Louis de Gouyon Matignon

Space Insurance & Space Law

With the increasing privatisation of space activities, it has proved crucial to be able to accurately determine liability issues in these activities, but also to financially secure space projects. Outer space activity represents a high or even catastrophic risk environment, with a relatively high loss frequency. Effective insurance solutions are therefore crucial to the development of a profitable economic activity in outer space.

As a result, insurance has become a major topic in the conduct of space activities. Today, “Space Insurance”, which provides complete coverage of the risks to which a spacecraft is exposed during its lifecycle, should ideally cover the risks of pre-launch, launch, and operations in orbit (and soon in-orbit operations?), including the risk of damage to space assets, and the risk of liability claims.

Space insurance is governed, as all classes of insurance, by general insurance principles: mutualisation (the premium of the many pay for the claims of the few), fortuity (notion of random occurrence as opposed to prediction), indemnity (not to be richer after the loss than before), due intelligence (insurance should not alter the behaviour of the insured), and true and fair declaration of the risk.

Space insurance has some inherent features which makes it unique: mutualisation difficult to achieve (high severity, high frequency events, and high value), inaccessibility of the insured asset (impossibility to repair), insurance of the non-respect of the specifications, and different legal environment (for third party legal liability).

Introduction

Space has long been fantasised before becoming accessible. The first reaction when space law is evoked is to ask whether it is intended to govern relations with extraterrestrials. Space law in fact covers the activities happening in outer space, which are numerous. Space law undeniably has a universal character, like the law of the high seas and the seabed, or that of Antarctica.

It is from this universal character that we can summarise the fundamental principles of space law as follows. On the one hand, a refusal to apply the principle of sovereignty to outer space, a principle that some states have tried in vain to defeat. On the other hand, a principle of freedom of space activities. This second principle includes free access to space regions beyond the airspace of states, and freedom of exploration and use of outer space. Finally, a principle of allocation of space to the whole of humanity.

We must remember that the space conquest began with a rivalry. At the time of the Cold War, the U.S.S.R. and the United States of America sought the place of the world’s leading power. Mastering the outer space environment provided them with a good way of spreading their supremacy across borders. It was therefore necessary to create laws (public international law) for this nascent activity, originally developed by states and their army.

Subsequently, private companies were able to access the areas of satellite design and launch. And the legal framework has expanded to include new players, in a high value-added transport trade. More recently, low cost and tourist flights have been successful, forcing established institutions in the sector to revise their business model.

Understanding Space Insurance

The five Onusian treaties have put in place a specific legal regime applicable to outer space. It follows from this legal regime that states, considered as “launching states” under the treaties, support an obligation to register space objects. First, it imposes on launching states an obligation to register space objects to determine the nature and origin of an object launched in outer space, but also to know the state that will bear international responsibility attached to this space object. In the absence of registration, the launching state will not be able to benefit from the provisions of space law and general public international law will have to be applied.

As far as liability is concerned, it covers two meanings. First of all, there is a liability for damage to third parties caused by a space operation. The regime of this responsibility is detailed by the 1972 Liability Convention. This liability is qualified as “absolute” when damage is caused on land or in airspace, the victim is thus exempted from showing the fault of the (launching) state, and has just to prove that a damage was caused by a space object. The objective here is to facilitate victims’ recourse against a launching state. On the other hand, liability is said to be “for fault” where damage occurs in outer space.

The second responsibility borne by the launching states is a responsibility for monitoring, surveillance and verification of the space activity under its international responsibility. Thus, the launching state must verify that the activity in question is in conformity with international law, from a technical and legal point of view.

National regulations have intervened to manage private and commercial space activities. The 1970s and (especially) 1980s saw the rise of private and commercial space activities, including the creation of private launch companies to provide launch services to private commercial satellite operators. As a result, space law had to adapt to these new and purely private activities. The United States of America was the first state to adopt legislation dedicated to space activities conducted by private U.S. enforcement entities (Commercial Space Launch Act of 1984, amended several times). Other states, such as Great Britain (Outer Space Act 1986), quickly followed. It was not until 2008 that France adopted a specific legislation for space activities, with the LOI du 3 juin 2008 relative aux opérations spatiales.

These national laws have different fields of application, but have in common that they regulate the activities of private entities falling under the application of these laws through authorisation or licensing. States bear international responsibility under international treaties for the space activities of their private entities, so it is imperative for them to authorise, control and monitor private space activities.

In addition to the regime of public international law and national law, it should be added that the space sector is the subject of specific contractual practices adapted to the specific nature of this sector. The purpose of these practices is to protect the space industry and to avoid litigation in jurisdictions. Thus, the contracts concluded between the different space actors (launching agency, satellite operator, satellite manufacturer, subcontractors, suppliers, etc.) try to limit the responsibilities between the parties, by applying clauses intended to allocate responsibilities, and avoid recourse between the parties.

Traditionally, one of the most impacted clauses along the entire chain of contract is the “waiver of recourse” clause, which is systematically provided for in launch service contracts. These waiver of recourse clauses are written to be mutually enforceable, that is, none of the contractors will be able to turn against each other because of the damage caused to them by space activity. These clauses are usually supplemented by “guarantee pacts” granted by the launching agency to the entire contractual chain linked to the launcher, in the event of damage caused to third parties as a result of the launching operation.

In general, and depending on the law applicable to the contract, the exceptions to these waiver of recourse clauses and guarantee pacts are “gross negligence” or “intentional misconduct”, with all the difficulties related to the interpretation of these concepts, and to the modes of proof. It should be noted here that with regard to satellite contracts, clauses allowing recourse between contractors are increasingly present. In fact, waiver of recourse clauses are in some legislation mandatory for launching activities, such as the U.S. Commercial Space Launch Act, or the LOI du 3 juin 2008 relative aux opérations spatiales. They become optional for contracts relating to satellite activities.

How do Space Insurances work?

Insurance is defined by the Oxford English Dictionary as “An arrangement by which a company or the state undertakes to provide a guarantee of compensation for specified loss, damage, illness, or death in return for payment of a specified premium”. It is also defined as “The business of providing insurance”, “Money paid for insurance”, or “Money paid out as compensation under an insurance policy”.

While the insurance market has developed a long and rich experience in other sectors, such as land, sea or air transport, the specificities of space activities have involved implementing substantial adaptations to traditional insurance, or even introduce new insurance practices.

To run a space project, there are a number of actors involved. These actors bear risks that are unique to them. Thus, for the various phases of risks, including manufacturing, storage, transportation, launch, and satellite operations, there are responsibilities identified and specific for each actor. These responsibilities are associated with insurance solutions, which have in some cases been specifically set up for these particular risks.

The development of space insurance has coincided with the privatisation and commercial development of satellite launch and operation activities. This development concerns not only damage insurance for satellites or launchers, on the ground or in outer space, but also liability insurance for space operators, manufacturers, equipment manufacturers, suppliers, etc. In general, it can be said that there are two main categories of space insurance: damage insurance for space assets, and liability insurance.

Damage insurance for space assets

Traditionally, in the context of damage insurance for space assets, three risk phases are to be counted: on the ground, during launch and during life in orbit. For these risk phases, policyholders, risks, guarantees, and insurers will not be the same. On the ground, the satellites, but also the launchers, are insured during the phases of assembly, integration, test, transport, and on the launching site, against the risks of damage because of external causes (falls, clashes, fire, etc.). Generally, these insurances are underwritten by “Marine Cargo” insurers.

From the launch (when the launch is said to be irreversible), the “launch insurance policies” take over from the “ground insurances”. During this phase, only satellites are covered; launchers are not directly insured. However, it should be noted that the launching agencies offer their clients “Launch Risk Guarantees”, allowing, in case of failure to launch, a new relaunch or financial compensation. These LRGs may be covered by specific insurance policies. During the orbiting phase of space objects, satellites, and mainly commercial satellites, can be covered from the end of the launch to the end of their contractual life.

The duration of damage warranties varies from a few days, to one year or several years. For launch and operation phases in orbit, satellites are insured for any total, partial or deemed total loss. These damage policies are designed to guarantee, according to the loss formulas provided for in these policies, the loss of control, destruction, impossibility of reaching the specified orbit, but also the cases of reduction of the operational capacity or the life of the satellite, occurring during the warranty period.

In principle, launch and life in orbit policies cover all risks, which is why they are called “all risk policies except”. Thus, only the exclusions specifically indicated in the policy may be invoked by insurers in order to defeat the guarantee. It will therefore be up to insurers to prove that an exclusion applies. These damage insurance for space assets are now well mastered, but they require adaptation to new technologies and new projects under development, such as, for example, satellite constellations or new launchers.

Liability insurance

Satellite launch and satellite operations include a high degree of risk of liability for third party damage resulting from the intended space activity. As such, the risks associated with the launch and the potential for damage to Earth from the return of the launcher stages, were the first concerns of the international community, which led to the drafting and ratification of the 1967 Outer Space Treaty and the 1972 Liability Convention, dealing in particular with the liability/responsibility of launching states for damage caused by space objects. In addition to these texts, certain states, which can be qualified as launching states under the 1972 Liability Convention, and therefore bear responsibility, have decided to legislate on this subject and certain national laws now require space operators to insure themselves for the risks involved.

The liability insurance policies must therefore respond to possible liability claims, not only under the liability regime provided for in the international treaties and particularly the 1972 Liability Convention, but also under existing national legislation. Schematically, there are two main categories of civil liability for participants in a space operation: civil liability related to the operation of spacecraft, and civil liability for space products. The latter is underwritten by manufacturers, equipment manufacturers, and suppliers, in case of damage caused to a third party due to a defect of the product after delivery.

These two categories of liability can today be covered under certain conditions. Space liability insurance covers the financial consequences of the liability of an insured person for damage caused to a third party by a space activity. These guarantees are available, in the current state of the market, up to five hundred million American dollars, or even seven hundred and fifty million American dollars for certain risks. Typically, policyholders are the launching agencies for the launch phase, and satellite operators for the in-orbit phase of life, given that, traditionally, launching states are additional insured, which means that launch will benefit from the coverage (in the amount, conditions and exclusions of the guarantee) in the event of a blame for their liability.

All participants in the launch operation are also generally covered for liability under the liability policies for spacecraft (including the manufacturers of the launcher and the satellite, and all of their subcontractors and suppliers at whatever level they are). The same is often true in liability policies in orbit. The limits of guarantee vary according to the legal provisions if they exist, or according to the apprehension of the risk by the operators. The premium associated with this risk is determined by the insurers after an exposure analysis based on various elements related to the activity to be insured, such as the launch site used, the launch trajectory, backup and security procedures, launch history, launch agency experience, satellite technical details, orbital positioning, planned movements, etc.

Concluding remarks on Space Insurance

The space insurance market will soon have to face a new trend as space activity is on the brink of intensification, mainly due to the arrival of new players promoting a genuine paradigm shift. Insurers must therefore anticipate these developments in order to be able to assess the associated risks. For example, they will need to learn how to assess the risks specific to mega-constellations of satellites, particularly those related to increased congestion, the intensification of launches, the development of multiple launchers, and the complexity of the tests to which these super-satellite networks must be subjected.

Space insurance is governed, as all classes of insurance, by general insurance principles: mutualisation (the premium of the many pay for the claims of the few), fortuity (notion of random occurrence as opposed to prediction), indemnity (not to be richer after the loss than before), due intelligence (insurance should not alter the behaviour of the insured), and true and fair declaration of the risk.

Space insurance has some inherent features which makes it unique: mutualisation difficult to achieve (high severity, high frequency events, and high value), inaccessibility of the insured asset (impossibility to repair), insurance of the non-respect of the specifications, and different legal environment (for third party legal liability).

Declaration on International Cooperation and the Needs of Developing Countries

The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, adopted in 1996 (General Assembly Resolution 51/122), recognises the importance of international cooperation in the exploration and use of outer space for the benefit and interest of all states, in particular the needs of developing countries.

At its 1996/1997 session, the United Nations General Assembly adopted by consensus Resolution 51/122, containing a Declaration on international cooperation in space. This Declaration finalises the agenda item which has become known as “Space Benefits” in the UNCOPUOS Legal Subcommittee. It provides an authoritative interpretation of the cooperation principle in Article I of the Outer Space Treaty and should thereby put an end to North-South confrontation over the question of shaping the international order for space activities.

How is this Resolution shaped?

Let’s recall that Article I of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967) states that “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation”.

The Resolution we are analysing for this new Space Law article on Space Legal Issues provides that international cooperation among states must be conducted in accordance with the provisions of international law for the benefit and in the interest of all states, irrespective of their degree of economic, social or scientific and technological development where particular account should be taken of the needs of developing countries.

States with space capabilities and programs should contribute to promoting and fostering international cooperation on an equitable and mutually acceptable basis and particular attention should be given to the developing countries.

Does this Resolution provides for international cooperation? Yes, on the manner as to how international cooperation should be conducted, it is provided that it has to be conducted in the manner that is considered most effective and appropriate by the countries concerned.

While taking into particular account the needs of developing countries, international cooperation should aim at achieving these three goals: firstly, promoting the development of space science and technology and of its applications, secondly, fostering the development of relevant and appropriate space capabilities in interested states; and thirdly, facilitating the exchange of expertise and technology among states on a mutually acceptable basis.

Are General Assembly Resolutions legally binding?

A United Nations Resolution (UN Resolution) is a formal text adopted by a United Nations (UN) body. Although any UN body can issue resolutions, in practice, most resolutions are issued by the Security Council (one of the six principal organs of the United Nations charged with ensuring international peace and security, accepting new members to the United Nations, and approving any changes to its charter) or the General Assembly (one of the six principal organs of the United Nations (UN), the only one in which all member nations have equal representation, and the main deliberative, policy-making, and representative organ of the UN).

Most experts consider most General Assembly resolutions to be non-binding. Articles 10 and 14 of the UN Charter refer to General Assembly resolutions as “recommendations”; the recommendatory nature of General Assembly resolutions has repeatedly been stressed by the International Court of Justice. However, some General Assembly resolutions dealing with matters internal to the United Nations, such as budgetary decisions or instructions to lower-ranking organs, are clearly binding on their addressees.

The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries

Among all paragraphs contained in the Preamble of the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, let’s note that the UN General Assembly is “Convinced of the necessity and the significance of further strengthening international cooperation in order to reach a broad and efficient collaboration in this field for the mutual benefit and in the interest of all parties involved” and “Desirous of facilitating the application of the principle that the exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind”.

Paragraph 1 of the Annex of the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, notably states that “Particular account should be taken of the needs of developing countries” while restating the main principles of Article 1 of the 1967 Outer Space Treaty.

Paragraph 2 of the aforementioned Resolution adds that “States are free to determine all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis. Contractual terms in such cooperative ventures should be fair and reasonable and they should be in full compliance with the legitimate rights and interests of the parties concerned as, for example, with intellectual property rights”.

Paragraph 3 develops that idea by declaring that “All States, particularly those with relevant space capabilities and with programmes for the exploration and use of outer space, should contribute to promoting and fostering international cooperation on an equitable and mutually acceptable basis. In this context, particular attention should be given to the benefit for and the interests of developing countries and countries with incipient space programmes stemming from such international cooperation conducted with countries with more advanced space capabilities”.

Paragraph 4 announces that “International cooperation should be conducted in the modes that are considered most effective and appropriate by the countries concerned, including, inter alia, governmental and non-governmental; commercial and non-commercial; global, multilateral, regional or bilateral; and international cooperation among countries in all levels of development”.

Paragraph 5 declares that “International cooperation, while taking into particular account the needs of developing countries, should aim, inter alia, at the following goals, considering their need for technical assistance and rational and efficient allocation of financial and technical resources: (a) Promoting the development of space science and technology and of its applications; (b) Fostering the development of relevant and appropriate space capabilities in interested States; (c) Facilitating the exchange of expertise and technology among States on a mutually acceptable basis”. These are the three goals international cooperation should aim at achieving.

These are the most important principles contained in the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries.

Can Space Law apply on Earth?

Can Space Law apply on Earth? When I tell people about my interest in Space Law, they are usually surprised. They ask me what is Space Law and I try to give a simple definition. Recently, I have asked myself if Space Law could apply on Earth and the answer is of course: yes!

In this new Space Legal Issues article, let’s study the case of Space Law applying on Earth; we will exclusively focus on the Magna Carta of Space Law, what is at the basis of what is called corpus juris spatialis: the 1967 Outer Space Treaty, or “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”.

What is Space Law?

Space Law is the body of laws, agreements and treaties that govern outer space. Worldwide leaders must grapple with how to regulate activity in space. Space Law covers issues like rules for exploration, weapons use, and damage for liability, rescue efforts for astronauts in distress, environmental regulations, and records of space activity.

Space lawyers draft international treaties and national laws. They advise lawmakers about good policy and whether to enter international agreements. Space lawyers may even help negotiate these agreements. They help government entities and even private companies engaging in space exploration comply with existing laws and treaties.

Because of the nature of space law, space lawyers engage in a great deal of policy making. They might spend the bulk of their time drafting proposals or advocating for certain policies. Space lawyers must also understand enough science to give their clients educated advice.

The Outer Space Treaty

On December 19, 1966, the United Nations unanimously adopted a treaty, opened for signature on January 27, 1967, declaring that the exploration and use of outer space must be carried out in the interest and for the good of humanity, any discrimination between States being excluded. Outer space, including the Moon and other celestial bodies, will be free and accessible to all States and cannot be the subject of national ownership. Adopting these basic principles, it establishes that any action by States in outer space must be in accordance with international law (including the Charter of the United Nations of 1945, the foundational treaty of the United Nations) not only in the interest of maintaining international peace and security, but also to foster international cooperation and understanding.

Among the broad general principles that should govern the space activities of States, the use of outer space for peaceful purposes, mentioned in the Preamble to the Outer Space Treaty and in several of its provisions, has been in fact, several times since 1957, stated in previous General Assembly resolutions of the United Nations (in 1957, 1958, 1959, and more particularly in 1961). Already, the signing of the Moscow Treaty in 1963, prohibiting nuclear experiments in the air, water and space, represented an important relaxation with regard to the political relations between the U.S.S.R. and the United States of America. The desire for co-operation has also been reflected in other events such as the agreement of 1962, reiterated in 1963 between the U.S.S.R. and the United States of America for the peaceful co-operation in the fields of meteorological satellites, telecommunications and the establishment of magnetic field maps. As a result, two important resolutions were adopted by the U.N. General Assembly in 1962 and 1963.

The result of this spirit of cooperation was also reflected in the same year by the adoption by the General Assembly of the United Nations of an important resolution on the question of disarmament general and complete (1963). In this resolution, the General Assembly refers to a previous resolution of 1961 and emphasizes its decision to take measures to prevent the arms race from spreading to outer space. It is the famous resolution “no bombs in orbit”.

In 1965, the United States of America delegation to the United Nations declared that “before the human beings Moon landed, the U.N. should set forth international rules governing the exploration of celestial bodies”. Before the opening of negotiations on the Outer Space Treaty, the United States of America was already thinking more about a treaty on celestial bodies, than a specific convention on outer space. It is in this sense that on May 7, 1966, President Johnson emphasized the need for immediate action “to ensure that the exploration of the Moon and other celestial bodies serves only peaceful purposes” and “to be sure that our astronauts and those of other countries will be able freely to proceed to the scientific study of the Moon”. The President of the United States of America suggested that the United Nations adopt a treaty governing the exploration of the Moon and other celestial bodies and, among the principles retained for inclusion in this treaty, it was intended that “no country should be allowed to place weapons of mass destruction on a celestial body” and that “weapons tests and military manoeuvres should be prohibited”.

Animated by the same concern, to “take practical steps towards the conquest of the Moon and other celestial bodies and, first and foremost, adopt provisions to prohibit the use of the Moon and other celestial bodies for military activities”, the U.S.S.R. also tabled a draft treaty on “the legal principles to govern the activity of states in the field of exploration and conquest of the moon and other celestial bodies”, which, with respect to military uses, contained the following provisions: “All states must use the Moon and other celestial bodies exclusively for peaceful purposes. The Moon and other celestial bodies shall not be constructed with military bases or installations, including facilities containing nuclear weapons or other types of weapons of mass destruction”. Thus, from 1965 to 1966, the two Great Spatial Powers agreed on a number of principles to govern the activities of States, mainly on the Moon and other celestial bodies.

The Outer Space Treaty (1967), concluded within an extremely short period of time (six months), was in fact a bilateral agreement between the two Great Spatial Forces and then imposed on the other States that were not materially prepared and at the time, did not master the technical data. This is an important historical fact that should be kept in mind.

Can Space Law apply on Earth?

Paragraph 1 of Article I of the Outer Space Treaty states that “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind”. This first paragraph is pretty clear: outer space, whether it is for exploration or use (utilisation?), shall be carried out for the benefit and in the interest of countries. Considering the fact that countries only exist today on Earth, that the International Space Station (ISS) is not a country but an intergovernmental cooperation, Space Law applies on Earth.

Paragraph 2 of Article I of the Outer Space Treaty adds that “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies”. Again, a reference is made to States, which for now, only exist on Earth.

We should add that projects such as Asgardia, also known as the Space Kingdom of Asgardia, a micronation formed by a group of people who have launched a satellite into Earth orbit (the Asgardians have adopted a constitution and intend to access outer space free of the control of existing nations), are not States, since certain criteria are not respected: 1) a defined territory; 2) a permanent population; 3) a government; and 4) a capacity to enter into relations with other States.

Paragraph 3 of Article I of the Outer Space Treaty concludes that “There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation”. Again, States appear to be the main actors of activities conducted in outer space.

Article V of the Outer Space Treaty declares that “States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle”. What happens if an astronaut lands on the territory of a State or on the high seas? The State of registry of their space vehicle can ask that those “envoys of mankind” shall be safely and promptly returned. This means that Article V of the OST can be invoked while on Earth, for a situation that is happening on Earth. Space Law could be used against a State (like North Korea for example), on Earth, if that particular State (North Korea) was to refuse to safely and promptly return the astronauts to the State of registry of their space vehicle (the United States of America for example).

Article VII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies announces that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies”.

Let’s imagine that State A was to launch an object in outer space and that an accident was to happen on the launch pad (like it happened in Brazil in 2003: the 2003 Alcântara VLS accident); scientists from State B (working on the object that was about to be launched) are killed, and houses and facilities from State C are damaged (like it happened in China in 1996: the Long March 3B rocket failed while being launched from the Xichang Satellite Launch Center in China, and the rocket veered off course immediately after lift-off and struck a nearby village, killing at least six people). Space Law would apply, and Article VII of the Outer Space Treaty could be used by States B and C against State A; this would be a Space Law case applying on Earth.

Can Space Law apply on Earth? Article VIII of the founding principles of Space Law notably enounces that “Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return”. What if France was to refuse to return the part of the SpaceX capsule that was found on the foreshore of a French island in Britany? Space Law could be invoked and the United States of America could act against France on the basis of Article VIII of the Outer Space Treaty (Space Law) even though the component has never left the Earth. Space Law would apply on Earth.

Article IX of the aforementioned Treaty notably states that “States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose”. What if Neil A. Armstrong, Edwin E. Aldrin Jr., and Michael Collins had infected the Earth after coming back from their mission? Space Law would have apply, even though “appropriate measures for this purpose” should have been defined by the United Nations.

Can Space Law apply on Earth? Concluding remarks!

Can Space Law apply on Earth? Among all the aforementioned articles, Article VII of the Outer Space Treaty, regarding the application of Space Law on Earth, is the most important one. A State can be internationally liable for damages caused by objects intended to be launched in outer space, even though those objects have never left Earth. What would be interesting is to think about the definition of launching or procuring the launching of an object into outer space.

An interview with Jean-François Clervoy

This interview of Jean-François Clervoy was conducted by Louis de Gouyon Matignon for Space Legal Issues on Thursday, April 25, 2019 in the CNES office of Jean-François Clervoy in Paris, France.

Hello Jean-François Clervoy and thank you for receiving me. Could you present yourself?

Thank you very much. Yes, with pleasure. My name is Jean-François Clervoy and I’m sixty years old. I started working in 1983 at CNES (Centre national d’études spatiales or National Centre for Space Studies), the French space agency, as an engineer responsible for the satellite attitude and orbit control system, after having studied at the École Polytechnique (a French public institution of higher education and research in Palaiseau, a suburb located south from Paris) and the ISAE-SUPAERO – Institut Supérieur de l’Aéronautique et de l’Espace. One year after joining CNES, I started a selection to become an astronaut; the approach is personal, one never comes to ask an astronaut “hey, we would like you to be an astronaut”, all astronauts are people who have had the personal step to become an astronaut.

They took me after one year (the tests are spread over a year or so), and there, the CNES sent me to do the EPNER (École du personnel navigant d’essais et de réception), the French test pilot school, based on the Istres Le Tube Airbase, France, one of the five main test pilot schools in the western hemisphere. The school is near Marseille. There are many formations offered there (test pilot, test navigational engineer, test navigator experimenter…).

So I became a test engineer. I did my dissertation on parabolic flights. I studied how, depending on the specific characteristics of an aircraft, we can define the ideal manoeuvre for this aircraft, allowing it to create true weightlessness, depending on engine performance. It depends on the altitude and the speed. Not necessarily the same duration of weightlessness, depending on altitude and speed. In the Dassault/Dornier Alpha Jet, a light attack jet and advanced jet trainer co-manufactured by Dassault Aviation of France and Dornier Flugzeugwerke of Germany, I have experienced forty seconds of weightlessness. On a big carrier, it’s more like twenty seconds.

In the process, I proposed to CNES that we develop in France a parabolic flight program: these are flights in which we create true weightlessness, but it lasts only twenty-two seconds, dozens of times per flight (thirty-one times in total). All accumulated, it’s twelve minutes of weightlessness. At that time, European scientists went to the United States of America to carry out experiments, so the CNES boss told me that if I could convince other European scientists to go on our plane, if we could develop one, then I would have carte blanche.

That’s how I created the first true parabolic flight program in Europe, based on a Sud Aviation SE 210 Caravelle, a French short/medium-range jet airliner, which later was succeeded by an Airbus A300, and now an Airbus A310. So I took care of that, of this project. I was part-time astronaut attached to the Hermes program (Hermes was a proposed spaceplane designed by the French CNES; Hermes was to have been part of a crewed space flight program) and half-time detached to the flight test centre, so I was program manager to develop these parabolic flights.

At the end of the École Polytechnique, I chose the DGA (Direction générale de l’armement). I left CNES in 1992 to join the ESA astronauts. So I entrusted the parabolic flights to a subsidiary of CNES called Novespace. ESA seconded me to NASA. And there, I spent ten years treated by the Americans as one of theirs. I joined the NASA Astronaut Group 14. NASA Astronaut Group 14 or “The Hogs” was a group of twenty-four astronauts announced by NASA on December 5, 1992. The group’s name derived from The Muppet Show skit “Pigs in Space” and from the group’s sponsorship of a pot-bellied pig at the Houston Zoo. NASA has assigned me flying as an American.

I was one of the first of my promotion to fly, the first flight dedicated to the study of the atmosphere. There was not a single ESA manipulation in this flight. Second flight, it was to supply the Russian space station Mir (Mir was a space station that operated in low Earth orbit from 1986 to 2001, operated by the Soviet Union and later by Russia. Mir was the first modular space station and was assembled in orbit from 1986 to 1996. It had a greater mass than any previous spacecraft). During this flight, there was a little ESA experience. Then the third flight, I was assigned to Hubble’s repair mission. After, I returned in 2001 to France.

I suggested to ESA that the agency integrate me into the program that developed the Automated Transfer Vehicle (ATV). It’s a big supply ship, the biggest and most powerful of all: totally automated. The Automated Transfer Vehicle, originally Ariane Transfer Vehicle or ATV, was an expendable cargo spacecraft developed by the European Space Agency and used for space cargo transport. The ATV design was launched to orbit five times, exclusively by the Ariane 5 heavy-lift launch vehicle. I told them that I could help to develop the ATV, having refuelled the Mir station. That’s how I was Senior Advisor Astronaut of the ATV project. Then, the director of ESA told me that they were planning to put me on a fourth flight, on Hubble again, but not as a pilot of the robotic arm, but in EVA output, it was around 2005. Then, the Columbia accident stopped everything. So I did not fly a fourth time.

At that time, the CEO of Novespace was retiring, so I told ESA that I could fulfil the duties of CEO, while continuing my work as an astronaut on the ground. For an astronaut, the main working time is on the ground, it’s a chance to fly. We have a role of consultant, expert to test materials. From 2006, I was CEO of Novespace. In 2008, I opened the Novespace parabolic flights to the public. For six years, flights have been open to tourists. Since December, I left the active body of ESA. In summary, throughout my career, I have been an astronautics engineer on the Spot, Hermes and Vega projects, astronaut about ten years at NASA, Senior Advisor Astronaut of the ATV, CEO of Novespace. I continued half-time to my role as an astronaut on the ground.

Jean-François Clervoy, what is the job of astronaut?

The job of astronaut is to be a complex machine operator in a hostile and extreme environment. It’s an operator’s job. We are entrusted with complex machines, we learn how they work, and after, how to use them, which is not the same thing. You can learn to drive without understanding how a car works and understand how a car works without knowing how to drive. An astronaut must know how his car works and how to drive it. An astronaut must know his ship and, in a second time, learn to perform the right manoeuvres in the right order and react to breakdowns. This is our training. That’s why astronauts are initially selected from the complex machine operators.

So what are the most complex machines before astronautics? These are the fighter planes. These are machines that condense in the smallest volume a complex mechanism, and there is only one operator to make the decisions quickly. That’s why we are selected here. Patrick Baudry and Jean-Loup Chrétien are fighter pilots. But since the American Space Shuttle era, it has changed. The selection has opened wide.

Today, we select the astronauts among the professions of engineers. In materials, computer science, electronics, propulsion… And also in telecommunications, techniques that have to do with space anyway. An extremely wide range of scientific professions. There are PhD students in volcanology, oceanographers, chemists, biologists, physiologists, doctors (cardiac surgeons), veterinarians…

And even among the operators, we opened, it is not only fighter pilots but also pilots of helicopters, professional divers, submariners… It is very broad. Once selected, we are all in the same boat, we learn and all do the same job. A veterinarian will be trained in the same tasks as the volcanologist. Astronauts do not do research in the ISS, they are operators of scientific equipment and science is done by ground researchers who receive the data, analyse the data and publish in the journals.

People think that scientific astronauts are selected to practice their science in space. There has been a bit of that in the past, with the category called Payload Specialists. A payload specialist (PS) was an individual selected and trained by commercial or research organisations for flights of a specific payload on a NASA Space Shuttle mission. People assigned as payload specialists included individuals selected by the research community, a company or consortium flying a commercial payload aboard the spacecraft, and non-NASA astronauts designated by international partners. The term refers to both the individual and to the position on the Shuttle crew.

I am part of the first officially international promotion, NASA Astronaut Group 14. This NASA Astronaut Group 14 responds to NASA’s call to its partners, which said: “You will be a partner of the International Space Station ISS with us, so that you have already experienced astronauts, send us one or two astronauts from home, selected on certain criteria, and we will treat them as ours. They will fly in the American Space Shuttle, they will experience spaceflight”. I would like to point out that Claude Nicollier. Claude Nicollier is the first astronaut from Switzerland. He has flown on four Space Shuttle missions. He is the first non-American to fly with the title of Mission Specialist, a professional astronaut title for NASA. At NASA, the two astronaut professions are Pilot (as part of the Space Shuttle) and Mission Specialist. Today, the pilot function no longer exists, it is Flight Engineer (and there are different degrees for different systems).

Jean-François Clervoy, what is the status of astronauts?

I have a military status because of my choice to join the DGA after École Polytechnique. Initially, the astronauts were military: the first Russians, Americans, Chinese and French… Not the first Europeans (a Dutch and German scientist, a Swiss scientist pilot for Swiss Air). In space agencies, the astronaut has a status of the company. The astronaut functions according to the civil regime of the organisation. Organisations that have employed astronauts, other than Chinese and Russians, are civilian organisations. They gave a civil status to the astronaut. At first, the Russians were military. Among the Chinese, it is the military that manages manned flights. Roscosmos became a civilian organisation. The Chinese have selected for the first time last year civil scientists. It’s interesting to notice that there are more and more scientists and fewer and fewer military pilots.

Jean-François Clervoy, how much does an astronaut make?

It varies enormously, but the astronaut remains an official. At ESA, we belong exactly to the same salary grid that we call European coordinated international organisations (NATO, European Commission…); it’s the same grid. It starts at four thousand euros after tax. At the end of the career, it’s around ten thousand euros after tax. In Russia, it is an important motivating factor. Some Russian cosmonauts chose to be cosmonauts for the money, it was then an important criterion. Americans earn as soldiers on a base.

Jean-François Clervoy, and the Overview Effect?

For me, Jean-François Clervoy, the Overview Effect is a combination of sensory effects that lead to emotional and intellectual effects, sometimes spiritual. The field of view carries far, the contents change quickly, it is beautiful because the Earth shelters the living, with a real activity. It is very contrasted and colourful. It moves, it makes even cry. It raises questions about how the Earth works and what our role is on Earth, the big spaceship. It elevates the soul, the reflection of the human above material things, conflictual or relational. We understand the fragility of the living (and not the Earth), it is an experience that makes it possible not to see the artificial boundaries. What is also interesting in the Overview Effect is that international crews are watching the planet together and no longer feel separated.

Thank you very much Jean-François Clervoy.

Principles Relevant to the Use of Nuclear Power Sources in Outer Space

A positive step towards protecting the human environment was taken on December 14, 1992, with the adoption by the U.N. General Assembly of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space. These eleven Principles, with the Resolution adopting them, culminate efforts going back to 1972.

The subject first came to the attention of the U.N.’s Committee on the Peaceful Uses of Outer Space (COPUOS) during the negotiations on the Convention on International Liability for Damage Caused by Space Objects of 1972. The negotiators were influenced by the use by the United States of America of radioisotope generators in outer space, which began in 1961, and by its use of nuclear reactors in outer space, which began in 1965. The unprogrammed re-entry of the Soviet nuclear-powered satellite, Kosmos 954, into Canada on January 24, 1978, served to stimulate the formulation of the 1992 principles.

History

On February 16, 1978, Canada brought the Kosmos 954 situation to the attention of the Scientific and Technical Sub-committee of COPUOS. From that date onward, Canada demonstrated an ongoing commitment to secure the promulgation of a relevant body of principles. On February 27, 1978, Canada and seven other members of COPUOS submitted a proposal to the Scientific and Technical Sub-committee urging the development of “a technical base for a multilateral regime of strict and fully effective standards, safeguards, and limitations pertaining to the use of nuclear power sources in space”.

On April 4, 1978, fifteen countries submitted a working paper to the Legal Sub-committee. Attention was called to issues of safety, giving of notice, emergency assistance, responsibility, and damages. From the outset, both Sub-committees sought each other’s advice, and were in agreement that basic standards promulgated by the International Commission on Radiological Protection, were relevant.

Principles Relevant to the Use of Nuclear Power Sources in Outer Space

The Principles must be read m connection with the provisions of the four additional COPUOS agreements, namely, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space of 1967, the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space of 1968, the Convention on the Registration of Objects Launched into Outer Space of 1976, and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 1979.

During the negotiations, the fear was expressed that the Principles might be considered to be at variance with some of the terms of the foregoing agreements. Consensus, the modality employed in COPUOS, upheld the consistency of the Principles and the formal agreements. The Principles must also be viewed in light of the Convention on Early Notification of a Nuclear Accident of 1986, and the companion Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency of 1987.

The Preamble of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space notably states: “Recognizing that for some missions in outer space nuclear power sources are particularly suited or even essential owing to their compactness, long life and other attributes” and “Recognizing also that the use of nuclear power sources in outer space should focus on those applications which take advantage of the particular properties of nuclear power sources”.

The Preamble of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space then adds: “Recognizing further that the use of nuclear power sources in outer space should be based on a thorough safety assessment, including probabilistic risk analysis, with particular emphasis on reducing the risk of accidental exposure of the public to harmful radiation or radioactive material”, and “Recognizing the need, in this respect, for a set of principles containing goals and guidelines to ensure the safe use of nuclear power sources in outer space”.

The Preamble of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space finally declares: “Affirming that this set of Principles applies to nuclear power sources in outer space devoted to the generation of electric power on board space objects for non-propulsive purposes, which have characteristics generally comparable to those of systems used and missions performed at the time of the adoption of the Principles”, and, importantly, “Recognizing that this set of Principles will require future revision in view of emerging nuclear power applications and of evolving international recommendations on radiological protection”.

Principle 1. of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space on Applicability of international law states that “Activities involving the use of nuclear power sources in outer space shall be carried out in accordance with international law, including in particular the Charter of the United Nations and the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”.

Principle 2. of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space concerns Use of terms and Principle 3. on Guidelines and criteria for safe use affirms that “use is restricted to missions that cannot reasonably be operated by non-nuclear energy sources”. General goals for radiation protection and nuclear safety concerns the minimization of radiation exposure during normal operation and accidents; Nuclear reactors is about permitted missions, orbits, fuel, critical operation and disposal; and Radioisotope generators is about permitted missions, orbits and containment.

Principle 4. of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space on Safety assessment notably states that “Pursuant to article XI of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, the results of this safety assessment, together with, to the extent feasible, an indication of the approximate intended time-frame of the launch, shall be made publicly available prior to each launch, and the Secretary-General of the United Nations shall be informed on how States may obtain such results of the safety assessment as soon as possible prior to each launch”.

Principle 5. of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space on Notification of re-entry affirms that “Any State launching a space object with nuclear power sources on board shall in a timely fashion inform States concerned in the event this space object is malfunctioning with a risk of re-entry of radioactive materials to the Earth”. It then adds that “The information shall be provided by the launching State as soon as the malfunction has become known. It shall be updated as frequently as practicable and the frequency of dissemination of the updated information shall increase as the anticipated time of re-entry into the dense layers of the Earth’s atmosphere approaches so that the international community will be informed of the situation and will have sufficient time to plan for any national response activities deemed necessary”.

Principle 8. of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space on Responsibility declares that “In accordance with article VI of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, States shall bear international responsibility for national activities involving the use of nuclear power sources in outer space, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that such national activities are carried out in conformity with that Treaty and the recommendations contained in these Principles. When activities in outer space involving the use of nuclear power sources are carried on by an international organization, responsibility for compliance with the aforesaid Treaty and the recommendations contained in these Principles shall be borne both by the international organization and by the States participating in it”.

Principle 9. of the aforementioned Resolution, on Liability and compensation, notably states that “In accordance with article VII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and the provisions of the Convention on International Liability for Damage Caused by Space Objects, each State which launches or procures the launching of a space object and each State from whose territory or facility a space object is launched shall be internationally liable for damage caused by such space objects or their component parts. This fully applies to the case of such a space object carrying a nuclear power source on board. Whenever two or more States jointly launch such a space object, they shall be jointly and severally liable for any damage caused, in accordance with article V of the above-mentioned Convention”.

Finally, Principle 10. of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space on Settlement of disputes enounces that “Any dispute resulting from the application of these Principles shall be resolved through negotiations or other established procedures for the peaceful settlement of disputes, in accordance with the Charter of the United Nations”.

Principles Relating to Remote Sensing of the Earth from Outer Space

The Principles Relating to Remote Sensing of the Earth from Outer Space were adopted by consensus on December 3, 1986. They provide a set of non-binding yet agreed and politically relevant principles (that such activities are to be conducted for the benefit of all countries, with respect for the sovereignty of all States and people over their own natural resources, and for the rights and interests of other States) to guide the activities of remote sensing by the United Nations member states.

Introduction

The United Nations (UN) Resolution Relating to Remote Sensing of the Earth from Outer Space was adopted by consensus on December 3, 1986, which implies that no single state entertained fundamental objections to its content. Especially in the absence of other (binding) instruments regulating the same subject matter, United Nations Resolutions can carry great moral and political weight, as well as nascent legal validity (so-called “soft law” status). Therefore, and in view of their general nature, the legal status of the principles is similar to that of general principles of international law.

On the other hand. Resolutions of the United Nations General Assembly as such are not binding upon states, even upon those having voted in favour or consented. General principles, moreover, do not readily allow for clear-cut application without further ado. In the final analysis, only those principles that reflect already existing customary legal rules — and to the extent that they do not conflict among themselves — might be effectively binding upon states.

Principles Relating to Remote Sensing of the Earth from Outer Space

Firstly, it may be noted that the UN Resolution applies to remote sensing activities “for the purpose of improving natural resources management, land use and the protection of the environment”. Another issue following from this, somewhat narrow, definition of remote sensing for the purposes of the Resolution, is that it might be taken to exclude from its scope any military activities. This, however, is of relatively little importance, since few of the other Principles contained in the Resolution could carry legal force as well as practical weight when it comes to military and security-related remote sensing activities.

Principle I of the Principles Relating to Remote Sensing of the Earth from Outer Space states that “The term “remote sensing” means the sensing of the Earth’s surface from space by making use of the properties of electromagnetic waves emitted, reflected or diffracted by the sensed objects, for the purpose of improving natural resources management, land use and the protection of the environment”. It also adds that “The term “remote sensing activities” means the operation of remote sensing space systems, primary data collection and storage stations, and activities in processing, interpreting and disseminating the processed data”.

Principle II of the Principles Relating to Remote Sensing of the Earth from Outer Space declares that “Remote sensing activities shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic, social or scientific and technological development, and taking into particular consideration the needs of the developing countries”. The very general reference to “the benefit and… interests of all countries” with special consideration for the developing countries is of considerable preponderance in international space law treaties and resolutions.

Principle III of the Principles Relating to Remote Sensing of the Earth from Outer Space enounces that “Remote sensing activities shall be conducted in accordance with international law, including the Charter of the United Nations, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and the relevant instruments of the International Telecommunication Union”.

Principle IV of the Principles Relating to Remote Sensing of the Earth from Outer Space states that “Remote sensing activities shall be conducted in accordance with the principles contained in article I of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, which, in particular, provides that the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and stipulates the principle of freedom of exploration and use of outer space on the basis of equality. These activities shall be conducted on the basis of respect for the principle of full and permanent sovereignty of all States and peoples over their own wealth and natural resources, with due regard to the rights and interests, in accordance with international law, of other States and entities under their jurisdiction. Such activities shall not be conducted in a manner detrimental to the legitimate rights and interests of the sensed State”.

This Principle involves the core issue of satellite remote sensing: the dilemma between the freedom of use of outer space, in its particular manifestation of freedom of information gathering making use of satellites, and the principle of sovereignty of states over their own territory, more in particular over their own wealth and natural resources. These two concepts collide where the “sensed state” finds itself in a situation where a “sensing state” might obtain valuable information, especially in economic terms, with regard to the territory of the “sensed state” which that state itself does not possess.

A balance has been established by the Resolution that tilts in favour of the freedom of space activities. The principle of full and permanent sovereignty, it is true, is to be respected, consequently legitimate rights and interests of the “sensed state” shall not be harmed, and the benefit and interest of all countries shall be taken into account. All this, however, does not alter the fact that the “sensed state” has no veto to prevent it from being “sensed”, or even an exclusive, free, or preferential right of access to the data. This becomes especially clear when this Principle is seen in conjunction with Principles XII and XIII.

Principle V of the Principles Relating to Remote Sensing of the Earth from Outer Space affirms that “States carrying out remote sensing activities shall promote international cooperation in these activities. To this end, they shall make available to other States opportunities for participation therein. Such participation shall be based in each case on equitable and mutually acceptable terms”.

Principle VI of the Principles Relating to Remote Sensing of the Earth from Outer Space declares that “In order to maximize the availability of benefits from remote sensing activities, States are encouraged, through agreements or other arrangements, to provide for the establishment and operation of data collecting and storage stations and processing and interpretation facilities, in particular within the framework of regional agreements or arrangements wherever feasible”. Principle VII of the aforementioned Resolution mentions that “States participating in remote sensing activities shall make available technical assistance to other interested States on mutually agreed terms”.

Principle IX of the Principles Relating to Remote Sensing of the Earth from Outer Space states that “In accordance with article IV of the Convention on Registration of Objects Launched into Outer Space and article XI of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, a State carrying out a programme of remote sensing shall inform the Secretary-General of the United Nations. It shall, moreover, make available any other relevant information to the greatest extent feasible and practicable to any other State, particularly any developing country that is affected by the programme, at its request”.

The substance of this Principle, though largely relating to a procedural issue, has a potentially important impact on user issues especially as regards the second provision. The terminology used with regard to informing other states (“relevant information”; “to the greatest extent feasible and practicable”) would still leave considerable leeway in applying it, for states that are forced or feel forced to adhere to this Principle.

Principle X of the Principles Relating to Remote Sensing of the Earth from Outer Space affirms that “Remote sensing shall promote the protection of the Earth’s natural environment. To this end, States participating in remote sensing activities that have identified information in their possession that is capable of averting any phenomenon harmful to the Earth’s natural environment shall disclose such information to States concerned”. Principle XI of the aforementioned Resolution adds that “Remote sensing shall promote the protection of mankind from natural disasters. To this end, States participating in remote sensing activities that have identified processed data and analysed information in their possession that may be useful to States affected by natural disasters, or likely to be affected by impending natural disasters, shall transmit such data and information to States concerned as promptly as possible”.

Principle XIV of the Principles Relating to Remote Sensing of the Earth from Outer Space declares that “In compliance with article VI of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, States operating remote sensing satellites shall bear international responsibility for their activities and assure that such activities are conducted in accordance with these principles and the norms of international law, irrespective of whether such activities are carried out by governmental or non-governmental entities or through international organizations to which such States are parties. This principle is without prejudice to the applicability of the norms of international law on State responsibility for remote sensing activities”.

This Principle, next to the cluster of Principles IV, XII, and XIII as dealing with the fundamental dilemma underlying satellite remote sensing, is the other core Principle of the Resolution, since it deals with the issue of State responsibility in the particular case of satellite remote sensing activities. As Principle XIV itself states, it also includes non-governmental entities within the scope of the Resolution and the concept of international responsibility. The legitimacy of private involvement in any aspect of space remote sensing activities is thereby confirmed. That is what can be said concerning the Principles Relating to Remote Sensing of the Earth from Outer Space.

The Delimitation between Airspace and Outer Space

For this new Space Law article on Space Legal Issues, let’s study the Delimitation between Airspace and Outer Space. The issue of where airspace ends and outer space begins has been debated since the 1950s. This legal issue is important since Air Law and Space Law are governed by vastly different legal regimes. The delimitation debate among publicists and among states demonstrates the lack of clarity in a line between air and space. In the absence of clarity, we yield to the default legal position; that is, follow the rule and not the exception.

In the legal literature, there exist many good ideas on delimitation, based on many different concerns such as Airspace and Outer Space traffic control, insurance, commercial development (in particular space tourism and hypersonic transportation), pure science, and a host of other notions. Any one of these concerns may be a firm basis on which a regime of delimitation can be founded (with the remaining concerns adjusting their regulations and practices to whatever line is determined). But, as yet, there is no clear state consensus as to a line or the primary foundation upon which any such delimitation should be based.

The constant evolution of technology gave rise to concrete case studies relevant to the long-standing debate on the definition and delimitation of outer space. The regimes of both Air Law and of Space Law were developed at a time when the technology for Earth-to-Earth aerospace movements did not yet exist. Thus, there is not yet a unified or integrated regime of aerospace law. Moreover, there is significant inconsistency between the regimes of Air Law and Space Law.

Air Law

Let’s note that Air Law applies to airspace and aircrafts. States enjoy “complete and exclusive sovereignty” over their territorial air space. The Convention on International Civil Aviation (also known as Chicago Convention) states that “Every state has complete and exclusive sovereignty in the airspace above its territory”. It also declares that “Territory includes the land areas and territorial waters adjacent thereto”. Air Law imposes liability on the airline, or the aircraft operator and requires States to certify and register aircraft, and environmental standards. Air Law requires States to regulate safety, navigation, and security; it also States requires to regulate noise and emissions.

Article 3 of the 1944 Chicago Convention adds that “No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with terms thereof”. Article 6 of the 1944 Chicago Convention declares that “No scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization”.

Article 12 of the 1944 Chicago Convention states that “Each contracting State undertakes to adopt measures to insure that every aircraft flying over or manoeuvring within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to the flight and manoeuvre of aircraft there in force. Each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention. Over the high seas, the rules in force shall be those established under this Convention. Each contracting State”.

Space Law

Let’s note that Space Law applies to outer space and space objects. State sovereignty over outer space is prohibited and Space Law imposes liability and oversight responsibility upon the State; it also creates an international registration regime. There is yet no universal safety, navigation or security standards in outer space.

Article II of the 1967 Outer Space Treaty affirms that “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.

The Delimitation between Airspace and Outer Space

Neither “Airspace” nor “Outer Space” are defined in the relevant treaties. Development of suborbital flights would benefit from the delineation of where Airspace ends and Outer Space begins. Commercial suborbital spaceflights use vehicles that reach an altitude of approximately one hundred kilometres, the theoretical line proposed by Theodore von Kármán to separate the fields of aeronautics and astronautics. This line has been recognised by the Fédération aéronautique internationale. Australia has also adopted one hundred kilometres as the jurisdictional limit of its national Airspace. But setting the boundary of territorial air space that high would restrict launches to the discretion of the underlying State.

Commercial and military interests have begun to develop operating systems in near-space (at an altitude of roughly twenty to eighty kilometres). Such systems include suborbital vehicles, stratospheric balloons, pseudo-satellites and high-altitude drones. Operations in near-space are a potential threat for air traffic beneath and for the public on ground, in case of failures or malfunctions. They are also a threat for space outbound and returning traffic.

The following operational boundaries exist between aviation and outer space: one hundred and sixty kilometres (lowest practical operating orbit for satellites), one hundred and twenty kilometres (re-entry threshold for space systems), or eighteen kilometres (upper limit of civil aviation traffic).

Predictability of outcomes would be enhanced if the question of whether Air Law, or Space Law, or a new regime of “Aerospace Law” applied to suborbital flights. Commercial development of space would be facilitated by clarity, stability and predictability of law. Uniformity of law will improve the market’s interest in investment in space transportation, and the insurance industry’s ability to assess and price risk. Delineation of which legal regime will enhance the margin of safety for aircraft, spacecraft and aerospace vehicles operating in all three zones.

Spatialism and Functionalism

Two primary schools of thought have emerged on the issue of air and space delimitation: spatialism and functionalism. Spatialism essentially argues for a fixed line, at a set altitude, for the division of airspace and outer space. Under a strict spatialist analysis, if a craft, regardless of its nature and capabilities, is below the line, it is in airspace; when it is above the line, it is in outer space. Conversely, functionalism focuses on the nature of the craft in question. If it serves outer space functions, outer space law applies wherever it is operating; if it is an aircraft, airspace law applies to its flight. In effect, this “approach would render it unnecessary to solve the theoretical dispute whether there is a boundary between airspace and outer space and where it should be located”.

Of course, even within these broad schools are more particular and inconsistent theories of delimitation. Further, some thinkers and space-faring states believe there is no need to decide the issue. The emergence of hybrid aerospace vehicles challenges these theories and compounds the lack of consensus. Their ability to operate in either airspace or outer space, straddling any line established between the two, can make their control and regulation ambiguous and inconsistent if spatially-based. Further, their function is novel. On any given flight, they may operate both as an aircraft and a spacecraft.

As one description of the functional approach explained, “one way to answer the question as to which regime of law applies is to ask what type of vehicle is being considered”. But, the extant legal regimes present just a binary option: only airspace or outer space law can apply; there is presently no established regime for aerospace vehicles. The existing theories provide no definitive or universal guidance for the operation of aerospace vehicles, particularly in the grey area between air and space law.

While there is no clear edge of the airspace or no precise lower border for outer space, these domains are universally acknowledged as both existing and possessing a fairly straightforward legal regime (vis-a-vis sovereignty and state vehicles). Some national laws might evolve in the upcoming years into a state practice and become opinio juris. We hope these questions will be discussed at the Legal Subcommittee of the United Nations’ Committee on the Peaceful Uses of Outer Space (COPUOS). That is what can be said about the Delimitation between Airspace and Outer Space.

Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting

The Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, adopted in 1982 (Resolution 37/92), consider that such use has international political, economic, social, and cultural implications. They declare that a State intending to establish such a broadcasting service should notify receiving States and establish such a service only on the basis of agreements with those States. This form of broadcasting raises questions of national sovereignty, cultural independence, and free flow of information.

The use of communication facilities and computers is bound to change legal institutions within individual nations, and it seems likely that it will have an impact on international legal relationships as well. In order to gain some understanding of the impact of communications institutions on the formation of international law, let’s have a look for this new Space Law article at the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting.

Introduction

For years, it has been possible to send short wave radio messages from a transmitter directly to individual radio sets around the world. The reason for this is that short wave radio clings to the Earth’s circumference and allows broadcasting in rough proportion to the power of the transmitter. Artificial Earth satellites have changed this capacity, since they have allowed the sending of a television transmission to a satellite and then back to Earth thousands of kilometres away.

The possibility of long distance direct television broadcasting has sparked a debate in international legal circles which has lasted a decade and a half. Television, as we know, is an extremely powerful communications medium. It is a political and economic force. It is political in that it shapes the expectations of people who watch it. It is even suggested by many communication scholars that such a powerful medium has the capacity to “set the agenda”, or frame the basic politics of the people by identifying the issues and expectations to which they will pay attention.

Such a powerful medium have raised issues bearing on the cultural independence of individual nations, especially those which are less developed economically. Thus, the concerns of the world community began to emerge in negotiations discussing the use of these satellites. These concerns were, on the one hand, to preserve the essence of cultural self-determination or self-guidance, and, on the other, to assure continued and fertile international communications with all the benefits that these can bring to mankind.

The debate began in the late 1960s, but shifted into high gear when the Soviet Union put forth a proposal in 1972. This proposal set the stage for the formal and informal legal discussions on direct television broadcasting. The U.S.S.R. proposed an international convention. The United States of America and some other States opposed the U.S.S.R.’s proposal primarily on the basis that it violated a fundamental international norm or general principle safeguarding the free flow of information.

The United States of America urged that no special regulation of direct broadcast satellites was appropriate, and that whatever legal responsibility there might be for such broadcasts should be resolved by application of existing provisions of international law. The debate on direct television broadcast regulation appears to have come to a close in the fall of 1982, when a Resolution concerning direct television broadcasting was adopted by the United Nations General Assembly.

Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting

Space law can be described as the body of law applicable to and governing space-related activities. Space law, much like general international law, comprises a variety of international agreements, treaties, conventions, and United Nations General Assembly resolutions, as well as rules and regulations of international organisations. The term “space law” is most often associated with the rules, principles and standards of international law appearing in the five international treaties and five sets of principles governing outer space which have been developed under the auspices of the United Nations. In addition to these international instruments, many States have national legislation governing space-related activities.

The Preamble of the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting notably states that “Considering that several experiments of direct broadcasting by satellite have been carried out and that a number of direct broadcasting satellite systems are operational in some countries and may be commercialized in the very near future”. It is interesting to note that the United Nations take into account it this Resolution the commercial aspect of this emerging activity. The text then reads “Taking into consideration that the operation of international direct broadcasting satellites will have significant international political, economic, social and cultural implications”. It recalls how delicate the question of International Direct Television Broadcasting is.

The Preamble of the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting then adds the following: “Believing that the establishment of principles for international direct television broadcasting will contribute to the strengthening of international cooperation in this field and further the purposes and principles of the Charter of the United Nations”.

Paragraph 1 of the Annex on Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, regarding Purposes and objectives, states that “Activities in the field of international direct television broadcasting by satellite should be carried out in a manner compatible with the sovereign rights of States, including the principle of non-intervention, as well as with the right of everyone to seek, receive and impart information and ideas as enshrined in the relevant United Nations instruments”. It then adds that “Such activities should promote the free dissemination and mutual exchange of information and knowledge in cultural and scientific fields, assist in educational, social and economic development, particularly in the developing countries, enhance the qualities of life of all peoples and provide recreation with due respect to the political and cultural integrity of States”.

The fourth paragraph of the Annex on Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting on Applicability of international law states that “Activities in the field of international direct television broadcasting by satellite should be conducted in accordance with international law, including the Charter of the United Nations, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, of 27 January 1967, the relevant provisions of the International Telecommunication Convention and its Radio Regulations and of international instruments relating to friendly relations and cooperation among States and to human rights”.

On Rights and benefits, the fifth paragraph of the Annex on Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting declares that “Every State has an equal right to conduct activities in the field of international direct television broadcasting by satellite and to authorize such activities by persons and entities under its jurisdiction. All States and peoples are entitled to and should enjoy the benefits from such activities. Access to the technology in this field should be available to all States without discrimination on terms mutually agreed by all concerned”.

Paragraphs eight and nine of the Annex on Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting on State responsibility affirm that “States should bear international responsibility for activities in the field of international direct television broadcasting by satellite carried out by them or under their jurisdiction and for the conformity of any such activities with the principles set forth in this document” and that “When international direct television broadcasting by satellite is carried out by an international intergovernmental organization, the responsibility referred to in paragraph 8 above should be borne both by that organization and by the States participating in it”.

Finally, paragraph eleven of the Annex on Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting on Copyright and neighbouring rights mentions that “Without prejudice to the relevant provisions of international law, States should cooperate on a bilateral and multilateral basis for protection of copyright and neighbouring rights by means of appropriate agreements between the interested States or the competent legal entities acting under their jurisdiction. In such cooperation they should give special consideration to the interests of developing countries in the use of direct television broadcasting for the purpose of accelerating their national development”.

Understanding the Charter of the United Nations

The Charter of the United Nations (also known as the UN Charter) of 1945 is the foundational treaty of the United Nations, an intergovernmental organisation. The Charter of the United Nations was signed on June 26, 1945, in San Francisco, at the conclusion of the United Nations Conference on International Organization, and came into force on October 24, 1945. The Statute of the International Court of Justice (ICJ) is an integral part of the Charter.

History of the Charter of the United Nations

Amendments to Articles 23, 27 and 61 of the Charter were adopted by the General Assembly on December 17, 1963 and came into force on August 31, 1965. A further amendment to Article 61 was adopted by the General Assembly on December 20, 1971, and came into force on September 24, 1973. An amendment to Article 109, adopted by the General Assembly on December 20, 1965, came into force on June 12, 1968.

The amendment to Article 23 enlarges the membership of the Security Council from eleven to fifteen. The amended Article 27 provides that decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members (formerly seven) and on all other matters by an affirmative vote of nine members (formerly seven), including the concurring votes of the five permanent members of the Security Council.

The amendment to Article 61, which entered into force on August 31, 1965, enlarged the membership of the Economic and Social Council from eighteen to twenty-seven. The subsequent amendment to that Article, which entered into force on September 24, 1973, further increased the membership of the Council from twenty-seven to fifty-four.

The amendment to Article 109, which relates to the first paragraph of that Article, provides that a General Conference of Member States for the purpose of reviewing the Charter may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of any nine members (formerly seven) of the Security Council.

Paragraph 3 of Article 109, which deals with the consideration of a possible review conference during the tenth regular session of the General Assembly, has been retained in its original form in its reference to a “vote, of any seven members of the Security Council”, the paragraph having been acted upon in 1955 by the General Assembly, at its tenth regular session, and by the Security Council.

The Charter of the United Nations

The United Nations Charter articulated a commitment to uphold human rights of citizens and outlined a broad set of principles relating to achieving “higher standards of living”, addressing “economic, social, health, and related problems”, and “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”. As a Charter, it is a constituent treaty, and all members are bound by its articles. Furthermore, Article 103 of the Charter states that obligations to the United Nations prevail over all other treaty obligations.

The Charter consists of a Preamble and a series of articles grouped into chapters. The Preamble consists of two principal parts. The first part contains a general call for the maintenance of peace and international security, and respect for human rights. The second part of the Preamble is a declaration in a contractual style that the governments of the peoples of the United Nations have agreed to the Charter and it is the first international document regarding human rights.

Article 1 of the Charter of the United Nations states that “The Purposes of the United Nations are:

  1. To maintain international peace and security, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
  2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
  3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
  4. To be a centre for harmonizing the actions of nations in the attainment of these common ends”.

Chapter I the Charter of the United Nations sets forth the purposes of the United Nations, including the important provisions of the maintenance of international peace and security. Chapter II of the Charter of the United Nations defines the criteria for membership in the United Nations. Chapters III – XV of the Charter of the United Nations, the bulk of the document, describe the organs and institutions of the UN and their respective powers. Chapters XVI and Chapter XVII of the Charter of the United Nations describe arrangements for integrating the UN with established international law. Chapters XVIII and Chapter XIX of the Charter of the United Nations provide for amendment and ratification of the Charter.

Chapter VI describes the Security Council’s power to investigate and mediate disputes. Chapter VII describes the Security Council’s power to authorise economic, diplomatic, and military sanctions, as well as the use of military force, to resolve disputes. Chapter VIII makes it possible for regional arrangements to maintain peace and security within their own region. Chapters IX and Chapter X describe the UN’s powers for economic and social cooperation, and the Economic and Social Council that oversees these powers.

Chapters XII and Chapter XIII describe the Trusteeship Council, which oversaw decolonisation. Chapters XIV and Chapter XV establish the powers of, respectively, the International Court of Justice and the United Nations Secretariat. Chapters XVI through Chapter XIX deal respectively with XVI: miscellaneous provisions, XVII: transitional security arrangements related to World War II, XVIII: the Charter amendment process, and XIX: ratification of the Charter.

Chapter VII of the Charter of the United Nations

Chapter VII of the Charter of the United Nations sets out the UN Security Council’s powers to maintain peace. It allows the Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to take military and non-military action to “restore international peace and security”.

Chapter VII also gives the Military Staff Committee responsibility for strategic coordination of forces placed at the disposal of the UN Security Council. It is made up of the chiefs of staff of the five permanent members of the Council.

The UN Charter’s prohibition of member states of the UN attacking other UN member states is central to the purpose for which the UN was founded in the wake of the destruction of World War II: to prevent war. This overriding concern is also reflected in the Nuremberg Trials’ concept of a crime against peace “starting or waging a war against the territorial integrity, political independence or sovereignty of a state, or in violation of international treaties or agreements” (crime against peace), which was held to be the crime that makes all war crimes possible.

The differences between international and supranational organizations

What are the differences between international and supranational organizations? A supranational organization is an administrative structure that goes beyond the boundaries of states. It differs from international organizations in the fact that within it, decisions are made by institutions specific to the organization, and not by meeting of heads of state or their representatives. A supranational organization is a new entity encompassing several states (supra) and not a space of cooperation between states (inter); it also has legislative powers, which is not the case of an international organization.

Concerning the differences between international and supranational organizations, a supranational organization allows member states to have greater power and influence beyond their respective national boundaries. Examples include the EU, or the UNICEF. While the focus of most supranational organizations is to ease trade, the entity may also have political implications or requirements. Supranational organizations may help design activities that promote international standards.

Intergovernmental organizations differ in function and membership. They have various goals and scopes, often outlined in a Treaty or Charter. Some international organizations developed to fulfil a need for a neutral forum for debate or negotiation to resolve disputes.

Others developed to carry out mutual interests with unified aims to preserve peace through conflict resolution and better international relations, promote international cooperation on matters such as environmental protection, to promote human rights, to promote social development… Some are more general in scope, like the United Nations, while others may have subject-specific missions, such as the International Telecommunication Union.

International organizations

Talking about the differences between international and supranational organizations, an international organization can be defined, following the International Law Commission, as an “organization established by a treaty or other instrument governed by international law and possessing its own international legal personality”. International organizations generally have States as members, but often other entities can also apply for membership. They both make international law and are governed by it. Yet, the decision-making process of international organizations is often “less a question of law than one of political judgement”.

International organization, institution drawing membership from at least three states, having activities in several states, and whose members are held together by a formal agreement. The two main types of international organizations are intergovernmental organizations and international nongovernmental organizations.

Intergovernmental organizations

Concerning the differences between international and supranational organizations, an intergovernmental organization or international governmental organisation (IGO) is an organization composed primarily of sovereign states (referred to as member states), or of other intergovernmental organizations. Intergovernmental organizations are called international organizations, although that term may also include international non-governmental organization such as international non-profit organizations or multinational corporations.

Intergovernmental organizations are an important aspect of Public International Law. IGOs are established by a treaty that acts as a charter creating the group. Treaties are formed when lawful representatives (governments) of several states go through a ratification process, providing the IGO with an international legal personality.

Intergovernmental organizations in a legal sense should be distinguished from simple groupings or coalitions of states; such groups or associations have not been founded by a constituent document and exist only as task groups.

Intergovernmental organizations must also be distinguished from treaties. Many treaties do not establish an organization and instead, rely purely on the parties for their administration becoming legally recognised as an ad hoc commission. Other treaties have established an administrative apparatus which was not deemed to have been granted international legal personality.

The first and oldest intergovernmental organization is the International Telecommunication Union, founded in 1865, which served as a model for later organizations such as the League of Nations. The role of international intergovernmental organizations is helping to set the international agenda, mediating political bargaining, and providing a place for political initiatives.

Supranational organizations

With the differences between international and supranational organizations, a supranational organization is an international group or union in which the power and influence of member states transcend national boundaries or interests to share in decision making and vote on issues concerning the collective body.

The European Union and the World Trade Organization are both supranational entities. In the EU, each member votes on policy that will affect each member nation. The benefits of this construct are the synergies derived from social and economic policies and a stronger presence on the international stage.

For an organization to be supranational, it must operate in multiple countries. While applicable to multinational corporations, the term is more often used in the context of government entities because they often have regulatory responsibilities within their standard operations. These responsibilities can include the creation of international treaties and standards for international trade.

Although a supranational organization may be highly involved in setting business standards and regulations, it does not necessarily have enforcement authority, which remains with the individual governments with participating businesses.

While the focus of most supranational organizations is to ease trade between member nations, the entity may also have political implications or requirements. For example, it may require that all member nations participate in certain political activities, such as public elections for leadership.

The best example of a supranational is the European Union. The European Union has official legislative oversight and elections. In terms of organizations, the United Nations Children’s Fund (UNICEF) is one of the most well-known groups. Under the umbrella of the United Nations, UNICEF works in more than one hundred and ninety countries and territories for the betterment of children’s lives. Effectively, it was created member nations and is structured to ease and standardize certain activities across international borders.

An example of a supranational organization that is less involved in the regulation of international activities is the International Olympic Committee. The organization creates the standards for events included in the competition, including the scoring standards. The committee that selects the host city for the Summer and Winter Olympics is made up of international members.

Space law and the differences between international and supranational organizations

Article VI of the 1967 Outer Space Treaty states that “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization”.

What is interesting is to notice that Article VI refers to international organizations and doesn’t mention supranational organizations (which didn’t exist at that time). It would be interesting to thing about the applicability of this article to supranational organizations, like the European Union; could the European Union, a supranational organization, carry out activities in outer space, including the Moon and other celestial bodies?

The legal status of a missile

In this new Space Law article, we will for Space Legal Issues analyse the legal status of a missile. What is a missile? Is it an aircraft? A space object when it is oriented towards outer space? What if a missile passes through outer space, above the Kármán line, like suborbital flights: does it become a space object? Let’s remember that the first rockets were developed as missiles, those space objects, like the V-2, were missiles. That is what we will study.

Different types of missiles

The Oxford English Dictionary defines a missile as “a weapon that is sent through the air and that explodes when it hits the thing that it is aimed at”, “an object that is thrown at somebody to hurt them”, “an object which is forcibly propelled at a target, either by hand or from a mechanical weapon”, or “a weapon that is self-propelled or directed by remote control, carrying conventional or nuclear explosive”.

When studying the legal status of a missile, in military language, a missile, also known as a guided missile, is a guided self-propelled flying weapon usually propelled by a jet engine or rocket motor. This is in contrast to an unguided self-propelled flying munition, referred to as a rocket (although these too can also be guided).

Missiles have four system components: targeting or missile guidance, flight system, engine, and warhead. Missiles come in types adapted for different purposes: surface-to-surface and air-to-surface missiles (ballistic, cruise, anti-ship, anti-tank, etc.), surface-to-air missiles (and anti-ballistic), air-to-air missiles, and anti-satellite weapons (ASAT).

Non-self-propelled airborne explosive devices are generally referred to as shells and usually have a shorter range than missiles. In ordinary language the word means an object which can be thrown, shot, or propelled toward a target.

The first missiles to be used operationally were a series of missiles developed by Nazi Germany in World War II. Most famous of these are the German V-2 rocket, which used a simple mechanical autopilot to keep the missile flying along a pre-chosen route. Less well known were a series of anti-shipping and anti-aircraft missiles, typically based on a simple radio control (command guidance) system directed by the operator.

Anti-satellite weapons (ASAT)

Continuing on the legal status of a missile, anti-satellite weapons (ASAT) are space weapons designed to incapacitate or destroy satellites for strategic military purposes. Several nations possess operational ASAT systems. Although no ASAT system has yet been utilised in warfare, a few nations have shot down their own satellites to demonstrate their ASAT capabilities in a show of force. Only the United States of America, Russia, China, and India have demonstrated this capability successfully.

For various reasons, States may wish to consider damaging, destroying or temporarily rendering satellites useless for their operators. On January 11, 2007, China conducted an anti-satellite missile test. A Chinese weather satellite, the FY-1C polar orbit satellite of the Fēngyún series, at an altitude of eight hundred and sixty-five kilometres, with a mass of seven hundred fifty kilograms, was destroyed by a kinetic kill vehicle, launched with a multistage solid-fuel missile from Xichang Satellite Launch Center (XSLC) or nearby, travelling with a speed of height kilometres a second in the opposite direction. Although the subject is often mentioned, we know that the first systems were set up in the sixties, first by the United States of America, then by the Soviet Union.

From a legal point of view, considering the legal status of a missile, these weapons do not fall under the prohibition of Article IV of the Outer Space Treaty since they are in no way weapons of mass destruction. The Outer Space Treaty of 1967 allows certain military activities to continue as long as there is no total prohibition of weapons in outer space. Certain defensive military activities remain permissible. Article 2 of the Charter of the United Nations states that “The Organization and its Members, shall act in accordance with the following Principles. The Organization is based on the principle of the sovereign equality of all its Members. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII”.

In any case, the manufacture and deployment of anti-satellite remains lawful: it is their possible use that should be subject to review (for this case, one should perhaps rely more surely on General International Law). It might be envisaged that a State party to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on 10 October 1967), which would multiply anti-satellite systems, should be regarded as depriving the Treaty of its object and purpose. Other States parties to the Treaty could then withdraw in accordance with the one-year notice provided for in Article XVI which states that “Any State Party to the Treaty may give notice of its withdrawal from the Treaty one year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect one year from the date of receipt of this notification”.

The legal status of a space object

The term Object in reference to outer space was first used in 1961 in General Assembly Resolution 1721 (XVI) titled International cooperation in the peaceful uses of outer space to describe any object launched by States into outer space. Professor Bin Cheng, a world authority on International Air and Space Law, has noted that members of the COPUOS during negotiations over the space treaties treated spacecraft and space vehicles as synonymous terms. The Space Object can be considered as the “conventional launcher (ELV)”, the “reusable launcher (RLV)”, the “satellite”, the “orbital station”, the “probe”, the “impactor”, the “space telescope”, the “International Space Station (ISS)”… As Professors Diederiks-Verschoor and Kopal wrote in An Introduction to Space Law, the term space object “is indeed the commonly used expression, but it must always be borne in mind that its exact meaning is still not quite clear”.

An object is defined by the Oxford English Dictionary as “A material thing that can be seen and touched”. The five Onusian treaties don’t use the term satellite, instead opting for “object launched into outer space” in the 1967 Outer Space Treaty or “space object” in the 1972 Liability Convention and the 1976 Registration Convention. The 1967 Outer Space Treaty doesn’t really provide a definition for “object launched into outer space” other than an indication in Article VIII that it includes the “component parts” of the “object launched into outer space”. To add to the mix, Article V of the 1967 Outer Space Treaty uses the term “space vehicle” and the 1968 Rescue Agreement (which is essentially an elaboration of Article V of the OST) uses the term “spacecraft”. A good definition is given by Professor Hobe who write that a “space object is a human made object launched into outer space intended to be used in (as opposed to merely transit through) outer space”.

Let’s remember that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”, Article 31 of the Vienna Convention on the Law of Treaties of 1969. In addition, “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”, Article 32 of the Vienna Convention on the Law of Treaties of 1969.

Let’s recall that a space object causing damage triggers international third-party liability under the Convention on International Liability for Damage Caused by Space Objects (entered into force in September 1972). Article I (d) of which enounces that “the term space object includes component parts of a space object as well as its launch vehicle and parts thereof”. Its Article II adds that “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight”.

A space object requires, thanks to the Convention on Registration of Objects Launched into Outer Space (entered into force in September 1976), registration. Article II of which states that “When a space object is launched into Earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry”.

Finally, the term space object effectively triggers application of much of both the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force in October 1967) and the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (entered into force in December 1968). Article VII of the first declares that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies”.

Article 5 of the latter states that “1. Each Contracting Party which receives information or discovers that a space object or its component parts has returned to Earth in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State, shall notify the launching authority and the Secretary-General of the United Nations. 2. Each Contracting Party having jurisdiction over the territory on which a space object or its component parts has been discovered shall, upon the request of the launching authority and with assistance from that authority if requested, take such steps as it finds practicable to recover the object or component parts. 3. Upon request of the launching authority, objects launched into outer space or their component parts found beyond the territorial limits of the launching authority shall be returned to or held at the disposal of representatives of the launching authority, which shall, upon request, furnish identifying data prior to their return”.

The 1967 Outer Space Treaty doesn’t really provide a definition for “object launched into outer space” other than an indication in Article VIII that it includes the “component parts” of the “object launched into outer space”. It states that “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return”. We’ll conclude with the definition given by Professor Hobe who wrote that a “space object is a human made object launched into outer space intended to be used in (as opposed to merely transit through) outer space”.

The legal status of a missile

An aircraft is a machine that is able to fly by gaining support from the air. It counters the force of gravity by using either static lift or by using the dynamic lift of an aerofoil, or in a few cases the downward thrust from jet engines. Common examples of aircraft include airplanes, helicopters, airships (including blimps), gliders, and hot air balloons.

The Chicago Convention does not define the term “aircraft”. Annex 7 defines aircraft as “Any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the Earth’s surface”. Under this definition, an aerospace vehicle launched by rocket would not be considered an aircraft on the ascent phase of its flight, but might well on the descent phase.

As a conclusion on the legal status of a missile, we will say that the status of the object depends on its mission/possible trajectory. If the missile is an anti-satellite missile, it will be considered a space object; otherwise, it will not. That is what can be said on the legal status of a missile.

The 1979 Moon Agreement

The 1979 Moon Agreement was considered and elaborated by the Legal Subcommittee from 1972 to 1979. The Agreement was adopted by the General Assembly in 1979 in Resolution 34/68. It was not until June 1984, however, that the fifth country, Austria, ratified the Agreement, allowing it to enter into force in July 1984.

The Agreement reaffirms and elaborates on many of the provisions of the 1967 Outer Space Treaty as applied to the Moon and other celestial bodies, providing that those bodies should be used exclusively for peaceful purposes, that their environments should not be disrupted, that the United Nations should be informed of the location and purpose of any station established on those bodies.

In addition, the 1979 Moon Agreement provides that the Moon and its natural resources are the common heritage of mankind and that an international regime should be established to govern the exploitation of such resources when such exploitation is about to become feasible. The 1979 Moon Agreement applies to the Moon and all other celestial bodies within the Solar System other than the Earth, including orbits or other trajectories to or around them.

However, after entering into force in 1984, having secured a sufficient number of ratifications, it is still unratified by any major space-faring power such as the United States of America, and unsigned by the majority of states/nations. Therefore, at this point it is of no direct relevance to current space activities.

But what of the future? Improved perspectives might perhaps appear on the horizon when exploratory missions to the Moon and Mars will become more realistic. Such missions have, incidentally, been receiving more and more attention among International Space Law experts in recent years. Conferences have been organised; a new race to the Moon and its resources is about to begin.

Foreword

The UNITED NATIONS TREATIES AND PRINCIPLES ON OUTER SPACE are “Text of treaties and principles governing the activities of States in the exploration and use of outer space, adopted by the United Nations General Assembly”. The United Nations has the responsibility, in the legal field, to develop and codify international law. Because outer space was an environment of a new nature, “extraordinary in many respects” and “unique from the legal point of view”, and because its human conquest started in the tense climate of the 1950s, the international community had to rapidly legislate about it.

Recently, human activities and international interaction in outer space have become realities. Through the efforts of the United Nations Committee on the Peaceful Uses of Outer Space and its Legal Subcommittee, a number of significant contributions to the law of outer space have been made in the 1950s, 1960s and 1970s; formulation of international rules to facilitate international relations in outer space. The United Nations has therefore become “the place” or “a focal point” for international cooperation in outer space and for the formulation of necessary international rules. The extension of international law to outer space has been gradual and evolutionary; commencing with the study of questions relating to legal aspects, proceeding to the formulation of principles of a legal nature and, then, incorporating such principles in general multilateral treaties.

A significant first step was the adoption by the General Assembly in 1963 of the “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space”. This text is the genesis of what has become known as “Space Law”. The years that followed saw the development within the United Nations of five general multilateral treaties, which incorporated and developed concepts included in the Declaration of Legal Principles:

  1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (General Assembly resolution 2222 – XXI) entered into force on October 10, 1967;
  2. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (General Assembly resolution 2345 – XXII) entered into force on December 3, 1968;
  3. Convention on International Liability for Damage Caused by Space Objects (General Assembly resolution 2777 – XXVI) entered into force on September 1, 1972;
  4. Convention on Registration of Objects Launched into Outer Space (General Assembly resolution 3235 – XXIX) entered into force on September 15, 1976;
  5. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (General Assembly resolution 34/68) entered into force on July 11, 1984.

The United Nations oversaw the drafting, formulation and adoption of five General Assembly resolutions, including the Declaration of Legal Principles. These are:

  1. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, adopted on December 13, 1963 (General Assembly resolution 1962 – XVIII);
  2. Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, adopted on December 10, 1982 (General Assembly resolution 37/92);
  3. Principles Relating to Remote Sensing of the Earth from Outer Space, adopted on December 3, 1986 (General Assembly resolution 41/65);
  4. Principles Relevant to the Use of Nuclear Power Sources in Outer Space, adopted on December 14, 1992 (General Assembly resolution 47/68);
  5. Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, adopted on December 13, 1996 (General Assembly resolution 51/122).

The United Nations states, in the collection of Space Law texts (available freely on the U.N.’s website), that “The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, could be viewed as furnishing a general legal basis for the peaceful uses of outer space and providing a framework for the developing law of outer space. The four other treaties may be said to deal specifically with certain concepts included in the 1967 Treaty. The space treaties have been ratified by many Governments and many others abide by their principles. In view of the importance of international cooperation in developing the norms of space law and their important role in promoting international cooperation in the use of outer space for peaceful purposes, the General Assembly and the Secretary-General of the United Nations have called upon all Member States of the United Nations not yet parties to the international treaties governing the uses of outer space to ratify or accede to those treaties as soon as feasible”. Let’s now look at the Magna Carta of space law and the main principles it enacted in 1967.

The 1979 Moon Agreement

The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, was adopted on December 5, 1979, opened for signature on December 18, 1979, and entered into force on July 11, 1984. As a follow-on to the 1967 Outer Space Treaty, the 1979 Moon Agreement intended to establish a regime for the use of the Moon and other celestial bodies similar to the one established for the sea floor in the United Nations Convention on the Law of the Sea.

In its Preamble, we read the following: “Recognizing that the Moon, as a natural satellite of the Earth, has an important role to play in the exploration of outer space”, then “Desiring to prevent the Moon from becoming an area of international conflict”, and finally, “Bearing in mind the benefits which may be derived from the exploitation of the natural resources of the Moon and other celestial bodies”. Those three sentences appear the most important in the 1979 Moon Agreement’s Preamble. The Moon has an important role to play in the exploration of outer space, it cannot become an area of international conflict, and the exploitation of the natural resources of the Moon (and other celestial bodies) might become a commercially profitable activity.

Article 1 of the 1979 Moon Agreement is important as it defines what the Agreement is about, to what object it should apply. “1. The provisions of this Agreement relating to the Moon shall also apply to other celestial bodies within the solar system, other than the Earth, except insofar as specific legal norms enter into force with respect to any of these celestial bodies. 2. For the purposes of this Agreement reference to the Moon shall include orbits around or other trajectories to or around it. 3. This Agreement does not apply to extraterrestrial materials which reach the surface of the Earth by natural means”. The 1979 Moon Agreement applies to all celestial bodies within the Solar System, and specific laws might appear (for Mars for example). The 1979 Moon Agreement also applies to orbits around the Moon and other trajectories to or around the Moon. Finally, meteorites do not fall under the 1979 Moon Agreement.

Article 2 notably states that “All activities on the Moon, including its exploration and use, shall be carried out in accordance with international law, in particular the Charter of the United Nations”. Article 3 restates that “1. The Moon shall be used by all States Parties exclusively for peaceful purposes” and adds details about potential military activities: “2. Any threat or use of force or any other hostile act or threat of hostile act on the Moon is prohibited. It is likewise prohibited to use the Moon in order to commit any such act or to engage in any such threat in relation to the Earth, the Moon, spacecraft, the personnel of spacecraft or manmade space objects. 3. States Parties shall not place in orbit around or other trajectory to or around the Moon objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the Moon. 4. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the Moon shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration and use of the Moon shall also not be prohibited”.

Article 4 of the 1979 Moon Agreement concerns “the benefit and the interests of all countries, the principle of cooperation and mutual assistance, and international cooperation”. Article 5 notably states that “1. States Parties shall inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of their activities concerned with the exploration and use of the Moon. Information on the time, purposes, locations, orbital parameters and duration shall be given in respect of each mission to the Moon as soon as possible after launching, while information on the results of each mission, including scientific results, shall be furnished upon completion of the mission”.

It also adds that “2. If a State Party becomes aware that another State Party plans to operate simultaneously in the same area of or in the same orbit around or trajectory to or around the Moon, it shall promptly inform the other State of the timing of and plans for its own operations”. Article 6 of the 1979 Moon Agreement notably states that “2. In carrying out scientific investigations and in furtherance of the provisions of this Agreement, the States Parties shall have the right to collect on and remove from the Moon samples of its mineral and other substances. Such samples shall remain at the disposal of those States Parties which caused them to be collected and may be used by them for scientific purposes. States Parties shall have regard to the desirability of making a portion of such samples available to other interested States Parties and the international scientific community for scientific investigation. States Parties may in the course of scientific investigations also use mineral and other substances of the Moon in quantities appropriate for the support of their missions”.

Article 7 of the 1979 Moon Agreement is the continuation of the Planetary Protection principle exposed in Article IX of the 1967 Outer Space Treaty: “1. In exploring and using the Moon, States Parties shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise. States Parties shall also take measures to avoid harmfully affecting the environment of the Earth through the introduction of extraterrestrial matter or otherwise”.

Article 8 of the 1979 Moon Agreement enounces that “1. States Parties may pursue their activities in the exploration and use of the Moon anywhere on or below its surface, subject to the provisions of this Agreement. 2. For these purposes States Parties may, in particular: (a) Land their space objects on the Moon and launch them from the Moon; (b) Place their personnel, space vehicles, equipment, facilities, stations and installations anywhere on or below the surface of the Moon. Personnel, space vehicles, equipment, facilities, stations and installations may move or be moved freely over or below the surface of the Moon”.

Article 9 of the 1979 Moon Agreement declares that “1. States Parties may establish manned and unmanned stations on the Moon. A State Party establishing a station shall use only that area which is required for the needs of the station and shall immediately inform the Secretary-General of the United Nations of the location and purposes of that station”. It then specifies that “2. Stations shall be installed in such a manner that they do not impede the free access to all areas of the Moon of personnel, vehicles and equipment of other States Parties conducting activities on the Moon in accordance with the provisions of this Agreement or of article I of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”. That article might become more and more relevant in the upcoming years, with the potential projects of establishing stations on the Moon.

Article 10 of the 1979 Moon Agreement was inspired by Article V of the 1967 Outer Space Treaty and says that “States Parties shall offer shelter in their stations, installations, vehicles and other facilities to persons in distress on the Moon”.

Article 11 of the 1979 Moon Agreement, the longest of the Agreement, is important since it concerns in situ resource utilization and potential space mining activities. It states that “The Moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article. 2. The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means. 3. Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the Moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the Moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article”.

4. States Parties have the right to exploration and use of the Moon without discrimination of any kind, on the basis of equality and in accordance with international law and the terms of this Agreement. 5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement. 6. In order to facilitate the establishment of the international regime referred to in paragraph 5 of this article, States Parties shall inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of any natural resources they may discover on the Moon”.

7. The main purposes of the international regime to be established shall include: (a) The orderly and safe development of the natural resources of the Moon; (b) The rational management of those resources; (c) The expansion of opportunities in the use of those resources; (d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon, shall be given special consideration. 8. All the activities with respect to the natural resources of the Moon shall be carried out in a manner compatible with the purposes specified in paragraph 7 of this article and the provisions of article 6, paragraph 2, of this Agreement”.

Article 12 of the 1979 Moon Agreement declares that “States Parties shall retain jurisdiction and control over their personnel, vehicles, equipment, facilities, stations and installations on the Moon. The ownership of space vehicles, equipment, facilities, stations and installations shall not be affected by their presence on the Moon”.

Article 14 of the 1979 Moon Agreement is the continuation of Article VI of the Outer Space Treat and affirms that “States Parties to this Agreement shall bear international responsibility for national activities on the Moon, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in this Agreement. States Parties shall ensure that non-governmental entities under their jurisdiction shall engage in activities on the Moon only under the authority and continuing supervision of the appropriate State Party”.

Concluding remarks on the 1979 Moon Agreement

The treaty was finalised in 1979 and, after satisfying the condition requiring five ratifying states, it entered into force for the ratifying parties in 1984. As of July 2019, eighteen states only are parties to the 1979 Moon Agreement. The objection to the 1979 Moon Agreement that is often raised is that the 1979 Moon Agreement requires that extracted resources (and the technology used to that end) must be shared with developing countries that have not invested funds or assumed risks to enable use of lunar resources.

The International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York (United States of America).

The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorised United Nations organs and specialised agencies. The Court is composed of fifteen judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.

History

The creation of the Court represented the culmination of a long process of developing methods for the pacific settlement of international disputes, the origins of which can be traced back to classical times. Article 33 of the United Nations Charter lists the following methods for the pacific settlement of disputes between States: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements, to which should also be added good offices.

Some of these methods involve the services of third parties. For example, mediation places the parties to a dispute in a position in which they can themselves resolve their dispute thanks to the intervention of a third party. Arbitration goes further, in the sense that the dispute is submitted to the decision or award of an impartial third party, so that a binding settlement can be achieved. The same is true of judicial settlement (the method applied by the International Court of Justice), except that a court is subject to stricter rules than an arbitral tribunal, particularly in procedural matters.

The Permanent Court of International Justice (PCIJ)

Article 14 of the Covenant of the League of Nations gave the Council of the League responsibility for formulating plans for the establishment of a Permanent Court of International Justice (PCIJ), which would be competent not only to hear and determine any dispute of an international character submitted to it by the parties to the dispute, but also to give an advisory opinion upon any dispute or question referred to it by the Council or Assembly of the League of Nations.

All that remained was for the League Council to take the necessary action to give effect to Article 14. At its second session early in 1920, the Council appointed an Advisory Committee of Jurists to submit a report on the establishment of the PCIJ. The committee sat in The Hague.

In August 1920, a report containing a draft scheme was submitted to the Council, which, after examining it and making certain amendments, presented it to the First Assembly of the League of Nations, which opened in Geneva in November of that year. The Assembly instructed its Third Committee to examine the question of the Court’s constitution. In December 1920, after an exhaustive study by a subcommittee, the Committee submitted a revised draft to the Assembly, which unanimously adopted it. This was the Statute of the PCIJ.

The Assembly decided that a vote alone would not be sufficient to establish the PCIJ, and that the Statute would have to be formally ratified by each State represented in the Assembly. In a resolution of December 13, 1920, it called upon the Council to submit a protocol adopting the Statute to the Members of the League of Nations, and decided that the Statute should come into force once a majority of Member States had ratified it.

The protocol was opened for signature on December 16, 1920. By the time of the next meeting of the Assembly, in September 1921, a majority of the Members of the League had signed and ratified the protocol. The Statute thus entered into force. It was to be revised only once, in 1929, the revised version coming into force in 1936. Among other things, the new Statute resolved the previously insurmountable problem of the election of the members of a permanent international tribunal, by providing that the judges were to be elected concurrently, but independently, by the Council and the Assembly of the League, and that it should be borne in mind that those elected “should represent the main forms of civilization and the principal legal systems of the world”.

The International Court of Justice (ICJ)

The outbreak of war in September 1939 inevitably had serious consequences for the PCIJ, which had for some years been experiencing a decline in its level of activity. After its last public sitting on December 4, 1939 and its last order on February 26, 1940, the Permanent Court of International Justice in fact dealt with no further judicial business and no elections of judges were held. In 1940 the Court relocated to Geneva, leaving one judge in The Hague together with a few Registry officials of Dutch nationality. Despite the war, consideration needed to be given to the future of the Court and to the creation of a new international political order.

Established in 1945 by the UN Charter, the court began work in 1946 as the successor to the Permanent Court of International Justice. The Statute of the International Court of Justice, similar to that of its predecessor, is the main constitutional document constituting and regulating the court.

The court’s workload covers a wide range of judicial activity. After the court ruled that the United States of America’s covert war against Nicaragua was in violation of international law (Nicaragua v. United States), the United States of America withdrew from compulsory jurisdiction in 1986 to accept the court’s jurisdiction only on a discretionary basis. Chapter XIV of the United Nations Charter authorises the UN Security Council to enforce Court rulings. However, such enforcement is subject to the veto power of the five permanent members of the Council, which the United States of America used in the Nicaragua Case.

The Court may entertain two types of cases: legal disputes between States submitted to it by them (contentious cases) and requests for advisory opinions on legal questions referred to it by United Nations organs and specialised agencies (advisory proceedings). Only States (States Members of the United Nations and other States which have become parties to the Statute of the Court or which have accepted its jurisdiction under certain conditions) may be parties to contentious cases. Advisory proceedings before the Court are only open to five organs of the United Nations and sixteen specialised agencies of the United Nations family or affiliated organisations.

Opinio juris sive necessitatis

Opinio juris, a term frequently used in legal proceedings, is a shortened form of the Latin phrase opinio juris sive necessitatis, which means “an opinion of law or necessity”. In customary international law (one component of international law, customary international law refers to international obligations arising from established international practices, as opposed to obligations arising from formal written conventions and treaties; customary international law results from a general and consistent practice of states that they follow from a sense of legal obligation), opinio juris is the second element necessary to establish a legally binding custom.

Opinio juris denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question. The International Court of Justice reflects this standard in ICJ Statute, Article 38 by reflecting that the custom to be applied must be “accepted as law”. As with customary international law, opinio juris is an unsettled and debated notion in international law. Opinio juris sive necessitatis (“an opinion of law or necessity”) or simply opinio juris (“an opinion of law”) is the belief that an action was carried out as a legal obligation.

Opinio juris sive necessitatis

In international law, opinio juris is the subjective element used to judge whether the practice of a state is due to a belief that it is legally obliged to do a particular act. When opinio juris exists and is consistent with nearly all state practice, customary international law emerges. Opinio juris essentially means that states must act in compliance with the norm not merely out of convenience, habit, coincidence, or political expediency, but rather out of a sense of legal obligation.

Because opinio juris refers to the psychological state of the state actor, it can be difficult to identify and to prove. In practice, a variety of sources tend to be used to demonstrate the existence of opinio juris, including evidence such as diplomatic correspondence, press releases and other government statements of policy, opinions of legal advisers, official manuals on legal questions, legislation, national and international judicial decisions, legal briefs endorsed by the state, a pattern of treaties ratified by the state that all include the same obligation(s), resolutions and declarations by the United Nations, and other sources.

OJ is described as the psychological component of customary international law because it refers to an attitude that states have toward a behavioural regularity. The idea of opinio juris is mysterious because the legal obligation is created by a state’s belief in the existence of the legal obligation. OJis really a conclusion about a practice’s status as international law; it does not explain how a widespread and uniform practice becomes law.

The International Court of Justice

The International Court of Justice (ICJ), sometimes called the World Court, is the principal judicial organ of the United Nations (UN). The ICJ’s primary functions are to settle international legal disputes submitted by states (contentious cases) and give advisory opinions on legal issues referred to it by the UN (advisory proceedings). Through its opinions and rulings, it serves as a source of international law.

Article 38 of the Statute of the International Court of Justice explains customary international law as comprising of “(1) a general practice (2) accepted as law”. The ICJ, in its jurisprudence, has relied on, and interpreted, Article 38 to include two elements that assist the Court to determine the existence of an alleged customary international law – state practice and opinio juris (also known as opinio juris sive necessitates). The ICJ explained opinio juris, in the Nicaragua case, as follows: “for a new customary rule to be formed, not only must the acts concerned amount to a settled practice, but they must be accompanied by opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is evidence of a belief that the practice is rendered obligatory by the existence of a rule of law requiring it. The need for such belief, the subjective element, is implicit in the very notion of opinio juris sive necessitatis”.

Opinio juris is reflected in acts of states (Nicaragua Case) or in omissions (Lotus Case) in so far as those acts or omissions are done following a belief that the said State is obligated by law to act or refrain from acting in a particular way. In the Lotus Case, France alleged that jurisdictional questions on collision cases are rarely heard in criminal cases because States tend to prosecute only before the flag state. France argued that this absence of prosecutions points to a positive rule in customary law on collisions.

The Court held that this “would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, as will presently be seen, there are other circumstances calculated to show that the contrary is true”.

The World Court has yet to commit itself on the key question of the nature of customary law. And it has been Delphic on the more specific question of opinio juris. In the Lotus Case, it spoke in psychological terms, holding that states must be “conscious of having a duty” in order for a rule of customary law to be present. Similarly, in the North Sea Continental Shelf Cases, the Court referred to opinio juris as “a subjective element” in the composition of customary law. More specifically, it is described as “a belief”, which appears to have a psychological flavour.

Further in this apparently psychological vein, the Court held that states “must feel that they are conforming to what amounts to a legal obligation”. The Court does not explicitly say, however, whether this subjective element or belief refers to the positions of each state individually, on its own, or to the subjective stance of the community as a whole. In later cases, the Court has held back from this overtly psychological phraseology.

The Geneva Conventions

The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for humanitarian treatment in war. The singular term Geneva Convention usually denotes the agreements of 1949, negotiated in the aftermath of the Second World War, which updated the terms of the two 1929 treaties, and added two new conventions. The Geneva Conventions have been ratified by all States and are universally applicable.

The Geneva Conventions extensively defined the basic rights of wartime prisoners (civilians and military personnel), established protections for the wounded and sick, and established protections for the civilians in and around a war-zone. The treaties of 1949 were ratified, in whole or with reservations, by more than one hundred and ninety-five countries.

Moreover, the Geneva Convention also defines the rights and protections afforded to non-combatants, yet, because the Geneva Conventions are about people in war, the articles do not address warfare proper — the use of weapons of war — which is the subject of the Hague Conventions, and the bio-chemical warfare Geneva Protocol.

The Geneva Conventions and their Additional Protocols are international treaties that contain the most important rules limiting the barbarity of war. They protect people who do not take part in the fighting (civilians, medics, aid workers) and those who can no longer fight (wounded, sick and shipwrecked troops, prisoners of war).

The Geneva Conventions are rules that apply only in times of armed conflict and seek to protect people who are not or are no longer taking part in hostilities; these include the sick and wounded of armed forces on the field, wounded, sick, and shipwrecked members of armed forces at sea, prisoners of war, and civilians.

The Geneva Conventions and their Additional Protocols are at the core of international humanitarian law, the body of international law that regulates the conduct of armed conflict and seeks to limit its effects. They specifically protect people who are not taking part in the hostilities (civilians, health workers and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked soldiers and prisoners of war.

The Conventions and their Protocols call for measures to be taken to prevent or put an end to all breaches. They contain stringent rules to deal with what are known as “grave breaches”. Those responsible for grave breaches must be sought, tried or extradited, whatever nationality they may hold.

The first convention dealt with the treatment of wounded and sick armed forces in the field. The second convention dealt with the sick, wounded, and shipwrecked members of armed forces at sea. The third convention dealt with the treatment of prisoners of war during times of conflict. The fourth convention dealt with the treatment of civilians and their protection during wartime.

The Geneva Conventions

The first Geneva Convention protects wounded and sick soldiers on land during war

This Convention represents the fourth updated version of the Geneva Convention on the wounded and sick following those adopted in 1864, 1906 and 1929. It contains sixty-four articles. These provide protection for the wounded and sick, but also for medical and religious personnel, medical units and medical transports. The Convention also recognises the distinctive emblems. It has two annexes containing a draft agreement relating to hospital zones and a model identity card for medical and religious personnel.

The second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war

This Convention replaced the Hague Convention of 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention. It closely follows the provisions of the first Geneva Convention in structure and content. It has sixty-three articles specifically applicable to war at sea. For example, it protects hospital ships. It has one annex containing a model identity card for medical and religious personnel.

The third Geneva Convention applies to prisoners of war

This Convention replaced the Prisoners of War Convention of 1929. It contains one hundred and forty-three articles whereas the 1929 Convention had only ninety-seven. The categories of persons entitled to prisoner of war status were broadened in accordance with Conventions I and I.

The conditions and places of captivity were more precisely defined, particularly with regard to the labour of prisoners of war, their financial resources, the relief they receive, and the judicial proceedings instituted against them. The Convention establishes the principle that prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. The Convention has five annexes containing various model regulations and identity and other cards.

The Fourth Geneva Convention protects civilians, including those in occupied territory

The Geneva Conventions, which were adopted before 1949, were concerned with combatants only, not with civilians. The events of World War II showed the disastrous consequences of the absence of a convention for the protection of civilians in wartime. The Convention adopted in 1949 takes account of the experiences of World War II. It is composed of one hundred and fifty-nine articles.

It contains a short section concerning the general protection of populations against certain consequences of war, without addressing the conduct of hostilities, as such, which was later examined in the Additional Protocols of 1977. The bulk of the Convention deals with the status and treatment of protected persons, distinguishing between the situation of foreigners on the territory of one of the parties to the conflict and that of civilians in occupied territory.

It spells out the obligations of the Occupying Power vis-à-vis the civilian population and contains detailed provisions on humanitarian relief for populations in occupied territory. It also contains a specific regime for the treatment of civilian internees. It has three annexes containing a model agreement on hospital and safety zones, model regulations on humanitarian relief and model cards.

Common Article 3

Article 3, common to the four Geneva Conventions, marked a breakthrough, as it covered, for the first time, situations of non-international armed conflicts. These types of conflicts vary greatly. They include traditional civil wars, internal armed conflicts that spill over into other States or internal conflicts in which third States or a multinational force intervenes alongside the government. Common Article 3 establishes fundamental rules from which no derogation is permitted.

It is like a mini-Convention within the Conventions as it contains the essential rules of the Geneva Conventions in a condensed format and makes them applicable to conflicts not of an international character. It requires humane treatment for all persons in enemy hands, without any adverse distinction. It specifically prohibits murder, mutilation, torture, cruel, humiliating and degrading treatment, the taking of hostages and unfair trial.

It requires that the wounded, sick and shipwrecked be collected and cared for. It grants the ICRC the right to offer its services to the parties to the conflict. It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through so-called special agreements. It recognises that the application of these rules does not affect the legal status of the parties to the conflict. Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. Its full respect is required.

The Lotus principle

The Lotus principle or Lotus approach, usually considered a foundation of Public International Law, says that sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition. The Lotus case concerns a criminal trial. A collision occurred on the high seas between a French vessel and a Turkish vessel. Victims were Turkish nationals and the alleged offender was French. Could Turkey exercise its jurisdiction over this French national under International Law?

The Lotus case

The judgment of the Permanent Court of International Justice (PCIJ) on the Lotus case, concerning the jurisdiction of a State under international law, was delivered on September 7, 1927. On August 2, 1926, around midnight, a French liner, the Lotus, which sailed for Constantinople (Istanbul), landed on the high seas a Turkish coal ship, the Boz-Kourt, in the Mediterranean Sea. This Turkish ship, under the impact of the shock, breaks in two.

During the collision, eight Turkish sailors die. The French ship rescues ten Turkish sailors, then goes to Constantinople where it arrives on August 3rd. On August 15, the French captain of the ship was arrested by the authorities, and on September 15, he was sentenced by the Turkish courts because of the damage suffered by the Turkish sailors.

France protests to Turkey, arguing that since the captain was French and the vessel was under French flag, Turkey had no objective title to judge the acts committed. France considered that objective criminal jurisdiction is territorial in nature and therefore cannot be exercised in respect of events which took place outside France. The damage was caused on the high seas, so it is up to the flag state to exercise criminal jurisdiction. Turkey argued that it had objective jurisdiction because of the nationality of the victims. The Lotus case poses two problems: 1. what are the powers of the state, and how are they determined in international law? 2. What happens when two states are concurrently competent?

Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French national, outside Turkey? If yes, should Turkey pay compensation to France? Turkey, by instituting criminal proceedings against Demons, did not violate international law.

The PCIJ will consider that international law has not been violated. The State alone exercises, to the exclusion of all, its state functions. PCIJ has therefore held that exclusivity prohibits any coercive action by one State in the territory of another State. It retains the famous dictumthe limitations of state independence are not presumed”, that is to say that everything that is not prohibited in international law is allowed. This has since then been called the Lotus principle. On the custom and the voluntarism of the international relations: “the rules of law which bind the states, are the fruit of their will, in conventions or in the uses generally accepted as devoting principles of the law”.

It is also in the context of this case that was quoted the principle of universal jurisdiction applied in cases of piracy: “In the case of what is known as of human rights piracy, it has been granted universal jurisdiction, under which any person accused of having committed this offense can be judged and punished by any country under whose jurisdiction it has just been. Although, there are legislations that provide for repression, it is an offense under international law; and since the theatre of operations of the pirate is the high seas where the right or the duty to ensure public order does not belong to any country, he is treated as the individual outlaw, as the enemy of the human race — hostis humani generis — that any country, in the interest of all can seize or punish”.

The Lotus principle

The first principle of the Lotus Case is that a state cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so. This is what we called the first principle of the Lotus Case. The Court held that: “Now the first and foremost restriction imposed by international law upon a State is that — failing the existence of a permissive rule to the contrary — it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention”.

The second principle of the Lotus Case is that within its territory, a State may exercise its jurisdiction, in any matter, even if there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of international law. The Court held that: “It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable. This discretion left to States by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other States… In these circumstances all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty”.

The Lotus case gave an important dictum on creating customary international law. France had alleged that jurisdictional questions on collision cases are rarely heard in criminal cases, because States tend to prosecute only before the flag State. France argued that this absence of prosecutions points to a positive rule in customary law on collisions. The Court disagreed and held that, this: “would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, as will presently be seen, there are other circumstances calculated to show that the contrary is true”.

In other words, opinio juris is reflected not only in acts of States, but also in omissions when those omissions are made following a belief that the said State is obligated by law to refrain from acting in a particular way.

Peenemünde and the German V-2 rockets

Let’s have a look, for this new Space Law article on Space Legal Issues, at Peenemünde and the German V-2 rockets. Peenemünde is a municipality on the Baltic Sea island of Usedom in the Vorpommern-Greifswald district in Mecklenburg-Vorpommern, Germany. The community is known for the Peenemünde Army Research Center, where the world’s first functional large-scale liquid-propellant rocket, the V-2, was developed.

In World War II, the area was highly involved in the development and production of the German V-2 rockets, until the production’s relocation to Nordhausen. The village’s docks were used for the ships which recovered V-2 wreckage from test launches over the Baltic Sea. German scientists such as Wernher von Braun, who worked at the V-2 facility, were known as “Peenemünders”.

The entire island was captured by the Soviet Red Army on May 5, 1945. The gas plant for the production of liquid oxygen still lies in ruins at the entrance to Peenemünde. The birthplace of modern rocket science is today displayed at the Peenemünde Historical Technical Museum, a World War II museum on the European Route of Industrial Heritage opened in 1992 in the power station of the former Army Testing Site, and the area of the World War II power station (now part of the village) – exhibits include a V-1 and a V-2.

The Peenemünde Army Research Centre

The Peenemünde Army Research Centre or Heeresversuchsanstalt Peenemünde, was founded in 1937 as one of five military proving grounds under the German Army Weapons Office (Heereswaffenamt). On April 2, 1936, the aviation ministry paid the town of Wolgast for the whole Northern peninsula of the Baltic island of Usedom. By the middle of 1938, the Army facility had been separated from the Luftwaffe facility and was nearly complete, with personnel moved from Kummersdorf. The Army Research Center consisted of Werk Ost and Werk Süd, while Werk West was the Luftwaffe Test Site.

Several German guided missiles and rockets of World War II were developed by the Peenemünde Army Research Centre, including the V-2 rockets, and the Wasserfall, Schmetterling, Rheintochter, Taifun, and Enzian missiles. The Peenemünde Army Research Centre also performed preliminary design work on very-long-range missiles for use against the United States of America. That project was sometimes called V-3 and its existence is well documented. The Peenemünde establishment also developed other technologies such as the first closed-circuit television system in the world, installed at Test Stand VII to track the launching rockets.

In November 1938, Walther von Brauchitsch ordered construction of an A-4 production plant at Peenemünde. By midsummer 1943, the first trial runs of the assembly-line in the Production Works at Werk Süd were made. In early September 1943, Peenemünde machinery and personnel for production were moved to the Mittelwerk, which also received machinery and personnel from the two other planned A-4 assembly sites. On October 13, 1943, the Peenemünde prisoners from the small F-1 concentration camp boarded rail cars bound for Kohnstein.

Operation Hydra (1943)

The bombing of Peenemünde in World War II was carried out on several occasions as part of the overall Operation Crossbow to disrupt German secret weapon development. The first raid on Peenemünde was Operation Hydra of the night of August 17, 1943, involving almost six hundred heavy bombers of the Royal Air Force.

Operation Hydra was an attack RAF Bomber Command on a German scientific research centre at Peenemünde on the night of August 17, 1943. Hydra began Operation Crossbow, a campaign against the German V-weapon program. The British lost two hundred and fifteen aircrew, forty bombers and killed several hundred enslaved workers in the nearby labour camp. The Luftwaffe lost twelve night-fighters and about one hundred and seventy German civilians were killed, including two V-2 rocket scientists. Prototype V-2 rocket launches were delayed for about two months, testing and production was dispersed and the morale of the German survivors was severely affected.

Peenemünde and the German V-2 rockets

The V-2, technical name Aggregat 4 or A4, was the world’s first long-range guided ballistic missile. The missile, powered by a liquid-propellant rocket engine, was developed during the Second World War in Germany as a “vengeance weapon”, assigned to attack Allied cities as retaliation for the Allied bombings against German cities. The V-2 rocket also became the first man-made object to travel into space by crossing the Kármán line with the vertical launch of MW 18014 on June 20, 1944.

Research into military use of long-range rockets began when the studies of graduate student Wernher von Braun attracted the attention of the German Army. A series of prototypes culminated in the A4, which went to war as the V-2. Beginning in September 1944, over three thousand V-2s were launched by the German Wehrmacht against Allied targets, first London, and later Antwerp, and Liège. The attacks from V-2s resulted in the deaths of an estimated nine thousand civilians and military personnel, and a further twelve thousand labourers, and concentration camp prisoners died as a result of their forced participation in the production of the weapons.

As Germany collapsed, teams from the Allied forces (the United States of America, the United Kingdom, and the Soviet Union) raced to capture key German manufacturing sites and technology. Wernher von Braun and over one hundred key V-2 personnel surrendered to the Americans. Eventually, many of the original V-2 team ended up working at the Redstone Arsenal. The United States of America also captured enough V-2 hardware to build approximately eighty of the missiles. The Soviets gained possession of the V-2 manufacturing facilities after the war, re-established V-2 production, and moved it to the Soviet Union.

MW 18014 – Peenemünde and the German V-2 rockets

MW 18014 was a German V-2 rocket test launch that took place on June 20, 1944, at the Peenemünde Army Research Centre in Peenemünde, Germany. It was the first man-made object to reach outer space, attaining an apoapsis of one hundred and seventy-six kilometres, which is above the Kármán line. It was a vertical test launch. Although it reached space, it was a sub-orbital spaceflight and therefore returned to Earth in an impact.

MW 18014 was part of a series of vertical test launches made in June 1944 designed to gauge the rocket’s behaviour in vacuum. MW 18014 broke the altitude record set by one of its predecessors, launched on October 3, 1942, to attain an apoapsis of one hundred and seventy-six kilometres.

MW 18014 is the first man-made object to cross to cross the Kármán line (one hundred kilometres), usually accepted boundary between Earth’s atmosphere and outer space. However, as the Kármán line is an anachronistic definition, the German rocket scientists didn’t celebrate the milestone at the time. A subsequent V-2 launched as part of the same set of vertical test launches would break MW 18014’s record with an apoapsis of one hundred and eighty-nine kilometres. This is what can be said concerning Peenemünde and the German V-2 rockets.

The solar storm of 1859

Also known as the Carrington Event, the solar storm of 1859 was a powerful geomagnetic storm. An incredible storm of charged particles sent by the Sun slammed into Earth’s atmosphere, overpowered it, and caused havoc on the ground. Telegraph wires, the high-tech stuff of the time, suddenly shorted out in the United States of America and Europe, igniting widespread fires. Colourful aurora, normally visible only in Polar Regions, were seen as far south as Cuba and Hawaii.

Earth’s magnetic field normally protects the surface of the planet from some storms. In 1859, the planet’s defences were totally overwhelmed. Over the past decade, similar but less powerful storms have likewise busted through, giving scientists insight into what will eventually happen again.

Geomagnetic storm

A geomagnetic storm (commonly referred to as a solar storm) is a temporary disturbance of the Earth’s magnetosphere caused by a solar wind shock wave and/or cloud of magnetic field that interacts with the Earth’s magnetic field.

The disturbance that drives the storm may be a solar coronal mass ejection (CME) or a co-rotating interaction region (CIR), a high speed solar wind originating from a coronal hole (areas where the Sun’s corona is colder, hence darker, and has lower-density plasma than average because there is lower energy and gas levels). The frequency of geomagnetic storms increases and decreases with the sunspot cycle. During solar maximum (a regular period of greatest Sun activity during the 11-year solar cycle), geomagnetic storms occur more often, with the majority driven by CME’s. During solar minimum, storms are mainly driven by CIR’s (though CIR storms are more frequent at solar maximum than at minimum).

The increase in the solar wind pressure initially compresses the magnetosphere. The solar wind’s magnetic field interacts with the Earth’s magnetic field and transfers an increased energy into the magnetosphere. Both interactions cause an increase in plasma movement through the magnetosphere (driven by increased electric fields inside the magnetosphere) and an increase in electric current in the magnetosphere and ionosphere. During the main phase of a geomagnetic storm, electric current in the magnetosphere creates a magnetic force that pushes out the boundary between the magnetosphere and the solar wind.

The largest recorded geomagnetic storm, the Carrington Event in September 1859, took down parts of the recently created U.S. telegraph network, starting fires and shocking some telegraph operators. In 1989, a geomagnetic storm energised ground induced currents that disrupted electric power distribution throughout most of Québec and caused aurorae as far south as Texas.

The solar storm of 1859

From August 28 to September 2, 1859, many sunspots (temporary phenomena on the Sun’s photosphere that appear as spots darker than the surrounding areas) appeared on the Sun. On August 29, southern auroras were observed as far north as Queensland, Australia. Just before noon on September 1, the English amateur astronomers Richard Carrington and Richard Hodgson independently recorded the earliest observations of a solar flare.

Richard Carrington and Richard Hodgson compiled independent reports which were published side-by-side in the Monthly Notices of the Royal Astronomical Society, and exhibited their drawings of the event at the November 1859 meeting of the Royal Astronomical Society.

The flare was associated with a major coronal mass ejection (CME) that travelled directly toward Earth, taking seventeen and a half hours to make the one hundred and fifty million kilometre journey. It is believed that the relatively high speed of this CME was made possible by a prior CME, perhaps the cause of the large aurora event on August 29, 1859 that “cleared the way” of ambient solar wind plasma for the Carrington Event.

On September 1859, one of the largest recorded geomagnetic storms (as recorded by ground-based magnetometers) occurred. Auroras were seen around the world, those in the northern hemisphere as far south as the Caribbean; those over the Rocky Mountains in the U.S. were so bright that the glow woke gold miners, who began preparing breakfast because they thought it was morning.

People in the north-eastern United States of America could read a newspaper by the aurora’s light. The aurora was visible from the poles to the low latitude area, such as south-central Mexico, Queensland, Cuba, Hawaii, southern Japan and China, and even at lower latitudes very close to the equator, such as in Colombia.

Telegraph systems all over Europe and North America failed, in some cases giving telegraph operators electric shocks. Telegraph pylons threw sparks. Some telegraph operators could continue to send and receive messages despite having disconnected their power supplies. “Those who happened to be out late on Thursday night had an opportunity of witnessing another magnificent display of the auroral lights. The phenomenon was very similar to the display on Sunday night, though at times the light was, if possible, more brilliant, and the prismatic hues more varied and gorgeous. The light appeared to cover the whole firmament, apparently like a luminous cloud, through which the stars of the larger magnitude indistinctly shone. The light was greater than that of the Moon at its full, but had an indescribable softness and delicacy that seemed to envelop everything upon which it rested”.

The Carrington Event had great contemporary importance in Victorian science. It heightened an already increasing interest in Sun-Earth connections, and helped stimulate astronomers to look for further connections, including possible solar influences on terrestrial weather that might be used to predict droughts and associated famines.

However, the event’s significance for the twenty-first century is that it was one of the most powerful solar explosions ever recorded. The largest flare of modern times occurred on November 4, 2003. This originated in a complex sunspot group similar to the one that caused the Carrington Event. Across much of its passage across the Sun the previous two weeks, the 2003 sunspot had been unleashing many flares and CMEs.

These had not only sparked powerful aurorae: the magnetic effects caused damage to communications satellites and some airlines flying near the arctic regions had to be re-routed, due to dangerous radiation levels in the upper atmosphere. By November, when the most powerful flare took place, the parent sunspot was moving off the Sun’s visible disc and the resulting CME was directed at ninety degrees to the Earth. Had it travelled directly towards the Earth, its consequences for communications systems and transport could have been devastating.

Research by scientists into the recorded magnetic effects of the solar storm of 1859 suggests that it might well have been as powerful as the 2003 one. The explosion’s effects on the Victorian electric telegraph were as nothing to the consequences of a Carrington-type event for the communications and power supplies we rely on in the modern world. That is why the solar storm of 1859 forms a benchmark for a potentially disastrous modern-day space weather event – and why scientists and governments need to understand and monitor the Sun’s emissions, in preparation for another such event.

The French Space Army

French President Emmanuel Macron announced Saturday the creation next September of a command dedicated to space, a potential French Space Army, an area essential to military operations and become a field of confrontation between powers.

Espionage, scrambling, cyber-attacks, anti-satellite weapons… Outer space, essential to military operations, has become a field of confrontation between nations, challenging France to strengthen its capabilities in this highly strategic and increasingly militarised theatre.

The French Space Army

The next French Military Planning Act (LPM in French) will provide for a budget of three and a half billion euros for military space, which must in particular make it possible to finance the renewal of the French observation satellites CSO and Syracuse, launch three electromagnetic listening satellites (CERES) into orbit and modernise the GRAVES space surveillance radar.

To ensure the development and reinforcement of our space capabilities, a major space command will be created next September within” the Air Force which “will ultimately become the Air and Space Force” said French President Emmanuel Macron at the traditional reception given to the Ministry of the Armed Forces on the eve of the annual parade on the Champs-Élysées.

Describing space as “a real national security issue, because of the conflict it provokes”, French President Emmanuel Macron wanted last year to endow France with a defense strategy for outer space, some kind of French Space Army. It is now ready, he said Saturday. “We will strengthen our knowledge of the space situation, we will better protect our satellites, including actively”.

The new space and military doctrine that was proposed to me by the Minister of the Armed Forces Florence Parly, which I approved, will ensure our defense in outer space”. Florence Parly should detail soon the outline of the French strategy for this potential French Space Army. Today, the Joint Space Command or Commandement Interarmées de l’Espace is a joint formation of the French Armed Forces, which deals with space questions. Created in 2010, the Joint Space Command is an internal part component of the French Joint Organisation.

In September 2018, Florence Parly undertook to endow France with “a real strategic space autonomy” against “threats by some major powers” in the context of the militarisation of space, a potential French Space Army. The Minister of the Armed Forces had delivered an explosive proof of her determination for a French Space Army by specifically accusing the Russians of “an act of espionage” against the French-Italian military satellite Athena-Fidus in 2017.

The largest space powers in the world (the United States of America, China and Russia) have been engaged for several years in a race for the domination of outer space. In the United States of America, the Pentagon has announced its intention to set up a “Space Force” desired by President Donald Trump. Soon, France will have some kind of French Space Army.

The legality of military activities in outer space

The space sector has emerged for reasons related to the military sector. Are we today heading towards a militarisation of international spaces (Antarctica, outer space or the high seas)? To be interested in outer space is to understand that this environment is free but framed (some will say limited). Space law is based on liberty and this freedom cannot be shared at best for the greatest number unless it has certain limits. The first limitation, and one of the most important when space activities appeared, was for the two superpowers of the Cold War and the United Nations, to establish the peaceful uses of outer space, the demilitarisation or denuclearisation of outer space.

All States without discrimination have an inalienable right to develop the uses of nuclear energy for civilian purposes, provided that they do not divert these peaceful uses to nuclear weapons. However, five countries have the right to possess these weapons, namely the United States of America, France, Russia, China and the United Kingdom of Great Britain and Northern Ireland. Around this position, a lively debate both legal and ethical has been raised. For its opponents, nuclear energy represents a long-term risk that cannot be controlled by science.

Major nuclear accidents, radioactive waste and the diversion of nuclear energy for military purposes are unmanageable and exceptionally serious risks. On the other hand, the defenders of this energy present it as safe, even as a stakeholder in sustainable development. According to them, nuclear power is a reliable way to fight against global warming and also a solution to the energy shortage that the world is facing. By examining and analysing the reliability and credibility of all the arguments against and in favour of this industry, we find that the lawfulness and legitimacy of the use of nuclear energy are ill-founded. What about the use of weapons in outer space? The nuclearisation of outer space?

If the Soviet Union was able on October 4, 1957 to orbit Sputnik 1, the first space object, it meant that it would also be able to use intercontinental ballistic missiles (an intercontinental ballistic missile or ICBM, is a guided ballistic missile with a minimum range of five thousand five hundred kilometres primarily designed for nuclear weapons delivery – delivering one or more thermonuclear warheads) against its adversaries, in particular the United States of America. The question of the militarisation of outer space is a very delicate issue, the subject being highly strategic, and States not easily agreeing on it, often leaving room for further misunderstandings. Since a resolution of the United Nations General Assembly of December 13, 1958, it was desired to see outer space used exclusively for peaceful purposes.

The General Assembly stated that it wished to avoid the extension of present national rivalries into the field of outer space, that the exploration and exploitation of outer space shall be done for the benefit of mankind, considered that such co-operation will promote mutual understanding and the strengthening of friendly relations among people. The Partial Test Ban Treaty, signed on August 5, 1963, also prohibits nuclear weapons testing in the atmosphere, beyond its limits, including outer space, or underwater, including territorial waters or high seas. This text has the merit of enacting prohibitions that extend as much to areas under the jurisdiction of States as to spaces removed from the sovereignty of States.

It is also important to mention that resolution 1884 (XVIII), calling upon States to refrain from placing in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction or from installing such weapons on celestial bodies, was adopted unanimously by the United Nations General Assembly on October 17, 1963.

Space Laws

Article IV of the 1967 Treaty distinguishes the legal regime for the whole of outer space and special limits concerning the Moon and other celestial bodies. It states that “States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited”.

It refers to a total demilitarisation of outer space and prohibits weapons of mass destruction, that is to say, atomic, bacteriological, chemical or equivalent effect. We can also think of environmental modification techniques for military or hostile purposes, as envisaged since the Convention of May 18, 1977, which prohibits the use of such weapons. The Environmental Modification Convention (ENMOD), formally the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, is an international treaty prohibiting the military or other hostile use of environmental modification techniques having widespread, long-lasting or severe effects. It opened for signature on May 18, 1977 in Geneva and entered into force on October 5, 1978. The Convention bans weather warfare, which is the use of weather modification techniques, such as cloud seeding, for the purposes of inducing damage or destruction. The Convention on Biological Diversity of 2010 would also ban some forms of weather modification or geoengineering.

This ban on certain armaments, particularly on Earth orbits, is obviously one of the most important for security on Earth. Recall that the Treaty of Outer Space (1967) was adopted at a time when arms limitation agreements were at the heart of diplomatic concerns, especially those of the two superpowers (The Treaty of Tlatelolco, signed on February 14, 1967, is the conventional name given to the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean; the Treaty on the Non-Proliferation of Nuclear Weapons, commonly known as the Non-Proliferation Treaty or NPT, signed on July 1, 1968, is an international treaty whose objective is to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy, and to further the goal of achieving nuclear disarmament and general and complete disarmament; the Strategic Arms Limitation Talks (SALT) were two rounds of bilateral conferences and corresponding international treaties involving the United States of America and the Soviet Union, the Cold War superpowers, on the issue of arms control. The two rounds of talks and agreements were SALT I and SALT II and negotiations commenced in Helsinki, Finland, in November 1969). The total demilitarisation of the Moon and celestial bodies is also provided for in the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (entered into force on July 11, 1984).

Article 3 of the Moon Agreement of 1979 states that “States Parties shall not place in orbit around or other trajectory to or around the Moon objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the Moon. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the Moon shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration and use of the Moon shall also not be prohibited”.

There are questions about the interpretation of the term peaceful: either non-military (broad interpretation) or non-aggressive (narrow interpretation). The United States of America prefers the narrow interpretation and constructs its argument by explaining that it is necessary to retain the right of self-defence, as expressed both in customary law and in Article 51 of the Charter of the United Nations. Chapter VII, Article 51 of the Charter of the United Nations concerning “Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression” states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.

The National Aeronautics and Space Administration (NASA) Act of 1958 also refers to the peaceful purposes of research and outer space, stating that “The Congress hereby declares that it is the policy of the United States that activities in space should be devoted to peaceful purposes for the benefit of all mankind”. The United States of America has always considered the action of reconnaissance satellites (a reconnaissance satellite or intelligence satellite, commonly, although unofficially, referred to as a spy satellite, is an Earth observation satellite or communications satellite deployed for military or intelligence applications) to be both military and peaceful.

The Soviet Union, for its part, quickly defended the idea that certain activities are prohibited, even for the State acting under conditions of self-defence, based for example on the Geneva Protocol of 1925 on the use of biological weapons (the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, usually called the Geneva Protocol, is a treaty prohibiting the use of chemical and biological weapons in international armed conflicts. It was signed at Geneva on June 17, 1925 and entered into force on February 8, 1928. It was registered in League of Nations Treaty Series on September 7, 1929), the 1972 Convention on the Prohibition of the Manufacture, Stockpiling and Use of Bacteriological and Toxin Weapons (the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on their Destruction, usually referred to as the Biological Weapons Convention, was the first multilateral disarmament treaty banning the production of an entire category of weapons.

The Convention was the result of prolonged efforts by the international community to establish a new instrument that would supplement the 1925 Geneva Protocol. The Geneva Protocol prohibits use but not possession or development of chemical and biological weapons) or the Environmental Modification Convention of May 18, 1977 on Environmental Changes for hostile purposes. The Soviet Union has also come to recognise the peacebuilding function of reconnaissance satellites.

To summarise, all areas of outer space are devoid of certain weapons, in this case weapons of mass destruction, whether for storage, experimentation or even more use; on the other hand, certain areas, in this case the Moon and the celestial bodies, generally exclude all military activity: all weapons are prohibited in certain areas and certain weapons are prohibited in all zones. This conclusion makes it possible to develop or envisage certain military activities in outer space without the right being able to give an unambiguous answer to the question of the lawfulness of these activities. That is what can be said about a potential French Space Army and the militarisation of outer space.

The League of Nations

The League of Nations was an international organisation, headquartered in Geneva, Switzerland, created after the First World War to provide a forum for resolving international disputes. Though first proposed by American President Woodrow Wilson as part of his Fourteen Points plan for an equitable peace in Europe, the United States of America never became a member.

Founded on January 10, 1920 as a result of the Paris Peace Conference that ended the First World War, it was the first worldwide intergovernmental organisation whose principal mission was to maintain world peace. Its primary goals, as stated in its Covenant, included preventing wars through collective security and disarmament and settling international disputes through negotiation and arbitration.

Other issues in this and related treaties included labour conditions, just treatment of native inhabitants, human and drug trafficking, the arms trade, global health, prisoners of war, and protection of minorities in Europe. At its greatest extent from September 28, 1934 to February 23, 1935, it had fifty-eight members.

Although the League was unable to fulfil the hopes of its founders, its creation was an event of decisive importance in the history of international relations. The League was formally disbanded on April 19, 1946; its powers and functions had been transferred to the nascent United Nations.

History

The central, basic idea of the movement was that aggressive war is a crime not only against the immediate victim but against the whole human community. Accordingly it is the right and duty of all states to join in preventing it; if it is certain that they will so act, no aggression is likely to take place. Such affirmations might be found in the writings of philosophers or moralists but had never before emerged onto the plane of practical politics.

Statesmen and lawyers alike held and acted on the view that there was no natural or supreme law by which the rights of sovereign states, including that of making war as and when they chose, could be judged or limited. Many of the attributes of the League of Nations were developed from existing institutions or from time-honoured proposals for the reform of previous diplomatic methods. However, the premise of collective security was, for practical purposes, a new concept engendered by the unprecedented pressures of World War I.

Over many years, lawyers had worked out plans for the settlement of disputes between states by legal means or, failing these, by third-party arbitration, and The Hague conferences of 1899 and 1907 had held long debates on these subjects. The results had been unimpressive; the 1907 conference tried in vain to set up an international court, and though many arbitration treaties were signed between individual states, they all contained reservations which precluded their application in more dangerous disputes.

However, though the diplomatists thus kept the free hand as long as possible, the general principle of arbitration, which in popular language included juridical settlement and also settlement through mediation, had become widely accepted by public opinion and was embodied as a matter of course in the Covenant.

The League of Nations

The terrible losses of World War I produced, as years went by and peace seemed no nearer, an ever-growing public demand that some method be found to prevent the renewal of the suffering and destruction which were now seen to be an inescapable part of modern war. So great was the force of this demand that within a few weeks after the opening of the Paris Peace Conference in January 1919, unanimous agreement had been reached on the text of the Covenant of the League of Nations.

The diplomatic philosophy behind the League of Nations represented a fundamental shift from the preceding hundred years. The League of Nations lacked its own armed force and depended on the victorious First World War Allies (France, the United Kingdom, Italy and Japan were the permanent members of the Executive Council) to enforce its resolutions, keep to its economic sanctions, or provide an army when needed.

The Great Powers were often reluctant to do so. Sanctions could hurt League of Nations members, so they were reluctant to comply with them. During the Second Italo-Abyssinian War, when the League of Nations accused Italian soldiers of targeting Red Cross medical tents, Benito Mussolini responded that “the League is very well when sparrows shout, but no good at all when eagles fall out”.

After some notable successes and some early failures in the 1920s, the League of Nations ultimately proved incapable of preventing aggression by the Axis powers in the 1930s. The credibility of the organisation was weakened by the fact that the United States of America never joined the League of Nations and the Soviet Union joined late and was soon expelled after invading Finland.

Germany withdrew from the League of Nations, as did Japan, Italy, Spain and others. The onset of the Second World War showed that the League of Nations had failed its primary purpose, which was to prevent any future world war. The League of Nations lasted for twenty-six years; the United Nations (UN) replaced it after the end of the Second World War and inherited several agencies and organisations founded by the League.

Article X of the Covenant of the League of Nations

Article X of the Covenant of the League of Nations is the section calling for assistance to be given to a member that experiences external aggression. It was signed by the major Peacemakers (Allied Forces) following the First World War, most notably Britain and France. Due to the nature of the Article, U.S. President Woodrow Wilson was unable to ratify his obligation to join the League of Nations, as a result of strong objection from U.S. politicians.

It states that “The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled”.

Although President Woodrow Wilson had secured his proposal for a League of Nations in the final draft of the Treaty of Versailles, the U.S. Senate refused to consent to the ratification of the Treaty. For many Republicans in the Senate, Article X was the most objectionable provision. Their objections were based on the fact that, by ratifying such a document, the United States of America would be bound by international contract to defend a League of Nations member if it was attacked. Under the United States Constitution, the President of the United States of America may not ratify a treaty unless the Senate, by a two-thirds vote, gives its advice and consent.