwillingness of most states to permit it unregulated, the emergence of remote sensing by satellite was guaranteed to produce argument. However, that argument came late. The basic principles of space law had been formulated before the matter was directly addressed. As discussed in Chapter 3, the Outer Space Treaty 196733 provides that outer space and celestial bodies are free for use by all states without discrimination of any kind, on a basis of equality (OST Art. I para. 2) and that there is freedom of scientific investigation in space (OST Art. I para. 3). These notions, which have passed into customary international law, were sufficiently early to ensure that there was no obstacle to the inception of remote sensing programmes by the states which had the ability to engage in them, and in due course these activities became subject to the requirements of the treaties on Rescue and Return, Liability and Registration insofar as these were relevant.34 The rules of the International Telecommunication Union as to the use of radio frequencies 30 Bernstein was a single-judge case, which is an unsatisfactory basis for an important legal principle. Perhaps a different result might be obtained were the later (UK) Human Rights Act, 1998, to be invoked. A number of UK private companies offer aerial photographs of houses and estates. 31 US v Causby (1946) 328 US 256. 32 California v Ciraolo (1986) 476 US 207; 106 S. Ct. 1809; 90 L. Ed. 2d 210; Dow Chemical v US, 476 US 227; 106 S. Ct. 1819; 90 L. Ed. 2d 226. The use of such evidence is subject to the restrictions of the Fourth Amendment to the US Constitution as to unreasonable search and seizure. 33 �� Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, London, Moscow and Washington, 27 January 1967 (1968) 610 UNTS 205; (1968) UKTS 10, Cmnd. 3519; 18 UST 2410, TIAS 6347; (1967) 6 ILM 386; (1967) 61 AJIL 644. 34 �� As to which see Chapter 4.

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were also developed and are complied with.35 However, the actual lawfulness of what might be done by remote sensing was not raised until long after its practice was established. Space law permitted the passage of a satellite over any territory without permission, no state having formally protested over-flight by a satellite. Passage is one thing. What the satellite might be engaged in could be another. As with direct broadcasting,36 the argument as to remote sensing falls to be seen as part of the effort of the developing countries in the 1960s and 1970s to gain control over their own affairs and their own resources. Many had come into being and then found that by reason of contracts and concessions entered into by their former colonial masters they did not have the freedom to control and dispose of their natural resources that they wished. Sometimes the matter was resolved by negotiation: on other occasions recourse was had to nationalisation/expropriation. The United Nations was seen as a major forum in which to affirm the lawfulness of such efforts.37 Amid all this an obvious question was whether information about natural resources formed part of those resources. Through information derived from satellite remote sensing systems a speculator might gain at the expense of a crop-grower in a developing country.38 Another element was of general concern: military security. Not all states thought that allowing others to ‘see’ their military installations might contribute to peace rather than affording an enemy free access to useful information. Article I para. 1 of the 1967 OST provides that the use of outer space should (must) be for the benefit of all states, without any kind of discrimination, based on equality of all states, and must be in accordance with international law. How might that be reflected in the regulation of remote sensing? The first point to note is that no international treaty directly governs remote sensing. In 1968, one year after the OST, UNISPACE I indicated that remote sensing was a topic which would require consideration and the matter was put in the agenda of UN COPUOS. In 1970 Argentina pointed out that there was a need for international regulation. In 1978 the USSR sponsored a treaty that would have 35 �� See Chapter 8. 36 �� See Chapter 9 – ‘Direct Satellite Broadcasting’. 37 �� ‘Permanent Sovereignty over Natural Resources’, UNGA Res. 1803 (XVII) 1962; (1963) 57 AJIL 710; (1963) 2 ILM 223; Charter of Economic Rights and Duties of States, UNGA Res. 3281 (XXIX) 1974; (1975) 14 ILM 251. Cf. the New International Economic Order resolutions: the ‘Declaration on the Establishment of a New International Economic Order’ (A/9556) UNGA Res. 3201 (S-VI), 1974, and the related ‘Programme of Action’ UNGA Res. 3202 (S-VI), 1974. See also Christol, infra n. 41 at 5–6. 38 �� It is possible from satellite imagery to identify disease starting in, say, a coffee crop before that is noticeable on the ground. A speculator with that knowledge might enter into a fixed price contract with a coffee producer in a commercial ‘futures’ market, and then profit considerably when the crop fails and market prices inevitably rise. He has the right to buy from his supplier at the fixed price, and then to sell on the product at whatever the market price might then be. In the worst case the supplier would have to buy at the higher price in order to fulfil the fixed price contract.

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given much of what the developing countries wanted,39 but it attracted only eight parties and the law generally has gone on a different track. ‘Principles Relating to the Remote Sensing of the Earth from Outer Space’ were drafted in COPUOS. Discussions began in 1968, but the process took time. Formal proposals were made in 1974 and, after prodding by the General Assembly, the Principles were finally adopted as a General Assembly Resolution in 1986.40 From the very beginning of the discussions in COPUOS its members disagreed.41 At one extreme some states, particularly developing countries, were of the view that their property ownership in their natural resources included information as to those resources, and that other states should not sense their resources without permission. They were also concerned about military security. The argument was founded on the basic concept of state sovereignty. Thus they argued inter alia that remote sensing should not occur without the prior consent of the sensed state. Modifications of the argument were that a sensed state should have priority rights to satellite-acquired data of its territory and/or that data as to one state should not be transferred or made available to others without its consent. At the other extreme the argument ran that under OST Arts I and II, outer space was free for all users and those uses including remote sensing. Prior consent with the implicit correlative right to forbid sensing was not consistent with that freedom. Further, priority rights for sensed states or rights to embargo the dissemination of data would also restrict the free use of outer space guaranteed by the OST. Another strand of debate centred on technology. Sensed states wanted to acquire relevant technologies together with the establishment of their own ground stations and processing facilities. Sensing states wished to preserve their industries and intellectual property in the 39 �� Convention on the Transfer and Use of Data of the Remote Sensing of the Earth from Outer Space, Moscow, 19 May 1978; UN Doc. A/33/162; (2005) XXX AASL Part II, 141–5; Space Law: Selected Basic Documents, 2d ed., US Senate, Committee on Commerce, Science and Transportation, 95th Cong. 2d Sess., 480–96. Cf. G. Zhukov and Y. Kolosov (trans. B. Belitzky), International Space Law (New York: Praeger, 1984) 141–51; A.S. Piradov, International Space Law (Moscow: Progress, 1976) 214–21. 40 �� ‘Principles Relating to the Remote Sensing of the Earth from Outer Space’, 3 December 1986; UNGA Res. 41/65. cf. (1986) 25 ILM 1334–6 with note at 1331–3. See Cheng, 572–97; Christol 720–64, and his ‘Remote Sensing and International Space Law’ (1988) 16 J. Sp. L. 21–44, rep. C.Q. Christol, Space Law: Past, Present and Future (Deventer: Kluwer, 1991) 73–95; C.M. Haywood, ‘Remote Sensing: Terrestrial Laws for Celestial Activities’ (1990) 8 Bost. Univ. Int. L.J. 157–85. 41 �� Cheng 572–97; Christol 720–810; C.M. Dalfen, ‘The International Legislative Process: Direct Broadcasting and Remote Earth Sensing by Satellite Compared’ (1972) 10 Can. YBIL 186–211; S. Mossinghoff and L.D. Fuqua, ‘United Nations Principles on Remote Sensing: Report on Developments, 1970–1980’ (1980) 8 J. Sp. L. 103–53; D.A. Greenburg, ‘Third Party Access to Data Obtained via Remote Sensing: International Legal Theory versus Economic Reality’ (1983) 15 Case W. Int. L. Rev. 361–95; C.Q. Christol, ‘Mexican Contributions to the Development of Principles Relating to Remote Sensing of the Earth, its Natural Resources and its Environment’ (1984) 14 Cal. W. Int. L.J. 1–21.

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technology. Tenuous consensus in COPUOS was finally reached in 1985.42 The original objective had been a treaty on remote sensing,43 however the COPUOS delegates scaled back and settled for a UN General Assembly Resolution declaring international policy on remote sensing.44 The ‘Principles Relating to the Remote Sensing of the Earth from Outer Space’ are fifteen in number. Principle I begins by restricting their application. For the purpose of the Principles remote sensing is the sensing of the Earth from space, making use of the properties of electromagnetic radiation emitted, refracted or diffracted by the sensed objects ‘for the purpose of improving natural resources management, land use, and the protection of the environment’ (Pr. I (a)). Aerial remote sensing is excluded, as are military and other applications of the technology. Natural resources management, land use and the protection of the environment cover much, but are not exhaustive of the potentialities of the techniques. Not all commentators on the Principles, or those who appeal to them as constitutive of rights and duties regarding remote sensing data, appreciate this. In short the Principles do not cover all remote sensing. Within these constraints the ‘remote sensing activities’ dealt with by the Principles comprise ‘the operation of remote sensing satellite systems, primary data collection and storage stations, and activities in processing, interpreting and disseminating the processed data’ (Pr. I (e)) – a very wide definition. Principle I divides remote sensing data into three categories, the duties as to which may diverge. Raw, unenhanced ‘primary data’ are data acquired by the remote sensing satellite and transmitted or delivered to the ground by telemetry as electromagnetic signals, photographic film, magnetic tape or any other means (Pr. I (b)). ‘Processed data’ results ‘from the processing of the primary data, needed to make such data usable’ (Pr. I (c)). ‘Analyzed data’ is information resulting from ‘the interpretation of processed data, inputs of data and knowledge from other sources’ (Pr. I (d)). All three categories of remote sensing data, including their dissemination, constitute the ‘remote sensing activities’ for which the Principles have relevance. Principle II begins by in effect quoting OST Art. I, requiring remote sensing to be carried out for the benefit and in the interest of all countries irrespective 42 �� C.Q. Christol, ‘Remote Sensing and International Space Law’ (1988) 16 J. Sp. L. 21–44, rep. in his Space Law: Past, Present and Future (Deventer: Kluwer, 1991) 73–95; S.M. Jackson, ‘Cultural Lag and the International Law of Remote Sensing’ (1998) 23 Brook. J. Int. Law 853–885 [Lyall/Larsen 69–502]; G. Catalano Sgrosso, ‘International Legal Framework for Remote Sensing’ Workshop on Legal Remote Sensing Issues, Project 2001, University of Cologne Institute of Air and Space Law (Cologne, 1999) 5–23; R. Jakhu, ‘International Law Governing the Acquisition and Dissemination of Satellite Imagery’ (2003) 29 J. Sp. L. 65–91. 43 �� Cf. H. DeSaussure, ‘Remote Sensing by Satellite: What Future for an International Regime’ (1977) 71 AJIL 707–24. 44 �� As to the legal significance and weight of a General Assembly Resolution, see Chapter 2.

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of their degree of economic, social or scientific or technological development. However, it also makes the specific point that the needs of the developing countries should be given particular consideration. Principle III restates OST Art. III, that remote sensing shall be conducted in accordance with the UN Charter and other international instruments. Principle IV bundles together a number of ideas, not all of which are easily integrated into mutual coherence. The legitimate rights of all states under OST Art. I are recognised including the freedom of exploration and use of outer space on a basis of equality subject to the ‘benefit’ concept already quoted in Pr. II. However Pr. IV goes on to provide that remote sensing activities ‘shall be conducted on the basis of respect for the principle of full and permanent sovereignty of all States and peoples over their own wealth and natural resources, with due regard to the rights and interests, in accordance with international law, of other States and entities under their jurisdiction’ – statements acceptable to both sides of the COPUOS debate, but which may cancel each other out. Then, as if to avoid that potential elision and to underline the point that was a major concern of the developing countries, Pr. IV ends: ‘[s]uch activities shall not be conducted in a manner detrimental to the legitimate rights and interests of the sensed State’. The true interpretation of Principle IV is therefore unclear: it speaks from both sides of its mouth. Principles V and following move to other concerns including co-operation and technology transfer.45 States engaged in remote sensing ‘shall make available to other States opportunities for participation therein. Such participation shall be based in each case on equitable and mutually acceptable terms’ (Pr. V). To maximise the availability of the benefits of remote sensing states are encouraged to establish centres for data collection, storage stations and processing and interpretation facilities. Such could be regional facilities ‘wherever feasible’ (Pr. VI). On ‘mutually agreed terms’ sensing states are to make technical assistance available to other interested states (Pr. VII). Principles VIII and IX give a role to the UN, Pr. VIII assigning it the international role of co-ordinating and promoting remote sensing, a task now undertaken by UN OOSA. Principle IX requires states to keep the UN Secretary General informed about their remote sensing programmes. Sensing states are also ‘to the greatest extent feasible and practicable’ to keep other states informed about relevant sensed data, upon the request of the sensed state and particularly to any developing country that is affected by a sensing programme. However, Pr. IX does not define exactly what information a sensing state shall provide to a sensed state. Principle X recognises the importance of remote sensing for the protection of the natural environment. Sensing states discovering data capable of averting harm to the environment are therefore required promptly to make it known to endangered states. Principle X does not distinguish between the different categories of data. 45 �� But on the problems of such provisions cf. D. Yarn, ‘The Transfer of Technology and UNCLOS III’ (1984) 14 Ga. J. Int. and Comp. L. 121–54.

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Unenhanced as well as enhanced data should therefore be supplied to endangered states although knowing when ‘endangerment’ is present is obviously impossible to establish at least in advance of an occurrence. Principle XI is more specific requiring sensing states to transmit processed and analysed data concerning natural disasters, actual and potential, to states that may be affected by them. In that connection practice has shown that remote sensing is increasingly important, for example, to allow authorities to monitor potential flooding and mitigate its effects. Principle XII is a fundamental. It reflects an expectation that remote sensing data shall be openly available. By implication it expresses the right of states to sense other states by providing for the access to information about it in the possession of a sensing state. The sought-for requirement of prior consent by the sensed state is absent. Neither is the sensed information to be provided free of cost. However, ‘the sensed state shall have access to [primary and processed data] on a non-discriminatory basis and on reasonable cost terms’. Likewise, the sensed state is to have access to analysed data concerning its territory in the possession of a sensing state on the same basis and terms, the needs and interests of the developing countries being taken particularly into account. While this language appears to guarantee all states access to data acquired by the remote sensing of their territory, as we will see, in practice sensing states withhold remote sensing data on national security and other grounds. Of course the data may simply not be available because some other organisation has bought it up.46 And what does ‘reasonable cost terms’ mean? This is a question to which we will return. Another question implicit in Pr. XII is whether an endangered state can be refused remote sensing data regarding its own territory simply because it cannot pay for its cost.47 There is also the problem of mutually hostile adjacent states, one of which initiates a programme which, coincidentally, remotely senses the border or a disputed region. Has the other state a right to access the imagery?48 Under Principle XIII sensed states have the right at their request to be consulted by a sensing state in order to aid co-operation ‘especially with regard to the needs of developing countries’. Certainly one result might be the modification of a sensing programme to include the capture of data of interest to the sensed state and to which it would have access under Pr. XII. In practice, however, little consultation goes on. Because of the magnitude, variety and scope of remote sensing the needs of most states are already coped with. Per contra the exclusion 46 �� J.I. Gabrynowicz, Discussion paper, ‘Expanding Global Remote Sensing Services’, UNISPACE III, Proceedings of the Workshop, July 1999, at 97. Cf. R. Harris and R. Browning, Global Monitoring: The Challenges of Access to Data (London: Cavendish, 2005). 47 �� H. DeSaussure, ‘Remote Sensing Regulation by National and International Law’ (1989) 15 Rutgers Computer and Tech. L.J. 351. 48 �� India/Pakistan and Kashmir, and Israel and Syria are among the examples that come to mind.

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of data is difficult to arrange and is better tackled at the post-sensing stage when analysis and interpretation is taking place. As we will see, ‘shutter control’ and national and military security are difficult matters. Principle XIV is redundant as a matter of law, but politically usefully repeats the legal position that sensing states have international responsibility for the compliance of their remote sensing programmes with international law. Additionally compliance with the Principles is also insisted on. That said, Pr. XIV is to be ‘without prejudice to the applicability of the norms of international law of State responsibility for remote sensing activities’. Finally, Principle XV requires states to resolve their disputes about the application of the Principles through the established procedures for peaceful settlement of disputes. So? First it has to be said that evaluations of the Principles diverge. Some hold that the Principles have ‘no significant limiting effect on remote sensing activities’.49 Others consider that the Principles ‘have already served to guide important remote sensing nations in many of their practices’ and that the Principles are legally binding on nations because they have been negotiated, adopted, referenced and practised for twenty-five years.50 It seems to us premature to suggest that in toto the UN Remote Sensing Principles constitute customary international law,51 but it is true that states which have not adopted national legislation have only the UN Principles and general international space law as their guide.52 A number of states have indeed adopted national laws and regulations on satellite remote sensing. While such national laws and regulations are broadly consonant with the UN Principles, many have deviated significantly from the Principles particularly to protect national security and political interests. One explanation is that the UN Principles were adopted when the available pixel resolution was coarse compared with that now possible. Security is a much more sensitive consideration if a potential enemy or a terrorist has access to resolutions of 2.5 metre or even 49 �� Jackson, supra n. 42, at 872. H. Feder, ‘The Sky’s the Limit. Evaluating the International Law of Remote Sensing’ (1991) 23 Int. L. and Pol. 599–669. 50 �� Gabrynowicz, supra n. 46, at 103. 51 �� It has been suggested that ‘most of’ the Principles ‘reflect customary law’: International Law Association, Space Law Committee, Berlin 2004, ‘Report on the Legal Aspects of the Privatisation and Commercialisation of Space Activities: Remote Sensing and National Space Legislation’ at 4, and the subsequent Report, Toronto 2006 at 699 where it was noted that ‘a majority’ considered the UN Principles as ‘declarative of customary international law’ but others had some doubts as to certain of the Principles; F. Lyall in ‘Some Legal Aspects of Remote Sensing’, in A.P. Cracknell, ed., Remote Sensing in Meteorology, Oceanography and Hydrology (Chichester: Ellis Horwood; New York: John Wiley, 1981) at 205 was then of the view that there was no customary law as to remote sensing, but now considers that practice is constituting custom. 52 �� As the ILA states (previous note) the UN Principles do clarify relevant ideas found in the OST.

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less compared with the 30+ metre resolution of the 1980s.53 Again the data that can be acquired from satellite sensing has been considerably increased in recent decades as processing has become more sophisticated and computer applications developed. The UN Principles relating to remote sensing are important. Although, as noted, they apply to remote sensing for only a limited range of purposes – improving natural resources management, land use and the protection of the environment – the fact is that a satellite simply scans and reports what is there. It cannot be instructed not to see military installations or other sensitive areas. Obscuring such can only be done at a different later stage of the process. The Principles are therefore more properly to be appreciated as setting out general policy with which states ought to comply and, in appropriate instances, incorporate into national regulation. Circumstances have also changed since 1986. Back then, apparently, when the non-COPUOS developing countries first had sight of the proposed Principles they demanded that the matter be reconsidered and revised because they considered their interests were not sufficiently well-protected by them. That demand was faced down. The US and others which had reluctantly acceded to the wording as drafted stated that that was as far as they were willing to go. The matter would not be reopened, and if that which had been drafted was unacceptable to the developing countries, the draft Principles would fall and sensing states would continue to sense using their legal right under the OST. The developing countries might have forced through an alternative set of Principles using their voting majority, but the experience of the UNGA adoption by majority vote of the Direct Broadcasting Principles of 1982 had shown that course to be self-defeating.54 Accordingly the COPUOS draft was presented to the General Assembly and duly adopted without vote on 3 December 1986 as UNGA Res. 41/65. Some states and commentators consider that the Remote Sensing Principles are still open for renegotiation, but we consider this unlikely.55 In their present form they seem to be working. They seem to be working, but much of that is because circumstances have changed. Going through the Principles it is striking how many of the obligations indicated for the sensing state to provide data and opportunities to a sensed state are subject to qualification. What is ‘practicable’ or ‘feasible’ and its extent is a subjective decision for the sensing state to make. Similarly ‘reasonable cost terms’ and ‘mutual agreement’ are slippery notions. In the 1980s this terminology provided loopholes and escape hatches for the sensing states. However, as said, 53 �� For many areas two-thirds of a metre pixel resolution is available. See Google Earth. 54 �� ‘Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting’, UNGA Res. 37/92, 10 December 1982; (1983) 22 ILM 451; (1983) 77 AJIL 733–6. See Chapter 9 – ‘Direct Satellite Broadcasting’. 55 �� Cf. V.S. Mani, ‘The Emerging Legal Regime of Remote Sensing: A General Survey’, in V.S. Mani, S. Bhatt and V.B. Reddy, eds, Recent Trends in International Space Policy (New Delhi: Lancers Books, 1997) 235–54.

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circumstances have changed. Developing countries are coming together to establish their own remote sensing programmes.56 Yet the most effective catalyst for change has been the privatisation of remote sensing. Now sensed states can use the levers of market competition to obtain the concessions they require, or even to commission and contract for their own remote sensing surveys.57 As part of this they may insist on technical training in data handling, on the siting of ground stations within a commissioning state, on technology transfer and on training being provided by the remote sensing corporation.58 The same may apply to the question of costs for the provision of remote sensing data. Competition will drive down prices. The general tendency is toward the reduction or even total elimination of charges for certain remote sensing data down to a particular level of resolution. Originally the US provided Landsat data free on application, although now there is a low charge. Google Earth images are free to users. Australia also provides much sensed data free on the Internet. The policy of Japan is to charge very little. Thailand provides free data for educational purposes and for disaster monitoring.59 ESA policy is the same.60 Brazil is the largest provider of free remote sensing imagery for environmental purposes.61 In most cases, however, more specialised data is to be paid for and, of course, the providers of commercial remote sensing data charge for their services. A question 56 �� Thus Vietnam and Brazil are co-operating in a remote sensing programme, as are various African states. 57 �� Cf. Art. 56.e of the Treaty Establishing the African Economic Community, 1991 (1991) 30 ILM 1241, text at 1245–82; Art. 31.2.h of the Revised Treaty of the Economic Community of West African States, 1993 (1996) 35 ILM 660, text at 663–97. 58 �� Of course some of this may be subject to control or direction by the national state of a commercial contractor. 59 �� See NOAA Survey, supra n. 38, at 17–18. 60 �� ESA divides its users into two categories, Category 1 being (roughly) scientific and technical users, and Category 2 operational and commercial. Material available is listed at http://eopi.esa.int/esa/esa?cmd=dataAcccess. Data policy is set by the ESA Earth Observation Programme Board – see http://eopi.esa.int/esa/esa?filename=esaDataPolicy& cmd=staticfile. For ESA policy see the draft ‘Principles of the Provision of ERS Data to Users’, Workshop on Legal Remote Sensing Issues, Project 2001, University of Cologne Institute of Air and Space Law (Cologne, 1999) 169–87; ‘The Envisat Data Policy’ 19 February 1998: http://eopi.esa.int/doc/download/envisat_data.pdf; ‘Extract of the Earth Explorer Data Policy’: http://eopi.esa.int/doc/download/EE_data_policy.pdf; ‘Terms and Conditions for the Utilisation of Data under the ESA Category-1 Scheme’ V15/01/08: http://eopi.esa.int/esa/esa?type=file&ts=1138616412484&table=aotarget&cmd=image&id =122. Data policy for the GMES project (infra n. 101) is under discussion. M. Ferrazzani, ‘ESA Rules and Practices’ Workshop (supra) 43–52. See also the ESA EOPI FAQ at http:// eopi.esa.int/esa/docs/doc/download/FAQ.pdf. As to pricing see ‘ERS Prices for Category 1 Use’ and ‘Envisat Prices for Category 1 Use’ both of September 2008 and accessible from the Data Access site cited supra in this note. 61 �� J. Monserrat, Filho, ‘Fifty Years of Earth Observation from Space and Space Law’ (2008) 51 Proc. IISL (forthcoming).

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may therefore arise as to price differential as between different users. All that Principle XII indicates is that access by a sensed state to primary, processed and analysed remote sensing data shall be ‘on a non-discriminatory basis and on reasonable cost terms’. Whether in this phrase ‘and’ is conjunctive or disjunctive is not immediately apparent. However, Principle XII ends that access is to take ‘particularly into account the needs and interests of the developing countries’. In practice a differentiation is made between different users: discrimination in price and in access does occur.62 As to the matter of price ‘reasonable cost terms’ does not imply that price must be uniform for all purchasers: it means a ‘market price’, which does allow for variation. Thus, ESA prices are lower for ESA members and their nationals than for non-ESA entities.63 The justification is that ESA members have already contributed to the cost of acquiring the remote sensing data through their participation in the relevant ESA programmes. EUMETSAT (infra) is even more discriminating, pricing its product dependent on such factors as membership of the organisation, ability to pay, the purpose for which the data is requested (commercial or scientific) and intended distribution of the eventual product, but is also willing to waive charges for purposes such as disaster relief. One area of controversy is the denial of access to remote sensing data which a sensing state may impose on grounds of its national security or at the request of an ally. Different countries act differently, and, given the normalities of international relations, what they may do is in practice not susceptible to effective international objection.64 Total denial of access can occur, but, given the commercialisation of remote sensing and the Internet, that is not as effective as it used to be.65 Another 62 �� Gabrynowicz, supra n. 46, at 109–10. 63 �� See ESA policies supra n. 60. 64 �� J.I. Gabrynowicz, ‘Land Remote Sensing Laws and Policies of the National Government, a Global Survey for the National Oceanic and Atmospheric Administration (NOAA) by the Univ. of Mississippi National Center for Remote Sensing, Air, and Space Law’ (2007), at 11–12 indicates that as at January 2007 the US, Canada, India, France, Italy and Israel had adopted formal regulation regarding denial of data. The Survey is at ‘online resources’ at www.spacelaw.olemiss.edu. See also International Law Association: Report of the Space Law Committee, Toronto 2006, 693–729. 65 �� The US and EUMETSAT have agreed that when in time of emergency the US restricts access to weather data, a list of public duty users in the US and EUMETSAT member states will continue to have real-time access to data from US instruments. EUMETSAT may be asked by NOAA to deny others access to direct read-out NOAA data or other global or regional products from US instruments on the MetOp satellites (polar orbiters). Authorised users may not further distribute data to unauthorised third-parties. The agreement is the Data Denial Implementation Plan approved by the EUMETSAT Council in 2004. See EUMETSAT ‘Data Policy for MetOp Data and Products’, Doc. EUM/LAD/DOC/05/0350 of 10 January 2007; EUMETSAT Annual Report, 2004 at 36, and Annual Report, 2006 at 50; Press Release, 22 February 2006: Cf. http://www.eumetsat.int/Home/Main/Media/ Press_Releases/005264?l=en. See also Space News, 9 January 2006; http://www.space. com/spacenews/businessmonday_060109.html. For EUMETSAT see infra at n.84.

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strategy is the localised degrading of satellite imagery. States do not view with equanimity the availability of imagery of sites in their territories that might be subject to attack. Thus following negotiation, Google Earth has degraded images of sensitive sites in India.66 US systems are forbidden to provide detail on the Israel/Syria border,67 and it does seem silly for publically available imagery to provide clear detail of sites of interest to terrorists or other unwelcome visitors.68 By analogy we return to these matters when dealing with the US law.69 The protection of remote sensing data remains another area of debate. Within Europe the rules of copyright are used to protect the interests of the relevant actors. It is normal for data to be supplied to users with a prohibition on resale or further dissemination. Technically the data is not ‘sold’ until it has been transformed or (more properly) transmuted into a form from which the original data is not recoverable – an intriguing application of the old Roman doctrine of specificatio, the making of a new thing (nova species) from (or including) the property of another.70 Within the US copyright is used as a protective device as are patents, trademarks and the concept of ‘trade secret’.71 The question remains open whether the 1986 Principles should be revised, or, preferably, replaced by an international treaty. Certainly the developing countries would like to see more specific obligations made binding upon sensing states and what they perceive as defects in the Principles repaired.72 Whether such 66 �� See BBC Report: http://news.bbc.co.uk/go/pr/fr/-/1/hi/technology/6331033.stm. 67 �� C. Hanley, ‘Regulating Commercial Remote Sensing Satellites over Israel: A Black Hole in the Open Skies Doctrine’ (2000) 52 Admin. L. Rev. 423–42; R. Prober, ‘Shutter Control: Confronting Tomorrow’s Technology with Yesterday’s Regulations’ (2003) 19 J. L. and Pol. 203–52. 68 �� See http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/middle_east/6357129.stm where Iraqis are reported to have used Google Earth to map areas and escape routes in Baghdad. The Google Street View service covering US locations degraded material relating to the house of the then US Vice-President Cheney and other senior politicians. The Pentagon has similarly banned views of military bases: http://news.bbc.co.uk/1/hi/world/americas/7282635.stm. Such ‘exclusions’ are understandable. 69 �� Text infra at n. 107. 70 �� The intellectual justification of ‘specification’ (to use the modern term) is controverted. See W.W. Buckland, A Textbook of Roman Law, 3rd ed. rev. P. Stein (Cambridge: Cambridge UP, 1976) 215–21; R.W. Lee, The Elements of Roman Law 4th ed. (London: Sweet and Maxwell, 1956) 134–5; B. Nicholas, An Introduction to Roman Law (Oxford: Oxford UP, 1962) 136–8. Cf. D. Carey Miller, Corporeal Moveables in Scots Law (Edinburgh: W. Green, 1991) ‘Specification’ 64–70. 71 �� S. Pace, B. Sponberg and M. Macauley, Data Policy Issues and Barriers to Using Commercial Resources for Mission to Planet Earth (Santa Monica, CA: Rand, 1999): http://www.rand.org/pubs/documented_briefings/2007/DB247.pdf; P.A. Salin, ‘Proprietary Aspects of Commercial Remote-Sensing Imagery’ (1992) 13 Nw. J. Int. L. and Bus. 349–73. 72 �� See e.g. J. Monserrat, Filho, ILA Report (supra n. 51) at 8–10 and the comments by other members of the ILA Space Law Committee.

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developments are practicable is obscure. The detail now available through remote sensing makes the attainment of a common mind difficult. Sensing states are more likely to wish to preserve their freedom of action. Domestic rules are more likely to produce development than is international action, but that also means that individual national commercial and security policies will be major determinant factors in the future of remote sensing law.73 Specialised Sensing: Meteorology and Disasters As noted, OST Art. I requires space to be used for the benefit of all. The UN General Assembly underlined the point by its 1997 Res. 51/122.74 Remote sensing clearly can provide benefit, and among others both UN OOSA and ESA have conducted training programmes and spread knowledge of the technology. In two major related areas international institutions have been established which provide general benefit: meteorology and disaster management. Storms and tempests, earthquakes and other natural occurrences can be observed and appropriate action taken with the aid of remote sensing. So may be environmental changes and the threats caused by human activity, of which the Chernobyl incident of 1986 is a worrying example.75 The UN Principles cover such matters. Principle X deals with the protection of the natural environment and Pr. XI with the protection of mankind from natural disasters. In both instances states in possession of relevant data are to transmit relevant information to any affected state as quickly as possible.76 Whether this amounts to a legal duty to warn of approaching disasters may be a question, and whether there might be liability for failure to inform or failure to detect such occurrences if imminent is unclear. Another question is whether such circumstances should constitute a special waiver for the provision of data ‘on reasonable cost terms’ (Pr. XII). Finally we throw out here the question whether humanitarian assistance may be developing as a norm of customary 73 �� Cf. M. Williams, ‘Comments and Conclusions from the Committee Chair’, ILA Report 2004 (supra n. 51) 14; International Law Association: Report of the Space Law Committee, Toronto 2006, 693–729 at 699 – amendment of the Principles or their incorporation in treaty form is held unlikely in the absence of new or unexpected factors. 74 �� ‘Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries’: UNGA Res. 51/122, 4 February 1997. 75 �� ‘Disaster’ tends to be understood as a sudden occurrence. The slower degradation of the environment is also a set of disasters that remote sensing can observe and monitor. 76 �� When writing of the law as to dams and raised reservoirs in Scotland in the early 1990s for the Stair Memorial Encyclopedia of the Laws of Scotland, F. Lyall read that subsequent to the 1980s failure of two dams in Northern Italy with considerable loss of life, later scrutiny of remotely sensed imagery had shown evidence that the dams were failing. A continuing defect of remote sensing is that there is so much remotely sensed data that has not been looked at.

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law. The broad area of humanitarian relief is of course of major interest to the UN as a whole as well as to other international organisations.77 Within the UN the Department of Humanitarian Affairs operates a website, Reliefweb, as ‘the global hub for time-critical humanitarian information on Complex Emergencies and Natural Disasters’.78 Certainly it is a good source of information. However, we here consider other international arrangements that make clearer use of space facilities in warning, mitigation and coping with such matters. Meteorology Most meteorological satellites and weather services are operated by governments. Such information is important. Indeed Sec. 602 of the US Land Remote Sensing Act of 1992 prohibits ‘any efforts to lease, sell, or transfer to the private sector, or commercialise, any portion of the weather satellite systems operated by the Department of Commerce or any successor agency’.79 Other countries have moved in the direction of a wholly or partially privatised weather satellite service. For example Germany has established the German Meteorological Services which, apart from its official functions, sells weather information commercially while remaining under the administration of the German Ministry of Transport. The Ministry supervises the weather service staff, the organisation, budget, the development of tasks, represents Germany in principal international negotiations, and takes the final decision on issues of principle. However it is for the Service to employ staff and it has its own separate budget together with limited authority to enter into private contracts.80 Meteorological satellites sense the Earth’s atmosphere and are crucial in modern weather forecasting. Advance warning of hurricanes, snow, storms, drought, temperature fluctuations and so on can be provided, sometimes by reliance on 77 �� D.P. Fidler, ‘Disaster Relief and Governance after the Indian Ocean Tsunami: What Role for International Law?’ (2005) 6 Melb. J. Int. L. 458–73; T.R. Saechao, ‘Natural Disasters and the Duty to Protect: From Chaos to Clarity’ (2007) 32 Brook. J. Int. L., 663– 707; A. de Urioste, ‘When Will Help Be on the Way? The Status of International Disaster Response Law’ (2006) 15 Tulane J. Int. and Comp. L. 182–206; P. Macalister-Smith, International Humanitarian Assistance: Disaster Relief Operations in International Law and Organisation (Dordrecht: Nijhoff, 1986). 78 �� Reliefweb: http://www.reliefweb.int/. See �� also ‘Strengthening of the Coordination of Emergency Humanitarian Assistance of the United Nations’, UNGA Res. 51/194, 10 February 1997. 79 �� HR 6133, Public Law 102–555; 15 USC Chap. 82, Sec. 5671. The National Oceanic and Atmospheric Administration (NOAA) is the major US weather agency: http:// www.noaa.gov/. 80 �� M. Koester, ‘Legal Framework Regarding the Commercialization of the German Meteorological Service’, Workshop on Legal Remote Sensing Issues, Project 2001, University of Cologne Institute of Air and Space Law (Cologne, 1999) 53–79.

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the satellite data alone, and in other instances by the concurrent use of land-based sensors and data collection. Meteorological history also contributes to the analysis. And, of course, the study of climate change has been facilitated. The World Meteorological Organization (WMO) was established in 1947 to co-ordinate, standardise and improve world meteorology and related activities.81 As such it took over from the International Meteorological Organisation of 1879, itself a product of a previous Permanent Committee established 1873 to co-ordinate the work of existing European meteorological services.82 As of 2008 WMO had one-hundred and eighty-two members together with six associated territories (Art. 4). Its supreme body is the World Meteorological Congress which meets every four years and is responsible for general policy (Arts 7–10).83 It also deals with membership. A thirty-seven member Executive Council is composed of twenty-seven elected by WMO Congress, a President and three Vice-Presidents also elected by Congress, and the presidents elected by each of the six regional associations into which WMO divides the world (Art. 13). It implements programmes agreed by the Congress and supervises the activities of the organisation (Art. 14). A Secretary General and a Secretariat carry out the day-to-day functions of the Organisation (Arts 20-22). Much of the work of WMO is done through a variety of Technical Commissions which study and make recommendations to the Congress on any subject within the purposes of the organisation (Art. 19). The WMO co-ordinates the environmental satellites services employed in WMO programmes and those of its members, providing international guidance on their use. It seeks to improve the collection of data and the use of satellites for the operation of the Global Observing System (GOS). For the purpose WMO consolidates satellite observations, develops space-based elements of the GOS, improves access to satellite weather data and to satellite services and enhances user ability to apply the products of weather satellite systems. The European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT) was established in 1983 and started functioning in 1986.84 It has an avowedly commercial aspect. European interest in such matters had begun with the inception of the European Space Research Organisation (ESRO) Meteosat 81 �� Convention of the World Meteorological Organisation, Washington DC, 11 October 1947. 77 UNTS 142; 1 UST 281, TIAS 2052; 1950 UKTS 30, Cmnd. 7989; 4 Bevans 638. The Convention has been amended several times. The current clean text is at http://www.wmo.ch/pages/governance/policy/documents/wmo_convention.pdf. 82 �� D.D. Smith, ‘The Conclusion of International Agreements by International Organisations: A Functional Analysis Applied to the Agreements of the World Meteorological Organisation’ (1971) 2 Loyola U. L.J. 27–68 at 35–6. 83 �� The Fifteenth World Meteorological Congress met in Geneva in May 2007. 84 �� Convention for the Establishment of a European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT), Geneva, 24 May 1983; 1434 UNTS 3; 1990 UKTS 32, Cm. 1067; The amended Convention of 1991 (amendments at 1991 UKSP Misc. 16) and other documents are in EUMETSAT Basic Documents (2 vols) at http://www. eumetsat.int/Home/Basic/Legal_Information/SP_LEGAL_BASIC_DOC.

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programme in 1976.85 This was taken over by the incipient European Space Agency (ESA).86 Discussions as to the creation of a separate organisation to handle such matters began in 1981. The purposes of the EUMETSAT organisation are to provide Europe with a comprehensive satellite weather service and to co-operate to establish services that its members could not afford individually. Operational European meteorological satellites are established and maintained, contributing inter alia to climate monitoring and the detection of global climate changes (Art. 2.1). In this advantage is taken of European technologies (Art. 2.3(a)) and as far as possible the recommendations of the WMO are taken into account (Art. 2.1). The organs of EUMETSAT are its Council and a Director General who is assisted by a specialised staff (Art. 1.4). The Council is composed of not more than two representatives of each member, one of whom should be the head of each national meteorological service (Art. 4.1). Council meets at least once a year (Art. 4.3). Membership of EUMETSAT consists of the states participant in its preparatory conference and those later acceding to the Convention with the consent of the Council. The Organisation operates through mandatory and optional programmes (Arts 2.6–8 and 3), the financing of the organisation reflecting this division. As the provider of meteorological data to Europe and elsewhere EUMETSAT is an important contributor to our understanding of the world eco-system. That said, we note that, as in so many circumstances, the possession of information is important. The NOAA-EUMETSAT agreement on the Data Denial Implementation Plan is understandable, however much the need for it is to be regretted.87 Disasters We now turn to international arrangements which are based on a marriage of remote sensing and telecommunications and are directed more particularly to disaster and its avoidance. International systems and organisations have been established for the special management, mitigation and avoidance of disasters both natural and man-made. These find their roots in general humanitarian principles, but, for example, more directly reflect Prs. X and XI of the UN Remote Sensing Principles as well as such as Pr. 18 of the Stockholm Declaration of 197288 and Prs. 18 and 19 of the Rio Declaration of 1992.89 States ought to warn each other 85 �� On ESRO see Chapter 1, p. 26. 86 �� On ESA see Chapter 1 p. 23. 87 �� See supra at n. 65. 88 �� ‘The Declaration of the UN Conference on the Human Environment’, Stockholm, 1972; http://www.unngocsd.org/documents/stockholm1972.pdf or http://www.unep.org/ Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503; (1972) 11 ILM 1416. 89 �� Report of the UN Conference on Environment and Development, 1992 (The Rio Declaration) UN Doc. �� A/CONF.151/26; http://www.un.org/documents/ga/conf151/

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of impending disasters both natural and man-made, as well as assisting states that have been harmed. Meteorology may, of course, provide warning of imminent disaster sufficient to allow some avoidance measures to be implemented.90 In other instances what is required is assistance after an occurrence.91 In all cases two essentials are information and a swift and accurate communications system.92 The International Charter on Space and Major Disasters is a result of UNISPACE III.93 An inter-agency agreement, the ‘Disasters Charter’, became operational in 2000. The organisation functions through a Board on which all parties are represented, and a Secretariat (Art. III.3). Its members are national space agencies with responsibility for remote sensing and national or international space system operators who can usefully contribute to the purposes of the Charter.94 aconf15126-1annex1.htm; http://www.unep.org/Documents.Multilingual/Default.Print. asp?DocumentID=78&ArticleID=1163 (1983) 22 ILM 455. Cf. �� N.B. Robertson et al., eds, Agenda 21 and the UNCED Proceedings, 6 vols (New York: Oceana, 1992–3); F. Lyall, ‘Protection of the Space Environment and Law’ (2000) 42 Proc. IISL 472–82. 90 �� Many lives were saved in Bangladesh when, before the arrival of Cyclone Sidr on 15 November 2007, cyclists with megaphones were sent out to warn the population to seek safety on higher ground. Contrast the inaction of the Burmese authorities when warned of Cyclone Nargis in May 2008. 91 �� Article XXI of the Liability Convention (as to which see supra Chapter 4) makes special provision were a space object to cause damage presenting a ‘large scale danger to human life’ or ‘seriously interfering with the living conditions of the population or the functioning of vital centres’. In such a case on its request all states party to the Convention (and in particular launching states) are to examine the possibility of rendering appropriate and rapid assistance to a state which has suffered that damage whether that state is a party to the Convention or not. Principles 5 and 7 of UNGA Res. UNGA Res. 47/68 of 14 December 1992 on ‘Principles Relevant to the Use of Nuclear Power Sources in Outer Space’ deal with notification of the re-entry of a satellite with a nuclear source on-board, and assistance to affected states. See Chapter 10, at c. n. 60. 92 �� When the December 2004 Indian Ocean tsunami happened the US detected what was occurring but was unable to identify who or which agency to contact in countries that were likely to be affected by the tidal wave. 93 �� ‘The Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disasters’, 2000, www.disasterscharter.org/charter_ e/html. A.A. Severance, ‘The Duty to Render Assistance in the Satellite Age’ (2006) 36 Cal. West. Int. L.J. 377–400. 94 �� As of 2008 governmental agency members are the Argentine Space Agency (CONAE), the Canadian Space Agency (CSA), the Chinese National Space Administration (CNSA), the Indian Space Research Organization (ISRO), the Japanese Aerospace Exploration Agency (JAXA), the US Geological Survey (USGS), the US National Oceanic Research Administration (NOAA), the British National Space Centre (BNSC), the Nigerian National Space Research and Development Agency (NASRDA), and the Algerian Space Agency (ASAL). As well as governmental agencies other space system operators may become signatories on the recommendation of the Board and with the unanimous consent of existing parties (Art. VI). As of early 2008 there were eight such members.

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Participation in the Charter is voluntary and no funds are exchanged between the parties (Art. III.1). Each makes available information about their space systems, and in case of crisis makes the systems themselves available (Art. IV). In the case of a natural or technological disaster the aim is to provide to authorised users (our term) a unified system of space data acquisition and delivery so as to allow the anticipation and management of potential crises, and reconstruction and subsequent operations.95 The organisation also analyses recent crises to see what contribution space facilities could have or did provide, and what improvements could be made (Art. IV.2).96 Authorised users are parties to the Charter and ‘associated bodies’. These latter are institutions or services responsible for rescue and civil protection, defence and security under the authority of a state having jurisdiction over a party, a member of ESA, or any other international organisation that is a party (Art. V). When a party and a relevant associated body identify a crisis a request for aid goes to other parties, to co-operating bodies and/or to the Secretariat (Art. III.4–5). In effect, through the Secretariat one single communication will bring the resources of the parties to bear in the matter. An authorised user therefore need only make one contact in order to receive both space- and ground-based information from the entire battery of member agencies. The duration of the co-ordinated emergency response to the crisis includes the time period immediately before and after the emergency (Art. I – Definitions). The definition of the ‘crisis’ period normally does not include the period of reconstruction after an emergency.97 However, under no circumstances do the Charter arrangements prevent parties from intervening in a crisis on their own initiative (Art. III.4 fin). The Disasters Charter has no provision as to the settlement of any dispute nor as to the effect of any failure of its systems. The duration of the Disasters Charter was five years in the first instance (i.e. from 2000), with automatic renewal for similar periods thereafter (Art. VII.2). It may be terminated at any time by consent of the parties, but until that termination occurs the withdrawal of a party is competent on one-hundred and eighty days’ notice (Art. VII.1). That said, the Disaster Charter system seems to be working, as is apparent from the information on its recent activations that is available from its website.98 95 �� ‘The term “natural or technological disaster” means a situation of great distress involving loss of human life or large-scale damage to property, caused by a natural phenomenon, such as a cyclone, tornado, earthquake, volcanic eruption, flood or forest fire, or by a technological accident, such as pollution by hydrocarbons, toxic or radioactive substances’ (Art. I – Definitions). 96 �� The Secretariat designs and proposes to the Board ‘scenarios’ for each type of crisis (Art. IV.2). 97 �� J. Ito, ‘Indian Ocean Tsunami: Highlighting Issues Relating to the Use of Space Technology for Disaster Management’, Proceedings of the ISRO-IISL Space Law Conference 2005, at 3/9. 98 Supra n. 93.

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The Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations was adopted in 1998 on the initiative of Finland, the ITU and the UN Office for the Coordination of Humanitarian Affairs (OCHA). The Convention came into force in 2005.99 Its root is Art. 46 of the ITU Constitution under which there is a duty on states to receive and communicate distress messages and take necessary actions. The purpose of the Tampere Convention is to improve and co-ordinate communications services in the mitigation and relief of disasters. While recognising the sovereignty of states as to their control over telecommunications in their several territories, and therefore their right to control any relief activities conducted in their territories, the Convention seeks in time of emergency relief to reduce the regulatory and other barriers which may apply at other times. However it is noticeable that throughout the Convention the obligations and rights which it deals with remain ultimately at the option and control of the states concerned, and any party may terminate assistance granted under the Convention at any time (Art. 6). The Tampere Convention establishes the UN Emergency Relief Coordinator as its international co-ordinator (Art. 2). Participating states undertake to make telecommunication resources available for disaster prediction, mitigation and relief (Art. 3), a provision which expressly includes satellite telecommunications. Article 4 deals with the organisation of the provision of telecommunication assistance from the time of request (whether made directly or through the co-ordinator) to its delivery. Privileges and immunities are to be given to incoming personnel providing assistance, to the extent that national law permits (Art. 5). Article 7 provides that the cost, if any, of the telecommunication services provided in accordance with equitable principles is to take into consideration the nature of the disaster, its location and the area affected, the capacity of the state involved and the special needs of developing countries. The Convention seeks the reduction or waiver of regulatory barriers to the export or import of telecommunications equipment, its use for disaster mitigation and relief, to the movement of foreign personnel in connection with its use, and the elimination of delay in any of these objectives (Art. 9). At present, however, the Convention has a disappointing insufficiency of parties. Its success will depend upon it becoming more widely accepted, and compliance with it becoming no longer voluntary.100 The programme ‘Global Monitoring for Environment and Security’ (GMES), a 1998 initiative of ESA and the Commission of the European Communities, is

99 �� Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, 18 June 1998: http://www.reliefweb.int/ telecoms/tampere/icet98-e.htm. 100 �� Fidler, supra n. 77, at 471–2 and n. 74; Sachaeo supra n. 77, at 671 n. 51. The Convention has been signed by seventy-five states, but required thirty ratifications to come into force which it did in 2005 – seven years from its initial adoption.

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still in its implementation phase (2004–2008).101 Its website indicates that GMES ‘represents a concerted effort to bring data and information providers together with users, so they can better understand each other and make environmental and security-related information available to the people who need it through enhanced or new services’. In this remote sensing provides an important source of information and nodes of international communication and procedures are crucial. GMES will collaboratively provide data on which national institutions will be able to take their decisions – the better the data, the better the decisions. The ideal is that national institutions will be able to anticipate, intervene and control in environmental and security matters, data from both aerial and satellite remote sensing being used for this purpose.102 Structurally GMES operates through an Advisory Council and a Bureau.103 Finally we note UN SPIDER. The ‘United Nations Platform for Spacebased Information for Disaster Management and Emergency Response (UNSPIDER)’ was established pursuant to UNGA Res. 61/110 of 14 December 2006, implementing one of the recommendations of UNISPACE III.104 UN-SPIDER provides an integrated space-based global information system for the prevention of natural disasters, the mitigation of natural disasters and for disaster relief. Remote sensing and telecommunications are involved in a structure of international cooperation.105 UN-SPIDER has been activated, and has already had significant accomplishments.106

101 �� ‘Global Monitoring for Environment and Security’ (GMES): http://www.gmes. info/. See ‘The Graz Declaration’ (2007) 23 Space Policy 57–9. 102 �� ‘Global Monitoring for Environment and Security (GMES): Establishing a GMES capacity by 2008 – (Action Plan (2004–2008))’, Communication from the Commission to the European Parliament and the Council, COM (2004) 65 final. Cf. http://news.bbc. co.uk/1/hi/sci/tech/7347028.stm. GMES data policy is still under discussion. 103 �� See the GMES website: http://www.gmes.info/. 104 �� Resolution adopted by the Third United Nations Conference on the Exploration and the Peaceful Uses of Outer Space: The Space Millennium: Vienna Declaration on Space and Human Development, Vienna 30 July 1999, http://www.oosa.unvienna.org/unisp-3/res/ html/viennadecl.html. 105 �� ‘United Nations Platform for Space-based Information for Disaster Management and Emergency Response (UN-SPIDER)’, Report of the Secretary General, 11 September 2007, A/AC.105/893, and the related work plan for 2008–9, A/AC.105/894. See also http:// www.unoosa.org/oosa/en/unspider/about_us.html. 106 �� Reports on UN-SPIDER activities are at http://www.unoosa.org/oosa/en/ unspider/docs.html.

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US Regulation of Remote Sensing States which have adopted national remote sensing regimes take authority to control what is done by use of the technology.107 This implements their duty under OST Art. VI to authorise and supervise space activities over which they have jurisdiction. Of these regimes the US has enacted the most detailed national regulation and it is instructive to consider it. The US system is a compromise between a governmental need for remote sensing for national purposes (including national security) and a wish to promote commercial remote sensing by US enterprises. In 2003 the US President announced a new US commercial remote sensing policy favouring the private sector.108 The US Government, ‘to the maximum extent possible, will rely on US commercial remote sensing space capabilities for filling imagery and geospatial needs for military, intelligence, foreign policy, homeland security, and civil users’.109 The US Government operates remote sensing only when commercial remote sensing is not available. The US National Geospatial Intelligence Agency (NGA) buys commercially generated remote sensing data from both subsidised and unsubsidised commercial satellite imaging companies.110 The NGA also uses reconnaissance satellites operated by the US National Reconnaissance Office (NRA). NGA policy is to use a variety of remote sensing providers (both US and non-US providers, mainly US allies) in order to assure future supply. The National Oceanic and Atmospheric Administration (NOAA), part of the US Department of Commerce, also makes extensive use of satellite imagery from a number of sources, commercial and otherwise.111 A greater distinction between enhanced and unenhanced data exists under US national regulation than under the UN Principles. The US regulations112 were

107 �� Gabrynowicz, NOAA Survey, supra n. 64. 108 �� US Commercial Remote Sensing Policy, 25 April 2003 (http://www.fas.org/irp/ offdocs/nspd/remsens.html); R.A. Williamson and J.C. Baker, ‘Current US Remote Sensing Policies: Opportunities and Challenges’ (2004) 20 Space Policy 109–16. 109 �� US Commercial Remote Sensing Policy, 25 April 2003 (supra n. 108), Sec. II, ‘Background’: ‘Vital national security, foreign policy, economic, and civil interests depend on the United States ability to remotely sense Earth from space. Toward these ends, the United States Government develops and operates highly capable remote sensing space systems for national security purposes, to satisfy civil mission needs, and to provide important public services. United States national security systems are valuable assets because of their high quality data collection, timeliness, volume, and coverage that provide a near real-time capability for regularly monitoring events around the world.’ 110 �� The US National Geospatial-Intelligence Agency is part of the Department of Defense- http://www1.nga.mil/Pages/Default.aspx. 111 �� The National Oceanic and Atmospheric Administration (NOAA): http://www. noaa.gov/. 112 �� 15 CFR Part 360, 71 Fed. Reg. 24474, 25 April 2006.

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adopted pursuant to the US Land Remote Sensing Policy Act of 1992.113 These define unenhanced data as remote sensing signals or imagery products that are unprocessed or subject only to data pre-processing. Data pre-processing may include rectification of systems and sensor distortions in remote sensing data as it is received directly from the satellite; registration of such data with respect to features of the Earth; and calibration of spectral response with respect to such data. However, conclusions, manipulations or calculations derived from remote sensing data do not qualify as un-enhanced data.

In its current incarnation the US regime is the product of the history of the involvement of the US in remote sensing.114 The US began remote sensing with the Landsat series of satellites which were government built, and at first government-operated. Data was provided free to users. Then, in a change of policy the marketing of US remote sensing data was turned over to private commercial companies under the Land Remote Sensing Commercialization Act of 1984.115 This attempt to commercialise remote sensing, however, proved to be a handicap to rather than a promotion of US remote sensing, residual governmental concern as to US national security interests being a barrier to international trade in the data.116 Elsewhere the French commercial remote sensing company, Spot Image, and other commercial operators, swiftly developed and prospered because they operated with greater freedom. Consequently, the US Congress enacted the 1992 Land Remote Sensing Policy Act in order to give the US remote sensing industry a similar freedom.117 All US private operators are now required to obtain a licence in accordance with the US regulations before engaging in remote sensing.118 The licence is subject to a number of conditions and restrictions, one of which will require the provision of material for the US National Satellite Land Remote Sensing Data Archive.119 The application for a licence must contain a detailed description of the 113 �� 15 USC 5601 et seq. 114 �� See materials, supra n. 42; C.C. Joyner and D.R. Miller, ‘Selling Satellites: The Commercialisation of LANDSAT’ (1985) 25 Harv. Int. L.J. 63–102; M.A. Roberts, ‘US Remote Sensing Data from Earth Observation – Law, Policy and Practice’ (1997) Air and Sp. L. 30–49. 115 �� The Land Remote Sensing Commercialization Act, 1984, 98 Stat. 451; 15 USC § 4201 et seq. 116 �� Jackson, supra n. 42, at 861; Joyner, supra n. 114. 117 �� The Land Remote Sensing Policy Act, 1992, 15 USC § 5601 et seq., Jackson, supra n. 42, at 865. 118 �� 15 CFR § 960.1–15, ‘Licensing of Private Remote Sensing Systems’. See also Gabrynowicz, NOAA Survey (supra n. 64), Williamson (supra n. 108) and Chapter 15. 119 �� Under § 502 of the US Land Remote Sensing Policy Act, 1992, the US Secretary of Interior maintains a long-term archive of basic global land remote sensing data. The

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applicant’s planned remote sensing business. The government annually audits the licence to assure the operator’s compliance with all government rules, regulations, conditions and restrictions. Non-compliance may result in termination of the operating licence. Licensing is dealt with by the Department of Commerce, through the Administrator of National Oceanic and Atmospheric Administration (NOAA).120 The Commerce Department is, however, required to consult and co-ordinate its actions with the Department of Defense and the State Department.121 These last are very concerned to ensure that US national defence and its international relations are not endangered by the licensing of remote sensing providers, a concern that continues even after a licence is issued.122 A licensee is required to apply for an amended licence if a foreign purchaser acquires an interest in it in excess of 10 per cent. An amended licence is also required should a foreigner acquire assets of a US remote sensing company on default of a security interest or as a precondition for obtaining a loan.123 In either case NOAA

archive serves ‘historical, scientific and technical purposes, including long-tem global environmental monitoring’. The Department of Interior consults with users of remote sensing data to obtain their advice and guidance about their future data needs. The Archive of Remote Sensing Data contains Landsat data as well as data collected by foreign remote sensing systems. After the expiration of any exclusive rights, the data enters the public domain and is accessible subject to cost recovery. Unenhanced data in the archive may be distributed by any licensee on the condition that the data not be reproduced or sold by the purchaser. Japan intends to establish a national archive of remote sensing data to facilitate user access and to improve its circulation: Gabrynowicz, NOAA Survey, supra n. 64 at 31. 120 �� See http://www.licensing.noaa.gov. NOAA Reference Materials as to the ‘Licensing of Commercial Remote Sensing Satellite Systems’ are at http://www.licensing. noaa.gov/reference.html. 121 �� 15 USC § 5621 et seq. Also see 5 USC § 552 which gives agency heads the authority to withhold the disclosure of remote sensing data. A Memorandum of Understanding between the Departments of Commerce, Defense, State, Interior, and the US Intelligence Communities of 25 April 2006 is at 71 Fed. Reg. 24490. 122 �� The US Commercial Remote Sensing Policy, 25 April 2003 (supra n. 108) states that ‘because of the potential value of its products to an adversary the operation of a US commercial remote sensing space system requires appropriate security measures to address US national security and foreign policy concerns’. See also ‘Licensing of Private Land Remote-Sensing Space System: Final Rule’, 15 CFR 960.1. The NOAA ‘General Conditions for Private Remote Sensing Space System Licenses’ in the ‘Reference Materials’ (supra n. 120) state that the licensee must use a data downlink from its satellites that will allow the US to access and use data ‘during periods when national security or international obligations and/or foreign policies may be compromised’. Cf. the 2006 US National Space Policy statement Secs 5–7: (2007) XXXII AASL 475–86, http://www.ostp.gov/html/US%2 0National%20Space%20Policy.pdf, and Presidential Decision Directive 23 (1994). 123 �� Cf. Chapter 15.

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will prescribe appropriate conditions to protect US national security interests.124 Furthermore, a licensee is to inform NOAA if the licensee intends to conclude an agreement with a foreigner. In such case NOAA consults with the Departments of State and of Defense in order to provide appropriate restrictions on foreign control of remote sensing data to ensure the licensee’s continuing obligation to submit data to the National Satellite Land Remote Sensing Data Archive and to comply with requirements as to reporting and the keeping of records. A remote sensing licence is normally valid until the end of the licensed operation, until the licensee violates its terms or until US national security interests requires its termination. A licensee must inform the US Department of Commerce of its insolvency, or of the dissolution or discontinuance of its business, in which case the licence will be terminated. Notwithstanding termination of a licence, the licensee remains obliged to provide existing data to the US Land Remote Sensing Data Archive, and to make data available to a sensed state, subject to any existing data distribution conditions.125 The 2003 US Commercial Remote Sensing Policy statement further provides: ‘The United States Government may condition the operation of US commercial remote sensing space systems to ensure that appropriate measures are implemented to protect US national security and foreign policy interests’.126 The approach has been to issue licences allowing a system to gather data anywhere, imposing temporal and geographic limits only when necessary. National security institutions are less comfortable with this approach for commercial systems using newer technologies, like hyper-spectral and radar instruments, and have begun to apply new ones. The new approaches attempt to control individual products more than remote sensing operations. Remote sensing technology is developing rapidly and the US shutter control policy has developed along with the technology. This pertains particularly to the higher resolutions that are now available and those that will become available. The US now usually imposes a twenty-four hour delay on the distribution of high-resolution images in order to give its Executive time to decide whether to permit that distribution.127 However in the case of disaster the 124 �� 15 CFR § 960.7. See also Chapter 15 regarding US controls on non-US participants in remote sensing systems. 125 �� See n. 119, and infra as to access to data. 126 �� Sec. IV, ‘Licensing and Operational Guidelines for Private Remote Sensing Space Systems’, US Commercial Remote Sensing Policy, 25 April 2003 (supra n. 108). 127 �� 71 Fed. Reg. at 24475 (2006). Shutter control reduces the private remote sensing operator’s market for data services and the operator may be denied access to certain markets. US law allows US licensed private operators to recover for lost market opportunities: 15 USC § 5621. ‘If, as a result of technical modifications imposed on a licensee … on the basis of national security concerns, the Secretary [of Commerce] in consultation with the Secretary of Defense or with other Federal agencies, determines that additional cost will be incurred by the licensee, the Secretary may require the agency or agencies requesting such technical modifications to reimburse the licensee for such costs, but not for anticipated profits’.

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US will make space-based capabilities immediately available for disaster warning, monitoring and response activities and facilitates ‘open access to government environmental date on equitable terms’. Thus the US Government waived its twenty-four hour waiting period in the case of access to remote sensing data during the Indian Ocean tsunami of 2004.128 The US has specific law allowing shutter control. Section 1044 of the 1997 National Defense Appropriation Act129 (the Kyl–Bingaman Act) prohibits a US Government agency from issuing of any licence permitting a private operator to collect or disseminate satellite images of Israel, unless the resolution of such images is less that the resolution of images regularly available for sale in the commercial market.130 This restriction places statutory limits on non-discriminatory access to remote sensing and in turn on the business opportunities of US private operators. Operators and providers are disadvantaged vis-à-vis foreign competitors who can freely produce high-resolution images of Israel for the international market. The statute clearly establishes a precedent for discriminatory access to remote sensing data.131 The statute also permits the US President to prohibit remote sensing of other designated areas and localities. Such provision conflicts with Principle XII of the UN Remote Sensing Resolution which provides for non-discriminatory access to all remote sensing data at reasonable cost. While the US exercises shutter control over US private remote sensing operators for national security purposes, it does not have a similar control over foreign operators. Thus US national control over its domestic operators and providers may 128 �� See http://www.prh.noaa.gov/ptwc/. Cf. US Space Policy Statement, 2006, supra n. 122, Sec. 6, ‘Civil Space Guidelines’, ad fin: ‘The United States will utilize government and commercial space-based and related capabilities wherever feasible to enhance disaster warning, monitoring, and response activities; and take a leadership role in international fora to establish a long-term plan for co-ordination of an integrated global Earth observation system and promote the adoption of policies internationally that facilitate full and open access to government environmental data on equitable terms’. The US National GeospatialIntelligence Agency (NGA) assumed responsibility for providing remote sensing information for natural disasters such as the Hurricane Katrina disaster in New Orleans. 129 �� Now included as 15 USC § 5621. 130 �� The applicant for a licence is required to submit a plan showing that the applicant can control collection and distribution of imagery in order to satisfy the Kyl–Bingamen Act. The Act requires the Department of Commerce to make a finding regarding the level of detail or precision of images of Israel available on the commercial market. To determine commercial availability the Department of Commerce uses foreign availability for export control purposes as the model. Based on this test the Department of Commerce determines whether an item is comparable in quality to an item subject to US national security export controls and available in sufficient quantities to make US export control ineffective. The applicant for a licence can free itself of this restriction on its commercial enterprise by proving that the remote sensing data in question are commercially available from foreign remote sensing operators. See 15 CFR 768. 131 �� Gabrynowicz, supra n. 46, at 109–10.

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be undercut by foreign operators and providers who can supply the world market (including the US market) with high-resolution data as well as with data from geographical areas prohibited by US laws, such as Israel. International controls or standards regulating remote sensing of sensitive areas would necessitate the negotiation of a new international agreement. Further technological and political developments would dictate the nature of such agreement and should include effective international enforcement. However, a binding international agreement as to the sensing of sensitive areas seems less likely than some provision modelled on the familiar voluntary agreements on weapons control.

Chapter 14

Space Activities and International Trade Law Introduction In the immediate post-Sputnik era space commerce was both conducted and regulated by governments. Except in science fiction there were no private activities in outer space. In the 1980s the nature of space industries began to change rapidly thanks to developments in the regulatory environment, technological advance, commercial strategies and consumer demand. In parallel private space commerce developed. Government deregulation and agreement in the World Trade Organisation (WTO) on basic telecommunications boosted private enterprise in that sector of space commerce. Increasing launch capability, growth in the size and capacity of satellites including the number of transponders per satellite, and decreasing costs of manufacturing, launching and operating satellites stimulated the entire space industry. Demand for space services grew as they became robust and more reliable. Remote sensing services became commercially available and started to make money. The consequence was an increase in private and public satellite infrastructure and satellite service companies. New law has had to be developed. In particular privately operated satellite networks use existing national contract laws but may require a new private international law specifically designed for private contracts relating to securities over space assets. In the absence of relevant international law, international trade in space assets is governed by national domestic laws and choice of law agreements in contracts. The general products of the UN Commission on International Trade Law are also not irrelevant, their various model laws being adopted by many World Trade Organisation: Agreement on Telecommunications Services (Fourth Protocol to General Agreement on Trade in Services), Geneva, 15 February 1997 (1997) 36 ILM 354; http://www.wto.org/english/tratop_e/serv_e/4prote_e.htm. Y. Zhao, �� ‘The Commercial Use of Telecommunications under the Framework of GATS’ (1999) 24 Air and Sp. Law, 303–28. �� J.L. Reed, ‘The Commercial Space Launch Market and Bilateral Trade Agreements in Space Launch Services’ (1997) 13 Am. U. Int. L. Rev. 157–218; H.P. van Fenema, The International Trade in Launch Services: the Effect of U.S. Laws, Policies and Practices on its Development (Leiden, 1999). Examples of ‘choice of law’ treaties include the Convention on the International Recognition of Rights in Aircraft, 310 UNTS 152, and the UNIDROIT Convention on International Financial Leasing, Ottawa, 1988; http://www.unidroit.org/english/ conventions/1988leasing/main.htm.

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countries. However, a distinction must be drawn between the law that relates to the facilitation of international trade and the controls that may be relevant for military and political reasons. We therefore discuss civil questions before turning to controls on trade exercised for other reasons. Curiously, both have to do with ‘security’ of one kind or another. Finally there are also a number of controls on international trade in space assets that are based on non-military considerations. Civil Law Securities Many contracts for the construction of satellites, launches and satellite services are entered into in the US or in Europe, though China and Russia are increasing their share of these markets. US and ‘Ariane’ (ESA) launches are subject to US or national European laws either because an effective ‘choice of law’ clause is contained in the contract or the application of US or a national European law is required by the appropriate normal state law that governs questions of private international law (sc. in older terminology ‘conflict of laws’). The US national law relevant for commercial space contracts is almost entirely the US Uniform Commercial Code (UCC). The UCC is not US federal law. Technically an unofficial instrument in that it is not created by a legislature, the UCC has been incorporated into the individual law of most US states and thereby establishes a virtual uniformity of law on commercial matters in all states of the US. Space equipment sales in the US are subject to the UCC. It is only natural that US manufacturers, financiers and borrowers located in the US, where the satellite ‘property’ (the ‘res’) is also located, feel most comfortable in being subject to the US law with which they are familiar. Even non-US parties may feel secure in choosing US law to govern their contracts (assuming they understand the vagaries of US state law). Thus the UCC comes to govern many international contracts for

UN Commission on International Trade Law (UNCITRAL): http://www.uncitral. org/uncitral/en/index.html. UNCITRAL seeks the moderisation and harmonisation of international business. See The UNCITRAL Guide: Basic Facts about the United Nations Commission on International Trade Law (UN: Vienna, 2007): http://www.uncitral.org/pdf/ english/texts/general/V0650941.pdf. The Uniform Commercial Code is an attempt by the American Law Institute and the US National Conference of Commissioners on Uniform Laws to bring uniformity as to certain commercial matters in the laws of the several US states, which, technically, are free under the US Constitution to make their own arrangements. The Code is subject to occasional editorial alteration in the light of case law. Forty-eight US states, the District of Columbia, Puerto Rica, Guam and the US Virgin Islands have adopted it without variation. Louisiana has adopted with minor variation based on its separate roots in the Civil Law tradition that stems from continental European and ultimately Roman Law. California has adopted with some minor variation that stems from historic Spanish influences. Cf. The Portable Universal Commercial Code (American Bar Association (ABA), 1993).

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sale of space equipment through a particular US state law being the selection made by a ‘choice of law’ provision. Where applicable, US laws may govern not only the contract to purchase or operate space assets but also the financing of that contract/endeavour, since space assets may be purchased or operated subject to secured interests in them. The UCC applies to most US-constituted agreements on security interests in space assets. UCC Sec. 9-103(3) provides: The law (including the conflict of laws rules) of the jurisdiction in which the debtor is located governs the perfection and the effect of perfection or non-perfection of the security interest. If, however, the debtor is located in a jurisdiction which is not a part of the US, and which does not provide for perfection of the security interest by filing or recording in that jurisdiction, the law of the jurisdiction in the US in which the debtor has its major executive office governs the perfection and the effect of perfection or non-perfection of the security interests through filing.

UCC Sec. 9-203, identifies three situations in which a security interest may attach to space equipment: (1) when the debtor enters into a security agreement with the creditor and the agreement describes the collateral; (2) when the loan has been issued for value; and (3) when the debtor has rights in the collateral. The holder of the security interest may then register the security interest in a state registry in order to obtain the protection added by such filing. The major premise of the registry system is ‘that a good faith effort at filing would be successful and that a good faith search would reveal the presence of the secured creditor’s claim’. Under UCC Sec. 9‑312(5) the claims of secured creditors to priority in access to collateral are based on the time/date of filing. Priority is accorded to the first filing. Most European laws as to security interests together with code-based systems elsewhere round the world that are modelled on the French, Spanish or German Civil Codes originate in concepts of Roman law. Under Roman law a creditor has title to the chattel over which the security is constituted until the debt is paid in full. Not having title the debtor therefore cannot transfer ownership to third parties until the debt is discharged. Continental European laws respect legal rights derived from the law of the original situs (location) of mobile property if those legal rights can be accommodated within the municipal law of the new situs. Thus, if legal rights cannot be accommodated under the municipal law of the new situs, the European approach may result in a failure to recognise legal rights in space equipment, thus potentially causing financial loss to putative financiers. Any uncertainty as to the legal rights of the financier of the secured interest �� Cf. F. Lyall, ‘Space Law: What Law or Which Law?’ (1992) 34 Proc. IISL 240–3. Space equipment is ‘mobile equipment’ under the provisions of the UCC. See also Chapter 13 for detail of US licensing controls on that technology. J.J. White and R.S. Summers, Uniform Commercial Code (West Publishing, 1989) at 797.

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causes general uncertainty and impedes trade in space assets. To create certainty, therefore, the parties to a financing contract that includes a security element may (should) include a clear choice of law clause in the security contract. That choice may well be a US national state law should that result in greater certainty as to their rights and obligations for the parties. Contract law governing private contracts as to space assets include contracts as to the financing of those assets. Financial contracts have become the area of a possible new uniform international law designed specifically for the financing of space assets. The negotiation of finance is a normal part of any commercial activity. Often security for a loan is required and this is frequently constituted over some (or all) of the assets of the enterprise, but when the major assets of the enterprise are items of mobile equipment difficulties emerge. These assets may traverse the jurisdictions of a number of legal systems which may well not be uniform in the securities law which they enforce. Airplanes may spend considerable time over the high seas, where there is no sovereignty. So what is the position as to a security over a satellite in orbit in outer space? As private enterprise becomes more prominent in the use of space so the financing both of the enterprises and of the financial arrangements under which companies buy each other becomes important. A company wanting to borrow from a bank or other lender may offer as security for the loan the satellite or constellation of satellites in the system it operates or intends to create. It may even borrow on the basis that it will effect a security over space assets following the take-over of another company for which purpose the finance is required.10 The sums involved are considerable. Accordingly the sources of the finance require clarity and effectiveness in the security arrangements. The Cape Town Convention and the Draft Space Protocol, 2001 UNIDROIT, the International Institute for the Unification of Private Law based in Rome, exists to study the needs and methods for the modernisation and harmonisation of private law, particularly commercial law as between states and groups of states.11 Over the years it has done much useful work on a variety of topics, many related to trade and commerce.12 In that tradition, on the proposal by Canada in 1988, UNIDROIT was responsible for the negotiation and drafting of P.B. Larsen and J.A. Heilbock, infra n. 18, at 716–29. 10 Cf. the history of telecommunications service providers. See the recent history of INTELSAT, INMARSAT and EUTELSAT in Chapter 11. 11 UNIDROIT (www.unidroit.org), originally set up under the League of Nations, was re-established in 1940 under the UNIDROIT Statute, a multilateral agreement between states (http://www.unidroit.org/english/presentation/statute.pdf). Now headquartered in Rome in 2007 it has sixty-one members. 12 For UNIDROIT Conventions see www.unidroit.org/english/conventions/cmain.htm.

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the Convention on International Interests in Mobile Equipment, 2001, which came into force on 1 April 2004.13 The regime created by the Convention facilitates the financing of high-value equipment assets that are moved easily and frequently from one national territory to another or into non-sovereign territory (into nonsovereign outer space, in the case of space assets). In brief, under the Cape Town Convention, security interests in particular forms of mobile equipment are dealt with generally and then by Protocols particular to a specified category of mobile equipment. At present the categories dealt with are aviation assets, rail assets and space assets. Other moveable assets could be added in due course. Since the financial arrangements behind the three present categories of assets have developed differently it was necessary to structure separate legal regimes, but the need for such is obvious. Convenient financial arrangement for mobile equipment as with immoveable assets requires financial institutions to have the confidence that their security interest in an asset is superior to that of any competing claim on the asset and that in the ultimate they will be able quickly to realise the value of the asset on which the financing is secured should something go wrong with the deal. Some state laws do not favour non-possessory security arrangements, so the enforcement of a security over moveable assets can be problematic.14 The advantage of the Cape Town Convention system is that it removes uncertainty as to the legal status of secured interests, particularly when the security assets are moved into foreign or non-sovereign territory. It creates amongst its parties a uniform international regime for the recognition of securities over a particular category of movables which is linked to an international registry in which these securities can be registered. The relevant ‘interests’ may be straight security interests, or may arise from a ‘conditional sale agreement’ or a ‘lease agreement’. They are each to be registered in a separate international registry for security interests for that particular form of mobile equipment. Within their several competences, for the parties to the Convention and the Protocol that establishes that particular registry, each international registry will supersede any national ‘security’ registry (including the US UCC state registries). Each international registry will be the authoritative, comprehensive registry recognised by all states party to the Convention and the 13 Convention on International Interests in Mobile Equipment, Cape Town, 2001: 118 Stat. 1095 (2004): US Senate Doc. 108-10; UN �� Doc. A/AC.105/C.2/2002/CRP.3 (2001); http://www.unidroit.org/english/conventions/mobile-equipment/main.htm; http://www. �� jus.uio.no/lm/unidroit.mobile.equipment.international.interests.convention.2001/;� Acts and Proceedings of the Cape Town Diplomatic Conference (Rome: UNIDROIT, 2006); R. Goode, ‘The Cape Town Convention on International Interests in Mobile Equipment: A Driving Force for International Asset-Based Financing’ (2002) 7 Uniform L. Rev. (n.s. 3) 4– 15. UNIDROIT is the Depositary for the Convention and its Protocols (Conv. Art. 62(1)). 14 J. Carruth, ‘International Secured Transactions and Insolvency’ (2005) 39 Int. L. 363–72; A.M. Vassallo et al., ‘Cross-Border Insolvency and Structural Reform in a Global Economy’ (2001) 35 Int. L. 449–64; S.J. Roberts et al. ‘International Secured Transactions and Insolvency’ (2006) 40 Int. L. 381–92 at 389.

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relevant Protocol. Priority in registration will result in the priority recognition of a security, leasing or conditional sale interest.15 The several Protocols and their procedures take account of the particular type of movables involved, since that affects how the asset is considered and evaluated by potential financiers. As indicated, to achieve its aims the Cape Town Convention has at present been augmented by two protocols, one for aviation which is in force,16 and one for rail which is not yet in force.17 A Protocol on space assets is under negotiation but has not yet been agreed. The Convention also provides that further Protocols on other categories of mobile equipment may be introduced (Art. 51). The concept of the Cape Town Convention is sensible but it presents problems for space assets. The aviation and rail protocols have the advantages of the nature, location and distribution of the mobile equipment with which they deal. Ultimately a terrestrially located security asset can be relatively easily seized to enforce the terms of a security agreement. Satellites in outer space are rather different. Once launched space assets are outwith internationally recognised territorial sovereignty and any enforcement with respect to them becomes complicated. Seizure of the asset is certainly unlikely. As said, national laws on secured interests vary. Financiers and satellite operators may face the uncertainty of the law of a foreign country that cannot be identified in advance. A uniform international regime establishing a certainty and predictability of rights and duties would encourage financial arrangements satisfactory to both financiers and the space industries.18 So what might be done? 15 For example, Germany does not normally recognise a priority of registration as giving any priority in subsequent insolvency proceedings; Roberts (n. 14) at n. 64. See also UNIDROIT Study LXXII: http://www.unidroit.org/english/workprogramme/study072/main.htm. 16 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment, Cape Town, 16 November 2001: http://www.unidroit. org/english/conventions/mobile-equipment/aircraftprotocol.pdf. The Aviation Protocol was adopted at the 2001 Conference: Acts and Proceedings n 13 supra. See R. Goode, Official Commentary on the Convention on International Interests in Mobile Equipment and the Protocol thereto on Matters Specific to Aircraft Equipment (Rome: UNIDROIT, 2002). This Protocol is in force and became operational on 1 March 2006. Cf. L.S. Clarke, ‘The 2001 Cape Town Convention on International Interests in Mobile Equipment and Aircraft Equipment Protocol: Internationalising Asset-Based Financing Principles for the Acquisition of Aircraft and Engines’ (2004) 69 J. Air L. and Com. 3–19; A. Boliver, ‘Square Pegs in a Round Hole? The Effects of the 2006 Cape Town Treaty Implementation and Its Impact on Fractional Jet Ownership’ (2007) 72 J. Air L. and Com. 529–60. 17 �� Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock, Luxemburg, 23 February 2007; (2007) 46 ILM 662, with Introductory Note by H.S. Burman at 658–61: http://www.unidroit.org/english/ conventions/mobile-equipment/railprotocol.pdf. 18 �� P.B. Larsen, ‘Future Protocol on Security Interests in Space Assets’ (2002) 67 J. Air L and Com. 1071–105 [Lyall/Larsen 339–373]; P.B. Larsen and J.A. Heilbock, ‘UNIDROIT Project on Security Interests: How the Project Affects Space Objects’ (1999)

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Chaired by a US space finance expert and meeting regularly since 1997, a working group composed of representatives of manufacturers, financiers, insurers and satellite operators, as well as lawyers from many countries undertook preparatory work. A draft Space Assets Protocol was transmitted to UNIDROIT in 2002 and remitted to a committee of experts representing governments because only governments can finally negotiate treaties. Discussions continue. As at 2008 we can have recourse only to prediction and inference drawn from the arrangements for aviation and rail as indicative of what may happen in relation to space assets. When a space assets Protocol eventuates the provisions of the basic Convention and that Protocol will be interpreted as a single instrument, although in the event of any inconsistency between the two, the Protocol prevails (Conv. Art. 6). This means that a Protocol may modify the basic framework of the Convention to suit the special financing needs of the equipment concerned. The basic Convention19 provides for the constitution and effects of an ‘international interest’ in certain categories of mobile equipment (Art. 2.1). A security interest is, as normal, created by contractual agreement, but the Convention deals only with ‘interests’ that have been constituted as ‘international interests’ defined in terms of its Art.7 (Art. 2.2). The ‘interest’ may be granted by the charger under a security agreement, or be vested in a conditional seller under a title reservation agreement,20 or in a lessor under a lease agreement. An ‘interest’ may also extend to the proceeds of the object (Art. 2.5). Article 7 (a) requires that the constitution of an ‘international interest’ must be in writing, (b) that it relates to an object of which the chargor, conditional seller or lessor has power to dispose, (c) that it enables the asset to be identified in conformity with the relevant Protocol, and (d) in relation to a security interest, that the security obligation can be determined without, however, a maximum secured sum being set. The obligor (sc. the debtor granting the security or other interest) must, of course, have power to dispose of the interest being disposed and to register the transaction (Art. 7). The Convention applies when a debtor is situated in a contracting state at the time the agreement creating or constituting the international interest is entered into (Art. 3.1). However that the creditor may currently be in a non-contracting state does not affect the applicability of the Convention (Art. 3.2). A commercial entity debtor is situated in a contracting state when it is incorporated or formed in a contracting state, or when it has its registered office or statutory seat in a contracting state, where it has its centre of administration, or where it has its place of business (Art. 4). 64 J. Air L. and Com. 703–70; O.M. Ribbelink, ‘The Protocol on Matters Specific to Space Assets’ (2004) 12 Eur. Rev. Priv. L., 37–45; M.J. Stanford and A. de Fontmichel, ‘Overview of the Current Situation Regarding the Preliminary Draft Space Property Protocol and its Examination by COPUOS’, (2001) 6 Uniform Law Rev. (n.s. 2) 60–77; D.A. Panahy and R. Mittal, ‘The Prospective UNIDROIT Convention on International Interests in Mobile Equipment as Applied to Space Property’ (1999) 4 Uniform L. Rev. 303–12. 19 Cape Town Convention, supra n. 13. 20 Sc. (UK) hire-purchase.

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Part IV of the Convention sets out the general provisions as to international registration system which each Protocol builds on and may adapt. A Supervisory Authority provided for by the relevant Protocol is responsible for the setting up of an International Registry (Art. 17). The International Registry is for the registration of ‘international interests’ in each category of mobile equipment covered by the main Convention (Art. 16).21 It will register international interests, prospective international interests and registrable non-consensual rights and interests. It will register assignments and acquisitions of international interests actual or prospective, notices of national interests and subordination of interests (Art. 16.1). It will also register amendments, extensions and discharges of a registration (Art. 16.3). Each registry is to be headed by a Registrar, which may be appointed by the Supervisory Authority or designated as provided in the relevant Protocol (Art. 17.2.b). The Supervisory Authority supervises the Registrar, advises it on its request, prepares regulations for operation of the registry, receives complaints, audits the registry and makes regular reports to the Contracting States. The data and archives of the registry are and remain the property of the Supervisory Authority (Art. 17.4) and it will ensure that rights are suitably transferred in the event of a change of Registrar (Art. 17.2.c). The Supervisory Authority has international legal personality if it does not already possess it (Art. 27.1), the implication being that it may be an international organisation.22 It and its employees (including the Registrar and staff of the registry) have whatever immunity is provided for in the relevant Protocol (Art. 17.2). The Registrar may, however, be liable for negligent acts and may therefore acquire insurance for its protection (Art. 28.1). The Registrar may be a contractor specially created to operate the registry or an existing entity including a company.23 International interests may be filed in the relevant international registry by mail or electronically (Arts 17.2.i and 18.1.a). The relevant Protocol and registry regulations specify the requirements for registration, including how the object over which the interest is constituted is identified (Art. 18.1). Any party to a financing arrangement involving an ‘international interest’ may register that interest in the appropriate registry. A registration lasts indefinitely, or until the expiry of a period which it specifies (Art. 21). The registry is open and is searchable (Arts 18.4 and 22).24 Access cannot be denied if the procedures of the Convention are complied 21 Under Art. 16 a single registry might have been established. However, Art. 16.2 allows the creation of separate registries for different categories of asset, and this has been the path taken. 22 ICAO is the Supervisory Authority for the Aviation Protocol in terms of its Art. XVII. 23 Aviareto has been designated registrar for the Aviation Protocol. Operating on a ‘not-for-profit’ cost recovery basis, it is a joint venture between SITA SC (http://www.sita. aero) and the Irish Government. See http://www.aviareto.aero/. 24 Cf. the Aviation Register: https://www.internationalregistry.aero/. Only approved users may register assets, but anyone can search the register.

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with (Art. 26). Registrations are recorded (and are electronically searchable) chronologically by date and time. It is not the function of the registry to provide detail as to the interest registered. What the registry does is to provide notice that there is such an interest, and it is for third parties to find out the detail from the registrant (the person or entity filing the notice).25 Within the several jurisdictions of the contracting states priority in the filing of an international interest in the appropriate register establishes priority over later filings and over other interests which have not been filed with the registry (Art. 29).26 The experience of the Aviation Protocol may be instructive. The aviation registry began to operate on 1 March 2006 when Malaysia as eighth ratifier brought the Protocol into force for its ratifying parties.27 As at 2008 forty states had signed the Protocol but only nineteen had ratified it. However, the US, a major aircraft manufacturing state, is a full party and so far approximately 90 per cent of the existing filings have originated in the US. Other aviation states, the European Union states,28 Russia, China, India and others, are reportedly preparing to ratify. It is significant that several states with developing economies have joined. Their enterprises are particularly reliant on asset-based financing because they frequently do not have other assets over which securities can be constituted. The US Export–Import Bank has reduced transactional fees on its loans for aircraft equipment which benefits developing economies. It was reported that in the first three months ‘[T]he registry recorded 2500 registration sessions in which 8,200 financial interests in individual aircraft and engines were chronicled. Some 11,000 searches of the registry were conducted’. New filings in the registry are reported to have been completed within two days.29 The experience of the Aviation Protocol shows that the Cape Town treaty systems work more or less as intended. However, it is also clear that the regime is not perfect. For example, would-be registrants have discovered that they cannot file fractional aircraft ownerships. Modification of the Aviation Protocol would require a full diplomatic conference, which is unlikely in the foreseeable future. Its shortcomings must now be remedied by private contracts. Notwithstanding, financiers, manufacturers and lawyers involved in financing aviation equipment transactions are now familiar with the Aviation Protocol and recommend it to clients. 25 Cf. R. Goode, Official Commentary (n. 16) at 88, quoted in n. 16 of the draft Space Protocol, 2004 (n. 31). 26 This will not prevent non-Convention states from enforcing security interests within their own jurisdictions. However, it is to be hoped that the major space-competent states will enter the Convention in its ‘space assets’ form. 27 For the ICAO list of signatories and ratifiers see http://www.icao.int/icao/en/leb/ capetown-conv.pdf. 28 Although France, Germany, Italy and the UK have signed the Aviation Protocol, Germany and the UK consider that its ratification for them lies within the competence of the European Union. This may take time. 29 J. Ott, ‘Protecting Assets’, Aviation Week and Space Technology, 17 July 2006, at 170.

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Furthermore, the US Federal Aviation Administration has identified all aircraft and helicopter equipment in the US national registry that is eligible for filing under the Aviation Protocol regime in order to facilitate filings with the new registry.30 The relative success of the Aviation Protocol shows an international acceptance of the basic concept of the Cape Town Convention. That augurs well for using the proven model in the financing of other subjects such as space assets. Another positive factor regarding space asset financing itself is at work. There is considerable overlap of parties involved in aviation and in space equipment financing. At one stage that raised the question whether one Protocol should cover both areas. As it worked out it became clear, however, that the feeling was that the Aviation Protocol would succeed best on its own merits without being weighed down by association with a Space Protocol. There would be sufficient difference between the potential state parties to each Protocol and the enterprises likely to use the system. One fear exploded by the experience of the Aviation Protocol was that users would object to paying to register their interests. However, it now seems that parties to aviation financing agreements find the benefits of the registry system outweigh the expense of using it. We expect the same will apply to space financing. A Space Assets Protocol As we write a preliminary draft Space Protocol is under consideration and discussion proceeds on a number of critical issues.31 States have sought its maximum compatibility with national financial laws. The US has sought the provisions of the protocol to be as like the US Uniform Commercial Code as possible. Most European participants would prefer the regime to be close to the European laws on security interests. Certainly it ought (and is) not possible for a state to become a party to the Space Protocol unless it is or becomes party to the basic Cape Town Convention (2003 draft Art. 5). One question has been the precise applicability of the proposed Protocol. International space law, as seen elsewhere in this book, speaks of ‘space objects’, but that language, with its implicit reference to a physical object and to a known concept, is inappropriate for the Space Protocol. First, it might be that only part of the 30 Id.; Boliver, supra n. 16. 31 We basically work from the draft ‘Protocol on Matters specific to Space Assets as revised by the First Meeting of the UNIDROIT Committee of Governmental Experts, December 2003’ available at: http://www.unidroit.org/english/workprogramme/study072/ spaceprotocol/main.htm. Cf. the official report of the 2003 meeting: http://www.unidroit. org/english/publications/proceedings/2004/study/72j/cge-session1/cge-1-report-e.pdf. There is also a report of the Second Meeting, October 2004: http://www.unidroit.org/ english/publications/proceedings/2004/study/72j/cge-session2/cge-2-report-e.pdf. There may be later developments. Notes of progress have been published in the Uniform Law Review, as noted at http://www.unidroit.org/english/workprogramme/study072/main.htm.

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space object (e.g. some of several transponders) is the subject of the ‘international interest’.32 Second, the ‘interest’ to be registered might be an intangible concept such as a further (postponed or inferior ranking) security interest. Accordingly the provisional draft Protocol speaks of ‘space assets’. In terms of draft Art. 1.g a ‘space asset’ is (1) any identifiable asset that is intended to be launched and placed in space or that is in space; (2) any identifiable asset assembled or manufactured in space; (3) any identifiable launch vehicle that is expendable or can be reused to transport persons or goods to and from space; and (4) any separately identifiable component forming a part of such an asset or attached to or contained within it. As indicated in fn. 14 to the draft Article ‘identifiability’ of the asset is crucial since the whole Cape Town regime, including its application to space assets, is asset based.33 It will require that the asset concerned is described in terms that satisfy the requirements of regulations that will be promulgated by the space registry (Art. VII). Article 1 concludes by stating that ‘space’ itself means outer space including the Moon and other celestial bodies, and does not attempt its further definition. Another question has been the relationship of a Space Protocol to other international agreements including the existing space law treaties. By the 2003 draft Art. XXI the space assets Protocol will for space assets supersede the UNIDROIT Convention on International Financial Leasing of 1988,34 as between parties to both Conventions and including the space Protocol. Opinion is divided as to the relationship of the Protocol to the space treaties. Some consider that the best solution is silence since normal rules of international law would require the Protocol to be interpreted consistently with other international law and, accordingly, conflict would be avoided. The normal rule is that a later relevant treaty provision takes precedence over an earlier unless it is specifically stated to be subject to, or not incompatible with the earlier.35 States are therefore now generally agreed that the space Protocol should indicate that it does not affect state party rights and obligations under the UN space treaties or the instruments of the ITU.36 The 2003 version of Draft Art. XXI bis holds that the Protocol does not affect the rights and obligations ‘under existing United Nations Outer Space Treaties or instruments of the International Telecommunication Union,’ but by n. 31 to that draft the precise formulation of Art. XXI bis had still to be determined, including whether the UN 32 Apparently it has proved awkward to apply the Aviation Protocol to ‘parts’ of an aeroplane, e.g. an engine in place. 33 See fn. 14 to the preliminary draft Space Protocol, quoting R. Goode, Official Commentary, supra n. 16 at 12. 34 UNIDROIT Convention on International Financial Leasing, Ottawa, 1988: http:// www.unidroit.org/english/conventions/1988leasing/1988leasing-e.htm. 35 Article 30, Convention on the Law of Treaties, Vienna, �� 22 May 1969, 1155 UNTS 331; (1980) BTS 58, Cmnd. 7964; 8 ILM 679; 63 AJIL 875; �� http://untreaty.un.org/ilc/texts/ instruments/english/conventions/1_1_1969.pdf. 36 Cf. the Proposal by India to the 2003 Inter-governmental Meeting, which details its concerns and argues for the primacy of the UN treaties: http://www.unidroit.org/english/ publications/proceedings/2003/study/72j/cge-session1/cge-1-wp20-e.pdf.

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treaties should be specifically enumerated.37 We consider that giving primacy to the space treaties would be important. Whether it is feasible or desirable to require that a state can become party to the Protocol only if it is also a party to the OST and the Liability and Registration Conventions is, however, doubtful.38 As between the Space Protocol and the UN treaties some particular matters may be noted. As the Indian representative at the 2003 inter-governmental meeting pointed out, the space treaties impose obligations on states and these could be affected by the Space Assets Protocol. What is a ‘national activity’ in outer space for which a state is responsible in terms of Art. VI of the OST?39 Can participation in the financing of a proposed launching and operation of a satellite service, or the variation of its ownership be a ‘national activity’? Now that, for example, satellite telecommunication services have become subject to the exigencies of the commercial financial marketplace the grant of security rights over a satellite may be an attractive method of obtaining a loan. Should that trigger a supervisory duty on the part of the national state of the holder of the security? More seriously there is the concept of a ‘launching state’. Both the Registration Convention,40 and the Liability Convention41 impose duties and obligations on ‘launching states’. In both a ‘launching state’ is a state that launches or procures the launch of a space object, or a state from whose territory or facility a space object is launched, and a ‘space object’ includes its component parts as well as its launch vehicle and its parts.42 For the Liability Convention a launch includes an attempted launch.43 It is the ‘procuring’ of a launch that may be of interest. Might a ‘security interest’ in a space object involve the national state of the security holder if it is a party to one or more of the space treaties? As discussed in Chapter 4, under the Registration Convention launching states register space objects in their national registries and in the international registry maintained by the UN Secretary General through the UN Office of Outer Space Affairs (OOSA). The data to be given to the UN includes orbital parameters of the space object with a broad indication of purpose. That and other duties under the Registration Convention clearly indicate that for its purposes a ‘space object’ is a physical entity. The registry of security interests under the Space Protocol will serve 37 See n. 36. Ad interim we note that the present language refers to ‘existing’ UN space treaties. 38 India Proposal (n. 36) para. 12. 39 �� Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies (1968) 610 UNTS 205; (1968) UKTS 10, Cmnd. 3519; 18 UST 2410, TIAS 6347; 6 ILM 386; 61 AJIL 644. 40 �� Convention on the Registration of Objects Launched into Outer Space, 14 January 1975; 1023 UNTS 15; (1978) UKTS 70, Cmnd. 7271; TIAS 8480; (1975) 14 ILM 43. 41 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972; 961 UNTS 187; (1974) UKTS 16, Cmnd. 5551; 24 UST 2389, TIAS 7762; (1971) 10 ILM 965; (1971) 66 AJIL 702. 42 Registration Convention, Art. 1.a and b; Liability Convention Art. 1.c and d. 43 Liability Convention Art. 1.b.

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purposes very different from those of registration under the Registration Convention. However, there is no legal obstacle for contracting parties to agree to register under the Registration Convention at the same time as or prior to registration of financial interests in assets under the Space Protocol. The coexistence and independent functioning of the two registries should not be a major cause for concern. The Liability Convention may carry a greater threat. While it does not eliminate the possibility that recompense for damage caused by a space object may be sought through the legal system of a launching state (Art. XI.2) the more likely result of an incident is a claim under the terms and procedures of the Convention. As between its parties the Liability Convention imposes absolute liability on a launching state for damage caused on the surface of the earth or to aircraft in flight (Art. II) and liability on proof of fault for damage caused elsewhere (Art. III). As discussed in Chapter 4 a claim is presented to a launching state by a state which has incurred damage.44 It is not the concern of the claimant that several states may be ‘launching states’ in terms of Art. I of the Convention. Their mutual responsibilities are for them to work out (Art. V.2). For the damaged state their responsibility is joint and several (Art. V.1). It can choose to which ‘launching state’ to submit a claim – and will doubtless go to a wealthy state. As stated above, any ‘launching state’ is liable for damages under the Liability Convention, and being a launching state can include ‘procuring’ the launch. If a finance house has an ‘international interest’ in a space asset that happens to be a satellite prior to a launch, the international liability of its national state might be invoked if it is a party to the Convention on the ground that it has been involved through the finance house in procuring the launch. Again, suppose a financier from a non-launching state obtains possession of a satellite upon default of the debtor from a launching state that is liable for damages while the satellite is in possession of the financier? The launching state will remain liable under the Liability Convention.45 Or suppose a financier from a contracting state finances a launch by a non-contracting state. The contracting state might find itself unexpectedly liable. Of course, under these sorts of circumstance states can, on a bilateral basis, negotiate the transfer of liability to the financier’s state. Such bilateral agreements are not uncommon among states.46 For the purpose, states 44 �� Note Liability Convention Art. VIII which departs from the normal rule of Nationality of Claims, and Art. XI.1 which removes the normal requirement of the exhaustion of local remedies. 45 �� Cf. The Netherlands denial of launching state status following the in-orbit transfer of INTELSAT satellites to New Skies NV. See Note Verbale dated 18 February 2004 from the Permanent Mission of The Netherlands to the United Nations (Vienna) addressed to the Secretary General, UN Doc. A/AC.105/824, 16 March 2004. 46 �� For example, ‘Exchange of Notes between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China concerning Liability for Damage during the Launch Stage of the Apstar-1, Apstar-2, and Apstar-2 Satellites’, Peking, 28 June 1994 (1995) UKTS no. 7, Cm. 2737; ‘Memorandum of Agreement on Liability for Satellite Launches between the Government of the United States of America and the Government of the People’s Republic of China’, 17 December

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would need to know when a financier obtains ownership of satellites on a security default. However, states may be unwilling to be saddled with such liabilities. In brief, assuming that a state is a party to one or more of the space treaties it may find it desirable at least to have notice of a potential addition to its duties and liabilities, and some might even wish as a matter of policy to have the right to disallow a transaction that has such implications. This could affect the operation of a space assets Protocol, and perhaps even its general acceptability. Other matters are still under discussion (2008). The Cape Town Convention itself deals with ‘associated rights’ but these relate to payment or performance under the terms of the security agreement as well as to assignment and subrogation.47 Space involves a variety of other matters, permissions and licences. The definition of transfer from debtors to creditors of so-called ‘related rights’ has still to be dealt with.48 Such rights are the permits, licences, authorisations and concessions issued by government authorities to the debtor to manufacture, launch and operate the space asset, including rights to use radio frequencies and orbital slots. The draft Space Protocol would include within its scope security interests in related rights along with security interests in rights defined as space assets. Permitting the separate registration of security interests in debtor and related rights would complicate the registry established by the Space Protocol, so the space industry working group is considering further simplification of the availability and process of registration. It may be asked whether an operating permit is a legitimate space asset within the terms of the draft Space Protocol if the property rights of the owner of a space object cannot be transferred to a financier holding a security interest. An Operator Permit can be difficult to obtain. By its national law the relevant licensing government may be required to conduct an examination of the operator to determine whether the grant of the permit is in the public interest as it sees it. Subsequent transfer of the licence requires another examination of whether that transfer is in the public interest and as a result the relevant government may disapprove any transfer of the operating permit. On the other hand an operating permit has value because it may be exclusive. For example only one operator can occupy an orbital slot. Another person or entity will not be able to obtain an identical permit. The holder of a permit may expect income from its exclusivity and thus a bank may decide to finance the activity for which the operator has a permit. The bank will consider the permit to have value for financing purposes. The operator may go bankrupt, but then the bank may be able to seize control of the operating permit provided that the licensing authority so agrees.49 In the US FCC permission is required for the transfer of the use of radio frequencies and of orbital slots by and to entities 1988 (2005) XXX-II AASL 259-60; http://www.oosa.unvienna.org/SpaceLaw/multi_bi/ china_usa_001.html; www.jaxa.jp/jda/library/space-law/chapter_3/3-2-2-8_e.html. 47 �� Cape Town Convention (n. 13) Art. 1.c, and Chapter IX, Arts 31–8. 48 See note 6 to the draft Space Protocol (n. 31). 49 Id.

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over which it has jurisdiction. US law then requires that the FCC decide whether an application to provide a commercial satellite service within the US is in the US public interest.50 Applications for licences must be supported by information the FCC specifies. It then determines whether the ‘public interest, convenience and necessity’ will be served by the grant of an application. Generally the FCC considers several factors: the availability of spectrum, the effect on competition, the technical characteristics of the system, interference with other systems and eligibility requirements. US national security, law enforcement, foreign policy and trade considerations are also taken into account. As a general matter we also note that satellite services are sometimes essential to national public safety and social order. For example the individual members of the ITU may suspend the international telecommunication services of their national operators in whole or in part, giving immediate notice to other ITU member states through the ITU Secretary General.51 On the other hand the ITU regime requires that emergency communications services continue to function to preserve the safety of life.52 States may also insert in an operating permit conditions to safeguard the continuity of services. Such conditions are imposed by public law, and financiers conclude financing agreements subject to these and similar safeguards. This issue is of concern to several participants in the UNIDROIT committee of government experts. A proposal was made that a contracting state should be able to make a treaty reservation limiting transfer of space assets used for safety of life functions such as the global navigation satellite systems, rescue and similar operations.53 Financiers, who need to know the risks involved in a security interest, want such a limitation of their remedies for default to be as narrow as possible. Governments want to protect basic safety services derived from satellites. Thus this is another critical issue in need of resolution. To cope with the potential morass of applicable national laws, regulations and limitations, Art. XXVI of the draft Space Protocol would permit states at the time of their ratification or accession to choose between two options as to insolvency remedies. The courts of a party will apply the option the state has selected.54 A state may also opt to decline to adopt either alternative, in which case insolvency remedies will be those provided under its national law, but the question must be asked whether space asset financing should occur under a variety of state laws or whether the field of space financing is better served by a recognised single private international law regime for private space commerce. 50 �� For major actions, the FCC can make determination only after issuing a public notice of the proceeding allowing the public and interested parties the opportunity to comment: 47 �� USC. §§ 301, 308. 51 ITU Constitution, Art. 35 (182). 52 ITU Constitution, Art. 40 (191). 53 See UNIDROIT 2004 study LXXIIJ – Doc. 13 rev., Art. XVI (see n. 31). This proposal is bracketed and subject to further discussion. 54 Ibid. Art. XXVI.

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Following a fraught period when it looked as though the Space Protocol might founder, a meeting of a new Steering Committee on the Space Protocol held at Berlin in May 2008 made further progress.55 It was there agreed that the draft Protocol should not apply to debtor and related rights. Such rights could be recorded in the future International Registry for space but only insofar as they were linked to the physical space asset. Should the debtor’s rights be separated from the physical space asset, then the Protocol would cease to apply to that particular asset. As to the precise identification of space assets that might be registered the Steering Committee agreed on the inclusion of only those assets which could be uniquely identified and independently operated. Other matters remain to be debated, clarified and agreed including the question of the priority as between assignments of competing rights. Some participants considered that creditors should only exercise their default remedies if that would not affect the use of other space assets that were physically or functionally linked to the secured space assets. Another unresolved question is whether the Space Protocol should protect the salvage interests of insurers in space assets. Finally, as mentioned above,56 there remains uncertainty as to any public service exemption from the exercise of default remedies regardless of creditors’ exercise of their remedies under the Convention and Space Protocol. Creditors require protection of their investment: states require public services to operate. This conflict of interest was considered to be ultimately a political issue to be resolved by governments. Accordingly the Steering Committee has asked a Sub-committee to formulate additional options for dealing with the public service issue and to present these at the next Committee of Governmental Experts in 2009. We await developments. Trade Restrictions Based on National Security Throughout the world agreements between private individuals are subject to public policy and national public laws. Public policy also affects the willingness of states to enter into agreements with other states under which technology is transferred either physically or in the form of intellectual property. Considerations of national security impinge on the sale, transfer or lease of space assets, their technology and their finance. Virtually any space asset may serve both military and civilian purposes either directly or through the possibility of its being adapted or technology analysed and copied. One example we have considered in Chapter 12 is the Global Navigation Satellite Systems (GNSSs). Another is technology supplied for one purpose but which could be analysed, copied and used to the 55 For a report on this meeting see http://www.iislweb.org/html/20080523_news. html. See also UNIDROIT 2008 Study LXXIIJ – Doc. 14. 56 �� Such services might include public telecommunications, safety of life services or GNSS navigation or aviation services.

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benefit of a foreign manufacturer.57 Consequently, many states restrict the export of space equipment or related intellectual property so that other states may not gain military or other advantage from knowledge of that technology. The degree of concern for such matters does vary between states, but at bedrock security is a major concern.58 Broadly the multilateral international agreements on trade would need to be strengthened greatly in order to satisfy the concerns of securityconscious states before they would replace the stricter unilateral restrictions imposed by individual countries. As it is, however, there are some international agreements of relevance in the matter. Within Europe, for example, there is an agreement between ESA state members and ESA as an agency as to the protection and exchange of classified information.59 For the West, however, the unilateral US trade restrictions are often the most relevant.60 The first major attempt at establishing multilateral arrangements as to the transfer and export of militarily sensitive materials was COCOM, the Coordinating Committee for Multilateral Export Controls, established in 1949 as a (later) seventeen-member informal and unofficial system based in the US Embassy in Paris.61 Under it three control lists dealing respectively with munitions, nuclear related material and high-technology industrial items were agreed. Applications by members to export such had to have the unanimous approval of the other members, the intention being to supervise and on occasion block trade in them. COCOM was dissolved in 1994 since it proved unable to cope with the change in the international situation. Arrived at in 1995 and operational from 1996 the Wassenaar Arrangement62 is the largest of the current multilateral arms control agreements. A voluntary 57 Cf. the restrictions and freedoms in the ‘original’ INTELSAT arrangements as to the use of patents and other technology invented for INTELSAT purposes: Lyall 129–41, and Chapter 11 – text following its n. 59. 58 Cf. the (Bush) US National Space Policy (2006): http://www.ostp.gov/galleries/ press_release_files/Unclassified%20National%20Space%20Policy%20--%20FINAL.pdf. 59 ‘Agreement between [the ESA states and ESA] for the Protection and Exchange of Classified Information’ (Paris, 19 August 2002) (UK) Misc. no. 14 (2003), Cm. 5936. The UK has not yet ratified this Agreement. 60 Cf. the possible effect of US requirements on the incipient Galileo, Chapter 12 supra �� p. 397�� . See infra as to ‘Unilateral Arms Controls’. 61 K.A. Dursht, ‘From Containment to Cooperation: Collective and the Wassenaar Arrangement’ (1997) 19 Cardozo L. Rev. 1079–123 at 1098–106. 62 Wassenaar Arrangement on Export Controls for Conventional Arms and DualUse Goods and Technologies: Basic Documents, Issue 7, 2007, http://www.wassenaar. org/publicdocuments/index.html. See also P. van Fenema, ‘Export Controls and Satellite Launches: What’s New?’ (2003) 46 Proc. IISL 239–45; L. Crapart, ‘The Implementation of Export Controls in the European Community – Making Balance Between Security and Commercial Considerations’ (2003) 46 Proc. IISL 246–9. Cf. D. Auer, ‘Wassenaar Arrangement: Export Control and its Role in Strengthening International Security’ (2005) Favorita Papers: http://www.wassenaar.org/links/FavoritaPaper.pdf.

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international agreement between some forty very diverse states scattered around the globe its Secretariat is in Vienna. Interestingly, and in acute contrast to COCOM, Russia and other former members of the Communist bloc are members.63 In terms of its ‘Initial Elements’ membership of the Arrangement is open on a global and non-discriminatory basis to states that comply with certain agreed criteria, but entry to membership is also subject to the consensus of existing members.64 These criteria include whether a potential member state is a manufacturer or an exporter of arms or industrial equipment, whether it has taken the Wassenaar lists as a referent in its export controls, whether its export controls are fully effective, and its non-proliferation policies. Operating through an annual plenary meeting and often on the basis of the recommendations of subsidiary bodies, decisions are taken by consensus, and the deliberations of the participating states are confidential. The Arrangement requires export control to be exercised in relation to both conventional arms and dual-use goods and technologies. Members must inform other members when conventional arms or dual use equipment are transferred from one country to another. The intentions are to promote transparency, increase responsibility; and to establish reporting requirements. However, a possible criticism is that the Wassenaar Arrangement does not have an effective enforcement mechanism, since it is dependent on compliance and on self-enforcement by its members. Another is that it does not necessarily achieve its aims.65 It remains, however, significant.66

63 �� Current (2008) members are: Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea, Romania, the Russian Federation, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, UK and US – a fascinating collection. 64 Wassenaar Arrangement on Export Controls for Conventional Arms and DualUse Goods and Technologies: Guidelines and Procedures including the Initial Elements (W.A. 2004), Sec. VIII and Appendix 4: http://www.wassenaar.org/2003Plenary/initial_ �� elements2003.htm�� . See R. Jakhu and J. Wilson, ‘The New United States Export Control Regime: Its Impact on the Communications Satellite Industry’ (2000) 25 AASL 157; Dursht (supra n. 61) and Shehadeh (infra n. 65). 65 K.K. Shehadeh, ‘The Wassenaar Arrangement and Encryption Controls: An Ineffective Export Control Regime that Compromises United States’ Economic Interests’ (1999) 15 Am. U. Int. L. Rev. 271–320; R.J. Seivert, ‘�� Urgent Message to Congress – Nuclear Triggers to Libya, Missile Guidance to China, Air Defense to Iraq, Arms Supplier to the World: Has the Time Finally Arrived to Overhaul the U.S. Export Control Regime – The Case for Immediate Reform of Our Outdated, Ineffective, and Self-Defeating Export Control System’ (2002) 37 Tex. Int. L.J. 89–110. 66 E.S. Waldrop, ‘Integration of Military and Civilian Space Assets: Legal and National Security Implications’ (2004) 55 Air Force L. Rev. 157–231 at 190–2; J. Jafer, ‘�� Strengthening the Wassenaar Export Control Regime’ (2002) 3 Chi. J. Int. L. 519–26.

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The Missile Technology Control Regime (MTCR)67 is another voluntary interstate arrangement which was originally established in 1987 between Canada, France, Germany, Italy, Japan, the UK and the US.68 Admission to membership of the MTCR depends upon the consensus of existing members. Regard is had as to whether a prospective member would strengthen the regime, whether it is committed to the aims of the MTCR, whether it has a strong export control system that would implement the regime, and whether it enforces these controls. MTCR works through annual plenary meetings, with intercalated informal meetings and discussions to restrict the proliferation of missiles, of complete rocket systems and of unmanned air-vehicles as well as of related technologies that might carry a 500 kg payload at least 300 km (186 miles). It also covers systems intended for the delivery of weapons of mass destruction. MTCR produces for its members ‘Guidelines for Sensitive Missile-Relevant Transfers’69 which are augmented by an Annex on ‘Equipment, Software and Technology’.70 The Annex distinguishes between Category I items and Category II items and covers a variety of spacerelated items.71 Category I items include equipment, materials, relevant software and technology. If any of these are included in a system, the system is also classified as Category I unless it can be separated or otherwise duplicated. Category I items are subject to presumption of denial of permission to export. Category II covers a wide area of parts, components such as propellants, structural materials, test equipment and flight instruments. These may be exported on a case by case basis. As under the Wassenaar Arrangement, the MTCR depends on self-enforcement by its members. There is no mechanism other than political to deal with a ‘breach’ of its terms. 67 The Missile Technology Control Regime: http://www.mtcr.info/english/index. �� html�� . Also see van Fenema supra n.62; Missile Technology Control Regime (MTCR), Legal Framework for Commercial Launch and Associated Services, Project 2001, at 375; Waldrop supra n. 66 at 189–90. 68 Membership is thirty-four members as of 2008: Argentina, Australia, Austria, Belgium, Bulgaria, Brazil, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg, The Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea, the Russian Federation, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, UK and US. (It is instructive to consider the names that do not appear.) 69 MTCR Guidelines for Sensitive Missile-Relevant Transfers: http://www.mtcr. info/english/guidetext.htm. 70 MTCR Guidelines: ‘Equipment, Software and Technology Annex’, MTCR/ TEM/2007/Annex 0001, 23 March 2007: http://www.mtcr.info/english/MTCR-TEM-2007ANNEX-001_2.pdf. The Annex does not apply to technology that is already in the public domain or to basic scientific research: note to Introduction para. (c). 71 Part 2 ‘Definitions’ of the Annex include ballistic missiles, space launch vehicles, unmanned air vehicles and cruise missiles. GPS/GNSS satellites are included in the Regime as Category II Item 11 ‘Avionics’ materials since they may be used to guide cruise missiles.

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The Hague International Code of Conduct against Ballistic Missile Cooperation, 2002 (HCOC),72 supplements the Missile Technology Control Regime (MTCR) just outlined. Any state may subscribe to the Code.73 Annual and other meetings of its subscribers are held (Art. 5.a) but decisions are subject to consensus (Art. 5.b). Under the Code members agree to restrain the proliferation of missiles. The Code applies to space vehicles because space vehicle programmes may be used to conceal ballistic missile programmes or the proliferation of such technologies (Art. 2.f and g).74 Transparency in order to increase mutual confidence is the major aim of the Code (Art. 4.a). Members annually declare their ballistic missile and space vehicle programmes (Art. 4.i and ii), the latter to the extent consistent with principles of commercial and economic requirements (Art. 4.a.ii). They also notify each other in advance of launches into outer space or test flights giving details of the planned launch notification window, the launch area and the planned direction of launch (Art. 4.a.iii).75 Detail is also annually reported as to what has been done in the previous year (Art. 4.a.i and ii). In relation to trade in space vehicles, subscribers to the Code are resolved to exercise vigilance in assisting the programmes of other countries so as to prevent contributing to delivery systems for weapons of mass destruction (Art. 3.d), to exercise the maximum restraint in their own ballistic missile programmes including if possible the reduction of national missile holdings (Art. 3.c), and not to contribute to or support a foreign ballistic missile programme that contravenes the obligations of that country under international disarmament and non-proliferation treaties (Art. 3.e). All of which looks very well, but it has to be acknowledged that under the HCOC there is no enforcement mechanism. All that exists is the voluntary resolution of questions that may be raised, particularly from the various declarations (Art. 5.c bullet point 2). That said, however, the HCOC aims can inform the decisions of states as to their own export control rules and procedures. Unilateral Arms Controls When multilateral arms controls are considered weak, states adopt unilateral arms controls of which one example of unilateral control is the US Export Control 72 ‘International Code of Conduct against Ballistic Missile Proliferation’, The Hague, 26 November 2002: http://www.acronym.org.uk/docs/0211/doc13.htm. (The original title was the ‘International Code of Conduct against Ballistic Missile Cooperation’ (ICOC).) See van Fenema, supra n. 62. 73 As at 2007 ninety-three states had subscribed the Code. 74 Interestingly, under HCOC Art. 3.a one of the agreed ‘General Measures’ is that subscribers to the Code resolve to ‘ratify, accede to or otherwise abide by’ the OST and the Liability and Registration Conventions. 75 Cf. S.C. �� Larrimore, ‘International Space Launch Notifications and Data Exchange’ (2007) 23 Space Policy 172–9. See also Chapter 4, p. 96.

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legislation of 1999,76 a result of US Congressional concerns over the export of satellites to China. The US legislation establishes the primary importance of national security as against the interests of business. It is particularly important because it significantly restricts US exports of advanced satellite technology. It also restricts the onward export by other countries of any restricted technology originating in the US. The process includes the following elements: 1. Export licence plans must first be approved by the US Department of Defense (DOD). 2. A Crash Investigation licence is required for US participants in a foreign accident investigation. The DOD monitors such investigations. This requirement does not apply to members of NATO. 3. An annual report is made to US Congress on export of US satellites for launch by China. 4. Registration and licensing requirements include all articles whether of US or foreign manufacture. Nothing may be exported or imported without a licence. Violation is a criminal offence. 5. Munitions transactions with countries that support terrorism is prohibited. 6. A Presidential power of waiver of trade restrictions exists if essential for US national security. US arms control is administered by the US Department of State (DOS) under the International Traffic in Arms Regulations (ITAR)77 and by the US Department of Commerce (DOC) under the Export Administration Regulations (EARS).78 A stricter US export control of space technology was established by the 1999 legislation when the US Congress transferred responsibility for satellite export control from the Department of Commerce to the Department of State (DOS). Satellites were placed in the same export category as military weapons systems. DOS regulation has proved to be more extensive, restrictive and time-consuming than DOC regulation. Added regulation has resulted in added cost. Most of the impact on US business has been felt on the satellite manufacturing side and the US share of the world market in satellite manufacturing has fallen. It is commonly agreed that these export and import controls are having adverse effects on the US launch vehicle market.79 76 US Public Law 105–261. See Waldrop (supra n. 66) at 191–5. Luo (infra n. 80) at 448–72 details history of US controls and summarises some cases; B.R. Reed, ‘The United Kingdom’s New Export Control Act of 2002 and its Possible Impact on United Kingdom Universities and Academic Freedom: A Comparison of Export Control in the United States and the United Kingdom’ (2003) 8 UCLA J. Int. L. and For. Aff. 193–237 at 198–215. 77 (US) 22 Code of Federal Regulations (CFR), Parts 120–30. 78 (US) 15 Code of Federal Regulations (CFR), Part 730 et seq. 79 Cf. A. Bini, ‘Export Controls of Space Items: Preserving Europe’s Advantage’ (2007) 23 Space Policy 70–2; R.C. Clifton and H. Stanislawski, �� ‘Aerospace and Defense

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Ultimately, US regulation of international trade in space products reflects US government policy.80 The US National Space Policy statement of 6 October 2006,81 is therefore important. Under it the US permits export of technology that is currently available in the global market place. Export of advanced technology, technical data, systems and components will rarely be approved, and only on a case by case basis. For the purpose advanced technology includes systems engineering, capabilities and techniques (including components) that are significantly better than those available outside the US. Of course trade in space assets may also be restricted by rules and regulations based on non-military-security considerations. Many national and international laws prohibit unfair trade practices and restrictions of competition. For example, Sec. 301 of the US Trade Act of 197482 prohibits unreasonable burdens and restrictions on US commerce.83 We note that this was effectively an attempt by a US company to restrict the activities of a foreign international organisation. The impact on trade in space assets by general competition laws is significant.84 Industries’ (2007)�� 41 �� Int. Law. 483–90; L.M. Weinberg and L. Van Buren, ‘Impact of U.S. Export Controls and Sanctions on Employment’ (2006) 35 Public Conract. L.J. 537–62; R. Zelnio, ‘A Short History of Export Control Policy’ The Space Review, 9 January 2006: http://www.thespacereview.com/article/528/1, and ‘The Effect of Export Controls on the Space Industry’, The Space Review, 16 January 1996: http://www.thespacereview.com/ article/533/1. 80 For a survey including historical review see W. Luo, ‘Research Guide to Export Control and WMD Non-Proliferation Law’ (2007) 35 Int. J. Leg. Inf. 447–98. 81 US National Space Policy, 6 October 2006, Secs 7, 8 and 12: http://www.ostp. gov/galleries/press_release_files/Unclassified%20National%20Space%20Policy%20-%20FINAL.pdf. 82 19 USC § 2411(a). The Agency of the US Trade Representative supervises international trade issues. 83 �� One example of a § 301 action, now superseded by the WTO Agreements, is the Transpace case. In 1984 a US company, Transpace Carriers, an entrant into the launch market, filed a petition under § 301 with the US Trade Representative alleging unfair competition through the European Space Agency (ESA) subsidising the launch operator Arianespace. There were four grounds of complaint: (1) that Arianespace applied a two tier pricing policy – a lower price (perhaps below cost) for ESA members and a higher price for others; (2) that France subsidised the launch range facilities; (3) that France provided free technical expertise; and (4) that France provided free insurance. Transspace lost the case indicating that the § 301 procedure may not be an effective tool for US regulation of unfair practices in the trade of space assets: see Determination �� (1985) 50 Federal Register, no. 140, at 29631–2. In his decision the US Trade Representative compared ESA and US practices. ESA practice was found to be not sufficiently different from US practices to be considered unreasonable. Cf. T.A. Brooks, ‘Regulating International Trade in Launch Services’ (1991) 6 High Tech. L.J. 59–109 at 93–4. 84 EU Council Regulation no. 139/2004, Art. 2 authorises the EU Commission to review concentrations of ownership to determine whether or not they are compatible with the Common Market. Cf. the relevance of the WTO (infra n. 85).

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Last, there is the area of trade in the ownership and provision of services. Here telecommunications is of major importance and encompasses a variety of considerations.85 Many states now do not permit monopolies in radio communication.86 In the US the FCC has the task of enforcement in the area of satellite communication.87 Furthermore, the US Department of Justice and the US Federal Trade Commission may regulate monopolies and mergers under US antitrust laws. Many states regulate transfer of radio frequencies and orbital 85 World Trade Organisation: Agreement on Telecommunications Services (Fourth Protocol to General Agreement on Trade in Services), Geneva, 15 February 1997 (1997) 36 ILM 354; http://www.wto.org/english/tratop_e/serv_e/4prote_e.htm. Cf. �� Y. Zhao, ‘The Commercial Use of Telecommunications under the Framework of GATS’ (1999) 24 Air and Space Law, 303–28. 86 �� See also Chapter 11. 87 �� (US) Federal Communications Act as amended, 47 USC Sec. 314. In 2002 the FCC rejected a horizontal merger between the two major DBS operators, DirecTV and EchoStar to form a ‘New Echostar’, Echostar Communications Corporation because a merger would directly harm competition: In the Matter of the Application of EchoStar Communications Corporation, General Motors Corporation, and Hughes Electronics Corporation; (Transferors) and EchoStar Communications Corporation (Transferee) CS Docket no. 01-348, 17 FCC Rcd 20559; 2002 FCC LEXIS 5602, adopted 9 October and released 18 October 2002, rel. no. FCC 02-284. A proposed merger of XM Satellite Radio and Sirius Satellite Radio, however, seems likely to be permitted (June 2008): Notice of Proposed Rulemaking, In the Matter of Applications for Consent to the Transfer of Control of Licenses; XM Satellite Radio Holdings Inc. (Transferor), to Sirius Satellite Radio Inc. (Transferee), MB Docket no. 07-57, FCC 07-119, 22 FCC Rcd 12018; 2007 FCC LEXIS 4991, adopted 25 June and released; 27 June 2007. The Department of Justice has approved the merger. The FCC Rules as to satellite digital radio (as opposed to satellite television) may be amended: In the Matter of Amendment of Part 27 of the Commission’s Rules to Govern the Operation of Wireless Communications Services in the 2.3 GHz Band; Establishment of Rules and Policies for the Digital Audio Radio Satellite Service in the 2310–2360 MHz Frequency Band, WT Docket no. 07-293; IB Docket no. 95-91; GEN Docket no. 90-357; RM no. 8610; 22 FCC Rcd 22123; 2007 FCC LEXIS 9913, adopted 17 December and released 18 December 2007, rel. no. FCC 07-215. In 2003 and subject to conditions the FCC approved the merger of DirecTV and Murdoch’s News Corporation even though that merger would enable News Corporation to exercise control over the programming of DirecTV. News Corporation is a print media business: In the Matter of General Motors Corporation and Hughes Electronics Corporation (Transferors) and The News Corporation Limited (Transferee), for Authority to Transfer Control, MB Docket no. 03-124, FCC 03-330; 19 FCC Rcd 473; 2004 FCC LEXIS 153; 31 Comm. Reg. (P & F) 795, adopted 19 December 2003, released 14 January 2004. In Europe the News Corporation control of the European DBS operator, BSkyB caused the EU Commission to examine whether the News Corporation violated its dominant position and thus violated the EU competition rules. The EU Commission concluded that the rules on Competition had not been violated, See discussion in P.B. Larsen, Vorwig, Bower, and Kim, ‘Direct Broadcast Satellites: National and International Regulation,’ 8 Modern Legal Systems Cyclopedia, William S. Hein, Publ. 1985, Rev. 2004.

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slots for reasons of public policy. For example, under the 1934 Communications Act as amended FCC permission is required for the transfer of the use of radio frequencies and orbital slots under FCC jurisdiction.88 The US legislation limits foreign ownership of certain US radio licences, restricting ownership by foreign governments, corporations and individuals. Section 310(4) of the Act is of particular significance because it requires the FCC to address indirect ownership greater than 25 per cent in broadcast common carrier licences. In reviewing proposed foreign investment pursuant to § 310, the FCC relies on principles set forth in its 1997 Foreign Participation Order (as amended) which includes a rebuttable presumption that foreign investment from WTO member countries is consistent with the public interest.89 In the UK under the Communications Act 2003 (2003, c. 21) the Office for Communications (Ofcom)90 exercises functions similar to that of the US FCC. The UK restrictions on the ownership of broadcasting and other media as well as telecommunications carriers are much less than those of the US, and now do not take foreign nationality into consideration.91 Other countries take a variety of positions on such matters.

88 49 USC 309. In ascertaining the US public interest the FCC must evaluate many elements, including technical, competitive, financial, legal factors, foreign ownership, utilisation of the radio spectrum, national security, law enforcement, considerations of foreign policy and trade implications. 89 �� See Amendment of the Commission’s Regulatory Policies to Allow Non-US Licensed Satellites Providing Domestic and International Service in the United States, Report and Order, IB Doc. no. 96-111, adopted 25 November 1997, 26 November 1997 Released; (1997) 12 FCC Rcd 24094; 1997 FCC LEXIS 6743; 10 Comm. Reg. (P & F) 587; Rules and Policies on Foreign Participation in the US Telecommunications Market, Report and Order and Order on Reconsideration, IB Doc nos 97-142 and 95-22, adopted 25 November 1997, released 26 November 1997 (1997) 12 FCC Rcd 23891; 1997 FCC LEXIS 6601; 10 Comm. Reg. (P & F) 750; In the Matter of Rules and Policies on Foreign Participation in the U.S Telecommunications Market, Order on Reconsideration (2000), IB Doc. no. 97-142, adopted 12 September 2000, released 19 September 2000. 15 FCC Rcd 18158; 2000 FCC LEXIS 4936; 22 Comm. Reg. (P & F) 867;�� Larsen ‘Future Protocol’ (supra n. 18) at 1099. 90 �� Ofcom was established by the (UK) Office of Communications Act 2002 (c. 11). 91 Nationality controls on ownership of UK broadcast media were abolished the amendment of the relevant parts of the (UK) Broadcasting Act 1990 (c. 42) by s. 348 of the (UK) Communications Act 2003 (c. 21).

Chapter 15

Commercial Activities and the Implementation of Space Law Introduction As can be seen from our other chapters space activities take place within a framework of international law that includes multilateral and bilateral treaties and customary international law. With the exception of North Korea all the spacecompetent and space-faring states are party to the Outer Space Treaty, and most are also party to ARRA, the Liability Convention, the Registration Convention, and are members of the ITU. There is therefore a broad base of multilateral agreement as to the international law of space. In addition a complex bundle of bilateral agreements may be relevant in a given instance. Account has also to be taken of ‘soft law’ that includes UN Resolutions and agreements formal and informal, memoranda of understanding, and a series of developing codes of

�� Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies (1968) 610 UNTS 205; (1968) UKTS 10, Cmnd. 3519; 18 UST 2410, TIAS 6347; (1967) 6 ILM 386; (1967) 61 AJIL 644. �� Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 22 April 1968; 672 UNTS 119; 1969 UKTS 56, Cmnd. 3997; 19 UST 7570, TIAS 6559; (1968) 7 ILM 151; (1969) 63 AJIL 382. �� Convention on International Liability for Damage Caused by Space Objects, 29 March 1972; 961 UNTS 187; (1974) UKTS 16, Cmnd. 5551; 24 UST 2389, TIAS 7762; (1971) 10 ILM 965; (1971) 66 AJIL 702. �� Convention on the Registration of Objects Launched into Outer Space, 14 January 1975; 1023 UNTS 15; (1978) UKTS 70, Cmnd. 7271; TIAS 8480; (1975) 14 ILM 43. For a clean text of the ITU documentation down to 2006 see the Collection of the Basic Texts of the International Telecommunication Union Adopted by the Plenipotentiary Conference, 3d Ed. 2007 (Geneva: ITU, 2007). For current information as to the status of space-related air-spacelateral agreements see the Annual Report of the IISL Standing Committee on the Status of International Treaties relating to Activities in Outer Space: (2008) Proc IISL and ff. (http://www.iislweb. org/committee.html), or the equivalent UN OOSA annual report, http://www.unoosa.org/ pdf/publications/ST_SPACE_11_Rev2_Add1E.pdf. For example the various Memoranda of Understanding that undergird the construction and operation of the International Space Station; see Chapter 4 – ‘Space Stations’.

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practice which lack enforcement mechanisms yet are increasingly complied with. How and how well space-competent and space-faring states exercise their rights and implement their international obligations and unofficial practices as to space is therefore important. The age of formal space law treaties may have closed. Certainly no new space law treaties have been adopted since the Moon Agreement of 1979. Stalemated, COPUOS has had recourse to useful statements of ‘Principle’ but that is different from formal law. Many new issues that need a legal response can best be regulated by national legislation, some of it implementing ‘codes of practice’. Commercial use of space, particularly by non-governmental entities, requires regulation in a manner not inconsistent with international law. Requirements range from launch permits, debris mitigation and the assignment of radio frequencies to restrictions which a state may impose for reasons of national security. In addition private commercial users of outer space enter into private law contracts, e.g. as to the launch of their satellites and their construction, as to constituting securities over their space assets, and for the resolution of disputes. Commercial operators are therefore regulated by private as well as by public laws. Countries that do not have specialised national space legislation are beginning to consider that the countries that do have such legislation exert too much influence in and over the various space markets. There is accordingly a motivation to adopt national legislation. OOSA and COPUOS have therefore begun to arrange workshops to educate and encourage the adoption of national space legislation. Obviously we cannot discuss the whole gamut of space law as it is implemented in detail by space-active states. It is, however, interesting to see how, within the constraints of their several constitutions, some space states have arranged such matters. The US and Australia are examples of nations with very developed national space legislation. The UK has adopted laws to satisfy its domestic needs. Russia, China and India are transiting from state space economies into private enterprise economies and are contemplating national legislation regulating private space activities. The Major Obligations Space activities are conducted by governments, by intergovernmental organisations, by hybrids (such as pre-privatisation INTELSAT and INMARSAT) and by private civil entities.10 This is in contrast with early expectations. At the start of the space age many thought that only governments would be active in the exploration and �� For example as to the mitigation of debris see Chapter 10 – ‘Space Debris’. A different example is the selection by Australia of 100 km as the height above which activities require licensing. See infra n. 38. 10 Cf. F.G. �� von der Dunk, ‘Sovereignty versus Space – Public Law and Private Launch in the Asian Context’ (2001) 5 Sing. J. Int. and Comp. L. 22–47.

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use of space and the notion of private entrepreneurs in space was limited to science fiction. Even so, the negotiators and drafters of the 1967 OST were farsighted. Its terms left open the possibility of private enterprise in outer space and in the subsequent decades that enterprise has developed. Now there are many different uses of space, from the purely scientific to the frankly commercial. However, undergirding all is the responsibility of individual states. This is outlined in the provisions of the OST.11 OST Art. VI, provides: ‘States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty’. Of course, as we saw in Chapter 3, OST Art. VI does not define which is the ‘appropriate’ state.12 Its language is simply a rephrasing of para. 5 of the 1963 UN Declaration of Principles, which speaks of the ‘State concerned’. No matter how one may interpret ‘appropriate’ or ‘concerned’ it is clear that the concept is in the singular and that the drafters intended only one state to authorise and supervise, and therefore be responsible for a particular private space activity. Correlatively by OST Art. VII a state that launches or procures the launching of a space object or whose territory or facility is used for a launch is liable internationally to another state party to the OST for damages the object may cause. While this obligation, further developed in the Liability Convention,13 applies only as between the OST parties, it is a real obligation of which most ‘space’ states have to take account. As at 1 January 2008 there were ninety-nine parties to the 1967 Treaty. Again, OST Art. VIII provides that an OST state retains jurisdiction and control over a space object and its personnel (if any) that has been entered on its registry while the object is in outer space, and that ownership is not affected by the presence of an object in space, on a celestial body, or its return to Earth. Such objects and personnel are to be returned to the state of registry if found elsewhere.14 From the ‘Principles’ of the OST, it follows that space-competent and space active states, as parties to that agreement, are legally responsible for their own acts. 11 Supra n. 1. 12 �� ‘[T]he appropriate state’ has been substituted for the ‘State concerned’ which appears in para. 5 of the 1963 UN Declaration of Principles; Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res. 1962/1963 (XVIII): (1964) 3 ILM 157. 13 Supra n. 3. 14 These provisions have, of course, been expanded for the parties to ARRA (supra n. 2) and the Registration Convention (supra n. 4), but the basic thrust of obligation is contained in the 1967 treaty.

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They are also responsible for the space activities of their national private commercial entrepreneurs and operators, and therefore in their own self interest they should make proper provision for licensing and supervision. For many purposes states have also to implement in national law their obligations under the other space agreements, ARRA and the Liability and Registration Conventions, and may take the opportunity also to introduce rules and regulations incorporating other requirements which they determine are desirable. These may include compliance with all or part of UN Resolutions relevant to what is being dealt with, and with the various unofficial codes that are being developed, for example as to the mitigation of space debris.15 The rights and obligations under the OST and the other space treaties are those of states. Under international law access to space is therefore controlled by states but the commercial use of space is increasing, as is demand for commercial launches.16 Given that a state governs the lawful activities of persons and entities under its jurisdiction, it has power to allow access to space to its nationals. Apart from the duties indicated above, OST Art. I para. 2 provides for the freedom of space ‘for exploration and use by all states without discrimination of any kind, on a basis of equality and in accordance with international law’. OST Art. II excludes any claim of sovereignty in outer space or as to celestial bodies. OST Art. XI requires that users of space shall be careful and protective of the interests of other users. Further as Art. 44.2 (196) of the ITU Constitution recognises, ‘radio frequencies and any associated orbits, including the geostationary-satellite orbit are limited natural resources and they must be used rationally, efficiently and economically’.17 When a state permits private users to have access to outer space that access will therefore be restricted in a variety of respects. This will include control through licensing of the launch provider, the date, time and location of a launch, the orbit and radiofrequencies to be used and the function and functioning of the particular satellite(s) to be employed. Individual states may add their own additional requirements. In its decision as to the licensing of a space activity a state must therefore balance the national interest with the international. States may confer rights of access to space on individual commercial operators on a case-bycase basis, or may proceed on a more general basis through national implementing legislation that sets out publicly the appropriate procedures and requirements for licensing. Thus Australia, the UK and the US have adopted legislation conferring rights of access to qualified private commercial launch operators. On the other hand India and many other countries have not yet adopted national legislation but issue individual launch permits based directly on the rights of the state under the space treaties and international law. Whether states adopt implementing legislation 15 �� See Chapter 10 – ‘Space Debris’. 16 E.J. Reinstein, ‘Owning Outer Space’ (1999) 20 Nw. J. Int. L. and Bus. 59–88. 17 Cf. F. Lyall, ‘The Rational, Efficient and Economic Use of Space: Three Suggestions’, M. Benkö ed., Air and Space Law in the 21st Century: Liber Amicorum K.-H. Böcksteigel (Cologne: Carl Heymanns Verlag, 2002) 386–95.

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usually is determined by the volume of private space commerce for which they are responsible. That said, it also has to be said that states obtain more effective and uniform oversight of space launches by the adoption of general national legislation. A state that does not have general national legislation may well find that its nationals have engaged in unreasonably risky activities and therefore subjected it to an unexpected liability for damages caused through a launch failure or a mishap in outer space. Further, commercial operators will usually prefer to bring themselves under the jurisdiction of a particular licensing state where they know in advance the likely terms of the licence, including whether their liability (under the Liability Convention) is capped or has to be met be appropriate insurance.18 Investors want to be able to quantify the risks, particularly of the large sums which space activities require. However, arguably such capping of liability operates as a subsidy to launch and other entrepreneurs active in the space market.19 The drafters of the existing space law treaties did not foresee changes in the private ownership of satellites in orbit. This can cause problems if a privately owned satellite is transferred to a new owner located in a state different from the launching state. In such a case the registration and oversight responsibilities as well as the potential liability for damage of the original launching state or states under the OST or the other space treaties continue even though the original launching state is no longer the state appropriate to supervise the satellite. One instance is the New Skies NV saga. During the progress of INTELSAT towards privatisation New Skies NV was created in The Netherlands and received ownership of several satellites formerly owned by INTELSAT. The Netherlands refused to register these satellites under the Registration Convention because of the possible liability and oversight implications of registration.20 An alternative scenario could emerge when the Space Protocol to the Cape Town Convention on Security Interests in Mobile Equipment is active, should an element of the ‘security’ over a satellite involve the transfer of its ownership in the event of a default.21 It does seem obvious that the state ‘appropriate’ to authorise and exercise the continuing supervision of the activities of a private operator required by OST Art. VI ought to be the state with the best connections to it. However, we also note that the space treaty arrangements as to rights and duties are framed in terms of the single integral ownership of a satellite. In modern commercial arrangements that situation will not necessarily apply. Multiple ownerships (e.g. of different 18 Thus Sea Launch, a partnership of US, Norwegian and Ukraine nationals, which launches from the high seas, reorganised in order to benefit from the limited exposure to liability available under US legislation. 19 See Chapter 4 – ‘Compensation for Damage, Liability Caps and Insurance’ text following n. 122. 20 Cf. Note Verbale of 18 February 2004 from the Permanent Mission of The Netherlands to the United Nations (Vienna) addressed to the Secretary General, UN Doc. A/AC.105/824, 16 March 2004. See Chapter 4, p. �� 92�� and ff. 21 See Chapter 14 – ‘The Cape Town Convention and the Draft Space Protocol, 2001’.

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transponders – separate transponder leases are common) or joint ownerships of a satellite where the ‘owners’ are of different nationalities, are conceivable. The relevant treaties therefore require amendment to provide for multiownership and for changes in the ownership of satellites in orbit. An alternative way to resolve such new ownership problems is the use of bilateral agreements by which a state assumes the OST Art. VI responsibilities of the ‘appropriate’ state as well as any other emergent liabilities.22 The corollary is that a state could refuse to license the ‘new’ activity until such matters are satisfactorily compromised. The basic position is that a state cannot have unlooked for duties and potentially major liabilities imposed upon it merely by the will of commercial entities or entrepreneurs. Currently the greatest barrier to space commerce is the high cost of launching a satellite. In 2008 it cost US$10,000–20,000 per kilogram (2.2 pounds) to launch objects into outer space. This varies depending on whether the owner of the space object employs a US, French, Russian or a Chinese launch operator. It is difficult to quantify or compare exact costs because states have different mixes of direct and indirect subsidies to launch operators.23 The real cost of private commercial space launches is also distorted because launch operators tend to benefit from advances in technology developed for military launches in certain countries. Big US space launch operators such as Boeing, Lockheed Martin and Orbital Sciences Corporation have had difficulty competing with low-cost launch competition from the Ukraine, Russia and China.24 One consequence has been the willingness of large US launch operators to work with low-cost launch operators in order to take advantage of less-expensive Russian and Chinese launch systems and to enjoy economies of scale. Thus in 1995 Lockheed joined the Russian launch operators Krunichev Space Scientific and Production Space Center and RSC Energia to form International Launch Services (ISL), which uses Russian Proton rockets.25 Boeing joined companies from several nations to form Sea Launch, which launches from the high seas under US authority and supervision. Furthermore, two large US companies, Lockheed and Boeing, are considering the merger of their governmental launch businesses in order to reduce cost of maintaining two separate governmental launch services. This merger should be viewed in the context of the need of the US Government for a reliable commercial launch service to launch its own satellites. This corresponds to the European Space Agency (ESA) preferential use of the European launch service, Arianespace.26 While these US consolidations, 22 �� R.J. Lee, The Australian Legal and Regulatory Framework for Space Launches, Guide for the Space Industry,�� at 28–33. 23 See Transpace, Determination under Sec. 301 of the Trade Act of 1974, 50 Federal Register 29631, 22 July 1985: See supra p. 464, n. 83. 24 For early data see Reed, infra n. 34. 25 Infra n. 33. Lockheed Martin later sold its share, and the major shareholder in ILS is now Krunichev although ILS remains a US company. As to European collaboration with Russia, see Starsem, infra n. 32. 26 Lee, supra n. 22, at 23.

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co-operations and collaborations raise legal questions as to compliance with US antitrust laws, they also raise important national security questions. States need to have a domestic launch capability for reasons of national security. Another consequence of competition among launch operators has been the recent formation of companies that seek to use technologies simpler than those used by the large companies so as to bring launch costs down about US$20,000 per kilogram down to about US$2,000 per kilogram. The 2004 Ansari Xprize competition boosted hopes for cheap launches into outer space. Scaled Composites, the winner of the Ansari-X prize with SpaceShipOne, has plans for re-usable space vehicles.27 Other companies are also active. Space Exploration Technologies (SpaceX) is developing simple inexpensive launch vehicles and will charge only one-quarter of the price demanded by established launch operators to place a payload of approximately 1,000 pounds (c. 455 kg) into a low Earth orbit of approximately 300 miles altitude.28 The Bigelow Corporation has similar plans, and has conducted two successful launches (Genesis I and II) from Siberia.29 Particular States How and how well particular states implement their obligations is important. Some are major players involved either directly or through their national entities in launch activities and/or in the construction and operation of appropriate satellites. Other states are active only through purchasing the services and technologies provided by others. In the future yet others may only provide a launch site.30 Here, partly for reasons of wordage and partly constrained by the availability of information, we

27 �� Bert Rutan of Scaled Composites was financed for the X Prize effort by Paul Allen, co-founder of Microsoft. The Virgin Galactic Company will use Scaled Composite technology to build several reusable space vehicles (RLVs) to carry ‘space tourists’. The price per passenger will be about $200,000. Scaled Composites is (2008) owned by Northrop Grumman. Its website is http://www.scaled.com/. 28 �� That the space launch business is risky was proved by the failure of the first three SpaceX launch attempts, succeeding with the fourth on 28 September 2008. SpaceX is at http://www.spacex.com/company.php. Elon Musk, a main shareholder, was a co-founder of PayPal. 29 �� Bigelow Aerospace LLC is at http://www.bigelowaerospace.com/. Its space vehicles are inflated once in orbit, and plans include a space hotel. Its founder owns a hotel chain in the US. 30 A number of small states have contemplated the building of a space port on their territories. Commercial orbital and sub-orbital spaceports are licensed or planned in Canada, the US (Alaska, California, Florida, New Mexico, Oklahoma, Texas, Virginia), the United Arab Emirates, Australia (either Woomera or Christmas Island) and Singapore (data to 2008). US investors have also considered constructing a space-port in the Virgin Islands or Venezuela.

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confine ourselves to outlining the steps taken by only a few space-active states.31 These affect commercial launch providers such as Starsem,32 International Launch Services33 and others which are in the market for commercial launches. Various of the articles cited hereafter contain information about the attitudes of states other than those indicated in their titles, and we would encourage readers to refer to them.34 Australia Australia is well suited for space launches having wide open spaces removed from dense urban centres, being near to the Equator, and also being sovereign of Christmas Island.35 Its progress towards space has been erratic, but the Australian Space Industry Centre of Commerce (ASICC) is active in support of the development of an Australian space industry as is the Australian Commonwealth Scientific and Industrial Research Organisation (CSIRO).36 The Australian Space Activities Act was passed in 1998 and amended in 2002.37 The purposes of the Act are to 31 The OOSA website maintains a library of national space legislation at http:// www.unoosa.org/oosa/en/SpaceLaw/national/index.html. See also for data down to 2000: ‘Review of Existing National Space Legislation Illustrating how States are Implementing, as Appropriate, their Responsibilities to Authorize and Provide Continuing Supervision of Non-governmental Entities in Outer Space: Note by COPUOS Secretariat’, A/AC.105/C.2/ L/224: http://www.unoosa.org/pdf/limited/c2/AC105_C2_L224E.pdf. 32 Starsem is a European/Russian organisation which provides launch services using the Russian Proton launch system: http://www.starsem.com/starsem/starsem.html. 33 International Launch Services (http://www.ilslaunch.com/about-us/) is a US/ Russian collaboration using the Proton launch vehicle. ILS is a US company now largely owned by Krunichev the designer and builder of the Proton system. INMARSAT is using ILS for its current (2008) launch programme of satellites built by EADS/Astrium: http:// www.ilslaunch.com/inmarsat4f3-mission-control. 34 �� Thus see J.A. Manner, ‘President Bush’s 1990 Policy on the Commercial Space Launch Industry: A Thorn in Economic and Political Reform in the Former Soviet Union: A Proposal for Change’ (1993) 58 J. Air L. and Comm. 981–1040 which has data on China and Australia as well as the US and Russia; J.L. Reed, ‘The Commercial Space Launch Market and Bilateral Agreements in Space Launch Services’ (1997) 13 Am. U. Int. L. Rev. 157–218 which has extensive data down to its date on US bilateral arrangements with China, Russia and the Ukraine. 35 But see infra n. 41. 36 Australian Space Industry Centre of Commerce: http://www.asicc.com.au/: Australian Commonwealth Scientific and Industrial Research Organisation (CSIRO): http://www.csiro.au/. See also the Interim Report of the Senate Inquiry into ‘The Current State of Australia’s Space Science and Industry Sector’, June 2008. 37 Australia: Space Activities Act (no. 123, 1998), as amended/consolidated to 2008: http://www.austlii.edu.au/au/legis/cth/consol_act/saa1998167/�� – 1998 text in Project 2001 Workshop on Legal Framework for Commercial Launch and Associated Services (Cologne: Inst. of Air and Space Law, 2001) 259–303. or Project 2001 Legal Framework for

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implement Australian obligations under the space treaties; to attract investors in outer space; to offset the liability of the Australian Government under the Liability Convention by transferring much of it to private launch operators, and to create a safe environment for launches. The Space Launch Act specifically applies to launches or attempted launches to an altitude of at least 100 km above mean sea level.38 It provides for the authorisation and supervision of private space activities through the issue of licences, permits and exemptions. It also provides for the limitation of the liability of a licensed launch operator. Launches are registered in accordance with the Registration Convention. Australia has entered into a number of bilateral co-operation agreements which are also implemented by the Act. Violation of the Act may result in penalties. Launch accidents will be investigated. An applicant for a space launch licence must also comply with a number of other legislative provisions,39 including the Australian Radiocommunications Act of 1992 to obtain authorisation of the necessary radio frequency or frequencies, the Civil Aviation Safety Regulations of 1998 for access to cleared air-space for the launch or re-entry route,40 the Customs Regulations of 1998 to comply with export controls on national security assets, the Customs Tariff Amendment Act of 2001, the Transport Safety Investigations of 2002 regarding the investigation of accidents, and the special regulations regarding the Christmas Island Launch Centre.41 The Act regulates commercial launches by Australian nationals both in Australia and abroad and launches from Australian territory by non-Australian entities.42 The Act governs both launches to and re-entry from outer space, and it requires an overseas launch certificate for a launch outside of Australia by an Australian national. Special authorisation is required for the return to Australia of a space object launched overseas. Finally, a launch operator may obtain an exemption certificate for emergency launch(es).

Privatising Space Activities, 340. See also the Department of Innovation, Industry, Science and Research information on space activities and its regulation at http://www.industry.gov. au/Pages/A2ZIndex.aspx?keyword=space. R.J. Lee, The Australian Legal and Regulatory Framework for Space Launches, Guide for the Space Industry. See also Hunt and Hunt, Regulatory Handbook for Australian Launch Operators, (2nd ed. 2002). 38 By Sec. 8, ‘Definitions to “launch” �� a space object means launch the object into an area beyond the distance of 100 km above mean sea level, or attempt to do so’. 39 For the Commonwealth of Australia Consolidated Acts see http://www.austlii.edu. au/au/legis/cth/consol_act/. Secondary legislation is available from the Australian Legal Information Institute: http://www.austlii.edu.au/. 40 The Australian Launch Map is at http://www.innovation.gov.au/General/MECSLASO/Pages/AustralianLaunchMap.aspx. 41 A spaceport was to be developed on Christmas Island, 2,600 km/1,800 miles north-west of Australia in the Indian Ocean, to be used by an Asia-Pacific Space Centre. This project seems currently (2008) to be in abeyance. 42 Lee, supra n. 37, at 10. The Act does not apply to intergovernmental organisations wholly or mainly active in space of which Australia is a member (Sec. 17).

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Whereas in some states (e.g. the US) commercial launches frequently use a government operated launch facility, the Australian Act assumes launches will be from private launch facilities and a private operator must launch from an authorised launch site.43 The Act, therefore, places special emphasis on the licensing of a private launch facility in Australian territory. To obtain a licence the launch facility operator must show: competence to operate the launch facility; compliance with Australian environmental laws; assurance that the public health and safety risks of the launch are reasonable; that the planned flight will be safe; and that the launch facility and the launches from it will be safe. The launch must not endanger Australian national security.44 The launch licence provides for a particular kind of launch craft being launched in a specific direction. Any change in launch craft and launch direction requires a variance or a new licence. In special cases the Australian Government may recognise a foreign government certification of the engineering of the technical details of a launch facility and of the launch operation itself. The operator must file an application for such recognition along with the launch application.45 An application for a launch facility licence must be accompanied by: (1) a management plan explaining how the entire launch facility will be managed; (2) an environmental protection plan demonstrating ability to monitor environmental effects to comply with Australian environmental laws and a compliance statement from an independent environmental expert; (3) an emergency plan indicating how the operator will meet any emergencies; (4) a technology security plan assuring compliance with Australian obligations under arms control agreements including the prevention of unauthorised access to sensitive information; (5) a risk hazard analysis plan showing how the operator will comply with Risk Hazard Analysis Methodology of the relevant Flight Safety Code; (6) a flight test plan regarding the launch of new technology vehicles describing the reason for the flight, the configuration of the craft, the vehicle tracking system, launch and launch termination procedures, and reporting the flight test to the Australian Government.46 To obtain a permit for a launch in Australia the private commercial operator of the launch vehicle must show evidence of: (1) a programme management plan showing planned management of ground operations, the adequacy of flight safety and of launch procedures, employee awareness of their duties and ability to meet emergencies and relevant communication arrangements; (2) a technology security plan indicating procedures for prevention of unauthorised access to technology information as well as compliance with national security restrictions; (3) a flight 43 Australian Space Activities Act, Sec. 18; Lee, supra n. 37 at 12–22. Also see the Australian Space Licensing and Safety Office at http://www.industry.gov.au� ��. 44 Lee, supra n. 37, at 10. 45 Lee id. The r�� ecognition of a foreign government certification encourages foreigners to launch in Australia as does the efficiency obtained through avoiding unnecessary duplication of certification requirements. 46 Lee, id.

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safety plan indicating compliance with the Australian Flight Safety Code, data supporting risk analysis and a report to the government on compliance with and independent assessment of compliance with the Flight Safety Code; (4) an insurance plan giving the name of the insurer, risks covered and insurer’s certification of sufficient financial means; (5) an environmental plan showing preparations for monitoring and mitigating environmental hazards, and the means of carrying out such plans.47 The applicant for an Australian launch permit is required to obtain insurance coverage against possible third party liability as well as insurance against possible liability for damage caused to the Australian government during launch operations. Alternatively, the applicant may self-insure by proving possession of assets sufficient to cover potential liabilities. The required insurance is for either 750 million Australian dollars or maximum probable loss (MPL) as determined by a formula that takes into consideration probability of casualty loss, third-party property loss, environmental damage and economic loss, and the cost of accident investigation in the case of a failed launch.48 An applicant for a launch permit is required to mitigate the formation of debris. The applicant must present a plan to prevent impact of debris on designated areas – primarily densely populated areas and valuable facilities such as oil wells and factories.49 Australia further requires an environmental plan showing preparations for monitoring and mitigating environmental hazards, and means of carrying out such plans.50 On occasion Australia may license a launch by an Australian entity that is to be carried outwith Australian territorial jurisdiction. In that connection it may enter into intergovernmental agreements with foreign governments allowing them to supervise launches overseas by Australians.51 Thus, if an Australian citizen launches in the US, Australia may refer oversight responsibility to the US Government (similar to US deference to Australia if a US citizen is to launch in Australia). In the absence of a relevant intergovernmental agreement, the Australian applicant must (1) meet the Australian insurance requirements, (2) show that threats to public safety and health are low, (3) that the application does not prejudice Australian national security interests, and (4) provide evidence of the insurance coverage required for domestic launches.52 Part 5 (Secs 76–9) of the Australian Act creates a Register of Space Objects. This records the information prescribed by Art. IV of the Registration Convention, 47 �� Australian Space Activities Act, Sec. 26. See Lee supra n. 37 at 23–37. Consult also Australian Space Licensing and Safety Office, at http://www.industry gov.au. 48 Id. See also infra text at n. 54. 49 �� Lee, supra n. 37 at 29–33. For the permitted launch corridors see the Australian Launch Map, supra n. 40. 50 Lee supra n. 37, at 25–29. 51 Reference point n. 106, infra. Cf. the US legislation there noted. 52 �� Australian Space Activities Act, Sec. 12; Lee, supra n. 37, at 47–44. See Australian Space Licensing and Safety Office, at http://www.industry gov.au.

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but may contain additional information. It is held on computer and is available for public inspection. Australia has been diligent in registering the required information with the United Nations in accordance with the Convention.53 Part 4 of the Australian Act deals with liability for damage by space objects.54 Aside from the liability of Australia itself for damages under international law, damages are recoverable by third parties from the party responsible for an Australian authorised launch provided that the damage occurs during a ‘liability period’. This is a fixed period of thirty days after a launch, or from the initiation of re-entry movement to the landing on the surface of the Earth.55 The liability of the responsible party is capped to the ‘maximum probable loss’ discussed above if the terms of the relevant permits and licences have been complied with by the responsible party.56 Part 4 otherwise imposes time-limits from the bringing of an action that repeat those of the Liability Convention. Liability under the Act implements the Liability Convention in that the responsible party is absolutely liable for loss and damage to the surface and in the air. Damage to objects in outer space will result in liability only if the claimant can prove that the damage was caused by the fault of the responsible party. However, extraterritorial liability under the Australian Act is questionable. An Australian launch operator could possibly be sued elsewhere than in Australia thereby avoiding the Australian Act limitation of liability. An injured foreign party might therefore be motivated to bring a large claim abroad should it or a relevant state not proceed under the Liability Convention.57 In the event of a successful international claim against the Commonwealth of Australia under the Liability Convention, the responsible party has to repay the Commonwealth of Australia the lesser of the compensation payable by Australia or the insured ‘maximum possible loss’ provided that the terms of relevant licences and permits have been complied with. The Australian Space Activities Act 1998 as amended must be read in the context of other Australian legislation and procedures relating to outer space, for example the radio-communication laws, the assignment and registration of orbital slots and military considerations. R.J. Lee draws attention to several problems of the Australian launch licence. For example, the launch permit covers both the launch and re-entry of the launch vehicle, but does not clearly regulate the re-entry of any space object that may be launched by the launch vehicle. Lee suggests that the government should specifically include the return of the satellite or object from 53 Lee supra n. 37, at 50–51. 54 �� Reference point n. 48. 55 �� Australian Space Activities Act, Secs 63.1.b and 63.2.b, the ‘liability period’ being defined in Sec. 8. 56 �� Lee supra n. 37 at 51–67. Australian Space Licensing and Safety Office, at http:// www.industry gov.au. 57 Lee, supra n. 37 at 59–63. Not all states are members of the Liability Convention and so in a particular incident the option of proceeding under the Convention might not be open.

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outer space in an ‘Authorisation of Return’.58 It would be in the interest of a launch applicant to request authorisation of the space object both while in outer space and during re-entry in order to bring the existence of the object properly under Australian supervision and as a result obtaining limited liability protection while in outer space and during re-entry. China The Chinese space programme is entirely funded by the government and is administered through the China National Space Administration.59 It has also provided launch services at favourable prices to foreign operators from its launch site at Xichang. China has ratified the four basic international space law treaties but not the 1979 Moon Agreement. It relies on the international treaties for its regulation of commercial space activities and has not yet adopted national legislation of the nature of the Australian and US laws, nor is there specific Chinese national legislation regarding private commercial space enterprise.60 However, China does have national legislation of limited application and is now considering more comprehensive space legislation. A White Paper on its space activities, first issued in 2000 and revised in 2003,61 states that the Chinese primary focus on space policy is: 58 Lee, supra n. 37 at 23. There is a similar problem under the US Commercial Space Launch Act, infra at n. 138. 59 China National Space Administration: http://www.cnsa.gov.cn/n615709/cindex. html. 60 �� Y. Zhao, (1) ‘Liberalization of Launch Services within a Plurilateral Regime, with Reference to China’s Commercial Launch Services’ (2006) 7 J. World Trade and Invest., 433–41 (our pagination is from the original paper at the Bangalore Space Law Conference 2005, 1–49)�� ; (2) ‘National Space Legislation, with Reference to China’s Practice’ (2007) XXXII AASL 131–46; (3) ‘National Space Legislation in Mainland China’ (2007) 33 J. Sp. L. 427–36, with China legislation at 437–56; M. Xiaofeng, ‘National Liability for Damage Outside Territory Caused by Space Objects and Suggestion for China’s Legislation’ (2003) 46 Proc IISL 202–9. Based on prior UK legislation the Hong Kong Special Administrative Region does, however, have rules on commercial activities. See The Outer Space Ordinance, Chapter 523, 1999, Gazette no. 55 of 1999. This includes the requirement of a licence for space activities (Secs 4–7), the operation of a register of space objects (Sec. 9), an obligation on licensees to indemnify against damages claims (Sec. 12) and criminal offences (Sec. 14). 61 The State Council Information Office, China’s Space Activities, http://www.cnsa. gov.cn/n615709/n620681/n771967/69198.html�� 15 December 2003�� , and China’s Space Activities in 2006, http://www.cnsa.gov.cn/n615709/n620681/n771967/79970.html. See also ‘China’s White Paper on Space Activities’, 12 October 2006 (2007) XXXII AASL 487–501; �� http://english.people.com.cn/200510/123/eng20061012_311161.html�� ; See also China legislation (2007) 33 J. Sp. L. 437–56.

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Space Law Adhering to the principle of long-term, stable and sustainable development and catering to the development of space activities and serving the State’s comprehensive development strategy; upholding the principles of independence and self-renovation and actively promoting international exchanges, self-reliance and self-renovation and actively promoting international exchanges and cooperation; selecting a limited number of targets and making breakthroughs in key areas according to China’s national situation and strength; enhancing the social and economic returns of space activities and paying attention to the motivation of technological progress; sticking to integrated planning, combination of long-term and short-term development, combination of spacecraft and ground equipment, and coordinated development.

China has promulgated national procedures for the registration of space objects. The registration office is maintained by the Chinese Commission for Science, Technology and Industry which in turn passes the registration information on to the Ministry of Foreign Affairs for registration with the United Nations, as required by the Registration Convention.62 The Commission has also issued interim regulations under which the Commission issues licences for non-military launches and for the re‑entry of space objects.63 An application for a non-military launch licence and the launch permit itself must describe the space project, the time and place for the launch, the duration for which the permit is required, and must indicate the office issuing the permit. The licensee must also obtain third-party liability insurance. A licensee planning to launch a space object manufactured in China must first obtain a permit for the space object to leave the point of manufacture. The permit must be obtained six months before the planned launch. The Science, Technology and Industry Commission’s interim measures are linked to possible civil and criminal penalties for fraud, for unauthorised launches, and for abuses leading to liability of and damage to the state.64 Because space objects may have military value, the Chinese regulations also concern national security. Export of objects with military value is controlled by the Chinese Government and satellites, launchers and missiles are included on the Chinese Military Products Export Control List.65 As noted, China is considering adopting comprehensive legislation on outer space activities. In the short term, however, the Chinese Government intends to experiment with piecemeal regulation and study the results of short-term measures. Based on its experience China will then proceed to adopt comprehensive 62 Zhao (1), supra n. 60, at 15. 63 Ministry of Foreign Affairs, Commission of Science, Technology and Industry for National Defense, Interim Measures, 2002, Art. 4. Zhao (1), supra n. 60, at 15. 64 Id. 65 Id. Regulations on Export Control of Missiles and Missile-related Items and Technologies.

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legislation on the licensing of commercial enterprises, liability, insurance, financing, international co-operation and co-ordination. This will implement China’s obligations and duties under the international space law treaties. Finally China is instituting a space debris monitoring and mitigation programme. The plan is not only to track debris in space in order to avoid collisions, but also to mitigate the generation of new debris.66 India An Indian Space Commission and a Department of Space (DOS) were first set up in 1972. Now the Indian Space Programme is administered directly by the Office of the Prime Minister.67 Within this framework, the Indian Space Commission establishes national space policy which is implemented by the Department of Space through four agencies: the Indian Space Research Organization (ISRO),68 the National Remote Sensing Agency (NRSA),69 the Physical Research Laboratory (PRL) and the National Mesosphere–Stratosphere–Troposphere Radar Facility (NMRF). In 1992 the Indian Government established the Antrix Corporation as a government corporation ‘to facilitate commercialization of space activities and to accelerate export of space launch services as a means of recovering part of the budget expenditures in this sector by the government’.70 In view of an increasing demand for space launch facilities and services, India’s next step is to permit and encourage private operators to engage in these activities.71 An Indian Government statement on space policy of 199972 outlined how India intended further to develop various commercial uses of outer space. Through ISRO the Indian government maintains several launch facilities within India so there is no competition between Indian launch facilities. ISRO also builds appropriate launch vehicles. India operates a significant number of satellites for communications, 66 �� Zhao (1), supra n. 60 at 15–18. Xiaofeng, supra n. 60. Regulations on Control of Military Products Export; http://www.wsichina.org/subprogram.cfm?subprogrammi=2&ch arid=1#00008. However we note China’s destruction of its own 1999 Feng Yun 1-C polar orbit weather satellite on 11 January 2007 – see Chapter 10, c. n. 128. 67 �� R. Kaul, ‘National Space Legislation: A Blueprint for India’, Proceedings of the ISRO – IISL Space Law Conference ‘Bringing Space Benefits to the Asian Region’, Bangalore, India, 2005 at 2–3; K.S.R. Murthi, et al. ‘Legal Environment for Space Activities’ (2007) 19 Current Science 1823–7 (Special Section: India Space Programme): http://www. ias.ac.in/currsci/dec252007/1823.pdf. 68 �� See http://www.isro.gov.in/about_isro.htm. 69 �� The National Remote Sensing Agency (user registration required) – http://gateway. nrsa.gov.in/index.jsp. 70 Antrix Corporation Ltd: http://www.antrix.gov.in/. 71 Kaul, supra n. 67, at 2–20. 72 Kaul, supra n. 67, at 2–19.

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educational, medical and military purposes. It has also become a reliable national and international supplier of remote sensing data.73 Commercial space activities are subject to the guidelines and regulations issued by the Department of Space and other relevant government agencies. India relies mainly on the four main space law treaties in its regulation of commercial space activities.74 Under Art. 73.1 b of the Indian Constitution,75 the Indian Government has power to implement its rights and obligations under international treaties without further national legislation. However, national legislation would be required if the India government were to incur a financial liability under the Liability Convention, since an Act of the Indian Parliament would be necessary to authorise the supply of the necessary funds. In addition the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act 2005 implements UN Security Council Res. 1540 (2004),76 and OST Art. IV.77 Debris is to be mitigated.78 Private operators may obtain an Indian launch licence. For example, in 2002 the Indian Government issued a private launch licence for the launch of a communications satellite. This licence was not used. Usually private commercial communications operators lease capacity from, or through, ISRO. For their guidance, in 2005 ISRO issued ‘Norms, Guidelines and Procedures for Implementation of a Policy Framework for Satellite Communications for India’.79 Space commerce is considered a vital part of India’s economy. In formulating its national laws and regulations for private operators, India not only considers its own unique economic, social and political circumstances but also evaluates the experiences of other countries which have already established national regulation of private commercial space services operators. The US, Australian and Russian regulatory experiences are useful precedents. The Indian telecommunications market is the fastest growing in the world and as a result international companies are anxious to enter it. As at 2008, a high volume of foreign investment has been pouring into Indian high technology commerce, including into space commerce. Foreign investments were made 73 �� ISRO markets Indian remote sensing data through the Antrix Corporation, supra n. 70. Cf. http://www.isro.gov.in/commercial.htm. 74 �� See http://www.isro.gov.in for information about Indian national regulation of space activities. India has signed but not ratified the Moon Agreement. 75 Constitution of India: http://indiacode.nic.in/coiweb/welcome.html. 76 Security Council Res. 1540 (2004) 14 April 2004: ‘Non-proliferation of Weapons of Mass Destruction’. 77 �� Murthi, supra n. 67, at 1827. 78 �� M.Y.S. Prasad, ‘Technical and Legal Issues Surrounding Space Debris – India’s Position in the UN’ (2005) 21 Space Policy 243–9. See also http://www.isro.org/pressrelease/ May08_2000.htm and http://www.spaceref.ca/news/viewpr.html?pid=1762. 79 ‘Norms Guidelines and Frameworks for the Implementation of Policy Framework for Satellite Communications for India, 2000’, �� www.isro.gov.in/programmes/html�� . Murthi, supra n. 67, n. 4; Kaul, supra n. 67, at 2–26.

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possible by a 2005 liberalisation of Indian foreign investment law when the permissible level of foreign investment was raised from 49 to 74 per cent of the capital of any Indian company. However, foreign investment above 49 per cent is still subject to approval by the Indian Government. Furthermore, India discourages investments from ‘unfriendly countries’.80 New legislation is being drafted to prevent foreign high technology companies doing business in India should that endanger India’s national security.81 India participates in the international efforts to stop the proliferation of missile technology and is concerned that its military space technology be preserved for its own national security purposes.82 Thus even an Indian private commercial satellite system must obtain a security clearance from the Ministry of Home Affairs.83 Indian space policy is therefore developing towards allowing greater private enterprise in space activities and appropriate national legislation is under preparation. Russia In the post-Cold War period, as main successor to the former Soviet Union, Russia inherited much of the USSR space launch capability.84 While Russia suffered economically in this period, it also enjoyed an economic advantage through having an excess of space launch capability that could be and was offered at attractive prices to Western commercial operators. Consequently, a major part of Russian

80 �� For example, an application by a Chinese company for a trading licence was rejected because the Indian Government considered that the company had unduly close links to Chinese military forces – India’s space policy is strongly influenced by national security concerns. 81 S. Rai, ‘As Foreign Investment Rises, India Addresses Security Concerns’, NY Times, 24 August 2006 at C-4; M. Pracha, ‘Commentary Paper on National Space Legislation’, ISRO-IISL Space Law Conference, Bangalore, 2005, at 2–59. 82 �� For international curbs on trade in missile and similar technology see Chapter 14, p. 459. 83 See the website of the Indian Ministry of Information and Broadcasting, http:// www.mib.nic.in; Kaul, supra n. 67, at 2–23. 84 �� S.F. Teselkin, ‘Legal Regulation of Space Activities in Russia’, in K.-H. Böcksteigel, ed., ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (Cologne: Carl Heymanns Verlag, 2002) at 511–9; C. Mathieu, Assessing Russia’s Cooperation with China and India: Opportunities and Challenges for Europe, ESPI Report 12 (Vienna: ESPI, 2008), ‘The Russian Federation’, 52–79: http://www.espi.or.at/images/stories/dokumente/ studies/espi%20final%20report%20ric.pdf. Cf. J.A. Manner, ‘President Bush’s 1990 Policy on the Commercial Space Launch Industry: A Thorn in Economic and Political Reform in the Former Soviet Union: A Proposal for Change’ (1993) 58 J. Air L. and Comm. 981– 1040. The Ukraine inherited many ballistic missiles (useful for SeaLaunch), and, of course, Baikonour Cosmodrome is located in Kazakhstan.

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space capability was dedicated to private commercial activities and Russia became a major commercial launch operator aggressively marketing private launches.85 The Russian Law on Space Activity entered into force in 1993.86 Its primary purpose is to implement and enforce the international space treaties to which Russia is party (Art. 4). Other purposes include the development of ‘entrepreneurial activity’, the maintenance of safety, environmental protection, the protection of intellectual property and the promotion of science and national security (Art. 4). The Russian law differs significantly from the Australian and US commercial space laws as to the licensing of private operators. The focus of the Russian law is rather on giving legislative authority to state agencies to engage in state activities and to control participation by non-Russians. Under Russian law the Russian Space Agency is responsible for space activities. In conjunction with the Russian Ministry of Defence the Agency allocates all budgetary resources for use in outer space activities. The Agency has authority to license outer space activities, to supervise safety, and to interact with international organisations on space activities (Art. 6). The Ministry of Defence is responsible for military uses of outer space and, in co-operation with the Agency, establishes and implements the Russian Space Programmes (Art. 7). The Russian Space Agency supervises the space activities of Russian citizens as well as activities of foreigners while under Russian jurisdiction, if their activities include ‘tests, manufacture, storage, preparation for launching and launching of space objects, as well a control over space flights’. The Act further provides that the ‘types, forms, and terms of licences, the conditions and procedures for their issue, withholding, suspension or termination thereof, as well as other questions of licensing [are] regulated by the Russian legislature’ (Art. 9). The Russian Space Programme includes the construction of space hardware performed by contractors. While collaboration with foreign entities is allowed for, in the construction of space hardware foreign participation in Russian companies may not exceed 49 per cent (Art. 14). Preference is given to Russian participants (Art. 16). Article 17 requires registration of Russian space objects which must display Russian national markings.87 85 V. Gubarev, A. Lavrov and S. Teselkin, ‘Commercial Space: Major Direction of Activities, Legal Framework and General Privatization Policy in Russia’, Project 2001 Workshop on Legal Framework for Privatising Space Activities, Vienna, 1999 (Cologne: Inst. of Air and Space Law, 1999) 108–17 at 108 and 113. Cf. also the European/Russian Starsem (supra n. 32) and the activities of Krunichev and ILS (supra nn. 25, 33). 86 The Russian Federation Law on Space Activity 1993, �� Russian Federation Law on Space Activity (translated) in Project 2001: Workshop on Legal Framework for Privatising Space Activities, Vienna, 1999 (Cologne: Inst. of Air and Space Law, 2000) 249–60, and Project 2001 Workshop on Legal Framework for Commercial Launch and Associated Services, Bremen, 2000 (Cologne: Inst. of Air and Space Law, 2001) 313–24. 87 �� Under the Registration Convention, Art. 4 (supra n. 4), states may designate space objects with markings, analogous to markings of airplanes under Art. 20 of the Convention on International Civil Aviation, Chicago 1944; 15 UNTS 295.

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Control of flight in outer space is exercised by Russian Flight Control which may permit foreign spacecraft to enter or use Russian air space, necessary for the launch of a foreign space object on a Russian launcher.88 Flight Control coordinates as necessary with local authorities as well as with foreign countries and international organisations (Art. 19). Manned Russian spacecraft must be under the command of Russian cosmonauts. The commander is fully responsible for the flight, the safety of the crew and any other participants, and the preservation of the spacecraft. Foreigners may be carried on Russian spacecraft, but they must be trained in Russia, be under the command of the Russian commander and are subject to Russian law while in the spacecraft (Art. 20). The Russian Space Agency and the Ministry of Defence are jointly responsible for the safety of space objects. Space objects must function and operate in accordance with state safety regulations (Art. 22). Accidents are required to be investigated and any conclusions may be appealed to the Russian courts of justice (Art. 23). The Russian government conducts search and rescue operations for lost space objects and cosmonauts and cleans up after accidents, costs being met by the Federal Russian Government (Art. 24).89 Foreign operators doing business in Russia have the same legal rights as domestic operators. Foreign companies receive full protection for patents and the copyright and other intellectual property rights enjoyed by Russian companies on a reciprocal basis (Art. 27). Any legal dispute involving a foreign company functioning in Russia is subject to Russian law, unless otherwise arranged by international agreement (Art. 28). Liability is extensively regulated under Russian law. Compulsory insurance is required for space activities in order to cover possible liability to third persons and private parties. Operators of space objects must therefore obtain liability insurance in the amounts required by the Russian Government. The proceeds of insurance policies will be applied to compensate personal injury losses and damages sustained by cosmonauts and other personnel (Art. 25). The Russian Government guarantees full compensation for direct damage resulting from outer space activities. Full compensation must be paid by the responsible commercial companies and individuals. Liability is based on proof of fault and is limited by the amount of insurance obtained (Art. 29). According to Russian space law experts: ‘[I]f a foreign customer of a space launch is not a government juridical 88 �� ‘The space object of a foreign state can execute a single innocent flight through the air space of the Russian Federation with the purpose to insert such an object into an orbit around the Earth or further in outer space, as well as with the purpose to return it to the Earth under the condition of advance notice of appropriate services of the Russian Federation about time, place, trajectory and other conditions of such flight’ (Art. 19.4). 89 Russia and Kazakhstan have had argument about pollution caused by successful and unsuccessful launches from the Baikonour launch site. Cf. M. �� Bjornerud, ‘Baikonour Continues: The New Lease Agreement between Russia and Kazakhstan’ (2004) 30 J. Sp. L. 13–36. See also http://www.msnbc.msn.com/id/14346394/.

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person, Russia is, actually, the only launching country. In our opinion, on the basis of Article VII of the 1972 Convention, the conclusion may be drawn that in these cases the provisions of the 1972 Convention will not be applied to the Russian Federation. Russia will only be liable to its citizens and/or juridical persons on the basis of civil liability in conformity with national legislation of the Russian Federation’.90 Under Russian law juridical persons are required to make full indemnification for loss and damages they cause. Space activities are considered to be ultra-hazardous. Therefore the perpetrators are fully liable to third parties.91 However, in conformity with the Liability Convention, Art. 30 of the Russian Act provides for the liability of the Russian Government for loss and damages caused by a Russian state owned spacecraft. This is absolute for damage caused on the surface of the Earth or in air-space, and on proof of fault for loss and damages caused in outer space. In the latter case should there be a number of entities involved in liability any compensation exigible is in proportionate to the extent of the fault of each, or if that cannot be established, equally. Russian commercial launch contracts always include clauses requiring insurance covering possible loss and damage to launch facilities together with coverage for civil liability to third parties. The purpose of this compulsory insurance requirement is to cover Russia’s potential liability as the launching state under the contracts to launch foreign space objects.92 United Kingdom The United Kingdom Outer Space Act, 1986,93 came into force on 31July 1989.94 It requires UK nationals to obtain a licence from the Secretary of State in order to launch, procure a launch or operate a space object. The objective of the Act is to include within its scope any person who might trigger UK responsibilities under the space law treaties (Sec. 2). Like Australia and the US, the UK seeks to avoid overlapping or conflicting jurisdictions. The Act therefore permits the UK government to enter into agreements with other states under which the UK may 90 V. Gubarev, A. Lavrov and S. Teselkin, ‘Civil Liability to Third Parties in the Course of Russia’s International Cooperation in Outer Space: Legal Regulation Issues’, in Project 2001 Workshop on Legal Framework for Commercial Launch and Associated Services, Bremen, 2000 (Cologne: Inst. of Air and Space Law, 2001) 159–66�� at 162. 91 Ibid. 92 Gubarev, supra n. 90, at 166. 93 �� (UK) Outer Space Act, 1986, c. 28: Project 2001 Workshop on Legal Framework for Commercial Launch and Associated Services (Cologne: Inst. of Air and Space Law, 2001) 337–43. F. Lyall, ‘UK Space Law’ (1992) 35 Proc IISL 385–93; R. Close, ‘The UK Outer Space Act 1986: Scope and Implementation’, in K.-H. Böcksteigel, ed., ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (Cologne: Carl Heymanns Verlag, 2002) at 579–90. 94 �� The Outer Space Act (Commencement) Order 1989, 1989 SI no. 1097.

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cede jurisdiction over an activity to another country so long as the UK obligations under the space law treaties are fulfilled (Sec. 3). As is usual in the UK the Act assigns administrative duties and powers to the Secretary of State,95 but in practice the Act is administered by the British National Space Centre (BNSC), which is not a department but rather a co-ordinating body drawn from several ministries.96 Pursuant to the Act the Secretary of State may issue a launch licence if public health and the safety of persons and property are adequately protected, if the UK international obligations under the space law treaties are satisfactorily protected, and if UK national security is not impaired.97 The Secretary may issue regulations implementing the Act but in practice the BNSC has evolved its own requirements. These relate to the form and content of the licence application, the procedures for processing the application, time limits, and licence fees (Sec. 4). Grant of the licence is contingent, inter alia, on the UK Government being able to inspect the launch facilities, examine the equipment being used in the launch, including the launch vehicle, obtaining all necessary information pertaining to the date and location of the launch and the basic parameters of the intended orbit for the space object being launched, access to documentation relevant to the launch, advance approval of any deviation from the planned trajectory, assurance of adequate environmental protection and that there will no interference with activities of others, assurance that breach of UK international obligations will be avoided, and assurance as to adequate protection of UK national security. The licensee is required to obtain insurance from the public insurance market to compensate third parties on the surface that may be injured by space objects that would incur UK liability under the Liability Convention – any UK liability must be reimbursed by the licensee. Finally, the licensee is required to comply with UK requirements regarding disposal of the payload in outer space (e.g. for the mitigation of space debris or ‘graveyard’ disposal in an appropriate case; Sec. 5). Transfer of a UK launch licence is permitted at the discretion of the Secretary of State. Licensees must comply with the law, or forfeit the licence. The Secretary may revoke or suspend a licence if its conditions no longer exist or if its termination or suspension is required for reasons of public health, national security or is necessary to comply with UK obligations under the international space treaties 95 �� The British constitution (note the lower capital ‘c’) is unwritten. By UK practice any Secretary of State may exercise the functions of ‘the’ Secretary of State. The position is that of a senior government minister in charge of one or more departments, and does not correspond to the US nomenclature (where it denominates the person who in the UK would be the Foreign Secretary). It is unusual to designate a particular Secretary of State in UK legislation. This facilitates the transfer of functions as incoming and other Prime Ministers reshuffle responsibilities. See F. Lyall, An Introduction to British Law (BadenBaden: Nomos Verlag, 1994, 2nd ed. 2002). 96 The British National Space Centre: http://www.bnsc.gov.uk/.�� See Chapter 1, p. �� 24. 97 �� The UK exemplar licence is at http://www.bnsc.gov.uk/assets/channels/industry/ OSA2008Example.pdf.

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(Sec. 6). For enforcement of the licence the Secretary may ask the court to issue an injunction to secure compliance (Sec. 8). The court may, after findings and on reasonable grounds, ‘issue a warrant authorizing a named person acting on behalf of the Secretary of State to do anything necessary to secure compliance with the international obligations of the United Kingdom or with the conditions of the licence’ (Sec. 9). The violation of the licence or any other defect (e.g. false statements, obstruction of government inspectors, failure to comply with the requirements of a licence) renders the offender subject to fines and other penalties. Violations committed abroad are considered to have been committed in the UK and are thus subject to enforcement under UK law. However, ‘it is a defence for the accused to show that he used all due diligence and took all reasonable precautions to avoid the commission of the offence’ (Sec. 12). The Registration Convention requires the UK to maintain a national registry of space objects. This Registry is maintained by the BNSC and is open for public inspection on payment of a fee (Sec. 7).98 The UK also has a Supplementary Register of Space Objects which itemises objects which have been licensed by the UK following transfer to UK companies, such as the INMARSAT satellites following the privatisation of INMARSAT. The Act does not limit the liability of a licensee. Unlike the Australian and the US statutes, the UK Act requires full indemnification of the UK Government for its losses or damages resulting from the activities of the licensee (Sec. 9). Besides the Act, UK nationals subject to the Act are also subject to other relevant UK law, including as to telecommunications,99 and intellectual property law. They are also subject to considerations arising from a number of relevant multilateral and bilateral international agreements. United States In the US two strands of regulation deal with space. One strand governs the governmental agency, the National Aeronautics and Space Administration (NASA), which is established under the National Aeronautics and Space Act of 1958.100 NASA deals with the authorisation and supervision of US governmental 98 Lyall, supra n. 93, at 385. See ‘UK Registry of Space Objects (to comply with International Obligations and Section 7 of the Outer Space Act 1986)’: http://www.bnsc. �� gov.uk/assets/channels/industry/OSA2008.pdf. 99 The UK supervisory agency in �� telecommunications is the Office of Communications, Ofcom, established under the Communications Act 2002 (2002 c. 11) with powers conferred by the Communications Act 2003 (c. 21). Ofcom deals with all questions of radio and is the ITU notifying agency for UK frequency assignments. 100 �� J.C. Cooper, ‘Memorandum on the “National Aeronautics and Space Act of 1958”’ (1958) 25 J. Air L. and Comm. 247–52 (text of Act at 253–64); S.N. Hosenball, ‘NASA and the Practice of Space Law’ (1985) 13 J. Sp. L. 1–7. The original Act and its

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space activities. NASA does, however, promote a number of private activities in outer space where these are of governmental interest. For example, NASA has awarded US$500 million to two companies to develop private spacecraft to replace the Space Shuttle when it is retired in 2010. These are intended to provide transportation to the International Space Station within NASA’s legislative authority and oversight.101 The other strand of US regulation deals with civilian use of space. Through it the US actively promotes private space commerce and has so far licensed more than one-hundred private commercial launches.102 Active governmental authorisation and supervision of private activities in outer space was triggered by claims voiced by potential private operators that they could not engage in private space business activities unless a ceiling for their liability was established by national legislation.103 Their argument was that in particular the unlimited absolute liability of the Liability Convention for damages caused on Earth or to aircraft in flight would either crush them or would prevent them from starting up a business unless the ‘appropriate’ state put a ceiling on their possible exposure to catastrophic risk. Many private US launch operators are small companies without sufficient assets to pay damages in the absence of a limit on their potential liability. Without such limitation the US would be deprived of the benefits of the initiative of the space businesses, their ingenuity and in particular their inventiveness directed towards the bringing down of launch costs. It can of course be argued on the other side by non-US launch providers that US assistance in mitigating risk exposure for its nationals is a subsidy to the enterprise, conceals the true price of a launch into outer space and distorts equitable competition. The US Commercial Space Launch Act as amended104 requires the Secretary of Transportation not only to regulate commercial launches and re-entries, but also to current incarnation are respectively available at http://history.nasa.gov/spaceact.html and http://www.nasa.gov/offices/ogc/about/space_act1.html. Cf. Legislative Origins of the National Aeronautics and Space Act of 1958, NASA History Series, Monographs in Aerospace History no. 8, 1998: http://history.nasa.gov/45thann/images/legorgns.pdf. 101 Berger, ‘NASA Places $500 Million Bet on Two Very Different Firms’, Space News, 28 August 2006 at 6. 102 US Code, Title 49 – ‘Transportation’, Subtitle IX ‘Commercial Space Transportation’, Chapter 701 ‘Commercial Space Launch Activities’ – 49 USC § 70103.b and c. See also the related Title 49 in the US Code of Federal Regulations. 103 G.H. Reynolds and R.P. Merges, ‘�� Toward an Industrial Policy for Outer Space: Problems and Prospects of the Commercial Launch Industry’ (1988) Jurimetrics 7–42; G.H. Reynolds, ‘The Omnibus Space Commercialization Act of 1993’ (1994) 20 Rutgers Comp. and Tech. L.J. 581–605 (the bill was not enacted). 104 �� 49 USC § 70101 et seq. Cf. M.S. Straubel, ‘The Commercial Space Launch Act: The Regulation of Private Space Transportation’ (1987) 52 J. Air L. and Comm. 941–72; A.R. Filiato, ‘The Commercial Space Launch Act: America’s Response to the Moon Treaty’ (1987) 10 Fordham Int. L.J. 763–81; J.L. Reed, ‘The Commercial Space Launch Market and Bilateral Agreements in Space Launch Services’ (1997) 13 Am. U. Int. L. Rev.

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promote the commercial launch industry. Parallel duties as to safety regulation and promotion of the launch industry could place the Secretary in the uncomfortable position of having to choose between safety and industry promotion. Analogously, the Secretary was until recently in a similar dilemma with regard to air commerce because the US Federal Aviation Act similarly mandated him to regulate air safety and to promote the aviation industry. The US Congress finally decided that aircraft flight safety would be enhanced if the Secretary concentrated on air safety and so it eliminated the mandate for the promotion of the industry. The dilemma facing the Secretary’s potentially conflicting duties as to the space launch industry has not yet risen to congressional attention. The statutory functions of the Secretary of Transportation under the Commercial Space Launch Act have been delegated to the Federal Aviation Administration (FAA), the largest Administration within the Department of Transportation (DOT). The FAA has extensive resources and expertise regarding aviation safety, much of which can inform safety regulation of space vehicles. The Commercial Space Launch Office is administered by the Associate Administrator in charge of the Office of Commercial Space Transportation.105 This Office administers the commercial space launch laws and the regulations adopted pursuant to the Commercial Space Launch Act. The FAA licenses only private commercial launches. It has no legal authority to authorise US Government launches which, as noted above, are a matter for NASA. The Commercial Space Launch Act requires private operators to be licensed to operate a launch site in the US or to launch in the US. A permit is also required for the re-entry of space objects. A US citizen must obtain a launch licence for a launch outside of the US unless a foreign government having jurisdiction over the launch agrees to authorise and supervise the launch.106 For a launch licence to be issued, the payload must comply with US requirements.107 The FAA may transfer a licence to another licensee after it has been satisfied that the transferee will comply with the requirements of the Commercial Space Launch Act. The FAA prescribes safety regulations for launch vehicles, re-entry vehicles and for persons involved in launch and re-entry. In order to ensure compliance with the laws and regulations the FAA is permitted (but not required) to have a federal employee observe the launch and the launch operator must co157–218; K.M. Costello, ‘The Commercial Space Launch Act Amendments of 1988 and Launch Industry Insurance Reform’ (1991) 14 Suffolk Transnat. L.J. 492–522; J.A. Manner, ‘President Bush’s 1990 Policy on the Commercial Space Launch Industry: A Thorn in Economic and Political Reform in the Former Soviet Union: A Proposal for Change’ (1993) 58 J. Air L. and Comm. 981–1040; T.R. Hughes and E. Rosenberg, ‘Space Travel Law (and Politics): The Evolution of the Commercial Space Launch Amendments Act of 2004’ (2005) 31 J. Sp. L. 1–79. 105 Details at http://ast.faa.gov. �� 106 Cf. the Australian legislation, supra n. 51. 107 �� 49 USC § 70104.

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ordinate the launch with the FAA representative if one is present.108 The FAA may modify a launch licence and the operator must comply with any such modification. The FAA may also suspend a licence should the operator fail to conform to the licence as issued. The FAA may revoke a licence for reasons of public health, safety, national security or foreign relations. Revocation and any modification of a licence takes effect immediately, unless this is differently stated in the relevant notice.109 In addition to licensing a launch, the FAA also approves the safety of launch and re-entry vehicles, their safety systems, processes and services and of persons employed in launch activities.110 FAA safety approval is voluntary on the part of the operator, but safety approval will facilitate the issuance of the launch licence, a powerful incentive to request the process. Separate FAA safety approval is also persuasive in convincing customers that a launch vehicle is safe and dependable. FAA safety approval is also of value in the launch operator’s negotiations for the use of government launch ranges since the FAA will co-ordinate the safety approval request with the safety officials attached to government owned launch ranges. For the safety approval the FAA examines activities that may endanger public health and safety including a review of the licence applicant’s safety organisation, the design of the launch vehicle, and its operation. Much of the safety examination is of the kind that a launch range would require in any case. The procedure established by the FAA Commercial Space Launch Office for the issue of a licence for launch into outer space, including the possible re‑entry of a reusable launch vehicle, involves five steps.111 First, the FAA consults with the applicant in order to guide in the preparation of the application. Second, government policy is reviewed to ascertain whether the application will affect US national interests in national security, public health and safety. Third, the applicant’s capability of launching from the designated launch facility, including the object’s re‑entering at designated re-entry point, is considered. Here the FAA reviews the applicant’s organisational safety plan, estimates the risks of the mission, examines safety process, mission readiness and the rules, plans and checklists for the mission, and studies the plans for communication, operations and accident investigation, and emergencies. Fourth, the FAA examines whether the launch of the payload and its re‑entry will cause any special safety or policy problems. Fifth, the FAA reviews the environmental consequences in accordance with the National Environmental Policy Act (NEPA).112

108 49 USC § 70106. 109 49 USC § 70107. 110 49 USC § 70105; see FAA Notice of Proposed Rulemaking 70 Federal Register 31192, 1 June 2005. 111 14 Code of Federal Regulations, Part 431, ‘Launch and Reentry of a Reusable Launch Vehicle (RLV)’. Hughes and Rosenberg, supra n. 104 at 25. 112 42 USC §§ 4321 et seq.

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The potential US governmental liability for private commercial activities is a key factor in the licensing process. As indicated above launch operators want their liability limited. The Government also wishes to control its liability and to keep its risks as low as possible. Balancing these considerations the Commercial Space Launch Act regulates the distribution of liability and costs.113 In order to obtain a launch licence various requirements must be met. (1) The operator is required to obtain third-party liability launch insurance of US$500 million or as much liability insurance as is available at reasonable cost.114 (2) The operator must obtain liability launch insurance of US$100 million, or as much insurance as is available at reasonable cost on the insurance market, in order to cover the operator’s possible liability to the US Government.115 The amount of the insurance policy thus becomes the operator’s de facto liability limit. (3) The operator must also agree to enter into reciprocal waivers of claims with its contractor, subcontractors, owners of payloads and the contractors and subcontractors of the owners of the payload. In the cross-waivers the parties agree to assume responsibility for property damage or loss as well as for personal injury or death of employees resulting from the launch.116 The purpose of the cross-waivers is to spread the risk of loss as widely as possible and yet limit it to the input of each party to the enterprise. The result is that each contractor or sub-contractor can calculate what it needs to sustain a loss of a launch or payload without losing all available assets through liability to other sub-contractors involved in the enterprise. Possible losses will be smaller. Each separate contractor and sub-contractor will be able to purchase affordable insurance because its risk exposure is smaller and does not involve liability to other contractors should a launch failure be attributable to it. (4) The operator is also required to enter into a cross-waiver with the Secretary of Transportation. While the statute requires a cross-waiver of claims, courts will not read a crosswaiver into the contract between the parties should they neglect to include one.117 In the case that a state party to the Liability Convention brings a claim against the US which exceeds the statutory liability limits, the Act holds the US Government 113 49 USC § 70112. 114 The FAA required Bert Rutan to obtain third-party insurance in the amount of only $3.1 million for his X Prize effort, see Hughes and Rosenberg supra n. 104 at 37. 115 Hughes and Rosenberg supra n. 104 at 56. �� So far the amount of available insurance has always been less than the statutory liability limits. 116 P.B. Larsen, ‘Cross-Waivers of Liability’ (1992) 35 Proc. IISL 91–6. For private actions cf. S. �� Eigenbrodt, ‘Out to Launch: Private Remedies for Outer Space Claims’ (1989) 55 J. Air L. and Comm. 185–222. 117 Id. �� The issue arose in the case of Martin Marietta v INTELSAT (1991) 763 F. Supp. 1327; (1993) 991 F.2d. 94. The court held that it would not enforce a cross-waiver if it was not formally included by the parties in their contract. �� In the case the reason for the omission of cross-waivers was that the contract was negotiated prior to the entry into force of the Commercial Space Launch Act, but the relevant launch took place after the Act had entered into force. �� K.B. Watson ‘Have the Courts Grounded the Space Law Industry? Reciprocal Waivers and the Commercial Space Launch Act’ (1998) 39 Jurimetrics 45–58.

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(the Secretary of Transportation) liable for damages in excess of the liability limits up to US$2 billion. Should the exigible compensation exceed that amount (possible since the Liability Convention does not limit liability) it is assumed that special congressional legislation would meet that liability.118 While the licensing of private launch operators has the benefit of limiting their liability, insurance may be expensive. The cost of insurance becomes part of the expense a private launch operator incurs in doing business and therefore increases the market price of a launch. A government launch operator is not required to obtain launch insurance. It may be argued that the government operator therefore has a competitive advantage over the private operator.119 Another view is that the Government self-insures. The FAA requires that an applicant for a launch licence make efforts to mitigate the formation of space debris. The applicant must plan to prevent collisions between the components of the launch vehicle and the satellite being launched.120 Reusable launch vehicles must also avoid endangering human presence in outer space.121 Other US government agencies such as the Federal Communications Commission (FCC) and the National Oceanic and Atmospheric Administration (NOAA) also require debris mitigation by applicant for their permits. These national debris mitigation regulatory requirements are in conformity with the international voluntary debris mitigation rules adopted by the Inter-Agency Space Debris Coordination Committee (IADC).122 An environmental review in accordance with the criteria of the National Environmental Policy Act (NEPA) is also carried out to insure that the launch does not have a significant impact on the human environment.123 In addition there is other relevant US national legislation establishing procedures and clearances for radiofrequencies and orbital slots, remote sensing124 and the registration of satellites. A development still in the embryonic stage is the commercial use of reusable launch vehicles (RLVs) to launch humans into outer space. In 2004 the US Commercial Space Launch Act was amended to give the FAA authority to issue a private commercial launch licence for a space vehicle to carry human beings for compensation in order to encourage and promote safety of commercial vehicles designed to carry human beings.125 The purpose of the new US legislation is to foster 118 49 USC § 70113. 119 R.J. Lee, ‘Legal and Policy Aspects of Launch Services Provided by Governmental and Private Providers’, Bangalore, India, IISL Conference ‘Bringing Space Benefits to the Asian Region’, 26–29 June 2005. 120 14 Code of Federal Regulations, Part 415.39. 121 14 Code of Federal Regulations, Part 431.43. 122 For IADC Guidelines see www.iadconline�� .org�� . For a more extensive consideration of space debris, see Chapter 11 – ‘Space Debris’. 123 40 Code of Federal Regulations 1508.4. 124 See Chapter 13. 125 Public Law 108–492, 118 Stat. 3974–83, now incorporated into 49 USC § 70105; Hughes and Rosenberg, supra n. 104. See also Chapter 5.

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and promote private commercial launch initiatives in human space flight.126 Under it the FAA sets standards for the design and operation of launch vehicles to protect the health and safety of the crew and the flight participants. Prior to executing any contract or other arrangement to employ a prospective crew member, the holder of a RLV licence or permit must notify the crew members and flight participants that the US Government has not certified the launch vehicle as safe.127 The law does not require crew members to waive the potential liability of the licensee or permit holder. Private commercial human space flight is at an early stage of development and the FAA has little experience with the safety of human space flight, therefore space flight participants must provide written ‘informed consent’ to participate in the flight thus transferring the risks of the flight to the space flight participants themselves. The flight operator can escape liability and the participants do not have benefit of coverage under the liability insurance policy for the launch.128 Because adequate consent is such an important element of human space flight, the FAA has issued guidance about what constitutes informed consent. The adequacy of informed consent will depend on the kind of spacecraft used for human (touristic) space flight. The flight risks of a spacecraft like the space shuttle are different from the risks of a spacecraft like the old Apollo series. Whether an operator can adequately inform a space flight participant of the risks inherent in a complex spacecraft such as the space shuttle or the planned RLVs is an open question. This is an important issue relevant to viability of the ‘informed consent’. If disclosure is insufficient, then the statutory requirement will not have been met.129 Flight crew and flight participants on US licensed launches must comply with US laws regarding the launch.130 Space flight participants (e.g. tourists onboard) are defined as anyone who is not a member of the flight crew. Under this distinction between crew and participants, it would appear that crew members

126 Cf. R. Sattler, ‘Transporting a Legal System for Property Rights: From the Earth to the Stars’ (2005) 6 Chic. J. Int. L. 23–44 at 23–7. Investment in space was sought to be encouraged by the Invest in Space Now Act 2003 (HR 2358, 108th Cong.) and the Zero Gravity, Zero Tax Act 2003 (HR 1024, 108th Cong.) (Sattler at n. 17) but neither were enacted. Similar proposals may be made in the future. 127 Hughes and Rosenberg, supra n. 104, at 51–60. The FAA wants to ensure that crews and flight participants know clearly that the launch vehicle does not meet FAA certification standards. 128 49 USC § 70112. 129 Hughes and Rosenberg, supra n. 104, at 55, 59; T. �� Knutson, ‘What is “Informed Consent” for Space-flight Participants in the Soon-to-Launch Space Tourism Industry?’ (2007) 33 J. Sp. L. 105–22; S.H. Bromberg, ‘Public Space Travel – 2005: A Legal Odyssey into the Current Regulatory Environment for United States Adventurers Pioneering the Space Frontier’ (2005) 70 J. Air L. and Comm. 639–71. 130 �� US Federal Aviation Administration: ‘Human Space Flight Requirements for Crew and Space Flight Participants: Final Rule’ (2006) 71 Fed. Reg. no. 241, 75616-75645; 14 CFR Parts 401, 415, 431, 435, 440 and 460 (as amended).

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would be entitled to assistance under ARRA,131 but flight participants would not be so entitled.132 The holder of the launch licence or permit may not launch into outer space or re-enter to land on Earth unless the flight crew has been adequately trained and meets FAA medical standards. The pilot of a US reusable launch vehicle (RLV) in US air-space must hold an FAA pilot certificate and the flight crew must have FAA Second Class medical certificates.133 Flight participants must also be medically fit. The crew must be trained in air as well as space flight. For safety reasons the Department of Transport (DOT) requires the members of the flight crew to be carefully trained to perform their crew functions. Furthermore, the flight participants must be refrain from any interference with the flight crew operating the space vehicle. Flight crew and flight participants require dependable life support within the RLV. The RLV operator must provide a controlled environment.134 Flight crew must be able to suppress fire on-board the space vehicle and prevent the crew from being incapacitated.135 Most accidents involve human factors. Therefore the space vehicle must be designed to prevent the possibility of human error.136 Flight crew could lose consciousness if subjected to uncontrolled extreme acceleration, noise or vibration. RLVs must therefore be designed and operated so that the crew can tolerate these factors. Launches are to be monitored by the US Government. The DOT may suspend a licence when a life support on-board the space or re-entry vehicle fails and results in serious accident. The suspension will terminate when DOT ascertains that the licence holder has taken steps to remedy the cause of the accident. DOT can also modify the licence to remove the likelihood of accidents.137 Last we note that the US Commercial Space Launch Act only regulates the launch and de-orbiting of space objects. It does not regulate operations in outer space after a launch In the absence of a clear causal connection to a licensed launch or re-entry, operations or occurrences in orbit would not be part of the FAA statutory responsibility.138 131 ARRA, supra n. 2. 132 �� Cf. discussion in Chapter 5, p. 129 and following. 133 �� The FAA requires Second Class medical certificates for commercial non-airlineflight functions. Pilots of scheduled air service must have the more stringent First Class medical certificates. 134 �� This includes air supply, atmospheric pressure, air circulation, reserve oxygen, controlled humidity, controlled concentrations of gas and particulates that may be inhaled, storage to avoid interference with the flight, and plans to mitigate decompression. 135 See FAA ‘Draft Guidelines for Commercial Suborbital Reusable Launch Vehicle Operations with Space Flight Participants’ 11 February 2005: http://www.faa.gov/about/office_ org/headquarters_offices/ast/licenses_permits/media/FD_Passenger_Guidelines_2-11-05.pdf. 136 ‘�� Human factors engineering’ includes elements of psychology, physiology, engineering, ergonomics and of medicine. 137 49 USC § 70107. 138 Hughes and Rosenberg, supra n. 104, at 21. Cf. the Australian position, n. 58 supra.

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Conclusion Nations wishing to enjoy the economic advantages of high technology should understand the benefits of adopting national space legislation. The US, UK, Australia and the USSR are examples of states that have developed national space legislation. Other countries having significant space commerce, for example, China, India, Indonesia and Thailand, are considering the development of comprehensive national legislation for commercial space activities. Many countries are among those nations designated by the Outer Space Treaty, Art. VI, as ‘appropriate’ regulatory states and it may be time for them to consider their national regulation of their commercial space operations. Ultimately, whether to adopt national space legislation depends on the national interests of a particular state, its stage of economic and social development, its constitutional structure and the nature of its private space activities.139 We have noted that OST Art. VI requires the States Parties to the Treaty to exercise ‘continuing supervision’ over the activities of their nationals engaging in commercial parties in outer space. The national legislations of some states limit their application to the launch phase. The Australian legislation can also be made applicable to the de-orbit phase. The US legislation has also recently been amended to include the de-orbiting of satellites and reusable launch vehicles. However, the commercial space laws of these two countries do not regulate space objects while in space, thus leaving a possible vacuum in their national oversight. This is a serious omission because Art. IV specifically requires continuing oversight. Increasingly, commercial operators have continuous activities in outer space.140 For example the plans of a US company, Bigelow Aerospace Company, include a space hotel.141 Commercial activities in outer space, in particular any involving human beings in outer space, would require extensive national supervision because they could involve emergencies requiring rescue of space participants.142 In view of the very specific language in OST Art. VI we suggest that national space legislation should include supervision of commercial activities while in outer space. Of course other national laws govern the use of space objects while they are in outer space. For example, national communications laws implementing the rules agreed through the International Telecommunication Union regulate the use of space frequencies and the occupation of orbital slots.143 The ‘boundary question’ remains. COPUOS has not arrived at a consensus on the matter. Knowing where space legislation applies would add a useful legal certainty and predictability for commercial space activities. The Outer Space Treaty applies to space objects in orbit. Minimum orbital altitude is about 100 kilometres 139 �� Yun Zhao, supra n. 60, at 9. 140 Cf. supra n. 29. 141 Space News, 17 July 2006, at 3. 142 See Chapter 5. 143 See Chapter 8.

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(62 miles) but states in general do not recognise minimum orbital altitude as the boundary of outer space. The Bogota Declaration144 asserted that the geostationary orbit (GSO) at c. 22,500 miles above the respective territories of its signatories is their national territory. The Australian legislation specifically refers to an altitude of 100 km above the surface of the Earth, making that in effect the boundary of outer space for the purpose of its legislation. The US national legislation does not state a specific boundary between outer space and air space.145 In the absence of international agreement, an increasing delimitation by national regulation might be to the benefit of space commerce provided that states adopt the same limits.146 Last, we suggest that steps should be taken adequately to cope with the transfer of OST Art. VI supervisory duties and authority between states in the event of a change of ownership of a space object in space. This should be done preferably on a universal basis by a multilateral agreement to secure international consistency. Failing that, individual states involved in such matters should sort each case out between themselves on a bilateral basis.

144 �� The Declaration of the First Meeting of the Equatorial States, Bogota, 1976 (1978) 6 J. Sp. L. 193–6; Manual 2: 383.�� See also Chapter 3, p. �� 61�� , and Chapter 9, p. �� 253�. 145 �� Cf. the (US) New Mexico ‘Gross Receipts and Compensating Tax Act, 2007’ where in dealing with deductibles from taxable receipts from space and space-port activities, ‘space’ is defined by Sec. 7-9-54-2.(3) as meaning ‘any location beyond altitudes of sixty thousand feet above the earth’s mean sea level’: http://nxt.ella.net/NXT/gateway.dll?f=tem plates$fn=default.htm$vid=nm:all. See also Chapter 6, p. 160. 146 We would wish not to see diversity in limits. The precedent of the very varied territorial sea claims made by states prior to the 1982 UN Convention on the Law of the Sea should be taken as a warning.

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Chapter 16

The Military Use of Outer Space Introduction Some two and a half thousand years ago Sun Tzu wrote The Art of War. In dealing with ‘Terrain’ in his Tenth Chapter Sun Tzu recommended that if possible one should occupy the high ground. Space provides a new aspect to that principle. Unimpeded access to outer space and unrestricted freedom to use outer space and celestial bodies provides a tempting opportunity for a technologically advanced country to seize control of outer space and deny freedom of use to other countries that stand in its way. A country in possession of unique advanced space technology and with the will and means to use it for military purposes might achieve dominance over non-space-faring countries. This chapter therefore considers whether and to what extent military control of outer space is lawful under the peacekeeping legal regime of the United Nations, as well as under space law treaties and general international law. We are aware of the parallel doctrinal debate as to the ‘Just War’ but will not pursue that topic here. Again the military aspects of outer space interact with matters that we consider in other chapters of this book. One Sun Tsu, The Art of War. There are a number of translations in various editions. The Giles translation is available at Project Gutenberg: http://www.gutenberg.org� ��. Cf. some of the language of the US National Space Policy (2006) infra n. 53. M. Bourbonniere, ‘Legal Regime for Keeping Outer Space Free of Armaments’ (2002) 27 AASL 109 (Bourbonniere I). See also his, ‘Law of Armed Conflict (LOAC) and the Neutralization of Satellites or Jus in Bello Satellitis’ (2004) 9 J. Conflict and Security L. 43 (Bourbonniere II) [Lyall/Larsen, 515–41] his�� ‘National-Security Law in Outer Space: The Interface of Exploration and Security’ (2005) 70 J. Air L. and Com. 3–62 (�� Bourbonniere III) and ‘The Ambit of the Law of Neutrality and Space Security’ (2007) 36 Israel Y.B. H. Rts. 205–29; A. Rosas. ‘The Militarization of Space and International Law’ (1983) 20 J. Peace Research 357–64; L. Tate ‘The Status of the Outer Space Treaty during “War” and “Those Measures Short of War”�� ’�� (2006) 32 J. Sp. L. 177–202; W. von Kreis, ‘Military Space Activities – Legally Unconstrained?�� ’�� A. Kerrest, ed., L’Adaption du Droit de l’Espace ses Nouveau Défis – Liber Amicorum, Mélanges en l’honneur de Simone Courtieux (Paris: Editions Pedone, 2007) 105–18. �� See also successive ‘Space Security’ reports from ‘Project Ploughshares’, the spacesecurity.org: http://www.spacesecurity.org/publications.htm� ��. J.D. Tooke, The Just War in Aquinas and Grotius (London: SPCK, 1965); J.T. Johnson, Just War Tradition and the Restraint of War: a Moral and Historical Inquiry (Princeton, NJ: Princeton UP, 1981); M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3d ed. (New York: Basic Books, 2000); M.T. Karoubi, Just or Unjust War?: International Law and Unilateral Use of Armed Force by States at the Turn

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simple question is ‘where is space’? It is all very well to agree that space should be used only for peaceful purposes, or to prohibit the orbital stationing of nuclear weapons or weapons of mass destruction in space, or to attempt to regulate the use in space of weaponry that would normally be used in air-space, but unless it is known where ‘space’ ‘is’ the ambit of such duties is unclear. We have discussed the ‘boundary question’ in Chapter 6. Another related area of law is the controls applied to international trade in military and dual-use technologies by national and international rules and procedures. These we have considered in Chapter 14. There are, of course, two main aspects to the question of the lawfulness of military control of outer space or its militarisation. On one side there is the straightforward stationing and potential use of clearly military equipment in space. The other side is that almost all space activities can have a military aspect. Basic technologies such as launch vehicles, their guidance systems and operation are dual use, carrying the potential for civil or military use. Satellite technologies are the same. Remote sensing is usable for intelligence gathering and the acquisition of relevant meteorological data. GPS/GNSS systems can be used to direct bombs or cruise missiles. Telecommunication satellites transmit both civilian and military messages. Other satellites may monitor and intercept telecommunications traffic whether carried on terrestrial radio systems or passing through satellite transponders. Solar power satellites could be used to fuel powerful space-based lasers and could cause havoc were their download footprint deliberately diverted. The unstated fact is that states find possession of space technologies an advantage in their relationships with other states.

of the 20th Century (Aldershot: Ashgate, 2004); O. O’Donovan, The Just War Revisited (Cambridge: Cambridge UP, 2003). The point was early recognised, e.g. H.J. Taubenfeld, ‘A Regime for Outer Space’ (1961) 56 Nw.U. L. Rev. 129–67 at 156–9; J.C. Cooper ‘Self-Defense in Outer Space and the United Nations’ (1962) 5 Air Force and Space Digest 51–60 (rep. �� I.A. Vlasic ed., Explorations in Aerospace Law: Selected Essays by John Cobb Cooper (Montreal: McGill UP, 1968))�� 415–22; D.G. Brennan, ‘Arms and Arms Control in Outer Space’, in L.P. Bloomfield ed., Outer Space: Prospects for Man and Society (Englewood Cliffs, NJ: Prentice-Hall, 1962) 123–49; H. DeSaussure et al., ‘Self-Defense – A Right in Outer Space’ (1965) 7 Air F. L. Rev. 38–45. See also E.S. Waldrop, ‘Integration of Military and Civilian Space Assets: Legal and National Security Implications’ (2004) 55 Air F. L. Rev. 157–231 at 168–74. Waldrop, supra n. 5 at 173–4; P.B. Larsen ‘Issues Relating to the Civilian and Military Uses of GNSS’ (2001) 17 Space Policy 111–9. P.B. de Selding, ‘Half of Galileo PRS Users Expected to be Military’, Space News 27 June 2008 at 6 indicates that the encrypted Galileo signal would be used to a considerable extent by the military. See also the ‘PACIFIC’ Project (PRS Application Concept Involving Future Interested Customers): http://www.prs-pacific.eu/. Cf. D. Paikowski, ‘Israel’s Space Program as a National Asset’ (2007) 23 Space Policy 90–6.

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Law must be responsive to technology. On occasion it will seek to regulate technology when there is the political will to comply, but it is the political will that must exist. The law of outer space is not a wholly coherent set of rules and practices. Its provisions reflect its history of evolution through the period of the Cold War, the accommodations between the parties involved, and current and future expectations. We accept that it is by no means clear how the corpus of space law would operate in time of war: there is the old maxim, inter arma, leges silent (in time of war the laws are silent), and certainly space is regularly used during modern hostilities. However, the existence of space law may serve to constrain the use of space for military purposes, thus (Sun Tsu notwithstanding) preventing its most devastating uses.10 Context It would be wrong to treat questions of the law on military use of outer space as entirely separate and distinct from other international law on military matters. OST Art. III provides that ‘States Parties … shall carry on activities in the exploration and use of outer space … in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding’. Space cannot therefore be treated in isolation. Its military potential is part of the general law as to war. The law of war has two aspects, the ius ad bellum – the circumstances under which it is lawful to go to war – and the ius in bello – the law as to how war is conducted.11 In the past such as the Kellogg–Briand Pact of 192812 sought �� Bourbonniere III, supra n. 3. We note the US withdrawal from the ABM Treaty (infra at n. 96). 10 Cf. P.C. Jessup ‘The Reality of International Law’ (1939–1940) 18 For. Aff. 244– 53. See also ‘“Peaceful” and Military Uses of Outer Space – Law and Policy’, Report from the Center for Research on Air and Space Law, McGill U, R. Jakhu, Principal Investigator (2005) XXX-II AASL 511–30. 11 Y. Dinstein, (1) War, Aggression and Self-Defence, 4th ed. (Cambridge: Cambridge UP, 2005); (2) The Conduct of Hostilities under the International Law of Armed Conflict (Cambridge: Cambridge UP, 2004); T.M. Franck, Recourse to Force, State Action against Threats and Armed Attack (Cambridge: Cambridge UP, 2002); C. von Clausewitz, On War (many eds); M. Bourbonniere and L. Haeck, ‘Jus in Bello Spatiale’ (2000) 25 Air and Sp. L. 2–11. Cf. J. Stone, Aggression and World Order (London: Stevens, 1958); L.B. Sohn ‘The Definition of Aggression’ (1959) 45 Va. L. Rev. 697–701; D.W. Bowett, Self-defence in International Law (Manchester: Manchester UP, 1958) (to be rep. Law Book Exchange 2009). ‘Aggression’ �� was defined by UNGA Res. 3314 (XXIX) 14 December 1974. The first use of armed force is prima facie evidence of aggression though the Security Council may decide otherwise in a given instance (Art. 2). Cf. hereafter as to ‘use of force’. 12 General Treaty providing for the Renunciation of War as an Instrument of National Policy (the Kellogg–Briand Pact, aka. the Pact of Paris), Paris, 1928 – 94 LNTS 57; 46 Stat.

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to outlaw war, and, of course, conspiracy to wage aggressive war and waging aggressive war were Counts One and Two in the Charges at the Trial of the Major War Criminals at the Nüremburg Tribunal.13 The Hague Conventions of 1899 and 1907 together with their Regulations and the 1949 Geneva Conventions are directed to the conduct of war.14 However, one would prefer not to need the application of such instruments. The Preamble to the UN Charter states inter alia that the People of the United Nations are determined to ‘save succeeding generations from the scourge of war’.15 To that end they agreed to unite their strength ‘to maintain international peace and security, and, to ensure, by the acceptance of these principles and the institution of methods, that armed force shall not be used, save in the common interest’. In Art. 1.1 the first listed Purpose of the UN is therefore ‘[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace’.16 By Art. 2.4 ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence 2343, TS 796; 3 Bevans 732; http://www.yale.edu/lawweb/avalon/imt/kbpact.htm; http:// www.fletcher.tufts.edu/multi/texts/historical/bh115.txt. 13 Trial of the Major War Criminals at the Nüremburg Tribunal (Nüremberg, 1946– 9) Vol. 1. Cf. Charter of the International Military Tribunal, Nüremberg, 1945: http://www. law.umkc.edu/faculty/projects/ftrials/nuremberg/NurembergIndictments.html. 14 The four Geneva Conventions include an original Convention of 1864 (the ‘First Geneva Convention’) which was revised in 1949 at the conference which adopted the Second, Third and Fourth Conventions. In addition there are three Protocols (two in 1977 and one in 2005). Levels of signature and ratification vary. For the Conventions, Protocols and Regulations see A. Roberts and R. Guelff, Documents on the Laws of War, 3d ed. rep. (Oxford: Oxford UP, 2002). The International Committee of the Red Cross (an independent neutral organisation) maintains an electronic database of the Geneva Conventions and Protocols, with commentaries: http://www.icrc.org/ihl.nsf/CONVPRES?OpenView. The Hague Conventions and Regulations are now part of customary international law: ‘Judgement of the International Military Tribunal of Nüremberg’, 1946, Trial of German Major War Criminals: Proceedings of the International Military Tribunal sitting at Nüremberg, Germany (London: HMSO, 1946–50) vol. 1, 254; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 at 256–7 (paras 75–80) (1996) 35 ILM 869 and 1343; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136 at 172 (para. 89). See also UNGA Res. 95 (I), 1946, ‘Affirmation of the Principles of International Law recognized by the Charter of the Nüremberg Tribunal’. The ICJ appears now to consider The Hague and Geneva Conventions, Protocols and Regulations as aspects of ‘international humanitarian law’. 15 Charter of the United Nations, 59 Stat, 1031, TS 993; (1946) UKTS no. 67, Cmnd. 7015; 9 Hudson Int. Leg. 327; 3 Bevans 1153; (1945) 39 AJIL Supp. 190. 16 �� See supra n. 11.

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of any state, or in any other manner inconsistent with the Purposes of the United Nations’.17 Such provisions form part of the over-arching context within which space law in its military aspect is placed. Of course the Charter does contemplate the use of force. Chapter VII deals with ‘Action with respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression’. Article 39 places on the Security Council the duty of determining the existence of any threat to the peace, breach of the peace or act of aggression, and of making recommendations or of taking action under Arts 41 (non-military measures) and 42 (military measures). Thereafter Arts 42 ad fin–50 deal with the technicalities. The history of the effectiveness of these provisions is mixed, and perhaps in recognition that this might be the case, they are followed by Art. 51 which provides: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Before discussing Art. 51 an important point must be made. By Art. 103 of the Charter, In the event of any conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international obligation, their obligations under the present Charter shall prevail.

Under the normal rules of international law in the application of successive treaties dealing with the same subject matter obligations under a later treaty supersede those under an earlier one.18 However, Art. 30.1 of the Vienna Convention provides that that general rule is subject to Art. 103 of the UN Charter. Article 103 provides that in the event of a conflict between obligations under the Charter and those under any other international agreement, the obligations of the Charter prevail. Charter 17 The UN Charter system may require amendment or reinterpretation under modern conditions. Cf. ‘Agora: Future Implications of the Iraq Conflict’ (2003) 97 AJIL 553–642, inc. R.N. Gardner, ‘Neither Bush nor the Jurisprudes’ (2003) 97 AJIL 585–90; R.A. Falk, ‘What Future for the UN Charter System of War Prevention’ (2003) 97 AJIL 590–8. 18 Art. 30, Secs 2–5, Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331; (1980) BTS 58, Cmnd. 7964; 8 ILM 679; 63 AJIL 875: http://untreaty.un.org/ ilc/texts/instruments/english/conventions/1_1_1969.pdf. The Convention is generally taken to articulate customary international law.

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obligations, and for our purposes Art. 51 and the other Charter provisions as to the use of force, therefore remain notwithstanding later treaties and agreements.19 The ‘inherent right of individual or collective self-defence’ of Art. 51 remains the major justification for the maintenance of armed forces by states throughout the world. It is the concomitant qualification ‘if an armed attack occurs’ that can cause logicians trouble: what of anticipatory self-defence or pre-emptive self-defence? Anticipatory self-defence does not necessitate the actual occurrence of an ‘armed attack’ as per Art. 51. It is a response in anticipation of an attack. It requires belief that an attack is imminent. The anticipation triggers ‘the inherent right of individual or collective self-defence’ which Art. 51 describes.20 Key to understanding anticipatory self-defence is the customary international law founded on the 1842 Caroline incident at Buffalo and the Niagara River involving the UK and the US. In that instance the US Secretary of State agreed that legal unilateral self-defensive action requires that ‘the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation’. Such anticipatory self-defence was declared to be legal under international law.21 Anticipatory self-defence must be in ‘response to an imminent threat of armed attack’.22 Furthermore, the response must be proportionate to the threat.23 19 S. Rosenne, ‘The Temporal Application of the Vienna Convention on the Law of Treaties,’ (1970) 4 Cornell Int. L.J. 1–24; H.W. Briggs, ‘Procedures for Establishing the Invalidity or Termination of Treaties under the International Law Commission’s 1966 Draft Articles on the Law of Treaties’ (1967) 61 AJIL 976–89; S. Ford, ‘Legal Processes of Change: Article 2(4) and the Vienna Convention on the Law of Treaties’ (1999) 4 J. Armed Conflict L. 75–116; R.J. Lee, ‘The Jus ad Bellum in Outer Space: The Interrelationship Between Article 103 of the Charter of the United Nations and Article IV of the Outer Space Treaty’ (2002) 45 Proc. IISL 139–48. See also 1963 I YBILC (Meetings 685, 687 and 703), and the Third Report of H. Waldock, Special Rapporteur, 1964 II YBILC 34–5: http://untreaty.un.org/ilc/documentation/english/a_cn4_167.pdf (on Draft Art. 65, later to become Art. 30) and ILC discussions at 1963 I YBILC just cited. 20 See T.M. Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium’ (2006) 100 AJIL 88–106 at 101–6; cf. his ‘Legitimacy in the International System�� ’�� (1988) 82 AJIL 705–59; J. Rohlik ‘Some Remarks on Self-Defense and Intervention: A Reaction to Reading Law and Civil War in the Modern World’ (1976) 6 Ga. J. Int. and Comp. L. 395–435 at 415–30; and materials supra n. 11. 21 Memorandum by US Secretary of State Daniel Webster to H. Fox, UK Minister in Washington: J.B. Moore, A Digest of International Law, vol. 2, 409–14 (1906); R.Y. Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 AJIL 82–99 (Caroline facts at 82– 4). See also R.Y. Jennings and A. Watts, eds, Oppenheim’s International Law, 9th ed. Vol. I, ‘Peace’ (London: Longman, 1996) 420–7. 22 Case Concerning Military and Para-military Activities in and against Nicaragua (Nicaragua v United States) (Merits), Judgement, 1986 ICJ Rep, 14 at 102–4 (paras 193–5) (1986) 25 ILM 1023. 23 Nicaragua v United States (supra n. 22) at 94 (para. 176); Nuclear Weapons, Advisory Opinion (supra n. 14) at 245 (para. 41); Case Concerning Armed Activities on

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However, while it is easy to write these words, the actual determination whether the required conditions are met remains in the purview of the individual state.24 That is a problem of the concept, rendering it controversial in practice or if ever claimed in relation to a developing situation. Pre-emptive self-defence is even more controversial.25 It differs from anticipatory self-defence in that it is not triggered by a specific event, but from a general apprehension of being attacked. This can occur as between states. However, it is more difficult to see its application in relation to the ‘War on Terror’, where some of those said to be involved are not states.26 When action is predicated on a claim to act pre-emptively the circumstances deserve close examination.27 Because the Territory of the Congo (Democratic Republic of the Congo v Uganda) 2005 ICJ Rep, 1 at 53 (para. 147) (2006) 45 ILM 271–395, where the Court, indicating that it did not find self-defence present, had no need to inquire whether the response was ‘proportionate’ but also observed that action far from the Congo/Uganda border did not appear proportionate to a series of trans-border attacks. In Nicaragua v US (supra n. 22) the ICJ required that the US response, if based on self-defence, should approximate to the Nicaraguan offense. Cf. Bourbonniere I, supra n. 3, and Bourbonniere II, supra n. 3, at 49–50. 24 O. Schachter, ‘Self-Defense and the Rule of Law’ (1989) 83 AJIL 259–77; Franck (supra n. 20) at 101. 25 C.D. Gray, International Law and the Use of Force, 2d ed. (Oxford: Oxford UP 2004); A. Garwood-Gowers, ‘Pre-Emptive Self-Defense: A Necessary Development or the Road to International Anarchy’ (2004) 23 Aust. YBIL 5–72; W.M. Reisman and A. Armstrong, ‘The Past and Future of the Claim of Preemptive Self- Defense’ (2006) 100 AJIL 525–50; I. Brownlie, International Law and the Use of Force by States (Oxford: Oxford UP, 1963) and his ‘International Law and the Use of Force by States Revisited’ (2000) 21 Aust. YBIL 21–37; (2002) 1 Chinese J. Int. L. 1–19. 26 Cf. ‘The National Security Policy of the United States of America’, September 2002 (2002) 41 ILM 1478–9; ‘The National Security Policy of the United States of America’ March 2006: http://www.whitehouse.gov/nsc/nss/2006/nss2006.pdf. C. Gray, ‘The Bush Doctrine Revisited: The 2006 National Security Strategy of the USA’ (2006) 5 Chinese J. Int. L. 555–78 at 556; A. Garwood-Gowers, ‘Self-Defence against Terrorism in the Post9/11 World’ (2004) 4 Queensland U. Tech. L. and Just. J. 1–18; D. Hovell, ‘Chinks in the Armour: International Law, Terrorism and the Use of Force’ (2004) 27 Univ. N.S.W. L.J. 398–427; W.M. Reisman, ‘International Legal Responses to Terrorism’ (1999) 22 Houst. J. Int. L. 3–62; Maggs infra n. 27. 27 The ICJ construes Art. 51 relatively strictly. For ICJ discussion of self-defence see: Nicaragua v United States (supra n. 22) at 94–104 (paras 176–95); Case concerning Oil Platforms (Iran v United States) Judgement, 2003 ICJ Rep. 161 at 178–99 (paras 31–78); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136 at 171–7 (paras 86–100); (2004) 43 ILM 1009–97; Congo v Uganda, 2005 ICJ Rep (supra n. 23) 1 at 52–7 (paras 143–65). Cf. C.J. Tams, ‘Note Analytique – Swimming with the Tide or Seeking to Stem It – Recent ICJ Rulings on the Law of Self-Defence’ (2005) 18 Rev. quebecoise de droit int’l 275–90. See also R.C. Hendrickson, ‘Article 51 and the Clinton Presidency: Military Strikes and the UN Charter’ (2001) 19 B.U. Int. L.J. 207–30; G.E. Maggs ‘How the United States Might Justify a Preemptive Strike on a Rogue Nations Nuclear Weapon Development Facilities under

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it is likely to be claimed as justification for unilateral preventative military use of outer space, it is a matter of grave concern for space lawyers. Of course, we acknowledge that Art. 51 indicates that self-defence, whether individual or collective, is bounded. It exists ‘until the Security Council has taken measures necessary to maintain international peace and security’. States are immediately to report acts taken in self-defence to the Security Council, and that body then has ‘the authority and responsibility … to take at any time such action as it deems necessary in order to maintain or restore international peace and security’. What the Council does is not affected or constrained by what states may already have done. It was the view of the UN ‘High-level Panel on Threats, Challenges and Change’ that anticipatory or pre-emptive self-defence should be taken only after proper authorisation by the UN Security Council. The alternative of leaving such decisions to states was that ‘[a]llowing one to so act is to allow all’.28 In the light of modern circumstances, such appears a counsel of perfection, and unlikely to prevail. However, it raises the intriguing question whether the Security Council might take or authorise the taking of action unlawful under space law.29 Notwithstanding, for us the question remains what may states do militarily through using space assets or capabilities or space simply as a medium. Inherent in self-defence, anticipatory self-defence and pre-emptive selfdefence is the requirement that a state have the military capabilities it needs for the purpose. That is unarguable. Possession of or investment in appropriate technologies may, of course, be constrained by treaty as we will see. However in relation to space there are treaty obligations (which may have passed into custom) that proscribe space activities that may be lawful when conducted elsewhere than in space. Notwithstanding, there are also views that seek a preparedness militarily to use space even in the face of those proscriptions. Early History Even before Sputnik I reached outer space in 1957, there was debate whether military activities should be permitted in outer space and whether aggressive military uses

the U.N. Charter’ (2007) 57 Syracuse L. Rev. 465–96;�� G. Simpson, ‘The War in Iraq and International Law’ (2005) 5 Melb. J. Int. L. 167–88 (at 173, Simpson notes the Soviet invasions of Hungary, Czechoslovakia and Afghanistan as previous actions claimed to be preventive); Agora, supra n. 17. 28 ‘A more secure world: our shared responsibility; Report of the High-level Panel on Threats Challenges and Change’, UN Doc. A/59/565, 2 December 2004, paras 188–92: http://www.un.org/secureworld/report.pdf. 29 Bourbonniere III (supra n. 3) at 7–10; R.J. Lee, ‘The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space’ (2003) 29 J. Sp. L. 93–119.

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should be prohibited.30 In the wake of the German development of the V-1 and V-2 rockets during the Second World War, it is not surprising that in 1952 Professor Alex Meyer, then Director of the Institute of Air and Space Law at the University of Cologne, expressed the view ‘that the States should make an agreement in which they declare to abstain from using outer space for war-purposes’.31 The 1957 launch of Sputnik I by the then USSR caused a crisis in Western military thinking.32 The possibility of a surprise attack from outer space became apparent. Equally apparent was the advantage of reconnaissance from outer space.33 The law was unsettled. In 1958 the USSR proposed a ban on ‘the use of cosmic space for military purposes’ to go along with states undertaking to launch rockets into space only as part of an ‘agreed international programme’. This proposal was, however, allied with the elimination of foreign military bases on the territories of other states, the establishment of that international space programme and the creation of a UN agency to co-ordinate and supervise what was done under it.34 This was all too complex for the time but showed a possible way forward.35 Military and political opinion in the US varied. The US Air Force and some writers inclined to claim sovereignty and considered that the USSR had violated US sovereign space.36 However, US President Eisenhower, a former military man mindful of the surprise attack on Pearl Harbor in 1941, opted for freedom of reconnaissance and ‘open skies’.37 Outer space should not be subjected to claims of sovereignty; it should be free. Accordingly he delivered a major speech in the 1960 UN General Assembly regarding military satellites in space. Calling in aid the 1959 Antarctic Treaty38 during the negotiations of which the US had agreed to the demilitarisation of Antarctica, Eisenhower asked:39 30 D.R. Terrill, Jr, The Air Force Role in Developing International Outer Space Law (Maxwell AFB, AL: Air UP, 1999; UP of the Pacific, 2004): http://aupress.maxwell.af.mil/ Books/Terrill/terrill.pdf. 31 A. Meyer, ‘Legal Problems of Flight into the Outer Space’, Legal Problems 8–19 at 18. 32 Terrill, supra n. 30. 33 Cf. G. Zhukov, ‘Space Espionage Plans and International Law’ (1960) Int. Aff. (Moscow) 53–7, rep. Legal Problems 1095–1101. 34 Documents on Disarmament, 1945–1959 (Vienna: World Council on Peace, 1956) II, 976–7, extracted Legal Problems 994–5. 35 Cf. E. Korovin, ‘International Status of Cosmic Space’ (1959) Int. Aff. (Moscow) 53–9, rep. Legal Problems 1062–71. 36 See authors cited by Korovin, supra n. 35. 37 For earlier discussions and proposals of aerial ‘open skies’, see J. Boulden, ‘Open Skies: the 1955 Proposal and its Current Revival’ (1990) 13 Dalhousie L.J. 611–49. 38 The Antarctic Treaty 1959, 402 UNTS 71; 12 UST 795, TIAS 4780; (1960) UKTS 71, Cmnd. 1535; (1960) 54 AJIL 477; (1980) 19 ILM 860–2: http://www.antarctica.ac.uk// �� about_antarctica/geopolitical/treaty/update_1959.php�. 39 D.D. Eisenhower, ‘Address before the Fifteenth General Assembly of the United Nations, 22 September 1960’, 1960 US Cong. 1st Sess., S. Doc. no. 26, at 1006; Public

508

Space Law Will outer space be preserved for peaceful use and developed for the benefit of all mankind? Or will it become another focus for the arms race – and thus an area of dangerous and sterile competition? The choice is urgent. And it is ours to make. The nations of the world have recently united in declaring the continent of Antarctica ‘off limits’ to military preparations. We could extend this principle to an even more important sphere. National vested interests have not yet developed in space or in celestial bodies. Barriers to agreement are now lower than they will ever be again.

He therefore proposed that outer space, like Antarctica, should not be used for ‘warlike activities’.40 The analogy of the Antarctica Treaty thereafter became part of the COPUOS discussions that were to result in the UN Resolutions of 1961, 1962 and 1963 and leading to the 1967 Outer Space Treaty in which the peaceful use of outer space is a major element.41 The USSR and the US positions as to the (non-)military use of space were apparently converging. The potential use of space for military purposes was inherent in the development of space technologies. Indeed, the necessary expertise with launchers was, of course, accelerated by the Second World War, and its main advocate and exponent was to continue his post-War career with at least half an eye on its military applications.42 The military use of space, however, tended to drop from public consciousness in the 1960s with the onset of other uses of space and human space-flight, a high point of which was the race to the Moon. More recently, however, attention has returned to questions of military uses of space, triggered in part by the emergence of China as a major space power.43 Since 2000 the US Congress has required reports on China’s military power to be submitted to it annually,44 and space has

Papers of the Presidents of the United States, Eisenhower 1960-I, Doc. 302, 707–20, § v at 714 (U of Michigan Digital Library, http://quod.lib.umich.edu/p/ppotpus/). 40 Cf. Antarctic Treaty, supra n. 38, Art. 1. 41 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, London, Moscow and Washington, 27 January 1967 (1968) 610 UNTS 205; (1968) UKTS 10, Cmnd. 3519; 18 UST 2410, TIAS 6347; (1967) 6 ILM 386; (1967) 61 AJIL 644. 42 �� M. Neufeld, Von Braun: Dreamer of Space, Engineer of War (New York: Clarkson Potter/Knopf, 2007) and his ‘“Space Superiority” – Werner von Braun’s Campaign for a Nuclear-armed Space Station, 1946–1956’ (2006) 22 Space Policy 52–62; R. Ward, From Nazis to NASA: The Life of Wernher von Braun (Stroud: History Press, 206). Cf. P.M. Sterns and L.I. Tennen, ‘Ethics and the Conquest of Space: From Peenemunde to Mars and Beyond’ (2007) 50 Proc. IISL 456–67 at 464–7. 43 S.-H. Liao, ‘Will China Become a Military Space Superpower?’ (2005) 21 Space Policy 205–12. 44 See the US National Defense Authorization Act for Fiscal Year 2000, § 1202.

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formed an important part of each report.45 This was to be expected. During the Reagan Presidency similar reports were prepared from 1981 as to Soviet military power.46 We do not have access to military documentation for China, Russia or other states on these matters. Their preparations or attitudes remain obscure though they probably reflect those of our main source, the US. The US has issued a number of documents and reports that contemplate and even recommend active military uses of outer space. On 15 July 1998 a Commission reported on ballistic missile threats to the US.47 Just over six weeks after its publication on 31 August 1998 North Korea attempted to launch a satellite using a three-stage Taepo Dong-1 launch vehicle. That attempt concentrated minds, particularly as North Korea was/is not part of the general consensus on the proper use of space. In 2001, therefore, a full report considered US requirements in space.48 This bulky document concluded that throughout history every medium, land, sea and air, has seen conflict, and space would be no different. Outer space had to be a top US national security interest and US military power should therefore be extended into it. Since then the US Air Force Space Command has adopted a Strategic Master Plan for a twenty-five year period which is revised on a two-year cycle.49 These Plans contemplate inter 45 �� (US) Department of Defense, ‘Annual Report: Military Power of the People’s Republic of China, 2008’; http://www.defenselink.mil/pubs/pdfs/China_Military_ Report_08.pdf. Previous reports are at (2005) http://www.defenselink.mil/news/Jul2005/ d20050719china.pdf; (2006) http://www.dod.mil/pubs/pdfs/China%20Report%202006. pdf (2007); http://www.defenselink.mil/pubs/pdfs/070523-China-Military-Power-final.pdf – 07. See also M.A. Stokes, ‘China’s Strategic Modernisation: Implications for the United States’, Report to the US Strategic Studies Institute, September 1999: http://www.fas.org/ nuke/guide/china/doctrine/chinamod.pdf. 46 Cf. the US Defense Intelligence Agency ‘Soviet Military Power’: http://www.fas. org/irp/dia/product/smp_index.htm. See also earlier, Soviet Space Programs: Organization, Plans, Goals, and International Implications, Staff Report, Committee on Aeronautical and Space Sciences, US Senate, 87th Cong. 2d Sess, May 31 1962, and Soviet Space Programs, 1962–1965: Organization, Plans, Goals, and International Implications, Staff Report, Committee on Aeronautical and Space Sciences, US Senate, 89th Cong. 2d Sess, 30 December 1966; M. Russell, ‘�� Military Activities in Outer Space: Soviet Legal Views’ (1984) 25 Harv. Int. L.J. 153–94. 47 Commission to Assess the Ballistic Missile Threat to the United States, 15 July 1998, Chairman, D.H. Rumsfeld: http://www.fas.org/irp/threat/bm-threat.htm or http:// www.fas.org/irp/threat/missile/rumsfeld/toc.htm. Cf. Congressional Report, US Senate 31 July 1998: http://www.fas.org/irp/congress/1998_cr/s980731-rumsfeld.htm. 48 The Space Commission, 2001, Report of the Commission to Assess United States National Security Space Management and Organization: http://www.dod.mil/pubs/ space20010111.html. 49 US Air Force Space Command ‘Strategic Master Plan FY06 and Beyond’ (2003): http://www.wslfweb.org/docs/Final%2006%20SMP--Signed!v1.pdf. For the Plan for ‘FY04 and Beyond’ see http://www.nukewatch.org/importantdocs/resources/ Final004SMP.pdf.

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alia the deployment of non-nuclear space-based weaponry. The ‘Joint Doctrine for Space Operations’ of 2002,50 complemented by the Air Force ‘Counterspace Operations’ of 2004,51 show the progress which the US military has made in considering its potential use of space.52 It is therefore unsurprising to find that Sec. 5 of the 2006 (Bush) Statement on National Space Policy states that the US considers its national security to be ‘critically dependent’ on its space capability, and that dependence would grow.53 The military is among those responsible for ensuring that national security. More sinister are the terms of bullet point 5 of Sec. 2, ‘Principles’: The United States considers space capabilities – including the ground and space segments and supporting links – vital to its national interests. Consistent with this policy, the United States will: preserve its rights, capabilities, and freedom of action in space; dissuade or deter others from either impeding those rights or developing capabilities intended to do so; take those actions necessary to protect its space capabilities; respond to interference; and deny, if necessary, adversaries the use of space capabilities hostile to US national interests.

US officials issued statements to the effect that US Space Policy as announced in 2006 does not lead to weaponisation of outer space,54 but weaponisation is something to which we will have to return. Space-specific International Law As a matter of treaty-law the UN Charter and international law have been specifically stated by OST Art. III to apply in outer space ‘in the interest of maintaining international peace and security and promoting international cooperation and understanding’. This is one of the OST principles that have now passed into customary law,55 and even should some balk at that assertion, it binds the OST parties which include all currently space-competent states. The Charter provisions and the rules of international law as to the use of force we outlined 50 Joint Doctrine for Space Operations, 9 August 2002, US Joint Chiefs of Staff, Joint Publication 3–14, http://www.dtic.mil/doctrine/jel/new_pubs/jp3_14.pdf. 51 Counterspace Operations, Air Force Doctrine Document 2-2.1, 2 August 2004, http://www.dtic.mil/doctrine/jel/service_pubs/afdd2_2_1.pdf. 52 For later/updating material try the ‘Joint Doctrine Branch’, in the ‘Joint Electronic Library’: http://www.dtic.mil/doctrine/doctrine.htm. 53 US National Space Policy (2006)–�� (2007) XXXII AASL 475–86; http://www. �� ostp.gov/galleries/press_release_files/Unclassified%20National%20Space%20Policy%2 0--%20FINAL.pdf. Note this is the unclassified sections of the text. The import of the classified version of the document is unknown to the authors. 54 For Example, Washington Post, 18 October 2006, at 1. 55 See supra Chapter 3.

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above have therefore application in and to space. Apart from the Charter, however, there is now also another set of treaty and other provisions of relevance to military uses of space. At an early stage some might have considered that the effect of the UN Space Resolutions of 1961, 1962 and 1963 to be that space could not lawfully be used for any military purpose. The title of each speaks of the ‘peaceful uses of outer space’ while their texts indicate how these purposes could be furthered.56 That of 1963, the ‘Declaration of Principles’ governing the activities of states in space is different, but its text also deals with the peaceful use of space.57 Military uses are not mentioned. A ‘non-peaceful use’ is implicitly disapproved by being ignored. However, of course, the argumentum ex silentio is fragile. The great fear of the time was nuclear weapons, and that was dealt with effectively, not primarily in the negotiations as to space, but in the debates on disarmament. In August 1963 some four and a half months ahead of the ‘Space Principles’ resolution, what is now known as the Partial or the Limited Test Ban Treaty emerged from the Disarmament negotiations.58 As its long title indicates, the ban imposed on its parties by Art. 1 of the Test Ban Treaty includes nuclear explosions in space. Two months later in UNGA Res. 1884 (XVIII) of October 1963 the Assembly welcomed statements by the USSR and the US of their separate intention not to put nuclear weapons or weapons of mass destruction in space and called on all states to resolve similarly.59 The negotiations for the Outer Space Treaty brought such matters together. These discussions took place in the newly formed UN Committee for the Peaceful Uses of Outer Space (COPUOS). Of course military matters were only a part of 56 �� ‘International Co-Operation in the Peaceful Uses of Outer Space’, UNGA Res. 1721 (XVI) 1961; UNGA Res. 1802 (XVII) 1962. 57 �� ‘Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space’, UNGA Res. 1962 (XVIII), 13 December 1963. 58 �� Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Moscow, 5 August 1963 (in force 10 October 1963); 480 UNTS 43; 14 UST 1313, TIAS 5433; (1964) UKTS 3, Cmnd. 2245; (1963) 2 ILM 883; (1963) 57 AJIL 1026: http://www.state.gov/t/ac/trt/4797.htm. Cf. the UN Comprehensive Test Ban Treaty, 1996, UNGA Res. 50/245, 17 September 1996; (1996) 35 ILM 1439–78, US Senate Doc. 105–28. (Many states have signed but few have ratified.) D.S. Jonas, ‘The Comprehensive Nuclear Test Ban Treaty: Current Legal Status in the United States and the Implications of a Nuclear Test Explosion’ (2007) 39 N.Y.U. J. Int. L. and Pol. 1007–46. 59 ‘Questions of General and Complete Disarmament’, UNGA Res. 1884 (XVIII) 17 October 1963. As early as 1957 the Assembly had urged the ‘joint study of an inspection system designed to ensure that the sending of objects through outer space shall be exclusively for peaceful and scientific purposes’: ‘Regulation, Limitation and Balanced Reduction of All Armed Forces …’, UNGA Res. 1148 (XII) para. 1.f, 14 November 1957. Paras 1.a–c dealt with nuclear weapons and fissionable materials. Cf. the USA/USSR Draft Treaty on the Non-Proliferation of Nuclear Weapons submitted to the 18-Nation Committee on Disarmament, 1968 (1968) 7 ILM 155.

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the concerns of the negotiators. We have discussed the other elements of these negotiations in Chapter 3. Here we are concerned with the military side of things. After 1963 the arms race between the US and the USSR had continued as had the race to be first to reach the Moon and to achieve pre-eminence in outer space. However, stemming from the disarmament negotiations and their related UN resolutions, demilitarisation of outer space was on the delegates’ minds since the military potential of outer space was well understood.60 The negotiators had ‘a particular desire to limit the use of celestial bodies, if not outer space as well, for military purposes’.61 The demilitarisation of Antarctica by the Antarctic Treaty was an important precedent and model, as in a different connection was its setting aside of Antarctica from claims of sovereignty at least for its duration.62 Military questions were not, however, the preoccupation of only the space-faring states. Other states had hopes and expectations for their future and wanted their interests secured.63 The proponents of the OST sought the adoption of a text by the greatest possible number of states in order to maximise its authority. To achieve that general acceptance the interests of the non-space-farers had to be clearly secured because the then non-space-competent states were in the overwhelming voting majority in the UN General Assembly. Thus the paragraph ‘Believing’ in the Preamble to the 1967 Treaty states ‘that exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development’. That principle is then incorporated as Art. I para. 1 of the operative text with the addition that outer space ‘shall be the province of all mankind’.64 Article I para. 2 provides that outer space is ‘free for exploration and use by all states without discrimination of any kind, on a basis of equality and in accordance with international law, and there [is] free access to all areas of celestial bodies’. The freedom of space was therefore not confined to the space-competent of 1967, but extends to all states. Some that lacked space competence in the 1960s now have that capability. Thus, China, India, Japan, Korea (South and North), Canada, Brazil, Nigeria, the European states and others now assert user claims to outer space, and that for both civilian and military purposes. However, freedom is never absolute or unfettered. We have seen in Chapter 3 various limitations that the OST places on the use of space. We will come to the question of ‘peaceful uses’ in due course, but here we note other elements. 60 P.G. Dembling and D.M. Arons, ‘The Evolution of the Outer Space Treaty’ (1967) 33 J Air L. and Comm. 432–56 at 429–35 [Lyall/Larsen 151–88] (‘Evolution’). See also Dembling and Arons, ‘The United Nations Celestial Bodies Convention’ (1966) 32 J. Air L. and Comm. 525–50 (‘Celestial Bodies’). 61 �� Dembling and Arons ‘Evolution’ (supra n. 60) at 427. 62 See n. 60. 63 N. Jasentuliyana, ‘Article 1 of the Outer Space Treaty’ (1989) 17 J. Sp. L. 130. 64 Note that this language is repeated in the 1979 Moon Agreement, Art. 4. See Chapter 7. Cf. �� E. Fasan, ‘The Meaning of “Mankind” in Space Legal Language’ (1974) 2 J. Sp. L. 125–31.

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For example by OST Art. IX states using space have to have ‘due regard’ to the interests of other users.65 While the general ‘civilian’ application of the obligation is clear, whether this would operate to prevent hostile military action is obscure. There are also the constraints that emerge from obligations to secure the space environment.66 While these have civil application, they may also have a role as to the effects of conflict in space, to which we will come.67 The major legal constraint as to military use at present is, however, OST Art. IV. It may be asked whether it would not have been better simply to bar all military uses of or access to space.68 However, that would have been quite unrealistic. At the time of negotiation, both the then USSR and the US already had military satellites in orbit. Intent that the legality of their actions should not be impugned, they were not willing to open up any diminution of their use of satellites for military purposes.69 OST Art. IV provides that: States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.

We have noted that at the time of the OST negotiations the world was preoccupied with the dangers of radioactive fallout from nuclear tests and behind that the threat 65 For ‘due regard’ for the interests of others see the Fisheries Jurisdiction Case (UK v Iceland) Merits, 1974 ICJ Rep. 3 and the Fisheries Jurisdiction Case (Germany v Iceland) Merits, 1974 ICJ Rep. 175. Cf. the ‘reasonable regard’ in exercising the freedoms of Art. 2 of the Convention on the High Seas, Geneva, 1958, 450 UNTS 82; 13 UST 2312, TIAS 5200; 1963 UKTS 5, Cmnd. 1929; (1958) 52 AJIL 842, and Art. 87.2 of the UN �� Convention on the Law of the Sea, Montego Bay, 1984, 1833 UNTS 3; (1999) UKTS 81, Cm. 4524. (1982) 21 ILM 1261–1354. 66 See Chapter 10. 67 Infra at n. 134. 68 �� Cf. the very early Statement on ‘Outer Space’ adopted by the US National Association of Women Lawyers, ‘A. Basic Declaration of Principles’, para. 4: ‘Flight instrumentalities shall not be used in any part of Outer Space for military purposes’ (1958) Women L.J. 8. 69 Dembling and Arons, ‘Evolution’, supra n. 60, at 433.

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of nuclear weapons.70 Article IV was a step towards nuclear military containment that goes farther than the 1963 Nuclear Test Ban Treaty.71 Indeed US President Johnson characterised the OST as ‘the most important arms control development since the Limited Test Ban Treaty of 1963’. He went on to note that ‘[i]t puts in treaty form the “no bombs in orbit” resolution of the UN. It guarantees access to all areas and installations of celestial bodies. This openness taken with other provisions of the treaty should prevent warlike preparations on the Moon and other celestial bodies’.72 While this statement may be thought to understate the value of the other elements of the OST, it does indicate the general understanding and importance of Art. IV at the time of its negotiation. Article IV does not ban the military from outer space but to a degree it restricts military activities. There is a ‘common interest of all mankind in the progress of the exploration and use of space for peaceful purposes’,73 but how does that interest interact with military concerns? ‘Military use’ has a variety of aspects: the employment of military personnel and equipment; the passive or non-aggressive use of space; the use of civilian space systems for military purposes; the use of weapons in space; the incursion into space of military weapons; the interference with space located equipment from space; the interference with space located equipment from Earth. We begin with military personnel and equipment. OST Art. IV para. 2 deals with the use of military personnel and equipment. It does not prohibit simpliciter either in space. The employment of military personnel for scientific research and other peaceful purposes and the use of military equipment for those purposes are specifically stated not to be prohibited by the third and fourth sentences of Art. IV para. 2.74 In retrospect this was inevitable. The basic operational technologies were (and to an extent still are) rooted in military research and requirements. Military personnel were already engaged in space activities – indeed without such the exploration of space would not have been taking place. It would have been neither reasonable nor effective to have excluded either men or machines. The most that could have been expected was what was agreed and provided by OST Art. IV.2. 70 Cf. H. Kahn and E. Jones, On Thermonuclear War (Princeton NJ: Princeton UP, 1960); new ed. with intro. by E. Jones (Transaction Pub., 2007); cf. also (though later) The Effects of Nuclear War (US Congress; Office of Technology Assessment June 1979, OTANS-89). 71 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, supra n. 58. 72 L.B. Johnson, ‘Statement by the President Announcing the Reaching of Agreement on an Outer Space Treaty, 8 December 1966’, Public Papers of the Presidents of the United States, Johnson 1966-II, Doc. 643, 1441 (U of Michigan Digital Library, http://quod.lib. umich.edu/p/ppotpus/): NY Times, 9 December 1966 at 1 col. 8. 73 OST, Preambular para. ‘Recognising’. 74 Dembling and Arons, ‘Evolution’ supra n. 60, at 433. The ‘shall not be prohibited’ formulation of Art. IV.2 lacks elegance.

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Weapons and the weaponisation of space is a matter of difficulty both in law and as to practice, the latter because military security results in not all the data necessary to come to a clear view on the matter being generally available. Certain weaponry is specifically dealt with. The first paragraph of Art. IV prohibits states from placing space objects in orbit around the Earth75 ‘carrying nuclear weapons or any other kinds of weapons of mass destruction, installing such weapons on celestial bodies, or stationing these weapons in outer space in any manner’. One part of this is clear. What nuclear weapons are provides no problem: nuclear weapons are a defined technology. On the other hand the term ‘weapons of mass destruction’ (WMD) was not defined in the OST, thus leaving considerable leeway for a narrow or a wide interpretation.76 Aids towards an international law definition come in UN Security Council Res. 1540 of 14 April 2004 on ‘Nonproliferation of Weapons of Mass Destruction’, as well as in the context of the discussions of the UN Disarmament Commission,77 and such treaties as the 75 ‘Placing in orbit’ means that the weapon vehicle must complete at least one complete orbit. Ballistic missiles whose trajectories are sub-orbital are not included in the OST Art. IV prohibition. However they may be subject to OST Art. VII, the Liability Convention and to other international space law. See D.R. Reinhardt, ‘The Vertical Limit of State Sovereignty’ (2007) 72 J. Air. L. and Comm. 65–140. 76 Dr C.-G. Hasselmann, ‘Weapons of Mass Destruction’ (1982) 25 Proc. IISL 99 at 102; W. Luo, ‘Research Guide to Export Control and WMD Non-Proliferation Law’ (2007) 35 Int. J. Leg. Inf. 447–498. The term WMD has been variously traced to the 1937 saturation bombing of Guernica during the Spanish Civil War, to that of Dresden in February 1945, or to the use of nuclear weapons in the Second World War. Nowadays it would include radiological, biological and chemical weapons: see infra nn. 78 and 79. Its precise legal content remains uncertain. The basic element of the concept of WMD appears to be, however, that a weapon of mass destruction indiscriminately kills a large number. Whether that is a large number of innocent persons or a large number of persons simpliciter (i.e. including military personnel) remains obscure but in para. 95 of the Nuclear Weapons Advisory Opinion (supra n. 14) the ICJ stated that ‘methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited’; 1996 ICJ Rep. 226, at 262–3, para. 95. S. Gorove, ‘Arms Control Provisions in the Outer Space Treaty: a Scrutinising Reappraisal’ (1973) 3 Ga. J. Int. and Comp. L., 114–23 at 115–6 considered 20–30 or even less as a ‘mass’ and even fewer in the case of bacteriological or chemical attack. Article 35.2 of the Additional Protocol I to the 1949 Geneva Conventions prohibits ‘�� weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering’�� – �� Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; 1125 UNTS 4; UN Doc.A/34/144 (1977) 16 ILM 1391–1441: http://www. icrc.org/ihl.nsf/FULL/470?OpenDocument. 77 The UN Disarmament Commission was created by UNGA Res. 502 (VI) ‘Regulation, Limitation and Balanced Reduction of all Armed Forces and all Armaments: International Control of Nuclear Energy’ of 11 January 1952. The ‘Disarmament and International Security Committee’ is the Assembly’s First Committee: see http://www.

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Biological Weapons Convention of 197278 and the Chemical Weapons Convention of 1992.79 Another element of Art. IV para. 1 is the prohibition on the stationing of nuclear weaponry or WMD in space. The curious syntax which ends this para. (‘in space or any manner’) may be explicable by reference to MA Art. 3.3 which prohibits the placing of nuclear or WMD weapons into Moon orbit or on any trajectory to or around the Moon. If both the OST and MA apply, such weapons are forbidden anywhere in space or on celestial bodies. However, it is to be noted that as far as ‘nuclear’ is concerned, the prohibition is on ‘nuclear weapons’. The use of nuclear power in space is unaffected by these provisions, and indeed nuclear power sources are now frequently used by the US, Russia and others in outer space.80 As far as the testing of weapons is concerned, OST Art. IV para. 2 prohibits the testing of any type of weapons on the Moon, while MA Art. 3.3 extends that prohibition to the placing on or use of any weapons in or on the Moon. Notwithstanding the above, other weaponry is permissible in space.81 Military satellites are permitted, and in practice some of these may be ‘active’ weapons. This could include the kinetic,82 laser and radio possibilities that might be used in un.org/ga/first/index.shtml. As to the current work of the Commission see http://disarmament. un.org/undiscom.htm. As to WMD see the website of the Weapons of Mass Destruction Branch of the UN Office for Disarmament Affairs: http://disarmament.un.org/wmd/. 78 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and their Destruction, 1971, UNGA Res. 2826 (XVI) 25 February 1972; 1015 UNTS 164;(1975) UKTS 11, Cmd. 6397; (1972) 11 ILM 309–15. Cf. the Protocol on the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare [the 1925 Geneva Chemical Weapons Protocol], Geneva, 17 June 1925 (1929) 94 LNTS 65; text rep. in US ratification, 1974 (1975) 14 ILM 49–50. See J.N. Moore, ‘Ratification of the Geneva Protocol on Gas and Bacteriological Warfare: A Legal and Political Analysis’ (1972) 58 Va. L. Rev. 419–509. US ratification procedures had lapsed in 1926. President Nixon revived the matter. Moore at 420 indicates c. 98 states were parties to the Protocol in 1972 including all the industrial countries, the US excepted. 79 Convention on the Prohibition of the Development, Production and Stockpiling and use of Chemical Weapons and their Destruction, Paris, 13 January 1993, 1997 UNTS 317 (1993) 32 ILM 800 with text at 804–73. See also the 1925 Geneva Chemical Weapons Protocol, supra n. 78. 80 �� See Chapter 10, and UNGA Res. 47/68 ‘Principles Relevant to the Use of Nuclear Power Sources in Outer Space, 14 December 1992’ (1993) 32 ILM 917 at 921–6. 81 �� M. Bourbonniere and R.J. Lee, ‘Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict’ (2007) 18 Eur. J. Int. L. 873–901; �� N. Jasentuliyana, International Space Law and the United Nations (The Hague: Kluwer, 1999) 104–5. 82 �� A development as to kinetic weapons is the agreement of all the space-faring nations to the IADC Guidelines on debris. Kinetic ASATs cause debris: their use is therefore inhibited by the Guidelines. For the Guidelines see Chapter 10, nn. 110, 140. However, the Chinese destruction of its weather satellite in 2007 (Chapter 10, p. 305) is worrying. See infra nn. 97, 135, 136.

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anti-satellite measures (ASATs).83 OST Art. IV.2 specifically prohibits the testing of any type of weapons on celestial bodies but that prohibition would appear not to apply to tests in space itself.84 The weaponisation of space is a current worry in the UN.85 During the OST negotiations the demilitarisation of outer space was on the minds of delegates, the drafters having ‘a particular desire to limit the use of celestial bodies, if not outer space as well, for military purposes’ before the planned manned landings occurred and while the celestial bodies were ‘as yet practically untouched by man’.86 The then USSR wanted an air-tight (?) exclusion of military bases from the Moon and celestial bodies. It insisted that the description of prohibited facilities should include military ‘installations’. This was accepted. The establishment of military bases, installations or fortifications on celestial bodies is prohibited by OST Art. IV para. 2, as are military manoeuvres on celestial bodies.87 However it has been noted that these prohibitions do not prohibit the development of relevant technologies.88 In addition or correlatively by the last two sentences of para. 2 the door was left open for military personnel to engage in activities of a peaceful nature including scientific research and to use military equipment for the peaceful exploration of the Moon and other celestial bodies.89 Indeed, subject to the militarisation restriction, the establishment of bases on the Moon or other celestial bodies is allowed. However, in a direct borrow from Art. VII. 2 and 3 of the Antarctic Treaty, by OST Art. XII all bases, equipment and vehicles are to be open to inspection by other state parties, provided that reasonable advance notice is given,90 and on the basis of reciprocity. Whether that reciprocity will be forthcoming remains to be seen. Such provisions are, of course, intended to be reassuring, as is the possibility under OST Art. X for the observation of the flight of space objects by OST parties other than the launching state. 83 �� As to which see infra at n. 134. 84 Nuclear weapons would fall under the prohibitions of the Nuclear Test Ban Treaty, supra n. 58. But cf. now the possible use of nuclear or other weaponry as part of planetary defence: see Chapter10 – ‘Planetary Defence’ c. n. 145. 85 �� See infra at n. 154. 86 �� Dembling and Arons, ‘Evolution’ (supra n. 60) at 427. Cf. R.D. Crane, ‘Soviet Attitudes Toward International Space Law’ (1962) 56 AJIL 685–723, and his ‘Basic Principles in Soviet Space Law: Peaceful Coexistence, Peaceful Cooperation, and Disarmament’ (1964) 29 Law and Contemp. Probs. 943–55; M. Russell, ‘Military activities in Outer Space: Soviet Legal Views’ (1984) 25 Harv. Int. L.J. 153–94. 87 See Chapter 7. 88 Bourbonniere III (supra n. 3) at 11. 89 Dembling and Arons, ‘Evolution’ (supra n. 60) at 432–5. 90 �� Antarctic Treaty (supra n. 38) Art. VII. 2 and 3 do not require notice. However, it is reasonable that notice should be given for visits on celestial bodies, if only to ensure that there is an adequate air supply for all present. As noted in Chapter 7, in the film 2001: A Space Odyssey (1968) Russian access to the (US) ‘Moon Base Clavius’ is refused on health grounds. Cf. situations of crisis: supra p. 148.

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The Moon Agreement has some relevance in such matters, albeit that it is relatively ineffective,91 and we would as a preliminary matter note that by its Art. 1, the MA applies to all celestial bodies within the solar system, not just the Moon, except where other ‘specific legal norms’ have been established with regard to any such bodies. From OST Art. IV para. 2, MA Art. 3.1. reiterates the ‘peaceful purposes’ requirement to which we will return. MA Art. 3.4. repeats OST Art. IV para. 2 as to military bases etc. and the use of military personnel and equipment on the Moon and other celestial bodies. MA Art. 3 parallels OST Art. IV para. 1 but takes its provisions somewhat further.92 In particular, as noted above, Art. 3.3 extends the prohibition on nuclear or WMD weaponry in space. OST Art. IV para. 1 had dealt with Earth orbiting or the stationing of ‘such weapons in outer space in any other manner’. MA Art. 3.3. prohibits putting such weapons in Moon orbit or on a trajectory to or around the Moon or on the Moon itself. However, the major innovation of MA Art.3 is Art. 3.2: ‘Any threat or use of force or any other hostile act or threat of hostile act on the Moon is prohibited. It is likewise prohibited to use the Moon in order to commit any such act or to engage in any such threat in relation to the Earth, the Moon, spacecraft, the personnel of spacecraft or manmade space objects’. The specific prohibition of ‘threat’ is an innovation in space law albeit it is to be found in the UN Charter, part of space law by OST Art. III. How the terms of this paragraph interact with those of MA Art. 3.1. as to ‘exclusively … peaceful purposes’ is an intriguing conundrum.93 MA Art. 3 does not clarify what a ‘peaceful purpose’ may be, but it does, perhaps, indicate some content for the contrary. Finally, MA Art. 15.1 provides for the inspection of bases, equipment etc. subject to reasonable notice, but, unlike OST Art, XI, without a condition of reciprocity. In the twentieth century the threat of ballistic missiles was real.94 Attempts at its reduction produced the 1972 USA–USSR ABM Treaty with its related agreements with the UK and Canada.95 The USA–USSR treaty was abrogated by the US in

91 �� Agreement Governing the Activities of States on the Moon and other Celestial Bodies, UN Doc. A/34/664. 5 December 1979; UN Doc. A/34/20, Annex 2; UNGA Res. 34/68; 1363 UNTS 3; (1979) 18 ILM 1434. By 2008 the MA had amassed thirteen ratifications and four signatures, none from individually space-competent states. See Chapter 7. 92 �� R.J. Zedalis, ‘Will Article III of the Moon Agreement Improve Existing Law? A Textual Analysis’ (1980) 5 Suffolk Transnat. L.J. 53–71. 93 �� Zedalis, supra n. 92, at 65–9. 94 Cf. the Commission to Assess the Ballistic Missile Threat to the United States, 2001, supra n. 47. 95 Treaty on the Limitation of Anti-Ballistic Missile Systems, Moscow, 26 May 1972, 944 UNTS 14; 24 UST 1439. See also US/UK 371 UNTS 46 and 307 UNTS 208; US/Canada 353 UNTS 239 and US State Department ABM archive at �� http://www.state. gov/www/global/arms/treaties/abmpage.html�� . Cf. ‘ABM Treaty Interpretation Dispute’, Hearing before the Subcommittee on Arms Control, International Security and Science of

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2001.96 Ballistic missiles may enter space (depending on where ‘space’ is) in their trajectories. Ballistic and anti-ballistic missiles remain a potential military use of space.97 However, ballistic missiles are not vehicles in Earth or other orbit although they may briefly intrude into space. This means, inter alia that ballistic missiles with nuclear or WMD warheads are not covered by the prohibition on the stationing of such weapons in space under OST Art. IV though other space treaties may apply.98 We turn now to the actual uses of space, acknowledging that it is becoming increasing difficult to distinguish between military and non-military usage of space. For example GNSS systems are dual systems, used for both civilian and military purposes. Ironically in view of the topic of this chapter, the present operational systems, US GPS, Russian GLONASS and the Chinese Beidou are systems designed, operated and owned by the military to which civilians have been granted access: only the projected European Galileo is civilian, and it intends to permit military use on its restricted service. Again the Shuttle could be used for military purposes, as may its successor.99 The military interest in telecommunications is obvious.100 Indeed, until the doctrines of privatisation began to spread, and with the only clear exception being the US, military considerations played (and may still play) an important role in the widespread state control of modern telecommunications facilities. As we outline in the Committee on Foreign Affairs, US House of Representatives, 99th Cong. 1st Sess., 22 October 1985 (USGPO, 1986). 96 See Whitehouse Statement on US withdrawal from the ABM Treaty, 13 December 2001: http://www.whitehouse.gov/news/releases/2001/12/20011213-2.html. The ABM treaty required six months’ notice of withdrawal. Cf. E.K. Penney, ‘Is that Legal? The US Withdrawal from the Anti–Ballistic Missile Treaty’ (2002) 51 Cath. Univ. L. Rev. 1287– 1322; R. Mullerson, ‘The ABM Treaty, Changed Circumstances, Supreme Interests and International Law’ (2001) 50 ICLQ 509–39; J.B. Rhinelander, ‘The ABM Treaty: Past Present and Future (Part 1)’ (2001) J. Conflict and Sec. L. 91–114, ‘(Part 2)’ at 225–44. The Clinton Administration had previously requested a modification of the ABM Treaty (which was a bilateral USA–USSR agreement) to permit the deployment of anti-missile systems to guard against the development of missile technologies by other potential recipients of nuclear proliferations and WMD technologies. 97 �� The Chinese missile that destroyed its Feng Yun 1-C weather satellite on 11 January 2007 some 580 miles out may have been an anti-ballistic missile, a device that normally would be used within the atmosphere. See F. Walsh, ‘Forging a Diplomatic Shield for American Satellites: The Case for Re-evaluating the 2006 National Space Policy in Light of a Chinese Satellite System’ (2007) 72 J. Air L. and Com. 759–99 at 760, and Chapter 10, p. 305. On 21 February 2008 a missile from USS Ticonderoga destroyed some 130 miles above the Pacific US-193, a remote sensing satellite that threatened re-entry with a block of frozen hydrazine propellant on-board. 98 �� See Reinhardt supra n. 75 and Reed and Norris infra n. 99. 99 �� W.D. Reed and R.W. Norris, ‘Military Use of the Space Shuttle’ (1980) 13 Akron L. Rev. 665–88. 100 For the UK Skynet system see http://www.eadsdsuk.com/index.php?id=153.

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Chapter 8, internationally telecommunications are normally subject to the rules and procedures of the International Telecommunication Union (ITU).101 An important rationale for such rules as far as space is concerned is that ‘radio frequencies and any associated orbits, including the geostationary-satellite orbit are limited natural resources and they must be used rationally, efficiently and economically, in conformity with the provisions of the Radio Regulations’.102 States are required to limit the frequencies and the spectrum they use to the minimum essential to provide satisfactory necessary services,103 and must avoid harmful interference with the use of frequencies by other states.104 However, Art. 48.1 (202) of the ITU Constitution recognises that all state members of the ITU retain entire freedom as to military radio installations, language which includes military satellites.105 Article 48.2 (203) goes on to require that military services should comply with duties as to assistance in case of distress, to the avoidance of harmful interference and to having regard to the types of emissions and frequencies used, while Art. 48.3 (204) requires military installations providing public correspondence and other services governed by the ITU Administrative Regulations (sc. a broadcasting or public telecommunications service) to in general comply with the appropriate ITU regulatory provisions. These provisions do not seem to encompass the frequencies and orbits for military satellites as a matter of law. Nonetheless it is understood that many satellites with military applications go through the notification procedures and are registered on the ITU International Master Frequency Register.106 Such as GNSSs and remote sensing satellites are, of course, dual use, and as such come into the ordinarily registrable category. On occasion this may result in compromises and accommodations being negotiated. For example the US negotiated with Europe to obviate a possible encroachment by the projected Galileo system on a radio frequency used by the GPS thus enabling the US to register an unhampered radiofrequency under the ITU procedures.107 Other satellite systems are registered 101 Constitution and Convention of the International Telecommunication Union: Final Acts of the Additional Plenipotentiary Conference, Geneva, 22 December 1992 (Geneva: ITU, 1993), 1825 UNTS 1; 1996 UKTS 24, Cm. 3145; US Tr. Doc. 104–35. For the current amended Constitution and Convention see the Collection of the Basic Texts of the International Telecommunication Union Adopted by the Plenipotentiary Conference, 3d ed. 2007 (Geneva: ITU, 2007). It is now normal to cite a paragraph number as well as an article. 102 �� ITU Constitution, CS Art. 44.2 (196). 103 �� ITU Constitution, CS Art. 44.1 (195). 104 �� ITU Constitution, CS Art. 45 (197–9). 105 The terms of Art. 48 go far back into ITU history and have not been altered by ITU plenipotentiary conferences held since 1992. There seems to be a discontinuity between it and Art. 45.1 (197) on the avoidance of harmful interference which applies to ‘All stations, whatever their purpose’ (emphasis added). 106 As to these procedures see Chapter 8. 107 US–EU Agreement on GPS–Galileo Cooperation, 26 June 2004: White House Fact Sheet, http://www.whitehouse.gov/news/releases/2004/06/20040626-8.html. The

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both with the ITU and with UN OOSA under the Registration Convention of 1976, their use or purpose being, however, undesignated.108 It seems to be the case that there are in addition a number of satellites whose existence is confidential or undisclosed.109 We do not know whether these include any wholly dedicated military communications satellite systems.110 There is also the possibility of the military use of civilian commercial satellite telecommunications systems. It is, for example, known that when the Iridium satellite system neared bankruptcy, the US Defense Department employed the reorganised company for its purposes and that continues.111 It is also known that some military establishments make frequent use of civilian telecommunication systems.112 A question therefore did arise as to the use of commercial systems for military purposes.113 As international organisations both INMARSAT and INTELSAT were supposed not to be used militarily. That restriction has now been departed from,114 and it must simply be accepted that civil telecommunication satellite systems are now so used. In a sense this is to be welcomed as costeffective, and it is a clear example of ‘dual-use’ at work. Remote sensing systems are another category of dual-use space technologies. We discuss these more fully in Chapter 13 and to an extent there implicitly include their military aspect. Reconnaissance and surveillance from space is militarily important. Satellite sensing is a more flexible, controllable and frequent method of data gathering than is aerial sensing, and therefore has to a large extent replaced the Agreement ensures that Galileo’s signals ‘will not harm the navigation of warfare capabilities of the US and NATO military forces, and ensures that the US and the European Union can address individual and mutual security concerns’. 108 Military satellites usually operate on ITU registered frequencies, but have the option of altering frequencies should circumstances so require, but see next note. 109 See the 2007 USA–France argument as to the disclosure of secret satellites, Space News, 8 June 2007: http://www.space.com/aol/060707_graves_web.html. Such satellites may include remote sensing and signal traffic monitoring satellites. It is believed that Japan has not registered all its military satellites. 110 It is known that some operations in Iraq, Afghanistan and Pakistan involve unmanned Predator aircraft controlled via satellite links by operators in the US. 111 Iridium Satellite LLC: http://www.iridium.com/about/about.php. The Iridium system operates through a constellation of sixty-six satellites in low Earth orbit, and provides complete global coverage, including the polar areas. 112 Waldrop, supra n. 5, at 164; the ‘Space Commission, 2001’ report, supra n. 48. 113 R.A. Morgan, ‘Military Uses of Commercial Communications Satellites: A New Look at the Outer Space Treaty and “Peaceful purposes”’ (1994) 60 J. Air L. and Comm. 237–326. 114 �� INTELSAT Definitive Agreement, Art. III.d and e allowed the organisation to provide specialised services ‘other than those for military purposes’. �� Waldrop, supra n. 5 at 209–10 notes that privatised INTELSAT and INMARSAT now cite military use of their facilities as part of the services they offer. For the pre-privatisation military use of the INMARSAT system see infra at n. 132.

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latter.115 There is an argument that the acquisition of such data is an infringement of the privacy of a state. A more cogent argument to the contrary is that monitoring and therefore awareness of what is actually going on is a better guarantee of prolonging the peace than assumptions made in the absence of data.116 Remote sensing may also serve in the military sphere to monitor compliance with arms control agreements.117 There are, of course, the UN Remote Sensing Principles,118 but they apply only to the activities denominated by their Pr. I – the improvement ‘of natural resources management, land use and the protection of the environment’. It would strain credulity to interpret this as including military sensing on the ground that natural resources, land use and the environment might be indirectly affected by military data or operations. Military sensing does, however, throw up three problematic areas. The first is that sensing satellites are indiscriminating, seeing whatever is there. Civilian sensing carried out for the purposes covered by the UN Remote Sensing Principles may acquire data of military significance: can teleology solely determine whether the Principles apply? Second, under Pr. XI of the civilian ‘Principles’ a sensed state is supposed to have access to data: but the data accessed may be of military use to that state, which the sensing state may not wish. Under what circumstances may access to that data be refused on the basis of military requirements?119 Third, there is the whole question of the general availability of remote sensing data whether on a commercial or other basis. ‘Shutter control’ is certainly exercised by some states and for military and other security reasons they may make imagery available only in a degraded form.120

115 �� C.M. Petras, ‘“Eyes” on Freedom – A View of the Law Governing Military Use of Satellite Reconnaissance in US Homeland Defense’ (2005) 31 J. Sp. L. 81–115. Cf. Anonymous, ‘Note: Legal Aspects of Reconnaissance in Airspace and Outer Space’ (1961) 61 Col. L. Rev. 1074–102; D.A. Koplow, ‘Back to the Future and Up to the Sky: Legal Implications of Open Skies Inspection for Arms Control’ (1991) 79 Cal. L. Rev. 421–96. 116 See text following infra at n. 147; cf. �� G. Catalano Sgrosso, ‘International Legal Framework for Remote Sensing’, Workshop on Legal Remote Sensing Issues, Project 2001, University of Cologne Institute of Air and Space Law (Cologne, 1999) 5–23 at 16–20. �� 117 �� Jasentuliyana, supra n. 81, 319–20. 118 �� ‘Principles Relating to the Remote Sensing of the Earth from Outer Space’, 3 December 1986; UNGA Res. 41/65. cf. (1986) 25 ILM 1334–6 with note at 1331–3. 119 �� As of 2007, US, Canada, India, France, Italy and Israel had each adopted formal regulations regarding denial of data, see J.I. Gabrynowicz, ‘Land Remote Sensing Laws and Policies of the National Government, a Global Survey for the National Oceanic and Atmospheric Administration (NOAA) by the Univ. of Mississippi National Center for Remote Sensing, Air, and Space Law’ (2007), at ‘online resources’ at www.spacelaw. olemiss.edu. Cf. supra pp. 427 ff. 120 �� C. Hanley, ‘Regulating Commercial Remote Sensing Satellites over Israel: A Black Hole in the Open Skies Doctrine’ (2000) 52 Admin. L. Rev. 423–42; R. Prober, ‘Shutter Control: Confronting Tomorrow’s Technology with Yesterday’s Regulations’ (2003) 19 J. L. and Pol. 203–52; R. Jakhu, ‘International Law Governing the Acquisition

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Underlying all these elements is the concept of the use of space for ‘peaceful purposes’ which we must now properly consider. We have deferred this because it can be rightly appreciated only in the context of the technologies and actual use of space.121 International agreement has prevented (or sometimes only slowed) the proliferation of some particular weaponry and on occasion secured the reduction of armaments. We would hope also that international agreement would affect the development of certain technologies. However, such steps are dependent upon that agreement, and compliance with it. It is useless merely to ‘prohibit’ no matter how vociferously.122 In a sense the concept of a ‘peaceful purpose’ is to be considered as aspirational as well as prescriptive. At the end of the fifth negotiation session of the OST the USSR representative indicated that ‘[a] number of questions would, of course, remain to be dealt with after the elaboration of the Treaty particularly the use of outer space for exclusively peaceful purposes’.123 Dembling, who was the US representative, writing of the negotiations before the sixth and final session commented that until the completion of the OST text, ‘any military use of outer space must be restricted to nonaggressive purposes in view of Article III which makes applicable international law including the Charter of the United Nations’.124 That remains true now as a matter of customary international law even after the completion of the OST. Yet what are ‘peaceful purposes’? ‘Peaceful’ is a word used in the title and text of the pre-OST UNGA space Resolutions, and in several articles of the OST often to modify the noun ‘purpose’ or ‘purposes’.125 On occasion it is further modified by the adverb ‘exclusively’.126 The UN Committee set up to deal with space matters is the Committee on the and Dissemination of Satellite Imagery’ (2003) 29 J. Sp. L. 65–91. See also discussion of ‘shutter control’ and access to data in Chapter 13, pp. 427 ff. 121 �� See supra at n. 8. 122 �� Cf. �� the Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226. On the casting vote of the President the �� Opinion does not rule out the use of such weapons by a state in circumstances when its survival is at stake or as part of a policy of deterrence: see Opinion at 262–3, paras 95–6 and at 266 ‘Dispositive 2. E’. Cf. Declaration of Judge Vereshchetin at 279–81 and Dissenting Opinion of Judge Higgins at 583–93. 123 UN Doc.A/AC,105/C2/SR.62m, at 6 as quoted by Dembling ‘Evolution’ (supra n. 60) at 434. 124 By the time of the 1966 negotiations the text of Art. III had been agreed: Dembling and Arons supra n. 60 at 434. 125 I.A. Vlasic, ‘Disarmament Decade, Outer Space and International Law’ (1981) 26 McGill L.J. 135–206; his ‘The Legal Aspects of Peaceful and Non-Peaceful Uses of Outer Space’, in B. Jasani ed. �� Peaceful and Non-Peaceful Uses of Space (New York: Taylor and Francis, 1991) at 37–55; A. �� Meyer, ‘Interpretation of the Term “Peaceful” in the light of the Space Treaty’ (1968) 11 Proc. IISL 24.�� Cf. B. Jasani, ed., Space Weapons and International Security (Oxford: OUP, 1987). 126 �� OST Art. IV para. 2 stipulates that states use the Moon and celestial bodies ‘exclusively for peaceful purposes’. Cf. �� MA Art. 3.1.

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Peaceful Uses of Outer Space (COPUOS). The concept may well be referred back to uses of the term in the UN Charter. UN Charter Arts 1 and 2 require states to settle their disputes by peaceful means and in particular by Art. 2(3) that states settle their disputes by peaceful means ‘in such a manner that international peace, and security, and justice, are not endangered’.127 Does ‘peaceful’ mean ‘non-military’ or does it mean ‘non-aggressive’? The OST drafters did not clearly define the term as used in Art. IV, nor the ‘peaceful uses’ of outer space that are allowed by the Treaty. The US and other Western states interpret ‘peaceful use’ as ‘non-aggressive use’.128 This is in line with the UN Charter division of disputes into pacific dispute to be settled under its Chapter IV, and actions with respect to threats to the peace, breaches of the peace and acts of aggression under Chapter VII. Others would adopt (or would have adopted) a broader definition of ‘peace’ so as to outlaw all military uses of space.129 The issue remains important because weapons technology continues to develop and as we have seen above some national policies have become increasingly explicit about planning for military uses of outer space.130 Other treaty provisions also constrain their terms by ‘peaceful use’. Thus the pre-privatisation INMARSAT Convention required the facilities the organisation provided to be used for peaceful purposes only.131 INMARSAT therefore faced a problem in the 1980/1990s when its facilities were used for military communications. The portability of the INMARSAT terminals presented an opportunity. First INMARSAT terminals were removed from ships in Beirut Harbour and used up in the mountains behind Beirut inter alia by factions hostile to each other. Then other militaries used the idea. For INMARSAT the problem was acute as Art. 3.3. of the Convention required that the INMARSAT system was to be used not just for ‘peaceful purposes’ but for ‘exclusively peaceful purposes’. The result was a statement by the legal adviser of INMARSAT which clearly articulated the requirements the INMARSAT Convention placed on its signatories. This included that the INMARSAT system should carry military communications only for 127 UN Charter, supra n. 15. Cf. the statement in Art. 6 of the Antarctic Treaty (supra n. 38) that ‘Antarctica shall be used for peaceful purposes only’. 128 Dembling and Arons supra n. 60 at 434; Reed and Norris (supra n. 99) at 677–9. The US National Aeronautics and Space Act of 1958 clearly required and requires that US space activities be for ‘peaceful purposes’, while also contributing to national defence: 42 USC §§ 2451 et seq. 129 Cf. R.D. Crane, ‘Soviet Attitudes Toward International Space Law’ (1962) 56 AJIL 685–723 at 700–704, and his ‘�� Basic Principles in Soviet Space Law: Peaceful Coexistence, Peaceful Cooperation, and Disarmament’ (1964) 29 Law and Contemp. Probs. 943–55 �� at 949–55. Cf. the 1952 proposal of Professor Alex Meyer (supra n. 31), to prohibit war-like activities in outer space; Cheng, 523–38. 130 Cf. text supra at n. 47 and following. 131 Convention on the International Maritime Satellite Organization (INMARSAT), 3 September 1976, 1143 UNTS 105, 1979 UKTS 94, 31 UST 1, TIAS 9605 (1976) 15 ILM 1051. Cf. Chapter 11.

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securing safety of life and aid in distress.132 This is all very well as a statement of desiderata. The crunch point is, however, that INMARSAT did not and could not listen in to the signal traffic which it carried in order to censor any inappropriate use of its facilities. It therefore was unable itself to secure compliance with the terms of the INMARSAT Convention. Compliance was within the competence of its signatories and the users which it licensed, not the organisation itself. Questions may also arise as to the use of the International Space Station (ISS), a development which we outlined in Chapter 4. The intergovernmental agreements and memoranda of understanding that govern the use of the ISS indicate that it is to be used for peaceful purposes, but exactly what this might mean in a particular instance remains unclear.133 Military Action in Space May states either protect their investment in military satellites, or defend such satellites as they may have? The question takes us into the area of anti-satellite technologies.134 Anti-satellite technology has four basic modes. A kinetic weapon destroys or cripples a satellite by collision with either a single missile, or with a number of small objects directed towards it – the buckshot technique.135 Launched 132 �� W.D. von Noorden, ‘INMARSAT Use by Military Forces: A Question of Treaty Interpretation’ (1995) 23 J. Sp. L. 1–17. 133 �� C.M. Petras, ‘“Space Force Alpha”: Military Use of the International Space Station and the Concept of “Peaceful Purposes”’ (2002) 53 Air F. L. Rev. 135–81 at 172–80. Cf. H. DeSaussure, ‘Prospects for the Demilitarization of the Manned Space Station’ (1984) 18 Akron L. Rev. 183–91, and his ‘The Impact of Manned Space Stations On the Law of Outer Space’ (1984) 21 San Diego L. Rev. 985–1014 at 1009–13; A.J. Young, Law and Policy in the Space Stations Era (Dordrecht: Nijhoff, 1989) 201–39. 134 �� Bourbonniere II (supra n. 3); S. Mirmina ‘The Ballistic Missile Defense System and its Effects on the Outer Space Environment’ (2005) 31 J. Sp. L. 287–313; A. Carter et al., ‘Technical Demarcation for ASAT and BMD Systems’, in Jasani (supra n. 125) at 107– 27, and H.M. Feigel, ‘Problems of Distinguishing ATBM/Air Defense Systems from Space Weapons’, ibid. at 129–55; J.A. Jiru ‘Star Wars and Space Malls: When the Paint Chips Off a Treaty’s Golden Handcuffs’ (2000) 42 S. Tex. L. Rev. 155–82. See also Bourbonniere I and III (supra n. 3) and Bourbonniere and Haeck, supra n. 11; (US) Space Commission, 2001 (supra n. 48); Arms Control in Space: Workshop Proceedings (US Cong. Office of Technology Assessment OTA-BP-ISC-28, 1984): http://govinfo.library.unt.edu/ota/Ota_4/ DATA/1984/8404.PDF. 135 One example is the ‘Brilliant Pebbles’ system conceived by the US in the 1980s as part of the then ‘Strategic Defence Initiative’ but not persisted with. See E. Reiss, The Strategic Defence Initiative (Cambridge: Cambridge UP, 2008); E. Reiss et al., The Strategic Defence Initiative: The Development of an Armaments Programme (Cambridge: Cambridge UP, 1992); F. Walsh, ‘Forging a Diplomatic Shield for American Satellites: The Case for Re-evaluating the 2006 National Space Policy in Light of a Chinese Satellite System’ (2007) 72 J. Air L. and Comm. 759–99; R.J. Zedalis and C.L. Wade, ‘Anti-Satellite

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from the Earth or from a space platform, a kinetic weapon would have the disadvantage of producing a cloud of debris, with all its potential consequences.136 An alternative is the laser which could be used to knock out a satellite, again from either Earth or from space.137 A different possibility is the use of radio jamming to either overwhelm a satellite itself or to prevent its signals being used.138 Last, in a modern age dependent on electronics and the Internet, a less obvious but real possibility is cyber-attack on a perceived enemy, part of which could involve interference with command, control and use of satellite systems.139 The short answer is that it is permitted to defend personnel and technologies within the legal framework of the ‘inherent right of self-defence’ discussed above. However that defence must be proportionate, again as indicated above. As far as Weapons and the Outer Space Treaty of 1967’ (1978) 8 Cal. W. Int. L J. 454–82; R.J. Zedalis, ‘�� On the Lawfulness of Forceful Remedies for Violations of Arms Control Agreements: Star Wars and Other Glimpses at the Future’ (1985) 18 N.Y.U.J. Int. L. and Pol. 73–168;�� J.N. Halpern, ‘Antisatellite Weaponry: The High Road to Destruction’ (1985) 3 Boston U. Int. L.J. 167–208. Cf. M. Krepon, ‘Lost in Space: The Misguided Drive towards Antisatellite Weapons’ (2001) 80 For. Aff. 2–7; S.M. Meyer, ‘�� Anti-Satellite Weapons and Arms Control: Incentives and Disincentives from the Soviet and American Perspectives’ (1980–1981) 36 Int. J. 460–84; A.D. Burton, ‘Daggers in the Air: Anti-Satellite Weapons and International Law’ (1988) 12 Fletcher Forum 143–62. 136 The Chinese missile that destroyed its Feng Yun 1-C weather satellite on 11 January 2007 some 580 miles out may have been an anti-ballistic missile, a device that normally would be used within the atmosphere. See Walsh (supra n. 136) at 760, and Chapter 10, supra at n. 128. On 21 February 2008 a missile from USS Ticonderoga destroyed at some 130 miles above the Pacific US-193, a remote sensing satellite that threatened re-entry with a block of frozen hydrazine propellant on board. Cf. E.F. Hennessey, ‘Liability for Damage Caused by the Accidental Operation of a Strategic Defense Initiative System’ (1988) 22 Cornell Int. L.J. 317–37; Mirmina (supra n. 134). See also supra n. 97. 137 �� It is said that a Chinese laser has on occasion ‘painted’ a US satellite in space. http://www.globalsecurity.org/space/world/china/asat.htm. See also the US Congress reports, supra n. 45. For an early speculation see I.E. Sänger, ‘The Future of Spaceflight’, Universitas, trans. in The Next Ten Years in Space, 1959–1969, Staff Report, House Sel. Ctee on Astronautics and Space Exploration, H. Doc. 115, 86th Cong. 1st Sess. (USGPO, 1959) 158–72 at 164 as to ‘the development of stationary ultra-violet searchlights, exerting a radiation pressure of many tons, which by means of their high energy beam, are capable of destroying flying objects up to a distance of several hundred miles in a fraction of a second’. 138 See Chapter 9 – ‘Direct Broadcasting’ on jamming. Electronic jamming is a known strategic option for a variety of purposes. The use of GNSS to guide missiles or bombs could be disrupted by interference from ground or space-based radio stations. 139 C.M. Petras, ‘The Use of Force in Response to Cyber-Attack on Commercial Space Systems – Re-examining “Self-Defense” in Outer Space in Light of the Convergence of US Military and Commercial Space Activities’ (2002) 67 J. Air L. and Comm. 1213–68. In 2003 the US government established a Computer Emergency Readiness Team (USCERT) whose role includes coping with such problems: see http://www.us-cert.gov/.

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space is concerned there are, of course, particular considerations to be borne in mind. Precision weapons should be used properly,140 ‘harmful interference’ with the activities of others be avoided as far as possible,141 and the creation of debris should be minimised in the general interest.142 In this connection we note that the 2006 US National Space Policy states that the ‘United States considers space systems to have the rights of passage through and operations in space without interference. Consistent with this principle, the United States will view purposeful interference with its space systems as an infringement on its rights’.143 It goes on: [t]he United States considers space capabilities – including the ground and space segments and supporting links – vital to its national interests. Consistent with this policy, the United States will: preserve its rights, capabilities, and freedom of action in space; dissuade or deter others from either impeding those rights or developing capabilities intended to do so; take those actions necessary to protect its space capabilities; respond to interference; and deny, if necessary, adversaries the use of space capabilities hostile to US national interests.144

The ‘fundamental goals of the Policy include to [e]nable unhindered US operations in and through space to defend our interests there’.145 It is also worthy of note that the policy statement requires the Secretary of Defense to ‘[p]rovide space capabilities to support continuous, global strategic and tactical warning as well as multi-layered and integrated missile defenses’,146 a duty which may lead to the placing of weapons in space. For the future, first we note Art. 36 of the Additional Protocol I to the Geneva Conventions provides that: ‘In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party’.147 We would hope that this requirement would be cogent in the military planning of the Parties to the Additional Protocol, as well as of non-parties. 140 �� D.S. Rudesill, ‘Precision War and Responsibility: Transformational Military Technology and the Duty of Care under the Laws of War’ (2007) 32 Yale J. Int. L. 517–45. See also Hennessey, supra n. 136. 141 �� OST Art. IX; Bourbonniere III (supra n. 3) at 13. 142 �� Mirmina (supra n. 134) at 304–8 indicates relevant US environmental practice. See supra n. 82 and Chapter 10. 143 �� US National Space Policy (supra n. 53) Sec.2 ‘Principles’ bullet point 4. 144 �� Ibid., bullet point 5. The extensive US use of space technologies for military purposes is both the cause and motivation of its protective attitude. 145 Ibid., Sec. 3 ‘United States Space Policy Goals’ bullet point 2. 146 Ibid., 5. National Security Space Guidelines, ‘Defense’ bullet point 4. Cf. n. 144 supra. 147 �� Additional Protocol I, supra n. 76.

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Second, there remains the difficulty of integrating the speed and density of modern communications with the traditional concept of ‘inherent self-defence’ recognised by Art. 51 of the UN Charter and by the ICJ.148 Much conflicting data may arrive simultaneously and a swift military response to a rapidly unfolding situation be deemed necessary. Modern weaponry can be devastating. The ability by unilateral determination to exercise the option of ‘self-defence’ is dangerous. It is therefore important that states err on the side of caution, and be reluctant to engage in pre-emptive self-defence. As the UN Panel quoted above stated: the alternative of leaving decisions on ‘self-defence’ to states rather than channelling them through the Security Council is that ‘[a]llowing one to so act is to allow all’.149 Further even a stated willingness to engage in pre-emptive self-defence may begin a process of escalation, responsive or matching action by other states resulting in international security being undermined.150 The Chinese test of a new anti-satellite weapon in 2007 and Russia’s subsequent claims of new intercontinental missile technology may indicate such an undermining.151 Third, while the foregoing paragraph has a general application, a correlative and equally urgent problem is the potential militarisation of outer space. The statements in the 2006 US National Space Policy of a willingness to deny access to or freedom of action in space to adversaries is worrying, and clearly appears contrary to OST Art. I.152 The US seems to consider militarisation either desirable or necessary,153 and has exercised the single vote against successive UN

148 See supra n. 27. 149 See supra n. 28. 150 Reisman and Armstrong, supra n. 25 at 548–9. Cf. US National Space Policy (2006), supra n. 53 quoted supra at nn. 143 and 144. See also current (2008) newspaper reports of Middle-East tensions. 151 Kahn, ‘China Confirms Space Test; Denies Intent to Intimidate’, NY Times, 24 January 2007, at A1; Chivers, ‘Russia Hails Test of a New Missile It Says Can Pierce Defense Shields’, NY Times, 30 May 2007, at A12. See also supra n. 97. 152 US National Space Policy (2006) (supra n. 53) ‘2. Principles’, bullet point 5: ‘National Security Space Guidelines, Defense’. This question bumps against the US constitutional rules as to the incorporation of a duly ratified treaty. Some have said that the OST is ‘not self-executing’ and therefore unenforceable – or disregardable. Note Medellin v Texas (2008) 128 S.Ct.1341 (2008) (Chapter 1, p. �� 5�� ). Cf. A.G. Quinn, ‘The New Age of Space Law: The Outer Space Treaty and the Weaponization of Space’ (2008) 17 Minn. J. Int. L. 475–502; Ty.S. Twibell, ‘Circumnavigating Space Law’ (1997) ILSA J. Int. and Comp. L. 259–95; C.R. �� Buxton, ‘Property in Outer Space: The Common Heritage of Mankind Principle vs. the First in Time, First in Right Rule of Property’ (2004) 69 J. Air L. and Comm. 689–707. 153 �� See text, supra at n. 47 and following.

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General Assembly Resolutions on the matter.154 Sadly we must note that the UN consideration of these matters has gone on for thirty years.155 Fourth, either formal or informal international agreements or understandings would be obvious means to de-escalate tensions. Unfortunately the 2006 US National Space Policy statement opposed any changes in international law regarding military uses of outer space or even any new negotiations on these matters.156 However, at least the Statement does not favour withdrawal from the OST or the renegotiation of existing treaty provisions on military uses. An alternative approach would be to establish formal or informal guidelines for whatever military activities take place in outer space.157 Such guidelines would be directed less at the legality of weapons in outer space but would be directed at insuring transparency so that states can avoid accidental war in outer space. For that purpose all space-faring states would observe agreed rules of behaviour. Thus the following summarised guidelines for military uses of outer space have been proposed by the Stimson Foundation:158 1. States shall not simulate attacks on satellites of other states, and shall avoid manoeuvres that increase the risk of collision. 2. States shall not use directed energy devices, such as lasers, to impair a satellite. States should not use anti-satellite weapons or space weapons to impair a satellite. 3. States shall not engage in activities intended to generate space debris. States shall observe the IADC debris rules. 154 �� UNGA Res. 62/20 ‘Prevention of an Arms Race in Outer Space’ was adopted on 7 December 2007, one-hundred and seventy in favour, one (US) against and one (Israel) abstaining. Absent were Angola, Chad, Democratic Republic of the Congo, Dominica, Kiribati, Nauru, Seychelles, Timor-Leste, Tuvalu, Uganda, Vanuatu. This is the latest of a series on this matter. Cf. UNGA Res. 61/58 (2006) on the same topic. 155 �� The process was initiated by the UNGA Tenth Special Session, 23 May–30 June 1978, a Session devoted to disarmament. UNGA Res. S‑10/2 para. 80 calls for international negotiations to prevent an arms race in outer space. 156 US National Space Policy (2006) (supra n. 53) Sec.2 ‘Principles’ bullet point 6: ‘The United States will oppose the development of new legal regimes or other restrictions that seek to prohibit or limit US access to or use of space. Proposed arms control agreements or restrictions must not impair the rights of the United States to conduct research, development, testing, and operations or other activities in space for US national interests’. 157 �� We recall the useful work done by many groups and organisations in the early years of space law which we outline in Chapter 1. 158 ‘Model Code of Conduct for the Prevention of Military Incidents and Dangerous Military Practices in Outer Space’, the H.L. Stimson Center 19 May 2004: http://www. stimson.org/wos/pdf/codeofconduct.pdf or http://www.stimson.org/pub.cfm?id=106. The Center is a nonprofit institution devoted to enhancing international peace and security that seeks to reduce the threats to the peace by recommending solutions to complex problems such as military threats to peaceful uses of outer space. See generally: www.stimson.org/space.

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4. States shall keep others informed about launches into outer space and shall establish a system of consultation to resolve problems. 5. States shall adopt the ITU international traffic management regulations and recommendations. 6. States shall permit verification in accordance with internationally recognized principles. 7. States may, by agreement, establish special caution zones for the purpose of avoiding collisions. The objective of such guidelines would be to state principles on which all spacefaring states can agree – a common denominator. The resulting guidelines could range from the list of general principles proposed by the Stimson Center to simple rules of the road that would provide advance notice to identify space activities so that collisions would be avoided. The basic intention is to create certainty, predictability and safety for space flights. Unilateral claims of authority to use military power in outer space, the increasing military traffic in outer space, the uncertainties involved in conflicting claims, the possibilities of accidental collision and misunderstandings all make greater certainty about the nature of military outer space activities very appealing. Agreed rules of the road for the prevention of incidents and dangerous military practices in outer space would be similar to very familiar voluntary rules for greater transparency of weapons control activities, such as the Wassenaar Agreement,159 the Missile Technology Control Regime (MTCR) directed against proliferation of guided missiles160 and the Hague Code of Conduct on missile proliferation.161 These guidelines have worked well to curb the spread of weaponisation in the terrestrial world. States have become accustomed to follow these voluntary guidelines as it is their self interest to observe them. Similarly, guidelines for prevention of dangerous incidents in outer space would minimise the dangers of accidental military engagements in outer space and establish guidance enabling parties to recognise when military space activities might not be hostile even when appearing so to be. The intentions of the parties would be clarified and transparency achieved.162

159 See Chapter 14 and www.wassenaar.org� ��. 160 See Chapter 14 and www.mtcr.info. 161 See Chapter 14 and infra n. 162. 162 Cf. �� S.C. Larrimore, ‘International Space Launch Notifications and Data Exchange’ (2007) 23 Space Policy 172–9. See also ‘The Hague International Code of Conduct against Ballistic Missile Proliferation’, 2002 (HCOC) under which states subscribers to the Code notify each other in advance of launches into outer space or test flights giving detail of the planned launch notification window, the launch area and the planned direction of the launch (Art. 4.a.iii): http://www.acronym.org.uk/docs/0211/doc13.htm. See also www. armscontrol.org.

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Conclusion Military uses of outer space should be viewed within the context of and the limitations established by existing international law. The legal framework consists not only of the UN Charter and special international laws on military activities in outer space; it also includes existing space law treaties and agreements. There is a considerable body of international law governing military uses of outer space. As of the time of writing all the states want to preserve the existing legal framework. Many states would like to go further and ban all weapons from outer space. Others contemplate developments.163 At least one of the space powers wants to keep international restrictions within their current limitations and is not willing to accept further restrictions. The legal status quo therefore continues. Civilian commercial activities in outer space have increased exponentially since the space law treaties were negotiated in the 1960s and 1970s. Commercial space activities would be severely affected, even possibly terminated, by military action in outer space. Inter alia international telecommunications would be severely affected by any loss of satellite systems. All the civilian uses of remote sensing and global positioning systems would be impaired. Scientific exploration endeavours such as the Hubble and Spitzer Telescopes would also suffer and possibly be destroyed. The interests of space commerce and space science exploration thus run contrary to military activities in outer space and constitute a counter balance to a greater military use of space. That point may be recognised in the 2006 US Space Policy statement which encourages private commerce and the maximum use of US commercial space products in outer space including by its military.164 Civilian activities in outer space have developed into international co-operative projects such as the ISS. Similar international co-operation will be required even more in the future because space projects like the ISS cost in excess of US$100 billion, which is probably more than any one state is willing or able to afford. International co-operation is necessary for future outer space development such as exploration and economic uses of the Moon and Mars. Such international co-operation is harmonious with the existing legal regimes for outer space. The alienation of current and future international partners in space ventures by one major space power endangers future space co-operation.165 In the absence of 163 �� Cf. P.H. Henry et al., ‘The militarization and weaponization of space: Towards a European space deterrent’ (2008) 24 Space Policy 61–6. 164 �� UN National Space Policy (2006) (supra n. 53) �� 1. ‘Background’ para. 1; 2. ’Principles’, bullet point 7;�� 3. ‘United States Space Policy Goals’, bullet point 5; 7. ‘Commercial Space Guidelines’, passim. Cf. G.H. Reynolds and R.P. Merges, ‘The Role of Commercial Development in Preventing War in Outer Space’ (1985) 30 Jurimetrics 130–46; G.H. Reynolds, ‘Space Law in Transformation: Some Observations’ (2005) 6 Chic. J. Int. L. 69–80 at 71–6. 165 Editorial, ‘Jingoism Will Get Us Nowhere in Global Space Affairs’, Aviation Week and Space Technology, 30 October 2006, at 58.

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international consensus unilateral military action moves the world towards chaos. Once one state begins to assert unilateral authority to weaponise outer space with the implicit threat of the use of those weapons, other states will use that precedent to assert their own unilateral authority. The result could be the collapse of the existing firmly imbedded legal framework on peaceful uses of outer space. Such a collapse is in no-one’s long term interest.

Chapter 17

The Search for Extraterrestrial Intelligence (SETI) Introduction Some consider a search for Extra-Terrestrial Intelligence (ETI) proof of the lunacy of those who undertake it. Others see it as a matter of amusement, tolerable as a harmless if puzzling hobby. In both attitudes there is usually also concern that public funds should not be used for the endeavour. However, the matter goes beyond such reactions. Searches for ETI are under way and must now be considered in any exposition of general space law. Legal commentators have set down their thoughts on the matter and recent years have seen the development of Protocols setting down mechanisms for the announcement of the detection of ETI and for the framing of a possible reply, if such is appropriate. In passing, however, we should also note that the detection of any form of extraterrestrial life is, perhaps, more likely in the near future as we explore our near neighbours. That is why there are international legal obligations as to the avoidance of the harmful contamination of the Moon and other celestial bodies (Art. IX OST). There is also a duty under Art. 5.3 of the Moon Agreement to report any finding of evidence of organic life, which we would hope would be complied with even should that Agreement not bind the states making the discovery. This chapter first sketches the arguments for and against the existence of ETI, for and against the Earth encountering it, and then outlines some of the �� On these lines, some readers may consider this chapter an unnecessary waste of space. Too bad. Notwithstanding the success of the film The Extraterrestrial (E.T.), it is customary to refer to ETI (Extra-Terrestrial Intelligence), thus making the acronym for the Search, SETI. An earlier acronym CETI, ‘Communication with ETI’, dropped out of use as perhaps being too optimistic. The ‘Search for Alien Intelligence’ is not a favoured term as ‘Alien’ may imply hostility and arouse xenophobia. �� In 1979 the then US Senator William Proxmire awarded one of the ‘Golden Fleece’ Awards for wasteful US federal expenditure to funding for SETI, and in 1982 managed to get such funding cut off. However, Carl Sagan persuaded him otherwise. See F. Drake and D. Sobel, Is Anyone Out There? (New York: Delcorte Press, 1992) 191–6; L. Billings, ‘From the Observatory to Capitol Hill’, in B. Bova and B. Preiss, eds, First Contact: The Search for Extra-terrestrial Intelligence (New York: New American Library; London: Headline Book Publishing, 1990) 279–304. Concern remains that SETI may be more expensive than is justified. �� See Chapters 7 and 10 – ‘Contamination’.

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SETI programmes that have been undertaken. Relevant law and practice is then considered. The effect that the discovery of ETI might have on society is noted. The Protocols suggested for the handling of the detection of and a possible reply to a communication from the stars are discussed. Finally there is a section on ‘Metalaw’ – possible approaches of law to the basis of interaction with ETI. Extraterrestrial Intelligence Debate as to whether this world is the only home of intelligence in the Universe has gone on for millennia. It has arisen among philosophers as well as among cosmologists, and shows no signs of exhaustion. Lawyers have also been �� S.J. Dick, Plurality of Worlds: The Origins of the Extra-terrestrial Life Debate from Democritus to Kant (Cambridge: Cambridge UP, 1982); M.J. Crowe, The Extra-terrestrial Life Debate, 1750–1900: The Idea of a Plurality of Worlds from Kant to Lowell (Cambridge: Cambridge UP, 1986). Between them these two books cover two and a half millennia of thought. See also K.S. Guthke, The Last Frontier: Imagining other Worlds from the Copernican Revolution to Modern Science Fiction (Ithaca, NY: Cornell UP, 1990) and A. Koestler, The Sleepwalkers, A History of Man’s Changing Vision of the Universe (London: Hutchinson, 1959; Pelican Books, 1968). An early book was W. Whewell, Of the Plurality of Worlds, An Essay (London: Parker, 1853) recently twice republished with additional material, M Ruse, ed. (Chicago: Chicago UP, 2001) and E. Hitchcock, ed. (Michigan: Scholarly Pub. Off., 2006). Cf. T. Chalmers, Discourses on the Christian Revelation Viewed in Connection with the Modern Astronomy (Glasgow: John Smith, 1817). The initial pages of E. Fasan’s book (n. 7) and that of Sullivan (n. 5) indicate other earlier writers. Bishop John Wilkins (England) published several works on the topic over three centuries ago, his A Discovery of a World in the Moone (1638) being republished in 1981 (New York: Olms, 1981). See also G. McColley, (1) ‘The Doctrine of the Plurality of Worlds as a Factor in Milton’s Attitude toward the Copernican Hypothesis’ (1932) 47 Modern Language Notes 319–25; (2) ‘The Seventeenth-Century Doctrine of a Plurality of Worlds’ (1936) 1 Annals of Science 385–430; (3) ‘The Universe of De Revolutionibus’ (1939) 30 Isis 452–72; (4) with H.W. Miller. ‘Saint Bonaventure, Francis Mayron, William Vorlong and the Doctrine of a Plurality of Worlds (1937) 12 Speculum 386–9. Note: this is not the ‘plurality of worlds’ found in discussions of ‘modal realism’ in philosophy: cf. D. Lewis, On the Plurality of Worlds (Oxford: Blackwell, 1986, 2001); J. Divers, Possible Worlds (London: Routledge, 2002). �� Recent major studies are: R.D. Ekers et al., SETI 2020: A Roadmap for the Search for Extraterrestrial Intelligence (Mountain View, CA: SETI Press, 2002) and M.A.G. Michaud, Contact with Alien Civilizations (New York: Copernicus, 2007). Cf. F. Drake and D. Sobel, Is There Anyone Out There? (New York, Delacorte Press, 1992); W. Sullivan, We Are Not Alone: The Search for Intelligent Life on Other Worlds (London: Pelican Books, 1964, rev. ed. 1970); B. Bova and B. Preiss, eds, First Contact (London: Headline, 1990); J. Heidmann, Extraterrestrial Intelligence (Cambridge: Cambridge UP, 1995); P. Davies, Are We Alone? Implications of the Discovery of Extraterrestrial Life (London: Penguin, 1995); A.A, Harrison, After Contact: The Human Response to Extraterrestrial Life (New York:

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active. The books of Andrew G. Haley, Ernst Fasan, Robinson and White, and McDougal, Lasswell and Vlasic contain important discussions of the field as do papers by Dr Fasan10 and Professors Cocca,11 Goodman,12 Kopal,13 Reijnen,14 Sterns15 and Sterns and Tennen.16 At Turin in 1997 ‘SETI and Society’ was the

Plenum, 1997); S. Dick, ed., Many Worlds: The New Universe, Extraterrestrial Life and the Theological Implications (Philadelphia: Templeton Foundation Press, 2000); E. Regis Jr, ed., Extraterrestrials: Science and Alien Intelligence (Cambridge: Cambridge UP, 1985); B. Zuckerman and M.H. Hart, Extraterrestrials: Where are They? 2nd ed. (Cambridge: Cambridge UP, 1995); P. Schenkel, ETI: A Challenge for Change (New York: Vantage Press, 1988); J. Billingham, ed., Life in the Universe (NASA: 1971 CP-2156: http://history. nasa.gov/CP-2156/cp2156.htm); M.A.G. Michaud, Contact with Alien Civilizations (New York: Copernicus, 2007). Special issues of Acta Astronautica, the Journal of the IAF have been devoted to SETI matters: Vols 21, 1990; 26, 1992; 42, 1998. Cf. The Limits of Organic Life in Planetary Systems (Washington DC: National Academy Press, 2007). See also http:// cosmiclog.msnbc.msn.com/archive/2007/11/06/451256.aspx for an extra-solar planet in the Goldilocks Zone (not too hot, not too cold); cf. P. Davies, The Goldilocks Enigma: Why is the Universe Just Right for Life? (London: Allen Lane, 2006). As at 2008 more than three hundred extra-solar planets have been discovered. �� A.G. Haley, Space Law and Government (Appleton Century Crofts, 1963) 394– 421. �� E. Fasan, Relations with Alien Intelligences (Berlin: Berlin Verlag, 1970). �� G.S. Robinson and H.M. White Jr, Envoys of Mankind (Washington DC: Smithsonian Institution, 1986). �� M. McDougal, H.D. Lasswell and I.A. Vlasic, Law and Public Order in Space (New Haven, CT: Yale UP, 1963) 974–1021. 10 �� E. Fasan, ‘Discovery of ETI: Terrestrial and Extraterrestrial Legal Implications’ (1990) 21 Acta Astronautica 131–5. 11 �� A.A. Cocca, ‘XII Tables for Researchers on Extraterrestrial Intelligence,’ (1990) 21 Acta Astronautica 127–30. 12 �� A.E. Goodman, ‘Diplomatic and Political Problems Affecting the Formulation and Implementation of an International Protocol for Activities Following the Detection of a Signal from Extraterrestrial Intelligence,’ (1990) 21 Acta Astronautica 103–8; and his ‘Diplomacy and the Search for Extraterrestrial Intelligence (SETI)’ (1990) 21 Acta Astronautica 137–41. 13 �� V. Kopal, ‘International Law Implications of the Detection of Extraterrestrial Intelligent Signals,’ (1990) 21 Acta Astronautica 123–6. 14 �� G.C.M. Reijnen, ‘Basic Elements of an International Terrestrial Reply Following upon the Detection of a Signal from Extraterrestrial Intelligence’ (1990) 21 Acta Astronautica 143–8. 15 �� P.M. Sterns, ‘SETI and Space Law: Jurisprudential and Philosophical Considerations for Humankind in relation to Extraterrestrial Life’ (2000) 46 Acta Astronautica 759–63; and her ‘Metalaw and Relations with Intelligent Beings Revisited’ (2004) 20 Space Policy 123–30 [Lyall/Larsen 561–8]. 16 �� P.M. Sterns and L.I. Tennen, ‘Exobiology and the Outer Space Treaty: From Planetary Protection to the Search for Extraterrestrial Life’ (1997) 40 Proc. IISL 141–9.

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topic of the Seventeenth IAF/IISL Roundtable.17 This chapter draws on all these materials and on papers by one of the authors.18 As far as this book is concerned two preliminary aspects must be considered: the probability or otherwise of the existence of ETI, and whether we may encounter it. These two are not the same. We deal with probability of existence first. The question of the existence of ETI was transformed by the development of radio-astronomy and the formulation of the Drake Equation. Of these, radioastronomy is conveniently dealt with below while discussing the legal needs of SETI programmes. The fundamental question faced by SETI is whether there are indeed any civilisations elsewhere in the Galaxy capable of communicating with those of other solar systems.19 The Drake Equation is a probability tool allowing some assessment of that question. It sets out particular objective factors that are relevant in considering whether extra-terrestrial intelligences may exist. Probability can then be assessed according as different weight is assigned to each of its factors. The Equation also can inform the discussion of a subsidiary question, whether an ETI society can be contacted. The Drake Equation was first articulated at an informal conference held in 1961 at Green Bank Observatory, West Virginia, US, to discuss the possibility of communicating with other worlds.20 Following a presentation by John Lilley of the analogical problem of communication with dolphins on Earth, Frank Drake, the progenitor of Project Ozma,21 presented the focus of the conference in the form of the equation: N = R* f p.ne.f l.f i.f c L Non-mathematical minds (such as those of the authors) tend to boggle on seeing such a formula, but the Drake Equation is a useful tool.22 17 �� International Astronautical Congress, Turin 1997: 17th IAA/IISL Scientific/Legal Roundtable on SETI and Society (1998) 41 Proc. IISL 303–346. 18 �� F. Lyall, ‘Legal Aspects of SETI – Present and Future Arrangements’ 1993 IAA.9.293-788; rev. 1998 42 Acta Astronautica 661–5; ‘Communications with Extra-Terrestrial Intelligence: A New Dimension of Space Law’ 1996 IAA-96-IAA.9.2.04; ‘SETI and the Law: What if the Search Succeeds?’ (1998) 14 Space Policy 75–7; ‘SETI and International Law’ (1999) 41 Proc. IISL 334–44. 19 �� Of course, we may be alone: cf. P.D. Ward and D. Brownlee, Rare Earth: Why Complex Life is Uncommon in the Universe (New York: Copernicus, 2000). 20 �� Drake and Sobel (n. 5) 45–64. See also ‘Is There Intelligent Life on Earth’, in W. Sullivan (n.5) 268–89. 21 �� See infra at n. 42. 22 �� F.D. Drake, ‘The Drake Equation: A Reappraisal’, in Bova and Preiss (n. 5) 150–3. See also J.D. Barrow and F.J. Tipler, The Anthropic Cosmological Principle (Oxford: Clarendon Press, 1986) particularly at 576–612; P. Davies, The Goldilocks Enigma: Why is the Universe just right for Life? (London: Allen Lane, 2006); C. Sagan, Cosmos: The Story

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N (replaced in some formulations of the Equation by the less useful P (= probability)) denotes the number of ETI civilisations, and is the result of the interaction of the factors to the right of the equation. The factors now commonly considered as appropriate are: R*: The rate at which stars were being formed in the Galaxy when our solar system was coming into being. The inference is that sun systems of a similar age may exhibit similar propensities to support life, and (importantly) that that life may have reached a maturity roughly simultaneously with our own. Younger solar systems will not yet have life trying to communicate. In older systems life may have died out. f p: The fraction of stars round which a solar system comes into being. ne: The number of habitable planets per solar system which have an environment suitable for life. f l: The fraction of those suitable planets on which life actually does appear. In the belief that if life is possible it will occur, this factor is usually taken as ‘1’. f i: The fraction of life-bearing planets on which at least some of that life develops intelligence. f c: The fraction of those intelligent species that develop an society both capable and willing to attempt communication with other worlds.23 L: The length of time during which a space-communications-capable society may continue to exist, before, for one reason or another, it loses that capability (the longevity factor). Our own world society has been thus ‘capable’ for about a hundred years. Such is the Drake Equation as originally formulated. Later modifications have been suggested, but these need not detain us.24 Variant results can be obtained by assigning different values to the factors in the Drake Equation. From their own particular areas of study, astronomers and cosmologists, physicists, chemists, biologists, historians and sociologists have provided their guesses for these of Cosmic Evolution, Science and Civilisation (London: MacDonald, 1981; Futura Books, 1983) 328–32. 23 �� Strictly capability and willingness should be separated, but to estimate willingness is impossible. 24 �� Some formulations of the Drake Equation omit factors R* and L. Arguably they are unnecessary for the purpose of the Equation. The main essential of factor R* is comprised within the remaining factors, and L can be subsumed within factor f c as an element of the likelihood of an ETI communicating. Thus the simplified Drake Equation used in Barrow and Tipler (supra n. 22) at 586 is: p = f pnef lf if c, where p = probability. Heidmann (n. 5) 117–9 presents another simplified version. I.S. Shklovskii and C. Sagan (P. Fern, trans.), Intelligent Life in the Universe (San Francisco, CA: Holden Day, 1966), report another variant form of the Equation suggested by Sebastian von Hoerner. See also Michaud, supra n. 5, 53–7 and SETI 2020 (supra n. 5) at xxxv and later discussion.

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values. Some are pro-ETI, while others are against. Viewing the argumentation from another discipline, we cannot but occasionally feel that ‘result-oriented jurisprudence’ is taking place – that is that a line of argument is presented in order that a particular conclusion (for or against ETI) is arrived at, rather than that the result is derived from the argument. This seems to be a natural phenomenon of most disciplines. Suffice it therefore to say that solutions to the Drake Equation can be arrived at which ‘prove’ that the probability of ETI is nil, while others indicate that we should be at least prepared for detection and/or contact. Other aspects of ETI and the Drake Equation are sometimes invoked. One relates to the physical nature of the Universe and indicates that, even were the Equation to indicate a definite probability that ETI exists, the laws of physics mean that we can never know of its existence. To an extent this is covered in factors f c and L, but in brief the argument is that interstellar distances are such that, absent science fiction’s various law-bending inventions such as ‘hyperdrive’ or ‘space warp’ or the ‘Dirac transmitter’ or the ‘ansible’,25 travel between the stars is impossible and communication virtually so. It is therefore said that time, distance, the absolute of the speed of light and the implications of Einstein’s Theory of General Relativity,26 rule out interaction with any ETI. Some arguments arise from the fact that (so far as we know) we have not yet had contact with an ETI. As Enrico Fermi asked in 1950: ‘Where are they?’27 If intelligent ETs exist, we should already be aware of them. Our solar system is relatively young compared to the age of the universe and any older Beings would have had time both to evolve and to conquer the other constraints on interaction between their solar systems and ours. The argument then runs that since evidently the aliens are not in contact with us,28 they do not exist.29 Two responses are made. First, perhaps the ETs are here already incognito and/or the solar system may be

25 �� The ansible is the device in Ursula Le Guin’s ‘Hainish’ series by which instantaneous communication across interstellar distances is possible. James Blish’s Dirac Communicator in ‘Beep’ has a similar function. See J. Clute and P. Nicholls, eds, The Encyclopaedia of Science Fiction (London: Granada, 1979) sv. ‘Ansible’, ‘Dirac communicator’, ‘Faster than Light’ and ‘Communications’. 26 �� The implication of E = mc2 is that the closer the velocity of an object approaches that of light, the closer its mass approaches infinity. Travel beyond the solar system to likely planet-bearing solar systems will therefore take centuries since speed will always be less than light-speed and the distances are immense. 27 �� P. Horowitz, ‘The Fermi Paradox’, App. J to R.D. Ekers et al., eds, SETI 2010: A Roadmap for the Search for Extraterrestrial Intelligence (Mountain View, CA: SETI Press, 2002) 373–4. 28 �� This assumes the ‘conspiracy’ theorists who consider some governments are already in touch with ET, or have ET artefacts stored in secret, are wrong. Cf. http://en.wikipedia. org/wiki/UFO_conspiracy_theory. 29 �� But note Barrow and Tipler, supra n. 22, at 586, quoting the aphorism of M. Rees: ‘Absence of evidence is not evidence of absence’.

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under some sort of quarantine.30 In that case it would be prudent to plan for the day when they shrug off their previous constraint or diffidence. Second, even if they have not yet arrived, ETs may be on their way, in which case we should be thinking about how to meet them. When the aliens appear there may be little we can do. Some science fiction visitors, particularly in films, are less than benign but we may hope that well-developed intelligence blunts aggression.31 There is a third possibility short of physical contact which is that we will discover evidence as to the existence of ETI, but in a form such that no interaction is required of us. Numerous science fiction stories narrate the exploration of deserted ruins on the Moon, Mars or further away.32 The ruins of ET civilisations used to be a staple of the science fiction genre. Alternatively, given that the US Pioneer 10 and 11 and Voyager I and II probes are now on their way out of the solar system, perhaps one day an incoming probe or a derelict will provide evidence of ETI.33

30 �� Numerous science fiction stories envisage the infant Humanity as being under quarantine, surveillance or tutelage, e.g. C.S. Lewis’s trilogy Out of the Silent Planet (1938), Voyage to Venus (a.k.a. Perelandra) (1943) and That Hideous Strength (1945); A.C. Clarke, Childhood’s End (1954) or 2001 (1968). Such ideas are a staple of the UFO-Hunters: cf. www. mufon.com/. That said the UK Government found no evidence of ET visitors in its analysis of Unidentified Aerial Phenomena released in May 2006 under the (UK) Freedom of Information Act: see www.mod.uk/DefenceInternet/ FreedomOfInformation/PublicationScheme/ SearchPublicationScheme/UnidentifiedAerialPhenomenauapInTheUkAirDefenceRegion. htm. For other UK UFO reports released to October 2008 see http://ufos.nationalarchives.gov. uk/ and http://www.mod.uk/DefenceInternet/FreedomOfInformation/PublicationScheme/ SearchPublicationScheme/UfoReports19972007InTheUk.htm. CNES has made available French UFO reports: http://www.cnes.fr/web/5038-geipan.php; http://www.ufoevidence. org/topics/Gepan-Sepra.htm. Cf. The Roswell Report: Facts vs Fiction in the New Mexico Desert (USGPO: Headquarters US Air Force, 1995) and The Roswell Report: Case Closed (USGPO: Headquaters US Air Force, 1997). See generally the Wikipedia entry for Unidentified Flying Objects and its links: http://en.wikipedia.org/wiki/UFO. 31 �� H.G. Wells, The War of the Worlds (1898); B. de Las Casas, A Short Account of the Destruction of the Indies, N. Griffen trans., Intro. by A. Pagden (London: Penguin, 1992). Cf. the films Independence Day (1996) and Mars Attack (1996). See also the (2006) 443 Nature, 606, editorial which, commenting on the meeting of the IAF SETI study group at Valencia said: ‘It is not obvious that all extraterrestrial civilizations will be benign, or that contact with even a benign one would not have serious repercussions’. Cf. D. Brin, Shouting at the Cosmos … Or How SETI has Taken a Worrisome Turn Into Dangerous Territory: Lifeboat Foundation Special Report, 2006, http://lifeboat.com/ex/shouting.at.the. cosmos. 32 �� A.C. Clarke, The City and the Stars (1956) latterly takes its hero on a Grand Tour of deserted planets. 33 �� A.C. Clarke, Rendezvous with Rama (1972) begins with the detection of an incoming space-ship by a space equivalent of Project Safeguard, which presently seeks to detect asteroids on a collision course with Earth. Another Clarke story, Passer-by (1957) has an astronaut working in Earth orbit see what may be the hulk of an alien spaceship pass by.

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Even if we are not likely to encounter ETs we might detect them. The emergence of radio has at least increased the possibility that evidence will be forthcoming for the existence of ETI, even if interaction with it proves problematic. This could occur either through overhearing their chatter (cf. our radio and TV broadcasting)34 or by their deliberate transmission of a definite signal. In 1974 the Arecibo radio-telescope was used to send a signal rather than receive,35 and others have done likewise.36 If we have done so: why might not ETI? So detection of ETs may be possible, whether or not they arrive, will arrive, have arrived or have gone away on past Sol III. In that belief various SETI detection programmes have been undertaken. SETI Programmes37 The detection of ETI by optical means was first proposed in 196138 However, this was not really taken up until the mid-1990s. In April 2006 a dedicated project 34 �� In 2007 steps began generally to ‘listen to the stars’ as opposed to the targeted searches previously undertaken. See the SETI Institute Allen Array: http://www.seti.org/ site/pp.asp?c=ktJ2J9MMIsE&b=179146. 35 �� F. Drake and D. Sobel, Is There Anyone Out There? (New York, Delacorte Press, 1992) 174–80, 180–5; C. Sagan, L.S. Sagan and F. Drake, A Message from Earth’ (1972) Science 175, 881–4; ‘The Arecibo Message of November, 1974’. (1975) 26 Icarus, 462– 466. According to a SETI Institute FAQ, the message was ‘a simple picture describing our solar system, the compounds important for life, the structure of the DNA molecule, and the form of a human being. The message was transmitted in the direction of the globular star cluster M13, about 25,000 light years away.’ 36 �� On 5 February 2008 the Beatles’ song ‘Across the Universe’ was transmitted by the NASA Deep Space Network towards Polaris (the ‘North Star’), some 431 light years away: http://www.nasa.gov/topics/universe/features/across_universe.html; http:// www.newscientist.com/article/dn13273. Z. Merali, ‘Stepping up the Search for ET’, 2642 New Scientist, 9 February 2008: http://www.newscientist.com/article/mg19726424.300stepping-up-the-search-for-et.html. Not all were happy about this. Should a Polaris ET reply immediately we hope there will be someone around to receive its message and that the Earth residents of 2870 will have no problems in identifying the referent. 37 �� See R.D. Ekers et al., SETI 2020: A Roadmap for the Search for Extraterrestrial Intelligence (Mountain View, CA: SETI Press, 2002). Cf. down to its date see its Archive of SETI Searches, Apps. L to R, 381–425. Cf. also C. Sagan, ed., Communication with Extraterrestrial Intelligence (CETI) (Cambridge, MA: MIT Press, 1973). 38 �� R.N. Schwartz and C.H. Townes, ‘Interstellar and Interplanetary Communications by Optical Masers’ (1961) 190 Nature 205–8; G.V. Leopold ‘Cosmic Surveillance by Spaceflight Momentum’ (1960) 6 Wayne L Rev. 311–39 at 312 n. 3 prints data on early investigation of lasers, and refers to I.E. Sänger, ‘The Future of Spaceflight’, in The Next Ten Years in Space, 1959–1969, Staff Report, House Select Committee on Astronautics and Space Exploration, H. Doc. 115, 86th Cong. 1st Sess. (USGPO, 1959) 158–72, who wrote of ‘the development of stationary ultra-violet searchlights, exerting a radiation pressure

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funded by the (US) Planetary Society, began to examine the light from stars in the hope that ETI would use laser signals to signal presence if not actually to communicate.39 Other optical observatories are similarly engaged.40 However, the basic premise of most SETI programmes is that electromagnetic radiation in the form of radio waves can be detected across interstellar distances. The artificial generation of radio waves and the modulation of frequency or amplitude is a major telecommunications medium on Earth. An ET society on a planet round another star may use similar modalities and the artificiality of such signals would allow their detection as non-natural occurrences. Radio has been in use on Earth for a century. The earliest signals generated by Marconi and his competitors may therefore be detectable now by Beings on a planet about onehundred light years away. If they recognise the artificiality of the signals that have escaped from Earth and respond immediately, a reply could arrive a hundred years from now, assuming that we recognise there has been a reply: as to which, see below. Of course interstellar conversations are unlikely if it takes a century to receive a reply. However, in the correlative belief that the inadvertent signals of a society elsewhere may be detectable, various programmes have ‘listened to the stars’ to identify such artificial radio emissions. Radio astronomy, a discipline accidental in its birth, is the basis of the radio SETI effort. Radio astronomy began with Karl G. Jansky, who, working for Bell Telephone Laboratories in 1931, tried to establish the source of various high frequency interferences with radio signals. Lightning storms was an adequate explanation of much of the interference, but, using a steerable antenna, he detected a constant source at 20,000 k/cs that appeared to rotate with the Earth. Over time he established that the origin lay in the direction of the constellation Sagittarius, and probably in the centre of our galaxy. Others took matters further and particularly after the Second World War using the more sophisticated equipment made possible by war-time invention developed radio astronomy as a science. In the late 1950s Giuseppe Cocconi and Philip Morrison of Cornell University realised that, given the sensitivity of the then available equipment, natural radiation was not the only signal that could be intercepted from the stars. Artificial radiation might also be present. Our nearest star (other than the Sun) is Alpha Centauri, two light years away and some one hundred stars similar to our own Sun lie within fifteen light years’ distance. They therefore suggested a search programme

of many tons’ at 164. See also the note by S.A. Kingsley of the Columbus Optical SETI Observatory, www.coseti.org/introcoseti.htm. 39 �� The Allen telescope is sited at Harvard University’s Oak Ridge Observatory outside Boston. This is not the same as the Allen Telescope Array, infra n. 45. 40 �� Columbus, Ohio http://www.coseti.org/; Bournemouth, UK: http://www.coseti. org/www.boseti.org/; Berkeley, California: http://seti.ssl.berkeley.edu/opticalseti/ Harvard: http://seti.harvard.edu/oseti/.

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should be begun to ‘listen’ for artificial signals from certain of these stars, and at a frequency of 1420 m/cs (21 cm).41 Even as Cocconi and Morrison were formulating their suggestion, Project Ozma, the first SETI project, was being set up.42 Project Ozma, established and masterminded by Frank D. Drake, the later progenitor of the Drake Equation, used the 85-foot radio-telescope dish at Green Bank Observatory, West Virginia. For some two hundred hours during April through July 1960, Tau Ceti and Epsilon Eridani were targeted. At first a positive result was obtained, but further analysis established that the cause was terrestrial, being caused by military aviation radar experiments. Thereafter many attempts have been made to ‘hear’ ETI transmissions, whether deliberate broadcasting to space or the leakage of a world’s communications and broadcasting traffic. Some projects have been official and government financed, and others established by universities and similar establishments. Until 1997 Ohio State University ran the ‘Big Ear’ radio telescope (http://www.bigear.org/) which ‘heard’ the unrepeated ‘Wow’ signal referred to in most journalistic writing on SETI.43 Project Serendib is run by the University of California, Berkeley (http:// seti.ssl.berkeley.edu/serendip/serendip.html).44 Southern Serendib and SETI Australia are run by the University of Western Sydney (http://seti.uws.edu.au/). SETI Italia is the major European centre (http://www.seti-italia.cnr.it/). Project Bambi is an amateur effort (http://www.bambi.net/). A major participant in the Search is the SETI Institute, a non-profit California corporation founded in 1984 (http://www.seti.org). The SETI Institute was partially financed by US Government grants down to 1994. Since then its income has been entirely derived from private donations and grants from philanthropic foundations. Apart from the Search itself the Institute designs hardware and invents algorithms for the analysis of signals. A major SETI effort was the NASA High Resolution Microwave Project (the NASA SETI Program), which began in October 1992. Using the massive radio-telescope at Arecibo in Puerto Rica, and the Goldstone radio-telescope in the Mojave Desert in California, the program was scheduled to run for ten years 41 �� G. Cocconi and P. Morrison, ‘Searching for Interstellar Communications’, Nature, 19 September 1959. As to the development of radio astronomy and the Cocconi–Morrison material see Sullivan (n. 20) 196–217. Twenty-one centimetres is the radio emission frequency of hydrogen, a frequency to which our atmosphere is transparent and, of course, hydrogen is a constituent of water (H2O), on which our own life forms depend. See also Drake and Sobel (n. 5) 31–43 and index sv. ‘hydrogen line’. 42 �� Drake (n. 5) 21–43; and ‘Project Ozma’, Sullivan (n. 20) ch. 14, 218–28, and index. 43 �� The ‘Wow signal’ was received on 15 August 1977. It was a strong narrowband signal lasting some 77 seconds. J.R. Ehman, who noticed the signal record, circled the record and wrote ‘wow’ beside it. 44 �� Berkeley also runs the SETI@Home project which utilises unused processing capacity of personal computers to analyse signals acquired by Project Serendib and refers unusual signals for further processing: http://setiathome.ssl.berkeley.edu/.

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at a cost of some US$100 million. The first stage was targeted at around one thousand stars within one hundred light years of our Sun, and which are known to be similar in both age and size to it since the Drake Equation indicates that a similarity of star would probably result in similar development of planets, life and intelligence. However, government funding was withdrawn in 1994. Thereafter until March 2004 the SETI Institute continued this search under the name ‘Project Phoenix’ using telescopes in New South Wales, Australia (Parkes), West Virginia, US (Green Bank), Georgia, US (Woodbury), England (Jodrell Bank) and Puerto Rico (Arecibo). Some eight hundred stars out to two-hundred and forty light years were observed, but no artificial signals were detected. In 2001 in collaboration with the University of California (Berkeley) development began of an array of radio telescopes to serve both radio astronomy and SETI. Originally called the One Hectare Telescope, it was renamed the Allen Telescope Array in recognition of the major contribution made by the Paul Allen Foundation to its costs.45 In addition once the NASA space telescope ‘Kepler’ (to be launched in 2009) is fully functional potential life-bearing Earth-sized planets in the ‘habitable zone’ round other suns may be identified and SETI Institute technology will scan for signals or other evidence of ETI.46 The ‘Search’ continues. Radio SETI operates in the microwave spectrum bands. In particular the microwave window between 1000 and 10,000 MHz suffers least from terrestrial atmospheric and galactic background noise. The broadcast signals of a highly technological civilisation in the far distance may thus be there more easily detected. It even might be that a rational ETI astronomer has established a ‘lighthouse’ somewhere in these high spectrum bands.47 One waveband of interest is that around 1420 MHz, which is the ‘hydrogen line’ in the electromagnetic spectrum and is also known as the ‘waterhole’. Hydrogen is, of course, a component of water, essential for life on Earth and is prevalent in the Universe.48 Beings similar to us might see the connection and therefore transmit on or near that frequency in order to show their presence, just as animals come to a waterhole in desert areas.

45 �� The Allen Telescope Array is sited at the Hat Creek Radio Observatory some 300 miles north east of San Francisco. When finished it will consist of three-hundred and fifty 6 m antennae. The first forty-two antennae were activated on 11 October 2007. See D. Overbye, ‘Stretching the Search for Signs of Life’, NY Times, 11 October 2007. 46 �� As we write Gliese 581c (alt. Wolf 562c or HIP 74995c) and Gliese 581d (alt. Wolf 562d and HIP 74995d) may qualify. 47 �� Cf. the Arecibo message of 1974, supra n. 35. Of course the ‘lighthouse’ might be using optical frequencies, as to the search for which see supra at n. 38. 48 �� In 2007 water was detected in the atmosphere of a planet orbiting HD209458b, some one-hundred and fifty light years away from Earth.

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SETI and the Law ‘SETI and the Law’ has both national and international aspects. Under the general concept of state sovereignty it is for a state to determine the lawfulness of SETI activity within its jurisdiction, and to regulate what is done should it so wish.49 The simple reception and analysis of signals whether they be radio or optical lies wholly within the jurisdiction of a state. Optical SETI may be assisted by the implementation of appropriate controls on nearby land development and utilisation including street and other lighting.50 International rules impose relevant duties on a state particularly as to radio. Thus questions of the protection of ‘water-hole’ and other appropriate radio frequencies are matters to be tackled domestically in implementation of international rules as to the use of radio spectrum.51 As far as international law is concerned, SETI is a lawful activity. What is not prohibited is permitted.52 As Art. I of the Outer Space Treaty 1967 states, the exploration and use of outer space are free for all and there is freedom of scientific investigation. Article I also states the duty to carry out space exploration in the general benefit and interest of all countries, and the importance of co-operation. 49 �� M.A. Stull and G. Alexander, ‘Passive Use of the Radio Spectrum for Scientific Purposes and the Frequency Allocation Process’ (1977) 43 J. Air L. and Comm. 459–534. 50 �� See www.dark-sky.org/. Cf. Sec. 102 of the (UK) Clean Neighbourhoods and Environment Act 2005. M.M. Taylor and D. Hughes, ‘Exterior Lighting as a Statutory Nuisance’ (UK) 2005 J. Planning L. 1131–43. R. Mizon, Light Pollution: Responses and Remedies (London: Springer, 2002). 51 �� For US protection of SETI and radio astronomy sites see Stull (supra n. 49): cf. (1) In the Matter of the 4.9 GHz Band Transferred from Federal Government Use; WT Docket no. 00-32; 2002 17 FCC Rcd 3955; 2002 FCC LEXIS 1007; 26 Comm. Reg. (P & F) 50, 27 February 2002 released; adopted 14 February 2002 (various sites inc. Goldstone and the new Allen Telescope Array). This proceeding resulted in In the Matter of The 4.9 GHz Band Transferred from Federal Government Use, WT Docket no. 00-32, 2003 18 FCC Rcd 9152; 2003 FCC LEXIS 2492, released 2 May 2003, adopted 23 April 2003. (2) In the Matter of Amendment of the Commission’s Rules to Establish a Radio Astronomy Coordination Zone in Puerto Rico; ET Docket no. 96-2; RM-816511 FCC Rcd 1716; 1996 FCC LEXIS 629; Rel. no. FCC 96-12, 8 February 1996 released; adopted 18 January 1996 (Arecibo). (3). In the Matter of Amendment of the General Mobile Radio Service (Part 95) and Amateur Radio Service (Part 97) Rules to Establish Procedures to Minimize Potential Interference to Radio Astronomy Operations. 1981 85 FCC 2d 738. In the UK the five radio telescopes are each surrounded by an exclusion zone within which radio usage is forbidden: cf. UK Ofcom ‘Decision to make the Wireless Telegraphy (Automotive Short Range Radar) (Exemption) (no. 2) (Amendment) Regulations 2008’ (particularly Annex 2), 11 February 2008 (see now 2008 SI 237): http://www.ofcom.org.uk/consult/condocs/srr/statement. 52 The SS Lotus (France v Turkey) 1927 PCIJ 3, Ser. A, no. 10; (1935) 2 Hudson World Court Reports 20. Doubt has been cast on such a simple formulation in the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ 226; (1996) 35 ILM 809-938, with Declarations and further Separate Opinions.

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Duties of co-operation, mutual assistance and regard for the interests of others are contained also in OST Art. IX, and by Art. XI the states agree to inform the public, the scientific community and the UN Secretary General of activities and any results, albeit only ‘to the greatest extent feasible and practicable’.53 However, ETI could change things, presenting potential danger. We will come to such matters later.54 The major body of international law relevant to most SETI inquiry is the allocation and use of the radio spectrum secured through the mechanisms of the International Telecommunication Union (the ITU). To summarise what is more fully covered in Chapter 8, the Radio Regulations (RR) form part of the ITU basic agreements and have the status of an international treaty.55 The Table of Frequency Allocations contained in RR Art. 5 allocates particular frequency bands to particular named services on a worldwide or regional basis. These allocations may be primary, primary but shared with another service, or secondary, in descending order of protection. In addition a footnote may provide for particular use other than the normal by a state, or limit a freedom to allocate. The assignment of a frequency is a matter for the state having jurisdiction over a transmitting station. An (or sometimes a proposed) assignment is notified to the ITU Radiocommunication Bureau, which circulates the notification to other states and itself checks that the assignment is (a) in conformity with the RR allocations and (b) does not conflict or cause interference to another assignment already notified. Subject to these conditions lawful assignments are entered in the Master International Frequency Register. Where interference to an existing lawful assignment is possible steps are taken to settle the matter by agreement. In many bands assignments are first to be co-ordinated with other states whose stations might be interfered with. Technically, priority of notification will normally secure protection from interference by a later notified assignment, although in the last analysis a state may persist with an irregular assignment. Apart from such procedural safeguards, the ITU documents also contain duties to use minimum necessary output in transmissions, to fine-tune equipment and to make speedy use of the latest technical advances.56 Such rules operate to the benefit of SETI by reducing interference.57 53 �� As noted infra, the requirement to notify the UN Secretary General of ‘results’ is incorporated into para. 3 of the ‘Declaration of Principles Concerning Activities Following the Detection of Extraterrestrial Intelligence’. 54 �� See text following n. 76. 55 �� T.A.Th. Spoelstra, ‘Radio Astronomy in Telecommunication Land: The ITU and Radio Astronomy’ (1997) 22 Air and Sp. Law 326–333. Cf. Stull, supra n. 49, at 491–501, on the 1977 situation. 56 �� Article 5 and related Annexes and Appendices of the Radio Regulations deal with technical characteristics. In the ITU Constitution CS Arts 6.1 (37) and 2 (38) impose duties on member states themselves to abide by the rules as to inference, and to see that operating agencies they authorise do so also. Military radio installations are exempt except insofar as they operate services for public correspondence or similar (CS Art. 48 (202–4)). 57 �� Article 4 of the Radio Regulations contains ‘General Rules for the Assignment and Use of Frequencies’. The ITU Constitution and Convention contain specific provision

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That said, SETI is not well-protected by the Radio Regulations. SETI does not transmit, and hence, like Radio Astronomy, its protection depends on others complying with the Table of Allocations. SETI and radio astronomy receivers do not (usually) transmit and hence may be invisible to the Master International Frequency Register. Although the RR makes some special provision, the radio astronomy service is not absolutely protected. It is sheltered rather, mostly by recommendation and suggestion to Administrations. By RR 11.12 it is competent for an administration to notify a frequency or frequencies that are to be used by a particular radio astronomy station, and this information will be included in the Master International Frequency Register, presumably with the hope that another administration will take this into account in making its own frequency assignments. In addition Footnote RR 5.149 lists frequencies which Administrations are urged to take ‘all practicable steps’ to protect for radio astronomy purposes.58 By Footnote RR 5.556, radio astronomy observations in the bands 51.4–54.25, 58.2– 59, 64–65, 72.77–72.91 and 93.07–93.27 GHz may be carried out under national arrangements, but this affords no protection at the level of international law. While radio astronomy therefore does receive some limited degree of consideration it also appears that the frequencies protected are not always those most appropriate for the science. Given that radio astronomy is not well protected it is not surprising that SETI is barely mentioned and gets no particular protection in the ITU Radio Regulations.59 RR 5 Footnote 5.341 does state: ‘In the bands 1400–1727 MHz, 101–120 GHz and 197–220 GHz, passive research is being conducted by some countries in a programme for the search for intentional emissions of extra-terrestrial origin’.60 However, in actual fact RR 5 sets aside the bands 1400–1427 and 2690–2700 MHz for passive activity in Earth Exploration-Satellite, Radio Astronomy and Space Research. SETI is therefore sharing wave bands and is given only a limited and not an express protection. Footnote RR 5 340 prohibits all emissions in a variety of bands including these, but again with limited exception.61 Other bands noted in Footnote RRS5.341 as being of interest to SETI are also allocated to fixed and mobile services, to space operations, maritime and aeronautical mobile satellite, meteorological satellite, and to radiolocation services. By RR Footnote 5.340.1 imposing duties to implement the ITU arrangements (CS Art. 6.2 (38)), and see immediately previous note. See generally Chapter 8. 58 �� ‘Practicable’ is not an absolute term. 59 �� H.C. Kahlmann, ‘SETI and the Radio Spectrum’ (IAA‑90‑579) (1992) 26 Acta Astronautica 213–7 refers to the equivalent provision in previous versions of the Radio Regulations. 60 �� V. Kopal, ‘International Law Implications of the Detection of Extraterrestrial Intelligent Signals,’ (1990) 21 Acta Astronautica 123–6 at 124 quotes the equivalent provision in the previous Radio Regulations. Cf. para. 170 of the FCC inquiry Preparation for the 1979 ITU World Administrative Radio Conference (1978) 70 FCC 2d 1193. 61 �� The ‘hydrogen line’ is 1.420 MHz.

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‘[T]he allocation to the earth exploration-satellite service (passive) and the space research service (passive) in the band 50.2–50.4 GHz should not impose undue constraints on the use of the adjacent bands by the primary allocated services in those bands’. Other portions of Art. 5 protect passive services. Bands 1 660.5– 1668.4 MHz are allocated to Radio Astronomy, passive Space Research and on a secondary basis to mobile services, excepting aeronautical mobile. Secondary allocations are also given for Radio Astronomy and passive Space Research in bands 2.6550–2.670 and 2.670–2.690 MHz and for passive Space Research in bands 4990–5000 MHz. In the higher frequencies the bands 4990–5000 GHz are allocated inter alia to Radio Astronomy and to passive Space Research on a primary basis, but these bands are also shared with Earth Exploration-Satellite (passive) Fixed and Mobile Services except aeronautical mobile together with radiolocation on a secondary basis. Bands 10.68–10.7 and 15.35–15.4 GHz and 23.6–24, 31.3–31.5, 36–37 GHz are allocated similarly though without the Fixed and Mobile Services allocations. In the 18.6–22.21 and 31.5–31.8 GHz bands different provision is made for these services in ITU Regions 1–3, while 22.21– 22.5 GHz allocates for Radio Astronomy and passive Space Research on a primary basis, but these bands are also shared with Earth Exploration-Satellite (passive) Fixed and Mobile Services. Bands 50.2–50.4 and 52.6–54.25 GHz are allocated on a primary basis to Earth Exploration (passive) and Space Research (passive), with bands 54.25–55.78 GHz including these as well as Inter-Satellite Services. Further similar provision for exploration and research is made in the allocations for the 55.78–66, 86–119.98, 119.98–158, 158–202, 02–400 GHz wave-bands. Apart from these, by Footnote RR 5.565 as amended by the WRC-2000, the ‘frequency band 275–1000 GHz may be used by administrations for experimentation with, and development of, various active and passive services. In this band a need has been identified for the following spectral line measurements for passive services: radio astronomy service, 275–323, 327–371, 388–424, 426–442, 453–510, 623– 711, 795–909 and 926–945 GHz; and Earth exploration-satellite service (passive) and space research service (passive): 275–277, 294–306, 316–334, 342–349, 363–365, 371–389, 416–434, 442–444, 496–506, 546–568, 624–629, 634–654, 659–661, 684–692, 730–732, 851–853 and 951–956 GHz. Footnote RR 5.565 as amended continues: ‘Future research in this largely unexplored spectral region may yield additional spectral lines and continuum bands of interest to the passive services. Administrations are urged to take all practicable steps to protect these passive services from harmful interference until the date when the allocation Table is established in the abovementioned frequency band’. Although such provisions may help radio SETI by giving some protection to frequencies intended for radio astronomy, the position of SETI remains weak. Various papers and comments draw attention to problems of interference with SETI observations. Thus the Quarterly Update to June 1993 on the NASA High Resolution Microwave Survey which was then in progress reported a number of interference problems, and that all fifteen signals that satisfied the basic selection

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criteria for further investigation proved to be intermittent terrestrial interference.62 Other reports of similar problems have been published.63 The Radio Regulations remain the source of protection for SETI and for Radio Astronomy at an international level. More could be done by national administrations to comply with their duties to secure that interference to such passive use of the spectrum is minimal. There is a community of interests between the radio astronomers and the SETI specialists. They should tackle such matters jointly, both through lobbying national administrations, and through the appropriate mechanisms of the ITU, including the working groups of the Radiocommunication Sector. Perhaps it is unrealistic to expect further radio channels to be freed from other use, but that is an option which should be preserved. Finally as to the protection of SETI activities, as part of the projected return to the Moon, NASA has started to discuss the construction of a radio telescope facility in a lunar far-side crater.64 The idea, which is not new,65 is a potential use of the 62 �� The Quarterly Reports were available electronically on NASA Space link. Similar data is now to be found on the NASA website, using a search for ‘radio frequency interference’ or ‘extraterrestrial radio waves’. 63 �� M.K. Klein and others, ‘An Assessment of the Impact of Radiofrequency Interference on Microwave SETI Searches’ (IAA‑87‑593) (1992) 26 Acta Astronautica 227–32; J. Tarter, ‘Summary of Interference Measurements at Selected Radio Observatories’ (IAA‑90‑580) (1992) 26 Acta Astronautica 233–8; J. Tarter, ‘Radio Frequency Interference at Jodrell Bank Observatory within the Protected 21cm Band’ (IAA‑86‑425) (1989) 19 Acta Astronautica 907–12; W.J. Welch, ‘A Strategy for SETI Observations at Arecibo Observatory’ (IAA‑88‑540) (1992) 26 Acta Astronautica 219–21 at 220; G.K. Hovde, ‘Frequency Management and SETI: Threats to SETI Observations in the 1–3 GHZ Band’ (2000) 46 Acta Astronautica 677–82; J. Tarter et al., ‘Studies of Radio Frequency Interference at Parkes Observatory’ (2000) 46 Acta Astronautica 683–91. 64 �� The UK may participate in such an endeavour: The Times, London, 1 December 2006. This project is additional to the possible establishment of a Moon base at one or other of the lunar poles. 65 �� J. Heidmann, (1) ‘Saha Crater: A Candidate for a SETI Lunar Base’ (1994) 32 Acta Astronautica 471–2; (2) ‘What Legal Questions are Raised by the Establishment of a Dedicated Lunar Farside Specific Crater for High Sensitivity Radioastronomy?’ (1994) 37 Proc. IISL 255; (3) ‘Recent Progress in the Lunar Farside Crater SAHA Proposal’, 1997 IAA-97-IAA.9.1.05; A.A. Cocca, ‘Reservation of a Lunar Zone for SETI Purposes’ (1995) 38 Proc. IISL 270-3; F.G. von der Dunk, ‘Space for Celestial Symphonies: towards the establishment of radio quiet zones’ (2001) 17 Space Policy 265–74; F. Lyall, ‘On the Moon’ (1998) 28 J. Space Law 129–38. It was subsequently determined that the crater Daedelus was more suitable for the purpose, and it has replaced Saha in the discussions: cf. ‘Lunar Farside Radio Lab: A Study by IAA’. C. Maccone, co-ordinator, www.setileague. org/iaaseti/lunar02.pdf, and C. Maccone, (1) ‘Planetary Defense from the Nearest 4 LaGrange Points plus RFI-free Radioastronomy from the Farside of the Moon: A Unified Vision’ (2002) 50 Acta Astronautica 185–99; (2) ‘The Quiet Cone above the Farside of the Moon’ (2003) 53 Acta Astronautica 65–70; (3) ‘Lunar Farside Radio Lab’ (2005) 56 Acta Astronautica 629–39.

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Moon contemplated under Art. 7.3 of the Moon Agreement, which foreshadows the setting aside of lunar areas that are of special scientific interest. Should it be proceeded with, SETI observations from a radio telescope on the lunar far-side would be protected by the mass of the Moon itself from man-made interference as well as naturally occurring terrestrial phenomena such as lightning. In that regard Sec. V of Art. 22 of the ITU Radio Regulations (RR 22.22-25) prohibits radio emissions causing harmful interference in the ‘shielded zone’ of the Moon, the zone being defined as the area of the Moon and adjacent space shielded from emissions originating within 100,000 km from the surface of the Earth.66 First Evidence: First Contact67 The social implications of the detection of ETI would be considerable.68 The excitement that accompanied the 1996 announcement that a meteorite from Mars (ALH 84001) might contain evidence of fossilised primitive extraterrestrial life was considerable.69 How much more so were intelligence to be detected. How should such a development be coped with? The SETI Institute produced a report connected with the 1992 High Resolution Microwave Survey suggesting various methods by which information as to SETI could be disseminated through the media, which to some extent might help prepare society for any development.70 66 �� For the ITU Radio Regulations see supra Chapter 8. 67 �� Cf. J Billingham, ed., Social Implications of the Detection of an Extraterrestrial Civilization (Mountain View, CA: SETI Press, 1999); A.A, Harrison, After Contact: The Human Response to Extraterrestrial Life (New York: Plenum, 1997); M. Michaud, Contact with Alien Civilizations: Our Hopes and Fears About Encountering Extraterrestrials (New York: Springer, 2006). Cf. Workshop on the Societal Implications of Astrobiology, Final Report, Ames Research Center, 1999, NASA, 2000: http://astrobiology.arc.nasa.gov/ workshops/societal/societal_report.pdf; B. Finney, ‘The Impact of Contact’ (1990) 21 Acta Astronautica 118–22. For fictional treatment see inter alia: I. Asimov, M.H. Greenberg and C. Waugh, Encounters (London: Headline Books, 1988): C. Sagan, Contact (New York: Simon and Schuster, 1985; London: Century, 1986); various entries (including Communications) in J. Clute and P. Nicholls, eds, The Encyclopaedia of Science Fiction (London: Orbit; New York: Little, Brown, 1993) (with updates to 2002: www.dcs.gla.ac.uk/SF-Archives/Misc/ sfec.html). 68 �� NASA Technical Memorandum, Workshop on the Societal Implications of Astrobiology: Final Report. 1999, http://astrobiology.arc.nasa.gov/workshops/societal/ societal_report.pdf. NASA runs an Astrobiology Institute, a ‘virtual organisation’ bringing together scientists and others interested in multidisciplinary astrobiology research: see http://nai.arc.nasa.gov/about/about_nai.cfm#astrobiology. 69 �� ‘On the Question of the Mars Meteorite’: http://www.lpi.usra.edu/lpi/meteorites/ mars_meteorite.html and http://www.lpi.usra.edu/lpi/meteorites/The_Meteorite.html. 70 �� ‘Cultural Aspects of SETI’: www.seti.org/site/pp.asp?c=ktJ2J9MMIsE&b=179289.

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The interaction of humanity with newly discovered ETI is a staple of science fiction. Broadly the tales exhibit two opposite reactions. Sometimes the knowledge that there is intelligent alien life is simply absorbed and makes little impact on life in general. Other works acknowledge that proof of ETI could have a significant effect. One area would be in religion. Thus in both Childhood’s End (1953) and in The Fountains of Paradise (1979) Arthur C. Clarke suggests that only a mutant Buddhism would survive the knowledge of ETI, the more structured religions such as Christianity, Judaism and Islam being unable to adapt to the new information and therefore dying out. However, others have taken a different view and there have been fascinating stories exploring religion.71 In SETI-related discussion of such matters opinions have varied. R.R. Malina has indicated that ecclesiastical opposition was one reason why the NASA terminated funding for its SETI projects.72 In 1992 M. Ashkenazi was of the view that both Judaism and Islam would have no fundamental problem with ETI since neither clearly holds to a uniqueness of Man, and both lay stress on the power of God to do as He will. However in his view Christianity, and particularly orthodox (small ‘o’) Protestant Christianity, would encounter more problems with any proven ETI because of its stress on the human form as created in the image of God, and through the questions that ETI might pose as to the uniqueness of redemption through the Crucifixion.73 Nonetheless, on the basis of unselective interviews with theologians, Ashkenazi’s general view was that ETI would not profoundly affect religion, even were a non-religious ETI to be encountered. P. Musso’s paper of 2004 points out that the Roman Catholic Church has not committed itself on the matter, and that the few theologians that have published on the topic tend to adopt a ‘wait and see’ attitude.74 Some have not.75 71 �� Many science fiction stories explore religious questions. Cf. the collection, P. Warrick and M.H. Greenberg, eds, The New Awareness: Religion through Science Fiction (New York: Delacorte Press, 1975); and notably J. Blish, A Case of Conscience (1958). 72 �� R. Malina, ‘Search Strategies: SETI Activity and Society’ (1998) 41 Proc. IISL 304–8 at 306 and response to a question by S.E. Doyle during the discussion session (ibid. at 345). 73 �� M. Ashkenazi, ‘Not the Sons of Adam: Religious Responses to ETI’ (1992) 8 Space Policy 341–9. 74 �� P. Musso, ‘Philosophical and Religious Implications of Extraterrestrial Intelligent Life’ 2004 IAC.04.1.1.2.11. 75 �� See ‘Discourse V’ of Chalmers, supra n. 4; J. Baillie, The Place of Christ in Modern Christianity (Edinburgh: T&T Clark, 1929) 202–12; M. Thomson, ‘Extraterrestrial Life and the Cosmic Christ as Prototype’ (2000) 18 Scot. Bull. Ev. Theol. 160–78; J.J. Davis,’ Search for Extraterrestrial Intelligence and the Christian Doctrine of Redemption’ (1997) 9 Science and Christian Belief, 21–34; G. McColley supra n. 4. Cf. C.L. Fisher and D. Fergusson, ‘Karl Rahner and the Extra-Terrestrial Intelligence Question’ (2006) 47 Heythrop J. 275–90; D. Vakoch, ‘Roman Catholic Views of Extraterrestrial Intelligence: Anticipating the Future by Examining the Past’, in A. Tough, ed., When SETI Succeeds: The Impact of High-Information Contact (Foundation for the Future, 2004) 165–74; M.A.G.

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There is little law on such matters. As already noted, SETI activities are lawful under international law,76 and appear to be so under national legal systems. To repeat ourselves, they may be subject to the requirement of Art. XI of the OST as to a state’s duty to inform the public, the scientific community and the Secretary General of the United Nations of activities and any results, albeit only ‘to the greatest extent feasible and practicable’.77 Yet what about the matter of potential danger? There are the indications of action to be taken to report and avoid a variety of dangers in Arts V and IX of the OST, and MA Art. 5.3.78 The obvious meaning of these provisions relates to physical phenomena: OST Art. V is concerned with dangers to astronauts and Art. IX deals with contamination of the Earth or of celestial bodies. The fact is that ETI was not in the minds of those drafting, signing or ratifying these agreements. The only clear reference to life in outer space is in MA Art. 5.3, and that is to organic life – a far remove from Extraterrestrial Intelligence. However, detection of or contact with ETI could be covered under a broader interpretation of ‘dangerous phenomena’, ‘dangerous’ at least in potentia. It is therefore useful that some have been thinking of such matters.79 The SETI Protocols Given the potential impact of the proven detection of ETI it is good that steps have been taken to organise procedures through which such a detection might be announced and, in an appropriate case, a signal responded to.80 Of course it might be that the detector of a signal might remain quiet, or might be ignorant of the SETI Protocols to which we are coming, but we can not here take account of these possibilities.81 Michaud, Contact (supra n. 5) 202–6. See also data in Dick and Crowe (both supra n. 4) as to theological discussions in the periods they cover. 76 �� See text supra following n. 52. 77 �� As noted infra following n. 87, the requirement to notify the UN Secretary General of ‘results’ is incorporated into Pr. 3 of the ‘Declaration of Principles Concerning Activities Following the Detection of Extraterrestrial Intelligence’. 78 �� As noted elsewhere the Moon Agreement has not been widely accepted. Some would argue that reliance on its terms as law is not justified except as among its members. However in this instance it may be useful as spelling out in more detail the content of duties as to dangers in space law. 79 �� See following text, and G.H. Reynolds, ‘International Space Law: Into the TwentyFirst Century’ (1992) 25 Vand. J. Transnat. L. 225–55 at 246–55. 80 �� Cf. J. Billingham, ‘Pesek Lecture: SETI and Society – Decision Trees’ (2002) 51 Acta Astronautica 667–72. See also G.H. Reynolds, ‘International Space Law: Into the Twenty-First Century’ (1992) 24 Vand. J. Transnat. L. 225–55 at 246–55; B. Cummings, ‘On Behalf of Earth’, an unpublished paper of 2006 prepared for Prof. Larsen’s Space Law course at Georgetown Law Center. 81 �� A. Tough, ‘A Critical Examination of Factors that Might Encourage Secrecy’ (1990) 21 Acta Astronautica 99–104.

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The Post-detection Protocol82 The ‘Declaration of Principles Concerning Activities Following the Detection of Extraterrestrial Intelligence’ (the Post-detection Protocol) outlines a set of principles which, it is suggested, should be followed following the detection of extraterrestrial intelligence. The Post-detection Protocol was approved in 1989 by the Board of Trustees of the International Academy of Astronautics and the Board of Directors of the International Institute of Space Law and has been endorsed by the Committee on Space Research (COSPAR), by Commission 51 of the International Astronomical Union, by Commission J of the Union Radio Scientifique Internationale (URSI), by the International Astronautical Federation83 and by various individuals. Under the Post-detection Protocol no public announcement of the detection of ETI should be made until the credibility of the detection has been thoroughly tested and evaluated. This reflects an awareness of the potential impact of such an announcement.84 To ensure any announcement is well-grounded a consecutive set of steps is indicated. A signal or other evidence should be verified by its detector as being most plausibly from an ET source. Of course here the meaning of ‘plausibility’ is fundamental. To help its definition in a paper presented to the 2001 Rio Meeting of the IAF I. Almar and J. Tarter suggested what is now known as the ‘Rio Scale’ as a suitable tool for assessing plausibility.85 Amended the following year, this scale now appears to have been accepted as normative.86 There is also the possibility of hoax to be guarded against, and there have been

82 �� The ‘Declaration of Principles Concerning Activities Following the Detection of Extraterrestrial Intelligence’ (1990) 21 Acta Astronautica 153–4; http://www.seti-inst. edu/science/principles.html; http://www.seti.org/site/pp.asp?c=ktJ2J9MMIsE&b=179287; http://iaaseti.org/; Appendix 1 to M. Michaud, ‘An International Agreement Concerning the Detection of Extraterrestrial Intelligence’ (IAA‑88‑530) (1992) 26 Acta Astronautica 291–4 at 293, and his ‘A Unique Moment in Human History’, in B. Bova and B. Preiss, eds. First Contact (London: Headline, 1990), 325–8. See also M.A.G. Michaud, Contact (supra n. 5) 358–75. 83 �� IAA Position Paper, ‘A Decision Process for Examining the Possibility of Sending Communications to Extraterrestrial Civilizations: A Proposal’: http://iaaweb.org/iaa/ Studies/seti.pdf. 84 �� Again cf. the announcement regarding the Mars meteorite of 1996, supra n. 69. 85 �� I. Almar and J. Tarter, J., ‘The Discovery of ETI as a High-Consequence, LowProbability Event,’ IAA-00-IAA.9.2.01. 86 �� I. Almar ‘How the Rio Scale Should be Improved’, IAA-01-IAA.9.2.03. The Scale is applied to certain fictional accounts of ETI Detection in S. Shostak and I. Almar, ‘The Rio Scale Applied to Fictional SETI Detections’, IAA-02-IAA.9.1.06. It was approved by the IAA SETI Permanent Study Group in 2002 though revision will continue: see http:// iaaseti.org/.

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examples of such.87 Under the Protocol if a detection cannot plausibly be verified as a true detection of ETI it should be reported as an unknown phenomenon (Pr. 1). Before any public announcement of the detection of ETI other signatories to the Declaration should be notified so that they can run their own checks and the relevant national authorities should be informed (Pr. 2). Then the rest of the astronomical scientific community, the ITU and, in compliance with OST Art. XI, the UN Secretary General should be informed, those with expertise being given ‘all pertinent data and recorded information’ (Pr. 3). Information as to a confirmed detection should be disseminated promptly, openly and widely – the discoverer having the privilege of the first public announcement (Pr. 4). All relevant data should be made widely available (Pr. 5). The discovery should be properly recorded and monitored (Pr. 6). Should the detection rely on electromagnetic signals, their frequencies should be protected through the mechanisms of the ITU (Pr. 7). Importantly, no response should be made or sent until the matter has been the subject of international consultations (Pr. 8). Finally the Protocol indicates that there should be a continuing review of procedures for the detection of ETI and the handling of data. For this purpose an international committee has been established representing relevant major organisations as well as informed individuals.88 The Reply-communication Protocol89 There has been considerable discussion of the mechanisms through which a reply on behalf of the Earth to a detected ETI signal might be formulated.90 In 1997 an organisation called the SETI League Inc. endorsed and commended to its members 87 �� H.P. Shuch, ‘SETI Sneak Attack: Lessons Learned from the Pearl Harbor Hoax’, IAF Bremen, 2003, IAC-03-IAA.9.2.03; http://www.setileague.org/articles/iaa2003.htm; H.P. Shuch, ‘Anatomy of a SETI Hoax’ (1999) http://www.setileague.org/articles/setihoax. htm. 88 �� IAA SETI Permanent Study Group: http://iaaseti.org/. 89 �� The Post-detection SETI Protocol website maintained by the North American Astrophysical Laboratory contains the draft Reply Protocol as Annex 2 to its documents: http://www.naapo.org/SETIprotocol.htm#annex2. See also App. 3 to M. Michaud, ‘An International Agreement Concerning the Detection of Extraterrestrial Intelligence’ (IAA‑88‑530) (1992) 26 Acta Astronautica 291–4 at 294, and his ‘A Unique Moment in Human History’, in B. Bova and B. Preiss, eds, First Contact (London: Headline, 1990), 328–9. Cf. J. Heidmann, ‘A Reply from Earth: Just Send Them the Encyclopedia’ (1993) 29 Acta Astronautica 233–5. 90 �� D. Goldsmith, ‘Who Will Speak for Earth? Possible Structures for Shaping a Response to a Signal Detected from an Extraterrestrial Civilization’ (1990) 21 Acta Astronautica 149–51; M. Michaud, J. Billingham and J. Tarter, ‘A Reply from Earth?’ (1992) 26 Acta Astronautica 295–7 (www.setv.org/online_mss/reply92.pdf); R.P. Norris, ‘How to Respond to a SETI Detection’, Bioastronomy 2002: Life Among the Stars (2004) IAU Symposium, Vol. 213, 1–6; www.atnf.csiro.au/people/rnorris/papers/n188.pdf; M.A.G. Michaud, Contact (supra n. 5) 358–75; Reijnen, supra n. 14.

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a Proposal issued by the IAF SETI Committee in 1995.91 The terms of the Proposal are closely akin to the Reply-communication Declaration, which exists in draft. This last is a corollary of the Post-detection Protocol, but unlike it it has not been adopted by all relevant bodies. The proposal also differs from the Post-detection Protocol in that it aims at eventual treaty status as an agreement between states rather than just between SETI practitioners. The draft Reply Communications Protocol would provide a framework within which the question of whether to reply, and an outline of the content of any reply, can be considered. Previous discussions had ranged over questions of content as well as procedure, and the separation of these matters is to be welcomed. Now the only indication as to possible content is that the procedure should reflect ‘a careful concern for the broad interests and well-being of Humanity’ (Pr. 6). Consultations on the question of sending communications should be begun (Pr. 1). Whether a message should be sent should be discussed within UN COPUOS and other governmental and non-governmental organisations including participation by qualified interested groups (Pr. 2). Interested states should take part and the discussions should result in recommendations arrived at through consensus (Pr. 3). On the basis of a recommendation from COPUOS and the other participants in the discussions the UN General Assembly should consider whether to send a message, and its content if any. Any message should be from Humankind, not from any particular state (Pr. 5). As noted, its content should ‘reflect concern for the broad interests and well-being of humanity’ (Pr. 6). Principle 6 also suggests that the content of the message should be publicised before being sent, though it is not clear what possibility there might be for objections to be raised or amendments agreed. Since any exchange of messages is likely to take years, a long-term institutional framework for conducting such an exchange should be considered (Pr. 7). Perhaps indicating that the drafters were conscious that not everyone may pay heed to the Reply-communication Declaration, Pr. 8 states that states should not send a message prior to international consultation, nor co-operate with any attempts to do so.92 In their deliberations states should draw on the services of experts (Pr. 9), and if the decision is indeed to communicate, encoding and transmitting the message should be entrusted to scientists and engineers specialising in the technologies involved (Pr. 10).

91 �� ‘SETI Reply Protocols’: http://www.setileague.org/general/reply.htm. 92 �� This is weak. There have been speculative transmissions to space (supra nn. 35, 36) but a ‘reply’ to a detected signal is of quite a different order. Should we consider that as part of its obligations under Art. VI of the Outer Space Treaty to supervise space activities engaged in by those under its jurisdiction, a state should prevent or punish unauthorised signals to suspected ETI? Section 9 of the (UK) Outer Space Act 1986 might be used for this purpose as it requires a licence to engage in space activities. Such a ruling might, however, bring into question issues regarding which individual states may have pre-existing laws (e.g. the First Amendment to the US Constitution (freedom of speech)).

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These are recommendations as to procedures. Discussion also has gone into the content of the reply message.93 Fasan puts the matter cogently,94 but this takes us through to questions of Metalaw. First we must consider what status the Postdetection and Reply Protocols have at present and what status they should be given. Binding Protocols? What legal status should be given to the Post-detection Protocol and the Reply Protocol? In their formulation there is a partial answer. The Post-detection Protocol is a document to which those engaged in SETI are invited to subscribe, and many have done so. In addition it has been approved by relevant bodies. As such this particular Protocol might be thought to have a weight similar to that of a Resolution of the UN General Assembly, and perhaps in practice an even greater weight because of its involvement of major players in the field. This is better than nothing, but it is less than legal obligation. It is not legally binding. The Postdetection Protocol is indeed a Declaration which influential bodies and individuals active in SETI have indicated they will abide by. However, if they do not, there is no remedy. Should it therefore be converted into treaty form? There are many other matters of more obviously pressing concern to take the attention of our lawmakers, national and international. And even if there were a legal obligation, what could usefully be done with (or to) the person who violates the procedures it establishes? Were SETI to succeed there would be many things to consider more important than a premature announcement by a discoverer. On the other hand, given the projected social effects of an announcement it might be wise to put in place legal discouragements in the way of excited discoverers. If this view prevails steps should be taken to embody the principles of the Post-detection Protocol in an international treaty with the requirement that states ratifying the treaty should incorporate them into national law. This is not to provide an excuse for bureaucrats to issue more blue forms, or in order that breach of a licence may be punished. It is suggested in the belief that, while most scientists are law-abiding, ones on the margin might just comply with a formal legal requirement when they might ignore what amounts to a private agreement among their colleagues. We can do nothing about the rogue elephant, but in any event, short of legal obligation the existing formal but non-legally enforceable agreement among those working in the field of SETI remains useful. The draft Reply Protocol has no real status precisely because it is a draft. However, a case can be made out for making it or a revised version also legally binding through conversion into a treaty. As with the other Protocol, the justification 93 �� See citations supra: Fasan n. 10; Michaud, Billingham and Tarter n. 74; Reijnen n. 14. 94 �� E. Fasan lists significant elements of a reply: n. 10 at 134. See also his Relations with Alien Intelligences (infra n. 103) at 82–3.

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for such a step is the importance of the matter. Interaction with ETI could massively affect humankind. A formal procedure should therefore be agreed in advance for the discussion of whether a reply should be made, and for establishing its content. Some have thought that the appropriate mechanism for creating such an obligation should be the UN process, starting off with UN COPUOS.95 That might be suitable, but has the problem that the COPUOS agenda is already well occupied. An ad hoc body might be more suitable. Yet, as a famous American judge, Oliver Wendell Holmes, said: ‘The life of the law has not been logic: it has been experience’.96 All these considerations do not displace the point that at present there is too much else taking the attention of the state departments of the nations. It may also be doubted whether states would be willing so to confine their freedom of action. In short formal legal status for either Protocol seems unlikely. SETI enthusiasts should therefore not over-welcome the preceding paragraphs. Metalaw If we encounter ETI the question of mutual relationships will arise.97 At one level the matter might be simple – we are conquered, or placed in quarantine, or excluded from further intercourse with space.98 However, short of that happening, successful relationships run on rules, express or unacknowledged. Consideration must be given to the possibility of encounter or contact with cultures of superior, equal or lesser science and technology.99 Of course ‘first contact’ stories are a staple of science fiction, but legal discussion has been sparser. In modern times A.G. Haley was one of the first to raise such matters.100 In his view should extraterrestrials be 95 �� V. Kopal, n. 13 at 124–5. 96 �� O. Wendell Holmes, The Common Law (1881) (Boston, MA: Little, Brown, 1948) 1. 97 �� See generally A.A. Harrison, supra n. 5. 98 �� Or eaten: an apocryphal suggestion attributed to an eminent astronomer is that to ‘reply’ to a detection of ETI is to put up a sign saying ‘Protein Here’. We note that an early commentator discussing how space law should develop suggested that manned spacecraft might permissibly carry ‘the most powerful atomic and ultra-sonic rays devices in order to protect the astronauts against attack from unknown evil races’. J.E. Faria, ‘Draft to an International Covenant for Outer Space – The Treaty of Antarctica as a Prototype’ (1960) 3 Proc. IISL 122–7 at 124 (quotation from Art. 1.3 of the Draft). Otherwise, on relationships with a superior civilisation see McDougal et al. (supra n. 9) at 1006–21. 99 �� McDougal et al. (supra n. 9), 980–1005. 100 �� A.G. Haley, Space Law and Government (Appleton Century Crofts, 1963) 394– 421, which brings together (and bibliographs) many of his papers. D. Magnuson, ‘Andrew G. Haley’s Metalaw’, an as yet unpublished paper, prepared in 2005 for Professor Larsen’s Space Law course at the Georgetown Law Center, helpfully surveys Haley’s writing on the subject.

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contacted or encountered it was necessary to press through from the variety of anthropocentric laws to a generality of principle avoiding anthropocentricity that could inform the new relationships. This Haley dubbed ‘Metalaw’. Although his view depends on concepts of ‘good’ and ‘bad’ which some consider inadequate and other criticisms have been made,101 others have found helpful Haley’s articulation of a general natural principle common to all life as ‘do unto others as they would have you do unto them’.102 Ernst Fasan suggests that Metalaw is ‘a rule of conduct for intelligent beings’, and that therefore ‘the Categorical Imperative will apply’.103 On that basis, and after reviewing a variety of ancient texts as well as modern writers, Fasan elaborates eleven fundamental ‘Rules of Metalaw’ and discusses the ground for arriving at each.104 Then, acknowledging that not all of these Rules are of equal validity and strength, he re-orders them on the ground that ‘[n]orms based on the concept of life itself are stronger than rules based on the concept of intelligence’ and that rules likely ‘to check and fight entropy will have preference over rules that are less anti-entropical’. The revised Fasan listing is therefore:105 1. No partner of Metalaw may demand an impossibility. 2. No rule of Metalaw must be complied with when compliance would result in the practical suicide of the obligated Beings. 3. All intelligent Beings of the universe have in principle equal rights and values. 4. Every partner of Metalaw has the right of self-determination. 5. Any act which causes harm to another race of Beings must be avoided. 101 �� G.H. Reynolds and R.P. Merges, Outer Space: Problems of Law and Policy (Boulder, CO: Westview Press, 1989) 408; P. Magno, ‘Possibility of Existence of Extraterrestrial Beings’ (1963) 6 Proc. IISL 40, and his ‘Prematurity and Anthropocentricity in Legal Regulation of Space?’ (1964) 7 Proc. IISL 46; G.S. Robinson, ‘“Metalaw” – Prolegomena to Quantification of Jus Naturale’ (1971–1972) 40 Geo. Wash. L. Rev. 709–25. Robinson considers unhelpful the reliance of McDougal et al. (supra n. 9) on technology as a means of classification for these purposes. 102 �� A.G. Haley, ‘Space Law and Metalaw, a Synoptic View’ (1956) 23 Harv. Univ. Law Rec. or (1956) 4 Proc. IISL at 25. This attitude is the inverse of Charles Kingsley’s Mrs Doasyouwouldbedoneby in The Water Babies (1863) whose alternative is Mrs Bedonebyasyoudid. (Did Haley know this book?) Cf. Confucius, Analects XV.24. One might also have looked for fuller consideration of the Universal Declaration of Human Rights, UNGA Res. 217 (III), 8 December 1948; http://www.un.org/Overview/rights.html. 103 �� E. Fasan, Relations with Alien Intelligences (Berlin: Berlin Verlag, 1970) 9. Haley also made use of the Categorical Imperative (as to which see I. Kant, Groundwork of the Metaphysics of Morals (1785) (many translations and eds), or more easily as it is outlined by many commentators). 104 �� Fasan, n. 103, 58–70. This is the order in which they are taken in P.M. Sterns, ‘Metalaw and Relations with Intelligent Beings Revisited’ (2004) 20 Space Policy 123–30 [Lyall/Larsen 561–8]. 105 �� Fasan, n. 103, 71–2. We slightly re-phrase the list.

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6. Every race of Beings is entitled to its own living space. 7. Every race of Beings has the right to defend itself against any harmful act performed by another race. 8. The principle of preserving one race of Beings has priority over the development of another race of Beings. 9. In case of damage, the causer of the damage must restore the integrity of the damaged party. 10. Metalegal agreements and treaties must be kept. 11. To help other Beings by one’s own activities is not a legal but a basic ethical principle. Of course it may be a long time before such questions require answers, but it is well that some is given thought to them. The writings of Haley and others often contain an initial passage which mentions ancient philosophers (e.g. Lucretius), theologians (e.g. Bruno, Aquinas) and lawyers (e.g. Vittoria, Suarez).106 That history of thought does not seem to have greatly affected or restrained the spread of regional cultures into other parts of the world. The interaction of various imperial authorities with indigenous peoples is not reassuring.107 However, the discussion and musing as to ETI and law seems to have been undertaken largely by those whose real knowledge of that history or of basic philosophy is uncertain – picking up an idea from a secondary source and throwing it in to flavour or bolster an argument or viewpoint already decided upon. Work on this area still needs to be done by jurisprudents and philosophers properly to build on that of Haley and Fasan. That said, it has also to be said that the alternative view of Jenks has its attractions. Commenting on ‘Haley’s Rule of Metalaw’ Jenks saw it as ‘the keynote of a moral approach to policy rather than a principle susceptible of expression in legal terms; as such it is of fundamental importance’.108 But then Law and Morals must always interact for Law and Society to be healthy.

106 �� Fasan, supra n. 103, 42–51, gives a brief survey of the early literature. 107 �� The point is also made in S.S. Lall, ‘Space Exploration – Some Legal and Political Aspects’ (1959) 2 Proc. IISL 75–110 at 79–81 and R.K. Woetzel, ‘Sovereignty and National Rights in Outer Space and on Celestial Bodies’ (1962) 5 Proc. IISL 20. Cf. de Las Casas, supra n. 31; F. Jennings, The Invasion of America: Indians, Colonialism and the Cant of Conquest (New York: Norton, 1976) and his The Ambiguous Iroquois Empire: The Covenant Chain Confederation of Indian Tribes with English Colonies (New York: Norton, 1984). Cf. cases on ‘native rights’, in Australia, Canada, New Zealand and the US. See also the websites of ‘Intute Social Sciences’: http://www.intute.ac.uk/socialsciences/cgi-bin/ search.pl?term1=native+rights&limit=0, and of Indigenous Law Resources: http://www. austlii.edu.au/au/other/IndigLRes/. 108 �� C.W. Jenks, Space Law (London: Stevens, 1965) at 114.

Chapter 18

The Future Space law is maturing. As it does it is bifurcating. Fifty years from Sputnik I and forty after the Outer Space Treaty there is much to satisfy in what has been accomplished. Principles have been established, and in general states have complied with them in their own space activities and required compliance with them by those non-state entities which they have licensed to engage in space activities. Many issues are now considered as settled. Other formerly contentious issues appear dead. Some are reappearing in altered form. In the early days of the space age only states were the actors. Now we have the emergent commercial uses of space and their requirement of regulation, whether national and international. Just as there is the Law of the Sea and Maritime Law so there is a body of space law that regulates inter-state relationships and an increasing mass of law regulating commercial activities. This last is shaped and constrained by the public international law of space which is the product of international agreement. Yet ultimately commercial space law is a creation of national legal systems governing such as launch contracts, insurance, copyright and intellectual property which must be the subject of another book. In the meantime we can look forward to identify areas that require international development and agreement. The temptation, to which we will succumb to occasionally, is to have recourse to analogy. When considering new problems lawyers have an ingrained tendency to analogise from the known to the unknown, but for the future requirements of space that tendency

�� See K.-H. Böcksteigel, ed., ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (Cologne: Carl Heymanns Verlag, 2002) together with the product of the Workshops that underpinned the Project (published by the Institute of Air and Space Law, Cologne University) on 1. Privatisation, 2. Launch and Associated Services, 3. Remote Sensing, 4. Telecommunications, 5. Space Stations, and 6. National Space Legislation. Project 2001+ continues under the direction of Professor S. Hobe. Cf. K.-H. Böcksteigel, ‘Commercial Space Activities: Their Growing Influence on the Law’ (1987) XII AASL 175; P.D. Nesgos, (1) ‘Commercial Space Transportation: A New Industry Emerges’ (1991) XVI AASL 193; (2) ‘The Practice of Commercial Space Law’ (1992) XVII-I AASL 177; ‘(1997) XXII(I) AASL 43; (3) ‘New Developments in Space Law Concerning Risk Management’ (2002) XXVII AASL 477; Bin Cheng, ‘The Commercial Development of Space: The Need for New Treaties’ (1991) 19 J. Sp. L. 17–44; R. Berkley ‘Space Law versus Space Utilization: The Inhibition of Private Industry in Outer Space’ (1996–7) 15 Wis. J. Int. L.J. 421–43; V. Kayser, Launching Space Objects: Issues of Liability and Future Prospects (Dordrecht: Kluwer, 2001).

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may have to be curbed. It can be unwise to innovate in law by such means, seminal though it can be. Apart from being careful as to innovation, we must also ensure that international space law does not become something separate from general international law. Were it to do so it would become encysted and sterile. There is, of course, an argument that space law is a lex specialis, and to some extent some of its provisions are such. However, those who too easily argue for space law in broad as lex specialis may in fact be thereby intentionally, or through ignorance of their own limitations, be concealing their ignorance of general international law. That must be resisted. Law is law. In space we seek the ‘rule of law’, not ‘rule by law’ where rules are simply adhered to when convenient to the powerful, and altered at their behest. ***** Some early proposals for the development of space law were intriguingly visionary. For political reasons they were also mostly impractical, particularly those that suggested the setting up of a World Space Authority or something similar. In the early days of space it was never likely that the US and the USSR, then the only two space powers, would consent to the transfer of their authority, let alone their technologies, to the control of an International Space Agency. Nonetheless, echoing the background of many ‘Golden Age’ science fiction novels, proposals were made. �� ‘One of the most treacherous tendencies in legal reasoning is the transfer of generalisations developed for one set of situations to seemingly analogous, yet essentially very different, situations’. Frankfurter J. dissenting, in Braniff Airways, Inc. v Nebraska State Board of Equalization and Assessment (1953) 347 US 590 at 603, 74 S. Ct. 757; 98 L. Ed. 967, quoted by H.J. Taubenfeld, ‘A Regime for Outer Space’ (1961) 56 Nw. U. L. Rev. 129–67 at 160 n. 62, and by D.B. Craig ‘National Sovereignty at High Altitudes’ (1957) 24 J. Air L. and Comm. 384–97 at 395. This wisdom may be balanced for our purposes by: ‘Logic is a Wonderful Thing but doesn’t always Beat Actual Thought’, T. Pratchett, The Last Continent (1998). �� See generally M. Andem, International Legal Problems in the Peaceful Exploration and Use of Outer Space (Rovaniemi: U of Lapland, 1992). �� R.H. Mankiewicz, ‘The Regulation of Activities in Extra-Aeronautical Space, and Some Related Problems’ (1961–2) 8 McGill L.J. 193–211 at 199–205; G.V. Leopold and A.L. Scafuri, ‘Orbital and Super-Orbital Space Flight Trajectories – Jurisdictional Touchstones for a United Nations Space Authority’ (1959) 36 U. Det. L.J. 515–34 (rep. Legal Problems 520–39) after arguing for a International Space Authority suggest at 528–34 the UNGA take over the question and create a Space Authority under the procedures of the ‘Uniting for Peace Resolution’ (UNGA Res. 377 (V), 3 November 1950); A.S. Primadov, International Space Law (Moscow: Progress Publishers, 1976) 258 (though the international agency would coordinate but not replace national activities). See also G.V. Leopold, ‘Cosmic Surveillance by Spaceflight Momentum’ (1960) 6 Wayne L Rev. 311–39 proposing at 320 ff. an International Cosmic Surveillance Authority within or outside the UN to supervise all activities in space;

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Indeed the suggestion still occasionally appears. However, it seems clear that in the immediate future a global international operational space agency will not be created. Nor will there even be a global body of more restricted responsibility such as one devoted to the conduct of remote sensing. As things stand the major international body presently with a worldwide competence in certain aspects of the use of space is the International Telecommunication Union, whose basic justification is the dictates of the Law of Physics not the willingness of states to surrender their sovereignty and enter a new stage of international co-operation. If all are to secure the most from their radio requirements, the ITU or something C.G. Wihlborg and P.M. Wijkman, ‘Outer Space Resources in Efficient and Equitable Use: New Frontiers for Old Principles’ (1981) 24 J.L. and Econ. 23–44 arguing for space to be considered as held in common and for an international orbit and frequency condominium to auction user rights and distribute the revenues equitably among the nations; G.P. Sloup, ‘Peaceful Resolution of Outer Space Conflicts through the International Court of Justice: The Line of Least Resistance’ (1971) 20 DePaul L. Rev. 618–698 at 691–2; C.Q. Christol, ‘Alternative Models for a Future International Space Organisation’ (1981) 24 Proc. IISL 173 (rep. C.Q. Christol, Space Law, Past, Present and Future (Deventer: Kluwer, 1991) 427–42). Cf. many suggestions in the annual Proc. IISL (many cited in n. 1 of the Christol article just cited) including M. Smirnoff, ‘The Future International Agency for the Administration of Cosmos – The ICAO’s Candidature’ (1965) 8 Proc. IISL 409; H. DeSaussure, ‘Evolution Toward an International Space Agency’ (1976) 13 Proc. IISL 31. �� L.L. Manzione, ‘Multinational Investment in the Space Station: An Outer Space Model for International Cooperation’ (2002) 18 Am. U. Int. L. Rev. 507–36 at 532–4; D. Tan, ‘Towards a New Regime for the Protection of Outer Space as the “Province of All Mankind”’ (2000) 25 Yale J. Int. L. 145–94 at 190–3; S. Courteix, ‘Towards a World Space Organisation?’, in G. Lafferranderie, ed., Outlook on Space Law over the Next Thirty Years (The Hague: Kluwer, 1997) 423–7, and her ‘Is It Necessary to Establish a World Space Organisation’ (1993) 36 Proc. �� IISL 20–30; J.M. Faramñián Gilbert and C. Zhangi, ‘L’Organisation Mondiale de l’Espace: Un Défi Oublie?’, in A. Kerrest, ed., L’Adaption du Droit de l’Espace ses Nouveau Défis – Liber Amicorum, Mélanges en l’honneur de Simone Courteix (Paris: Editions Pedone, 2007) 161–75; E. Kamenetskaya, ‘Establishment of a World Space Organisation: Some Considerations and Remarks’ (1989) 32 Proc. �� IISL 358–60 reports a USSR proposal, A/AC.105/L.171; R.J. Lee, ‘Reconciling International Space Law with the Commercial Realities of the Twenty-First Century’, (2000) 4 Sing. J. Int. and Comp. L. 194–251; P.D. Nesgos, ‘The Proposed International Sea-Bed Authority as a Model for the Future Outer Space International Regime’ (1980) 5 AASL 549. �� Cf. the even more visionary G. Clark and L.B. Sohn, World Peace through World Law: two Alternative Plans, 3rd ed. (Cambridge, MA: Harvard UP, 1966) at 296–302, ‘A United Nations Space Agency’, and the USSR proposal UN A/SPC/40/3 of 14 November 1985, quoted by A.J. Young, Law and Policy in the Space Stations’ Era (Dordrecht: Nijhoff, 1989) (UNGA Res. 40/162, UN Yearbook, 1985, 108; International Cooperation in the Peaceful Uses of Outer Space: Report of the Special Political Committee, A/40/1023, 1985) but contrast G. Zhukov and Y. Kolosov (trans. B. Belitzky), International Space Law (New York: Praeger, 1984) 187. �� The International Frequency Registration Board of the pre-1992 ITU was identified by Sloup, supra n. 4, at 691–2 as being perhaps a forerunner of an agency with general

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similar is necessary because of unalterable physical laws. Other projected institutions lack that encouragement, not to say compulsion, to the surrender of ‘sovereignty’. However, there is one development which we consider to be likely. If space tourism and the space plane take off the need for ‘space traffic management’ will increase and a formal relationship between space traffic and air traffic control will be required. Apart from the ‘boundary question’ to which we will come, there will have to be some harmonisation between the use of airspace and transit to and from outer space. Given state sensitivity as to access to air-space it will be interesting to see how this is accomplished. A full ICAO for space is not likely. It is occasionally suggested that the outer space treaties should be revised and codified. As part of the exercise the substance of the UN space resolutions could be incorporated in the text or included as separate annexes to which states might separately accede. With respect, we consider such a move unlikely and undesirable. It is unlikely because, as before, the major space-active states are unwilling to surrender the certainty of the advantages which they think they possess under the present arrangements for the uncertainty of a negotiation in which they might well be called on to restrict their freedoms.10 The undesirability rests in the reopening of matters that are at present apparently secure,11 and in the likelihood that, in the absence of general agreement, the existing system might fall apart. States might withdraw from agreements to which they already have subscribed. competence in space. On the ITU see Chapter 8. The International Committee on Global Navigation Satellite Systems is a much less assertive international body. �� S. Hobe and J. Cloppenburg ‘Towards a New Aerospace Convention? – Selected Legal Issues of “Space Tourism”’ (2004) 47 Proc. IISL 377–85; A.D. Terekhov, ‘Passage of Space Objects through Foreign Airspace: International Custom?’ (1997) 25 J. Sp. L. 1–16. �� I.M. Kolosov and V.I. Tituskin, ‘Is it Time to Develop a Universal Comprehensive Convention on the Law of Outer Space’ (2002) 85 Rev. Brasiliera de Direito Aerospacial, citing proposals in A/AC.105/C.2/L.220, L.225 and Corr.1, and L.228 with Adds 1 and 2, cf. Report of the Committee on the Peaceful Uses of Outer Space, 2008, A/63/20, paras 175–6; N. Tannenwald, ‘Law versus Power on the High Frontier: The Case for a RuleBased Regime for Outer Space’ (2004) 29 Yale J. Int. L. 363–422. 10 �� The US has set its face against new treaties that might restrict its freedom. As noted in Chapter 2, bullet point 7 of Sec. 2 of the 2006 Bush revision of US National Space Policy states that the US ‘will oppose the development of new legal regimes or other restrictions that seek to prohibit or limit U.S. access to or use of space’ – (2007) XXXII AASL 475–86; http://www.ostp.gov/galleries/press_release_files/Unclassified%20National%20Space%2 0Policy%20--%20FINAL.pdf. A space treaty that lacks US acceptance will have limited relevance. There is also opposition to the erosion of state sovereignty by globalisation: cf. D.B. Hollis, ‘Private Actors in Public International Law: Amicus Curiae and the Case for the Retention of State Sovereignty’ (2002) 25 B.C. Int. and Comp. L. Rev. 235–55. 11 �� Cf. the complaint of the signatories to the Bogota Declaration that they did not exist when the basic lines of the major treaties, including the OST, were negotiated, not to say promulgated. See Chapter 9 – ‘The Bogota Declaration’.

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There is the analogue of UNCLOS 1982,12 but before that agreement there lies the whole history of the Law of the Sea and the difficulties of its consolidation.13 Even the Final Act of the Geneva Conference on the Law of the Sea of 195814 was unsatisfactory, its four conventions receiving very different levels of ratification. To some extent we already have arrived at that ‘1958’ situation with the existing space treaties. It is premature to seek their consolidation or codification. International co-operation is currently the most likely way forward in many fields, particularly given the vast investment that space activities require. Such co-operation may be detailed in its requirements, or it may be expressed in more general terms. It may be informal and non-binding; in other instances there may be a measure of prescription. Enforcement of a legal obligation by the traditional mechanisms for compelling compliance is, however, not in contemplation. One form of co-operation is the May 2007 agreement of various space agencies to co-ordinate their activities through a voluntary non-binding mechanism cited at the very beginning of this book.15 While such mechanisms will not eliminate the duplication of effort and expenditure, it should diminish it. Again there is the example of the Inter-Agency Space Debris Coordination Committee Guidelines on Debris Mitigation of 2002. Although these have been endorsed by COPUOS and the UN General Assembly (COPUOS, A/62/20 and UNGA Res. 62/217, 2007) it is the co-operation that is important here rather than any suggestion that the Guidelines are legally binding. Other forms of co-operation are to be seen in such endeavours as the International Space Station,16 the European Space Agency,17 the global navigation satellite systems18 and the various remote sensing organisations.19 Yet other co-operative arrangements can be seen in the different satellite telecommunication organisations, both intergovernmental and private.20 12 �� UN Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3; 1999 UKTS 81, Cm. 4524; US Tr. Doc. 103–39; (1982) 21 ILM 1261; (1994) 33 ILM 1309. Cf. Nesgos, supra n. 5. 13 �� See the work done by the International Law Commission in the 1950s on elements of the Law of the Sea. 14 �� See International Law Commission at http://untreaty.un.org/ilc/summaries/8_ 2.htm. 15 �� ‘The Global Exploration Strategy: The Framework for Coordination’: http://www. bnsc.gov.uk/assets/channels/media_centre/Global%20Exploration%20Strategy%20Fram ework.pdf; http://www.scitech.ac.uk/Resources/PDF/gesframework.pdf; http://www.nasa. gov/pdf/178109main_ges_framework.pdf. The agencies involved are ASI (Italy), BNSC (UK), CNES (France), CNSA (China), CSA (Canada), CSIRO (Australia), DLR (Germany), ESA (European Space Agency), ISRO (India), JAXA (Japan), KARI (Republic of Korea), NASA (United States of America), NSAU (Ukraine) and Roscosmos (Russia). 16 �� See Chapter 4 – ‘Space Stations’. 17 �� See Chapter 1 – ‘European Space Agency’. 18 �� See Chapter 12. 19 �� See Chapter 13. 20 �� See Chapter 11 and Chapter 9 – ‘Direct Broadcasting’.

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Even with these welcome co-operative developments problems remain to be solved as space is increasingly used. As circumstances evolve, satisfactory methods and agreements will have to be created in order to cope with them. Commentators have drawn up lists.21 In 2007 the then Chairman of UN COPUOS submitted a working paper on the future role and activities of the Committee which identifies some areas and contemplates the outsourcing of some of the basic research that might be required.22 The question of the boundary grumbles on. While no space-faring state seems unduly concerned, as space activities increase and more launches take place it is anomalous that the question has not been answered. At present most launches and re-entries use either national air-space or pass over the high seas. That may diminish the present need for a solution, but at least some form of accommodation between space and air-traffic control will surely be necessary.23 There remains the assumption implicit in Arts II and III of the Liability Convention that there is a spatial distinction between damage caused on the surface of the Earth or to aircraft in flight and damage caused ‘elsewhere’. Again the various treaties on the stationing and use of nuclear and other weapons refer to ‘space’ as somewhere separate and distinct.24 Environmental concerns are inadequately considered both as to the near-Earth area and beyond. As indicated in Chapter 10, space debris is an increasing problem. Space agencies are co-operating in its mitigation and, as we have noted, this has 21 �� Cf. successively, G.H. Reynolds and R.P. Merges, Outer Space: Problems of Law and Policy (Boulder CO: Westview, 1989); G.H. Reynolds, (1) ‘Space Law in the 1990s: An Agenda for Research’ (1990) 31 Jurimetrics 1–15 listing property rights, environmental problems, international trade, the futures of INTELSAT and the Moon Agreement together with military issues as international issues before going on to outline matters of US domestic concern; (2) ‘International Space Law: Into the Twenty-First Century’ (1992) 25 Vand. J. Transnat. L. 225–55, listing six concerns of immediate interest, environmental concerns, property rights in space, international co-operation, international trade, remote sensing and arms control together with as ‘remoter issues’, the governance of space societies and contact with extraterrestrial intelligences; and (3) ‘International Space Law in Transition: Some Observations’ (2005) 6 Chic. J. Int. L. 69–80, identifying emergent problems of space tourism, military applications, the space environment, the space elevator and the possible use of atomic bombs as a mode of propulsion of a space vehicle (the ‘Orion’ system). See also K.-H. Böcksteigel, ‘Prospects of Development in the Law of Outer Space’ (1983) VIII AASL 305; J.A. Bosco, ‘International Law Regarding Outer Space – An Overview’ (1990) 55 J. Air L. and Comm. 609–51. From the past see ‘The Law of Outer Space’ Report to the National Aeronautics and Space Administration, Project Reporters, N. deB. Katzenbach and L. Lipson (American Bar Foundation, 1960) (Legal Problems Symposium, 779–983). 22 �� ‘Future Role and Activities of the Committee on the Peaceful Uses of Outer Space: Working Paper Submitted by the Chairman’ 10 May 2007, A/AC.105/L. 268; http://www. unoosa.org/pdf/limited/l/AC105_L268E.pdf. 23 �� See Chapter 6. 24 �� See Chapter 16.

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been acknowledged and approved by COPUOS and the UN General Assembly.25 Debris problems are, however, sufficiently significant to raise the question whether a legally binding instrument would be useful through the imposition of clear obligations. That would strengthen the will of both the responsible and lessresponsible space-licensing authorities to set and enforce adequate environmental requirements both for their own state space activities and for the entrepreneurs whose activities they license and supervise. Were a ‘Debris Instrument’ to be drafted it should also include duties as to the removal of disused equipment (though perhaps not structures) from celestial bodies and for the removal of spent satellites either through atmospheric re-entry or by relocation to graveyard orbit.26 As Chapter 10 notes there is the analogy of the duties as to the decommissioning and removal of drilling platforms on the continental shelf. Work is required on such ideas. An international programme for the removal of the debris now cluttering the near-Earth orbital area is an alternative, though such could run concurrently with the new international obligation. Who will pay for it would be a major problem and similar concerns surround the whole question of planetary defence.27 Later in this chapter we will suggest that commercial users of space should pay a Resource Utilisation Fee which could have various elements. Part of it could be used to subsidise commercial space salvors – perhaps a consortium of agencies and space users. Their business would be the removal space debris, some of their costs being recovered through allowing salvage rights in spent satellites. To allow for this OST Art. VIII would have to be appropriately modified.28 In human space-flight the law relating to space tourism must be developed on an international as well as a national basis.29 Solutions for this problem area may also inter-relate with some of the problems of the space-plane. In present law the concept of ‘astronaut’ is not suitably defined to cope with these novelties. The precise status of ‘space-flight participants’ must be clearly distinguished from that 25 �� For the UNGA/COPUOS endorsed IADC Guidelines see COPUOS Report, A/62/20 and UNGA Res. 62/217 of 22 December 2007. 26 �� Removal by atmospheric re-entry poses hazards for land, sea and aeroplanes in flight. It would call for ‘traffic control’ but, as has been experienced already, the actual re-entry is not accurately predictable. Graveyard orbits will in due course saturate at their Lagrange points if in equatorial plane. Disposal sunwards would be better, but much more expensive. 27 �� Some newcomers to space consider that, similar to arguments about greenhouse gases, those who have already caused debris should pay the most for cleaning it up. The cost of planetary defence against asteroid impact should be shared on the basis of GDP. 28 �� Cf. I. Asimov, ‘The Martian Way’ (1952) rep. The Martian Way and Other Stories (1955) and The Best of Isaac Asimov (1973). In an appropriate instance the state with authority under OST Art. VIII could by bilateral agreement with the licensing state of the salvor cede its ‘ownership’. Any security rights under a Cape Town Space Protocol (Chapter 14) would also have to be dealt with. 29 �� Space tourism is noted in Reynolds (3), supra n. 21 and COPUOS Working Paper, supra n. 22, Sec. G, paras 36–8. See Chapters 5 and 15.

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of ‘crew’ and their relationships with ARRA and similar provisions clarified. The status of the ‘space hotel’ also requires consideration from the level of international law irrespective of what may be provided by relevant national laws. This takes us into the difficult area of the space tragedy. As discussed in Chapter 5, difficult decisions may have to be made should life-support on a space vehicle or a celestial base become insufficient to maintain the life of all present until help can arrive.30 Who should survive? Who decides? What are the criteria for the decision? Are there circumstances under which refuge may be denied to stranded astronauts on safety grounds? Can an astronaut who becomes a threat to others be executed? Such matters require consideration before the eventuality occurs – as it will. The management of outer space traffic is a new worry. The increase of traffic, the increase of space debris and the financial investment in vulnerable space objects, make collision avoidance a major issue. Most urgently needed is greater transparency of space vehicle/satellite location and movements. Operators of space vehicles should exchange information about the location of their space objects so that they can ‘see’ other space objects and their own be ‘seen’ and thus be avoided. Likewise, to avoid accidental confrontations the location of military space objects needs to be disclosed. Co-ordination and co-operation is required in order to provide a full, accurate real-time picture. Unilateral monitoring is not sufficient. Some international structure is necessary for independent monitoring and communication. Initially, the national space organisations that now monitor space objects could co-ordinate directly with each other, but inter-organisational co-ordination should become much wider and should involve international organisations able eventually to set minimum standards. Whatever may come to be the rule out in space or on a celestial body, it is already clear that materials brought back to the Earth from space are ‘property’.31 However, how ‘rights’ in space may be recognised remains to be settled. This is most obvious in relation to ‘immoveable property’ on the Moon and other celestial bodies.32 The present law makes clear that national appropriation cannot occur, with the corollary that no state can invest its nationals with rights of property in celestial bodies. Nor will an individual or private entity secure ‘title’ to space or to any naturally occurring celestial object simply by claiming it.33 However, it is 30 �� See Chapter 5 – ‘Long Range Missions’. 31 �� See Chapter 7, n.53 and K. Martens ‘United States of America v One Lucite Ball Containing Lunar Material (One Moon Rock) and One Ten Inch by Fourteen Inch Wooden Plaque 252 F. Supp. 2d 1367 (2003)’ (2003) 13 De Paul J. Art and Ent. L. 465–80. 32 �� See Chapter 7 – ‘Sovereignty and Title to Immoveables’. Cf. Reynolds (1)–(3), supra n. 21. 33 �� Over the years many individuals have sought to claim title to lands and invariably these have not been recognised by states. Whether ‘recognition’ is declaratory or constitutive, it is necessary for effective ‘title’. See J.L. Erwin, ‘Footnotes to History’: www.buckyogi. com/footnotes/index.htm for an extensive list with detail of some histories/stories.

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also clear that in the future some method will have to be developed in which some effect will be given to at least an analogue of ‘property’ rights. Entrepreneurs need to be assured that the security of the return on investment afforded by ‘terrestrial property law’ will be available for investments in space. Article 11.5 of the Moon Agreement was an attempt to set up such a development. It bound the parties to work out an ‘international regime’. However, that regime was to ‘govern the exploitation of the natural resources of the moon’ (emphasis added). By MA Art. 11.7 this would include matters of orderliness and safety, rational management, expanding the use of the resources and the equitable sharing in the benefits. In the opinion of the states able to get to the Moon in the near future that goes too far. The best that can be said is that at present the MA is dormant. However, MA Art. 11 at least recognises the basic problem, albeit it was premature in the solution it offered. The question of ‘property rights’ in space is, however, being pushed in certain quarters and must be tackled soon before unwise individual initiatives distort a sensible solution to the question.34 The unilateral ‘recognition’ of the ‘rights’ of an entrepreneurial entity could only prejudice international discussions and in any event misunderstands the term ‘recognition’ as known in international law.35 We have suggested in Chapter 7 the development of an analogue of the UN Commission on the Limits of the Continental Shelf as a process to permit the international recognition and therefore a degree of protection for an exploitative activity on the moon or another celestial body.36 And beyond the Moon there lies Mars and the asteroids.37 Exploitation of celestial bodies naturally leads to the matter of the benefits from the use of space. When space was opening up much was made of the benefits that would result. Hope that this benefit would be for all was expressed in the UNGA Resolutions38 and formalised as an obligation in OST Art. 1 para. 1.39 Much benefit has indeed come from space. Telecommunications is the most obvious example. Coupled 34 �� See Chapter 7 – ‘Exploitation’. 35 �� A. Wasser and D. Jobes, ‘Space Settlements, Property Rights and International Law: Could a Lunar Settlement Claim the Lunar Real Estate It Needs to Survive?’ (2008) 73 J. Air L. and Comm. 37–78. Although some passing reference is made to other legal traditions, the major thrust of this article is grounded in the parochial insularities of Nineteenth Century US law and practice. This is an example where analogy misleads. 36 �� See Chapter 7, p. 195. 37 �� C.Q. Christol, ‘The Moon and Mars Missions: Can International Law Meet the Challenge?’ (1999) 19 J. Sp. L. 123–36; D. Collins, ‘Efficient Allocation of Real Property Rights on the Planet Mars’ (2008) 14 B.U. J. Sci. and Tech. L. 201–19. 38 �� ‘International Cooperation in the Peaceful Uses of Outer Space’ UNGA Res. 1721 (XVI), 20 December 1961; ‘International Cooperation in the Peaceful Uses of Outer Space’ UNGA Res. 1802 (XVII) 19 December 1962; ‘Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space’, UNGA Res. 1962/1963 (XVIII): (1964) 3 ILM 157. 39 �� ‘The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective

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with the rise of the Internet and the World Wide Web, satellite telecommunications have transformed the world.40 Direct Broadcasting to the village schools of India and other countries is educating millions and will have a huge effect.41 Global positioning is now a common aid to marine, terrestrial and aviation navigation, mensuration, etc. Remote sensing aids farming, exploration, geology and mineral prospecting, archaeology and meteorology, climatology and even astronomy. Scientific satellites have immeasurably increased our understanding of the universe. However, there remains a suspicion that the benefits of space have gone more to the developed countries than to the less-developed, and that benefits have not flowed equitably even among those benefitting.42 The UNGA ‘Space Benefits’ Resolution of 1997 is one expression of that feeling.43 Another is the inclusion of a number of references in the ITU Constitution and Convention to the needs of developing countries as well as the introduction of Development as an ITU ‘Purpose’ and a dedicated Development Sector from 1992.44 There is also the ‘Space Millennium: Vienna Declaration on Space and Human Development’, Vienna, 30 July 1999.45 While the over-enthusiastic promotion of the concepts of the New International Economic Order (NIEO) may have affected the attitudes of developing countries and the reactions of the developed,46 there are legitimate questions as to the extent to which ‘space benefits’ have been spread. The concept of ‘common heritage’ has not been a success in these debates. Its presence in the Moon Agreement has crippled that treaty, although elements of the MA make good sense and deserve preservation of their degree of economic or scientific development, and shall be the province of all mankind’, OST Art. I, para. 1. 40 �� We acknowledge the role now played by fibre optic networks, but space links came first and remain of major importance. 41 �� Not all satellite direct broadcasting is as useful, but even the making of many aware of how other parts of the world live will have social and political consequences. 42 �� ‘Equitable’ is not the same as ‘equal’. 43 �� ‘Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries’, UNGA 51/122, 13 December 1996. 44 �� See Chapter 8. 45 �� The Vienna Declaration was adopted by the plenary meeting of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space A/CONF.184/6, 30 July 1999: http://www.oosa.unvienna.org/unisp-3/res/html/viennadecl.html. 46 �� The New International Economic Order resolutions are: ‘Declaration on the Establishment of a New International Economic Order’ (A/9556) UNGA Res. 3201 (SVI), 1974, and the related ‘Programme of Action’ UNGA Res. 3202 (S-VI) 1974. Cf. ‘Permanent Sovereignty over Natural Resources’, UNGA Res. 1803 (XVII) 1962; (1963) 57 AJIL 710; (1963) 2 ILM 223; ‘Charter of Economic Rights and Duties of States’, UNGA Res. 3281 (XXIX) 1974; (1975) 14 ILM 251. M. Hudson, Global Fracture: The New International Economic Order (London: Pluto Press, 2005); R. Gilpin, Global Political Economy: Understanding the International Economic Order (Princeton, NJ: Princeton IP, 2001); M. Bedjaoui, Towards A New International Economic Order (New York: Holmes and Meier, 1979).

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and resuscitation. It might therefore be profitable to set aside ‘common heritage’ in discussions as to ‘benefit’ and turn to the notion of ‘stakeholder interests’ at least as to the commercial use/exploitation of space.47 Space should not be for the profit of only the few. That said, we recognise that it is clear that most ‘benefit’ now comes from private enterprise, that without profit entrepreneurs will not invest and that high-risk ventures require the lure of the potential of high profit. That takes us into what may be a very contentious point – whether all ‘states’ should be recognised as entitled to license space activities. Since the Second World War ‘self-determination’ has led to the recognition of many states and governments which are in practice unable to fulfil all the wide panoply of obligations that devolve on states. Among these may lie the ‘space’ obligations. The Montevideo Convention on the Rights and Duties of States of 1933,48 is commonly held to articulate many principles of customary international law. By its Art. 4 ‘States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law’. However, in relation to space activities (which it must be recognised were not in contemplation in 1933) the terms of Art. 4 may be too wide. In the past the ‘willingness and ability’ of a state or a government to fulfil its international obligations used to be a criterion for recognition.49 Nowadays commercial entities may shop around to find administrations whose licensing and supervisory requirements may be deficient, defective or internationally inadequate. Small states may seek revenue by purporting to provide licensing and supervisory services which they are not fit or able properly to discharge. The duties imposed by the OST as to licensing and supervision, the potential liabilities under ARRA, the Liability Convention, the obligations under the Registration Convention and the responsibilities under the ITU Constitution, Convention and its Administrative Regulations (particularly the Radio Regulations) are considerable. Are all ‘states’ in fact able to fulfil these ‘space’ obligations? How can their abilities be measured, evaluated and assessed? If a ‘state’ cannot perform its international obligations in relation to space activities, should it be accepted as having the right to authorise and putatively supervise those activities? There is a serious question whether states that lack the appropriate skills, procedures and personnel should be permitted to authorise space activities or recognition given to their ‘licences’.50 Correlatively 47 �� See Chapter 11, ad fin. 48 �� Convention on the Rights and Duties of States, Montevideo, 26 December 1933 (1936) 165 LNTS 19; 49 Stat. 3097; UST 881; (1934) 28 AJIL Supp. 75. 49 �� Such was the formulation. However, ‘willingness and ability’ was usually used in the negative – a perception that a government or entity was not ‘willing or able’ being ground for the refusal of recognition. 50 �� F. Lyall, ‘Small States, Entrepreneurial States and Space’ (2006) 49 Proc. IISL 382–90. Such as Niue have sought revenue by offering space licences. Tonga may be another example. See Chapter 8.

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there is the problem of a state which may, again to attract business, not fully comply with the international space obligations although it could. The risk therefore is that entrepreneurs may seek the ‘veil’ of incorporation and the shield of licensing by an incompetent or a non-compliant state to evade the strict requirements that international law and the laws of their ultimate nationalities would impose. That would be dangerous. Buccaneers must be curbed in the interest of all. ‘Willingness and ability’ to fulfil international obligations must be revivified, and emphasised in both its requirements. We would raise a related matter. What of the enterprise registered in one state, whose beneficial owners are in another, which procures a launch from a third, and whose registration with the ITU is processed through yet another? The history of Protostar-1 illustrates this possibility. Protostar Ltd is a Bermuda company providing satellite services in Asia (http://www.protostarsat.com./) but with a largely US ownership. Its Protostar-1 satellite was launched in July 2008 by an Ariane V from the ESA launch site at Kourou, French Guiana. However, because its launch date was delayed it missed the final launch date filed for it with the ITU by Singapore. In September 2008 Protostar signed an ‘Orbital Location Services’ agreement with INTERSPUTNIK, and an ITU filing was made by Belarus as notifying administration for INTERSPUTNIK for the 95.8° E.L. GSO slot already notified for INTELSAT. In October 2008 an ITU Circular confirmed that all was in order.51 Without impugning Protostar Ltd, INTERSPUTNIK, Belarus or the ITU, this history shows how complicated such matters can become. Can we be assured that in all similar subsequent complex instances supervision and control will be satisfactory? Might it be better for the individual elements to be more closely connected so as to ensure state compliance with OST Arts VI–VIII? The matter of the benefits from space has another aspect. It is possible that ‘ordinary commercial practices’ in space activities may not adequately incorporate the concept of ‘public service’. A ‘public service’ is not the same as ‘service to the public’ in which a main purpose is the maximisation of profit for the service providers. A ‘world public service’ is not the same as the interest of entrepreneurs in providing ‘public services’.52 As indicated in the discussion of the ‘world public interest’ at the end of Chapter 11, the broader concept of the ‘stakeholder’ should be brought into play. There are more with a real interest in space activities than the financiers and entrepreneurs that engage in them.53 That has to be reflected in practice and in law. The protection of ‘stakeholder interest’ in the widest sense could 51 �� See ITU Circular Telegram CTITU 11S(SSD)O-2008003054 of 8 October 2008. The United Arab Emirates had expressed concern as to the intended Protostar-1 orbital slot, and China as to the radio frequencies to be used. Following the withdrawal of the Singapore notification, the ITU had called for clarification. 52 �� In telecommunications the ultimate owners of some participants are pension funds, whose interest is in a maximum return on investment. 53 �� See R. Jakhu, ‘Legal Issues relating to the Global Public Interest in Outer Space’ (2006) 32 J. Sp. L. 31–110. Again cf. Chapter 11, ad fin.

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have three manifestations, first, the introduction of a scrutinising and authorising authority for radio and orbital assignments, and second, the introduction of a public service obligation on appropriate operators with compliance monitored by an international agency. The third ‘stakeholder protection’ would be to require that the commercial users of space should pay a fee or fees for their use of space resources, the revenue being distributed in the ‘world interest’. First, the use of space could be made more clearly congruent with the international public interest rather than narrow national interests. We have suggested in Chapter 8 that there is a case for extending the remit of the International Telecommunication Union. Article 44.2 (196) of the ITU Constitution notes that radio frequencies and associated orbits including the GSO are ‘limited natural resources’. They are therefore to be used ‘rationally, efficiently and economically’, in conformity with the Radio Regulations, so that countries or groups of countries may have equitable access to those orbits and frequencies ‘taking into account the special needs of the developing countries and the geographical situation of particular countries’. Leaving aside the legal obligation that this article contains, it is patently obvious that radio frequencies and orbits are indeed limited natural resources. The present arrangements do not ensure that their use is equitably spread in the interest of all. States seek the advantage of their nationals, or those whom may they license to engage in space activities. We would suggest, however, that some orbits and frequencies should be set aside for use by certain ‘public service’ and scientific applications,54 with the remainder being left to commercial exploitation subject to other controls. To administer such arrangements one obvious step would be to increase the power and authority of the ITU Radiocommunication Sector. It should have power to assess whether a notified frequency and orbital assignment is in the world public interest or whether that interest would be better served otherwise. It could consider whether the assignments satisfactorily relate to the actual telecommunication needs of the state concerned (the ‘Tonga element’). Last it should consider whether the notifying state has the ability properly to discharge its duties as to the supervision of the licensed enterprise under OST Art. VI. From these elements the Radiocommunication Bureau should determine whether to enter a notified assignment on the Master International Frequency Register (MIFR). An appellate mechanism would have to be incorporated into such a procedure, but that would be possible. The members of the old International Frequency Board served and of the new Radio Regulations Board serve ‘as custodians of an international public trust’.55 There is also the analogy of the judiciary of the International Court of

54 �� Public services would include GNSS, meteorology and some telecommunications services providing global services. 55 �� ITU Constitution Art. 15.3.1 (98); Art. 6.5.1, International Convention on Telecommunications, Atlantic City, 2 October 1947; 193 UNTS 188, 194 UNTS 3; 1950 UKTS 76, Cmd. 8124; 63 Stat. 1399, TIAS 1901; 4 Bevans 470. Cf. F. Lyall, ‘The International Frequency Registration Board’ (1992) 33 Proc. IISL 394–9. See also supra n. 7.

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Justice.56 Of course there would be a risk that a space-active state, jealous of its ‘sovereignty’ and disregardful of the interests of others, might simply ignore such arrangements, but since the main basis of the ITU radio procedures is sanctioned by the Laws of Physics rather than human law, that risk may be more apparent than real. The second application of the ‘stakeholder interest’ can be more briefly set out. It would be good if those engaged in relevant space activities were to undertake public service obligations, failing which these should be imposed as part of their operating licences. There would also need to be a supervisory or regulatory authority to monitor compliance with these obligations – the model of IMSO might serve. Last, commercial enterprises should pay fees for their use of space. As discussed in Chapter 8, one simple way to incorporate considerations of both profit and stakeholder benefit would be to introduce an auction process for at least some orbital slots (particularly in the GSO) and for related uplink and downlink frequencies. In addition a Resource Utilisation Fee should be paid for frequencies and slots for commercial applications. This should not be a one-off payment. It should be exigible annually. Such charges could easily be factored into the costs of a commercial enterprise and passed on to the ultimate users of the services. Part of the income could be used for the general world welfare through the likes of UNDP and WHO.57 Others might prefer it to be used more particularly for space-related activities. If so, part could subsidise the clean-up costs for the space environment as indicated above, and part defray an effort at planetary defence – starting with a system fully to inventory potential threats.58 The area of liability has a number of aspects that will require further development as the use of space becomes more complex. In this, however, any attempt to introduce limited liability in relation to damage caused on the Earth or to aircraft in flight by space objects should be resisted. Space activities are fundamentally dangerous and those who suffer damage as a result of a ‘terrestrial’ accident should be fully compensated. In ‘terrestrial’ law, of course, it is those who engage in an activity that are liable for the consequences, but the potential damage caused by a re-entrant space object is immense, such that the state licensing the launch should be held liable since only a state will have the necessary resources.59 Further, the possibility of that liability should ensure that a state will only license 56 �� Cf. Statute of the International Court of Justice, Arts. 16–7 and 31. 57 �� We acknowledge that this is a difficult idea. The history of welfare amid governmental corruption is not reassuring, but that is no reason not to try. To go further into this area, however, takes us beyond the scope of this book. 58 �� See Chapter 10 – ‘Planetary Defence’. 59 �� This point may sharpen the suggestion that not all states be recognised as having the power to license. Cf. the current economic situation with whole countries in danger of bankruptcy.

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a space activity once it is satisfied as to the level of risk involved for it. Whether a state requires full reimbursement by the licensee for any resultant damages is a matter for it to determine. The full international liability of the licensing state should remain as an encouragement for it to take seriously its licensing and supervisory obligations.60 However, more consideration of liability will be needed as the Moon or other celestial bodies are exploited. Thus MA Art. 14.2 recognises that a liability regime will be required in due course for the results of ‘extensive activities’ on the Moon (and other celestial bodies, MA Art. 1.1). That remains to be considered. And beyond the Moon are Mars and the asteroids. The militarisation of space remains unclear. In Chapter 16 we have sought to lay out the law as we understand it. The wording of the 2006 US Space Policy (Bush) is worrying containing as it does a unilateral claim of a right to deny the use of space to ‘hostile’ others and an unwillingness to have US rights impeded by further international agreements.61 Again, the publicly available US military documentation can cause concern, but similar thoughts and considerations are doubtless present in the mind of other states. However, the progress made over the decades in international agreement as to the reduction of weaponry provides some reassurance. Those more expert than us in these areas deserve support in the effort to prevent or control the militarisation of space. We hope our chapter helps excite interest. The settlement of disputes arising from space law and space activities has two main aspects, disputes between states and disputes between commercial entities. As to disputes between states, the space treaties contain little provision as to the resolution of problems,62 and of course the normal rules of international law require the use of a variety of methods of dispute settlement.63 In the ultimate a dispute between states might well end up at the International Court of Justice,64 although we may hope that matters will usually be settled before that. The International Law Association has discussed such matters and adopted a draft Convention, but 60 �� Cf. the argument supra as to the competence of small states at p. 569. 61 �� The 2006 Bush Space Policy (2007) XXXII AASL 475–86: http://www.ostp. gov/html/US%20National%20Space%20Policy.pdf; cf. the Clinton Space Policy of 1996: http://history.nasa.gov/appf2.pdf. 62 �� OST Art. XIII as to the activities of international organisations, Liability Convention Arts. XIV–XX, MA Art. 15. See also Chapter 8 for the ITU procedures. 63 �� J. Collier and V. Lowe, Settlement of Disputes in International Law: Principles and Procedures (Oxford: OUP, 1999) (p.b. 2000); J.G. Merrills, International Dispute Settlement, 4th ed. (Cambridge: Cambridge UP, 2008) (p.b. 2005); G.M. Goh, Dispute Settlement in International Space Law: A Multi-Door Courthouse for Outer Space (Leiden: Nijhoff, 2007); L. Viikari, The Environmental Element in Space Law: Assessing the Present and Charting the Future (Leiden: Nijhoff, 2008) 287–316. 64 �� V.S. Vereshchetin, ‘International Court of Justice as a Potential Forum for the Resolution of Space Law Disputes’, in M. Benkö and W. Kroll, eds, Air and Space Law in the 21st Century: Liber Amicorum K.-H. Böcksteigel (Cologne: Carl Heymanns Verlag, 2002) 476–83.

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whether a separate general dispute settlement mechanism or procedure dedicated only to space law questions arising between states remains up for discussion.65 There is an ‘International Court of Aviation and Space Arbitration’ based in Paris.66 Such is suitable for some specialised matters. However, the 2006 Report of the International Law Commission Study Group on ‘Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’ might indicate a general ‘space court’ is undesirable.67 It is sometimes said that space law is a lex specialis, that is a law which, being particularised for space, displaces a rule of general law which might otherwise have application. Too easy a recourse to such argument for space law could be pernicious. Space law should as far as possible be integrated with general international law, and perhaps especially in relation to its environmental rules. As far as space-related disputes between commercial entities are concerned proposals have been made,68 and the International Law Association draft Convention is appropriate for private enterprises.69 However, already the normal business procedures of compromise and arbitration have swung into play.70 As we have pointed out in Chapter 2, commercial secrecy leads to it being unusual for 65 �� See, for example, K.-H. Böcksteigel, ‘Proposed Draft Convention on the Settlement of Space Law Disputes’ (1985) 12 J. Sp. L. 136–40; his ‘The Settlement of Disputes Regarding Space Activities after 30 Years of the Outer Space Treaty’, in G. Lafferranderie, ed., Outlook on Space Law over the Next Thirty Years (The Hague: Kluwer, 1997) 237–49; I.H.P. Diederich-Verschoor ‘The Settlements of Disputes in Space: New Developments’ (1998) 26 J. Sp. L. 41–9; International Law Association: Report of the Space Law Committee (Helsinki Conference, 1996) M. Williams, Rapporteur, 457–76 and International Law Association: Report of the Space Law Committee (Taipei Conference, 1998), M. Williams, Rapporteur, 239–72 with text of a ‘Convention on the Settlement of Disputes Related to Space Activities’ at 249–67. See generally Goh, supra n. 63. 66 �� ‘International Court of Aviation and Space Arbitration: By-Laws and Rules’ (1995) 193 Rev. Fr. de Droit Aérien et Spatial 1–136 (five languages) (Paris: Pedone, 1995). 67 �� ‘Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’ (2006), A/CN.4/L.682 – see http://daccessdds.un.org/doc/UNDOC/LTD/G06/610/77/PDF/ G0661077.pdf?OpenElement and related ILC Conclusions (to appear in 2006 YBILC II, Part 2); http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/1_9_2006.pdf. 68 �� See materials supra n. 65 and Goh, supra n. 63. 69 �� ‘Convention on the Settlement of Disputes Related to Space Activities’, International Law Association: Report of the Sixty-Eighth Conference, Taipei, Taiwan, 1998, 249–67. 70 �� M. Hunter and A. Redfern, The Law and Practice of International Commercial Arbitration, 4th ed. rev. (London: Sweet and Maxwell, 2004); M.L. Moses, The Principles and Practice of International Commercial Arbitration (Cambridge: Cambridge UP, 2008); J.D.M. Lew, L.A. Mistelis and S. Kroll, Comparative International Commercial Arbitration (The Hague: Kluwer, 2003). Cf. the work on dispute settlement of the UN Commission on International Trade Law (UNCITRAL): http://www.uncitral.org/uncitral/en/index.html and the World Trade Organisation (WTO): http://www.wto.org/.

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settlements arrived at through these mechanisms to be made public (let alone the argumentation and the reasoning justifying an award).71 This leaves commentators unable to see how fundamental concepts are being developed. There is a greater transparency where matters end up in national courts through a ‘choice of law’ clause, but this may create other problems. Advisers need both to know and to understand (not always the same thing) the intricacies of the procedures of divergent legal systems and their concepts, and be alive to the possibility that the same term may have a different meaning in different jurisdictions before they can be confident in advising acceptance of a particular contract or a ‘choice of law’ clause. In the remoter future the modalities of government of space bases and space stations will have to be determined. We have mentioned this at the end of Chapter 5. It is a question which we here prefer to postpone to the fifth edition of this book.72 Last there is the possibility that the search for extraterrestrial intelligence (SETI) may succeed.73 Certainly the procedures of the ‘Detection Protocol’ discussed in Chapter 17 may require revision and the draft ‘Reply Protocol’ needs adoption as well as revision. We conclude as we did our other book. SETI raises the correlative question whether there is intelligent life on Earth. We hope the previous pages help to answer that conundrum.

71 �� ‘Absolute secrecy’ on the part of all involved is provided for by Art. 3 of the Rules of Arbitration of the specialised Paris Court (supra n. 66). 72 �� See the last paragraph of our Chapter 5 and G.S. Robinson and H.M. White Jr, Envoys of Mankind: A Declaration of First Principles for the Governance of Space Societies (Washington DC: Smithsonian Press, 1986). 73 �� See Chapter 17.

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Index

Abbreviations 11–12 Aberdeen University, Scotland 11 Academic institutions 11–15 Access to orbits 250–3 Accommodation on the Moon 144 Accursius of Bologna 155 ACE satellite 247 Advertising in space 298–9 Aerial Navigation Acts 158 Aerial remote sensing 415–18 Agreement on the Rescue and Return of Astronauts 1968 (ARRA) astronauts 130–1, 135–8, 140–1, 143 commercial activities 470 contamination 284 flight crews 495 GNSS law 402 Outer Space Treaty (1967) 65–6, 68 space objects 92–3, 97–101, 103 space stations 123 UN treaties on space 81–3 AIAA see American Institute of Aeronautics and Astronautics Air Force Space Command, United States 509–10 Air/space boundary 153–74 Air-space 156–61 ‘atmosphere’ 166–7 definition 154 outer space 161–2 outer space/air-space 163–70, 497 space traffic management 173 transit 171–2 Allen Telescope Array, California (SETI) 543 Alpha Centauri star 541 American Institute of Aeronautics and Astronautics (AIAA) 7, 314–15 American Journal of International Law 15 Ansari X-prize competition (launches) 473 Antarctic Treaty (1959)

Common Heritage of Mankind 64 demilitarisation of Antarctica 512 military use of space 507 model for outer space 55–6 Outer Space Treaty (1967) 69, 180–1, 517 Anti-Ballistic Missile Treaty (1972) 70, 518–19 Anti-satellite action 525–6 Anticipatory self-defence, US 504 Antrix Corporation, India 481 Apollo programme 494 ARABSAT (Arab Corporation for Space Communication) 323, 335, 375–7 Arecibo radio-telescope, Puerto Rica 540, 542–3 Arianespace 24, 379, 444, 472, 570 Armageddon (film) 312 Arms controls 462–6 Arnold, H. General 7 ARRA see Agreement on the Rescue and Return of Astronauts 1968 Ashkenazi, M. 550 ASICC see Australian Space Industry Centre of Commerce Asteroid (film) 312 Asteroids celestial bodies 182, 197 Earth protection 275 future of space law 567, 573 naming 176 Torino Scale 312, 573 Astra (company) 378–9 Astronauts ARRA 130–1, 135–8, 140–1, 143 ‘astronauts’ term 131 criminal activity 140, 145–6 debris 145–6 definition 129–34 health threats 143–4

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ISS 131, 140 missions 147–51 moon 135, 139 Outer Space Treaty 65–6 protection 141–6 radiation 143–4 rescue 134–41 return 134–41 sea re-entry 138–9 space-suits 144 Astronomy debris 283 environmental regulation 282–3 light pollution 282–3 ‘Atmosphere’ 166–7 Australia Christmas Island Launch Centre 475 commercial activities 474–9 launch permits 476–7 maximum probable loss 477 Radiocommunications Act (1972) 475 Registration Convention (1975) 475 remote sensing 426 Space Activities Act (1998) 169, 478 Space Launch Act 475–6, 478 US launches 477 Australian Space Industry Centre of Commerce (ASICC) 474 Aviation Protocol 451–2 Baikonour Cosmodrome, Kazakhstan 284 Barcelona Traction case 69 BBC World Service 266 Beidou navigation system (China) 391, 399, 401, 519 Bernstein v. Skyviews case 418 Bigelow Aerospace Company 496 Binding protocols (SETI) 55–6 Blanchard, Pierre 156 BNSC see British National Space Centre Böcksteigel, Professor H. 11–15 Bogota Declaration (1976) 61–2, 253–6, 497 Boundaries and the future of space law 564 Boundary definition 171 ‘Breathable air’ 5 British Interplanetary Society 7 British National Space Centre (BNSC) 24, 314, 487–8

Broadcasting and radio 321–2 Bush, President G.W. 161–2, 178, 510 Cable systems for telecommunications 320–1 Canadian Space Agency 25 Cape Town Convention on mobile equipment (2001) 446–52, 456, 471 Caroline incident, Buffalo, US 504 CCIF see Consultative Committee for Telephone CCIR see Consultative Committee on Radio CCITT see Consultative Committee for Telephone and Telegraph CCSDS see Consultative Committee for Space Data Systems Celestial bodies 175–97 asteroids 197 common heritage 193–7 Moon Agreement (1979) 181–3 Moon exploitation 190–192 Moon exploration 186–190 Outer Space Treaty (1967) 179–181 sovereignty 183–5 Centre Nationale d’Etudes Spatiales (CNES) 11, 23–4 CEPT see European Conference on Posts and Telecommunication CETEX see Committee on Contamination by Extraterrestial Exploration CETS see European Conference on Satellite Communications Charney, J.J. 76 Chernobyl nuclear accident 288, 429 Chicago Convention see Civil Aviation Convention (1944) Chicxulub Crater, Yucutan, Mexico 312 Childhood’s End 530 China Beidou navigation system 391, 399, 401, 519 commercial activities 479–81 Commission for Science 480 military power 508–9 Moon Agreement (1979) 479 Chinese Military Products Export Control List 480 Cheng, Bin 68

Index CHM see common heritage of mankind Christmas Island Launch Centre, Australia 475 Christol, Carl C. 80 Civil Aviation Acts, UK 417–18 Civil Aviation Convention, Chicago (1944) 136, 159–60, 164, 167, 416 Civil law securities and international trade law 444–6 Claims Commission for space objects 112–13 Clarke, Arthur C. 7–8, 248, 322, 550 CLCS see Committee on the Limits of the Continental Shelf CNES see Centre Nationale d’Etudes Spatiales COCC see Code of Crew Conduct Cocconi, Guiseppe 541–2 COCOM see Coordination Committee for Multilateral Export Controls Code of Crew Conduct (COCC) 123, 146 Cold War 501 Cologne University, Germany 11–15 Columbia space shuttle disaster 119 COMEST see Commission on the Ethics of Scientific Knowledge and Technology Comets see celestial bodies Commercial activities 467–97 Australia 474–9 China 479–81 conclusions 496–7 India 481–3 individual states 473–4 obligations 468–73 Office for Outer Space Affairs 468 Russia 483–6 United Kingdom 486–8 United States 488–95 Commercial Space Launch Act (CSLA), US 273, 489–90, 493, 495 Commission on the Ethics of Scientific Knowledge and Technology (COMEST) 151 Commission on International Trade Law (CITRAL) 443–4 Commission on the Limits of the Continental Shelf (CLCS) 196, 567

579

Commission for Science, China 480 Committee on Contamination by Extraterrestial Exploration (CETEX) 284 Committee on the Peaceful Uses of Outer Space (COPUOS) advertising in space 298 Antarctica Treaty 508 astronauts 130 ‘boundary question’ 163, 496 commercial activities 468 contamination 291 custom 43 description 18–22 direct satellite broadcasting 259–60, 263, 265 future of space law 563–5 GNSS law 402 INTELSAT 327 liability for space objects 104 military uses of outer space 511–12, 523–4 Moon 181, 193 near-Earth environment 293 Outer Space Treaty (1967) 53, 56, 63, 67, 77 outer space/air-space 163, 169 planetary defence 315–17 registration of space objects 84 remote sensing from space 419–22, 425 SETI 554, 556 space debris 301, 307, 309 space treaties 42 United Nations GA 37, 45–9, 83, 104 Committee on Space Research (COSPAR) 39, 284–7, 552 Common heritage of mankind (CHM) Antarctic Treaty 64 Moon 193–7 Commonwealth Scientific and Industrial Research Organisation (CSIRO) 474 Communications Act (2003), United Kingdom 466 Compensation and space objects 114–16 Compton Gamma Ray Observatory 119 COMSAT (Communication Satellite Company)

580

Space Law

Definitive INTELSAT 330–1 history 323–5 INMARSAT 348 interim INTELSAT 327 INTERSPUTNIK 367 privatisation 382–3 telecommunications companies 322 Consultative Committee for Radio (CCIR) 203, 217 Consultative Committee for Space Data Systems (CCSDS) 58 Consultative Committee for Telephone (CCIF) 201 Consultative Committee for Telephone and Telegraph (CCITT) 201, 207 Contamination COSMOS 954 satellite 287 environmental regulation 283–91 Moon Agreement (1979) 285–6 nuclear 289 Contract law 33 Convention on Law of the Sea 1982 (UNCLOS) 563 Cooper, John Cobb 9, 12, 167 Coordination Committee for Multilateral Export Controls (COCOM) 459–60 COPERS see European Commission on Space Research COPUOS see Committee on the Peaceful Uses of Outer Space Corfu Channel, Case of 1949 277 Cosmonauts see astronauts COSMOS 954 satellite 117, 287, 293 COSPAR see Committee on Space Research Council of Europe 26 Crime astronauts 140, 145–6 environmental regulation 278 International Space Station 145–6 space objects 94 Cross-waivers of liability 33–4, 123, 492 CSIRO see Commonwealth Scientific and Industrial Research Organisation CSLA see Commercial Space Launch Act Customary law and Outer Space Treaty (1967) 70–80 D’Angles, Count 156 Danish National Space Center 23

Danse Macabre (book) 1 DARA (Deutsche Agentur fur Raumfahrtangelegenheiten) 24 David Davies Memorial Institute of International Studies, UK 15 DBS see direct satellite broadcasting Debris see space debris ‘Declaration of Genk’ (night sky) 283 Declaration of Principles (Outer Space Treaty) 65, 511 Deep Impact (film) 312 Definition of Space Law 2 Definitive INTELSAT 328, 330–7, 371 Department of Commerce (DOC), US 463 Department of Defense (DOD), US 463 Department of Humanitarian Affairs, UN 430 Department of State (DOS), US 463 Department of Transport (DOT), US 495 Deutsche Forschungsanstalt für Luft– und Raumfahrt (DLR) 24 Digital Divide (ITU) 221 Diplock, Lord 31 Direct Broadcasting Principles 259, 264 direct satellite broadcasting (DBS) 256–69 content 258, 265–7 distribution of signals 263 jamming 267–8 MacBride Report 262 Outer Space Treaty (1967) 260 United Nations resolutions 259, 268–9 DLR see Deutsche Forschungsanstalt für Luft- und Raumfahrt DOC see Department of Commerce, US DOD see Department of Defense, US DOS see Department of State, US DOT see Department of Transport, US Drake Equation 536–8, 543 Drake, Frank D. 536 EARC see Extraordinary Administrative Radio Conference (1963) Earth gravity 166 meteorites 312

Index orbits 245–56 protection 282 remote sensing from space 421–5 spheroid shape 249 EBU see European Broadcasting Union ECSL see European Centre for Space Law EGNOS see European Geostationary Navigation Overlay Service Eisenhower, Dwight D. 180, 320, 417, 507–8 ELDO see European Launcher Development Organisation Electromagnetic radiation and SETI programmes 541 ELF see extremely low frequency Environment and Development conference (UNCED), Rio de Janiero (1972) 277 Environmental regulation 275–318 astronomy 282–3 contamination 283–91 Corfu Channel Case of 1949 277 crime 278 near-Earth environment 291–5 planetary defence 311–18 space 282 space debris 301–11 space objects in orbit 296–300 space traffic management 300 Stockholm Declaration (1972) 277 Trail Smelter Arbitration 277 Epsilon Eridani star 542 ESA see European Space Agency ESC see European Space Conference ESRO see European Space Research Organisation ETI see Extraterrestial Intelligence EU see European Union EUMETSAT (European Organisation for the Exploitation of Meteorological Satellites) 427, 431–2 European Broadcasting Union (EBU) 356 European Centre for Space Law (ECSL) 13–14 European Commission on Space Research (COPERS) 26

581

European Conference on Posts and Telecommunication (CEPT) 325, 356–7 European Conference on Satellite Communications (CETS) 325, 356 European countries space organisations 23–4 European Geostationary Navigation Overlay Service (EGNOS) 400, 409 European Launcher Development Organisation (ELDO) 26, 356 European Space Agency (ESA) activities 25–8 Arianespace 24, 379, 444, 472, 570 classified information 459 disasters 434 EGNOS 400 European launch services 472 EUTELSAT 356–7 future of space law 563 Galileo system 396 GMES 435–6 GNSS law 402 history 13–14 ISS 121 launch sites 570 launches 444 remote sensing from space 426–7 space debris 308 space law 23 threats from space 317 European Space Conference (ESC) 356 European Space Research Organisation (ESRO) 26–7, 356, 431 European Union (EU) EGNOS 400 Galileo project 395–6, 398 GNSS law 402 night sky protection 283 privatised EUTELSAT 360 space law 28–9, 35 EUTELSAT (European Telecommunications Satellite Organisation) 106, 266 history 356–60 INMARSAT 358, 361 NTELSAT 335, 343, 358 INTERSPUTNIK 375

582

Space Law

privatisation 380, 385 privatised 360–4 telecommunications companies 319, 323, 335 Extraterrestial Intelligence 533, 534–40 dangers 551 Drake Equation 536–8 hoaxes 552–3 mutual relationships 556 religions 550 transmissions 542 Extraordinary Administrative Radio Conference (1963) (EARC) 233, 250–1 Extraterrestial matters see Search for Extraterrestial Intelligence Extremely low frequency (ELF) 231 FAA see Federal Aviation Administration Fasan, Ernst 557–8 Fauchille, Paul 157 FCC see Federal Communications Commission Federal Aviation Administration (FAA), US 452, 490–1, 493–4 Federal Communications Commission (FCC), US 383–5, 393, 456–7, 465–6, 493 Fermi, Enrico 536 Flight crews 494–5 Finance of International Telecommunication Union 210–14, 240–3 ‘First evidence: first contact’ and SETI 549–51 First World War 158, 202–3 ‘First-come, first-served’ policy (ITU) 96, 238 Fitzmaurice, Gerald 79–80 Forums 23–5 Franco–Prussian War (1870–1) 157 Fudge 20, 22 Future of space law 558–75 boundaries 564 International Court of Justice 571–3 International Space Station 563 liability 572–3 militarisation 573 Moon Agreement (1967) 567–8, 573 outer space traffic 566

Outer Space Treaty (1967) 558, 567, 569–70 planetary defence 565 ‘public service’ concept 570 rights and duties of states 569 Search for Extraterrestial Intelligence 575 space tourism 565–6 space tragedies 566 ‘stakeholder’ concept 570 GAGAN navigation system 401 Galileo navigation system 391, 395–8 spacecraft 288 Geneva Convention (1949) 310, 502, 527 George Washington University, Washington DC, US 13 Georgetown Law Center, Washington, US 11 Geostationary Orbit (GSO) 61, 234, 236–8 Bogota Declaration 256 boundary of outer space 497 description 246–7, 248–51 direct satellite broadcasting 258 radio frequencies 571–2 Simon Bolivar satellite 377 solar power 270–1 space objects 296 Geostationary Transfer Orbit (GTO) 246 Geosynchrous orbit (GO) 246, 248 German Aerospace Centre 24 German Journal of Air and Space Law 11 German Meteorological Services 430 German Rocket Society 7 ‘Global Commons’ concept 280–1 Global Maritime Distress and Safety System (GMDSS) 351, 353–4 ‘Global Monitoring for Environment and Security’ (GMES) 435–6 Global navigation satellite systems (GNSSs) 389–409, 519 augmentation 399–401 Beidou system 391, 399 future 409 Galileo 391, 395–8 GLONASS 394–5 GPS 391–4, 395, 397 inter-operability 401–2

Index international law 406–9 law 402–6 maritime navigation 400 military uses 500 Radio Regulations 406 redundancy 399–401 solar power 273 space assets 458 Global positioning system (GPS) military uses of outer space 500, 519–20 navigation systems 391–4, 397–8, 401 GLONASS military use of outer space 519 navigation systems 391, 394–5, 401 GMDSS see Global Maritime Distress and Safety System GMES see ‘Global Monitoring for Environment and Security’ GNP see Gross National Product GNSSs see global navigation satellite systems GO see geosynchrous orbit Göedhius, D. 12 Goldstone radio-telescope, California 542 Google Earth 414 Gorove, S. 12 Gravity 103, 166 Gross National Product (GNP) 210, 240 GSO see Geostationary Orbit GTO see Geostationary Transfer Orbit Haley, A.G. 9, 535, 556–8 HCOC see The Hague International Code of Conduct against Ballistic Missile Cooperation Health threats to astronauts 143–4 Heaviside layer 199 HEO see highly elliptical earth orbit High Resolution Microwave Survey (SETI) 542, 547, 549 Highly elliptical earth orbit (HEO) 245–6 History of space law pre-Second World War 4–8 post-Second World War 8–10 Hoaxes and Extraterrestial Intelligence 552–3 Hobe, Professor S. 11–15 Hohfeld, W.N. 32

583

Holmes, O.W. 556 Hubble telescope 531 Hydrogen in the universe 543 IAA see International Academy of Astronautics IADC see Inter-Agency Space Debris Coordination Committee IAEA see International Atomic Energy Agency IAF see International Aeronautical Federation IASL see Institute of Air and Space Law, Montreal, Canada IAU see International Astronomical Union ICAO see International Civil Aviation Organization ICJ see International Court of Justice ICO see Intermediate Circular Orbit ICO Global Communications INC. 384 ICSC see Interim Communication Satellite Committee IFRB see International Frequency Registration Board IGA see Intergovernmental Agreement IISL see International Institute of Space Law ILA see International Law Association IMCO see International Maritime Consultative Organization IMO see International Maritime Organisation IMSO see INMARSAT India Antrix Corporation 481 commercial activities 481–3 GAGAN navigation system 401 INSAT 377 space commerce 482 space organisations 481 telecommunications 482–3 Indian Space Research Organisation (ISRO) 23, 401, 481–2 INDOSAT (Indonesia) 378 Informal standards for space law 38–9, 51 INMARSAT (International Mobile Satellite Organisation) agreement 79, 273, 351–5, 387

584

Space Law

commercial activities 468 COMSAT 324 definitive INTELSAT 335 EUTELSAT 358, 361 history 344–50 IMSO 350–5 INTERSPUTNIK 367 Military use of outer space 346, 521, 524–5 privatisation 350–2, 380, 383–5 privatised INTELSAT 337 satellite services 409 solar power 272 telecommunication companies 319, 323 United Kingdom 488 INSAT (India) 377 Institute of Air and Space Law (IASL) Cologne University, Germany 507 Montreal, Canada 12 Instituto Nacional de Technico Aerospatial (INTA) 23 Insurance and space objects 114–16 INTA see Instituto Nacional de Technico Aerospatial Intellectual property and space objects 124–7 INTELSAT (International Telecommunication Satellite Organisation) 325–37 ARABSAT 376 commercial activities 468, 471 companies 319, 322–3 COMSAT 324 creation 26, 326 Definitive 328, 330–7 EUTELSAT 357 future of space law 570 INMARSAT 345, 351 interim INTELSAT 325–9 INTERSPUTNIK 367, 369, 371–2, 375 military use of outer space 521 new operating procedures 342–3 new organisation (ITSO) 338–40, 387 New Skies NV 92 Outer Space Treaty (1967) 79 privatisation 380–5 privatised 337–43 public opinion 385–7 solar power 272

USSR 326–7, 336 Zeus Holdings 341–2 Inter-Agency Space Debris Coordination Committee (IADC) 23, 38, 308, 493, 529, 563 Interagency Operations Advisory Group (IOAG) 38 Intergovernmental Agreement (IGA) criminal activity in ISS 145 space stations 122–3 Interim Communication Satellite Committee (ICSC) 326–8 Interim INTELSAT 325–9, 356 Intermediate Circular Orbit (ICO) 246, 296 International Academy of Astronautics (IAA) 8–10 International Aeronautical Federation (IAF) 8–10, 554 ‘International Air Law’ 163, 170 International Astronomical Union (IAU) 175–6, 283, 298 International Atomic Energy Agency (IAEA) 273 International Charter on Space and Major Disasters 433–4 International Civil Aviation Organisation (ICAO) 15, 160, 353, 402, 407–8, 562 International Convention on Air Navigation, Paris (1919) 159 International Court of Aviation and Space Arbitration, Paris 574 International Court of Justice (ICJ) 279–81, 571–3 ‘International crime’ concept 278 International Darksky Association 283 International Frequency Registration Board (IFRB) 203, 217, 229 International Geo-physical Year (1957–8) 320 International Institute of Space Law (IISL) 8–10, 536 International Institute for the Unification of Private Law see UNIDROIT International Mobile Equipment Convention, Cape Town (2001) 446–52, 456, 471 International Launch Services (ISL) 472

Index International Law Association (ILA) 10, 14, 168, 573–4 International Law Commission (ILC) and the environment 276, 278–9, 284, 303 ‘International Liability for Injurous Consequences’… legislation 278 International Maritime Consultative Organization (IMCO) 344 International Maritime Organisation (IMO) 408 International Mobile Satellite Organisation see INMARSAT International Sea-Bed Authority 64 International Space Agency (proposal) 560 International Space Law Centre, Kiev 13 International Space Station (ISS) agreement 274 Code of Crew Conduct 123 crime 145–6 future of space law 563 military use of outer space 525, 531 rescue 140 space stations 122–3, 126 ‘space tourists’ 131 International Space University (ISU) 12 International Telecommunication Union (ITU) Antalya, Turkey conference 206, 211, 213 Atlantic City, US conference (1947) 203 Bogota Declaration 255 Constitution 42, 64, 470, 568–71 Council 215–16 Development Sector 213, 214, 218–21 Digital Divide 221 Direct satellite broadcasting 257–8, 266 disasters 435 equatorial states 62 finance 210–14, 240–3 first-come, first-served policy 238 formation 203 future of space law 561–2 Geneva, Switzerland conference (1992) 205 Geostationary Orbit 246

585

global navigation satellite services 406, 409 history 200–6 instruments 206 ‘ITU Telecom’ 236 Kyoto, Japan conference 235 laws of physics 572 Malaga–Torremolinos conference (1973) 251 Master International Frequency Register 96 membership 207–9 military use of outer space 520–1 Minneapolis, US conference (1998) 205–9, 209, 213, 251 Nice, France conference (1989) 204–5 orbits 250, 251–2 Outer Space Treaty (1967) 212 ‘phantom satellite’ 96 Plenipotentiary conferences 205–6, 215 problems and solutions 235–44 radio communication 229–35 radio matters 199–244 Radio Regulations 167, 296, 351 Radio Regulations Board 57, 227–9 Radiocommunication Sector 214, 224–7, 232–6, 239, 241, 571 satellites 300, 457 Search for Extraterrestial Intelligence 545, 546, 548 Secretariat 217 Secretary General 217 Sectors 217–27 space objects in orbit 296 space responsibilities 200 Standardisation Sector 214, 222–4 structure 214 telecommunications traffic 326–7 Tonga 253 United Nations 15, 81 United States 30 International Telegraph Union 201 International trade law 443–66 Cape Town Convention 446–52 civil law securities 444–6 national security 458–62 space assets protocol 446–52, 452–8 trade restrictions 458–62

586

Space Law

unilateral arms controls 462–6 International Traffic in Arms Regulations (ITAR) 463 Internet 568 INTERSPUTNIK definitive INTELSAT 335 INMARSAT 345 original INTERSPUTNIK 365–8 privatisation 380 Protostar Ltd 570 revised INTERSPUTNIK 368–75 telecommunication organisation 323 IOAG see Interagency Operations Advisory Group ISL see International Launch Services Israel and US remote sensing 441–2 ISRO see Indian Space Research Organisation ISS see International Space Station ISU see International Space University ITAR see International Traffic in Arms Regulations ITSO see INTELSAT (International Telecommunication Satellite Organisation) ITU see International Telecommunication Union ‘ITU Telecom’ 236 James Webb Space Telescope 247 Jansky, Karl J. 541 Japan Multifunctional Transport Satellite Programme (MSAS) 401 Quasi-Zenith Satellite System (QZSS), Japan 401 remote sensing 426 Japan Aerospace Exploration Agency (JAXA) 13 Jeffries, J. 156 Jenks, C.W. 49, 282, 558 Journal of Space Law 12 Kellogg–Briand Pact (1928) 501 Kennedy, President 55, 320, 323 Khruschev, President 417 Kiev University, International Space Law Centre 13

King, Stephen 1 Korovin, E. 6 Kyl–Bingaman Act 441 LAAS see Local Area Augmentation System Lachs, M. 3, 10, 14, 50 Lacunae 31 Lafferranderie, Dr G. 13 Lagrange, J.-L. 248 Lagrange points 166, 247–8, 270 Land Remote Sensing Policy Act (1992) 438 Landsat satellites 426, 438–9 Laude, Emile 4 Launches Australia 474–7 China 480 costs 472 India 481–2 launchers 116, 508 laws 444 organisations 472 pollution 284 Russia 483–6 United Kingdom 486–8 United States 472–3, 489–95 ‘Law of contract’ 33 Law of Physics 230, 561, 572 Law of the Sea 76, 157–8, 559 Law of the Sea Convention (1982) (UNCLOS) 64, 68, 182, 186, 196–7 Law of Space 2 Lee, R.J. 478 Legality of the Use by a State of Nuclear Weapons in Armed Conflict 279–80 Leiden (The Netherlands) Institute of Air and Space Law 12 LEO see low Earth orbit Lex specialis 560, 574 Liability cross-waivers 33–4, 123, 492 future of space law 572–3 Russian law 485–6 space objects 103–14, 114–16 Liability Convention (1972) air-space boundary 171 Australian Launch Act 478

Index commercial activities 467, 471 contamination 240 COSMOS 954 117 damage by space objects 105–14 environmental regulation 284 future of space law 564, 569 GNSSs law 402 India 482 INTELSAT satellites 92 launching state 289 near-Earth environment 295 Outer Space treaty (1967) 67 private launches 273 Russia 486 Skylab 117 space assets protocol 455–6 pace exploration 81–3 UN treaties on space 81–3 United Kingdom 487 United States 489, 492–3 Light pollution and astronomy 282–3 ‘Lighthouse’ effect 164 Lilley, John 536 Local Area Augmentation System (LAAS) 400 Long-duration missions 147–51 Long-range missions 147–51 Low Earth orbit (LEO) boundary 171 orbits 245–7 signal frequency variation 249 solar power 270 space debris 304 space objects 96, 296 space traffic management 300 ‘Lunacy’ term 177 MA see Moon Agreement of 1979 ‘MacBride Report’ on direct satellite broadcasting 262 Magna Carta of Space 53–4 Malina, R.R. 550 Mandl, V. 5–6 Manfred Lachs Moot Court competition 10, 14 Marconi, G. 201, 541 MARISAT satellites 348 Maritime Law33, 559

587

Maritime navigation 400 MAROTS Council 357–8 Mars 147, 531, 539, 549, 567, 573 Martin Marietta v. INTELSTAT 34–5 Master International Frequency Register (MIFR) 96, 232, 239, 406–7, 520, 546, 571 Maximum probable loss (MPL), Australia 477 McGill University, Canada 12 Medium Earth orbit (MEO) 246–7, 296, 391, 394, 395 Memoranda of Understanding (MOUs) 37–8, 51, 122 MEO see medium Earth orbit Metalaw and Search for Extraterrestial Intelligence 556–8 Meteor (film) 312 Meteorites 182, 197, 311–312 Meteorology, remote sensing 430–2 Meteors 275, 313 Meyer, Alex 50 Mignonette (boat) 149 Militarisation and the future of space law 573 Military use of outer space 499–532 conclusions 531–2 context 501–6 history 506–10 military action 525–30 North Korea 509 space-specific international law 510–25 Stimson Foundation 529–30 Multifunctional Transport Satellite Programme (MSAS), Japan 401 Mir (Russian space station) 118–19, 120 Missile Technology Control Regime (MTCR) 461–2, 530 Missions (range and duration) 147–51 Mississippi University, US 12 Montevideo Convention on Rights and Duties of States (1933) 569 Montgolfier brothers 156 Moon 175–97 accommodation 144 astronauts 135, 139 celestial bodies 175 common heritage 193–7 contamination 69

588

Space Law

economic uses 531 exploitation 190–2 exploration 186–9, 531, 539 landing 181 long-range missions 147 ‘lunacy’ term 177 meteor impacts 311–12 military use 516 nomenclature 175–9 Outer Space Treaty of 1967 65, 179–81, 182–3, 183–8, 190 property rights 42 race 508, 512 Search for Extraterrestial Intelligence 548–9 ‘shielded zone’ 549 solar power 270–1, 273–4 sovereignty 183–5 space objects 297–8 space race 180 tides 177 title 183–5 Moon Agreement (MA) of 1979 181–3 astronauts 131 China 479 commercial activities 468 common heritage 194–6 contamination 285–6 environmental regulation 275 exploitation 64 exploration 186–9 Extraterrestial Intelligence 551 future of space law 567–8, 573 military uses of outer space 518 Outer Space Treaty (1967) 65, 178 radio telescope 549 Search for Extraterrestial Intelligence 549 UN treaties on space 81–3 see also Moon Morrison, P. 541–2 Mouton, M.W. 173 MS see multispectral MTCR see Missile Technology Control Regime Multispectral (MS) sensors 413 Municipal (domestic) space law 32–7 Musso, P. 550

Mylar balloon 297 NASA see National Aeronautics and Space Administration National Aeronautics and Space Act, US (1958) 488 National Aeronautics and Space Administration (NASA) commercial activities 488–9 Compton Gamma Ray Observatory 119 Explorer satellites 297 high Resolution Microwave Survey for SETI 542, 547, 549 Moon radio telescope 548 near-Earth environment 295 planetary defence 315 satellites retrieval 102 skylab 120 space objects 117 United States 30 National Defense Appropriation Act, US 441 National Environmental Policy (NEPA) 491, 493 National Geospatial Intelligence Agency (NGA) 437–8 National Oceanic and Atmospheric Administration (NOAA) 437, 439–40, 493 National Space Policy of United States 510, 527–8, 531 NATO 398, 463 Near-Earth environment (regulation) 291–5 Near-Earth objects (NEOs) 311, 314, 316 Nebraska University, Lincoln, US 13 Nemitz, Gregory 185NEOs see near-Earth objects NEOSSAT (Near Earth Object Surveillance Satellite) 314 NEPA see National Environmental Policy New International Economic Order (NIEO) 568 New Skies NV (company) 471 NGA see National Geospatial Intelligence Agency Niagara River (customary international law) 504

Index NIEO see New International Economic Order NOAA see National Oceanic and Atmospheric Administration North Korea and military use of space 509 North Sea Continental Shelf (1969) 72–6 Nuclear Power Principles 119, 289 Nuclear Principles 293 Nuclear reactors 294 Nuclear Test Ban Treaty (1963) 56, 292, 511, 514 Nuclear weapons in armed conflict 279–80 ‘Nüremberg Code’ 142 Nüremburg Tribunal 502 Oates, T. 150 OATS (Andean Telecommunication Satellite Organisation) 323, 377 OCHA see Office for the Coordination of Humanitarian Affairs Office for the Coordination of Humanitarian Affairs (OCHA) 435 Office for Outer Space Affairs (OOSA) commercial activities 468 launch notification 89 launch registration 92–3 military use of outer space 521 moon exploration 187 Outer Space Treaty (1967) 69 Registration Convention 454–5 remote sensing 429 United Nations 17 ORBIT Act (US) 341–2, 351, 383–4, 384–5 Orbital test satellite (OTS) programme 357 Orbits 245–53 access 250–3 Geostationary Orbit 248–50 International Telecommunication Union 250 Lagrange points 247–8 Outer Space Treaty (1967) 250 OST see Outer Space Treaty of 1967 OTS see orbital test satellite Outer Space Act (1986), United Kingdom 486 Outer space traffic management 566 Outer Space Treaty of 1967 (OST)

589

air leaks 148 air/space boundary 153–4, 171, 497 astronauts 129 Bogota Declaration 254–5 commercial activities 467, 469–72 contamination 285, 533 Customary Law 70–80 Declaration of Principles 65 description 57–69 environmental regulation 276 finance of ITU 243 future 558, 567, 569–70 global navigation satellite services 402–5 health threats to astronauts 143–4 India 482 International Telecommunication Union 212 introduction 53–7 ‘launching state’ 289 liability for space objects 104–5 ‘Magna Carta of Space’ 53–4 military use of outer space 517, 523, 528–9 Moon 135, 179–81, 182–3, 183–8, 190, 274 Moon Agreement (1979) 65, 178 near-Earth environment 292–5 orbits 250 outer space/air space boundary 165 planetary defence 313 propaganda 260 public international space law 41, 48–9 ratification 77 remote sensing 418–22, 425, 429, 437 rescue of astronauts 134–5 Resource Utilisation Fee 565 SBSP satellites 273 SETI 544–5, 551 space debris 301–3, 307, 310 space objects 81–2, 83–4, 94, 300, 496–7 space stations 123 ‘space vehicle’ 133 space-specific international law 510, 512–14 Outer space/air space ‘boundary question’ 163–70

Space Law

590 differentiation 162 functionalist approach 169–70 outer space boundary 161–2, 497 spatialist approach 165–9

PAGEOS I satellite 297 PALAPA 323, 335, 378 PAN see panchromatic PANAMSAT 335 Panchromatic (PAN) sensors 413 Paris Conference 158–9, 201, 415 Paris Convention on Aerial Navigation 4, 72, 415, 415–16 Paris University, France 12 Parker, Richard 148–9 Patents in Space Act (1990) 125 Paul Allen Foundation (Allen Telescope Array) 543 Pearl Harbor attack (1941) 507 Photography 4113 Pickering v. Rudd case 156 Pioneer probes 539 Planetary defence 311–18, 565 Pluto 176 Post Detection Protocol (SETI) 552, 575 Potočnik, Herman 248 PPS see Precise Positioning Service Precise Positioning Service (PPS) 392 ‘Principles Relating to the Remote Sensing of Earth from Outer Space’ 421–9, 429–30 Privatised EUTELSAT 360–4 Privatised INTELSAT 337–43 Project 2001 11–15 Project Ozma (SETI) 536, 542 Project Phoenix (SETI) 543 Project Serendib (SETI) 542 Protection astronauts 141–6 Earth 282 Protocols for SETI 551–6 Protostar Ltd (company) 570 PRS see Public Regulated Service Public International Space Law 39–43 Public Regulated Service (PRS) for GNSSs 397 ‘Public service’ concept and future of space law 570

Quasi-Zenith Satellite System (QZSS), Japan 401 Radiation and astronauts 143–4 Radio broadcasting 321–2 communication 229–35 First World War 202–3 frequency assignment 232 International Telecommunication Union (ITU) 199–244 introduction 199–200 Master International Frequency Register 232 Search for Extraterrestial Intelligence 543 Second World War 203 telecommunications 321 Radio frequencies and Geostationary Orbit 571 Radio Regulations Board (ITU) 57, 227–9 Radio Regulations (RR) 167 air/space boundary 257 disputes 230 ‘earth station’ 250 frequency allocation 231–2, 237 future of space law 569 global navigation satellite systems 406 International Telecommunication Union 351 satellite emissions 299 SETI 545–6, 548 space radio 233–4 Radio Telegraphic Convention, Berlin (1906) 202 Radiocommunications Act of 1972 (Australia) 475 Radioisotope thermoelectric generators (RTG) 293, 295 Re-entry of satellites 116–17, 138–9, 172 Recommendations for space law 38–9, 51 Regina v. Dudley and Stevens 148–9 ‘Register of Objects Launched into Space’ 304 Registration Convention (1975) astronauts 131

Index Australia 475 commercial activities 467, 470 contamination 290 future of space law 569 GNSSs law 402 launching state 92, 274 military use of outer space 521 Office for Outer Space Affairs 454–5 Outer Space Treaty 67 revision 91, 95–6 space objects 84–5, 93 transfer of responsibilities 93 UN treaties on space 81–3 United Kingdom 488 withdrawal 90 Registration of space objects 84–96 Relief web website 430 Religions and Extraterrestial Intelligence 550 Remote sensing 411–42 aerial 415–18 disasters 432–6 landsat satellites 436, 438–9 meteorology 430–2 military use of outer space 522 protection of data 428 ‘resolution’ 413–14 space 418–29, 429–30 Spot Image 438 technology 413–14 ‘temporal resolution’ 414 United States 437–42 Remote Sensing Principles of 1986 64 Reply-communications Protocol (SETI) 553–5, 555–6, 575 ‘Resolution’ in remote sensing 413–14 Resolutions direct broadcasting 259, 268–9 space law 37–9, 51 United Nations GA 43–50, 51, 511 Resource Utilisation Fee 565 Retrieval of satellites 102 Return of space objects 96–102 Reusable launch vehicles (RLVs) 493–5 Rio Declaration on Environment and Development (1992) 432 ‘Ring of Light’ 298 RLVs see reusable launch vehicles

591

Rockets, ‘V’, 7, 507 ROSCOSMOS (Russian space organisation) 1, 59, 563 RR see Radio Regulations RTG see radioisotope thermoelectric generators ‘Rule of Nationality Claims’ 111 Russia commercial activities 472–6 Law on Space Activity 484 liability 485–6 USSR space launch sites 483 ROSCOSMOS 1, 59, 563 Russian Federation Law (space activities) 115 Russian Space Agency 484–5 Safety of Life at Sea (SOLAS) Convention (1974) 351 Salvador University, Buenos Aires, Argentina 13 Salyut 7/Cosmos 1686 space station 118 SASR see Satellite Search and Rescue System Satellite Search and Rescue System (SASR) 137 Satellites communications see ITU, radio gravity 103 Lagrange points 247 launch costs 472 re-entry 172 retrieval 102 space objects 297 telecommunications 319–23 weather forecasting 430 SBSP see space-based solar power Scaled Composites (company) 473 Schönborn, W. 6 Scott, R.F. 150 Sea re-entry of astronauts 138–9 Search for Extraterrestial Intelligence (SETI) 39, 533–88 COPUOS 554 Extraterrestial Intelligence 533, 534–40 first evidence: first contact 549–51 future 575 interference with observations 547–8

592

Space Law

law 544–9 Metalaw 556–8 Moon Agreement (1967) 549 NASA High Resolution Microwave Project 542 Outer Space Treaty (1967) 544–5 programmes 540–4 Project Ozma 536, 542 Project Phoenix 543 Project Serendib 542 protocols 551–6 radio 543 radio astronomy 546–7 Radio Regulations 545–6, 558 Second World War launchers 508 radio 203 radio astronomy 541 rockets 507 SES-Global (company) 319, 323, 378–9 SETI see Search for Extraterrestial Intelligence SETI League Inc. 553–4 SFCG see Space Frequency Coordination Group Simon Bolivar satellite 377 Skylab117, 120 Soft law 50–2 Sohn, L.B. 76 SOHO satellite 247 Solar power 269–74 geostationary orbit (GSO) 270 low Earth orbit (LEO) 270 Moon 270–1 Solar power from space (SPS) 269, 271–2 Sources of space law Custom 42–3 introduction 31–2 memoranda of understanding 37–8, 51 municipal (domestic) space law 32–7 Public International Space Law 39–42 recommendations 38–9 soft law 50–2 UN Resolutions 43–50 Sovereignty in space 61 Space Activities Act (1998), Australia 169, 478 Space assets protocol 452–8

‘Space Cluttering and Contamination’ 282 Space debris astronauts 145–6 astronomy 283 environmental regulation 301–11 spacecraft 306 Space Exploration Technologies (company) 473 Space Frequency Coordination Group (SFCG) 38 Space Launch Act (Australia) 475, 478 Space Law (book) 282 ‘Space Millenium: Vienna Declaration on Space and Human Development’ 1, 568 Space objects 81–127 Claims Commission 112–13 Columbia space shuttle 119 compensation 114–16 control 83–96 Cosmos 954 117 geostationary orbit (GSO) 296 insurance 114–16 intellectual property 124–7 jurisdiction 83–96 liability 103–14, 114–16 low Earth orbit (LEO) 296 NASA 117 orbits and environmental regulation 296–300 practice 116–20 registration 84–96 responsibility 83–96 return 96–102 Salyut 7/Cosmos 1686 space station 118 satellites 297 Skylab 117 space stations 120–4 Space Policy Determination (2006) 161 Space Principles 511 Space Protocol (2001) 446–52 space race 180 UN treaties 81 Space resolutions Outer Space Treaty (1967) 54–5, 62 United Nations GA 43–50, 51, 511 Space Shuttle 119, 170

Index ‘Space Station Freedom’ 121 Space stations IGA Agreement 122–3 salyut7/Cosmos 1686 118 space objects 120–4 see also International Space Station Space tourism 42, 131–2, 565–6 Space traffic management 173, 300 ‘Space vehicle’ 133 Space-based Information for Disaster Management and Emergency Relief (SPIDER) 436 Space-based Information System for Disaster Management (SPIDER) 436 Space-based solar power (SBSP) 269–70, 273 Space-specific international law and military uses 510–25 Space-suits for astronauts 144 ‘Spacecraft’ definition 167 SPIDER see Space-based Information System for Disaster Management Spitzer telescope 531 Spot Image (company) 438 SPS see solar power from space; Standard Positioning Service Sputnik I 1, 3, 9, 506–7, 559 ‘Stakeholder’ concept and the future of space law 570 Standard Positioning Service (SPS) 392 Stimson Foundation 529–30 Stockholm Declarationon the Human Environment (1972) 277, 432 Sun Tzu 499, 501 Sweden, Act on Space Activities (1982) 116 Tampere Convention on Telecommunication Resources for Disaster Mitigation...435 Tau Ceti star 542 Telecommunication and the future of space law 567–8 Telecommunication organisations ARABSAT 323, 335, 375–7 Astra 3798–9 cable systems 320–1 COMSAT 323–5

593

EUTELSAT 356–60, 360–4 INDOSAT 378 INMARSAT 344–50, 350–5 INTELSAT 325–9, 330–7, 337–43 INTERSPUTNIK 345, 364–8, 368–75 OATS 323, 377 PALAPA 323, 335, 378 privatisation 380–5 radio 321 satellites 319–23 SES-Global 378–9 Thaicom 378–9 US companies 379 world public interest 385–7 TELENOR (company) 324 ‘Temporal resolution’ 414 Terrestial environment law 275 Thaicom 378–9 The Art of War 499 The Fountains of Paradise 530 The Hague Academy of International Law, The Netherlands 14 The Hague Conventions on conduct of war 502 The Hague International Code of Conduct against Ballistic Missile Cooperation (HCOC) 96, 462, 530 ‘The Precautionary Principle’ 280 The Problem of Space Travel: The Rocket Motor 5 The War of the Worlds 287 Tides and Moon 177 Tonga, 238, 253, 571 ‘Torino Scale’ for collisions 312 Tragedies in space 566 Trail Smelter Arbitration (1935) 66, 277 Transit and air-space boundary 171–2 Treaties 13, 41 U235 (enriched uranium) 294 UHF see ultra high frequency UK see United Kingdom Ultra high frequency (UHF) wave-bands 321–2 UN see United Nations

594

Space Law

UNCED see Environment and Development conference, Rio de Janiero (1972) UNCITRAL see Commission on International Trade Law UNCLOS see Convention on Law of the Sea (1982) UNEP see United Nations Environmental Programme UNESCO 261–2, 268, 298 UNIDROIT (International Institute for the Unification of Private Law) Cape Town Convention 446, 449 Financial Leasing Convention (1988) 453 satellite services 457 solar power 272 space law harmonisation 35 Uniform Commercial Code, United States 452 Unilateral arms controls 462–6 Union Radio Scientifique Internationale (URSI) 552 UNISPACE conferences, Vienna, Austria 16 UNISPACE I conference 419 UNISPACE II conference 63 UNISPACE III conference 10, 37, 389, 433, 436 United Kingdom (UK) Civil Aviation Acts 417–18 commercial activities 468, 486–8 Communications Act (2003) 466 Outer Space Act (1986) 486 United Nations Environmental Programme (UNEP) 277 United Nations (UN) agencies 15 ARRA see Agreement on Rescue and Return of Astronauts Commission on International Trade Law 443–4 conferences on Exploration of Space 16 Convention on the Registration of Ships (1986) 68 COPUOS 18–22 declarations 43–4

Department of Humanitarian Affairs 430 International Law Association 10 International Telecommunication Union 203 Law of the Sea Convention see Law of the Sea Convention Liability Convention see Liability Convention Nuclear Power Sources Resolution (1992) 82 OOSA see Office for Outer Space Affairs origins of space law 3 Outer Space Treaty 53 peacekeeping 317, 499 Registration Convention see Registration Convention resolutions 43–50, 467, 470 space matters 15–17 space resolutions 43–50, 50–1, 511 space treaties 42 SPIDER 436 treaties 13, 81–3 UNCITRAL 35 United States (US) Air Force Command 306 Air Force Space Command 509–10 anticipatory self-defence 504 arms controls 462 Australian launches 477 China military power 508–9 commercial activities 488–95 Commercial Space Launch Act 273, 489–90, 493, 495 constitution 35 cross-waivers of liability 492 Department of Commerce 463 Department of State 463 Federal Aviation Administration 452, 490–1, 493–4 Federal Communications Commission 383–5, 456, 493 flight crews 494–5 Galileo agreement 397–8 Global Positioning System 391–4 GPS system 246 Israel and remote sensing 441–2

Index Kyl–Bingaman Act 441 Land Remote Sensing Policy Act (1992) 438 launch operators 489 launches 444, 472–3, 489–95 liability 492–3 moon landing 181 Mylar balloon 297 National Defense Appropriation Act 441 National Environmental Policy 491, 493 National Geospatial Intelligence Agency 437–8 National Oceanic and Atmospheric Administration 437 National Space Policy 464, 510, 527–8, 531 nuclear weapons 511 ORBIT act 341, 351, 383 outer space/air space boundary 497 Pioneer probes 539 remote sensing 437–42 solar power 270 space law 33–4 space policy 29–30 space race 180 space tourists 132 telecommunication companies 379 telecommunication privatisation 383–4 Trade Act (1984) 464 trade restrictions 459 Uniform Commercial Code 452 Universal Commercial Code 444–5, 447 United States v. Holmes case 149 Universal Commercial Code, United States 444–5, 447 ‘Universal compulsory communication’ 202 ‘Universal Declaration on Cultural Diversity’ 269 Universal Postal Union (UPU) 210 UPU see Universal Postal Union URSI see Union Radio Scientifique Internationale US see United States USSR GLONASS 394 INTELSAT 326–7, 336

595 INTERSPUTNIK 364–5 military use of outer space 523 Moon Agreement (1979) 181 nuclear weapons 511 space race 180 Sputnik I 507

V–1 rockets 507 V–2 rockets 7, 507 Van Allen radiation belts 291, 296 Verien fur Raumshiffahrt (VfR) 7 Very high frequency (VHF) wave-bands 321 Vienna Convention (1969) 70, 502 Virgin Galactic flights 132 Vlasic,Ivan A. 162 Von Kármán Line 133, 168 Vostok 1 135 Voyager probes 539 ‘Voyages to the Moon’ 177 WAAS see Wide Area Augmentation System ‘War Crimes’ 279 ‘War on Terror’ 505 WARC see World Administrative Radio Conference Warsaw Convention (1929) 134, 406 Wassenaar Arrangement on export control for arms 398, 459–61 Wassenbergh, Henri 12 ‘Weapons of mass destruction’ (WMD) 515–16, 518–19 Weather forecasting satellites 430 Wells, H.G. 287 Wide Area Augmentation System (WAAS) 400–1 WIPO see World Intellectual Property Organisation Wireless communication see radio WMD see ‘weapons of mass destruction’ WMO see World Meteorological Organization Working arrangements for space law 38–9, 51 World Administrative Radio Conference of 1959 (WARC), Geneva 233, 250 World Communications Commission 243

596

Space Law

World Intellectual Property Organisation (WIPO) 15, 124, 127 World Meteorological Organization (WMO) 431 World Space Organisation (proposal) 560–1 World Telecommunication Development Conferences (WTDC) 220–1 World Telecommunication Policy Forum 235 World Trade Organisation (WTO) 35, 443, 466 World Wide Web 568

WTDC see World Telecommunication Development Conferences WTO see World Trade Organisation Zarzar, V.A. 5 Zeitschrift fur Luftrecht und Weltraumrecht (ZLW) 11 Zeppelin dirigible 4, 157 Zeppelin, Graf von 157 Zeus Holdings (INTELSAT) 341–2 ZLW see Zeitschrift fur Luftrecht und Weltraumrecht