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NEW INSIGHTS INTO SPACE ACTIVITIES REGULATION: AB ORIGINE
TO CONTEMPORARY
Marinich Volodymyr
Ph.D candidate in Law
National University of Life and Environmental Sciences of Ukraine,
member of the Scientific lab NGO «Cosmic Law Portal»
ORCID https://orcid.org/0000-0002-3206-1436
Myklush Maryna
CEO, Law Group “FOX”,
member of the Scientific lab NGO «Cosmic Law Portal»
ORCID https://orcid.org/0009-0005-2202-9482
Holub Svitlana
senior lecturer
Department of Criminal Law, process and Criminology
Academy of Labour, Social Relations and Tourism, Ukraine,
member of the Scientific lab NGO «Cosmic Law Portal»
ORCID https://orcid.org/0000-0003-2365-064X
Abstract
The research presents new perceptions on the process of regulating space
activities based on a synthesis of innovative approaches to regulating such activities
and analysis of documents adopted by the international community in this area over
the entire period of development of space activities.
First of all, the research raises the issue of the format of the existing Space
Law (including the form of Conventionalis stipulatio) as well as the question of the
possibility of the emergence in the future of several new legal systems to regulate
space activities. In this regard, the list of subjects and objects of space activities and
space law is revised, and options for their classification and new interpretations are
proposed.
In addition, at this stage of the research, a proposal is presented for applying a
new approach to organizing the legal space of the Universe taking into account the
principles of “domestic room” and “alien room”. At the same time, this proposal
also includes the use of new methods to determine the spatial-territorial jurisdiction
of States. Thus, instead of searching for the border between airspace and outer space
(which has not yet been successful), the question of the possibility of dividing the
entire aerospace into several special layers is considered, namely, a layer of spatial
security of States, a layer of spatial security of humanity, and open space.
Additionally, the research emphasizes the gradual formation in 1958 – 1963 of
the first four most important General Principles for Space Activities, which in the
future may become the basis for the development of Outer Space Public Law aimed at
the benefit of all humanity.
According to the author, the findings of this research can be useful to form a
new insight into the process of regulating space activities and develop new forms and
types of Space Law that will change the international situation in this area for the
better.
Keywords: space, space law, space activities, principles, subjects, objects,
jurisdictions.
INTRODUCTION
Compared to the 20th century, in the 21st century space activities have shifted
to a new technological and political level of development. The orbits of the Earth are
massively occupied by artificial satellites of States and private companies, research
stations are sent to the Moon and Mars, plans are being made for the exploration of
asteroids and the colonization of the Moon and Mars, and outer space is massively
saturated with military satellites and weapons. Moreover, on November 07-08, 2023,
at the COSMIC Kickoff Meeting, representatives of NASA and the US White House
stated the existence of space armed forces, preparation for celestial bodies
colonization, and war in outer space and on celestial bodies.
It is possible to say that the era of global space confrontation has begun. If the
process of regulating space activities does not move to a new, qualitatively higher
level, then such confrontation threatens all mankind with an orbital satellite war,
which can develop into a large-scale space war. At the same time, the mentioned war
could lead to the destruction of all mankind. There will be no winners in this war, and
the loser will be humanity.
In turn, such an unfortunate state of affairs in space law indicates that existing
international law has ceased to regulate space activities and is gradually turning into
atavism. At the same time, even a superficial glance is enough to understand that
today the process of regulating relations in outer space and on celestial bodies
resembles frozen volcanic lava. This lava previously flowed in different directions,
bypassing uncomfortable areas, and is now frozen in different places resembling a
patchwork and leaky blanket with a lot of patches.
Thus, we can conclude that international law in its present form cannot solve
current problems in regulating space activities.
THE AIM OF THE STUDY. To make a positive difference in Space Law, it
is necessary to find new formats and approaches to regulating space activities. First
and foremost, it is necessary to reanalyze the process of development of Space Law
from its origins to the present.
The article is aimed at developing a new vision and understanding of Space
Law based on the results of previous research on this topic.
Materials and methods
To date, many scientists, diplomats, and honored lawyers have studied the
evolution of the process of regulating space activities, for example, Malysheva N. R.,
Galunko V. V., Stelmakh O. S., Marcia S. Smith, Cheng B., Albert K. Lai, Csabafi I.
A., Asamoah O. Y., Ogunbanwo O. Ogunsola, Everett C. Dolman, Diederiks-
Verschoor I. H. P., Kopal V., Jonathan F. Galloway, Shaw M. N., Tronchetti F.,
Lissitzyn O. J., and others.
However, it should be noted that all of them mainly provide deep analysis only
of global international documents on the regulation of space activities, such as
international treaties or UN conventions. At the same time, other international
documents, such as Resolutions and Declarations adopted by the United Nations
General Assembly (the UN GA or the UN General Assembly) were subjected to only
superficial analysis concerning their insignificance. In turn, it was precisely this
position that led to the emergence of a “patchwork” and “leaky” quilt, which today
consists of the so-called Space Law, where most of the processes have remained
unsettled or are irresponsibly violated.
In addition, it is necessary to pay attention to the fact that, in general, scientists
considered the process of regulation of space law only from the point of view of
states or international organizations bypassing the point of view of such participants
in space activities as people, non-governmental, and commercial organizations. This
has led to the fact that such studies have become one-sided and have missed other
important elements of the process of regulation of space activities.
In this regard, during 2021 – 2023, the authors of the article conducted the first
cycle of studies based on a deep analysis of all international documents in the field of
space activities regulation adopted by the international community in 1958 – 1963.
The results of these studies were published in the articles “Regulation of space
activities during the 1958-1963 period» [10], “Space Law, Subjects and Jurisdictions:
pre-1963 period” [11], «Outer space public law: the 1958-1963 period. Part 1» [8],
and «Outer space public law: the 1958-1963 period. Part 2» [9], “Fundamental
principles of outer space (cosmic) law development” [13], “The Outer Space
(Cosmic) Law Portal” [12].
To obtain the most effective scientific results of the research, general scientific
methods (analysis and synthesis, deduction and induction, and system-structural),
general philosophical methods (dialectical and hermeneutics), and special methods
(historical and legal, formal legal, comparative legal) were applied.
To date, the mentioned research cycle is the first thorough study of all
international documents in the field of regulation of space activities adopted by the
international community in 1958 – 1963.
The results of the above studies made it possible to form a new insight into the
process of regulating space activities and propose new forms and types of Space Law
that will change the international situation in this area for the better.
1. Outer Space Law. General concepts.
Any researcher who studies the processes of regulation of space activities
understands that Outer Space Law is a unique type of law.
That is why it cannot be compared with other types of law, such as maritime or
air law because these types of law regulate relations within Earth. In turn, the planet
Earth is the natural habitat of a human, where one is born, grows old, and lives, and
where all natural environments are interconnected with each other and with a human.
However, the environment for the application of Outer Space Law is the
Cosmos: open outer space, celestial bodies, stars, and other natural objects beyond
Earth that are not the natural habitat of humans and do not belong to anyone. That is,
outer space and celestial bodies are alien environments for a human, where one is
only a guest.
In this regard, we should not expect from Outer Space Law the classical form
of law due to the exclusivity of the environment concerning which this new law is
developed. This also applies to States for which Outer Space Law can be formed both
based on international treaties and unilateral obligations of States set out as joint
public promises (Conventionalis stipulatio), which can be considered Resolutions and
Declarations of the General Assembly of the United Nations (the UN General
Assembly or UNGA) or other similar official documents [11, p. 575].
Moreover, Outer Space Law would not always rely on hard international acts,
and in the future, it may be based on new principles and conditions beyond State
agreements, especially in the part that concerns human relations. No one deprives the
United Nations of the capacity to develop a unified Outer Space Law for States, but
this does not mean that people (in person, or through private companies, or non-
governmental organizations) cannot elaborate their agreements on relations in outer
space and on celestial bodies outside the United Nations. On the contrary, this means
that there may be a large number of such agreements, depending on the number of
space communities established on the basis of such agreements.
In turn, given the possibility of creating an unlimited number of different space
communities, Outer Space Law may also consist of an infinite number of treaties,
declarations, or other documents regulating relations in such communities that can
have different subject compositions and be based on different principles and
ideologies, which in turn can form different legal systems.
At the same time, already at the initial stage, it can be assumed that these legal
systems may be worlds apart from each other.
For example, there may be legal systems designed for “Animal Rationale”
individuals who can understand and voluntarily adhere to equitable principles [11,
p. 574]. In this case, such legal systems would not be based on strict coercion to
comply with norms of behavior but on voluntary compliance with any general
principles, showing how to act correctly (fairly) and incorrectly (unfairly) without
responsibility for incorrect actions.
There may also be classical legal systems that assume that all individuals are
only “Animal capax Rationis”, that is, they could comply with rules (norms) only
under the pressure of fear and responsibility [11, p. 574]. Such legal systems would
establish (impose) mandatory compliance with specific rules of behavior (norms)
despite doubts about their fairness with the mandatory establishment of responsibility
for their violation.
There can be an infinite number of such legal systems. That is, it follows that
Outer Space Law in a global projection may consist of diverse and fundamentally
different legal systems. At the same time, some of these systems may already exist,
and some may only be developed in the future.
Such diversity can exist until all cosmic communities decide to act based on a
single generally accepted document (but only by voluntary agreement) or until they
all move to a new level of spiritual relations.
Taking into account the above, as well as given previous studies, Outer Space
Law can be described as a set of legal systems regulating space activities, implying
different legal ideologies and various subject composition, and also an environment
of application that extends to outer space and celestial bodies beyond Earth [11,
p. 576].
2. Legal systems of Outer Space Law.
Based on previous studies from this cycle, today we can assume the formation
over time of at least three legal systems of Space Law, namely, Outer Space Law of
Principles (or Animal rationale ius), Outer Space Private Law (or Cosmic Private
Law), Outer Space Public Law (or Cosmic Public Law) [11, p. 576].
At the same time, taking into account the previously stated legal aspects [11,
p. 574–576], these systems can be described as follows.
2.1. Outer Space Public Law. Outer Space Public Law is a legal system that
is a part of the Corpus juris gentium but has distinctive features associated with the
conditions of its application in a space that is alien to both people and States.
At the same time, as practice has proved, public international law lacks
mechanisms to ensure its implementation. That is, neither the State, the union of
states, nor the international community as a whole has a generally recognized
executive apparatus capable of legally forcing any State to fulfill its international
obligations (except for unlawful force or economic coercion). Moreover, this is
impossible in outer space beyond the jurisdiction of all States. Thus, it shall be
recognized that in public international law, it is impossible to establish binding rules
for all States but only to agree on negotiated obligations.
In this regard, Outer Space Public Law would also consist only of the legal
obligations of States (and then only until the relevant States renounce them) and may
be described as follows.
Outer Space Public Law (or Cosmic Public Law) is a legal system of
permanent obligations assumed by public subjects of space activities (various forms
of political-territorial organization of society such as States and similar
organizations as well as their unions and associations) regulating the activities of
such subjects and the relationships between or among them in Cosmos.
At the same time, such obligations of public actors can be of several types, for
example contractual (mutual) obligations (the fulfillment of which is carried out only
if they are fulfilled by all parties to the relevant international treaty), unilateral
obligations (stipulatio), joint unilateral obligations (Conventionalis stipulatio), and
others types of obligations.
These obligations, in formal terms, can be assumed by public subjects together
with responsibility for the failure to fulfill such obligations or without such
responsibility. However, given the absence of a mechanism for holding public
subjects and entire nations accountable, such responsibility would be only a formal
element of this law.
2.2. Outer Space Private Law. In turn, Outer Space Private Law is a classic
type of law, that is, it is similar to the law that is common in modern society. Its only
differences would be the conditions of its application (alien environment) and the
conditions of control (civic non-public bodies). Thus, Outer Space Private Law can
be described as follows.
Outer Space Private Law (or Cosmic Private Law) is a legal system of
permanent norms (rules of behavior) that are formed, controlled, and enforced by
non-public subjects of space activities (organizations and/or individuals unable or
unwilling to voluntarily comply with equitable principles) within the society or
communities they created, and which regulate the behavior and relationships of such
subjects in Cosmos.
In a sense, Outer Space Private Law can be compared to the INCOTERMS
(enforcement of which is carried out by arbitration courts and Chambers of
Commerce and Industry) but only on a larger scale and in a different environment of
application.
Accordingly, there is a high probability that the development and control of the
implementation of Outer Space Private Law would also be carried out by similar
bodies and organizations, for example, Space Arbitration Courts and Space
Chambers.
2.3. Outer Space Law of Principles. The peculiarity of this legal system is
that the Outer Space Law of Principles is the exclusive right of individuals, and only
they could be its authors (creators). That is, neither States, private companies, unions
of States, nor their representatives could be the authors (creators) of the Outer Space
Law of Principles since this right is not and cannot be another element of the Corpus
iuris gentium.
At the same time, any system of principles of space activities created within the
framework of the Outer Space Law of Principles may only be based on voluntary
compliance with such principles within a voluntary society (or community) that
accepts these principles as a basis or was established based on such principles. That is
to say, no one can ever force anyone to perform or oblige to comply with any system
of permanent principles of space activities within the framework of the Outer Space
Law of Principles.
Proponents of classical legal systems may call this system utopian because they
do not believe in the ability of people to create equitable principles and voluntarily
comply with them. However, this system is a viable option and can be described as
follows.
Outer Space Law of Principles (or Animal rationale ius) is a legal system that
may consist of one or many systems of permanent principles of space activity formed
by individuals within the voluntary society or community they have created and
describing fair forms of relationships and behavior of individuals (Animal rationale)
in Cosmos.
At the same time, due to the lack of security for the Outer Space Law of
Principles (in the form of enforcement of the principles or establishment of
punishment for their non-compliance), control of compliance with the principles of
space activity can be carried out either by each individual or by a group of individuals
or by the entire society (or community). Such control may also be exercised by
permanent or temporary non-public bodies or organizations established within the
relevant society (or community) that have the right to make decisions regarding
compliance with the principles of space activities. At the same time, such decisions
can be acts of a purely advisory and/or informational nature.
The prototype of such a legal system as the Outer Space Law of Principles can
be oral or written agreements between two or more crew members of spaceships or
space stations based on which they voluntarily regulate their relationships in space.
However, when it comes to such a permanent community, today it is unknown
about the existence or attempts to create at least one system of permanent principles
of space activity within the framework of the Outer Space Law of Principles. Most
likely, this is the type of “law” that has yet to be introduced, and which over time
would go beyond dogmatic models and become a new type of law for the entire
Universe - “Universum ius”.
3. Subjects of Space Activities and Outer Space Law.
3.1. Subjects of space activities.
The subject of any activity usually implies an initiator and active participant in
such activity, who has a goal and moves towards it and also makes decisions and
controls such activity [15, p. 39].
In this regard, subjects of space activities include all participants in space
activities - that is, those who carry out activities related to the exploration and/or use
of outer space and celestial bodies on Earth and/or beyond it [11, p. 576, 577].
Therefore, the subjects of space activities can be considered all types of
individuals, non-state societies and communities as well as all types of public actors
(various forms of political-territorial organization of society such as States and
similar organizations as well as their unions and associations) who carry out
activities on Earth and/or beyond it related to the exploration and/or use of outer
space and celestial bodies.
3.2. Subjects of Outer Space Law.
In turn, subjects of law are commonly understood as participants in legal
relations (actual or potential) who have legal capacity (formal legal capacity and
dispositive legal capacity) in specific legal relations and can perform subjective rights
and legal duty in such legal relations [1, p. 394, 395].
Moreover, under the classical canons of law, at birth, any individual on Earth
enjoys legal capacity that is recognized by public subjects of international law and
public subjects of national law (States) by the place of national registration of such
person and regardless of the participation or desire to participate in legal relations [1,
p. 395].
For this very reason, subjects of law on Earth can be of two types as follows: a
person who participates or declares a desire to participate in legal relations (an actual
participant in legal relations) and a person who does not participate in such relations
and does not declare the relevant desire (a potential participant in legal relations).
However, these rules cannot apply beyond Earth, since Cosmos is an alien
environment for all legal actors on Earth (including States) and lies beyond their
jurisdiction and national registration. Accordingly, classical Earthly legal capacity
established by subjects of international law and subjects of national law on Earth does
not apply to subjects of legal relations in the Cosmos.
In this regard, and given the fact that no one can establish a legal capacity for
anyone in the Cosmos (since no one has jurisdiction in the Cosmos), the implication
is that the Cosmic legal capacity is not the original attribute for all subjects of legal
relations on Earth (that is, it is not implied at birth). Accordingly, the Cosmic legal
capacity cannot exist for a potential participant in legal relations - that is, it cannot
exist for a person who does not participate and does not declare a desire to participate
in legal relations. In this case, it can be shown that the Cosmic legal capacity may be
attributed to an actual participant in specific legal relations related to space activities -
that is, the person who participates or has expressed a desire to participate in such
legal relations with subsequent adherence to the provisions of the relevant legal
systems of Outer Space Law.
Thus, the subject of Outer Space Law can only be an actual participant (who
participates or is willing to participate) in specific legal relations related to space
activities and is capable of exercising subjective rights and legal obligations in such
legal relations.
In turn, according to existing dogmas, which are based on the canonical
interpretation of the concept of a subject of law, it is generally accepted that only
States and international organizations, on the similarity of the United Nations, can be
subjects of Outer Space Law [15, p. 39]. This is justified by the fact that only States
and international organizations are participants in international legal relations that
arise in connection with space activities carried out under their jurisdiction and
control [15, p. 39].
Certainly, in matters that concern Outer Space Public Law, this point of view
may be partly correct, since States and international organizations can indeed be
subjects of such law. However, the above list of subjects of Outer Space Public Law
can be considered complete only for the present, provided this point of view does not
take into account the possibility of the emergence in the future of new political-
territorial organizations of societies (the form of which may differ from the form of
the State) on celestial bodies and even in outer space beyond Earth.
That is, it would be more correct to regard the subjects of Outer Space Public
Law as all types of public actors (various forms of political-territorial organization
of society, including States and similar organizations, as well as their unions and
associations) who take part in legal relations related to space activities by officially
acceding to any provisions of Outer Space Public Law.
At the same time, it is necessary to understand that in the process of space
activities, new legal systems may be formed that differ from Outer Space Public Law,
which have been discussed in this article (for example, Outer Space Law of
Principles or Outer Space Private Law). Accordingly, for new legal systems, the
interpretation of the concept of a subject of law would differ from the previous
formulation.
For instance, taking into account the features of Outer Space Private Law
described in this article, it can be concluded that the subjects of Outer Space Private
Law can be all types of individuals, non-state societies, and communities that take
part or want to participate in certain legal relationships related to space activities by
adherence to the relevant provisions of Outer Space Private Law.
In turn, only Animal rationale individuals who openly declare recognition and
explicitly comply with the relevant provisions of the Outer Space Law of Principles
can be subjects of the Outer Space Law of Principles.
4. Objects of Space Activities and Outer Space Law.
4.1. Objects of space activities.
Under the object of any activity is usually understood the passive and initiated
aspect of such activity concerning which the subject’s activity is directed [15, p. 39].
Accordingly, objects of space activity can be all objects and goals of space
activity claimed by subjects of space activity [11, p. 577].
However, regarding objects of space activities declared in international
documents during 1958-1963, first of all, it is necessary to pay attention to “an object
launched into outer space”, since under the provisions of Paragraph 7 of the
Declaration of Legal Principles, it is these objects to which there were proposed to
extend the jurisdiction of States beyond Earth [18].
At the same time, the extension of such jurisdiction was conventional and
formal, whereas, at the end of 1963, there was no precise definition of the concept
“an object launched into outer space” in the Outer Space Law. Additional confusion
was also created by the fact that during this period other names for such objects were
repeatedly mentioned in United Nations documents, namely, “satellite” (the UN GA
Resolution 1721), “rocket launching facilities” (the UN GA Resolution 1802 ),
“space vehicle” (the UN GA Resolution 1802) [11, p. 577]. Thus, the term
“spacecraft” gradually became common in scientific literature. Further, the
mentioned term began to be used in Outer Space Law [6, p. 7].
However, at this point, there was no specific and generally accepted definition
and description for any of the above objects. By the way, at that time, there was an
urgent need for a legal and/or technical description of such “the space objects”. Over
the long period of development of Outer Space Law, various names and descriptions
were proposed for such objects.
As a result of lengthy debates, some experts proposed to create a classification
of “the space objects” according to technical and legal criteria for their definition and
identification in terms of the extension of state jurisdiction [6, p. 11–12].
Other experts concluded that the main criterion for determining “the space
object” shall be its purpose, including one related to the exploration and use of outer
space, involving celestial bodies [6, p. 12]. At the same time, it was proposed to use
this description principle for all similar “space objects”, namely, “launcher vehicle”,
“separate stages of the carrier rocket”, “the spent space objects”, “spacecraft”,
“artificial satellites of the earth, the moon or other celestial bodies”, “equipment on
the moon and other celestial bodies”, “interplanetary stations and laboratories”,
“orbiting space platforms”, “stations”, “installations”, “separate debris of spacecraft
that disintegrated”, and “space probes as well as detached parties of space objects”
[6, p. 12].
At the same time, this list that “the space object” cannot include “Land stations
(rocket launching sites, tracking and control stations, transmitting and receiving
stations)” [6, p. 12].
Subsequently, there was a question concerning the possibility of regarding such
objects as “spacecraft” (before and after its launch), and if so, the way to describe it
[6, p. 12].
In the end, most experts agreed that “the criterion ought to be the 'capability' of
spacecraft to move under said physical laws, [physical laws of astronautical flight]
or any more appropriate definition of the forces or mechanics of its evolution” [6,
p. 12].
As a result, the following alternative definitions have been proposed for both
“spacecraft” and generally for “the space objects” that are launched from the Earth
(although none of them have ever been admitted as a model):
- “’Spacecraft’ means any objects designed to move in outer space, not needing
support from the reactions of air” [6, p. 13];
- “All artificial bodies (manufactured by man) shall be space objects which are
launched from the earth, with or without crew, with the purpose of orbiting around
the earth, moon or the sun by making use of the laws of Keppler (celestial mechanics)
or of reaching from the earth another celestial body whether or not with the objective
to stay at the place of destination” [6, p. 13];
- “The definition of space object should [also] cover any object or its
component part launched with the view of performing flight in outer space for
exploration and use of space including the moon and other celestial bodies, till the
moment of its scientific dismantling or demolition” [6, p. 13];
- “On entend par engin spatial tout appareil susceptible de se deplacer dans
l'espace extra-atmospherique (et destine soit a s'y desintegrer, soit a s'y maintenir
conformement aux lois de la physique astronomique)” [6, p. 13];
- “Space device means any object launched toward (in the direction of) space.
(Appareil spatial signifie tout objet lance en direction de (vers) I'espace)” [6, p. 14];
- “Space device means any object intended for launching into space. (Appareil
spatial signi/ie tout objet destine it. etre lance vers I' espace)” [6, p. 14].
The essence of all these proposals was to develop one unique name for all
“space objects” that could be subject to State jurisdiction and provide a generalized
and at the same time precise definition applying a technical description.
However, this was precisely the main drawback of all these proposals. They
proceeded from the technical description of the object, and not from the essence of
the issue that they needed to solve.
That is, to resolve the issue of jurisdiction regarding “the space objects” in
outer space, there was no need for their detailed description. It was enough to simply
indicate that this jurisdiction could extend to the corresponding “artificial object in
outer space or on a celestial body” (Outer space artificial object or Cosmic
artificial object). At the same time, for jurisdictional issues, it also does not matter
what this object is called, what purpose this object had before it was launched into
outer space, or before it was assembled in outer space.
Taking into account all of the above, as of the end of 1963 the following
objects in outer space or on celestial bodies could be classified as Cosmic artificial
objects (artificial objects in Cosmos): satellites, objects launched into outer space,
space vehicles, spacecraft, rocket launching facilities, equipment that used in space
activities and other similar objects [6, p. 577].
As for the description of “the space objects” located on the Earth or in its
airspace, the answer can also be quite simple.
Take as an example “a motorized bicycle”. At the moment when a driver
pedals it, this vehicle is a bicycle, while at the moment when the engine is used, it
functions as a moped. That is, if a given device is intended to be both a bicycle and a
moped, then it is called, respectively, a bicycle or a moped at the time of its use,
depending on the way it is used.
In turn, if we take a tank, it becomes clear that it can be used to transport
passengers. However, everyone understands that the only purpose of this technical
equipment is to be used as a tank, that is, a military weapon.
Taking into account the above, we can conclude that if the corresponding
object is intended only for flights into outer space, then it can be conditionally called
“spacecraft” and it would include all the equipment and its components, which are
planned to be launched.
Provided such an artificial object is intended for flights both in outer space and
in the airspace of the Earth, then during targeted flights in the airspace of the Earth it
will have the status of “aircraft”, and during a targeted flight into outer space or back
it may have “spacecraft” status.
That is, we can conditionally say that a “spacecraft” is an artificial object the
purpose of which is to fly into outer space and/or back, and which includes all the
equipment and all its components that are planned to be launched.
At the same time, the place of such a launch can be either the Earth or the place
of its assembly in outer space or on a celestial body.
In addition, it shall be taken into account that when such “spacecraft” moves
into outer space beyond Earth, the mentioned “spacecraft” and all its parts and
equipment would retain their names, but from a legal point of view, they turn into
Cosmic artificial object (that is, artificial objects in outer space or on a celestial
body).
However, before leaving the Earth's airspace, such “spacecraft” would have the
legal status of a “Pre-Space Artificial Object” (or “Pre-Cosmic artificial object”).
As for other objects of space activity, it is also necessary to underline the
appearance during this period of such objects as “satellite communication”, which
can conditionally be attributed to technical phenomena [6, p. 577].
Additionally, the UN Resolutions have repeatedly drawn attention to studies of
any changes occurring on planet Earth as well as any phenomena in the Universe
outside the Earth, which can be conditionally classified as natural phenomena [6,
p. 577].
At the same time, the main objects of space activity have always been such
objects as outer space and celestial bodies, which can be classified as Space natural
objects (or Cosmic natural objects). However, it is necessary to remember that
these objects could have an additional status. Thus, outer space can be characterized
as a separate all-encompassing spatial-territorial unit that does not fall under the
jurisdiction of any State on Earth. Therewithal, the celestial body can be
characterized as a separate large spatial-territorial unit, which also does not fall
under the jurisdiction of any State on Earth (except for the territories of the States on
Earth, considering Earth is classified as a celestial body) [6, p. 577].
Thus, summing up the study of objects of space activity, it may be concluded
that such objects can be conditionally divided into several types, namely, natural
space objects, pre-space artificial objects, artificial space objects, technical
phenomena, and natural phenomena [6, p. 577].
4.2. The Objects of Outer Space Law.
In turn, the object of law is only legal relations between or among subjects of
law (including their behavior within the framework of these legal relations), which
are the subject matter of regulation or require regulation [1, p. 200, 401].
In this regard, the object of Outer Space Law can be considered legal relations
(or space legal relations) between or among the subjects of Outer Space Law
(including their behavior within the framework of these legal relations) in outer
space and on celestial bodies, which are subject matter to regulation by the
corresponding legal system of Outer Space Law within a particular society or
community.
For example, for the United Nations (as a separate community), the object of
Outer Space Public Law can be considered international space legal relations between
or among States within the UN. However, the object of Outer Space Public Law can
also be space legal relations within other unions of States.
Moreover, if the object of law is legal relations, then the object of the legal
relations is their subject matter - that is, what these legal relations are aimed at.
According to the canonical concept of law, the subject matter of legal relations
usually includes the rights, duties, and responsibilities of subjects of law as well as
tangible and intangible benefits obtained as a result of such legal relations [1, p. 262,
288, 382, 401].
However, if this list of objects of legal relations is relatively acceptable for
legal relations on Earth, then for Outer Space legal relations would be significantly
different.
For instance, under the Outer Space Public Law, outer space and celestial
bodies can be objects of legal relations, but not as material goods, since they do not
fall under the jurisdiction of States and are not subject to appropriation.
At the same time, the results of research and non-destructive use of outer space
and celestial bodies (such as “satellite communication” and the like) are highly likely
to be the objects of such legal relations. Also, it is unlikely (although theoretically
possible) that someday the liability of legal subjects would become the object of legal
relations in Outer Space Public Law. Thus, the objects of legal relations in Outer
Space Public Law may include only rights and obligations of States established as a
result of such legal relations as well as tangible and intangible benefits (except for
outer space and celestial bodies) obtained as a result of space activities without the
destruction of outer space and celestial bodies.
In turn, under the Outer Space Law of Principles, the object of legal relations
could be any benefits that do not contradict accepted principles. However, at the same
time, the rights, obligations, and responsibilities of subjects of law cannot be the
object of such legal relations, since in this legal system they are replaced by cosmic
principles. Thus, the objects of legal relations under the Outer Space Law of
Principles can include only the principles of relationships as well as tangible and
intangible benefits that do not contradict the mentioned principles.
It seemed to suggest that the objects of Cosmic legal relations in most
circumstances cannot be several objects familiar to legal relations on Earth, and
therefore, for each legal system of Outer Space Law there would be its distinct
objects of legal relations.
However, it is possible that such features would not exist in Outer Space
Private Law, since there is a strong probability that legal relations in this legal system
would be built on the same principles on which classical legal systems on Earth are
based with a similar list of objects of legal relations.
In this regard, with a high probability, the objects of legal relations under
Outer Space Private Law would include the rights, obligations, and responsibilities
of legal subjects as well as tangible and intangible benefits obtained as a result of
such legal relations.
5. Jurisdictions in Outer Space Law.
5.1. Principles of jurisdictions.
Before making any conclusions on the ways, the situations, and those to
regulate space activities, it is necessary to understand the principles of jurisdiction
that could be applied in outer space and on celestial bodies.
According to the doctrine of international law, the universal basis for
jurisdiction is nationality and territory as well as the right to their protection [6,
p. 49–50]. In this regard, the discussion is only about Public jurisdiction (jurisdiction
of States), since individuals and their communities do not have the totality of these
elements and therefore the regulation of relations concerning them is carried out on
other grounds.
It is generally accepted that Public jurisdiction always consists of two
complementary regulatory elements, namely, “jurisfaction” (Prescriptive [legislative]
jurisdiction - the power of the State making laws and the competence to apply them
to certain persons) and “jurisaction” (Prerogative [enforcement] jurisdiction -
administration of justice and enforcement of law in a certain territory) [6, p. 34, 50].
In this regard, «the concept (doctrine) of State jurisdiction means the right of a
State to regulate the rights of persons, to affect property, things, events and
occurrences whether by legislative, executive or judicial measure» [6, p. 34, 49].
At the same time, according to the method and scope of exercise of
jurisdiction, the following types are distinguished: “exclusive jurisdiction” (State has
an exclusive right to exercise jurisdiction), “concurrent jurisdiction” (more than one
State may simultaneously assume jurisdiction over persons, things or occurrences),
“complementary jurisdiction” (State may under international space law assume
jurisdiction supplementing the jurisdiction of a third State) [6, p. 34].
At the same time, it is necessary to understand that only “exclusive
jurisdiction” is a full-fledged and autonomous jurisdiction, and all other jurisdiction
options are simply derivative elements based on interstate agreements.
In addition, when describing the concept of Public jurisdiction, three different
types of jurisdictions are often distinguished: territorial, quasi-territorial, and personal
[6, p. 50].
However, only in the case of territorial jurisdiction, the State has exclusive
jurisdiction within its own territorial domain over things, property, persons, and legal
transactions done within it, including the extraterritorial activities of such persons [6,
p. 51].
In other cases, the jurisdiction is not generally recognized and exclusive
jurisdiction, but is only part of individual contractual interstate agreements (that is,
treaty jurisdiction).
For instance, personal jurisdiction is the totality of powers of a State with
respect to own vehicles, natural and legal persons (objects of jurisdiction) bearing its
nationality, enjoying its protection, or owing it allegiance wherever they may be [6,
p. 68]. That is, it is mainly about objects of jurisdiction located within the territory of
a foreign State (that is, outside the territory of the State of their registration). This
means that when carrying out activities, these objects will not fall under the exclusive
jurisdiction of their State but will have to comply with the rules of a foreign State (in
the way the foreign State allows). Accordingly, personal jurisdiction will not consist
in the establishment by the State of registration of rules of conduct for such objects,
but in establishing for them prohibitions on certain actions to the detriment of the
State of their registration (provided that compliance with such prohibitions will not
contradict joint agreements with a foreign State). Thus, we can say that personal
jurisdiction is not exclusive jurisdiction but is only an element of an agreement
between two States. Accordingly, personal jurisdiction also cannot be automatically
applied on terra nullius (outside the territorial jurisdictions of States).
Wherein, quasi-territorial jurisdiction is the sum total of the powers of a State
in respect of embassy, ships, aircraft, and spacecraft (to the extent to which they are
also granted legal personality) having its nationality [6, p. 57]. That is, quasi-
territorial jurisdiction differs from personal jurisdiction in that it extends to all
persons and things on board, including the activities of such persons, whether on
board the craft or elsewhere [6, p. 57]. Accordingly, the theory of quasi-territorial
jurisdiction considers the vehicle and embassy as the territory of the State of their
registration located outside its internationally recognized territorial boundaries
(within the territory of a foreign State or terra nullius). However, in this case, quasi-
territorial jurisdiction is also not exclusive jurisdiction, but is only an element of an
agreement between two States or within a group of States and can only apply to
objects located on the territory of one contracting State, but which are the property of
another contracting State. Thus, quasi-territorial jurisdiction also cannot
automatically apply beyond the territorial jurisdictions of all States (terra nullius).
That is, it can be concluded that personal jurisdiction and quasi-territorial
jurisdiction do not entail absolute competence for any State, but are only elements of
agreements and concessions between two or more States – in other words, they
regulate the relations between or among these States.
Only territorial jurisdiction provides the State with an absolute and independent
right to regulate any activity (but only within its territory).
5.2. Boundaries of spatial-territorial jurisdictions of States.
According to the existing doctrine of jurisdiction, the actual jurisdiction of each
State is directly related to its territory. In turn, this is since “the notion of jurisdiction
finds its origin in the concept of territory, the principle of sovereign equality and non-
interference with the domestic affairs of States” [6, p. 49].
Over a long period, States have protected their territorial integrity (that is,
access to natural, human, and tax resources within a certain territory), including by
adopting and signing relevant legal acts and international treaties [11, p. 577].
Gradually, from the seventeenth century AD, the doctrine of jurisdiction began to
emerge from the concepts of sovereignty and territoriality, which was finally
established in the nineteenth century [6, p. 49]. This doctrine, on the one hand,
asserted the rights of States in the territories they occupied, and on the other hand,
limited their rights only to these territories.
Thus, States have established the principles of jurisdiction under which they
have legal competence and can use resources only on their territory, and, accordingly,
do not have the competence and right to use objects (resources) outside their territory
[11, p. 577].
In turn, as of the end of 1963, the boundaries of State territories (exclusive
jurisdiction boundaries), in most cases, had already been determined, both on land
and in water. Within these borders, the State has exclusive jurisdiction, and beyond
them (terra nullius or on the high seas) the exclusive jurisdiction of the State ends [4,
p. 4].
Wherein, the provisions of Article 1(1) of the Chicago Convention on
International Civil Aviation (7 December 1944) established as follows: “The
contracting States recognize that every State has complete and exclusive sovereignty
over the airspace above its territory”. Thus, the spatial-territorial jurisdiction of
States is not limited to the surface of the Earth but is directed up into space and down
to the center of the Earth, somewhat reminiscent of the shape of an inverted cone
with uneven sides that coincide in shape with the borders of States on the surface of
the Earth [4, p. 4].
If the issue of the lower limit of State jurisdiction has not yet been raised, then
the question of the need to determine the upper limit of the spatial-territorial
jurisdiction of States has been discussed for a very long time. Moreover, there are
many theories and proposals on this topic, classified by McDougal, Lasswell, and
Vlasic, namely: (1) proposals based upon prescriptions of the Air Conventions, (2)
proposals based upon varying physical characteristics of space, (3) proposals based
upon varying natures of flight instrumentalities, (4) proposals based upon the factors
of effective control, (5) proposals based upon the earth`s gravitational effects, and (6)
proposals based upon arbitrarily chosen altitudes [11, p. 579].
Take as an example, that one of the most popular proposals on this topic is to
limit the airspace of States to the upper limit at which the force of gravity influences.
However, it is very difficult to implement this proposal, since it is difficult to
determine an object of ideal shape, weight, and density on which such experiment can
be carried out. Perhaps this experiment could be carried out with an international
prototype kilogram made of a platinum-iridium alloy (90% platinum, 10% iridium)
and stored at the Bureau International des Poids et Mesures (in the city of Sèvres,
France).
Also, there is a proposal to limit the airspace of States based on the geophysical
meaning of the term “airspace”, that is, airspace ends at the air`s edge [4, p. 5].
However, it is necessary to remember that “air is a mixture of gases and is not a
chemical compound”. At the same time, there is no clear boundary between airspace
and space without air (filled with vacuum), since the content of gases in near-Earth
space is observed from the surface of the Earth and further hundreds and thousands of
kilometers upward. In this regard, some scientists proposed considering the upper
limit of the airspace of States to be a height of 5.8 kilometers (approximately 3.6
miles) above sea level, below which is half of the air in the Earth’s atmosphere [4,
p. 5].
In addition, there is a theory about determining the upper limit of airspace at an
altitude of 60 miles (approximately 100 kilometers), above which a relative vacuum
can begin [4, p. 5]. However, at the same time, there were also versions that the
vacuum could only begin above 400 miles (about 644 kilometers) [4, p. 5].
In turn, one of the most promoted proposals for the delimitation of air and
outer space is to consider the upper limit of the airspace of States to be the maximum
altitude at which there is enough air for there to be a “’lift’ from the air” for aircraft
flights and balloons [4, p. 6].
However, despite such a large number of proposals and theories, all of them
remained only subjects of behind-the-scenes negotiations, and none was taken as a
basis since it was not considered acceptable from a scientific point of view [2,
p. 138].
Perhaps the issue of delimitation of outer space and the spatial-territorial (air)
borders of States has remained unresolved to this day because the expansion of the
exclusive jurisdiction of States upward into space depends on it - that is, the
expansion of political influence. In any case, since the States failed to agree on such
delimitation of space, it remains unclear how far the jurisdiction of a State extends in
aerospace over its territory [2, p. 137].
In turn, when studying this issue, it is necessary to understand that the aspect of
the spatial-territorial jurisdiction of the State is connected not only with the
exploitation and use of the controlled space but also with the security of the existence
of the State itself and its population. Thus, this issue is not only legal or technical-
physical but also political.
That is to say, the main question of the spatial jurisdiction of the State is not
about the border between outer space and airspace, but concerning the demarcation of
the upper limits of the spatial-territorial jurisdiction of the State – in other words, it is
about the border between outer space and the air-political space of the State.
To determine this border, it is necessary to understand that the air-political
space of the State ends where the threat to the security of its existence (sovereignty)
disappears.
Taking this into account, the air-political space of each State may be
conditionally divided into at least three layers of security: a layer of life safety, a
layer of economic security, and a layer of atmospheric (natural) security.
The layer of life safety of the State would always be limited by a human’s
ability to exist since without the existence of a human being the State cannot exist. In
turn, an ability to exist at appropriate heights is most often determined by historical
experience. To be sure, there are historical instances of the conquest of the mountain
peak Zhumulangma (or Everest) by people without using additional oxygen (in May
1978, this was done by Reinhold Andreas Messner and Peter Habeler). That is,
theoretically, one is capable of living and existing at least for a short time at the
height of this peak, which is 8,849 meters (about 5.5 miles) above sea level, or
slightly higher. Thus, we can roughly say that the upper limit of the State`s life
safety layer would end at an altitude of about 9,000 meters (9 kilometers or 5.6
miles) above sea level.
The layer of economic security of the State, first and foremost, shall be
associated with the maximum existing height of air transportation (passenger and
cargo) as well as with the prospective height of such transportation in the next 20-30
years after the boundaries of the layer are established. In this regard, the upper limit
of the economic security layer could be set at twice the maximum height of air
carriage (taking into account possible prospects for increasing the height). For
example, if the maximum altitude for cargo and passenger transportation (which can
also include an independent flight from base to base of military aircraft, including
pilotless and man-carrying aircraft) is about 30 kilometers, then the upper limit of the
State’s economic security layer would be at an altitude of 60 kilometers (about 37.3
miles) above sea level.
In turn, the layer of atmospheric (natural) security of the State would, first of
all, be associated with the size and composition of the atmosphere, which affects the
preservation of the natural human habitat on Earth and in water. For example, the
Earth`s ozone layer is located at an altitude of approximately 10 to 40 kilometers, and
its destruction over the territory of the State can lead to the destruction of the nature
and population of that State. That is, the thickness and composition of the Earth`s
atmosphere over the State shall remain such as to preserve the ozone layer and
protect the Earth`s surface from excess solar radiation. Also, the height, density, and
composition of the Earth`s atmosphere above the State shall remain such as to ensure
atmospheric pressure within limits sufficient for its normal perception by humans and
animals.
However, the most important aspect of the atmospheric security of the State is
the risk of a potentially dangerous “object X” (a new active chemical element, a
virus, an intelligent biological organism, or a similar object) entering the atmosphere
of the State from space, which, if it gets the Earth, is capable of destroying flora,
fauna, and even the people in this State. For example, while passing through the
atmosphere of a neutral State, when a spaceсraft returns to Earth, some unknown
space “object X” (previously attached to the ship in outer space or on a celestial
body) may detach from it. We can say that at this moment the “X factor” arises - the
factor of “object X” entering the Earth’s atmosphere. Imagine that this “object X” is
an unknown chemical element that is inactive in a vacuum, but when combined with
oxygen it could influence the atomic structures of known chemical elements (for
example, turn steel into powder). After such “object X” gets the Earth, our
civilization may return to its primitive state. After all, the alchemists’ legends about
the philosopher’s stone may be based precisely on such a cosmic “object X”.
Unfortunately, terrestrial technologies can identify in space those objects that they
have already encountered and identified on the Earth. That is, there is a high risk that
none of the space researchers would simply be able to detect this new “object X” and
it could be introduced into the atmosphere of the State that does not carry out space
activities and does not have technologies capable of protecting it from “object X”.
Accordingly, the question arises at what height (the height of the “factor X”) the
density and/or composition of the Earth’s atmosphere are sufficient so that, upon
entering the Earth’s atmosphere, this “object X” could further move into the life
safety layer of the State and cause catastrophic damage. In turn, some scientists
believe that the size of the atmospheric layer (including all its various layers, the
troposphere, the ozonosphere, the ionosphere, and, to some extent, the exosphere), in
which the gas-air space of the Earth is present, is located up to the height 1000
kilometers above sea level (about 621 miles) [4, p. 7–8]. Due to this, we can
conditionally assume that the upper limit of the State`s atmospheric security layer
would be at an altitude of about 1000 kilometers (about 621 miles) above sea level.
Taking into account all of the above, we can conclude that the upper limit of
the entire layer of spatial security of a State (about 1000 kilometers above sea level)
can be defined as the limit of the spatial-territorial jurisdiction of each State, below
which the State would have exclusive jurisdiction.
In turn, above 1000 kilometers and up to an altitude of 36,000 kilometers
above sea level there is a layer of the atmosphere, which can conventionally be called
the orbital layer (the layer in which the largest part of the artificial orbital satellites of
the Earth is located). However, it is unlikely that this layer affects the security of only
one State since it does not have a direct impact on the existence of the people of one
particular State - most likely, the preservation of this layer and the possibility of using
its orbits would serve for the security of all humanity on planet Earth. Therefore,
conditionally, this layer can be called the layer of spatial security of humanity (up
to an altitude of 36,000 kilometers or 22,370 miles above sea level) and the right to
use it shall belong to all of humanity.
In addition, it is also necessary to underline such an object as the Moon, which
is located from the Earth at a distance of approximately 378,000 kilometers
(approximately 234,878 miles). Although the Moon is located further than 36,000
kilometers from the Earth, it affects the nature of the Earth and its damage, change or
destruction can have a catastrophic impact on all of humanity. Therefore, it would be
logical to include the Moon in the layer of spatial security of humanity. Thus, the
layer of spatial security of humanity would include the layer of atmosphere around
the Earth up to an altitude of 36,000 kilometers (or 22,370 miles) above sea level and
the Moon.
At the same time, no State jurisdictions can exist in this layer and its use shall
be carried out following plans and permissions received from non-state and non-
political representatives of all humanity. Over time, to properly regulate activities in
this layer, non-government, non-political, and independent bodies and organizations
(public, scientific, and similar organizations) shall be established to make effective
decisions regarding the use of this layer for peaceful purposes and the benefit of all
humanity.
As for space above 36,000 kilometers asle and beyond the Moon, it can be
considered alien outer space, that is, space that is alien both to the States and to all
humanity on Earth.
5.3. Regulation of the activities in outer space and on celestial bodies.
5.3.1. Widespread theories.
The matter of regulating space activities, human relations, and state-to-state
regulations (including those related to the jurisdiction of States) in outer space and on
celestial bodies has existed from the very beginning of the development of Outer
Space Law.
Attempts to solve this problem have led to the emergence of many concepts,
theories, and proposals for determining the competence of subjects of space activities
in outer space and on celestial bodies.
According to one of the most popular concepts of international public law, the
State can act wherever direct prohibitions and restrictions are not established for it
under international law, and sometimes it can even go beyond the framework of
international law [5, p. 146]. This concept is a kind of “narcissist” concept since it
invites States to act on the principle of “everything that is not prohibited is
permitted,” and also to make decisions and act outside their territory based on their
interests regardless of the interests of humanity.
However, based on this concept, three theories arose for the regulation of
activities in neutral territories, which can be described as follows: “Res Communis”
(or “Res Communis Omnium”), “Res Nullius”, and “Res Communis Humanitatus” (or
“the Common Heritage of Mankind”) [5, p. 147].
According to the first theory of “Res Communis”, outer space and celestial
bodies are considered a common territory [5, p. 147]. Therefore, all States, their
citizens, and legal entities are free to explore, use, and develop the “commons” area.
Previously, this theory was especially popular among underdeveloped States willing
to receive income from the use of raw materials outside their territory (terra nullius
or on the high seas). However, when it came to outer space and celestial bodies
technologically developed States supported this theory since this allowed them to
operate in space as if on equal terms but enrich faster than underdeveloped States that
are unable to get to space [5, p. 147]. Moreover, there is an opinion that by agreeing
to the UN GA Resolution 1721 States recognized outer space and celestial bodies as
the territory of “Res Communis Omnium” [14, p. 12].
Under the second theory, “Res Nullius”, outer space and celestial bodies are
the territory that belongs to no one. However, this theory does not prohibit States or
other actors from taking possession or control of the territory of “Res Nullius” for
their exclusively sovereign purposes by right of first discovery or use [7, p. 38]. In
this regard, this theory, which has imperialist and colonial motives, is attractive to
States that claim world hegemony.
According to the third theory, “Res Communis Humanitatus”, outer space and
celestial bodies are the common territory of all humanity. Therefore, all States, their
citizens, and international entities are free to explore, use, and develop the common
territory but only in the interests of humanity and on the condition that they share the
resulting benefits with other participants (that is, there is a joint use aspect) [5,
p. 147].
However, despite high popularity, all these theories remain only theories, and
the very concept of “narcissism” cannot be called perfect and acceptable, because it
does not consider the element of equality for everyone and the possibility of the
existence of alien intelligent beings in the Universe. Moreover, we can say that an
attempt to extend this concept to outer space and celestial bodies is a dangerous
process that could provoke a new space race and lead to a new type of armed conflict
- space warfare.
5.3.2. The position of the UN General Assembly as of the end of 1963.
Trying to resolve the issue of regulating space activities, by the end of 1963 the
UN General Assembly announced several statements on this subject in the UN GA
Resolution 1721 and the Declaration of Legal Principles, which could be formulated
as follows:
“Outer space and celestial bodies are not subject to national appropriation by
claim of sovereignty, through use or occupation, or by any other means.
The jurisdiction of States extends to all objects registered by them located in
outer space and to astronauts thereon.
The activities of States in the exploration and use of outer space and celestial
bodies shall be carried on following international law, including the Charter of the
United Nations” [11, p. 579].
However, these statements did not answer questions about the competence of
space actors. On the contrary, having announced these provisions, the UN General
Assembly immediately faced the need to solve new problems related to the regulation
of activities in outer space and on celestial bodies:
- determining the possibility of States applying national law in outer space and
on celestial bodies,
- determining the boundaries of the competence of States to apply national law
regarding their Cosmic artificial objects,
- determining the boundaries of the competence of States to apply national law
regarding astronauts in the Cosmic artificial objects of these States,
- determining the possibility of States and international bodies applying
international law in outer space and on celestial bodies.
5.3.3. The possibility of States applying national law in outer space and on
celestial bodies.
It should also be stated that throughout the entire period of development of
Outer Space Law, mainly all the difficulties in determining the competence of public
subjects of space activities were associated with attempts to transfer classical law into
the legal field of outer space and celestial bodies.
However, as mentioned above, all attempts to apply classical legal concepts in
space activities would never be successful since outer space and celestial bodies are
not the natural human habitat, but are alien space and an uninhabitable environment.
In turn, when in ordinary life people are in their own space (for example, in
their room), then they naturally have a certain right to establish their own rules of
behavior and relationships in such a space - that is, for them there is a principle that
can conditionally be called the “domestic room” principle. Our planet Earth serves as
a “domestic room” for humanity.
However, when people get to alien space (for instance, enter someone’s else
room), they can no longer set their own rules there and cannot use alien space to their
advantage. They can only agree on the way they should behave on a visit - that is, a
principle, which can roughly be called the principle of “alien room” takes effect.
These rules of behavior and relationships in an “alien room” (on a visit) in the
context of outer space and celestial bodies can be regarded as Extraterrestrial Law or
Outer Space Law [11, p. 573].
The boundary between the “domestic room” and “alien room” in the Universe
for people is the upper limit of the spatial security layer of humanity at an altitude
of 36,000 kilometers above sea level (as discussed earlier).
In turn, both for the States and for the people, the principles of “domestic
room” and “alien room” are also applied. However, unlike people, the “domestic
room” of States is much smaller, since it is limited not by planet Earth but by their
spatial-territorial jurisdiction [11, p. 575]. This is due to the fact that the concept of
State jurisdiction is based on the element of territoriality in the notion of sovereignty
and the principle of national appropriation [6, p. 51]. At the same time, the exercise
of State jurisdiction on Earth is primarily a function of the operation and use of the
controlled territory, - accordingly, the exercise of State jurisdiction in outer space is a
function of exploitation and use of outer space also [6, p. 39]. In turn, even the
Declaration of Legal Principles proscribed the principle of national appropriation
from outer space and celestial bodies. It follows that the rules of spatial-territorial
jurisdiction of States do not apply to outer space and celestial bodies, since these
spatial-territorial units are in an “alien room” concerning States. Thus, the State
cannot apply national law in outer space and on celestial bodies and, accordingly,
cannot use outer space and celestial bodies.
At the same time, the fact that the State lacks jurisdiction and any other
competence in outer space and on celestial bodies (beyond the Earth) exists on its
own and should not require proof or recognition by other States or the United Nations
- if so, the claim can be accepted as the truth [11, p. 577]. The desire of certain States
to extend their jurisdiction to the “alien room”, even if it is supported by the majority
of States from the rostrum of the United Nations, cannot violate the principles of
“domestic room” and “alien room” based on the spatial-territorial jurisdiction of
States. Otherwise, the very principle of jurisdiction and sovereignty of States can
become meaningless. Everything is quite simple - the State has jurisdiction and can
act freely only within the boundaries of its spatial-territorial jurisdiction (“domestic
room”).
At the same time, the boundary between the “domestic room” and “alien room”
for States is the upper limit of the State`s spatial security layer at an altitude of
1,000 kilometers above sea level (as discussed earlier).
Based on the above, we can conclude that none of the above subjects (neither
States nor individuals) could establish standards of behavior in the “alien room”
(outer space and celestial bodies) for other subjects of space activities. All of them
can only agree on the way they would interact in outer space without doing harm.
Moreover, outside of its spatial-territorial domain a State cannot even use outer
space and celestial bodies, but can only negotiate with other States and other subjects
of space activities on the possibility of conducting any activity without causing
damage to outer space, celestial bodies, and other subjects of space activities. At the
same time, such activities cannot be carried out in the interests of only one State or
group of States, but can only be carried out in the interests of all humanity as a whole.
Any actions of States that violate these conditions can be regarded as a direct
challenge to all humanity.
This concept of regulating activities in outer space and on celestial bodies may
be formulated as follows: “Res Nullius Civitatis et Res Communis Animal Rationale”,
or in a more expanded way - “Res Nullius Civitatis” [11, p. 578].
5.3.4. The limits of the competence of States to apply national law
regarding their Cosmic artificial objects and astronauts thereon.
Separately, it is necessary to underline the provisions of Paragraph 7 of the
Declaration of Legal Principles, according to which the jurisdiction of States would
extend to “an object launched into outer space and any personnel thereon”:
«The State on whose registry an object launched into outer space is carried
shall retain jurisdiction and control over such object, and any personnel thereon,
while in outer space. Ownership of objects launched into outer space, and of their
component parts, is not affected by their passage through outer space or by their
return to the earth. Such objects or component parts found beyond the limits of the
State of registry shall be returned to that State, which shall furnish identifying data
upon request prior to return» [18].
This statement is an attempt to establish quasi-territorial jurisdiction and
personal jurisdiction on the Cosmic artificial object. At the same time, States justify
quasi-territorial jurisdiction with the right of ownership of an object and personal
jurisdiction with the concept of citizenship, accepting citizenship as the basis of state
jurisdiction [6, p. 69].
However, despite the apparent “positive elements” of this provision related to
the possibility of regulating legal relations within a Cosmic artificial object, this
statement is purely colonial.
It is necessary to understand that high-tech Space States are constantly
expanding their Cosmic artificial objects into outer space and onto celestial bodies,
thus occupying the most advantageous places on celestial bodies and orbits around
the Earth. It is already the case that no one can voluntarily remove them from these
places. In the future, using the provision of Paragraph 7 of the Declaration of Legal
Principles, these States would declare their jurisdiction over their Cosmic artificial
objects and, thus, expropriate the physical places in outer space and on celestial
bodies occupied by these objects without the consent of others States and humanity.
However, as was already mentioned, States do not have any competence in
space above the upper limit of the State`s spatial security layer, according to the
principle of the “alien room”.
At the same time, it is necessary to remember that quasi-territorial jurisdiction
and personal jurisdiction are not jurisdictions in the literal sense of the word, but are
only elements of an agreement between two States or within a group of States and
can only apply to objects that are the property (or citizens) of one treaty States but are
located on the territory of another treaty State.
However, in this case, Cosmos (which is an “alien room” for States and
people) has no owner and therefore States have no one to agree with on establishing a
prototype of quasi-territorial jurisdiction and personal jurisdiction.
That is, in Cosmos, there cannot be any quasi-territorial jurisdiction and
personal jurisdiction regarding the Cosmic artificial object and the astronauts
thereon.
Accordingly, States cannot apply national law concerning their Cosmic
artificial objects and the astronauts thereon, but can only agree with other subjects of
space activities on modalities of the activities of their astronauts and Cosmic
artificial objects in this environment without possessing jurisdiction over them.
However, the lack of jurisdiction does not mean the absence of State responsibility
for the activities of such objects. At the same time, in addition, States would also
need to agree on the format of activities with their astronauts, who would leave the
jurisdiction of the States of registration after crossing the upper limit of the State`s
spatial security layer.
In the absence of such agreements, the only right that States have about
Cosmic artificial objects is the right of ownership, and concerning the astronauts
thereon - the right to prohibit the actions of astronauts to the detriment of the State of
their registration.
5.3.5. The possibility of States and international bodies applying
international law in outer space and on celestial bodies.
As in the case of national law, regarding international law, there are also many
theories and proposals for its application in outer space and on celestial bodies.
For example, under the most widespread theories the entire Universe can be
divided into two spaces: national (each State has its own national space) and
international (all other space, including outer space) [6, p. 40]. Accordingly, national
law can be applied within the boundaries of the national space, and peremptory
norms of general international law (ius cogens) can be applied within the boundaries
of the international space. This position corresponds to the previously described
theory of ”Res Communis”.
Some lawyers have proceeded even further, declaring that laws shall follow
people in the Universe, promoting Earth laws for the entire Universe [6, p. 40]. This
theory has a little bit of religiosity since it reinforces the position that human is the
most supreme intelligent being in the Universe excluding the existence of
extraterrestrial intelligence.
In turn, to understand this issue, it is enough to “remember” that the creators
and actual founders of the institution of international law are the member States of
the United Nations.
However, as already said, the jurisdiction of States (including legislative
jurisdiction) does not extend to outer space and celestial bodies above the upper
limit of the State`s spatial security layer - that is, the jurisdiction of States is
limited to their “domestic rooms”.
At the same time, the United Nations (the members of which are only States)
does not have the authority to grant States additional competencies and rights of use
outside their territory, since this is not provided for by the UN Charter. Moreover,
according to paragraph 7 of Article 2 of this Charter, the UN has no right to interfere
in the internal affairs of States, that is, it has no right to act in such a way even to
expand their territorial jurisdiction [11, p. 577]. Therefore, substantially, the actual
jurisdiction of the United Nations is limited to the jurisdiction of the Member States,
which in turn are limited to their territorial jurisdiction.
That is, the “domestic room” of the United Nations (which operates based on
its Charter, which is an ordinary international agreement) is also limited by the
jurisdiction of the United Nations itself, which is limited by the jurisdiction of the
Member States of this Organization, which in turn are limited by their spatial-
territorial jurisdiction [11, p. 573].
Accordingly, neither the States nor the United Nations can establish standards
of behavior in the “alien room” (outer space and celestial bodies) for other space
actors. All of them can only agree on the way of interaction without causing harm in
the “alien room”.
As the Representative of France to the United Nations correctly noted:
“International law and the Charter of the U.N. do not apply to space activities in
toto” (this French representative's suggestion was supported by other representatives
to the United Nations) [6, p. 39–40].
At the same time, the rules of international law are applicable concerning the
terrestrial effects of space activities - in other words, these rules shall be considered
applicable when they are supposed to operate in their traditional environment [6,
p. 51].
It seemed to suggest that the established principles and rules of general
international law can be applied only in two cases of space activity:
(1) to regulate relations between or among States in outer space and on
celestial bodies;
(2) to govern the jurisdictional aspects of the terrestrial effects of space
activities [6, p. 39].
That is, international law cannot be imposed and applied in outer space and on
celestial bodies as “ius cogens”, but “ipso facto” can be applied as an element of
Outer Space Public Law regulating relations between or among States in this
environment [6, p. 40–41].
6. General Principles of Outer Space Public Law.
6.1. Despite the many unsolved problems in the field of regulation of space
activities that arose during 1958-1963, the international community still managed to
move a little forward in the formation of the main theses of Outer Space Public Law.
Conventionally, the mentioned theses can be formed into several General
Principles of Space Activities, which can be considered the basis for the development
of modern Outer Space Public Law.
The main feature of these principles is that they were not agreed upon and
formalized in international treaties, but most often took the form of a kind of
Conventionalis stipulatio (joint public commitment), which was set out in one or
more Resolutions and/or Declarations of the UN [8, p. 349].
Wherein, in this study, the term “Cosmos” is mainly used to determine the
name of these principles, and not “Universe” or “outer space and celestial bodies”.
And this is not due to the astronomical or physical characteristics of space-time-
matter but to the everyday perception of an average person [8, p. 350]. Historically
speaking, most people perceive the concept of “Universe” as the whole world that
surrounds a human, who is perceived as one of the elements of this world.
Considering that the planet Earth, along with the rules established on it, is also part of
our “Universe” (in the ordinary sense), the application of this term to the space
outside the planet Earth becomes incorrect [8, p. 350]. At the same time, the concept
of “outer space and celestial bodies” when translated into different languages often
has different meanings and cannot be translated literally. Moreover, this concept has
a vague meaning because it does not take into account stars as well as air and other
gaseous layers around celestial bodies.
In turn, the concept of “Cosmos” is mainly perceived as a definition of space
beyond the planet Earth, which includes both cosmic objects and the space between
them [8, p. 350]. Therefore, the use of this term to name the processes of regulating
relations outside of planet Earth is likely to be more correct.
Given the above, the General Principles of Space Activities in the Outer Space
Public Law formed as of the end of 1963 can be formulated as follows:
- The Principle of Free Cosmos,
- The Principle of Peaceful Cosmos,
- The Principle of Useful Cosmos,
- The Principle of Cosmic Traffic.
The description of the main process of formation and development of these
principles during 1958-1963 was previously published in articles from this series:
“Outer space public law: the 1958-1963 period. Part 1” [8] and “Outer space public
law: the 1958-1963 period. Part 2” [9]. Hence, this article outlines only the main
aspects of the creation and formulation of the General Principles of Space Activity.
6.2. Conventionalis stipulatio “The Principle of Free Cosmos”.
When describing this principle, the concept of Free Cosmos refers to both
passive and active characteristics of such freedom.
At the same time, the passive characteristic of Free Cosmos is its independence
and neutrality. That is freedom from any territorial and other claims both from States
and individuals [8, p. 350]. In turn, an active characteristic of Free Cosmos is the
possibility of its unhindered visiting and exploration by any individual, including
those representing the interests of any State or other community [8, p. 350].
Thus, the Cosmos (including outer space and celestial bodies) in this case is the
object of this principle, and individuals, States, and other communities are its subjects
[8, p. 350].
At the same time, it is necessary to say that in 1958-1963 this principle just
started to develop leading to many discussions and disputes. Therefore, its formation
took place not only based on specific provisions of the Declarations and conclusions
in Resolutions but also based on individual statements, proposals, and assumptions of
the UN General Assembly. In this regard, at the end of 1963 this principle could be
formulated as follows:
“Outer space and celestial bodies are free for exploration by all States (on a
basis of equality and by international law) as well as by all people, private
companies, non-governmental organizations, and other interested parties.
Outer space and celestial bodies are not subject to national appropriation by
claim of sovereignty, use or occupation, or by any other means” [8, p. 351].
6.3. Conventionalis stipulatio «The Principle of Peaceful Cosmos».
This principle began to take shape since the adoption of the UN GA Resolution
1148 and continues to be relevant to this day.
At the end of 1963 this principle could be formulated as follows:
“All subjects of space activities can explore and use outer space exclusively for
peaceful purposes, act only in the interests of maintaining international peace and
security as well as for the development of international cooperation and mutual
understanding, and have no right to carry out propaganda of war in space activities.
All subjects of space activities shall refrain from placing, installing, and
stationing in any other manner (and to refrain from causing, encouraging, or in any
way participating in the conduct of the foregoing activities) in orbit around the earth
and in outer space and on celestial bodies any objects carrying nuclear weapons or
any other kind of weapons of mass destruction.
At the same time, States undertake not to carry out or take part in carrying out
any nuclear weapon test explosion in places that are located in outer space and on
celestial bodies, and which are under the jurisdiction or control of these States” [8,
p. 353].
This principle imposes an absolute prohibition on the placement in outer space
of any weapons and equipment that could be used in armed conflicts.
At the same time, any satellites or other equipment that could in some way be
used for military purposes should have been launched only with the permission of the
UN and under its full control with open access for any State to the information
received from such equipment [8, p. 353].
However, already at this stage, the first contradictions arose regarding
compliance with this principle.
These contradictions have resulted in multiple “Fraus legi fit”, which some
States use to interpret the phrase “peaceful purposes” in their military interests [8,
p. 353].
Proponents of preserving Peaceful Cosmos claim that the phrase “peaceful
purposes” means “non-military purposes” [16, p. 82]- that is, a prohibition on the use
of outer space for any military purposes and placing any military facilities.
Proponents of Cosmos weapons claim that the phrase “peaceful purposes”
means “non-aggressive purposes” [16, p. 82]- that is, the possibility of placing
military objects in outer space (for example, for reconnaissance and surveillance), if
they are not used for forceful actions or threats of force. Although this option is the
most absurd (because any military facilities, directly or indirectly, are used to carry
out military force), nevertheless, it is this option that prevails in the world today [3,
p. 337] and is most actively promoted by the United States to ensure its military
hegemony in outer space and on Earth [17, p. 82].
At the same time, some politicians justified the military use of space by the
absence of a line between the military and peaceful use of outer space, since
supposedly in both cases the goals can be duplicated [2, p. 142]. In this case, this
meant navigational actions or military actions to forestall an enemy attack and to
protect the world.
However, no matter how some people try to justify military actions, they
remain military actions, and the game of interpretation would remain an ordinary
political game. The difference between military and peaceful goals has always been
very simple - military goals are always directed against someone (even if they are
carried out for the benefit of someone), and peaceful goals are always carried out for
the benefit of someone and are never directed against someone.
Thus, any deployment of military objects in outer space contravenes peaceful
purposes [17, p. 83] and also contradicts “The Principle of Peaceful Cosmos” [8,
p. 354].
6.4. Conventionalis stipulatio “The Principle of Useful Cosmos”.
This principle can be stated as follows:
“All States can explore and use outer space exclusively for the benefit and
interests of humanity, avoiding national rivalries into this field” [9, p. 643].
Thus, any other provisions of international documents that grant States any
rights to use outer space and celestial bodies can only be applied within the
framework of the above formulation of “The Principle of Useful Cosmos” and to the
extent that does not contradict “The Principle of Free Cosmos” and the condition of
“Res Nullius Civitatis” [9, p. 643].
6.5. Conventionalis stipulatio “The Principles of Cosmic Traffic”.
It can be considered that from the moment of the adoption of the UN GA
Resolution 1721 and the Declaration of Legal Principles, an international process of
regulating space activities began, within the framework of which several proposals
were made, which can roughly be called Conventionalis stipulatio “The Principles of
Cosmic Traffic”.
As of the end of 1963 this collection of principles included three special
principles of space activities (The Principle of registration of launches, The Principle
of mutual assistance, and The Principle of responsibility), which can be described as
follows.
The Principle of registration of launches (the 1st Principle):
“States launching objects into orbit or beyond undertake to register such
launches to the Committee on the Peaceful Uses of Outer Space under the rules
established by this Committee” [9, p. 644].
The Principle of mutual assistance (the 2nd Principle):
“States shall render to astronauts all possible assistance in the event of
accident, distress, or emergency landing on the territory of a foreign State or the high
seas. Astronauts who make such a landing shall be safely and promptly returned to
the State of registry of their space vehicle. Objects launched into outer space or
component parts found beyond the limits of the State of registry shall be returned to
the relevant State, which shall furnish identifying data upon request prior to return”
[9, p. 645].
The Principle of responsibility (the 3rd Principle):
“All States that carry national activities in outer space (including States which
launch or procure the launching of an object into outer space, and each State from
whose territory or facility an object is launched) bear international responsibility for
national activities in outer space (including for the activities of governmental
agencies or by non-governmental entities), for assuring that national activities are
carried on in conformity with the principles outlined in the Declaration of Legal
Principles, and for damage to a foreign State or its natural or judicial persons by
such object or its component parts on the earth, in air space, or outer space.
International organizations bear international responsibility for activities in
outer space to ensure that activities are carried on in conformity with the principles
outlined in the Declaration of Legal Principles.
The implementation by States or its nationals of space activities (including
experiments) that would cause potentially harmful interference with activities of
other States in the peaceful exploration and use of outer space is possible only after
an international consultation concerning the activity or experiment” [9, p. 646].
It should be separately noted that all these principles of Cosmic traffic did not
take the form of imperative and mandatory norms but naturally turned into elements
of law since all subjects of space activity adhered to or tried to adhere to these
principles to ensure the safety of space movement.
CONCLUSION
Despite all the diversity, the Universe is one giant system with uniform
physical and chemical laws throughout its entire space.
However, the current study suggests that human imperfection is the reason why
it is essential to divide the Universe into two separate legal spaces concerning
jurisprudence and human life: the “domestic room” and the “alien room”.
At the same time, the paper proposes that the “domestic room” of humanity
shall include the planet Earth and a layer of spatial security for humanity, which
ensures the livelihoods of all humanity and includes the air-orbital space around the
planet at least up to an altitude of 36,000 kilometers (about 22,370 miles) above sea
level and the Moon. At the same time, the “domestic room” of any State, which is
determined by its spatial-territorial jurisdiction, shall be located at an altitude no
higher than the upper limit of the State’s spatial security layer at an altitude of
about 1000 kilometers (about 621 miles) above sea level (that is, inside “domestic
room” of humanity).
In turn, the “alien room” for States and humanity is the Cosmos (including
outer space and celestial bodies throughout the Universe) beyond the layer of spatial
security of humanity (beyond the Moon and above 36,000 kilometers above sea level
around the Earth).
Upon that the emphasis of the study is on the fact that neither people nor States
can establish their own rules in an “alien room” for the entire Universe, but can only
agree on the way of behavior and relationships when visiting such an “alien room”
(that is, on a visit).
Taking these features into account, the process of regulating space activities in
Cosmos can be specified as a unique process. Moreover, this process is very recent in
origin (not accounting for religious theories) and is only taking its first steps,
resembling the process of formation of classical law in Ancient Egypt and Ancient
Rome.
It is precisely because of the youth and uniqueness of the process of regulating
space activities that the study suggests the possibility of the development in the future
of several legal systems in Outer Space Law, such as Outer Space Law of Principles
(or Animal rationale ius), Outer Space Private Law (or Cosmos Private Law), Outer
Space Public Law (or Cosmos Public Law).
In turn, subsequently, this may also lead to the emergence of new subjects of
Outer Space Law, in addition to States and the United Nations, and therefore, the
study proposes introducing a new interpretation of the term “the subject of Outer
Space Law” different from the outdated classical interpretation of the term “the
subject of law”.
In addition, it should be noted that in the process of development of space
activities during 1958-1963, the subject and object structure of such activities was
gradually formed. At the same time, due to the lack of an effective classification of
objects of space activity, this study proposes to divide such objects into four types:
natural phenomena, artificial phenomena, artificial space objects, natural space
objects (which include outer space and celestial bodies as separate spatial-territorial
units).
Furthermore, considering a large number of scientific discussions on the topic
of determining the status of “space objects” and “spacecraft” and responsibility for
their operation, this study proposes introducing several new terms to solve this
problem, namely, the term “Cosmic artificial object” and the term “pre-Cosmic
artificial object” as well as interpretations of these terms.
To summarize this study, it is safe to say that in 1958-1963 a gradual and
confident process of formation of one of the above legal systems, namely Outer
Space Public Law, began.
Given the unique environment for which Outer Space Public Law was
developed, the sources of this law initially took on a non-standard form, a kind of
Conventionalis stipulatio (joint public promise) set out in the form of Resolutions and
Declarations of the General Assembly of the United Nations or the form of other
similar official documents.
However, even in the format of such Conventionalis stipulatio, the
international community managed to develop the first four most important General
Principles for Space Activities: The Principle of Free Cosmos, The Principle of
Peaceful Cosmos, The Principle of Useful Cosmos, The Principle of Cosmos Traffic
(which consists of the following three specific principles: The Principle of
registration of launches, The Principle of mutual assistance, and The Principle of
responsibility).
It is these principles that may in the future become the basis for the
development of Outer Space Public Law aimed at the benefit of all humanity.
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