Louis de Gouyon Matignon

Pleumeur-Bodou and the French CNET

For this new article on Space Legal Issues, let’s focus on Pleumeur-Bodou and the French CNET. July 11, 1962. For the first time in the history of telecommunications, television images are broadcasted live from the United States of America to Europe, thanks to the Telstar satellite. Mondovision was born.

This is the result of years of American research, and a European willingness to enter the technological race of satellite communications. This feat for the time would not have been possible without the mobilisation of a Breton village located in the Trégor region in the Côtes-d’Armor, Pleumeur-Bodou.

Chosen as the location of the giant antenna that would receive the waves of the Telstar satellite, the Pleumeur-Bodou site became the exact replica of Andover Earth Station in the United States of America, with its giant balloon. It is integrated into the French CNET or National Center for Telecommunication Studies.

The Andover Earth Station

Andover Earth Station was one of the first satellite Earth stations, located at Andover in the U.S. state of Maine. It was built by AT&T in 1961 to communicate with the Telstar 1 satellite, the first direct relay communications satellite. It provided the first experimental satellite telephone and television service between North America and Europe. It was also used with the Relay satellite. The station was dismantled in the 1990s.

The location was selected by AT&T in December 1960. The main factors were the topography (set in the Western Maine Mountains), and the radio interference signal level. Other factors included a location to give a short great circle path to Western Europe, it was located close enough to existing transcontinental radio relay television and telephone routes to facilitate interconnection. In addition, the site had to be large enough to accommodate an antenna structure and control building, and if necessary, provide room for expansion.

The Ground Station was operational in 1962. AT&T and Bell Labs initiated, funded, constructed and took the leadership to make this project possible. The radio transmitter aboard Telstar 1 was very low-powered compared to modern communication satellites.

Pleumeur-Bodou

Pleumeur-Bodou and the French CNET start with Pleumeur-Bodou Ground Station, an early ground station in north-west France, and one of the first in the world. It was the site of the first satellite transmission between the USA and Europe in the early morning of July 11, 1962 (French time), lasting nineteen minutes on the satellite’s seventh orbit. The tracking station was developed by France Télécom, now known as Orange S.A.; the site was built by the Centre National d’Études des Télécommunications, which became France Télécom R&D in 2000. There was also another nearby tracking station at Lannion.

The construction of the radome was decided in 1961, in parallel with the American project Telstar 1. The experiment called for the establishment of a relay station on both sides of the Atlantic. The French government decided to participate. It remained to find a site to accommodate the future French “space station”. Because of its geographical location, Brittany was chosen. The choice of Pleumeur-Bodou was evident: facing west, the natural basin that had been identified, was safe from electrical disturbances. In addition, the place was only ten kilometres from Lannion, and the new laboratories of CNET (National Center for Telecommunications Studies).

A radome (which is a portmanteau of radar and dome) is a structural, weatherproof enclosure that protects a radar antenna. The radome is constructed of material that minimally attenuates the electromagnetic signal transmitted or received by the antenna, effectively transparent to radio waves. Radomes protect the antenna from weather and conceal antenna electronic equipment from view. They also protect nearby personnel from being accidentally struck by quickly rotating antennas.

A few hours after the launch of Telstar 1, the Andover Earth station antenna was already broadcasting signals. A few days later, on July 12, 1962, television images crossed the Atlantic for the first time. In competition with a British Earth station, France is the first to receive the broadcasts transmitted by the satellite. That day, television images from the United States of America via the Telstar satellite appeared on the control screens of the French station Pleumeur-Bodou.

When the images appeared, I saw technicians burst into tears. It was so beautiful and moving”. “When one has lived this kind of event in one’s life, one never forgets”. These “beautiful” images are limited to the American flag, then to three men in suits, including the big boss of the Bell System, talking around a table. As for the transmission, it lasted only seven minutes, interrupting when the satellite disappeared out of reach of the Pleumeur-Bodou radome, a huge white unusual ball in the countryside. But the moment was intense; for the first time, images were transmitted live from the United States of America.

The Centre National d’Études des Télécommunications (CNET)

The Centre National d’Études des Télécommunications (CNET) was a French national research centre in telecommunications. It was created on May 4, 1944 as a French interministerial research centre, but it was placed under the general supervision of the French Minister of PTT (Posts and Telecommunications). In 1990, Directorate General of Telecommunications (DGT) (part of the French Ministry of Posts and Telecommunications) became France Télécom, and CNET became the R&D centre of France Télécom. Pleumeur-Bodou and the French CNET worked together.

Telstar 1

Telstar 1, launched by NASA’s Thor-Delta rocket (the Thor-Delta, also known as Delta DM-19 or just Delta, was an early American expendable launch system used for twelve orbital launches in the early 1960s. A derivative of the Thor-Able, it was a member of the Thor family of rockets, and the first member of the Delta family) on July 10, 1962, was the first commercially funded satellite to be ever launched.

It was the satellite that allowed the first live broadcast of television images between the United States of America and Europe. Developed by AT&T Inc., an American multinational conglomerate holding company headquartered at Whitacre Tower in Downtown Dallas, Texas, the world’s largest telecommunications company, the second largest provider of mobile telephone services, and the largest provider of fixed telephone services in the United States of America through AT&T Communications, Telstar 1 was an experimental telecommunications satellite, the first launched in a commercial setting and financed largely privately.

Developed by Bell Telephone Laboratories for AT&T, Telstar 1 was the world’s first active communications satellite and the world’s first commercial payload in space. It demonstrated the feasibility of transmitting information via satellite, gained experience in satellite tracking and studied the effect of Van Allen radiation belts on satellite design. The satellite was spin-stabilized to maintain its desired orientation in space. Power to its onboard equipment was provided by a solar array, in conjunction with a battery back-up system. It was intended to test the use of a satellite for long distance communications: telephony and television.

Several large Earth stations were built on both sides of the Atlantic Ocean, including Pleumeur-Bodou in France (Pleumeur-Bodou Ground Station was an early ground station in north-west France, and one of the first in the world; a ground station, Earth station, or Earth terminal is a terrestrial radio station designed for extraplanetary telecommunication with spacecraft, constituting part of the ground segment of the spacecraft system, or reception of radio waves from astronomical radio sources), to carry out these tests.

The satellite, launched by a Delta rocket (an American versatile family of expendable launch systems that has provided space launch capability in the United States of America since 1960; there have been more than three hundred Delta rockets launched, with a ninety-five percent success rate) from Cape Canaveral on July 10, 1962, worked satisfactorily until February 21, 1963. That is what can be said about Pleumeur-Bodou and the French CNET.

The Television Without Frontiers Directive

The Television Without Frontiers Directive (TVWF Directive) is the cornerstone of the European Union’s audiovisual policy. It rests on two basic principles: the free movement of European television programs within the internal market, and the requirement for TV channels to reserve, whenever possible, more than half of their transmission time for European works or “broadcasting quotas”. The Television Without Frontiers Directive also safeguards certain important public interest objectives, such as cultural diversity, the protection of minors and the right of reply.

The Television Without Frontiers Directive aims to ensure the free movement of broadcasting services within the internal market and at the same time to preserve certain public interest objectives, such as cultural diversity, the right of reply, consumer protection and the protection of minors. It is also intended to promote the distribution and production of European audiovisual programs, for example by ensuring that they are given a majority position in television channels’ program schedules.

The Directive establishes the principle that Member States must ensure freedom of reception and that they may not restrict retransmission on their territory of television programs from other Member States. They may, however, suspend retransmission of television programs which infringe the Directive’s provisions on the protection of minors.

Directive (European Union)

A directive is a legal act of the European Union which requires Member States to achieve a particular result without dictating the means of achieving that result. It can be distinguished from regulations, which are self-executing and do not require any implementing measures. Directives normally leave Member States with a certain amount of leeway as to the exact rules to be adopted. Directives can be adopted by means of a variety of legislative procedures depending on their subject matter.

The text of a draft directive (if subject to the co-decision process, as contentious matters usually are) is prepared by the Commission after consultation with its own and national experts. The draft is presented to the Parliament and the Council, composed of relevant ministers of member governments, initially for evaluation and comment then subsequently for approval or rejection.

There are justifications for using a directive rather than a regulation: it complies with the EU’s desire for “subsidiarity”, it acknowledges that different member States have different legal systems, legal traditions and legal processes, and each Member State has leeway to choose its own statutory wording, rather than accepting the Brussels’ official terminology.

So, for example, while EU Directive 2009/20/EC (which simply requires all vessels visiting EU ports to have P&I cover) could have been done perfectly well as a regulation (without bothering Member States to implement the directive), the desire for subsidiarity was paramount and thus, a directive was the chosen vehicle.

The legal basis for the enactment of directives is Article 288 of the Treaty on the Functioning of the European Union which states that “To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force”.

The Council can delegate legislative authority to the Commission and, depending on the area and the appropriate legislative procedure, both institutions can seek to make laws. There are Council directives and Commission directives. Article 288 does not clearly distinguish between legislative acts and administrative acts. Directives are binding only on the Member States to whom they are addressed, which can be just one Member State, or a group of them. In general, however, with the exception of directives related to the Common Agricultural Policy, directives are addressed to all Member States.

The Television Without Frontiers Directive

In order to encourage the distribution and production of European television programs, Member States must ensure where practicable that broadcasters reserve for European works a majority proportion of their transmission time, excluding the time allocated to news, sports events, games, advertising and teletext, and teleshopping services (Article 4).

Broadcasters must also reserve at least ten percent of their transmission time or ten percent of their programming budget for European works from independent producers (Article 5). The Commission is responsible for ensuring compliance with these two provisions. Member States are therefore required to provide it with a report every two years, including a statistical statement on fulfilment of the quotas referred to in Articles 4 and 5. Under certain circumstances, Member States are authorised to lay down stricter rules where necessary for purposes of language policy.

The TWF Directive, the forerunner to the AVMS Directive, is the main regulatory instrument for the audiovisual sector in Europe (Council of the EU, 1989). It was adopted in 1989 as a single-market initiative to establish a legal framework for the cross-border transmission of television programs. The directive was punctually amended in 1997 (European Parliament and Council of the EU, 1997), and more radically overhauled in 2007 (European Parliament and Council of the EU, 2007). It followed the paradigm of the European Convention on Transfrontier Television (ECTT), but had an altogether different motivation (Council of Europe, 1989).

While the ECTT was embedded in the cultural policy tradition of the Council of Europe and sought to encourage the free flow of information, the TWF Directive was inspired by the EU’s free-market orientation. It harmonised key areas that were particularly likely to hinder the free movement of television broadcasts across borders: the promotion of European works and works by independent producers; advertising, sponsorship and teleshopping; the protection of minors and public order; the right of reply; and, in its 1997 amended version, events of major importance to society.

The coordination of national broadcasting laws was partial in that it did not cover all areas, and minimum, in that member states were free to impose higher standards on their broadcasting industry if they so wished (European Court of Justice, 2007). Even though the directive’s primary objective was the opening up of national markets, some of its rules, such as the advertising restrictions and the rules on the protection of minors, coincidentally also protect the public interest.

The European Convention on Transfrontier Television

The European Convention on Transfrontier Television is the first international treaty creating a legal framework for the free circulation of transfrontier television programs in Europe, through minimum common rules, in fields such as programming, advertising, sponsorship and the protection of certain individual rights.

It entrusts the transmitting States with the task of ensuring that television program services transmitted comply with its provisions. In return, freedom of reception of program services is guaranteed as well as the retransmission of the programme services which comply with the minimum rules of the European Convention on Transfrontier Television.

The Council of Europe

The Council of Europe is an international organisation whose stated aim is to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it has forty-seven Member States, covers approximately eight hundred and twenty million people and operates with an annual budget of approximately five hundred million euros.

The organisation is distinct from the 28-nation European Union (EU), although it is sometimes confused with it, partly because the EU has adopted the original European Flag which was created by the Council of Europe in 1955, as well as the European Anthem. No country has ever joined the EU without first belonging to the Council of Europe. The Council of Europe is an official United Nations Observer.

Unlike the EU, the Council of Europe cannot make binding laws, but it does have the power to enforce select international agreements reached by European states on various topics. The best known body of the Council of Europe is the European Court of Human Rights, which enforces the European Convention on Human Rights.

The Council’s two statutory bodies are the Committee of Ministers, comprising the foreign ministers of each member state, and the Parliamentary Assembly, composed of members of the national parliaments of each member state. The Commissioner for Human Rights is an independent institution within the Council of Europe, mandated to promote awareness of and respect for human rights in the member states. The Secretary General heads the secretariat of the organisation. Other major CoE bodies include the European Directorate for the Quality of Medicines and the European Audiovisual Observatory.

The headquarters of the Council of Europe are in Strasbourg, France. English and French are its two official languages. The Committee of Ministers, the Parliamentary Assembly and the Congress also use German, Italian, and Russian for some of their work.

The European Convention on Transfrontier Television

The European Convention on Transfrontier Television applies to all transfrontier programs regardless of the technical means of transmission used (satellite, cable, terrestrial transmitters, etc.). Its main provisions cover: freedom of expression, reception, and retransmission; right of reply (transfrontier character of this right and other comparable recourse); pornography, violence, incitement to racial hatred, etc. (it forbids such acts), and youth protection; the screening of European works, for a majority of screen time, where practicable; the screening of cinema films (normally not until two years after first showing, one year in the case of films co-produced by the broadcaster); advertising standards (e.g. prohibition on the advertising of tobacco and medicines and medical treatments available only on prescription, restrictions on the advertising of certain products such as alcoholic beverages); advertising time (normally not more than fifteen percent of daily transmission time and not more than twenty percent of any one hour period); advertising breaks (for example, twice during a ninety minute feature film, none during a news or current affairs programme lasting less than thirty minutes); and program sponsorship rules.

A Standing Committee composed of representatives of each Party is responsible for monitoring the application of the European Convention on Transfrontier Television. Proceedings of conciliation and arbitration are also provided for.

The Preamble of the Convention states “Reaffirming their commitment to the principles of the free flow of information and ideas and the independence of broadcasters, which constitute an indispensable basis for their broadcasting policy”, “Affirming the importance of broadcasting for the development of culture and the free formation of opinions in conditions safeguarding pluralism and equality of opportunity among all democratic groups and political parties”, “Convinced that the continued development of information and communication technology should serve to further the right, regardless of frontiers, to express, to seek, to receive and to impart information and ideas whatever their source”, and “Being desirous to present an increasing range of choice of programme services for the public, thereby enhancing Europe’s heritage and developing its audiovisual creation, and being determined to achieve this cultural objective through efforts to increase the production and circulation of high-quality programmes, thereby responding to the public’s expectations in the political, educational and cultural fields”.

Article 1 of the European Convention on Transfrontier Television on Object and purpose enounces that “This Convention is concerned with programme services embodied in transmissions. The purpose is to facilitate, among the Parties, the transfrontier transmission and the retransmission of television programme services”. Article 3 on Field of application adds that “This Convention shall apply to any programme service transmitted or retransmitted by entities or by technical means within the jurisdiction of a Party, whether by cable, terrestrial transmitter or satellite, and which can be received, directly or indirectly, in one or more other Parties”.

Article 4 of the European Convention on Transfrontier Television on Freedom of reception and retransmission states that “The Parties shall ensure freedom of expression and information in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and they shall guarantee freedom of reception and shall not restrict the retransmission on their territories of programme services which comply with the terms of this Convention”.

Article 6 on Provision of information declares that “1. The responsibilities of the broadcaster shall be clearly and adequately specified in the authorisation issued by, or contract concluded with, the competent authority of each Party, or by any other legal measure. 2. Information about the broadcaster shall be made available, upon request, by the competent authority of transmitting Party. Such information shall include, as a minimum, the name or denomination, seat and status of the broadcaster, the name of the legal representative, the composition of the capital, the nature, purpose and mode of financing of the programme service the broadcaster is providing or intends providing”.

The European Convention on Transfrontier Television lays down a number of rules for the free and unhindered circulation of television programs across the countries concerned. The Convention was the first legal instrument to define at the wider European level a number of common principles for the transfrontier circulation of television programs. The objectives and principles and the field of application of the Convention and the Directive are nearly the same.

NASA communicating to survive

NASA communicating to survive. NASA is now sixty years old, and more than ever, it is everywhere: on social networks, in the media… Impossible to escape. Its media omnipresence, its ability to communicate, are key elements of its strategy. And for a good reason: since its origins, it is an essential factor of its survival.

Difficult to escape the deluge of images and information that invest social networks. Twitter, Instagram, Facebook, YouTube, Snapchat… Every information is relayed by several hundred accounts, all affiliated with NASA. Each event is the subject of a communication operation. NASA is everywhere, and its images of the Earth as those of the most distant stars are constantly ravishing and amazing. Why such a desire to be known, to be seen, for an organisation whose main purpose is to conduct scientific experiments? The most obvious answer is the justification of the substantial budgets that NASA requires: twenty billion American dollars in 2017, or point fifty percent of the U.S. federal budget.

In reality, if NASA communicates so much, it is not so much to be made known as by absolute necessity: “It is necessary to distinguish the enormous technical competence of communication of NASA, and the need for this competence. If it invests even more in this effort, it is because the space agency needs it”.

NASA communicating to survive, has long owed its existence to its ability to tell and play political calculations. Its media omnipresence is almost the survival instinct. Through storytelling, it has managed to become a symbol of the American psyche.

NASA, showcase of the American society

When the National Aeronautics and Space Administration was created on July 29, 1958, it embodied the bipolar confrontation in its most absolute affection at the time of the Cold War. Its only objective then was to compete with the Soviets, who managed, on October 4, 1957, to put the first Sputnik satellite into orbit. “It soon became apparent that Sputnik’s satellisation had to be made once, because the American model was being undermined. This is what will structure the American political debate of the time. What space is the vector of, is the confrontation of two models of society”.

The creation of NASA responds to political demands, and the Democrats do not hesitate to take advantage of the situation to weaken the Republican Party. “The United States of America asked questions about the organisation of their society. Space will be seen as the revealer, the showcase of the overall state of a society, its performance, its productivity, its inventiveness, its creativity… From the beginning, it is an issue of communication. This is an essential dimension: there is a strategic dimension, but there is the showcase dimension of society”.

The stakes of NASA are above all soft power issues, which aim to extend the influence of the United States of America around the world. When Yuri Gagarin, in April 1961, made the first manned flight in outer space, John Fitzgerald Kennedy, newly elected, must react. This will be the Apollo program. On May 25, 1961, in a speech to the U.S. Congress, the President of the United States of America announces the sending of a man to the Moon: “We choose to go to the Moon. We choose to go to the Moon in this decade and do the other things, not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win, and the others, too”.

Some of his advisers blame the program from the outset for being too expensive. Kennedy responds to his scientific advisers that if they have something as spectacular as a flight on the Moon to propose to him, he will do it, but only if they have nothing better to offer him (implied, to show the world the excellence of the United States of America). The Apollo program was born. “Kennedy gave the space agency the means to accomplish its mission: as early as 1963, funding from NASA accounts for more than two percent of the state budget, peaking at almost five percent in 1966”.

Announced disappearance of NASA

When Kennedy died in 1963, his vice-president, Lyndon B. Johnson, succeeded him. If he has pushed hard for the adoption of the Apollo program, he does not fail to remind James Webb, the director of the space agency, that NASA’s mission is to put a man on the Moon, and that’s all. “What the directors of NASA realise is that, far from being the space exploration agency that would show a kind of future for American society, the American space agency has the appearance of a kind of alibi for political communication, to show that the United States of America is the dominant model of society. It is a tool of propaganda finally. After its mission accomplished, it should not exist anymore, Johnson proposed to repeal NASA and return to NACA, a research and development office that dealt with aeronautical aspects”.

When, on July 21, 1969, Neil Armstrong and Buzz Aldrin were the first human beings to set foot on the Moon, the mission of the space agency came to an end. “That’s one small step for a man, one giant leap for mankind”, and a great showcase for NASA, which broadcasted the event to more than five hundred million people around the world. Already, the American space agency had understood the power of images. It knows that its survival depends on its ability to communicate.

Fight for survival: a taxi for nowhere

Shortly before this Moon landing, Richard Nixon came to power. He is also the President who communicates live with Buzz Aldrin and Neil Armstrong. But the new U.S. President does not want to maintain the substantial funding allocated to NASA. He continues the budget cuts initiated by his predecessor. For its part, NASA has proposed a more daring program: it wants to install a lunar base in the late 1970s, before launching an inhabited mission to Mars in the early 1980s. The link in this chain is the Space Shuttle project, the only element that will keep Nixon, who judges the rest much too expensive.

And if the president of the United States of America spares the Space Shuttle project, it is not out of passion for space, but by pure electoral strategy: “Nixon was obsessed with the silent majority at the time. He’s going to do political polls in what he called the battlegrounds states, the key states where the Apollo program was set up, and he really wanted for re-election, that pruning the space programs would not rock the big voters on the other side”.

Nixon does not want to assume the role of the man who put an end to manned spaceflight, whose prestige, after the feat just achieved, is still great. Moreover, he wants to help the states where the aeronautical industry has developed, which is heavily lobbying for the Space Shuttle. He decides to keep this aspect of the program. But in the absence of a space station where to send the Shuttles, the critics do not miss to be heard: “Taxis for nowhere” are denounced. NASA, for its part, jumped at the opportunity to demonstrate all that can be done with these famous Shuttles, including military applications.

The slow decline of the American Space Shuttle, NASA communicating to survive

When Jimmy Carter came to power in 1977, his transition team simply recommended cancelling NASA. Because of lack of real objectives, the inhabited flights towards space don’t convince anymore. It is the geopolitical situation that saves them, because it must be verified that the disarmament agreements that Carter intends to sign with the Soviet Union will be respected. “We are going to start suggesting to him that thanks to the satellites, he will have these means. What better instrument to send these satellites than a Space Shuttle modified for these purposes?”.

The Reagan administration, which succeeds Carter’s, will only reinforce this military interest, especially with its “Star Wars” project, also known as SDI. On the public side, the first Space Shuttle flights have had some success. “By maintaining manned flight, NASA has managed to maintain the particular idea that America has of itself. There is an identification with the notion of pioneer exploration, overt destiny”.

But their exorbitant cost gradually push the public to lose interest. Especially since the accident of Challenger, January 28, 1986, which disintegrates with all of its crew, and gives a dramatic dimension to the conquest of outer space. All NASA manned flight projects are then temporarily suspended. Gradually, the conquest of outer space is set aside. Under George H. W. Bush, the withdrawal of the Space Shuttle is planned for a space station called “Space Station Freedom”, with the intention of returning to the Moon and Mars. “This time we are going back to stay there. And after that, an adventure to tomorrow, an adventure to another planet: a human mission to Mars. Why the Moon? Why Mars? Because it is in human nature to fight, to find. And because it is the destiny of America to lead the space conquest”.

A paradigm shift: From space to Earth, NASA communicating to survive

The project is highly criticised, unlike another program announced by George H. W. Bush’s presidency “Mission to Planet Earth”, which proposes to use NASA’s satellite network to better understand how the atmosphere works and terrestrial ecosystems. Under Bill Clinton, the agency’s budget continues to plummet, falling to less than one percent of the American budget in 2001.

NASA communicating to survive has, once again, no more roadmap. It can happily rest on the birth of the International Space Station (ISS), which became a partnership with the Russians. The American space agency does not deprive itself obviously to communicate on this international cooperation.

Declaration on Principles of International Law concerning Friendly Relations

The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations was adopted by the General Assembly on October 24, 1970, during a commemorative session to celebrate the twenty-fifth anniversary of the United Nations.

The following statement was made by Mr. Edvard Hambro (Norway), President of the General Assembly, following the adoption of the Declaration: “As a man of law, I am particularly happy to have just announced the adoption of the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. This marks the culmination of many years of effort for the progressive development and codification of the concepts from which basic principles of the Charter are derived. The Assembly will remember that, when we first embarked upon these efforts, many doubted that it would be possible to obtain a result which would be acceptable to all the various political, economic and social systems represented in the United Nations. Today, those doubts have been overcome. In a sense, however, the work has just begun. We have proclaimed the principles; from now on we must strive to make them a living reality in the life of States, because these principles lie at the very heart of peace, justice and progress”.

History

In the course of the Sixth Committee’s consideration of the item “Future work in the field of the codification and progressive development of international law”, at the sixteenth session of the General Assembly in 1961, twelve delegations put forward a proposal by which the General Assembly would inter alia decide to include a question entitled “Consideration of principles of international law relating to peaceful coexistence of States” in the provisional agenda of its following session, in 1962.

Pursuant to an amendment made at the Sixth Committee, the expression “peaceful coexistence of States” in the twelve power draft resolution was replaced with “friendly relations and co-operation among States in accordance with the Charter of the United Nations”. On December 18, 1961, on the recommendation of the Sixth Committee, the General Assembly adopted Resolution 1686 (XVI), in which it decided to place on the provisional agenda of its seventeenth session the question entitled “Consideration of principles of international law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations”.

At its seventeenth session, following the discussion of the question in the Sixth Committee, the General Assembly adopted Resolution 1815 (XVII) of December 18, 1962, by which it recognised the paramount importance of seven principles of international law concerning friendly relations and co-operation among States and resolved to undertake a study of those principles with a view to their progressive development and codification.

It decided accordingly to place the same item on the provisional agenda of its eighteenth session in order to study four of those principles and to decide what other principles were to be given further consideration at subsequent sessions and the order of their priority. Finally, the Assembly invited Member States to submit in writing any views or suggestions that they may have on this item.

At its eighteenth session, the General Assembly adopted Resolution 1966 (XVIII) of December 16, 1963, by which it decided to establish a Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States (also known as “the 1964 Special Committee”) composed of Member States to be appointed by the President of the General Assembly, which would draw up a report containing, for the purpose of the progressive development and codification of the four principles so as to secure their more effective application, the conclusions of its study and its recommendations.

The Special Committee met in Mexico City, from August 27, to October 2, 1964, and its report was considered by the General Assembly in the framework of the Sixth Committee, at its twentieth session, in 1965. In the introduction to its report, the Committee indicated that it had established a Drafting Committee of 14 members entrusted with the task of preparing a text presenting the points of consensus as well as the various proposals and views for which there was support.

By Resolution 2103 (XX) of December 20, 1965, the Assembly took note of the report and decided to reconstitute the Special Committee to complete consideration and elaboration of the seven principles set forth in its Resolution 1815 (XVII), and to submit a comprehensive report on the results of its study to the Assembly at the twenty-first session, with a view to adopt a declaration containing an enunciation of these principles.

From 1966 to 1969, the Special Committee met on annual basis, submitting reports to the General Assembly. From its twenty-first to twenty-fourth sessions, following consideration by the Sixth Committee, the General Assembly took note of these reports and requested the Special Committee to continue its study of the matter.

At the twenty-fourth session, in 1969, the General Assembly took a number of decisions relating to the celebration of the twenty-fifth anniversary of the United Nations, and inter alia invited the Special Committee to expedite its work with a view to facilitating the adoption of an appropriate document by the General Assembly during a commemorative session to be held the following year.

Prior to the 1970 session of the Special Committee, informal consultations were held in Geneva. During the 1970 session, the Special Committee decided to dispense with the general debate which at earlier sessions had preceded the consideration of the principles referred to it. Instead, consultations, which were coordinated by the Chairman of the Special Committee, were held at an informal level. The basis for the consultations was the draft prepared by the Drafting Committee as adopted by the Special Committee in 1969. After considering the outcome reached at the informal meetings, the Drafting Committee adopted a report containing a draft declaration on all seven principles.

Declaration on Principles of International Law concerning Friendly Relations

The draft Declaration was considered by the General Assembly at its twenty-fifth session in 1970. The item was once again allocated to the Sixth Committee, which considered it from September 23 to 28, 1970. Following this debate, sixty-four States sponsored a draft resolution, which contained the text of the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations in an annex. The draft resolution was adopted without objection by the Sixth Committee on September 28, 1970.

According to the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, “the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations” embraces the right of all peoples “freely to determine, without external interference, their political status and to pursue their economic, social and cultural development”, as well as the duty of every State “to respect this right in accordance with the provisions of the Charter”.

It further added that “the establishment of a sovereign and independent State, the free association or integration with an independent State, or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination”, thus stressing, as the critical issue, the methods of reaching the decision and not the result.

Sectoral space regulations

For this new article on Space Legal Issues, let’s have a look at the sectoral space regulations.

Satellite telecommunications

On the sectoral space regulations, since the first commercial telecommunications satellites were put into orbit in 1965, there has been a real economic explosion in this sector, with the proliferation of networks, whether at national, regional or global level. International (Intelsat, Inmarsat, Interspoutnik) or regional (Eutelsat, Arabsat) satellite communications organisations have been established to manage these commercial systems.

Established by intergovernmental agreements, these organisations, of which Intelsat has served as a model, include both state and state-designated telecommunications representatives, who may be public or private. Given the fact that deregulation is taking place in this fast growing sector, the status of these intergovernmental organisations is being questioned, leading to a progressive demonopolisation of operators, both national and international. This is the case of Inmarsat, which has already privatised some of its activities, and the process is underway for Intelsat.

While this tendency towards “privatisation” poses considerable legal problems, its solution to specific rules of space law. On the other hand, the proliferation of these systems, which use the limited natural resources of the frequency spectrum and the orbit of geostationary satellites, on which the telecommunications satellites are placed, has very early made a need for specific regulation. It is the work of the International Telecommunications Union (ITU), and its administrative radiocommunication conferences, which, as it has done for more than a hundred and fifty years for other radiocommunication services, has extended its regulation to telecommunications satellites including those of direct broadcasting.

Regulating the use of frequencies and orbital positions

Continuing on the sectoral space regulations, one of ITU’s main tasks is to allocate frequencies and orbital positions to services and to different potential users, with the aim of maximising the use of spectrum and orbital locations by avoiding harmful interference, and to ensure equal access for all. Thus, since the beginning of the space age, the distribution system has been revised periodically to take into account both technological progress, the scarcity of positions in the geostationary orbit and associated frequencies, and claims issued by developing countries for equitable access to these resources.

This system is increasingly presented as a compromise between the validation of the first-person right or “first-come, first-served” rule, and the planning of services that challenges acquired situations based on unilateral occupations. With regard to geostationary orbit, considered as a limited natural resource that “must be used rationally, efficiently and economically”, the ITU has, inter alia, provided equitable access for all to this area by adopting the principle, in certain frequency bands of the fixed-satellite service, of allocating at least one position in the geostationary orbit to each of the ITU Member States for its national services.

These provisions were incorporated into the ITU Convention and Constitution of December 22, 1992, together with its annexed Radio Regulations, texts having the binding force of international treaties. Thus, the evolution of space law in this specific sector of access to radiocommunications has gradually given spectrum/orbit the essential characteristics of the notion of “the common heritage of humanity”, even if the legal status of this geostationary orbit has not yet been agreed by the United Nations.

With respect to the growing development of new mobile-satellite communications services and future low-orbit satellite-based multimedia services, new rules were adopted by the ITU, which will allow simultaneous access of several operators of non-geostationary satellites to the same frequency bands, with power limitations to avoid interference.

Geostationary satellites are defined by the Radio Regulations as those whose “circular and direct orbit is in the plane of the Earth’s equator”, a group of states whose territory lies along the equator, have, by a Declaration made at Bogota on December 3, 1976, affirmed their sovereignty over the segment of the geostationary orbit situated above their territory. Joined over time by some developing countries that do not have the technical and financial means to put a telecommunications satellite into orbit, these States, relying in particular on the fact that this orbit is a rare natural resource that is likely to rapidly be saturated, required special access, or at least a right of access reserved for that orbit.

The geostationary orbit, which has been studied by the COPUOS Scientific and Technical Subcommittee in terms of its nature and technical characteristics, has since 1969 been the subject of a thorough examination by the Legal Subcommittee, without prejudice to the work of the ITU. The situation seems always to be frozen between those States that want to be granted preferential rights and the other States, in particular technologically developed States, which consider that any claim in this sense would be an attempt at appropriation of space, prohibited by Article II of the 1967 Outer Space Treaty, and furthermore, that there is no absolute saturation or irreversible consumption of the geostationary orbit, since the capacity of the orbit depends in particular on the technical progress (and the limited lifetime of the geostationary orbit satellites).

Points of convergence seem nevertheless to emerge between these two theses which could lead to a minimum agreement on the principles governing the use or occupation of the geostationary orbit. In relation to the use of telecommunication satellites, whether in the fixed service or the broadcasting service, the legal problems posed by the transmission of satellite images will be mentioned separately.

Satellite broadcasting and sectoral space regulations

With sectoral space regulations, direct-to-home satellite television poses a serious threat to the sovereignty of States as programs issued from one state are likely to be received directly by nationals of another state. In the 1970s, technicians designed broadcast satellites whose emissions were to be received directly on the ground by satellite dishes. On a technical level, the question of the distribution of frequencies and orbital positions was settled by the adoption of a plan by the ITU Conferences of 1977 and 1983 for the broadcasting service in the band of 12 GHz.

The principles retained were those of national coverage, with the exception of unavoidable technical overflow and a fair but limited allocation of direct-to-home satellite television channels for each State. Despite these technical limitations, with many States expressing the wish to be able to control the content of the broadcasts received by their nationals in the context of international direct television, the problem facing the United Nations was that of the conciliation of two antinomic principles: that of the free flow of information, supported by the industrialised countries, and that of national sovereignty, ardently defended by the Soviet Union and most developing countries.

Despite fourteen years of work, from 1968 to 1982, on a draft of legal principles relating to the use of direct-to-satellite television by its Legal Subcommittee, COPUOS failed to reach consensus on these principles, the main obstacle being the introduction of a system of prior authorisation of receiving States. Resolution 37/92, adopted by the General Assembly of the United Nations on December 10, 1982, has the value of a simple recommendation and has therefore remained a dead letter.

Very quickly, technological developments have also allowed the direct reception by small satellite dishes of television images transmitted by the conventional telecommunications satellites of the fixed service, and the regulations put in place have become obsolete. Thus, we have moved towards more positive regional solutions, particularly in the European context, where the European Convention on Transfrontier Television adopted on March 15, 1989 by the Council of Europe and the “Television Without Frontiers” Directive of October 3, 1989, made it possible to abolish all obstacle in the circulation of programs, whatever the nature of their technical support. The problem of universal regulation of satellite television, which cannot be imposed by conventional means and can only be built through the development of bi- or multilateral cooperation, remains unresolved and unresolved.

Satellite observation and sectoral space regulations

Talking about sectoral space regulations, the development of operational satellite remote sensing systems for commercial purposes led COPUOS in 1972 to consider the adoption, if not a treaty, of at least a “code of conduct” on the use of satellites for the purpose of remote sensing and the use of remote sensing data. As in the case of direct-to-satellite television, the problem to be solved was that of the conflict between the principle of freedom of use of space and the sovereignty of States, combined here with their right to the protection of their natural resources.

Although there was consensus on some principles, the adoption of satellite remote sensing guidelines has for a long time stumbled on the fundamental question of whether or not the prior consent of the State observed was necessary to ensure that a launching State may make remote sensing of its territory and may make the information obtained available to third parties. This need for prior consent on the part of the televised State was not retained in the text of Resolution 41/65 adopted by consensus by the UN General Assembly on December 3, 1986 and covering principles applicable to remote sensing.

It is defined as the study of the Earth’s surface from space with the aim of “improving the management of natural resources, land use and environmental protection”. The principles calling for international cooperation on a case-by-case basis, based on “equitable and mutually acceptable conditions”, require the dissemination of available information on the occurrence of any phenomenon prejudicial to the Earth’s environment and natural disasters, and declare that access by an observed State to data concerning its territory must be made on a “non-discriminatory and reasonably priced” basis.

Finally, a State conducting a remote sensing program must, at the request of a State whose territory is observed (in particular developing countries), enter into consultation with that State in order to enable it to participate in this program. It should be noted that although these principles were adopted by consensus, they were drafted in terms of recommendations, leaving States with considerable flexibility to adopt laws domestically.

This was notably the case of the United States of America, which since 1984 has adopted a law on the commercialisation of remote sensing, amended in 1992, whose provisions are in conformity with the principles of the United Nations. It still remains to be defined in this area of ​​the rules relating to the legal protection of data which, for the time being, fall within the contractual practice of the States which are remote observers and the undertakings under their jurisdiction.

Space transportation

Space transportation when speaking about sectoral space regulations, this means launching activities that provide access to space, either using conventional non-reusable rockets or new means of transportation. While for a long time only States had the necessary capacity to carry out these launches, with the development of commercial space activities, there has been an evolution that has led some private companies to offer launch services. As space activities are state-based, they therefore appear immediately in the field of Public International Law. Therefore, even if private companies are involved, it is still the State (or international organisations) that is involved at the international level, and which must provide for procedures for authorisation and monitoring of these activities.

It is up to each State, according to the legislative modalities of its choice, to fulfil these obligations. From these launch authorisations, the private companies in charge of such operations act on the basis of the rules of commercial law and under private law contracts. The regulatory modalities relating to the relations between these various actors are different according to the space powers concerned which have been engaged for some years in a particularly severe competition.

In the United States of America, it is the Commercial Space Launch Act of 1984 which lays down the conditions under which launch services may be exercised by private companies, while in Europe was established in March 1980 the Arianespace company, in the form of a public limited company under French law. The relations between the European States involved in the production of the Ariane launcher and Arianespace are laid down in a 1980 Declaration, renewed in 1990, the French State being responsible under Article VI of the 1967 Treaty.

Space launch contracts are private-law contracts, but because of the original nature of the services provided and the technical risks involved, a certain specificity is attached to this type of contract as regards its legal regime and the coverage of economic risks.

Let us emphasise here that the space industry, relieving itself of any technical failure, acts according to the principle of the best effort with an obligation of means rather than an obligation of results. In the majority of contracts, there are no-recourse clauses between suppliers, operators and customers, insurance contracts taking over to enable risk to be integrated.

Still, with the increased commercialisation of space activities and the entry of companies into this sector of activity, conflicts of interest appear, which will require that effective procedures be put in place for the settlement of disputes. This is what can be said about sectoral space regulations.

Public International Space Law

Based on the mentioned basic Public International Space Law principles, the 1967 Outer Space Treaty provided a legal framework whose enlargement was made possible by subsequent treaty texts. All these provisions form the corpus juris spatialis or the fundamental law governing space activities.

Assistance and rescue

Even before technical advances made it possible to send astronauts to the Moon, the 1968 Astronaut Rescue Agreement codified the principles contained in the Article V of the 1967 OST relating to their legal status and Article VIII concerning that of space objects. It grants protections to astronauts in distress who are described as “envoys of humanity” and requires States Parties to take all possible measures to assist and rescue an astronaut in the event of an accident, distress, emergency or forced landing, as well as to hand over the crew to the representatives of the launching authority.

The Agreement also provides for the recovery and return of objects launched into space, including dangerous or deleterious objects, as well as measures that the launching authority must take immediately to eliminate any possibility of danger or harm. Finally, let’s note, as for other space conventions, the central role played by the Secretary-General of the United Nations, particularly in centralising and disseminating information.

Control and registration in Public International Space Law

In view of the growing number of space objects launched into space and the damage that such devices could cause, the need for a public international space law system to ensure their identification, and to facilitate the implementation of the 1972 Liability Convention, has imposed itself. The Treaty lays down principles in which the launching State retains jurisdiction and control over space objects and personnel on board (Article 8). The Convention of January 14, 1975 supplemented the registration system that had operated in the United Nations Secretariat since the adoption of Resolution 1721 (XVI) of December 20, 1961. It established effect of the proceedings on the manner in which the UN Secretary-General is informed of States’ activities in outer space, including through the establishment of national registers and a central register maintained at the United Nations.

With a view to the implementation of the jurisdiction, the Convention defines the launching State. It also provides for a procedure to identify objects that are likely to cause harm to a State Party or its nationals, natural or legal persons. To give an example, the parties which cooperated in the development of the International Space Station (ISS) have incorporated registration provisions into the 1988 Washington Agreements, according to which “each party will separately register its own module, and thereby retain jurisdiction and control of the objects he inscribes on his register”. However, the Convention does not provide a solution to possible conflicts of jurisdiction over such an inhabited, multinational station. Finally, it should be noted that the Convention has become more important in recent years because of the worrying problem of space debris.

International responsibility of States

The principle of international liability of States encompasses two different concepts: political responsibility and the legal responsibility of States.

The political responsibility of States arising from Article VI of the Outer Space Treaty, which imposes on any signatory State “the international responsibility for national activities in outer space, including the Moon and other celestial bodies, government or non-governmental entities” (a provision eventually joined by the USSR which, during the negotiation of the Treaty, wanted to prevent private companies from engaging in activities space). The Treaty subjects these commercial activities to the authorisation and continuous surveillance of the States concerned.

The legal responsibility of States whose fundamental principles have been laid down in Article VII of the Outer Space Treaty and implemented by the 1972 Convention on International Liability for Damage Caused by Space Objects. It lays down a certain number of rules, some of which fall under the objective liability for risk. This is the case of the provisions of its Article 2, which establishes the absolute international responsibility of the launching State for damage caused by space objects on the surface of the Earth or to aircraft in flight.

On the contrary, in Article 3, the responsibility of launching States, in the case of damage caused elsewhere than on the surface of the Earth to persons or property on board a space object of a another launching State, is a simple responsibility for fault whose foundation must be proved. However, the launching State is not absolutely liable if the accident is the result of gross negligence or intent to cause injury on the part of the requesting State, unless the damage results from a launching State that does not comply with international law.

The launching State is defined as a “State that makes or initiates the launch of a space object or a State whose territory or facilities are used for launching a space object”. For space projects with more than one launching State, that is, when the launching State is different from the launching State, the Convention provides for joint and several liability (it should be noted that although the launching State may be either the one that supplied the satellite or the one that launched it, and therefore jointly and severally liable, the Convention did not provide for the person who made the satellite).

Requests for reparation are made through the diplomatic channel (thus against the States and not against the entities causing the damage). If a settlement cannot be reached, a Claims Settlement Board will be established to determine the merits of the claim for compensation and the amount of compensation to be paid. This will be determined “in accordance with international law and the principles of justice and equity”.

Use of nuclear power sources in Public International Space Law

These questions of responsibility are not purely theoretical if one remembers that various space objects have disintegrated in the atmosphere during unplanned “re-entries”, some of which, having caused damage, have given rise to compensation. For example, the case of Kosmos 954, which on January 24, 1978 disseminated a large amount of radioactive debris over a large area in northern Canada, was settled under a Soviet-Canadian Memorandum of Understanding. As a result of this case, the Canadian delegation referred to the Legal Subcommittee a draft of the Principles for the Use of Nuclear Power Sources in Outer Space, which after fourteen years, was agreed upon at COPUOS and adopted at the December 1992 General Assembly.

All of these principles, contained in resolution 47/68 of December 14, 1992, have the primary objective of limiting the use of these sources of nuclear energy in space to missions that could not be operated by other sources of energy (usually distant missions). They are also intended to supplement the applicable international law standards in this area in order to ensure the safety of nuclear power sources in outer space and to fill the gaps in the existing law, particularly with regard to notification and liability.

In particular, the launching State shall ensure that a comprehensive and detailed safety assessment is carried out according to specific criteria (Principle 3) and inform the States concerned in due time of the impending re-entry into the Earth’s atmosphere of space objects. In addition to these security measures and the return notification, the resolution includes specific provisions on state assistance, liability and redress. Given the rapid changes in technology in this area and radiation protection standards, a review process was put in place two years after the adoption of these principles.

State activities on the Moon

The 1967 Outer Space Treaty makes no distinction between the exploration and use of outer space and those of the Moon, except for military uses. Given the new perspectives offered to humanity by the conquest of the Moon, the adoption of specific rules for the activities of States on the Moon has been made necessary. The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of December 18, 1979 incorporates principles of international law, taking into account the Charter of the United Nations and the Declaration on the Principles of International Law concerning Friendly Relations and cooperation between States of 1970.

The Agreement extends and clarifies the principle of peaceful use, the concept that space is “the prerogative of all mankind” of the 1967 Treaty, declaring in particular that “the Moon and its natural resources constitute the common heritage of humanity” (Article 11). This new concept finds expression in particular in paragraphs 5, 6 and 7 of the same article, which calls on States Parties “to establish an international regime, including appropriate procedures, governing the exploitation of the Moon’s natural resources when such exploitation takes place”.

Thus the Moon Agreement, like the 1982 Law of the Sea Convention, applies the principle of the common heritage of humanity to the Moon and its natural resources. Although both the USSR and the United States of America were in favour of this principle in 1979, they are now in a position of withdrawal from a text they consider too abstract and this restricts their options and goals. It should therefore be noted that although it has been signed and ratified by a dozen States and entered into force in 1984, no State with space capabilities has ratified or incorporated it into its domestic law.

Since the time of great discoveries and especially the first steps on the Moon, space activities have continued to multiply and become ubiquitous in our daily lives. We have indeed moved from the era of research and the discovery of space to that of commercial exploitation. This passage was also accompanied by a de facto militarisation of space. Practical civilian applications of space can be broadly grouped around four major poles: launching, communication, Earth observation and space experiments.

ESA, Europe and the USA

For this new article on Space Legal Issues, let’s have a look at the relationship between ESA, Europe and the USA.

The European Space Agency

Concerning ESA, Europe and the USA, all the European agencies and other European states co-operate in the programs of the European Space Agency (ESA), with which the Canadian Space Agency has a co-operation agreement. The European Space Agency is a major actor in the exploration and use of space.

It also participates in the formation of space law through the internal procedures that it has evolved, through the negotiation of international agreements and through its implementation of international space practices. As its title indicates, it is an international organisation. Immediately after the Second World War, some European states had their own separate programs in rocketry and other technologies. Thus UK efforts to develop in rocketry produced the “Blue Streak” and “Black Knight” programs, but these were not very successful.

By the late 1950s it was clear that co-operation within Europe was necessary to match the financial, technical and intellectual resources of the U.S.S.R. and the United States of America. Europe did not want to be left behind. Thus in the early 1960s, Europe was instrumental in the creation of INTELSAT as an international endeavour, protecting its nascent space industries, but steps had already been taken to bring European space activities together. In 1960, the Council of Europe recommended the creation of a European agency to promote the peaceful uses of outer space and to develop and build a space vehicle.

To that end a European Preparatory Commission on Space Research (COPERS) was set up in 1960. COPERS discussed whether a single European agency should bring forward all European space efforts but decided that launches should be dealt with by a separate organisation, in part because not all European states were as interested in launchers as opposed to space technology. In 1962, therefore, a Convention for the Establishing of a European Organisation for the Development and Construction of Space Vehicle Launchers (ELDO) was adopted, followed by a Convention for the Establishment of a European Space Research Organisation (ESRO), with slightly different parties.

However, the ESRO experience was not happy. In due course, it was appreciated that having two European “space” organisations was not useful, so in 1975 ESRO and ELDO were fused to form the European Space Agency by the Convention for the Establishment of a European Space Agency (ESA), the new organisation working informally for some years before the Convention actually came into force.

Apart from the initial membership, accession is competent provided that all existing members so agree (Art. XXII). Denunciation of the Convention is competent, though financial dues remain exigible for the period until the denunciation takes effect (Art. XIV). The Agency may be dissolved by agreement of its members, and shall be dissolved if its membership drops to less than five (Art. XXV).

On, ESA, Europe and the USA, the purpose of ESA is the promotion of European space research, technology and applications (Art. II). This involves co-operation and the internationalisation of national space programs. To that end, members are obliged to notify ESA of their plans for civil space activity and, within the framework of the Agency, to make available co-operation with other members, though not to the exclusion of co-operation with non-ESA members (Annex IV). ESA itself has operational competence (Art. V).

In respect of ESA activities themselves, due regard is had to the distribution of procurement and other contracts, establishments, facilities, etc. to reflect contribution to ESA activities (Arts. VII and VIII and Annex V). Collaboration with space and other agencies is competent and in practice encouraged (Art. XIV). The exchange of information and data between the Agency and all member states is to be facilitated (Art. III), as is the exchange of personnel (Art. IV).

Technical data and inventions that are the property of the Agency are disclosed to all members and may be used by them free of charge (Art. III). The ESA structure comprises the Council and a Directorate under a Director-General (Art. X). The Council is composed of all members, meeting as required at either delegate or ministerial level (Art. XI). It adopts policy and approves activities and budgets (Art. XI). ESA activities are divided into mandatory activities in which all parties take part and optional activities where a member state may formally declare itself non-participant (Art. V).

The Director General is appointed for a defined term by a two-thirds majority of the Council and may be removed. Assisted by technical and other staff, he is the chief executive officer of the Agency, its legal representative, and is responsible for the implementation of the decisions of Council, the programs and the running of the various establishments in which ESA work is carried out (Art. XII).

The responsibilities of the Director General and staff are exclusively international and they neither seek nor receive instructions from states or agencies other than ESA. States undertake not to seek to influence staff in the discharge of their duties (Art. XII). ESA and its mandatory programs are financed by its members in three-yearly tranches in accordance with a scale relating to national income for the previous three years, no member being, however, required to pay more than twenty-five percent of the total (Arts I, XIII and Annex II).

Optional programs are financed similarly by their participant members (Art. XIII and Annex III). There is provision for dispute settlement by arbitration (Art. XVII). As now constituted, ESA is the main European intergovernmental organisation engaged in space. It must also be noted that, however, other European collaborative agencies also have space interests.

The European Union

Continuing with ESA, Europe and the USA, the other major institution affecting and to a degree now determining European space policy is the European Union. In 2003, a Framework Agreement between the then European Community and ESA was drafted and entered into force in 2004, as the first step toward a formal EU stance as to space and the creation of a Space Council. A White Paper on European Space Policy was also published in 2003.

These steps were followed by a Council resolution on space policy of 2007 aimed at the better co-ordination of space activities between ESA, the EU and their member states. The process has continued with the amendment of the EU basic documents by the Lisbon Treaty of 2009 to include space competence as an EU function.

Recently, the European Commission (EC) published a communication “towards a Space Strategy for the European Union that benefits its citizens”. In this document, the EC emphasises the political and societal role of Space for Europe. Article 189 of the Lisbon treaty confers on the Union a shared space competence. Referring to this new competence, the EC aims at coordinating EU Space programs to counteract a fragmentation of EU Space activities.

To reach this, the EC wants on the one hand to strengthen cooperation with the EU member states, and on the other hand, to consider new rules for cooperation with the European Space Agency (ESA). The role of the ESA should become more flexible in terms of membership and participation opportunities in its programs. Furthermore, a co-existence of civil and military programs should be realised at the ESA.

The European Commission also wants to set up its own Space program with topics based on demands from past Space Councils, the joint ministerial committee of EC and ESA. Aside Galileo, EGNOS and GMES (with its application fields environment and security), security of space assets, critical technologies and exploration are in the focus here. Special roles take the International Space Station (ISS), where all EU member states should get access to, and Kourou which, being Europe’s spaceport, plays a key role in Europe’s independent access to outer space. A high-level international forum is thought to be set up to identify exploration opportunities of international relevance and finally support political decision making.

The United States of America

Finally, on ESA, Europe and the USA, the views and practices of the United States of America heavily influence and interact with space law, though with the rise of other major space-competent states that influence may wane. US space policy is set by the President, and has obvious implications for space law.

President Kennedy’s setting of the goal of getting to the Moon and back by the end of the 1960s was, of course, a major impetus to technical development. Since then, various presidential and congressional commissions have had an effect on space policy, and therefore on law.

Within the US Government, responsibilities at the federal level depend on the nature and impact of the space technology involved. Treaties go through the appropriate procedures for their negotiation, ratification and implementation, and usually will involve the State Department. Naturally, the Defense Department and the military authorities are heavily involved in space matters.

In that most satellites require radio for their functioning, the US Federal Communications Commission (FCC) is engaged both in licensing and in international negotiations such as the various ITU conferences. Licensing space activities is mainly the responsibility of the Federal Aviation Administration, part of the Department of Transportation.

Commerce, environmental agencies and transportation have other obvious space interests. However, the US agency with which space is most clearly associated in the public mind, is the National Aeronautics and Space Administration, NASA. The National Aeronautics and Space Administration (NASA) is an independent agency of the United States Federal Government responsible for the civilian space program, as well as aeronautics and aerospace research.

NASA was established in 1958, succeeding the National Advisory Committee for Aeronautics (NACA). The new agency was to have a distinctly civilian orientation, encouraging peaceful applications in space science. Since its establishment, most U.S. space exploration efforts have been led by NASA, including the Apollo Moon landing missions, the Skylab space station, and later the Space Shuttle. NASA is supporting the International Space Station and is overseeing the development of the Orion Multi-Purpose Crew Vehicle, the Space Launch System and Commercial Crew vehicles. The agency is also responsible for the Launch Services Program which provides oversight of launch operations and countdown management for unmanned NASA launches.

Space Agencies and Space Law

Let’s now focus on Space Agencies and Space Law. Space law is contributed to in other ways. First, national legislation is increasing. International obligations have had to be accommodated within domestic law, and national interests are protected. This body of space-related law is not entirely self-consistent, but it and its vagaries affect general space law. Second are the contributions of international institutions and agencies that engage in or are otherwise involved in space both at the policy and law-making levels.

Space Agencies and Space Law in Eurasia

Policy necessarily works out in law. Obviously, at its simplest level, the agents include the foreign offices, state departments or their equivalent, and the government departments that supervise or control technical matters. Precisely how this works depends on the constitutional arrangements of each state. Thus in China, space policy is set by the State Council and complied with by the relevant departments of government.

India has its own space agency, the Indian Space Research Organisation (ISRO), which operates under the Indian Government. In Russia, much is done through Roscosmos. In a variety of instances, however, governments and national agencies have come together co-operatively to engage in space activities with consequent effects on space law. Of these one obvious example is the European Space Agency (ESA).

Continuing on Space Agencies and Space Law, in Japan, the Japan Aerospace Exploration Agency (JAXA) was born through the merger of three institutions, namely the Institute of Space and Astronautical Science (ISAS), the National Aerospace Laboratory of Japan (NAL), and the National Space Development Agency of Japan (NASDA). It was designated as a core performance agency to support the Japanese government’s overall aerospace development and utilisation. JAXA, therefore, can conduct integrated operations from basic research and development, to utilisation.

Again, various operational national agencies have come together to establish more or less formal international fora to discuss matters of common concern and arrive at compatible procedures and ways of doing things. Such include the Consultative Committee for Space Data Systems (CCSDS), the International Committee on Global Navigation Satellite Systems (ICG), and the Inter-Agency Space Debris Coordination Committee (IADC).

In Europe

Within Europe, on Space Agencies and Space Law, many states have set up a space-related government department or agency. In Italy, the Italian Space Agency (ASI) promotes and co-ordinates space activities. In Spain, the Instituto National de Technico Aeroespacial (INTA) acts as the national space agency. The Danish National Space Center is a research centre within the Ministry of Science, Innovation and Technology.

The French Centre National d’Études Spatiales was founded in 1961 and plays a co-ordinating role in space matters. Its powers are extensive, including the implementation of policy and the execution of space programs in collaboration with academic and industrial partners, which may include military and defence programs. Under a contract with ESA, its Launch Directorate leads on all matters relating to the Ariane launchers and Arianespace, including the supervision of production, marketing and actual launch. CNES also interacts with ESA as a main channel of French interest in that body.

Its task is to invent the space systems of the future, bring space technologies to maturity and guarantee France’s independent access to space. CNES is a pivotal player in Europe’s space program, and a major source of initiatives and proposals that aim to maintain France and Europe’s competitive edge. It conceives and executes space programs with its partners in the scientific community and industry, and is closely involved in many international cooperation programs—the key to any far-reaching space policy.

The German Aerospace Centre (DLR) is the major entity involved in space activities at a governmental level. Acting under a Board of Directors, basically it is both a space research centre and the German Space Agency. In history, the West German Deutsche Forschungs- und Versuchsanstalt für Luft- und Raumfahrt (DFVLR) was formed in 1969 from three related organisations to act as a testing and research institute. It was renamed the Deutsche Forschungsanstalt für Luft- und Raumfahrt (DLR) in 1989. Following the reuniting of East and West Germany, a new single space agency brought together the operational space interests of both former governments in DARA (Deutsche Agentur für Raumfahrtangelegenheiten).

Working through four technical directorates and several Advisory Committees, DARA both formed and executed German space policy, including the overall German Space Program. In a further reorganisation in 1997, DARA and DLR were brought together under the latter’s title. The DLR now conducts research, encourages industry and administers the German space budget as well as interacts with other national space agencies and industries. It is also active in aerospace matters.

In the United Kingdom of Great Britain and Northern Ireland (UK), responsibilities for space used to be dispersed among many government departments. A British National Space Centre (BNSC), established in 1985 and operational until 2010, sought to co-ordinate UK space efforts, the policy being to develop commercially attractive activities. BNSC was reorganised in 2005. A Space Advisory Council replaced a Space Strategy Council, and a Space Board was constituted to give advices on policy. Policy remained the attainment of clear scientific and commercial objectives for which space is effective rather than the development of technology as an end in itself.

Throughout the basic motivation remained commercially biased. On April 1, 2010, the United Kingdom Space Agency (UKSA), an executive agency sponsored by the Department for Business, Innovation and Skills, replaced BNSC. UKSA is now responsible for all strategic decisions on the UK civil space program, and co-operates with other departments including the Ministry of Defence and the Foreign and Commonwealth Office. UK space policy has now expanded to include human spaceflight.

In 2014, UKSA issued a paper on “National Space Security Policy” outlining how the UK is to be made more resilient as to disruption of its space activities both through natural and intentional occurrences. Although technically a UK space licence is granted by a Secretary of State, in fact the UKSA now deals with the licensing of UK space activities under the Outer Space Act, 1986.

The other main UK Government department of direct relevance for space is the Office of Communications established by the Office of Communications Act 2002, with functions and powers set out in the Communications Act 2003. Ofcom deals with all questions of radio – essential in virtually all space activities – and is the notifying administrative agency to the ITU for UK frequency assignments. This is what can be said concerning Space Agencies and Space Law.

The United Nations and Space Law

For this new Space Law article on Space Legal Issues, let’s have a look at the United Nations and Space Law. Within the U.N. system, various agencies deal with space as part of their responsibilities. Fully to enumerate these would be otiose, but the International Telecommunication Union (ITU) (radio) and the World Meteorological Organisation (WMO) (remote sensing) are obvious examples. Others, such as the International Civil Aviation Organisation (ICAO), the International Maritime Organisation (IMO), the World Intellectual Property Organisation (WIPO), and the United Nations Education, Scientific and Cultural Organisation (UNESCO), all have “space interest”.

The United Nations Programme on Space Applications assists nations in using space technology for economic, social and cultural development. There is also a U.N. interagency co-ordination group, the Interagency Meeting on Outer Space Affairs, that is part of the responsibilities of the Office of Outer Space Affairs (UNOOSA). Major matters may also be referred to the U.N. Administrative Committee on Coordination, which, for example, accepted the ITU suggestion of the holding of the World Summit on the Information Society (WSIS).

So far, the U.N. has held three World Conferences on the Exploration and Peaceful Uses of Outer Space (all in Vienna, Austria) together with their technical fora and associated preliminary workshops. These were directed to the development of space activities, encouraging the spread of space technology, and the benefits of space applications particularly for the developing countries.

UNISPACE I was held in 1968, UNISPACE II in 1982, and UNISPACE III in 1999. These have had significant effects and influence, the Vienna Declaration and associated Reports of UNISPACE III being a major statement of priorities and ambitions. In 2018, the U.N. organised UNISPACE+50.

The United Nations Office for Outer Space Affairs

On the United Nations and Space Law, the most obvious forum for developing space law within the operational structures of the United Nations itself is the Committee on the Peaceful Uses of Outer Space, COPUOS. First, however, mention should be made of the Office for Outer Space Affairs (UNOOSA) formerly at UN Headquarters, New York, and now at Vienna.

When COPUOS was established in 1958, it was first serviced by the central U.N. Secretariat as part of the responsibility of the Department of Political and Security Council Affairs. With increasing business and COPUOS becoming permanent, this service group became the Outer Space Affairs Division of that Department in 1968, transmuting into the Office for Outer Space Affairs within the Department for Political Affairs in 1992. Relocating to Vienna in 1993, the Office expanded, inter alia taking over from the Legal Secretariat in New York, secretariat services for the COPUOS Legal Sub-Committee.

Headed by a Director, UNOOSA is now the main node for space affairs within the United Nations. It has two sections, “Space Applications” and “Committee Services and Research”. UNOOSA co-operates with other elements within the U.N. system that have responsibilities for space. It maintains the Register of Space Objects on behalf of the Secretary General and other compilations of space data and documentation. Its databases provide information on space matters (factual and theoretical, including law which is both) to the U.N. system, to U.N. member states, to space-active entities, to academe and to individual researchers.

UNOOSA materials are available on the Internet. It has been very active in disseminating knowledge of the benefits of space and its regulation. UNOOSA maintains a directory of educational opportunities in space law and can provide fellowships for individuals attending seminars. From the later 1990s, and particularly after UNISPACE III, UNOOSA itself and in partnership with other agencies, governments and academic institutions, has organised conferences and training programmes to spread expertise and knowledge as to space law as well as to space applications. Correlatively, in 2014, following consultation with educators and space law experts, UNOOSA published a suggested Education Curriculum on Space Law to encourage teaching.

The Committee on the Peaceful Uses of Outer Space

Continuing on the United Nations and Space Law, the Committee on the Peaceful Uses of Outer Space (COPUOS) was first established as an Ad Hoc Committee of the General Assembly by UNGA Res. 1348 (XIII) on December 13, 1958. One year later, it was made permanent and its membership increased by the similarly titled UNGA Res. 1472 (XIV) of December 12, 1959. That the Assembly saw fit to entrust such matters to a specially denominated committee, recognised the peculiar problems involved, and also that here was a new area of activity – a tabula rasa – calling for new thinking and new procedures.

Certainly as a result, COPUOS has been able significantly to develop space law. Ad Hoc COPUOS began with eighteen members. Membership has increased ever since. This is supposed to equitably represent the interests of the developed and the developing countries, and to provide geographic world coverage.

It is arguable that the tendency to enlargement does represent a democratisation of the development of international law in that more states take part in that development and participate in the discussions and decisions through which progress is made. This allows them to articulate their interests during the process. However, the result may be a lowering of the standard of the eventual text as the urge to reflect all the voices and interests represented may reduce the eventual product to the lowest common denominator, which may be a fudge.

COPUOS works through the main Committee and two sub-committees, the Scientific and Technical Sub-Committee and the Legal Sub-Committee, the latter normally being responsible for the initial drafts in legal matters. Each sub-committee reports to the main Committee, which reports annually to the U.N. General Assembly and every year the Assembly adopts a corresponding resolution. Particular resolutions as to “principles” which states may/should/ought to obey are therefore determined by, and have weight related to, the care with which they have been formulated.

COPUOS and its sub-committees normally proceed by consensus. The one instance in which it did not do so produced UNGA Res. 37/92, the “Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting” of 1982. This Resolution was approved by majority vote both in COPUOS and in the General Assembly. Since almost all the states whose practice it might affect abstained or voted against, it is generally reckoned that this resolution is without significant effect.

The resultant realisation (or confirmation) that a GA resolution is not legislation, and that, though adopted by a majority, it can be rendered ineffective by contrary voting, seems to have strengthened the practice of consensus within COPUOS. However, what does consensus mean, and what is its effect? Consensus is a form of agreement reached without a vote, but does not imply unanimity among the parties.

Absence of dissent is not the same as assent. Abstention from the discussion of a point is not taken to imply dissent, and an individualistic or idiosyncratic interpretation of particular language may therefore be passed over un-noticed by, or even concealed from, other parties. That said, within COPUOS a proposed text, whether it be of a draft treaty, resolution or other formal statement, is negotiated and revised until all are willing to accept it and allow it to go forward. The advantages of consensus are that it facilitates compromise, and, in the case of treaties, parties may be more likely to ratify provisions in whose drafting they have participated.

While the space-competent nations obviously tend greatly to influence matters in COPUOS, other states play a part in the process. Indeed, some are influential through acting as mediators between divergent positions. More importantly, consensus means that the space-competent nations will not get what they want from COPUOS without the consent of the space-incompetent, while the latter will not get their interests represented and articulated without the consent of the space-competent. On the other hand, consensus may result in ambiguity, permitting or masking divergent views as to the exact meaning of a phrase, a provision or even a text.

COPUOS has been valuable in the development of space law. It has developed principles and the treaties establishing many of the ground rules for the exploration and use of space. However, as space law matures and as what is required tends more and more to be private and domestic law solutions for particular problems, it may be that COPUOS will take a back seat, and substantial developments will be found elsewhere. That is what can be said about the United Nations and Space Law.

Where to learn Space Law?

Where to learn Space Law? Teaching is important both in spreading knowledge of space law and for its development. Unsurprisingly, given the number of states and enterprises now active in space, a goodly number of universities and other academic institutions round the world now offer lectures and occasionally courses in space law.

This is helped by UNOOSA, which has published a suggested curriculum that usefully sets out the major areas that ought to be covered. As might be expected, in most instances, space law first emerged as an adjunct to aviation law. Other universities offer a few lectures on space law as part of a general course on Public International Law. In any event, aviation remains the major thrust of the endeavours of most of the specialised institutes that also offer space law, but their influence in space law cannot be gainsaid.

Where to learn Space Law?

So, where to learn Space Law? Chronologically, the Institute of Air and Space Law at the University of Cologne is the oldest specialised institute, though with a hiccup. Begun in 1925 as an Institute of Air Law in Königsberg (now Kaliningrad), it moved to Leipzig in 1929 and to Berlin in 1940 where its library was bombed. In the 1950s, the Institute reopened in Cologne under Professor Alex Meyer and thereafter has gone from strength to strength. The Institute offers taught courses and postgraduate supervision as well as organising symposia and colloquia. It was instrumental in the compilation of the Cologne Commentary on Space Law and publishes the Zeitschrift für Luft- und Weltraumrecht (ZLW).

According to the Library at the Peace Palace in The Hague in the Netherlands, the first Dutch doctoral thesis on air law was published in 1910. It largely drew on analogies from the law of the sea. At Leiden University, a quarter of a century later, formal studies in Air Law began. Space law began in 1961. The Leiden Institute of Air and Space Law was established in 1986. It offers taught courses and postgraduate supervision. Leiden also organises symposia and colloquia, with some concentration on European aspects of space law.

The major other space-law-active academic institution in Europe is the International Space University. Located in Strasbourg, France, the ISU was founded in 1987. It operates at the graduate level, its courses encompassing science, technical, engineering, business and policy aspects of space with a view to training space professionals. Courses are run in a two-month summer session and in a Master’s program.

In 1951, McGill University, Montreal, established an Institute of International Air Law under the Directorship of John Cobb Cooper Jr., a well-known aviation lawyer who had contributed significantly to discussions on space law. The Institute was renamed the Institute of Air and Space Law (IASL) in 1957, and many of its graduates have been active in space law. Apart from teaching and postgraduate research supervision, the IASL organises symposia and colloquia and since 1976, has published annually the Annals of Air and Space Law.

In the United States of America, the Space Policy Institute of the Elliot School of International Affairs of George Washington University, functions mostly in the area that its title indicates. However, policy is a significant factor in the development of space law, and its products are influential, particularly in U.S. developments. Also in Washington, D.C., Georgetown University Law Center offers a course and research supervision in space law.

The University of Mississippi School of Law has been active in space law for many years and established its Journal of Space Law in 1973, publishing articles and data on current developments. The College of Law at the Lincoln Campus of the University of Nebraska has offered a program in Space and Telecommunications Law since 2008. A number of other U.S. universities offer occasional lectures on space law.

Elsewhere in the world

What about the rest of the world, where to learn Space Law? Elsewhere in the world, the study of space law has developed, sometimes through institutes similar to those above, and sometimes through local co-operation between academic and practising lawyers. In France, the University of Paris-Sud runs courses in space law and telecommunications, and space law lectures are part programs in Toulouse, Dijon, and Lyon.

In Spain, the University of Jaen provides teaching in space law and organises colloquia. In South America, the Universidad del Salvador (USAL), a Jesuit university in Buenos Aires, established a chair of Air and Space Law in 1960, and a National Institute of Air and Space Law in 1962. Many Argentine universities offer space law courses or lectures in the subject within programs on Public International Law. Space law is also studied on a similar basis at institutes and law schools in Brazil, Chile, Mexico and Uruguay. National and international conferences and symposia are also held.

In India, unsurprisingly given its emergence as active in space, a number of universities now offer courses or classes in space law. In Japan, several universities teach space law. JAXA, the Japan Aerospace Exploration Agency, is supportive of these efforts. Space law is now available in several Chinese universities. It is taught at the Moscow State Institute of International Law and at the Institute of International Law of the People’s Friendship University. It is also offered at the International Space Law Centre of the University of Kiev, Ukraine.

In 1990, under the leadership of the Legal Advisor to the European Space Agency (ESA), the European Centre for Space Law (ECSL) was established. Associated with the Centre are academics and practitioners in the field. The Centre seeks through National Sections to foster knowledge about space law and its teaching throughout the ESA states. It also maintains collaborative arrangements with similar bodies throughout the world. ECSL holds symposia, colloquia and workshops, and its website provides much documentation as well as links to other space law sites.

Since 1992, the ECSL has run an annual two-week course on space law and policy at different locations throughout Europe for students from European universities. Also since 1992, it has held an annual one-day Practitioners’ Forum at ESA headquarters in Paris, at which experts and practitioners review problems and current developments in a particular area of space law. The ECSL has a permanent observer status at the annual meeting of the COPUOS Legal Sub-Committee, and co-operates with the IISL in presenting a symposium prior to that meeting.

The European Space Policy Institute (ESPI) was established in Vienna in 2005 by decision of the ESA Council. Working both through staff and an Academic Network (ESPRAN), it conducts studies and provides reports on mid- to long-term issues of space policy intended to assist relevant decision-makers. It also publishes a Studies in Space Policy Series.

Apart from the use of space law as examples in other courses, The Hague Academy of International Law has included space law as a specific topic in its annual courses on a number of occasions. In 1998, the Study Session of The Hague Academy was devoted to international telecommunications.

A number of other legal bodies, societies and associations have either given intermittent attention to questions of space law or have sections that deal with such matters. Founded in Brussels in 1873, the International Law Association (ILA) is a non-governmental organisation. Membership is voluntary. Working through branches and international committees, the ILA studies and helps clarify international law. It has consultative status with a number of U.N. specialised agencies and other organisations. Through its Space Law Committee, the ILA has produced a number of reports on space law ranging from consideration of the space law treaties to questions of the commercial use of space.

Similarly, the International Bar Association has an Outer Space Committee which has debated an increasing number of practical, legal, commercial and regulatory issues arising from the development of space businesses. The American Society of International Law has occasionally devoted a meeting to space law matters, and the American Journal of International Law published by the Society has carried a goodly number of articles on space law.

Space Law History 101

This new Space Law article on Space Legal Issues is a Space Law History 101. The launch of Sputnik 1 on October 4, 1957 took the attention of the world. In his non-fiction book Danse Macabre (1981), the horror writer Stephen King tells how the screening of a film in a small-town New England cinema was interrupted. The cinema manager told the audience what had happened, and the screening was abandoned. People went out in a fruitless attempt to try to see the satellite.

Since then, space has transformed modern life. Four decades after Sputnik 1, the Preamble of the “Space Millennium: Vienna Declaration on Space and Human Development” of 1999 accurately included recognition “that significant changes have occurred in the structure and content of world space activity, as reflected in the increasing number of participants in space activities at all levels and the growing contribution of the private sector to the promotion and implementation of space activities”.

Satellites route email, data and other communications to fixed and mobile instruments, and provide multi-channel TV direct to homes and hotels. Global positioning systems allow us to know exactly where aircraft, ships and motor vehicles are, and help navigation. With pocket devices receiving satellite signals, we roam the countryside in relative safety. Remote sensing provides many benefits. Weather is monitored and increasingly accurate predictions made. Typhoons, cyclones, tornadoes and hurricanes are known sometimes days in advance. Ocean health and climatic events such as El Niño and its cognate La Niña are observed and better understood.

We monitor fisheries, land use, farming, deforestation, vegetation coverage and aridity. Animal and bird migration patterns are being discovered. Potential disasters, volcanic and otherwise, are becoming predictable. Satellite technology both informs and aids our reaction to dire events. Space has also allowed major developments in our understanding of the cosmos. The major planets have all been scrutinised (some as yet only briefly).

We have been to the Moon. Robotic rovers explore Mars. Space telescopes have shown something of the beauty and complexity of our cosmos and given astronomers much to work on. Theories have been developed, tested, modified and sometimes abandoned. Space tourism is imminent. There may be residential space stations and settlement on, first, the Moon, and thereafter? All this has involved law, and appropriate law has had to be developed.

What is Space Law?

At its broadest, space law comprises all the law that may govern or apply to outer space and activities in and relating to outer space. There is a central body of space law, but the term should be considered as a label attaching to a bucket that contains many different types of rules and regulations rather than as denoting a conceptually coherent single form of law.

When studying a Space Law History 101, we have to bear in mind that space law is akin to family law or environmental law, where many different laws are denoted by what they deal with rather than derived from the rational development of a single legal concept. Space law is the law of space. Space law is also unusual in that despite all the arguments as to where space is, the location of its operation out there is indeterminate.

Terrestrially it can range from an insurance contract for a particular space launch to the broad principles that govern how states, and the entities they authorise, act in outer space. Space law is therefore sometimes simply the application of the principles of existing domestic law such as contract to a new field of activity. Sometimes it is a formal international treaty. Space law is particulate law, developed to deal with the practical problems of the use and exploration of outer space. Space law is recent law.

Regulation has had to be invented, adopted and implemented, and appropriate procedures developed. Because technical advances have blurred state boundaries and in practice eroded many sovereign competences, international agreement has often become essential.

Space Law History 101

Space law is a modern field of regulation, but, although its birth-date might be thought to be 1957 with that launch of Sputnik 1, its origins lay much further back. Once Sputnik had shown access to space to be practicable, earlier suggestions, discussions and speculations had to be converted into actual rules and practices.

Continuing with Space Law History 101, as the nineteenth century made way for the twentieth, the regulation of aviation appeared on the stage of the world’s interest. International aviation, at first by un-powered balloon and then by dirigible (notably the Zeppelin) drew the attention of lawyers, academic and otherwise, as well as of government and the military. Among various suggestions designed to facilitate air traffic was that there should be a series of zones above the territory of a state on the analogy of the law of the sea – a territorial zone with freedom of flight above that – but these musings in reality were considering only matters of air-space and not space as we now know it.

The eventual result was the affirmation in the Paris Convention of 1919 of the complete and exclusive sovereignty of a state over its superjacent air-space. This principle, which quickly attained the status of dogma, was reaffirmed at Chicago in 1944. Some, however, began to contemplate higher things. What rules might apply or should be adopted to deal with activities in space?

Discussion of outer space as a region requiring particular rules of law took on an immediacy after the Second World War, but the first harbingers were much earlier. In 1910, Emile Laude noted a need for law beyond that for locomotion in the layer of breathable air. Beyond breathable air were layers of unbreathable gas and ether. Laude also noted the potential problems of the ownership and use of the Hertzian (radio) waves and conflated the need for new law for the gaseous layers and those for the Hertzian waves under the name of the law of space.

It was not until 1926 that space law was mentioned as a separate legal category. In the course of a paper mainly on questions of aviation, V.A. Zarzar of the Soviet Air Ministry gave it as his view that there was an upper limit to state sovereignty over air-space, and that a separate legal regime would be required to deal with the arena beyond this upper zone in which international travel by high-altitude flight and interplanetary communication would be free from control by subjacent states.

In 1929, Walther Schoenborn of Kiel University stated the upward limit of the sovereignty of a state as being the boundary of the atmosphere. In 1928, Herman Potočnik of Slovenia, writing under the alias Hermann Noordung, published The Problem of Space Travel: The Rocket Motor. In it, he discussed the establishment of a space station in geostationary orbit for use for Earth observation for civil and military purposes, but he was concerned with technicalities, not legalities.

In our research on a Space Law History 101, in 1932, Vladimír Mandl of Pilsen, Czechoslovakia, attempted specifically to treat of legal matters to do with space, albeit in short compass. Impressed by the activities of various rocket experimenters of the 1920s, he had earlier written about them. Vladimír Mandl conceived of space law as distinct and different from the law of the sea and the law of the air, although he was willing to use some of their concepts as analogues through which solutions to the problems of space might be found. In a section entitled The Future, Mandl suggested that state sovereignty should be restricted in its vertical dimension, and that there should be freedom in the area above and beyond state sovereignty.

Presciently, he also suggested that air law was not suitable for dealing with spacecraft, that, subject only to mitigation by contributory negligence, astronauts should be liable for damage they caused, that spacecraft launched under the sovereignty of a state should when in outer space remain subject to the sovereignty of that state, that the commander of a spacecraft should have authority over its crew, and that the link between an individual and the territorial state of his nationality might change as new communities beyond the Earth developed.

Evgeny Alexandrovich Korovin, a Soviet jurist specialising in international law, presented a paper on The Conquest of the Stratosphere and International Law at an air law conference held in Leningrad in 1933. He rehearsed the pre-First World War arguments in favour of state sovereignty over air-space and acknowledged that some had argued for a free zone above and beyond state sovereignty. However, on grounds of safety and military security, Evgeny Alexandrovich Korovin came down in favour of unlimited state sovereignty.

Science was making advances. Modern rocketry began with the experiments of Konstantin Eduardovich Tsiolkovsky, Robert Hutchings Goddard, Hermann Julius Oberth and others in the early years of the twentieth century. Societies were established to discuss and foster space matters. The Verein für Raumschiffahrt was founded in 1927. The British Interplanetary Society came into being in 1933 and started to publish its Journal in 1934.

By the late 1930s, sufficient progress in rocketry had been made that military interests were aroused, and a blanket of secrecy cast over experiments. However, the German use of the V-2 in the later months of the Second World War revealed the progress that their scientists had made and the potential inherent in such devices. There is nothing like war for producing progress in technology. At the end of the Second World War, both East and West scrambled to augment their own science personnel by expediting the immigration of relevant German scientists apparently without regard to questions of war crimes, and the stage was set.

At first, the military aspects of rocket science had precedence, ballistic and inter-continental missiles being developed. However, the technology was also capable of peaceful use. The International Geophysical Year of 1957 was to introduce satellites for the scientific exploration of the Earth.

Of the more immediate benefits to be brought by space, Arthur Charles Clarke’s suggestion in 1945 of the use of the geostationary orbit for communication satellites is perhaps the most famous. It was also Clarke, however, who Arthur Conan Doyle identifies as the first post-war author to articulate the need for an upper limit on state sovereignty in the interests of both the development of space science and its applications, as he did in a 1946 lecture that was triggered by the statement of U.S. General Henry H. Arnold that the design of a true spaceship was all but practicable today.

Arthur C. Clarke also observed that action would be needed to forestall extraterrestrial imperialism and consequent conflict. Arthur Conan Doyle further notes that various other concepts relevant to space activities also began to appear in the 1940s. That the Moon is the common heritage of mankind was stated by one of the members of the Council of the British Interplanetary Society in 1949. However, the idea that an area or region might be set aside under international control for peaceful scientific purposes only emerged in relation to Antarctica.

The birth of Space Law Institutions

After the Second World War, a variety of international associations and bodies, ranging from academe to government, became important fora for the expression of views and suggestions as to what law should govern in matters of outer space. Articles began to be written, and in due course there were books.

The International Astronautical Federation (IAF), the International Academy of Astronautics (IAA) and the International Institute of Space Law (IISL). The founding of the International Astronautical Federation (IAF) in 1950 was an important development. Although not many papers at its early congresses were directed to questions of law, the IAF provided and provides a major forum for the discussion of questions relating to the exploration and use of space, and for the dissemination of information by and between its participants both at meetings and through the series Acta Astronautica and the Proceedings of the International Institute of Space Law.

In 1960, the IAF established the International Academy of Astronautics (IAA), membership of which is prised by individuals active in all forms of space activities. Like those of the academies of classical times, its purpose is to bring together individuals to exchange ideas and experience and thereby to contribute to the advancement of space and astronautics. The IAA has four sections: Basic Science, Engineering Sciences, Life Sciences and Social Sciences, law falling within the last of these. Membership is through election by the existing members. Full members are elected for life. Corresponding members are elected for five years but may be considered for election as full members after two years.

Continuing with a Space Law History 101, the eighth IAF International Congress on Astronautics was held in October 1957, four days after the launch of Sputnik 1. It elected as IAF President Andrew Gallagher Haley, a U.S. lawyer who had for some years been active within the IAF and in the promotion of space law. It was therefore not surprising that the Congress also decided to establish a special IAF committee under the chairmanship of John Cobb Cooper Jr. to define the respective areas of jurisdiction for air and space law.

A year later, in 1958, a Colloquium on Space Law attracted to The Hague forty-four participants from ten countries. It resolved that a Permanent Legal Committee should be established within the IAF, open to jurists of associations affiliated to the IAF, to study problems of space law which might be included in an international convention. The IAF Congress accepted this later in 1958.

At a London Colloquium of 1959, the name of the Permanent Legal Committee was changed to the International Institute of Space Law and the constitution and byelaws of the Institute were accepted by the Bureau of the IAF at the eleventh IAF Congress, Stockholm 1960. The International Institute of Space Law continues to hold annual colloquia during the congresses of the IAF. Apart from at least one general session, each colloquium concentrates on three or four main topic areas. Their proceedings form a significant contribution to the corpus of space law. In addition, starting in 2001, the Institute has held occasional regional colloquia in parts of the world remote from the location of recent IAF congresses.

Since 1992, the Institute has also run the Manfred Lachs Space Law Moot Court Competition (MLMC), an international competition open to students and named for the former President of the Institute. Regional finals of the competition are held for North America, Europe, Africa and Australasia. The world final is held as part of the annual IISL Colloquium and is judged by three judges of the International Court of Justice. In co-operation with the European Centre for Space Law (ECSL), the IISL presents a workshop/symposium at the annual meeting of the COPUOS Legal Sub-committee and since 2008, has had official status as an observer at COPUOS sessions. This is what can be said on a Space Law History 101.

Dragonfly, a drone soon on Titan

For the fourth mission of the “New Frontier” exploration program, Dragonfly, NASA decided to send a 2-meter-long drone to explore Titan, Saturn’s satellite, and the only moon in the Solar System to have an atmosphere. Its mission: to detect traces of life.

Titan is unique in having an abundant, complex, and diverse carbon-rich chemistry on the surface of a water-ice-dominated world with an interior water ocean, making it a high-priority target for astrobiology and origin of life studies. On June 27, 2019, Dragonfly was selected to become the fourth mission in the New Frontiers program.

The New Frontiers program

The New Frontiers program is a series of space exploration missions being conducted by NASA with the purpose of researching several of the Solar System bodies, including the dwarf planet Pluto. NASA is encouraging both domestic and international scientists to submit mission proposals for the program.

New Frontiers was built on the innovative approach used by the Discovery and Explorer Programs of principal investigator-led missions. It is designed for medium-class missions that cannot be accomplished within the cost and time constraints of Discovery, but are not as large as Large Strategic Science Missions (formerly known as Flagship missions or Flagship-class missions, these missions were the costliest and most capable NASA science spacecraft).

There are currently three New Frontiers missions in progress: New Horizons, which was launched in 2006 and reached Pluto in 2015, Juno, which was launched in 2011 and entered Jupiter’s orbit in 2016, and OSIRIS-REx, a NASA asteroid study and sample-return mission launched in September 2016.

Dragonfly, the fourth mission of the “New Frontier” exploration program, is a planned spacecraft and mission that will send a mobile robotic rotorcraft lander to Titan, the largest moon of Saturn, in order to study prebiotic chemistry and extraterrestrial habitability at various locations where it will perform vertical-take-offs and landings.

Dragonfly, a drone soon on Titan

The mission should be launched in 2026 to arrive at its destination eight years later on Titan, the largest moon of Saturn, in 2034. But unlike the missions sent to Mars, it will not be a rover which will explore the satellite, but a drone. Once there, the drone Dragonfly mission will detach from the capsule parachuted in the atmosphere of Titan, activate its eight rotors, and begin an exploration mission planned to last two and a half years.

Due to an atmosphere four times denser and seven times lower than the Earth’s, the American space agency has indeed preferred this new means of exploration for the fourth mission of the “New Frontier” exploration program. The octocopter drone will have to travel more than one hundred and seventy-five kilometres on the surface of the satellite, a distance greater than twice that travelled by the entirety of the rovers deployed on Mars.

The drone, with a wingspan of more than two meters and equipped with eight propellers, will be powered by a radioisotope thermoelectric generator, just like the Martian Curiosity rover. It will embark on board four measuring instruments. Dragonfly is an astrobiology mission to Titan to assess its microbial habitability and study its prebiotic chemistry at various locations. Dragonfly will perform controlled flights and vertical take-offs and landings between locations, while powered by a radioisotope thermoelectric generator.

If NASA chose this mission, it is because Titan is very similar to the early Earth. It has, just like the Earth, oceans on its surface. But these are composed of hydrocarbon, mainly methane, made liquid by the ultra-low temperatures of the satellite, of minus one hundred and eighty degrees Celsius in average. If its atmosphere is, as on Earth, mostly composed of nitrogen, it rains on the other hand methane.

Visiting this mysterious oceanic world could revolutionise what we know about life in the universe”, said NASA Administrator Jim Bridenstine. The Dragonfly drone will have a well-filled course, made in “bounds” of about nine kilometres: it will arise in particular places to collect samples, equatorial dunes of Shangri-La, which resemble the linear dunes of Namibia, at Selk crater, where there would be liquid water and organic substances, complex molecules that contain carbon, combined with hydrogen, oxygen and nitrogen, essential elements for the appearance of life.

The Dragonfly mission will consist in looking for biochemical processes similar to those that could exist on Earth, even to find signs of life, extinguished or, better still, in activity. “It is remarkable to imagine this drone flying miles and miles across the organic sand dunes of Saturn’s largest moon, examining the processes that have shaped this extraordinary environment”. Dragonfly will explore a world filled with a wide variety organic molecules, which are the bricks of life and could help us break into the origin of life itself.

According to NASA, the thirteen years of data collected by the Cassini-Huygens spacecraft have determined an ideal landing site for the upcoming mission, with stable weather conditions. This mission ended in September 2017: the probe had plunged into the atmosphere of Saturn. Expected to remain four years in orbit around the planet, it had orbited around for thirteen years, not without having placed a probe, Huygens, on the surface of Titan before, as recalled Jean-Pierre Lebreton of ESA: “Huygens was not conceived as a lander; Titan’s surface was unknown. In fact, initially when Huygens was conceived, Titan’s surface was thought to be covered by a global ocean. We could not see through Titan’s atmosphere so we did not know anything about the geology of the surface. Huygens was designed as a parachute descent probe, and the main measurement was done during this two and a half-hour descent. Fortunately, Huygens landed on the surface and Cassini received data for seventy minutes”.

The Cassini probe, thanks to its infrared measuring instrument, made it possible to complete these data by mapping the satellite of Saturn, considered as a proto-Earth. “We also talked about Earth in the freezer” said Jean-Pierre Lebreton; “I’m not sure that’s a good expression, but it turns out that Titan is a very rich world, very dynamic, it’s certainly cold but it is not frozen at all, but it is an extremely dynamic atmosphere, where there is intense fluvial activity. There is a cycle of methane in Titan’s atmosphere and on its surface as there is a water cycle on Earth is a much more fascinating world than the frozen Earth phenomenon we have evoked”.

The mission will involve flights to multiple different locations on the surface, which allows sampling diverse regions and geological contexts. Titan is a compelling astrobiology target because its surface contains abundant complex carbon-rich chemistry and because both liquid water and liquid hydrocarbons can occur on its surface, possibly forming a prebiotic primordial soup.

The Electromagnetic Spectrum

The family of electromagnetic (EM) waves, the electromagnetic spectrum, permeates the cosmos. Much of the EM spectrum is invisible to our eyes but all parts – from radio waves to gamma rays – have been characterised, mostly in the 20th century CE. This article introduces the concept of waves as well as the nature of electric and magnetic fields, based on the observations of Hans Christian Ørsted and Michael Faraday.

Likewise, the intimate relationship between variable electric and magnetic fields as revealed by James Clerk Maxwell and Heinrich Hertz is examined. In addition, the wave particle “duality” of EM radiation, including the ideas of Albert Einstein and Max Planck, is considered. Throughout the article, special attention is given to space-related aspects of the EM radiation such as multi wavelength astronomy, which involves looking at the universe in different parts of the spectrum.

The Electromagnetic Spectrum’s history

For most of history, visible light was the only known part of the electromagnetic spectrum. The ancient Greeks recognised that light travelled in straight lines and studied some of its properties, including reflection and refraction. The study of light continued, and during the 16th and 17th centuries, conflicting theories regarded light as either a wave or a particle.

The first discovery of electromagnetic radiation other than visible light came in 1800, when William Herschel discovered infrared radiation. He was studying the temperature of different colours by moving a thermometer through light split by a prism. He noticed that the highest temperature was beyond red. He theorised that this temperature change was due to “calorific rays” that were a type of light ray that could not be seen.

The next year, Johann Ritter, working at the other end of the spectrum, noticed what he called “chemical rays” (invisible light rays that induced certain chemical reactions). They were later renamed ultraviolet radiation.

Electromagnetic radiation was first linked to electromagnetism in 1845, when Michael Faraday noticed that the polarisation of light travelling through a transparent material responded to a magnetic field. During the 1860s, James Clerk Maxwell developed four partial differential equations for the electromagnetic field. Two of these equations predicted the possibility and behaviour of waves in the field. Analysing the speed of these theoretical waves, James Clerk Maxwell realised that they must travel at a speed that was about the known speed of light. This startling coincidence in value led James Clerk Maxwell to make the inference that light itself is a type of electromagnetic wave.

James Clerk Maxwell’s equations predicted an infinite number of frequencies of electromagnetic waves, all travelling at the speed of light. This was the first indication of the existence of the entire electromagnetic spectrum.

The Electromagnetic Spectrum

Everything in the universe emits some kind of “light” (electromagnetic radiation or “EM” radiation, for short) but often it is not the kind of light that we are used to (our eyes can see just a small part of the electromagnetic spectrum, the so-called visible part). This visible part consists of the colours that we see in a rainbow. Each of these colours actually corresponds to a different energy and a different wavelength (for example, blue light has more energy and a shorter wavelength than red light). EM waves always carry energy and the energy is directly related to its frequency.

Beyond the red part of the visible spectrum lie types of EM radiation which are invisible to our eyes and have increasingly long wavelengths: infrared, microwave and radio waves. Beyond the blue part of the visible spectrum lie different types of radiation which are also invisible and have increasingly short wavelengths: ultraviolet, X-rays and gamma-rays.

The electromagnetic spectrum is the range of frequencies (the spectrum) of electromagnetic radiation and their respective wavelengths and photon energies. The electromagnetic spectrum covers electromagnetic waves with frequencies ranging from below one hertz to above 1025 hertz, corresponding to wavelengths from thousands of kilometres down to a fraction of the size of an atomic nucleus.

This frequency range is divided into separate bands, and the electromagnetic waves within each frequency band are called by different names; beginning at the low frequency (long wavelength) end of the spectrum these are: radio waves, microwaves, infrared, visible light, ultraviolet, X-rays, and gamma rays at the high-frequency (short wavelength) end.

The electromagnetic waves in each of these bands have different characteristics, such as how they are produced, how they interact with matter, and their practical applications. The limit for long wavelengths is the size of the universe itself, while it is thought that the short wavelength limit is in the vicinity of the Planck length (a unit of length that is the distance light travels in one unit of Planck time).

Gamma rays, X-rays, and high ultraviolet are classified as ionising radiation as their photons have enough energy to ionise atoms, causing chemical reactions. Exposure to these rays can be a health hazard, causing radiation sickness, DNA damage and cancer. Radiation of visible light wavelengths and lower are called non-ionising radiation as they cannot cause these effects.

In most of the frequency bands, a technique called spectroscopy can be used to physically separate waves of different frequencies, producing a spectrum showing the constituent frequencies. Spectroscopy is used to study the interactions of electromagnetic waves with matter.

The Physical Basis of Electromagnetic Waves

In the 1800s, James Clerk Maxwell and Heinrich Rudolf Hertz studied how EM waves are formed and how fast they travel. James Clerk Maxwell formulated elegant mathematical equations which showed that electromagnetic waves are formed when an electric field couples with a magnetic field. Magnetic and electric fields of an EM wave are perpendicular to each other and to the direction of the wave. The frequency of an EM wave is determined by the frequency of vibration (oscillation) of charges in the source.

The Wave-Particle Duality of light

A fundamental property of EM radiation is that it can interact with matter in a number of characteristic ways. Under certain conditions it behaves like a wave (reflection, refraction, polarisation, interference, and so on). However, Albert Einstein tried to explain the so-called photoelectric effect, whereby some metals emit electrons when exposed to light. He realised that this effect could not be explained if light existed exclusively as waves. He argued that if light also consisted of individual particles (later called photons), they could result in electrons being ejected from the metallic atoms.

In this way, Albert Einstein explained light’s dual personality: sometimes it behaves as a wave while at other times it behaves a particle. A perfect black body is a theoretical object that is a perfect absorber of the radiation that hits it. Hence, it is also a perfect emitter (of radiation). Max Planck explained the emission of a hot black body by assuming that the energy is carried by discrete “bundles” or “packets” (photons).

The San Remo Manual

The San Remo Manual on International Law Applicable to Armed Conflicts at Sea was adopted in June 1994 by the International Institute of Humanitarian Law after a series of round table discussions held between 1988 and 1994 by diplomats and naval and legal experts. It is “the only comprehensive international instrument that has been drafted on the law of naval warfare since 1913”.

The San Remo Manual is a legally recognised document but is not binding on states. The San Remo Manual is a codification of customary international law, an integration of existing legal standards for naval conflict with the Geneva Conventions of 1949 and Protocol I of 1977. The San Remo Manual is broken into six parts that each discuss a different section of the law.

The San Remo Manual

The San Remo Manual was prepared at the end of the 1980s and the beginning of the 1990s by a group of legal and naval experts participating in their personal capacity in a series of Round Tables convened by the International Institute of Humanitarian Law. The purpose of the San Remo Manual is to provide a contemporary restatement of international law applicable to armed conflicts at sea.

The San Remo Manual includes a few provisions which might be considered progressive developments in the law, but most of its provisions are considered to state the law which is currently applicable. The San Remo Manual is viewed by the participants of the Round Tables as being in many respects a modern equivalent to the Oxford Manual on the Laws of Naval War Governing the Relations Between Belligerents adopted by the Institute of International Law in 1913.

A contemporary manual was considered necessary because of developments in the law since 1913, which for the most part, have not been incorporated into recent treaty law, the Second Geneva Convention of 1949 being essentially limited to the protection of the wounded, sick and shipwrecked at sea. In particular, there has not been a development for the law of armed conflict at sea similar to that for the law of armed conflict on land with the conclusion of Protocol I of 1977 additional to the Geneva Conventions of 1949.

Although some of the provisions of Protocol I affect naval operations, in particular those supplementing the protection given to medical vessels and aircraft in the Second Geneva Convention of 1949, Part IV of the Protocol, which protects civilians against the effects of hostilities, is applicable only to naval operations which affect civilians and civilian objects on land.

Article 1 of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, June 12, 1994, states that “The parties to an armed conflict at sea are bound by the principles and rules of international humanitarian law from the moment armed force is used”. Article 2 adds that “In cases not covered by this document or by international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of the public conscience”.

Article 3 enounces that “The exercise of the right of individual or collective self-defence recognized in Article 51 of the Charter of the United Nations is subject to the conditions and limitations laid down in the Charter, and arising from general international law, including in particular the principles of necessity and proportionality”.

Article 4 declares that “The principles of necessity and proportionality apply equally to armed conflict at sea and require that the conduct of hostilities by a State should not exceed the degree and kind of force, not otherwise prohibited by the law of armed conflict, required to repel an armed attack against it and to restore its security”.

Article 5 affirms that “How far a State is justified in its military actions against the enemy will depend upon the intensity and scale of the armed attack for which the enemy is responsible and the gravity of the threat posed”.

Article 51 of the UN Charter

Chapter VII of the United Nations Charter 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 (the United Nations Security Council subsidiary body whose role, as defined by the United Nations Charter, is to plan UN military operations and assist in the regulation of armaments) 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 United Nations was established after World War II and the ultimate failure of diplomacy despite the existence of the League of Nations in the years between the First and Second World War. The Security Council was thus granted broad powers through Chapter VII of the UN Charter as a reaction to the failure of the League. These broad powers allow it to enjoy greater power than any other international organisation in history. It can be argued that the strong executive powers granted to it give it the role of “executive of the international community” or even of an “international government”.

Chapter VII of the UN Charter on “Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”, Article 51, 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”.

Article 51 provides for the right of countries to engage in self-defence, including collective self-defence, against an armed attack (including cyber-attacks). This article was the impetus for much international pact-making and has been cited by the United States as support for the Nicaragua case and the legality of the Vietnam War. According to that argument, “although South Vietnam is not an independent sovereign State or a member of the United Nations, it nevertheless enjoys the right of self-defense, and the United States is entitled to participate in its collective defense”. Article 51 has been described as difficult to adjudicate with any certainty in real-life.

This Article 51 of the UN Charter is particularly vague: it does not define what constitutes an attack. Is the seizure of ships or aircraft an attack? Is the accidental or intentional violation of another country’s airspace an attack? Is industrial espionage an attack? Is a spy satellite taking photographs of military installations an attack? It does not define what constitutes an armed attack. For example, is a cyber-attack an armed attack?

It does not define “collective self-defence”. Does the attacked nation need to request assistance or can other nations pre-emptively intervene and claim their intervention constitutes collective self-defense? Requiring the attacked nation to request assistance might seem like the most responsible position, but this requires that the United Nations Security Council determine who the original aggressor and defender are. This determination may not be possible or delivered in a timely manner.

Article 51 of the United Nations Charter is sufficiently vague to allow states to assert their right to self-defense without escalating a conflict. While either side in a conflict may see the other as the aggressor acting beyond mere self-defense, Article 51 is vague enough that neither side can prove the other has acted offensively. This vagueness can aid in, if not the de-escalation of conflicts, preventing the rapid escalation of conflicts.

The Manual on International Law Applicable to Military Uses of Outer Space

Launched in May 2016, the Manual on International Law Applicable to Military Uses of Outer Space (MILAMOS) Project aims to develop a widely-accepted manual clarifying the fundamental rules applicable to the military use of outer space in peacetime.

From the provision of cellular phone signals to navigation, from banking to weather forecasting, disaster monitoring and agriculture, space technology and the utilisation of space-generated data have become intertwined with our daily lives. Devastating consequences would follow if access to outer space were to be interrupted or interfered with through actions undertaken during armed conflict.

Many international efforts have been directed towards preventing an arms race in outer space and establishing transparency and confidence among States in the conduct of their space activities. Unfortunately, none of these efforts has addressed the issue of belligerent behaviour during hostilities and the difficult question of when and under what circumstances it is lawful for nations to resort to hostilities in or through space.

The Manual on International Law Applicable to Military Uses of Outer Space

The MILAMOS Project was originally conceived and publicly inaugurated at McGill University in May 2016. The Project, as proposed, promoted and presented to various stakeholders and financial benefactors, is to develop a widely-accepted manual (the McGill Manual) that clarifies the fundamental lex lata (existing) rules applicable to military uses of outer space by both States and non-State actors in times of peace, in times of rising tensions, and in times of armed conflict.

The resultant manual will fill the legal lacunae with respect to issues that for decades have been the source of debate and disagreement among policy makers, legal practitioners, military strategists, and academics. The target audience will be much broader than just the military establishments, and the scope and practical use of Manual will be beyond periods of armed conflict.

From the outset, the Manual is intended to cover the legal ramifications of all military uses of outer space, to reflect legal viewpoints from across the globe, and to attract a broad audience in academia, the legal profession, and policy circles. Reflecting the fact that many space objects may be used simultaneously for military and non-military purposes (i.e. are “dual-use” capable), and that many space activities may entail a military use of outer space despite not being performed or owned by military establishments or personnel (if armed forces contract services from the private sector), the McGill Manual will be intended for use by a wide spectrum of space operators, stakeholders, experts, and interest groups (officials from various ministries or department of government, private space actors, civil society, academics and others) with an interest in the security and sustainability of space activities.

Methodologically speaking, the Manual will examine the broad range of military uses of outer space (as widely understood) and determine, through an intensive and interactive process of deliberations and consensus-forming between members of a select Group of International Experts, the relevant principles and rules of international law that apply to such military uses of outer space.

The McGill Manual would treat disciplines of general international law, international space law, international law on the use of force and international humanitarian law as equal and essential parts of the Manual. In objectively determining the applicability of lex lata rules of international law, legal maxim will be used after careful examination and having taken into account the applicable rules of various branches of international law as well as specificities of the outer space environment, which are invariably different from other terrestrial domains.

Analogies from other domains, as well as the processes and successes of other manuals, may be drawn as a guide to identifying the applicable rules, but only after very careful analysis of the nature, scope, impact and implications of each space activity/action that directly or indirectly are military in nature. Partners from across the globe are actively engaged to ensure that the McGill Manual accurately captures the nuances and perspectives of different States and relevant stakeholders, and is reflective of the wide spectrum of interests and concerns relating to the military uses of outer space.

The Peaceful Uses of Outer Space

In 1959, the UN General Assembly established the Committee on the Peaceful Uses of Outer Space (COPUOS) in Resolution 1472 (XIV). This committee identified areas for international cooperation in the peaceful uses of outer space, devised programs to be undertaken by the United Nations, encouraged research on matters relating to outer space, and studied legal problems arising from the exploration of outer space.

During the 1960s and 1970s a number of agreements were adopted to prevent the weaponisation of outer space. These include the Partial Test Ban Treaty, formally titled the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (1963), the Outer Space Treaty, formally titled the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967), the Rescue Agreement, formally titled the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968), the Agreement Relating to the International Telecommunications Satellite Organization “Intelsat” (1971), the Liability Convention, formally titled the Convention on International Liability for Damage Caused by Space Objects (1972), the Launch Registration Convention, formally titled the Convention on the Registration of Objects Launched into Outer Space (1975), the Moon Agreement, formally entitled the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979).

Although these treaties ban the placement of weapons of mass destruction in outer space, they do not prevent states from placing other types of weapons in outer space. As a result, many states argue that existing treaties are insufficient for safeguarding outer space as “the common heritage of mankind”. In order to address this, the final document of the UN General Assembly’s Special Session on Disarmament mandated that negotiations should take place in what is now the Conference on Disarmament (CD), “in order to prevent an arms race in outer space” that are “held in accordance with the spirit of the Outer Space Treaty”.

In 1985 the CD established an ad hoc committee to identify and examine issues relevant to a PAROS treaty, Prevention of an Arms Race in Outer Space (peaceful uses of outer space) such as the legal protection of satellites, nuclear power systems in space, and various confidence-building measures. The United States of America resolutely opposed giving the committee a negotiating mandate, preferring bilateral talks with the Soviet Union. The committee convened each year through 1994. No further committee meeting occurred due to objections made by the United States of America. In 1990, the United States of America stated that it “has not identified any practical outer space arms control measures that can be dealt with in a multilateral environment”. With its large missile defense program and technical advantages in potential space weaponry, the United States has consistently refused to negotiate PAROS in the CD.

On June 10, 2014, Russia introduced to the Conference on Disarmament an updated draft of its working paper with China, “Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects”.

An introduction to Remote Sensing

For this new Space Law article on Space Legal Issues, let’s have an introduction to Remote Sensing. Remote sensing is defined by the English Oxford Dictionary as “the scanning of the Earth by satellite or high-flying aircraft in order to obtain information about it”. Remote sensing is the acquisition of information about an object or phenomenon without making physical contact with the object and thus in contrast to on-site observation, especially the Earth. Remote sensing makes it possible to collect data of dangerous or inaccessible areas.

The goal of this article is to provide an introduction to the basics of satellite remote sensing with a special focus on the principles, characteristics, analysis, and applications of remote sensing data acquired in different parts of the electromagnetic spectrum. Topics include the principles and characteristics of remotely sensed imagery, various remote sensing systems, and the methods used to collect remote sensing data.

The history of applications and development of remote sensing are discussed, as well as the fundamentals of electromagnetic radiation and its interactions with the Earth’s surface and atmosphere. This article will discuss sensor characteristics, satellite orbits, and various current and future missions involving a range of sensors across the visible, infrared, and microwave components of the spectrum. A variety of examples of remote sensing applications for examining and monitoring environmental questions are described.

Types of remote sensing missions and applications

There are many different space remote sensing satellites in use today, including a wide variety of weather, military, civil, commercial, and scientific systems. Satellite remote sensing systems are useful for collecting information on environmental variables such as climatic and atmospheric radiation and chemistry, ocean dynamics and productivity properties, geographic and topographic locations, and land-biosphere characteristics.

Specific information that can be derived from remote sensing imagery include: land use and land cover; land surface temperature; soil type and moisture; vegetation biomass; sea surface temperature; bathymetry; atmospheric temperature and humidity; wind speed; cloud and aerosol properties; volcanic effects; and snow, sea, and polar ice distribution and thickness. Because satellite sensors estimate most of these variables indirectly, there are significant issues with assessing accuracy and error in remote sensing-derived maps. It is important to consider all of these characteristics and traits of remote sensing systems and imagery when considering which satellite data-sets to choose for any project or application.

Passive sensors gather radiation that is emitted or reflected by the object or surrounding areas. Reflected sunlight is the most common source of radiation measured by passive sensors. Examples of passive remote sensors include film photography, infrared, charge-coupled devices, and radiometers. Active collection, on the other hand, emits energy in order to scan objects and areas whereupon a sensor then detects and measures the radiation that is reflected or back-scattered from the target.

Electromagnetic theories in application to remote sensing

Most remote sensing devices detect variations in electromagnetic energy. The electromagnetic spectrum is the range of all types of electromagnetic energy according to frequency or wavelength, ranging from shorter wavelengths (ultraviolet) to longer wavelength (near infrared, thermal, microwave). The atmosphere itself causes significant absorption and/or scattering of the very shortest wavelengths. A spectral signature is the degree to which energy is reflected in different regions of the spectrum by different Earth surface materials, enabling them to be detected by visual or digital means from remotely sensed imagery. Finding distinctive spectral response patterns is the key to most procedures for computer-assisted interpretation and digital processing of satellite images.

It is important to understand that satellite communications works in synergy with terrestrial communications. It forms only a small part of the total communication bandwidth, and is only practical for a select number of communication tasks.

Orbits used in remote sensing

Earth observation satellite systems generally operate in two major orbits: (a) Geostationary Earth Orbits (GEO), and (b) polar or sun synchronous orbits. Geostationary Earth Orbits are located about thirty-six thousand kilometres above the Earth, resulting in an orbital period equal to the Earth’s rotational period; thus, the satellites appear motionless or stationary to ground observers. Other polar (sun synchronous) orbiting remote sensing platforms cover most of the Earth’s surface over a certain period of time in a manner covering each area of the world at a constant local time of day (called local sun time) which ensures consistent illumination conditions.

Resolution

Resolution is a specific term used in remote sensing to describe the level of precision in the gathered data. In remote sensing, we generally consider four major types of resolution: Spatial, Spectral, Temporal, and Radiometric. Spatial resolution is the size of the pixel, which is dependent on the sensor type, field of view, altitude, and viewing angle of the sensor. Spectral resolution refers to the number of wavelength regions or bands in the electromagnetic spectrum to which the sensor is sensitive. Temporal resolution is a measure of how often data are collected for the same area (revisit times). Radiometric resolution is a measure of the sensitivity of a sensor to differences in the intensity of the electromagnetic radiation measured.

Gathering information remotely

Types of remote sensors can be divided further into non-scanning and scanning systems. Scanning systems employ a sensor with a narrow field of view sweeping over the terrain to collect and produce a two-dimensional image of the Earth’s surface. Reflected or emitted energy from observed objects is captured in digital picture elements called pixels. A multispectral scanning system collects data over a range of wavelengths, acquiring imagery in two main modes or methods: across-track scanning and along-track scanning. Other types of systems in operation include radar systems, thermal sensors, and hyperspectral sensors.

RADAR and Lidar

In an introduction on Remote Sensing, RADAR and Lidar are examples of active remote sensing where the time delay between emission and return is measured, establishing the location, speed and direction of an object.

Radar is a detection system that uses radio waves to determine the range, angle, or velocity of objects. It can be used to detect aircraft, ships, spacecraft, guided missiles, motor vehicles, weather formations, and terrain. A radar system consists of a transmitter producing electromagnetic waves in the radio or microwaves domain, a transmitting antenna, a receiving antenna (often the same antenna is used for transmitting and receiving) and a receiver and processor to determine properties of the object(s). Radio waves (pulsed or continuous) from the transmitter reflect off the object and return to the receiver, giving information about the object’s location and speed.

Radar was developed secretly for military use by several nations in the period before and during World War II. The term RADAR was coined in 1940 by the United States Navy as an acronym for RAdio Detection And Ranging; the term radar has since entered English and other languages as a common noun, losing all capitalisation.

Lidar, sometimes LIDAR, LiDAR, or LADAR, is a surveying method that measures distance to a target by illuminating the target with pulsed laser light and measuring the reflected pulses with a sensor. Differences in laser return times and wavelengths can then be used to make digital 3D representations of the target. The name LIDAR, now used as an acronym of light detection and ranging (sometimes light imaging, detection, and ranging), was originally a portmanteau of light and radar. Lidar is sometimes called 3D laser scanning, a special combination of a 3D scanning and laser scanning. It has terrestrial, airborne, and mobile applications. Lidar is commonly used to make high-resolution maps, with applications in geodesy, geomatics, archaeology, geography, geology, geomorphology, seismology, forestry, atmospheric physics, laser guidance, airborne laser swath mapping (ALSM), and laser altimetry. The technology is also used in control and navigation for some autonomous cars. This is what can be said in an introduction on Remote Sensing.

The Convention on the Regulation of Antarctic Mineral Resource Activities

In our research on Space Law and resources, it is interesting in this new Space Legal Issues article to have a look at the (failed) Convention on the Regulation of Antarctic Mineral Resource Activities. “NOTING the unique ecological, scientific and wilderness value of Antarctica and the importance of Antarctica to the global environment”, it is important to understand how the Convention on the Regulation of Antarctic Mineral Resource Activities was written, and how would have been regulated Antarctic Mineral Resource Activities.

The Convention on the Regulation of Antarctic Mineral Resource Activities was concluded at Wellington on June 2, 1988. New Zealand is the depository of the Convention on the Regulation of Antarctic Mineral Resource Activities. Signed by nineteen states, the Convention on the Regulation of Antarctic Mineral Resource Activities has never been ratified. Therefore, the Convention has not entered into force and has been replaced by the 1998 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).

The Convention on the Regulation of Antarctic Mineral Resource Activities

The preamble states that “REAFFIRMING that it is in the interest of all mankind that the Antarctic Treaty area shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord”. It is interesting to read the notion of “peaceful purposes” reaffirmed by the failed Convention. Let’s recall that it is one of the founding aspects of Space Law.

It then continues with “NOTING the possibility that exploitable mineral resources may exist in Antarctica” and “BEARING IN MIND also that a regime for Antarctic mineral resources must be consistent with Article IV of the Antarctic Treaty and in accordance therewith be without prejudice and acceptable to hose States which assert rights of or claims to territorial sovereignty in Antarctica, and those States which neither recognise nor assert such rights or claims, including those States which assert a basis of claim to territorial sovereignty in Antarctica”.

The preamble then adds “RECOGNISING that Antarctic mineral resource activities could adversely affect the Antarctic environment or dependent or associated ecosystems”. Would it be the same in outer space? Could space mining activates (on the Moon, Mars or on asteroids) adversely affect outer space? It continues with “BELIEVING that the protection of the Antarctic environment and dependent and associated ecosystems must be a basic consideration in decisions taken on possible Antarctic mineral resource activities”.

Finally, “CONCERNED to ensure that Antarctic mineral resource activities, should they occur, are compatible with scientific investigation in Antarctica and other legitimate uses of Antarctica”, “CONVINCED that participation in Antarctic mineral resource activities should be open to all States which have an interest in such activities and subscribe to a regime governing them and that the special situation of developing country Parties to the regime should be taken into account”, and “BELIEVING that the effective regulation of Antarctic mineral resource activities is in the interest of the international community as a whole”.

Article 1 on DEFINITIONS states that “Antarctic mineral resource activities means prospecting, exploration or development, but does not include scientific research activities within the meaning of Article III of the Antarctic Treaty” and “Prospecting means activities, including logistic support, aimed at identifying areas of mineral resource potential for possible exploration and development, including geological, geochemical and geophysical investigations and field observations, the use of remote sensing techniques and collection of surface, sea floor and sub-ice samples. Such activities do not include dredging and excavations, except for the purpose of obtaining small-scale samples, or drilling, except shallow drilling into rock and sediment to depths not exceeding 25 metres, or such other depth as the Commission may determine for particular circumstances”.

Article 2 of the Convention on OBJECTIVES AND GENERAL PRINCIPLES states that “1. This Convention is an integral part of the Antarctic Treaty system, comprising the Antarctic Treaty, the measures in effect under that Treaty, and its associated separate legal instruments, the prime purpose of which is to ensure that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord. The Parties provide through this Convention, the principles it establishes, the rules it prescribes, the institutions it creates and the decisions adopted pursuant to it, a means for: assessing the possible impact on the environment of Antarctic mineral resource activities; determining whether Antarctic mineral resource activities are acceptable; governing the conduct of such Antarctic mineral resource activities as may be found acceptable; and ensuring that any Antarctic mineral resource activities are undertaken in strict conformity with this Convention.

2. In implementing this Convention, the Parties shall ensure that Antarctic mineral resource activities, should they occur, take place in a manner consistent with all the components of the Antarctic Treaty system and the obligations flowing therefrom. 3. In relation to Antarctic mineral resource activities, should they occur, the Parties acknowledge the special responsibility of the Antarctic Treaty Consultative Parties for the protection of the environment and the need to: a. protect the Antarctic environment and dependent and associated ecosystems; b. respect Antarctica’s significance for, and influence on, the global environment; c. respect other legitimate uses of Antarctica; d. respect Antarctica’s scientific value and aesthetic and wilderness qualities; e. ensure the safety of operations in Antarctica; f. promote opportunities for fair and effective participation of all Parties; and g. take into account the interests of the international community as a whole”.

This Article 2 is the heart of the Convention, reaffirming that “the prime purpose of which is to ensure that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord”.

Article 6 of the Convention on COOPERATION AND INTERNATIONAL PARTICIPATION enounces that “In the implementation of this Convention cooperation within its framework shall be promoted and encouragement given to international participation in Antarctic mineral resource activities by interested Parties which are Antarctic Treaty Consultative Parties and by other interested Parties, in particular, developing countries in either category. Such participation may be realised through the Parties themselves and their Operators”.

Article 8 of the Convention on RESPONSE ACTION AND LIABILITY declares that “1. An Operator undertaking any Antarctic mineral resource activity shall take necessary and timely response action, including prevention, containment, clean up and removal measures, if the activity results in or threatens to result in damage to the Antarctic environment or dependent or associated ecosystems. The Operator, through its Sponsoring State, shall notify the Executive Secretary, for circulation to the relevant institutions of this Convention and to all Parties, of action taken pursuant to this paragraph.

2. An Operator shall be strictly liable for: damage to the Antarctic environment or dependent or associated ecosystems arising from its Antarctic mineral resource activities, including payment in the event that there has been no restoration to the status quo ante; loss of or impairment to an established use, as referred to in Article 15, or loss of or impairment to an established use of dependent or associated ecosystems, arising directly out of damage described in subparagraph (a) above; loss of or damage to property of a third party or loss of life or personal injury of a third party arising directly out of damage described in subparagraph (a) above; and reimbursement of reasonable costs by whomsoever incurred relating to necessary response action, including prevention, containment, clean up and removal measures, and action taken to restore the status quo ante where Antarctic mineral resource activities undertaken by that Operator result in or threaten to resulting damage to the Antarctic environment or dependent or associated ecosystems”.

In situ resource utilization

Celestial bodies – including the Moon or near-Earth objects (NEOs) such as asteroids – are naturally forming objects found beyond Earth’s atmosphere. Many planets, moons and asteroids contain a rich diversity of inert physical substances such as metals, along with gases and water that could be used as energy sources and means to sustain human life as we venture deeper into space. Many of the metals found within the Moon and other celestial bodies are already scarce on Earth. One day, we may use them not only to construct equipment in space but transport them back to support terrestrial activities, employing on Earth the technologies developed to explore and mine resources in outer space.

In space exploration (the discovery and exploration of celestial structures in outer space by means of evolving and growing space technology), in situ (which means “in its original position or place” in Latin) resource utilization (ISRU) is the practice of collection, processing, storing and use of materials found or manufactured on other astronomical objects (the Moon, Mars, asteroids, etc.) that replace materials that would otherwise be brought from Earth.

ISRU could provide materials for life support (a group of devices that allow a human being to survive in space), propellants (a chemical substance used in the production of energy or pressurised gas that is subsequently used to create movement of a fluid or to generate propulsion of a vehicle, projectile, or other object), construction materials, and energy to a spacecraft payloads or space exploration crews. It is now very common for spacecraft and robotic planetary surface mission to harness the solar radiation found in situ in the form of solar panels.

The use of ISRU for material production has not yet been implemented in a space mission, though several field tests in the late-2000s demonstrated various lunar ISRU techniques (using regolith) in a relevant environment. ISRU has long been considered as a possible avenue for reducing the mass and cost of space exploration architectures, in that it may be a way to drastically reduce the amount of payload that must be launched from Earth in order to explore a given planetary body (any secondary body in the Solar System that has a planet-like geology).

The law of salvage

The law of salvage is a principle of Maritime Law whereby any person who helps recover another person’s ship or cargo in peril at sea is entitled to a reward commensurate with the value of the property salved. Maritime law is inherently international, and although salvage laws vary from one country to another, generally there are established conditions to be met to allow a claim of salvage.

Salvage could be defined as “Any act or activity to assist a vessel, or any other property in danger, in navigable waters, or in any other waters whatsoever”. The English Oxford Dictionary defines salvage as “Rescue (a wrecked or disabled ship or its cargo) from loss at sea”. The general definition of salvage as a maritime term is, “a reward for saving property at sea”. Reward for saving life has also come up, but historically, salvage has to do with the saving of property.

History

With its origins in antiquity, the basis of salvage is that a person helping another at sea is putting himself and his vessel at risk and should be appropriately rewarded. A related consideration was to prevent piracy, since any vessel in peril might well be abandoned to pirates if the owner did not reward an honest salvor. The law of salvage has been recognised for centuries in such documents as the Edicts of Rhodes, the laws of the Romans, the Justinian Digest, the Medieval Laws of Oleron (the first formal statement of “maritime” or “admiralty” laws in Northwestern Europe), and the Code of the Hanseatic League.

The law of salvage

Salvage, in maritime law, is the rescue of a ship or its cargo on navigable waters from a peril that, except for the rescuer’s assistance, would have led to the loss or destruction of the property. Under some jurisdictions, aircraft may also be salved. Except for salvage performed under contract, the rescuer, known as the salvor, must act voluntarily without being under any legal duty to do so, apart from the general duty to give assistance to those in peril at sea, or to stand by after a collision.

So long as the owner or his agent remains on the ship, unwanted offers of salvage may be refused. A derelict (a vessel found entirely deserted or abandoned without hope or intention of recovery) is, however, fair game for anyone who comes across it. Typical acts of salvage include releasing ships that have run aground or on reefs, raising sunken ships (or their cargo), putting out fires, and so on.

The legal entitlement to a salvage reward arises when a person, acting as a volunteer (that is, without any pre-existing contractual or other legal duty so to act) preserves or contributes so to preserving at sea any vessel, cargo, freight, or other recognised subject of salvage from danger.

The popular belief that a salvor becomes the owner of the property, at least if it was abandoned by the owner or was derelict, is erroneous. The owner may always reclaim his property from the salvor on paying salvage money. The salvor, for his part, has a maritime lien on the salved property (in an amount determined by national statute or juridical custom) and need not return the property to the owner until his claim is satisfied or until security to meet an award is given. An owner who elects not to reclaim his property cannot be made liable for a salvage reward. Much salvage is carried out under contract by professional salvors. Ordinarily, such salvors get nothing unless the salvage is to some degree successful.

The law of salvage is the result of the Latin negotiorum gestio concept. Negotiorum gestio (Latin for “management of business”) is a form of spontaneous voluntary agency in which an intervenor, the gestor, acts on behalf and for the benefit of a principal (dominus negotii), but without the latter’s prior consent. The gestor is only entitled to reimbursement for expenses and not to remuneration, the underlying principle being that negotiorum gestio is intended as an act of generosity and friendship and not to allow the gestor to profit from his intermeddling. This form of intervention is classified as a quasi-contract (or implied-in-law contract or constructive contract), a fictional contract recognised by a court. The notion of a quasi-contract can be traced to Roman law and is still a concept used in some modern legal systems.

The legal background

The Brussels Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea is a treaty on marine salvage that was concluded on September 23, 1910, in Brussels (Belgium). The Brussels Convention forms the basis of current international marine salvage law. The Convention was amended on May 27, 1967 and overridden in some countries by the 1989 International Convention on Salvage, which took effect in 1996.

The 1989 International Convention on Salvage replaced a convention on the law of salvage adopted in Brussels in 1910 which incorporated the “no cure, no pay” principle under which a salvor is only rewarded for services if the operation is successful. Although this basic philosophy worked well in most cases, it did not take pollution into account. A salvor who prevented a major pollution incident (for example, by towing a damaged tanker away from an environmentally sensitive area) but did not manage to save the ship or the cargo got nothing. There was therefore little incentive to a salvor to undertake an operation which has only a slim chance of success.

The 1989 Convention seeks to remedy this deficiency by making provision for an enhanced salvage award taking into account the skill and efforts of the salvors in preventing or minimising damage to the environment. The 1989 Convention introduced a “special compensation” to be paid to salvors who have failed to earn a reward in the normal way (by salving the ship and cargo). Damage to the environment is defined as “substantial physical damage to human health or to marine life or resources in coastal or inland waters or areas adjacent thereto, caused by pollution, contamination, fire, explosion or similar major incidents”.

The compensation consists of the salvor’s expenses, plus up to thirty percent of these expenses if, thanks to the efforts of the salvor, environmental damage has been minimised or prevented. The salvor’s expenses are defined as “out-of-pocket expenses reasonably incurred by the salvor in the salvage operation and a fair rate for equipment and personnel actually and reasonably used”. The tribunal or arbitrator assessing the reward may increase the amount of compensation to a maximum of one hundred percent of the salvor’s expenses, “if it deems it fair and just to do so”. If, on the other hand, the salvor is negligent and has consequently failed to prevent or minimise environmental damage, special compensation may be denied or reduced. Payment of the reward is to be made by the vessel and other property interests in proportion to their respective salved values.

The Lloyd’s Open Form, formally “Lloyd’s Standard Form of Salvage Agreement”, and commonly referred to as the LOF, is a standard form contract for a proposed marine salvage operation. Originating in the late 19th century CE, the form is published by Lloyd’s of London and is the most commonly used form for international salvage. Innovations in the LOF 1980 have engendered a major change in environmental salvage.

The space law of salvage?

Let’s recall that Article V 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) affirms 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. In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties. States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the Moon and other celestial bodies, which could constitute a danger to the life or health of astronauts”.

It is really interesting to understand that this Article V is at the basis of the idea of solidarity in outer space. When human beings in outer space are in trouble, the Public International Space Law obligates “the astronauts of one State Party” to “render all possible assistance to the astronauts of other States Parties”.

It would be interesting to think about an application of the law of salvage in outer space: if a space object (a component, a stage orbiting in LEO, a module from the ISS, a satellite…) was to be endangered, and if a company/State (Article VI) was to help the company/State (Article VI) at risk, how would the situation be dealt with? The law obligates “the astronauts of one State Party” to “render all possible assistance to the astronauts of other States Parties”; could there be a compensation for help?

This question might especially be interesting in the case of space debris and Active Debris Removal (ADR). Active Debris Removal (ADR) is necessary to stabilise the growth of space debris, but even more important is that any newly launched objects comply with post-mission disposal guidelines – especially orbital decay in less than twenty-five years. If this were not the case, most of the required ADR effort would go to compensate for the non-compliance of new objects. Studies performed with long-term evolution models like DELTA have shown that a “business as usual” scenario will lead to a progressive, uncontrolled increase of object numbers in LEO, with collisions becoming the primary debris source. We might have tomorrow new ways of acting in outer space which would lead to a potential space law of salvage.

Why explore space?

Why explore space? Why do we want to explore outer space, the cosmos and the stars? Today, space activities are frequently justified on the basis of economic or policy rationales, or the benefits deriving from space spinoffs. Yet the dream of spaceflight is as old as Humanity and found in cultures around the world. So what drives us to explore the cosmos?

Are we genetically programmed for exploration, or is it the product of social/cultural factors? This new article on Space Legal Issues will explore the cultural, spiritual, social, and philosophical motivations that underpin humanity’s interest in moving beyond its home planet and reaching for the stars.

Why explore space?

Former NASA Administrator Mike Griffin described two types of answers: “acceptable reasons” and “real reasons”. The “real reasons” have deep roots in human culture, spirituality, psychology and social needs and provide the cultural rationales for space activities. Analysis of the oldest myths indicates that the desire to reach for the stars is part of Humanity’s ancient spiritual quest to understand its place in the cosmos.

Acceptable Reasons could be summarised this way: Economic/policy rationales, Military/national security rationales, Scientific knowledge gained, and Benefits deriving from space spinoffs. Real Reasons could be summarised that way: Curiosity, Challenge/Adventure, Exploration/Discovery, and Knowledge/Inspiration.

Curiosity and the Urge to Explore

Why explore space? Curiosity about the world around us is a basic human trait, which is linked to the urge to explore. Some anthropologists believe this urge is genetic and may even be considered the primary force in evolution. Curiosity enabled us to develop tools and technology, allowing a more rapid adaptation to different environments than normal evolution would permit. In this view, space exploration can be seen as the continuation of millennia of human exploration.

An alternate view is that the desire to explore is not genetic, but a social activity that arises and diminishes in different cultures at different times, depending upon the availability of suitable motivations, resources (or lack of resources), opportunities, and so on. In this case, there may only be a limited window in which to establish a solid infrastructure for ongoing space activities, before other issues on Earth cause a retreat from exploring the cosmos for a time.

Cultural Dynamism and the Social Value of Challenge

Why explore space? Cultural systems must remain dynamic and evolving in order to survive: if they become static they lose vitality, they stagnate, and decline. The decline of medieval China after its 15th century CE decision to close itself off from the outside world is a good example of this principle. The Space Race between the United States of America and the U.S.S.R. was also an example of cultural dynamism in action. Space exploration is seen as a positive means of promoting cultural dynamism through the exploration and utilisation of new environments and resources.

Some human societies and individuals thrive on challenge. Meeting challenges is seen as a way of channelling potentially destructive individual or social energies into positive goals. Space exploration in the 20th century CE was seen as a national challenge, undertaken as evidence of a vigorous culture and superior political ideology.

Spaceflight as a Cultural Monument

Why explore space? Throughout history, cultures have chosen to expend wealth on “monuments” to demonstrate their power and vitality. The development of spaceflight can be seen as the 20th century CE equivalent of such a monument.

Post-Space Age Cultural Rationales

In recent decades, additional cultural rationales have arisen. Spaceflight capability is seen as a survival strategy for Humanity in the event of a major asteroid impact, global nuclear war, or environmental catastrophe. Settlements on the Moon, Mars, or in space colonies would ensure the survival of the human race. Fascination with spaceflight has also been seen as a means to encourage young people to study STEM (Science, Technology, Engineering and Mathematics) subjects at school and college level, while space tourism has been promoted on the basis of allowing increased numbers of people to experience the Overview Effect and thus improve intercultural understanding.

Is Spaceflight Our Destiny?

Why explore space? Some philosophical concepts, such as Russian “Cosmism”, or the American idea of “Manifest Destiny” promote the view that the expansion of Humanity into the Solar System and beyond is not only beneficial, but inevitable. Human beings have a destiny to explore and colonise the cosmos. Yet other nations have seen spaceflight as a challenge and/or an opportunity, without believing it to be their destiny.

Russian cosmism is a philosophical and cultural movement that emerged in Russia in the turn of the 19th and 20th centuries CE. Cosmism entailed a broad theory of natural philosophy, combining elements of religion and ethics with a history and philosophy of the origin, evolution, and future existence of the cosmos and humankind. It combined elements from both Eastern and Western philosophic traditions as well as from the Russian Orthodox Church.

Among the major representatives of Russian cosmism was Nikolai Fyodorovich Fyodorov (1828 – 1903), an advocate of radical life extension by means of scientific methods, human immortality, and resurrection of dead people. In 1881, Russian revolutionary and rocket pioneer Nikolai Kibalchich proposed an idea of pulsed rocket propulsion by combustion of explosives.

Konstantin Tsiolkovsky (1857 – 1935) was among the pioneers of theoretical space exploration and cosmonautics. In 1903, he published The Exploration of Cosmic Space by Means of Reactive Devices, the first serious scientific work on space travel. Konstantin Tsiolkovsky believed that colonising space would lead to the perfection of the human race, with immortality and a carefree existence. He also developed ideas of the “animated atom” as well as “radiant mankind”.

Manifest Destiny was a widely held belief in the 19th century CE United States of America that its settlers were destined to expand across North America. There are three basic themes to Manifest Destiny: the special virtues of the American people and their institutions, the mission of the United States of America to redeem and remake the west in the image of agrarian America, and an irresistible destiny to accomplish this essential duty. There was never a set of principles defining Manifest Destiny, therefore it was always a general idea rather than a specific policy made with a motto.

Frederick Merk (August 15, 1887 – September 24, 1977), an American historian, says this concept of Manifest Destiny was born out of “a sense of mission to redeem the Old World by high example generated by the potentialities of a new Earth for building a new heaven”.