Direito Aeronáutico e Direito Espacial
CURRENT AND FUTURE DEVELOPMENTS OF SPACE LAW
Prof. Dr. Stephan Hobe, LL.M (McGill)
Director, Institute of Air and Space Law, Cologne University
The by far most eminent challenge of public international law in general and also of international space law in particular is the challenge of globalisation. Symbolized by the internet that allows for seamless travel of information as well as financial transactions, the entire international system has to face serious challenges1 . The core of the matter is that the new technology limits the capacity of states to control transnational transactions more than ever before. Certainly, we have since the 19th century and even before a growing amount of international trade and of movement of tourists. But never before was the denationalizing effect of transactions so pertinent than in the era of globalisation. This has important consequences. The private sector, mostly multi-national corporations, but also non-governmental organisations and the individual itself gains importance in the international system. International law, however, has not yet specifically addressed those private actors because it has been formed traditionally by states and, at a later stage, also by international governmental organisation. Therefore, it is of paramount importance whether and in how far international law in general and international space law in particular react to these challenges to the international system. Furthermore, space law is to regulate a highly technical domain. Space technology progresses in ever faster dimensions. Here again, the progress of technology, for example in the telecommunications sector, brings about necessary challenges for space law2 .
It is, therefore, the purpose of the following study to briefly discuss how international space law has reacted over the past five decades to the various challenges, notably of political and technological nature and, in more recent times, also to the phenomenon of globalisation. Thereby, we will, in a first part, present the international legal system governing outer space activities, come then in a second part to the presentation of the major principles of international space law, will furthermore discuss in part three specific legal regimes for the uses of outer space, and address in part four some future developments. This will allow for a final conclusion as to the prospects of the development of international space law.
Before, however, any attempt to a presentation of international space law is made, a word is necessary as to the area of regulation we are talking about. It is self-evident that because of its vastness, it is impossible to come to any regulation for the entire universe. Here, dimensions are at stake that are beyond our comprehension3 . Therefore, it is suggested to limit any legal description of outer space to if you want two floors of the universe4 : the terrestrial lunar system and the interplanetary space of the universe. The terrestrial lunar system is basically defined by the relationship of the Earth and our Moon and the interplanetary space consists of the Sun as its central body, nine big planets (Mercury, Venus, the Earth, Mars, Saturn, Jupiter, Uranus, Neptune and Pluto) with their moons, asteroids, comets, meteors and meteorites as well as interplanetary dust. One last distinction for the purpose of definition has to be made at the beginning. As by now, we discuss a limitation of the Earth to the space environment at a height of at least 110 km above sea level, arguably even below5 . With these necessary definitions in mind, we start to discuss the legal framework for outer space activities. Thus for the purpose of any legal account outer space shall be defined as being comprised of the terrestrial lunar and the interplanetary space whereby it begins at a height of around 110 km above sea level.
PART 1 INTERNATIONAL SPACE LAW
THE TREATY FRAMEWORK
Because at the beginning of the space age after the launch of the first artificial satellite Sputnik 1 in 1957, all activities were carried out by governmental entities, the legal framework was drafted and finally laid down only by states. Its character is therefore of a public international law nature. Public international law knows different sources, namely international treaties, international custom, the general principles of law, and as auxiliary sources jurisprudence and doctrine6. Interestingly enough, international space law is still very much governed by international treaties whereas customary law only plays a minor role7 . One can, if looking at the development of international space law, discover different phases as follows:
Phase 1: From Discussion to Resolution (1957 1963)
Already shortly after the beginning of the space age with the launch of the first artificial satellite Sputnik 1, the international community showed some awareness of a need to come to an international legal regulation of this new activity. Whereas space flights in these times were carried out only by the then two super powers, namely the Soviet Union and the United States of America, an early discussion centred around the question whether or not by analogy to international air law which had started to develop in the early 20th century, one could cover also space activities. The main aim of these early discussions was, on the one hand, to come to a clear understanding as to the legal status of outer space and the celestial bodies and, on the other hand, to come to some solutions of the pressing problem of the possible military uses of outer space. Here it was in the interest of the super powers to get at least partial permission from the international community to use outer space for what they called "peaceful" purposes. So, at the formative stage of international space law in the late 1950ies, one first and important decision was taken. International space law, most stimulated by the ideas of the super powers, should be negotiated in the realm of the United Nations. Therefore, an ad hoc committee of the UN General Assembly, the so-called United Nations Committee on the Peaceful Uses of Outer Space was created, assembled by the super powers and some other interested states8 . Here first discussions on possible legal consequences of these new activities took place. Two resolutions prepared in the Committee on the Peaceful Uses of Outer Space and adopted by the General Assembly in 19619 and 196310 foreshadowed already the new era of space law. Here, two important decisions were taken: the use of outer space for military purposes should be more or less, but not entirely excluded and, on the other hand, neither outer space nor the celestial bodies should be subject to any kind of appropriation. One can therefore say that in 1963 with the UN General Assembly Resolution 1962, the major part of the important general principles as well as the major law-making body was already in place11 .
Phase 2: From Resolution to Treaty (1963 1979)
The coming 15 years were laying the ground for the international legal framework for outer space activities. The Outer Space Treaty, the Magna Charta for outer space activities, was but a concretisation of the 1963 UN General Assembly Resolution. It lays down all the main principles for outer space activities, namely the non-appropriation principle, the principle of the exploration and the conditions for the various uses of outer space, the principle of registration and of liability for governmental and non-governmental space activities, the rescue and cooperation principle as well as some ideas on the protection of the outer space environment. It has by now received approximately 98 ratifications and 27 signatures (as of 1 January 2003). This is a significant number, particularly taking into account the fact that many of the 191 members of the United Nations have no or only very little contact with outer space activities. The major principles, which will be discussed in the next part of the paper, were laid down in the Outer Space Treaty and have been further specified and elaborated in ensuing space legislation. In 1968 the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, the so-called Rescue Agreement12 , was adopted which basically incorporates the main international legal duty to help astronauts in distress. Moreover, in 1972 the very important Convention on International Liability for Damage Caused by Space Objects, the so-called Liability Convention13 , was adopted which specifies the responsibility and liability principles of the Outer Space Treaty of 1967. In 1975, the Convention on Registration of Objects Launched into Outer Space, the so-called Registration Convention14 , was opened for signature which specifies the international legal duty to register space objects in a national as well as in an international register. Finally, in 1979 the Agreement Governing the Activities of States on the Moon and other Celestial Bodies, the so-called Moon Agreement15 , was adopted by the General Assembly of the United Nations and opened for signature. All of these five international agreements are in force with a however varying status of ratifications. Whereas on the one hand the Outer Space Treaty is the by far most accepted convention with around 100 ratifications, the international Moon Agreement knows by now 11 ratifications and very few signatures. The reason for this reluctance of states will be explained in the next part of this study.
Phase 3: From Treaty back to Resolution (1979 2004)
After 1979, following the near-failure of the Moon Agreement, the international community was much less successful in framing new international conventions. Rather, a set of principles by the UN General Assembly, necessarily non-binding in character because the General Assembly does not possess a law-making function, contribute to the further corpus iuris spatialis. Here we have on the one hand the 1982 UN General Assembly Resolution 37/92 on direct broadcasting by satellite16 that somewhat tries to balance the differing interests of a transborder broadcaster (state or private entity) and the receiving state, the 1986 UN General Assembly Resolution 41/65 on remote sensing of the Earth by satellites17 which, similar to the problem of direct broadcasting, tries to balance the interests of sensing states or enterprises and the sensed state, the 1992 principles of UNGA Resolution 47/ 68 on the use of nuclear power sources in space18 , the 1996 UNGA Resolution on the actual importance in interpretation of Article I paragraph 1 of the Outer Space Treaty19 , and the most recent 2004 UNGA Resolution which will be adopted in a few weeks with an interpretation of the notion of launching state. It is interesting to observe that the latter two examples do contain current interpretations of basic notions of international space law, namely the mankind principle of Article I paragraph 1 of the Outer Space Treaty as well as the notion of space object in view of the current needs and more recent state practice. This is significant for the capacity of the international space community to develop basic notions of international space law. Moreover, it is interesting to observe that there is a zigzag development: First, one could observe a certain move from resolution towards treaty whereas in more recent times we have the opposite direction where resolutions rather than treaties are preferred. Therefore, a word in this part should be said about the legal character of UNGA resolutions.
It has already been mentioned that, due to the lacking capacity of the UN General Assembly to enact distinct own legislation, such resolutions miss legally binding force. However, they are still important for a certain opinio iuris of a significant number of states, even more so if these resolutions are adopted by consensus20 . Therefore, space activities like the use of nuclear power sources, the use of telecommunications satellites or of remote sensing satellites as well as other possible commercial uses are not confronted with a complete legal vacuum. Rather, the constant conduct and respect for such resolutions may build up to eventually become customary international law. In this regard, a short word must be said about some earlier observations of the space law age: Here, the famous legal scholar Bin Cheng had observed that after the adoption of a United Nations General Assembly resolution for activities in outer space, this resolution would instantly become customary international law21 . There is a correct part of this observation, namely that for such resolutions, even more so if adopted by consensus to be significant for a respective opinio iuris of states, one still needs the time element, that is a certain period of time over which such resolutions are observed by states in order to speak of the development of a respective custom22 .
And as will be shown in the following, we cannot fully observe the development of custom with regard to all of the respective applications just mentioned in the various UNGA resolution. Rather a differentiated approach must be applied. With regard to the use of telecommunication satellites the factual development after the end of the ideologically inspired Cold War has gone beyond the legal substance of UNGA res. 37/92 of 1982. But with regard to remote sensing by satellites the current discussion in UNCOPUOS clearly indicates not only that the UNGA resolution 41/76 of 1986 is still not fully consented but that further consideration is required in view of the growing commercialisation of that sector.
Whereas moreover with regard to the use of nuclear power sources we can in fact speak of a respective custom indicated by the UNGA resolution 47/68 of 1992, the "space benefits" resolution of 1996 is again an important contribution but maybe not the final word in this matter. One thus sees in which different ways the international community adapts these UNGA resolutions.
PART 2 MAJOR PRINCIPLES OF
INTERNATIONAL SPACE LAW
Having thus outlined the legal basis that still mainly consists of international treaties and to a much lesser extent of international custom, we now come to a description of the existing legal principles for outer space activities.
1. The Non-Appropriation Principle
Of paramount importance is the major legal principle as contained in Article II of the Outer Space Treaty, namely that outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation or by any other means. The same is true for the celestial bodies. This provision clarifies the status of outer space and the celestial bodies as an area which cannot be subjected to state appropriation. However, it has been disputed whether or not this statutory provision excludes any kind of commercial exploitation. Although this is not entirely consented, the widespread majority is of the opinion that Article II explicitly only prohibits any appropriation of areas, be it in outer space or be it on celestial bodies, be it by states or be it by private entities23 . This is logical in so far as it is the main purpose of this provision to safeguard the res communis nature of outer space as belonging to all mankind. Any taking of land either by states or by individuals would prohibit such undertaking. It is therefore clear from the existing outer space law that any taking of areas in outer space or on celestial bodies is prohibited by law. Any claims into this direction, for example by way of selling of areas of the Moon, are therefore totally unfounded in international law. States as signatories of the Treaty have the duty to hinder respective claims of individuals24 . But as we will see in the following this clear prohibition to claim areas does not clearly indicate whether or not the taking of resources is allowed or not.
2. Free Exploration of Space
Furthermore, it is clear that outer space can be explored and that the result of such exploration should be beneficial to all mankind25. This provision is mainly uncontested.
3. The Problem of Economic Uses of Outer Space
Any kind of commercial use of outer space is however subject to discussion. Here, we have on the one hand the fact that nothing directly prohibits the free use of outer space, the celestial bodies and their resources. At least the Outer Space Treaty does not in principle contain any restricting provision. The only hint to any restriction is therefore that outer space and the celestial bodies are designated to be the province of all mankind and that any use of outer space should be carried out for the benefit and in the interest of all countries irrespective of the degree of economic or scientific development (cf. Article I paragraph 1 of the Outer Space Treaty). This can of course be interpreted to the effect that such countries which cannot actively participate in outer space activities must benefit from the resources or from the benefits of resources taken by others on the Moon or other celestial bodies26. Furthermore, Article 11 of the Moon Agreement declaring the Moon and other celestial bodies to be the common heritage of mankind and outlining a legal regime for the exploitation of such resources could hint into the direction of some kind of resource sharing27 . Here, the sharing of the benefits of the resources even by those states which have not actively contributed to the exploitation process (e.g. the developing countries) is explicitly mentioned (c.f. Article 11 paragraph 7 lit. d of the Moon Agreement). But it is disputed how much weight can be given to this argument. Here it must be taken into account that, particularly due to this provision, the Moon Agreement has not been ratified by many states and therefore cannot be said to be part of customary international law28 . For the widespread majority of states, it is, therefore, only the Outer Space Treaty in general and particularly its Article I paragraph 1 which gives the basic guideline for the economic exploitation of outer space and the celestial bodies29 . Here, as already mentioned earlier, the UN General Assembly has adopted a resolution with regard to the interpretation in view of current state practice of this provision30 . And this resolution very clearly indicates that states are in principle free to choose solutions how to distribute the benefits from the exploitation of outer space resources. It is the state that shall determine the way of cooperation with other states and particularly with developing countries. This may be regretted, particularly from the point of view of developing countries which in the 1960ies and 1970ies with their numerical majority in the General Assembly as a consequence of the decolonisation process did struggle very much for a restructuring of the international economic legal order thus including respective exploitation provisions of the international commons31. But the already mentioned resolution of the UN General Assembly is certainly indicative of current state practice that is not supportive of such widespread sharing of benefits.
4. The Principle of Peaceful Uses
One of the main purposes of the Outer Space Treaty was certainly to implement a provision concerning the peaceful uses of outer space. Here, Article IV of the Outer Space Treaty prohibits any placing in orbit of nuclear weapons or other weapons of mass destruction in orbits around the Earth32 . That still allows for the use of intercontinental ballistic missiles that need a half-orbit in order to reach the other continent. Moreover, Article IV paragraph 2 as well as the Moon Agreement are stricter in prohibiting any installation of military bases on the Moon. However, it becomes evident that the main aim of the super powers, namely to allow them the partial military use of outer space, has been achieved through the Outer Space Treaty.
5. Responsibility and Liability
The Outer Space Treaty in its Articles VI and VII contains basic provisions on international responsibility of states for activities not in conformity with current international law whereby the Articles explicitly include activities of non-governmental entities. Article VII OST specifies that, as a consequence of the responsibility contained in Article VI of the Outer Space Treaty, the state can be held liable under international law33 . This provision is, furthermore, specified in the Liability Convention of 1972 which contains a very progressive development of international law. Any launching state these are states that themselves launch a space object or that use the territory of other states or procure the launching for other states 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. It is one of the rare examples where in public international law one can find a regime of strict liability that is liability without the prerequisite of proving fault, which has of course to do with the ultrahazardous nature of space activities34 . On the other hand, any damage by a space object vis-à-vis another space object is only subject to the regime of fault-based liability. Obviously, this liability regime is of great importance for any kind of commercial activities since it necessitates an insurance policy on the part of the launching state35 .
Moreover, in the Registration Convention of 1975, the major principle as already contained in the Outer Space Treaty (cf. Article V and VIII) is laid down, as it requires the establishment of a national registry as well as the delivery of information to the UN Secretary-General on certain parameters concerning the flight of the space object and the location of the launch as well as of the general function of this space object. Unfortunately, states are somewhat reluctant to provide such information, particularly in cases of military space activities. Therefore, the international community in general and the UN COPUOS in particular are considering ways and means of making this international legal principle more effective36.
7. The Principle of Rescue and Cooperation
The general principle of rescuing astronauts in distress as contained in the Outer Space Treaty (cf. Article V OST) is further implemented in the International Rescue Agreement of 1972. The duty to rescue astronauts in distress is only a part of the general duty to cooperate with one another with regard to activities in outer space. It is basically undisputed and fully consented as part of customary international law.
8. Protection of the Environment
It is not astonishing that only very little is said in Article IX of the Outer Space Treaty about the protection of the outer space environment37 . In 1967, the time was simply not ripe for the implementation of such specific legislation. On this point, the 1992 UN Resolution on the use of nuclear power sources is already a first and important step in that it generally makes any use of nuclear power sources on board space objects in general and of satellites in particular dependent on a safety assessment38 . Moreover, for a number of years, the UN COPUOS has been discussing the problem of space debris39 . Tiny parts of space objects, be they even very small, can basically destroy large space infrastructures or satellites. Therefore, it is of paramount importance that the international community comes to practicable and acceptable solutions with regard to the avoidance of space debris including the cleaning-up of certain orbits.
9. Some Preliminary Conclusions
If one wants to draw some conclusions from these major principles for outer space activities, one could characterize outer space legislation by three dichotomies: the peaceful/military dichotomy, the dichotomy of free and limited commercial uses of outer space, and finally a public/ private dichotomy.
As to the peaceful/military dichotomy, one must be very aware of the "dual" character of many outer space technologies. Let us take the example of the remote sensing satellites. It becomes very evident that such remote sensing technology can on the one hand be used to gather information on crops or terrestrial erosion and thus be important particularly for agricultural purposes in developing countries. On the other hand, it is equally clear that one can also gather strategic information by using remote sensing satellites. Therefore, it must be taken into account that even if the importance of the use of outer space for solely peaceful purposes is underlined by many countries, there is always a military overtone.
Moreover, the growing commercialisation and privatisation of outer space activities could bring back the question of the limits of commercial uses of outer space on the international legal order. We have already explained that although there is the principle of free use, outer space as such is an area designated as res communis shared by all states to the effect that the results of the use should also be for the benefit of all mankind. This point will certainly in the future be on the agenda of the international community. Particularly if the use of resources becomes feasible, one must come up with a more precise legal regime for the commercial uses of outer space.
Finally and closely connected to the last point, we currently observe as a consequence of the era of globalisation a growing shift from the public to private exercise of space activities40 . In that respect, further efforts e.g. by national space legislation have to be made to make sure that private entities observe the core principles of international space law to the same degree as they must be observed by governmental entities. We will come back to that when we discuss prospects of international space legislation.
It shall, moreover, be pointed out in this context that not only the UN COPUOS is occupied in more recent times with a refinement of some basic notions of international space law (e.g. space benefits, launching state), but that there is also an international discussion in various fora on how to reshape international space law in order to adapt it to current needs of a stronger commercial (and private) use41 .
PART 3: SPECIFIC LEGAL REGIMES FOR
ACTIVITIES IN OUTER SPACE
Let me very briefly go through some of the major specific uses of outer space and let me outline some of the legal principles in law. It should, however, be stressed in that respect that the major principles are, as already explained, obviously applicable to these activities as well.
Telecommunication satellites form a worldwide net in different orbits, that can be used e.g. for telephony. As early as 1971, INTELSAT was founded as an international organisation with the purpose to administer the worldwide telecommunication by satellites. It was a semi-private/public enterprise that has, in 1999, been restructured with the aim of being completely privatized42.Moreover, in more recent years, mobile satellite telecommunication by privately financed systems like IRIDIUM and Global Star have been in the centre of attention. The importance of telecommunication satellites becomes apparent if one realizes that the transfer of data or via the internet takes place by the use of telecommunication satellites. Television if not by terrestrial means is also being conducted via satellite. In that respect, the International Telecommunication Union, a specialized agency of the United Nations which looks back at a very long history, has the goal of technical coordination of frequencies to be used by such satellites43 . This is particularly difficult in the so-called Geostationary Orbit, an orbit at 36.000 km above the equator which gives a privileged position because any satellite positioned in the Geostationary Orbit seems to stand still because the rotation is equivalent to the rotation of the Earth44. Therefore, only a limited number of orbital slots is available and the International Telecommunication Union takes care of the allocation of such orbital slots. The United Nations Committee on the Peaceful Uses of Outer Space had, as already mentioned, looked into the matter from a point of view of communications transborder overspill which at times of the Cold War was still an ideologically inspired problem. But with the end of the Cold War, the problem and its inherent legal difficulties have lost its practical relevance.
2. Satellite Navigation
Moreover, the uses of satellites for navigation purposes are of a significantly growing importance. Be it through the Global Positioning System (GPS) of the United States, be it through the European Galileo system, the global positioning of ships, aircraft, spacecraft, and automobiles will be one of the most important technologies in a world that is characterized by an ever growing population and an ever growing infrastructure45 . Here, questions of liability incurred by a malfunctioning of satellites for possible accidents are at stake, particularly for the launching state, though this issue is arguably not specifically related to space legislation and space-related liability.
3. Remote Sensing by Satellite
The use of remote sensing by satellite is another commercial means of using outer space. Such data are important for the daily weather forecast and in the areas of geology or cartography as well as in the agriculture or forest industry46. They can also be used for environmental purposes. Several systems, like the American Landsat system or the European Spot system are commercialized and the United Nations COPUOS considers whether an update of the Resolution of 1986 with a view to an assessment of its current applicability is necessary47 .
4. International Space Station
Finally, a short word should be said about the largest cooperation project ever conducted, the project of the International Space Station. This is a common undertaking by the United States of America, Russia, Japan, Canada, and ESA member states, here particularly France, Germany and Italy. It incurs costs of an amount of 100 billion Euros for the time span of 1998 to 2008. The purpose of the ISS is particularly research-oriented. At an altitude of 335 to 560 km and at a velocity of approximately 29.000 km per hour, the ISS shall be used for experiments under conditions of microgravity in several areas of science. The cooperation is based on several agreements, mainly the International Governmental Agreement of 199848 and bilateral Memoranda of Understanding49 concluded between the American NASA and all other space agencies of the cooperating member states. Whether there will also be a potential for a growing commercialisation of the International Space Station remains to be seen in the future.
It, thus, becomes evident that although these specific space applications are in general under the umbrella of the general principles of international space law, sometimes specific rules are designed for these specific activities.
PART 4 - FUTURE DEVELOPMENTS
What about the future? What is the main direction for international space law? In the course of our short investigation, some areas of future developments have already been mentioned. I will, at the end of my presentation, just name five examples where we can, already by now, observe a clear indication of future legal developments.
1. Remote Sensing Principles under Review
As already mentioned, with regard to current practices and the growing tendency towards commercialisation, the UN General Assembly Principles on Remote Sensing by Satellite of 1986 will be under review of the United Nations Committee on the Peaceful Uses of Outer Space50 .
2. Future Legal Regimes for the Commercial Exploitation of Outer Space?
Moreover, current claims to appropriate certain areas of the Moon or other celestial bodies will sooner or later lead to the need to clarify the basis and the limits for commercial uses of outer space also by private entities. Interestingly enough, until now, the international community has not used a clause contained in the Moon Agreement, namely its Article 18, that invites member states 10 years after the entry into force of this agreement (1984) to review it with a view to come to more precise clauses. The regime contained in the Moon Treaty, namely the declaration of the Moon and other celestial bodies to be the common heritage of mankind, has not found wide spread support within the international community. The consequences of this dedication are laid down in Article 11 of the Agreement, namely that the international legal regime to be established should include an orderly and safe development of natural resources of the Moon, the rational management of those resources, the expansion of opportunities and the use of those resources, and an equitable sharing by all states 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 either directly or indirectly to the exploration of the Moon, shall be given special consideration (Article 11 paragraph 7 of the Moon Agreement). The example of the Law of the Sea Convention shows that any one-sided limitation of the freedom to act of industrialized states will not lead to the necessary cooperation between developed and developing states for the benefit of all mankind. Therefore, a further consideration is required on the basis and on the limits of the commercial uses of outer space leaving on the one hand the possibility for industrialized states to go ahead with possible exploitation, if such exploitation becomes feasible, and, on the other hand, allowing other states to somewhat benefit from these activities. Here, as the main question that will have to be decided is whether the international community wants to follow the example of Antarctica, i.e. to declare outer space and the celestial bodies to be exempt from any commercial exploitation, or whether it wants to follow the example of the Law of the Sea Convention. Here, the principle of the common heritage of mankind was somewhat reinterpreted to the effect that it now allows in principle the commercial use of outer space under specific circumstances.
3. More National Space Legislation
The era of globalisation is as already mentioned characterized by more activities of private entities. Those entities however must to some extent observe the current legal regime for the carrying out of outer space activities. Therefore, it is of utmost importance that states live up to their duty as contained in Article VI of the Outer Space Treaty, namely that the activities in outer space of nongovernmental entities shall require authorisation and continuing supervision by the appropriate state party to the Treaty. One can observe at the moment that a growing number of states consider the adoption of national space legislation. By now, we have already 10 states that have enacted space legislation and about the same number of states that are in a process of close consideration of such activities51. Many scientific institutions, like the International Institute of Space Law52 , the International Law Association53 as well as my Cologne Institute of Air and Space Law54 are conducting research with regard to coming up with some model legislation for states that includes the necessary requirements in order to make sure that any launch of a space object is properly authorized and continuously supervised.
4. Basic Notions of Space Law under Review
It has already been mentioned that in more recent times classical notions of space law have been under review by the international community. Such is the case for the notion of launching state which is subject of a United Nations General Assembly resolution later this year. It will most likely be the case for the principle of registration, a subject matter that will be on the agenda of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space next year. Moreover, the authentic interpretation of Article I paragraph 1 of the Outer Space Treaty by the United Nations General Assembly Resolution 51/122 of 1996 must be taken into consideration if a more comprehensive legal regime for the commercial use of outer space is considered.
This all shows that the present era of globalisation has an important impact on the development of international space law.
5. Towards an Aerospace Convention for Space Tourism?
Finally, a most recent development could give rise to further consideration of the international space community. As Space Ship One has made evident, more and more private entities are considering possibilities of space flight and space tourism. The peculiarity of this undertaking is that it uses partly air space and partly outer space. However, as I mentioned at the beginning of my considerations, air law and space law have largely developed in separate directions. Therefore, these legal fields had very little in common so far55 . At the same time, it is evident that air transportation is a fully commercialized area, while space activities have been dominated by states. However, undertakings like Space Ship One transcend the traditional air law / space law distinction and could give rise to further considerations of a future aerospace convention in which notions of liability and registration should be considered from an air law as well as space law angle with a view to reconcile either legal concept56 .
Some of these aforementioned current issues, inter alia national space legislation and problems of space travel/ space tourism, are going to be discussed at a symposium organised by the Cologne Institute of Air and Space Law and the German Aerospace Centre DLR on 8-10 June 2005 in Cologne in the realm of the Project 2001Plus, celebrating the 80th anniversary of the Cologne Institute of Air and Space Law.
This overview had to be necessarily of a relatively short nature. It is, however, hoped that some ideas could be given of the development of the past 45 to 50 years of space legislation starting at the early age of the 1950ies and ending in the early 21st century. The overall political and legal framework has changed considerably during these past 50 years. Starting in the era of the Cold War, we are now in a new era of globalisation, the duopoly of super powers being replaced by one still remaining super power. Of course, also political considerations play a very important role for space activities in general and for space legislation in particular. But it becomes clear if one looks into the development of space law that the early age of a purely research-oriented space flight apart from military applications has been replaced in the era of globalisation in view of a growing potential for commercial applications being conducted by a growing number of private actors engaged in space activities. These applications are still at an infant stage, but they will be the only guarantee in the future for further and growing activities in outer space. Therefore, by still setting the main order through the major principles, the international legal order for space activities should be flexible enough to enable private actors to become active and to invest in outer space activities in order to make this often called last frontier beneficial not only for private entities, not only for states, but for all mankind. If this challenge can be met successfully that would mean that the overall challenge of the era of globalisation has been mastered by the international community. ------------------------
1Delbrück, Transnational Federalism: Problems and Prospects of Allocating Public Authority Beyond the State, 11 Indiana Journal of Global Legal Studies (2004), p. 31; Hobe, Die Zukunft des Völkerrechts im Zeitalter der Globalisierung - Perspektiven der Völkerrechtsentwicklung im 21. Jahrhundert (The future of public international law in the era of globalisation perspectives for the development of public international law in the 21st century), in: 37 Archiv des Völkerrechts (1999), pp. 253 282.
2See Gottlieb, The Impact of Technology on the Development of Contemporary International Law, RdC 1981, pp. 242 et seq.
3See Hobe, Die rechtlichen Rahmenbedingungen der wirtschaftlichen Nutzung des Weltraums (The Legal Framework for Commercial Space Activities), Berlin 1992, pp. 21 et seq.
5Hobe, Definition and Delimitation of Outer Space, ECSL Proceedings 1997, p. 49 (57).
6Cf. Article 38 paragraph I of the ICJ Statute, and Hobe/ Kimminich, Einführung in das Völkerrecht (Introduction to Public International Law), 8th Ed. 2004, p. 172.
7Vereshchetin/Danilenko, Custom as a Source of International Law of Outer Space, JSpL 1985, p. 22 et seq.; Hobe, The International Legal Order for Outer Space Activities, ECSL Proceedings 1993, p. 28 (32).
8UNGA Res. 1348 (XIII) of 13 December 1958 and Res. 1472 (XIV) of 12 December 1959.
9UNGA Res. 1721 (XVI) of 20 December 1961.
10UNGA Res. 1962 (XVIII) of 13 December 1963.
11Inter alia: freedom of exploration and use, non-appropriation, responsibility and liability, registration, rescue.
12Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, published in: Böckstiegel/Benkö/Hobe (eds.), Space Law - Basic Legal Documents,Vol. 1, July 2004, Utrecht.
13Convention on International Liability for Damage Caused by Space Objects; Space Law, published in: Böckstiegel/Benkö/Hobe (eds.), Space Law - Basic Legal Documents, Vol. 1, July 2004, Utrecht.
14Convention on Registration of Objects Launched into Outer Space; published in: Böckstiegel/Benkö/Hobe (eds.), Space Law - Basic Legal Documents, Vol. 1, July 2004, Utrecht.
15Agreement Governing the Activities of States on the Moon and Other Celestial Bodies; published in: Böckstiegel/Benkö/Hobe (eds.), Space Law - Basic Legal Documents,Vol. 1, July 2004, Utrecht.
16UNGA Res. 37/92 of 10 December 1982, Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting; published in: Böckstiegel/Benkö/Hobe (eds.), Space Law - Basic Legal Documents,Vol. 1, July 2004, Utrecht.
17UNGA Res. 41/76 of 3 December 1986, Principles Relating to Remote Sensing of the Earth from Outer Space; published in: Böckstiegel/Benkö/Hobe (eds.), Space Law - Basic Legal Documents,Vol. 1, July 2004, Utrecht.
18UNGA Res. 47/68 of 14 December 1992, Principles Relevant to the Use of Nuclear Power Sources in Outer Space; published in: Böckstiegel/Benkö/Hobe (eds.), Space Law - Basic Legal Documents, Vol. 2, July 2004, Utrecht.
19Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking Into Account the Needs of Developing Countries, UNGA Res. 51/122 of 13 December 1996, reprinted in Zeitschrift für Luft- und Weltraumrecht (ZLW) 1997, 236.
20Hobe/Kimminich, Einführung in das Völkerrecht (Introduction to Public International Law), 8th edition 2004, p.196.
21Cheng, United Nations Resolutions on Outer Space: ´Instant´ International Customary Law?, 5 Indian JIL (1965), pp. 23 48.
22ICJ, 20.02.1969, Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), ICJ Reports 1969, p. 3 ff.
23See Hobe, supra note 3, p. 77 et seq.; von der Dunk/ Back-Impallomeni/Hobe/Ramirez, Sureal estate: addressing the issue of Immovable Property Rights on the Moon, Space Policy 20 (2004), p. 149 seq.
24See Declaration by the Board of Directors of the International Institute of Space Law of 2004, online: http:/ /www.uni-koeln.de/jur-fak/instluft/index-e.html or: http:/ /www.iafastro-iisl.com/; von der Dunk/Back-Impallomeni/ Hobe/Ramirez, Sureal estate: addressing the issue of Immovable Property Rights on the Moon, Space Policy 20 /2004, p. 149 seq.
25Art. I Outer Space Treaty.
26Hobe, supra note 3, p. 104.
27See Hobe, supra note 3, p. 127 et seq.
28See Hobe, Common Heritage of Mankind An Outdated Concept in International Space Law?, IISL 1998, p. 271 (281);Hobe, ILA Resolution 1/2002 with Regard to the Common Heritage of Mankind Principle in the Moon Agreement (to be published in 2005 in Liber Amicorum Simone Courteix).
29See Jasentuliyana, Article I of the Outer Space Treaty Revisited, JSpL 1989, p. 129.
30UNGA Res. 51/122 of 13 December 1996, "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" (A/RES/51/122).
31See e.g. UNGA Res. 1514 (XV) of 14 October 1960, "Declaration on the Granting of Independence to Colonial Countries and Peoples", U.N. Doc. A/4684 (1961); UNGA Res. 1803 (XVII) of 14 December 1962, "Permanent Sovereignty over Natural Resources"; UNGA 3281 on a "New International Economic Order" of 12 December 1974 and UNGA res. 3201 (S-VI and 3202 (SVI) "Declaration on the Establishment of a New International Economic Order and Programme of Action" of 1 May 1974.
32See von Kries, in: Böckstiegel, Handbuch des Weltraumrechts (Manual on Space Law), Köln 1991, p. 334.
33 See Hobe, supra note 3, p. 137 et seq.
34 See Jenks, Liability for Ultra-Hazardous Activities in International Law, RdC 1966 I, p. 105 et seq.; Malanczuk, in: Böckstiegel, supra note 32, p. 771.
35 Moysan, The Insurance Point of View, in: Hobe/Schmidt-Tedd/Schrogl (eds.), Towards a Harmonised Approach for National Space Legislation in Europe, Cologne 2004, p. 113 et seq.
36 Report of the Legal Subcommittee on the work of its forty-third session, held in Vienna from 29 March to 8 April 2004 (A/AC.105/826), paras. 109-120 p. 19.
37 See Frantzen, in: Böckstiegel, supra note 32, p. 597 et seq.
38 Principle 4, supra note 18.
39 See Report of the Scientific and Technical Subcommittee on its thirty-eighth session, held in Vienna from 12 to 23 February 2001, paras. 114-135, p. 19 (A/AC.105/761).
40 See Hobe/Hettling, Challenges to Space Law in the 21st Century Project 2001 Plus, IISL 2002, p. 51 55; Hobe, Das Weltraumrecht Eine Einführung in eine nahezu unbekannte Rechtsordnung und ihre Probleme (Space law An introduction to an almost unknown legal regime), Paper presented at the Bremer Juristische Gesellschaft (to be published).
41 Cf. the deliberations of the International Law Associations Space Law Committee at its conferences in London (2000), New Delhi (2002), and Berlin (2004). See particularly Resolution 1/2002 of the New Delhi Conference of the ILA on the need to adapt certain international agreements to the needs of commercial uses, stating that the concept of common heritage of mankind is in line with commercial uses of outer space for the benefit of mankind.
42 See Polley, INTELSAT Restrukturierung einer internationalen Telekommunikationsorganisation (INTELSAT Restructuring an international telecommunications organisation), Berlin 2002.
43 See Lyall, On the Reform of the ITU and the Commercial Use of Space, in: Böckstiegel (ed.), Project 2001´ - Legal Framework for the Commercial Use of Outer Space, Cologne et al. 2002, p. 259 282.
44 On the characteristics of the GSO see Wolfrum, in: Böckstiegel, supra note 32, p. 351 et seq.
45 See for an assessment of the importance, von der Dunk, Of Co-Operation and Competition: GALILEO as a Subject of European Law, in: Hobe/Schmidt-Tedd/Schrogl (eds.), Legal Aspects of the Future Institutional Relationship between the European Union and the European Space Agency, Cologne 2003, pp. 47 56.
46See e.g. Cheng, Studies in International Space Law, Oxford 1997, p. 584 et seq.
47See e.g. Report of the Legal Subcommittee on the work of its forty-second session, held in Vienna from 24 March to 4 April 2003 (A/AC1.105/805), para. 138.
48Agreement among the Government of Canada, the Governments of ESA Member States, the Governments of Japan, the Russian Federation, and the USA Concerning Cooperation on the Civil International Space Station, Done on January 29, 1998, Entry into force: March 28, 2001, published in: Böckstiegel/Benkö/Hobe (eds.), Space Law Basic Legal Documents, Vol. 2/1, Utrecht, D.II.4.
49 E.g. Memorandum of Understanding between the National Aeronautics and Space Administration of the United States of America and the European Space Agency Concerning Cooperation on the Civil International Space Station, Done on January 29, 1998, in: Böckstiegel/Benkö/ Hobe (eds.), Space Law Basic Legal Documents, Utrecht, D.II.4.2.
50See Report of the Legal Subcommittee of COPUOS adopted on 8 April 2004 (Doc. A/AC.105/826), p. 21, paragraph 125.
51An assessment of these laws is contained in Vol. 3 of the Cologne Project 2001 Plus series, published in 2004.
52For example, a session of the 2004 IISL Colloquium in Vancouver was specifically dedicated to the issue of national space legislation.
53See the 2004 Conference Report of the Space Law Committee of the International Law Association Report on the Legal Aspects of the Privatisation and Commercialisation of Space Activities, online: http:// www.ila-hq.org/html/layout_committee.htm.
54See Hobe/Schmidt-Tedd/Schrogl (eds.), Towards a Harmonised Approach for National Space Legislation in Europe, Cologne 2004.
55Hobe/Cloppenburg, Towards a New Aerospace Convention? Selected Legal Issues of "Space Tourism", Paper presented at the 47th Colloquium on the Law of Outer Space, Vancouver 4 8, 2004 (to be published), p. 1.
56Ibid., p. 6 et seq.
(Volta ao Sumário)
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