International Space Law


Gennady Zhukov • Yuri Kolosov





                INTERNATIONAL SPACE LAW









Translated by Boris Belitzky





2ⁿd edition, stereotyped







СТАТУТ
МОСКВА 2014

УДК 341.229
ББК 67.911.16
     Z 62









        Zhukov, Gennady

Z 62 International Space Law / G. Zhukov, Yu. Kolosov; Transl. by B. Belitzky. - 2nded., stereotyped. - M.: Statut, 2014. - 176 p. [Международное космическое право. — 2-е изд., стер. — М.: Статут, 2014. - На английском языке]

      ISBN 978-5-8354-1066-8 (в пер.)

         The authors of this book rank among the founders of international space law, and have been personally involved in formulating the rules of this new branch of law in the United Nations and other international bodies. They describe the mechanism that gave rise to international space law, trace its history, analyze its fundamental principles, and examine the legal aspects of many practical space activities: space communications, the remote sensing of the Earth, space meteorology, navigation, the exploration of celestial bodies, etc.

УДК 341.229
ББК 67.911.16









ISBN 978-5-8354-1066-8
© G. Zhukov, Yu. Kolosov, 2014
© L. Sedov, foreword, 2014
© Издательство «Статут» (Statut Publishing House), 2014

            FOREWORD



    As one who has endeavoured to promote international cooperation in space research and is well aware of the stumbling-blocks on this road, I would like to recommend this book as an earnest treatise covering the problems of international law in one of the newest spheres of human activity. Professor G. P. Zhukov’s and Dr. Yu. M. Kolosov’s book is a profound analysis of the juridical aspects of space exploration, and their conclusions rest on sound legal arguments.
    Soviet legal scholars were in at the birth of international space law, and the Soviet Union has always played a major part in establishing firm international regulation of the exploration and use of outer space for peaceful purposes. The authors of this book rank among the founders of international space law, and have been personally involved in formulating the rules of this new branch of law in the United Nations and other international bodies. They describe the mechanism that gave rise to international space law, trace its history, analyze its fundamental principles, and examine the legal aspects of many practical space activities: space communications, the remote sensing of the Earth, space meteorology, navigation, the exploration of celestial bodies, etc.
    Since international space law is developing parallel with space technology, the treatise reflects this close relationship of natural and social sciences. Indeed, in some cases lawmaking is even somewhat ahead of scientific and technological progress (a case in point is the Agreement on the Activity of States on the Moon and Other Celestial Bodies, adopted in the United Nations in 1979, which relates to the rights and duties of states in utilizing the natural resources of the Moon and the planets of the solar system). On the other hand, it lags behind practical needs, in other cases, a fact that may be traced, for one thing, to the different approaches of some states to this or that legal problem. A notable part in composing these differences and bringing the positions of states closer together is played by the UN Committee on the Peaceful Uses of Outer Space (COPUOS). Little wonder, therefore, that a considerable part of this treatise is devoted to analyzing the activities of this UN General Assembly agency, which formulates the rules of international space law and the basic principles governing the activities of states in the exploration and use of outer space.

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Gennady Zhukov, Yuri Kolosov “International Space Law”

    The mention of the United Nations Organization, one of whose purposes is defined in its Charter as being “to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character,” prompts me to emphasize the particular importance of international cooperation in space. Such cooperation is essential, if not inevitable, by virtue of such facts as the expediency of an international division of labor in this expensive area of research, the advantages of pooling scientific potentials as a means of speeding the progress of space exploration, the need to share the benefits of space exploration with countries unable to explore it on their own, and the danger of space technology being used for aggressive purposes. These considerations are invariably taken into account at the annual congresses of the International Astronautical Federation, in which I have participated regularly. The UN Committee on the Peaceful Uses of Outer Space likewise takes these factors into consideration in its work.
    The reader will probably be interested in the sections of this book that set out the Soviet approach to international space cooperation and explain the basic principles of Intersputnik and Intercosmos, international organizations formed by the socialist states.
    Undoubtedly, man’s intellect and the collective will of the nations of the world - the vast majority of which support cooperation in space on the basis of equal rights and mutual assistance - will overcome all the difficulties and bring about the day when all space activities are made to serve mankind’s peaceful needs. May these ideals always guide the jurists of all countries working in the field of international space law.

Leonid Sedov, Member,
Academy of Sciences of the USSR

            CONTENTS



Foreword ................................................................ 3
Introduction ............................................................ 9

Chapter One
THE CONCEPT AND SOURCES OF INTERNATIONAL
SPACE LAW ..............................................................10
    The Birth of a New Branch of International Law .....................10
    Title of the New Branch ............................................14
    Defining International Space Law ...................................15
    The Sources of International Space Law..............................17
    The UN Role in Formulating the Rules of International Space Law ....24
    International Space Law as a Science ...............................35

Chapter Two
THE PRINCIPLES OF INTERNATIONAL SPACE LAW ..............................38
    The International Space Code........................................38
    Freedom of Exploration and Use of Outer Space and Celestial
    Bodies .............................................................44
    Non-Appropriation of Outer Space or Celestial Bodies................48
    Exploration and Use of Outer Space and Celestial Bodies
    in Accordance with the Fundamental Principles of International Law, Including the Basic Principles of the UN Charter ...................51
    Partial Demilitarization of Outer Space and Total Demilitarization
    of Celestial Bodies ................................................55
    Retention by States of Sovereign Rights over Space Objects Launched ...........................................................62
    International Responsibility of States for National Activities in Space, Including Liability for Damage Caused by Space Objects..............65
    Prevention of Potentially Harmful Consequences of Experiments in Outer Space and on Celestial Bodies .............................68
    Assistance to Personnel of Spacecraft in the Event of Accident, Distress, or Emergency Landing......................................72
    International Cooperation in the Peaceful Exploration and Use of Outer Space and Celestial Bodies ................................74


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Gennady Zhukov, Yuri Kolosov “International Space Law”

Chapter Three THE LEGAL STATUS OF ARTIFICIAL SPACE OBJECTS ........................81
   Terms and Types...................................................81
   Components of Artificial Space Objects............................82
   National Registration of Space Objects............................82
   International Registration of Space Objects ......................84
   Specific Features of Space Object Registration ...................86

Chapter Four
INTERNATIONAL COOPERATION IN THE RESCUE OF COSMONAUTS........................................................88
   The 1968 Rescue Agreement ........................................88
   Steps to Rescue Space Crews in the Event of an Emergency Landing ..........................................................89
   Mutual Assistance and Rescue in Space.............................91
   Cooperation in the Discovery of Space Objects and in Their Return ...........................................................92
   Space Technology in the Service of Rescue Organizations ..........94

Chapter Five INTERNATIONAL RESPONSIBILITY FOR SPACE ACTIVITIES ...................95
   Concept...........................................................95
   Scope of the Convention...........................................96
   The Joint and Several International Liability of the Parties to a Joint Launching .............................................97
   Absolute International Liability for Damage ......................98
   The Problem of Limits to Liability ...............................98
   International Liability for Damage Resulting from Space Activities Not Conforming to International Law............................. 100
   International Liability for Damage Due to Fault................. 100
   Settlement of Claims.............................................. 101
   International Liability for Damage Caused by Other Types of Space Activities............................................. 102

Chapter Six INTERNATIONAL SYSTEMS OF SPACE COMMUNICATIONS ......................103
   Intersputnik ................................................... 103
   Intelsat ........................................................112
   Inmarsat ....................................................... 114


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Contents

Chapter Seven
PROBLEMS OF INTERNATIONAL LAW IN RELATION TO DIRECT TELEVISION BROADCASTING VIA SATELLITES ...............................118
   Direct TV Broadcasting as a Mass Medium .......................... 118
   Discussions in the United Nations ................................ 120
   Some Theoretical Problems of Direct TV Broadcasting .............. 123

Chapter Eight
PROBLEMS OF INTERNATIONAL LAW IN SPACE METEOROLOGY ................127
   The Principles of International Cooperation in Space Meteorology . 127
   The Regulation of Weather and Climate Modification Activities
   by International Law.............................................. 128
   Banning the Use of Spaceborne Environmental Modification Facilities for Military or Other Hostile Purposes................. 129

Chapter Nine
PROBLEMS OF INTERNATIONAL LAW IN REMOTE SENSING ......................131
   The Sovereign Rights of States to Their Natural Resources and Remote Sensing of the Earth from Outer Space ............................ 131
   The Discussion of the Legal Aspects of Remote Sensing at the United Nations............................................. 134
   The Joint Soviet-French Draft .................................... 135
   The United States Position........................................ 136
   The Position of Argentina and Brazil.............................. 136
   Discussions in the United Nations on the Organizational Aspects
   of Remote Sensing ................................................ 138
   The 1978 Convention................................................139

Chapter Ten
THE DELIMITATION OF OUTER SPACE ......................................141
   The Spatial Approach ............................................. 141
   The Functional Approach .......................................... 142
   The 1976 Bogota Declaration....................................... 143
   Soviet Proposals on the Delimitation of Air Space and Outer Space. 147
   The Problem of a Contractual Delimitation of Air Space
   and Outer Space .................................................. 149
   Freedom for Space Objects to Fly through the Air Space ofOther States ................................................... 152
   Concerning the “Outer” Limits of Space ........................... 153


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Gennady Zhukov, Yuri Kolosov “International Space Law”

    The Relationship between the Concepts of Outer Space and Celestial Bodies as a Sphere of Legal Regulation............................ 154
    The Relationship between International Law of the Air
    and Space Law......................................................155

Chapter Eleven
THE STATUS OF THE MOON AND OTHER CELESTIAL BODIES OF THE SOLAR SYSTEM IN INTERNATIONAL LAW ..............................158
    The Legal Status of the Moon and Other Celestial Bodies under the Space Treaty ........................................... 158
    The 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies ........................................159
    The Legal Status of the Moon’s Natural Resources and the “Common Heritage” Conception ............................. 165

Conclusion ........................................................... 171
About the Authors .................................................... 175

            INTRODUCTION



    In its official announcement on the launching of Sputnik, on October 4, 1957, the Soviet news agency TASS stated: “The successful launching of the first man-made Earth satellite makes a major contribution to the world’s scientific and cultural treasure-store.”
    In the quarter of a century since then, the internationally familiar Russian word “Sputnik” has been a reminder of the fact that the first-ever space vehicle was put in orbit by the Soviet Union, which has consistently advocated broad international cooperation in this new sphere of human activity.
    This quarter of a century has seen several fundamental principles formulated to govern practical activities in space. These principles are set down in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, which became effective on October 10, 1967, and which will be hereafter referred to simply as the Space Treaty.
    The principles of international space law form an important clement of the system of new principles of general international law that reflect the efforts of the Soviet Union, the other countries of the socialist community, and all peaceable states to promote detente, prevent another world war, and bring about general and complete disarmament.
    Besides this, the rules of international space law establish a specific legal order for outer space and space activities, an order that provides for freedom to conduct scientific research in space, and regulates the use of space technology for various economic and cultural purposes. It may, indeed, be said that a reliable code of behavior now operates in international space affairs in keeping with the basic objectives of international cooperation and mutual understanding.
    Nevertheless, new political and legal problems keep arising as science and technology make headway, and as the practical applications of space technology increase. The evolution of international space law - and, for that matter, of international law in general - is influenced by the objective needs of states and, specifically, by such factors as changes in the correlation of strength on the international scene, the foreign policies of states, and world opinion, to mention only a few such factors.
    The Space Treaty, naturally, could not cover all the details of activities in space, which are steadily expanding. Its principles provide a basis for concluding other agreements, which must not contradict the fundamental provisions of the Space Treaty. It is from this angle that the evolution of space law should be viewed.

Chapter One


            THE CONCEPT AND SOURCES OF INTERNATIONAL SPACE LAW



        THE BIRTH OF A NEW BRANCH OF INTERNATIONAL LAW

   Whereas the international law of the sea took centuries to assume shape and the international law of the air arose over a period of decades, international space law has come into being literally before our eyes. It began to develop in the 1960s as states started regularly launching objects into space.
   Quite a number of international documents have been adopted since then to regulate the space activities of states and the legal order of outer space, including the Moon and other celestial bodies. Foremost among these is the Space Treaty. Its text was worked out within the framework of the United Nations, and on December 19, 1966, it was unanimously approved by the XXI session of the General Assembly. On January 27, 1967, the Space Treaty was open for signing by all states in Moscow, London, and Washington, and on October 10th that same year it became effective, a date now regarded as the birthday of international space law.
   An important step on the road to concluding the 1967 Space Treaty was the Declaration on Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, adopted on December 13, 1963 . The Space Treaty was also preceded by the Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space, and Under Water, which was signed in Moscow, London, and Washington on August 5, 1963, and by a Soviet-American agreement not to station in outer space any objects carrying nuclear weapons or any other kinds of weapons of mass destruction. This ban was given enactment in UN General Assembly Resolution 1884 (XVIII) on October 17, 1963.
   On December 19, 1967, the General Assembly unanimously approved the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space - UN General Assembly Resolution 2344 (XXII). The Agreement was open for signing in Moscow,


      UN General Assembly Resolution 1962 (XVIII)


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Chapter One. The Concept and Sources of International Space Law

London, and Washington on April 22, 1968, and became effective on December 3rd that same year.
   On November 29, 1971, the Assembly approved the Convention on International Liability for Damage Caused by Space Objects. It was made available for signing in Moscow, London, and Washington on March 29, 1972, and became effective on August 30th that year.
   In 1974 work was completed on the Convention on Registration of Objects Launched into Outer Space, which was made available for signing at the UN Headquarters in New York on January 14, 1975, and became effective on September 15, 1976.
   On July 3, 1979, the UN Committee on the Peaceful Uses of Outer Space (COPUOS) finalized the Agreement on the Activity of States on the Moon and Other Celestial Bodies, which was made available for signing in New York on December 18, 1979.
   Meanwhile, international intergovernmental organizations were participating more and more actively in space activities. This being so, the basic principles of the above-mentioned agreements on space were made applicable to any such organization on the conditions that it “declares its acceptance of the rights and obligations provided for” in them and that “a majority of the States members of the organization are State Parties” to them “and to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies.”¹ As for the provisions of the Space Treaty, they are, in accordance with Article XIII, applicable to the space activities of states in international intergovernmental organizations even without these conditions.
   A World Administrative Radio Conference, held in Geneva from September 24 to December 6, 1979, adopted new Radio Regulations, which on January 1, 1982, superseded the 1959 Regulations. The 1959 Regulations, which had for the first time apportioned frequencies for space radio services, were in 1963 and 1971 amended and supplemented as far as the regulation of space radio services was concerned. The new Radio Regulations take into account all the amendments of the past 20 years, and revise and enlarge this table of frequency allocations with a view to the growth envisaged in space radio communication.
   On August 20, 1971, Agreements Relating to the International Telecommunications Satellite Organization Intelsat were signed in Washington; these agreements became effective on February 12, 1973. At the initiative of the ¹

    ¹ See Article VI of Rescue Agreement, Article XII of the Liability Convention, and Article VII of the Registration Convention.

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Gennady Zhukov, Yuri Kolosov “International Space Law”

Soviet Union and eight other socialist countries, an Agreement was signed in Moscow on November 15, 1971, on the Establishment of the Intersputnik International System and Organization of Space Communications. This agreement became effective on July 12, 1972.
    In addition to these, many other multilateral - and also bilateral - international agreements have been signed on cooperation in the exploration and use of outer space.
    This has extended to outer space not only the principles of general international law, including the principles of the United Nations Charter, but also specific rules of international law intended to regulate the relations arising between states in connection with their activities in the exploration and use of outer space, including the Moon and other celestial bodies. At the same time these specific rules lay the foundations for an internation legal order covering outer space, the Moon, and other celestial bodies.
    The activities of states in the exploration and use of outer space by means of space technology have come to be referred to in official documents and in the specialized literature as “outer space activities.” In the opinion of Professor Marco G. Marcoff, state activities that do not pursue the aim of the exploration or use of outer spare cannot be treated as space activities even should they be conducted by space technology.²
    It must be borne in mind, however, that space activities are not confined to outer space. They may be conducted on the ground as well, but must be organically connected either with the launching of a space object and its operation, or with the return of the object to Earth. In the Soviet literature space activities are defined as “activities conducted by launching space vehicles for the exploration of space and celestial bodies, and/or their use for practical purposes.”³
    The regulation of the space activities of states by international law directly involves establishing a legal order in outer space in which such activities are mainly conducted. The Soviet doctrine proceeds from the assumption that international space law has the purpose of regulating the space activities of states and at the same time establishing a definite legal order in outer space. It was this approach that was basic to the May 24, 1972, and May 18, 1977, Agreements Between the Union of Soviet Socialist Republics and the United States on Cooperation in the Exploration and Use of Outer Space for Peaceful Purposes, which provide that “the Parties will encourage international efforts

     ² Marco G. Marcoff, Traite de Drooit international public de I’espace, Editions Universitaires Fribourg Suisse, Fribourg, 1973: pp. 37-38.

³ International Space Law, Progress Publishers, Moscow, 1976: pp. 11-13 and 33-34.

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Chapter One. The Concept and Sources of International Space Law to resolve problems of international law in the exploration and use of outer space for peaceful purposes with the aim of strengthening the legal order in space and further developing international space law, and will cooperate in this field” (Article 4).
    International space law is treated by Soviet scholars as a new branch of general international law in its own right. Most Soviet experts object to defining international space law as an independent juridical system.
    It should be remembered that the space programs of individual countries are themselves regulated by appropriate rules in the national law of those countries. As these rules continue to develop, it is quite probable that there will emerge national space codes, similar to the maritime and air codes presently operating in all countries. Accordingly, it should in future be possible to speak of the space law of the USSR, the USA, Britain, France, Japan, Canada, Brazil, Argentina, India, and other countries.
    But at the same time, in the course of the individual or joint activities of states in exploring and using outer space, including their activities in international organizations, there arises a certain area of international relations that requires special regulation in international law. Objective prerequisites thus arise for building up, within the framework of international law, a new branch of general international law, similar to the established International Law of the Sea, the International Law of the Air, and other such branches. These objective prerequisites are translated into reality by the conclusion of international agreements on space and the formation of the rules of international space law.
    In a Soviet textbook of international law published in 1974 (edited by Professor Grigory Tunkin), the establishment of international space law as a new area of general international law is treated as a result of the activities of states in exploring and using outer space.⁴
    In their book International Space Law, a group of Soviet legal scholars define the status of international space law in the general framework of international law in the following terms: “International space law and international law as a whole have common principles, which makes it possible to claim that the former is a part of the latter as one whole. Owing to the specific features of its principles and rules, space law cannot possibly be identified with other branches of international law.”⁵

    ⁴ G.I. Tunkin, ed., Mezhdunarodnoe pravo [International Law], Yuridicheskaya literatura, Moscow, 1974: p. 71 (in Russian).

    ⁵ International Space Law: p. 45.

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Gennady Zhukov, Yuri Kolosov “International Space Law”


        TITLE OF THE NEW BRANCH

    Back at the beginning of the century there was much discussion about naming the area of law connected with the development of aviation (international air law, aeronautical law, aviation law, etc.). Similarly, after October 4, 1957, the question arose of how to name the area of law concerned with regulating the relations of states arising in connection with their activities in exploring and using outer space. Various names were proposed: “astronautical law,” “etheronautical law,” “interplanetary law,” “interstellar law,” “extraterrestrial law,” the “law of extraterrestrial possessions,” “satellite law,” and, finally, “space law” and “outer space law.”
    The sponsors of this or that name sought to emphasize this or that aspect of human activities in space, as, for examples, those suggesting “astronautical law” and “etheronautical law” wished to accentuate the element of navigation (“nautical”). The Uruguayan legal expert Alvaro Bauza Araujo thus defined “astronautical law” as law regulating navigation among celestial bodies.⁶
    On the other hand, the Argentine lawyer and diplomat Aldo Armando Cocca has argued that the name “astronautical law” should be given up because in outer space, unlike on the seas or in the air, there can be no continuous navigation. Besides, spaceflight as we know it is between planets rather than between stars, and the use of the prefix “astro” is therefore unjustified. Finally, such a name fails to take into account the need for the legal regulation of the status of the Moon and the planets of the Solar System.
    Cocca prefers to speak of “interplanetary law,” which covers the study of celestial bodies as well as travel in space. It has been pointed out in the literature, however, that this name would appear to refer to legal rules governing the relations between inhabitants of different planets. And since man has not yet settled the planets of the Solar System, there are no grounds for speaking of “interplanetary law.” Moreover, such a term would exclude from legal regulation artificial Earth satellites, manned spacecraft, orbital stations, and the many other objects whose functioning is concerned with the exploration and use of outer space.
    As for the term “extraterrestrial law,” it has been pointed out that it would, by implication, divide law into two parts: one related to the Earth and the other entirely divorced from it. Such an approach disregards the fact that there will always be some relationship between the Earth and the rest of the

    ⁶ Alvaro Bauza Araujo, in: Problemy kosmicheskovo prava [Problems of space law], Moscow, 1961: p. 82 (in Russian).

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