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Outer Space - Legal Perspective

Written by: Mahendra Subhash Khairnar - Student of LL.M.II. Dept. of Law, University of Pune
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  • 1. Legal Theories To Determine The Status of Outer Space

    Though there is no boundary line between airspace and outer space, both jurists and Governments are agreed that the sovereignty of the subjacent state does cease at some point in the space beyond become free.

    As to the outer space various theories and views been propounded. One of the theories advances the view that outer space as well as other planets and celestial bodies fall into the category of res nullius thereby implying that nations are free to appropriate them by traditional or other method recognized in international law.

    On the other extreme is the view that space and other planets are perpetually free for the exploration and use of all nations of world. In between these two views there are several other shades of opinion. of which the most commendable seems to be the view that outer space and other celestial bodies should be subjected to some international control to prevent their misuse.

    Three analogies have been suggested by the engineer and the diplomat to determine the status of outer space.

    i. Existing air law can provide a sound legal regime for space.
    There is strong section of opinion which believes that the existing regime of international law governing air navigation is adequate is adequate enough to be applicable to space. The Paris Convention of 1919 has been superseded by the Chicago Convention of 1944/ the Chicago Convention has adopted a declaration of national sovereignty over air space.

    ii. The Rules of International Law applicable to the High Seas should be applied to space
    It is suggested that the law of high seas offers many beneficial provisions which can be embodied with profit in the rules of international law meant to govern outer space. The problem of trespass by spacecraft during re-entry in to the earth's atmosphere should be solved by analogy to the law of innocent passage through territorial waters in maritime law./

    iii. The Legal Principles applicable to Polar Regions- Antarctica- are suitable for application to space-
    The Antarctica Treaty lays down that 'Antarctica shall be used for peaceful purposes only' and prohibits ' any measures of a military nature, such as establishment of military bases and fortification, the carrying out of military maneuvers, as well as the testing of any type of weapons.
    The similarities between outer space and Antarctica in respect of uninhabited by human beings, the difficulty of access, the lack of knowledge of the resources, make it really tempting to propose Anatrctica as an analogy.

    2. Laws Relating To Control And Regulation of Outer Space
    There are multiple players in the space debate, each having a political, economic or moral stake in the future of outer space The world today has reached a stage in the development of harnessing science and technology for destructive purposes which requires that nations of the world must learn to live together as individuals have done in the cause of human history , :when each can kill, all must co-operate.

    1 Development of Space Laws-
    The question of the peaceful uses of outer space was first debated in the United Nations in 1958 at the 13th session of the General Assembly.
    On March 15, 1958 then the USSR requested the inclusion in the Agenda of the 13th session of the GA of an item, The banning of the use of cosmic space for military purposes, the elimination of foreign bases on the territories of other countries and international co-operation in the study of cosmic space.

    2 Bi-lateral agreements on space co-operation
    i. US-Italian Space Co-operation Agreement in 1964
    ii. Franco-US Agreement on Joint Space Research Program- March 21, 1961
    iii. Soviet-US Space Co-operation Agreement Dec.5, 1962
    iv. Indo-US Agreement on Joint space Research Program Jan.14, 1963
    3 Outer Space Treaty, 1967

    The UN Treaty on Principles Governing the Activities of States in the Exploration and Uses of Outer Space including the Moon and pother Celestial Bodies.

    Effect of Outer Space Treaty
    Experts of international space law state that the moon falls under the legal concept of res communis, which means that it belongs to a group of persons and may be used by every member of the group, but cannot be appropriated by anyone. The effect of Outer space Treaty is to restrict control of private property rights, in the way that the law of the sea prevents anyone owning the sea.

    3. Bodies and Organs That Monitor Outer Space Activities

    1.United Nations Committee on the Peaceful Uses of Outer Space (COPUOS)

    The Committee on the Peaceful Uses of Outer Space was set up by the General Assembly in 1959 to review the scope of international cooperation in peaceful uses of outer space, to devise programs in this field to be undertaken under United Nations auspices, to encourage continued research and the dissemination of information on outer space matters, and to study legal problems arising from the exploration of outer space. There are currently 67 Member States. COPUOS also has two subcommittees: the Scientific and Technical Subcommittee and the Legal Subcommittee. COPUOS and the two subcommittees meet once a year at the United Nations office at Vienna, Austria.

    2.Conference on Disarmament (CD)

    Between 1985 and 1994, the Conference on Disarmament created an Ad Hoc Committee on PAROS. The CD delegations studied various ways and means of addressing the security challenges posed by human activity in outer space. UN Document A/48/305, Prevention of an Arms Race in Outer Space Study on the Application of Confidence-Building Measures in Outer Space (15 October 1993) reports on various confidence-building measures considered by the international community over that period. The Conference on Disarmament has not been able to agree on the formation of an Ad Hoc Committee with a mandate for outer space since 1994. This year, the CD has held a focused and structured debate on PAROS during its second session under the Russian Presidency.

    3.General Assembly First Committee for Disarmament and International Security

    The First Committee on Disarmament and International Security meet every year in October for a 4-5 wee Basic documents in International Law- (Et. By Ian Brownline, 4th Ed. 1995 Clarenton Press, Oxford, pp. 209-216)

    At each meeting Disarmament Counselors and Ambassadors read statements on General or Thematic issues, propose draft resolutions, and vote on the resolutions. All 191 member states of the UN can attend. There is generally an annual PAROS resolution up for vote; some years addition resolutions related to outer space are proposed and voted on. (See First Committee Monitor Report on PAROS, Final Edition 2006)

    General Assembly Resolutions
    2006: A/RES/61/58, Prevention of an arms race in outer space
    2006: A/RES/61/75, Transparency and confidence-building measures in outer space activities
    2005: A/C.1/60/L.27, Prevention of an arms race in outer space
    2005: A/C.1/60/L.30/Rev.1, Transparency and confidence-building measures in outer space activities
    2004:A/RES/59/65, Prevention of an arms race in outer space
    2003: A/RES/58/36, Prevention of an arms race in outer space

    4.General Assembly Fourth Committee on Special Political and Decolonization

    The Committee has played a crucial role in advancing space cooperation and provides a unique opportunity for the exchange of information among governments on the latest developments in the use and exploration of outer space. The fourth committee could be a better forum to work on preventing the weaponization of space than the first committee since the framework of this committee is based on development instead of security and there are more actors using space for development purposes than for military ones. The 4th Committee meets every year for a four or five week session following the General Assembly General Debate and is comprised of all UN member states.

    5.The International Telecommunication Union (ITU)

    ITU, headquartered in Geneva, Switzerland, is another international organization within the United Nations System where governments and the private sector coordinate global telecom networks and services. The ITU plays a vital role in the management of the radio-frequency spectrum and satellite orbits, finite natural resources which are increasingly in demand from a large number of services such as fixed, mobile, broadcasting, amateur, space research, meteorology, global positioning systems, environmental monitoring and, last but not least, those communication services that ensure safety of life at sea and in the skies.

    Although the current international legal instruments concerning outer space do, to some extent, prohibit and restrict the deployment of weapons, use of force as well as military activities in certain parts of space, the related provisions contained in them are seen by some states to be limited in scope and therefore inadequate for preventing weaponization of outer space. The progress of science and technology could make it necessary to strengthen the existing international legal system. There have been several suggestions on how to move forward. The Weapons of Mass Destruction Commission (WMDC) recommended a review conference of the Outer Space Treaty which could extend its scope and strengthen the Treaty. Another suggested step could the establishment of rules of the road (general practice and procedures) in outer space or confidence building measures. There are a number of states arguing for the creation of a completely new treaty, a PAROS Treaty.

    1. PAROS Treaty

    Negotiations on a PAROS Treaty
    The Conference on Disarmament (CD) is the primary body for negotiating this matter. The item was first included on the agenda in 1982. In 1985, the CD established a subsidiary body to deal with this topic. This committee analyzed issues and terminology, and examined existing and new agreements and proposals. It collected a valuable repertoire of information on the issue. Perhaps most importantly, this committee showed that it is possible to work multilaterally on this subject. This is critical because space and launch capability has not remained static; it has been further developed and proliferated. However, from 1985 to 1994 the committee faced a number of challenges that prevented it from negotiating any new measures. . Consensus is lacking within the CD regarding the specific mandate of any committee to do goal oriented work, as certain countries believe that it is not yet time for negotiations due to national security concerns.

    However, there are two states that seem unwilling to cooperate with the international community on the issue of PAROS. The United States and Israel have consistently abstained during voting on the PAROS draft resolutions in First Committee. In 2005, the US hardened its position, voting "no" for the first time. The US argues that the existing multilateral arms control regime is sufficient, and that there is no need to address a non existent threat. The US said in the Conference on Disarmament on June 13, 2006, "there is no - repeat, no- problem in outer space for arms control to solve."
    The United States sent a State Department official to the CD to make its most overt defense of its right to develop space weapons to date. "The high value of space systems has led the United States to study the potential of space-related weapons to protect our satellites from potential future attacks, whether from the surface or from other spacecraft. As long as the potential for such attacks remains, our Government will continue to consider the possible role that space-related weapons may play in protecting our assets." The US maintained its rejection of the negotiation of PAROS treaty at the 2006 First Committee session.

    Key players
    There are multiple players in the space debate, each having a political, economic or moral stake in the future of outer space. The United States is one of the states that is blocking progress of PAROS. The 1997 US SPACECOM document "Vision for 2020" outlined a new military vision to dominate the ace dimension and integrate space forces, in order to acquire "full spectrum dominance".

    Sri Lanka
    It is a much easier task to prevent an arms race in outer space then to control it once started. Sri Lanka brought up the importance of preventing an arms race by stating "Can we really afford an expensive competition in outer space when there remain so many other challenges before as such as poverty, hunger, disease and deprivation?"

    Russia and China have produced a working paper (CD/1779) where they discuss definitions of related concepts like Outer Space, Space Weapons, Space Objects and Peaceful Use of Outer Space. They also points out that a future PAROS treaty might not need specific definitions, as it would be so difficult to reach agreement on them. The Outer Space Treaty and the Moon Agreement do not have specific definitions and this has not lead to any legal disputes.

    China Stated in the Conference on Disarmament "Due to the complex nature of verification of outer space activities, which bears on the security interest of all countries, as well as to technical and financial constraints of verification, currently it is extremely difficult to negotiate a verification provision. For the time being, to put on hold the verification issue until conditions are ripe, and to negotiate a treaty without verification provisions could be a practical alternative."

    Russia concurred, "Elaborating the treaty without verification measures, which could be added at a later stage, might be a preferable option. Transparency and Confidence Building Measures could, for a certain period of time, compensate for the lack of verification measures in the new treaty."
    Transparency and Confidence Building Measures are a good step towards enhancing trust and international cooperation amongst states. They facilitate management of situations which could otherwise lead to international tension. Most states acknowledge that Confidence Building Measures do not replace verification but may function as a start to a step-by-step approach on preventing the weaponization of outer space. A working paper (CD/1778) was presented by Russia and China to the CD, suggesting different types of Confidence Building Measures including: exchanges of information, demonstrations, notifications, consultations and thematic workshops.

    Un office for Outer Space Affairs

    This is the Secretariat for the Legal sub- committees of the UN's Committee on the Peaceful Uses of Outer Space (COPUS)
    It is the primary international forum for the development of laws and principles governing outer space.
    The office prepares-
    - Parliamentary Services
    - Legal Studies
    - Background documents on various aspects of space law to assist member stress in their deliberation.

    Convention on Registration of Objects Launched into outer space - w.e.f. 1976

    Member states of UN conducting space launche4s have been requested by the committees to provide the UNM with information on their launchi9ngs. A registry of launching has been maintained by the Secretariat since 1962 in accordance wi9th General Assembly Resolution 1721 B(XVI) As on Jan1, 2007, 49 States have ratified, 4 have signed and two international inter-governmental Organizations (European Space Agency and European Organization of Meteorological Satellites) have declared their acceptance of the rights obligations provided for in the Registration Convention. 6.34 Laws relating to Outer space- In India
    India is one the member state of UN and signatory to many of its treaties as well as one technologically and scientifically develops country. The Constitution of India, the Supreme law of the land provides various provisions for observance of and to have state laws in tune with international treaties for promotion of international peace and security as well as for giving effect to international agreements.

    The Future of Space Law-

    While this field of the law is still in its infancy, it is in an era of rapid change and development, arguably the resources of space are infinite and limited only by our ability to use them in a manner that is fair and equitable to all nations. If commercial space transportation becomes widely available, with substantially lower launch costs, then all countries will be able to directly reap the benefits of space resources. In that situation, it seems likely that consensus will be much easier to achieve with aspect to commercial development and human settlement of outer space.

    Criticism on US role

    Achieving consensus on a PAROS Treaty will be a challenge in the CD. It is difficult to imagine that the rest of the international community will be able to prevent the weaponization of space without the full cooperation of the US, given that the US has the largest number of space assets and commands the greatest control over outer space resources. The US is effectively blocking progress in the CD on the negotiation of a PAROS treaty. The Six Nation Initiative proposing that a General Assembly Ad Hoc Committee for PAROS be established, in order to avoid the abuse of consensus rules in the CD, was effectively shut down by the US when they circulated a memo to the capitals of the six nations.

    To Conclude
    Outer space activity carried out by several states in the search of biological, mineral, oil, and other natural resources gave new threat to the existence of the peaceful world. Like no research is separated from the military operation this outer space also now being used for military base. Moreover, not much has come out of these multi-billion trips into space and to other planets. As, according to the estimate, a single such trip costs more than the combined annual budgets of the 100 poorest nations of a world suffering from malnutrition, illiteracy and war, it is not surprising that some people find the whole exercise a bit nauseating.

    The problem is not the expenses of maintaining a greying, polluting, secretive, middle-aged 'Space Age'- funded by officially or by private enterprise. Neither is it just the fact that our earliest hopes (easy space travel, evidence of life, global peace and co-operation etc.) have not been fulfilled.

    1. International Law through UN- Outer space and national sovereignty by Paras Diwan, Et. By R.C.Hingorani, 1972, pp.115-124, Publ.N.M.Tripathi Pvt. Ltd)
    2. Basic documents in International Law- (Et. By Ian Brownline, 4th Ed. 1995 Clarenton Press, Oxford, pp. 209-216)
    3. International Government- By Clyde Eagleton, 3rd Ed. The Ronald Press Co., New York )
    4. Principles of Public International Law- (By Ian Brownline , 5th Ed. Oxford Press, 1998)
    5. Outer space In World Politics (Et. By Joseph M. Goldsen, 1963 Pall Mall Press, London)
    6. Outer Space - A Problem in Politics By -I.D. Sharma, 1964 Agra, Laxmi
    7. International Law and the Uses of Outer Space, 1978- by Fawcett, Zasentuliyan and Lee
    8. International Law: Achievements and Prospects, by Dordecht, 1991

    About The Author: Participated In Various Academic Competitions such as Essay And Moot Courts, Participated and Presented a Paper on 'Human Rights' in World Peace Conference, 2006 held in MIT Pune by UNESCO Chair, Has Submitted Articles In Various Publications, Doing LL.M. In Administrative And Human Rights Law, Having Dissertation in Human Rights.

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