Direito Aeronáutico e Direito Espacial
SOME CONSIDERATIONS ON SPACE LAW
Maria Eleonor Picarel
Professor, Buenos Aires University
We came here to share knowledge, information and ideas, but also to share our worrries and hopes.
I have been very lucky because, having studied law in the "Universidad del Salvador", in Buenos Aires that was the first University in the world to include Space Law in the curriculum of its School of Law, fortunately, I have had the privilege of having an extraordinary Professor: Dr. Aldo Armando Cocca.You all know his efficiency as a creator of Space Law. But perhaps you do not know him like the gentleman who made his students love Space Law and who always encouraged us to think by ourselves in face of the many problems that the space era would arise, searching for innovative issues for traditional concepts, like law and justice, equity, right and wrong, lawful and unlawful or legal and illegal behaviours. Because we must never forget that without men and their interaction in society, law does not exist, no matter how you call it: Law, Derecho, Direito, Droit, or whatever expression you may use in your own language. Law cannot be conceived for any other being that people.
So, whenever we talk or think about law, we are talking and thinking of people. People who, according to their own cosmovision, cultural heritage, language, religion, traditions and background, create rules written or not-to provide a certain stability to their interacting and thus, be able to live together in order and peace. Rules that will contribute to their growth and development according to their needs, that may differ from the needs of other groups or communities.
In essence, law is the system of rules that exists in a certain society for the sake of life, development and welfare of its members. So that they may live in harmony with the other members of that human group.
Before the birth of Space Law, Law was circumscribed to our planet but since the moment the mens activities could reach outer space, Law, that is a system of protection of every man, has broken its previous limits and frontiers and, accompaning men and their goals, went beyond our planet extending its protection to outer space.
For many milleniae, Earth has been the only place in the whole and vast universe to shelter humankind, therefore, there has been no other place for Law. But in the last decades of the XXth Century, following the perpetual need of mankind of always going beyond in the search of the unknown and the apparently unreachable, men conquered a new place that had till then, been forbidden for them: outer space. A new world to explore, a new victory for those who are never satisfied with what they already have and know, and who endeaviour to reach, what other people have not been able to.
For this new region, men needed new ways of protection and new rules. Rules that had necessarily to differ from any other previously conceived, because in this unknown and strange space, those rules could not be adequated or enough to give people what was due to them. And having agreed that it was a priority the need to create those new rules for the peaceful uses of outer space, after many years of discussion, reflections and work, we suscribed the 1967 Space Treaty.
As life evolves and things often change, the Treaty may seem to some authors something "demodé", out of time. But, is it really so? I must say I am convinced of just the contrary.
In my opinion, the Treaty is the quintaessence of Space Law and it is impossible to understand Space Law without understanding the Treaty.
To develop new rules for any particular area or activity in outer space, we will always need to go back to the principles and rules of the Treaty, because outer space is not, and cannot be, a good or thing in commerce: it belongs to mankind and not to any individual or State. It is a region hostile for human beings, but at the same time it is useful for mankind. That is why it has been recognized as "common heritage of mankind" or as I like best "patrimonio común de la humanidad". A region in which we have the right to explore and use without introducing any damage.
The benefits of this use, exploration and even exploitation of outer space must, therefore, be shared by all the peoples of Earth. And one of the most important principles states that the means by which the less developed countries can reach the posssibility of sharing those benefits is international cooperation.
Before 1969, someone said: who has the Moon, has the Earth. And this was the idea that arose the need of establishing a non-appropriation principle, first step towards the recognition of the res communis humanitatis, principle enshrined in the Moon Agreement as common heritage of mankind.
I would also like to remind you that the corpus iuris spatialis was established by Consensus, implying the need of a express agreement of the attendants to the General Assembly of the United Nations. Under the rules that were prepared by experts in Law, not letting financial or political opinions to interfere with their work.
Unfortunately many of the good habits in the elaboration of Space Law seem to have been forgotten, and that worries me. It also worries me that sometimes the political and economical aspects prevail over the juridical point of view. I do not see any good in it, and I am afraid we can loose our way. I fear we can put an end, unwillingly, to Space Law.
But I still think that there is a hope to keep Space Law from the deleterean effects of the above said interferences. And the hope is that governments understand that Space Law is to be preserved like the masterpiece it was at its beginnings. The hope is that those experts who can stil teach it to the new generations may find some students who undertake with love and enthusiasm studies on Space Law.
My hope is that we may go back to the fountains and recover our steps, taking the right direction.
I make an appeal to all of you: please, go back to the principles of the Space Treaty, and never forget that international cooperation is the only possibility for a better world, a world that is worth to live in, the world you all surely dream, deep in your hearts for you and the future generations.
(Volta ao Sumário)
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