Imre Anthony Csabafi’s scientific contributions

Dr. Csabafi in his clearly and concisely written book sets out to confront the most pressing jurisdictional problems arising from the exploration and use of outer space, problems which the authors of the Outer Space Treaty of 27th January, 1967, have not attempted to solve. He has recognized that in view of the lack of sufficient knowledge of tech­ nological capabilities present and anticipated of the utilization of outer space and its political, economic and social implications, the time is not yet ripe for the elaboration of specific rules to govern most of the highly com­ plex issues in this context. Apart from the lack of sufficient knowledge and experience, the achieve­ ment of a consensus on rules regarding jurisdiction in outer space is further hampered by the strongly divergent interpretations of the fundamental prin­ ciples of the Outer Space Treaty namely the principle of freedom of outer space for exploration and use and the principle of non-appropriation of outer space. In various parts of his study Dr. Csabafi has, on the basis of a thorough study of the preparatory work of the Outer Space Treaty, ex­ pressed his views on the meaning of these principles.

We wish to conclude this study with two brief observations de lege ferenda regarding our proposed concept of “functional jurisdiction”. We also wish to include certain statements which may be found in the White Paper on A Domestic Satellite Communication System for Canada of 28 March 1968, and two preceding reports prepared by the Science Council of Canada and the Science Secretariat in February and July 1967 respectively. As will be seen, these documents bear out the possibility that the proposed concept may one day become a practical instrument in the hands of a government to pave the way towards the accommodation of a commensurate claim to exercise exclusive jurisdiction over certain zones of outer space, and by analogy over certain designated areas on celestial bodies for a functionally determined purpose.

The purpose of the foregoing pages was to assess the progressive development in the United Nations of the concept of State jurisdiction in international space law. It is important here to recall the earlier reference in the Introduction to the fact that the scope of enquiry of this work was intentionally limited to the U.N. practice. Thus, we endeavoured to illustrate on the basis of U.N. documents that the concept of State jurisdiction has undergone a process of modification in space law. It is no longer based on concepts of sovereignty, appropriation and territoriality.

In this chapter we shall examine how the Legal Sub-Committee of the UNCOPUOS developed the concept of State jurisdiction with respect to (1) liability for damage caused by space vehicle accidents; (2) rescue, and (3) return of astronauts and space vehicles making an emergency landing. The summary records of the Legal Sub-Committee indicate the positions of States regarding their preference as to legal goals and practice. The summary records constitute the sedes materiae where some of the principles included in the Space Treaty find their origin. The summary records of the meetings of the UNCOPUOS serve as travaux préparatoires in the interpretation of the rules and principles of international space law.

As early as 1959 the Ad hoc Committee on the Peaceful Uses of Outer Space observed in its report (A/4141) that the provisions of the U.N. Charter and the Statute of the International Court of Justice “as a matter of principle... were not limited in their operation to the confines of the earth.” 1 In General Assembly Resolution 1721 (XVI) of December 20, 1961, the principle was stated explicitly for the first time that “international law, including the Charter of the United Nations, applies to outer space and celestial bodies.”2 The Declaration of Legal Principles (General Assembly Resolution 1962 (XVIII) of December 13, 1963) provided that “outer space and celestial bodies are free for exploration and use by all States on a basis of equality in accordance with international law”3 and further that “the activities of States in the exploration and use of outer space shall be carried on in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.” 4

In this Chapter we intend to state the law as it appears to be applicable today regarding the exercise of State jurisdiction over activities in outer space, including celestial bodies. Having examined the concept of State jurisdiction in general international law from the viewpoint of its applicability to space law, and analysed the U.N. practice regarding the jurisdictional aspects of liability, rescue and return, we still have to define the contribution of the Space Treaty to the concept of State jurisdiction in space law.

Thesis (LL. M.) University of McGill, 1967. Includes bibliographical references (leaves 170-177).