Mathilde Minet

Understanding the Advisory opinion on Western Sahara (1975)

For this new article on Space Legal Issues, let us have a look at the Advisory opinion on Western Sahara (1975). During colonisation and conquest times, several methods of acquiring spaces were used. For example, in the 15th and 16th Centuries we used the theory of attribution, by which the Pope notably allocated American lands to Portugal and Spain, and the theory of discovery: a territory was under the sovereignty of the person who discovered this land and therefore by extension of the State which made the mission of exploration.

Another widely used method is that of the actual occupation of so-called “masterless land”. This method was mainly claimed by the colonising States in the 18th Century. To do this, we must first explain the concept of land without a master, or terra nullius. This covers both uninhabited and unsuitable land spaces, but also inhabited spaces but whose social organization differs from that of Western states. It’s a method which has been mainly used on the African continent. Before the Western States had to take into account the populations, even if their political and social organization were different. It was common to deal with peoples to obtain the surrender of the territories where they were established.

It is this notion of terra nullius that was at the center of the advisory opinion Western Sahara of the International Court of Justice in 1975, the Advisory opinion on Western Sahara (1975). Western Sahara is a land located on the northwest coast of Africa, south of Morocco and west of Mauritania. It was and still is a land populated by nomadic tribes. This territory was occupied by Spain during the 20th Century until 1975, when Spain wished to no longer have this region under its protectorate. A dispute has started between neighbouring countries over which one would be to take over from Spain. Hence this opinion of the Court which aimed to clarify the status of this territory. Two questions have been asked to the Court of Justice: was Western Sahara at the time of colonisation by Spain a territory belonging to no one (terra nullius)? What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?

The documents provided to the Court showed that Sahara at the time was inhabited by people who were socially and politically organised in tribes. Even if their organization differed from the Western one, the Court could not declare Western Sahara as terra nullius. Regarding the first question, the Court ruled that at the time of the colonisation by Spain, Western Sahara was not a territory belonging to no one.

The notion of “legal ties” should be interpreted as ties which could influence the policy to be followed for the decolonisation of Western Sahara. For the Court, the parties must provide evidence demonstrating an exercise of authority during the Spanish colonisation. Morocco has presented acts such as the collection of taxes, military acts of resistance to a foreign invasion in the territory of Western Sahara, international treaties in which the other states recognized Morocco’s sovereignty over this territory. For the Court, these acts do not show international recognition of the legal ties of territorial sovereignty between Western Sahara and Morocco. However, it recognized the existence of a legal link between the Sultan and certain nomadic tribes. Despite social, religious, linguistic, cultural and economic ties, the Court explained that there were no common institutions or bodies between Western Sahara and the Mauritanian entity. On the other hand, the Court considered that the nomadic populations of the Mauritanian group had rights, and which constituted legal links between Western Sahara and the Mauritanian group.

Regarding the second question, the Court declared that there were legal ties between Western Sahara and the Kingdom of Morocco and between Western Sahara and the Mauritanian entity. The court recognized and confirmed the links between Western Sahara and Morocco and the Mauritanian group, but specified that these were not enough to establish the existence of a link of territorial sovereignty. It appeared from the advisory opinion that the principle of self-determination must apply to Western Sahara. As of today, Western Sahara is still considered a non-autonomous territory according to the United Nations, that is to say a territory considered to be non-decolonised and whose population is not yet completely self-administered.

The Polisario front relies on the fact that the overwhelming majority of the population living in this territory wants independence and does not want to ally with a neighbouring country. Morocco uses the Madrid agreements and historical links between the Sahrawi tribes and the sultans of Morocco as arguments for its sovereignty over the territory of Western Sahara. These agreements were signed in 1975 and by which Spain, Morocco and Mauritania defined the conditions of the withdrawal of Spain from Western Sahara and the distribution of the territory between Morocco and Mauritania.

Since the Spanish left in 1976, this territory has still not defined its legal status. Its administration is claimed both by Morocco, by the Sahrawi Arab Democratic Republic (proclaimed by the Polisario Front in 1976, a movement which seeks to achieve total independence of Western Sahara) and by Mauritania. The international scene has different opinions about the future of this territory. Among other actions, the United Nations organised negotiations between the parties, but these were unsuccessful. Peter van Walsum, former special envoy to the UN Secretary General, said that as long as Morocco does not abandon its claim to sovereignty, Western Sahara can never become independent. The Arab League supports Morocco and wishes this territory of Western Sahara to be an integral part of Morocco. The United States of America has told them it will not support a plan to create a new state in Africa. In conclusion, the situation in Western Sahara is still uncertain and is not likely to change soon.

The Norwegian Space Law

Let us have a look for this new space law article on Space Legal Issues at the Norwegian Space Law. It’s almost a general truth to say that the collective mind associates the history of Norway with the Vikings and their thirst for world conquest. Throughout their history and their travels, the Vikings were established all over the European continent, from Greenland to Portugal all the way through France and Estonia. At the time, their military and commercial powers were undeniable. Because of their skills and technological advance, the Vikings even reached North America in 986, more than 500 years before Christopher Columbus did it.

To be the first country to enter into force a national space law therefore seemed to be part of this tradition of conquest that has animated the country over the past centuries. Norway has always seemed to want to discover and know the world without imposing its presence somewhere.

As is often borne out by discussion, the term “national space law” is used with a considerable degree of variation in scope. In the broader sense, it would encompass all law on a national level exclusively or predominantly applicable to outer space or space activities. Thus, a law creating a national space agency as such would already be labelled a national space law. Even broader, all national law exercising substantial impact upon space activities could be qualified as national space law, including for example legislation related to financing of mobile assets, insurance of certain activities, or general tort liability rules to the extent applicable (also) to space activities. Under such definitions, a considerable number of states would qualify as states having some sort of national space law(s).

However, very often such broad definitions loose their distinctiveness, and hence their value as an analytical tool. The major legal development within space activities over the last two or three decades is the increasing private involvement therein; therefore, a narrower definition of national space law as only that law which deals substantively with (the regulation of) private space activities.

Considering the Norwegian Space Law, the distinctive characteristic of the Norwegian Act of 1969 is that it only contains three paragraphs. Short but effective. The main article states that anyone launching an object into outer space from Norwegian territory or facilities requires permission from the Minister of Trade and Industry. The following paragraphs specify that only the Ministry can issue regulations on control of activities such as launching objects into outer space and that this act enters into force immediately.

A point which seems interesting enough to note is that this act submit the launching of an object into space to an authorisation if it’s done on the Norwegian territory but also if the launching is done from a territory without sovereignty and made by a Norwegian citizen. This act is therefore assigned a rationae personae competence. Following this act, the Norwegian Space Law, Norway ratified the United Nations’ Outer Space Treaty in July 1969.

Previously called the Andoya Rocket Range, the Andoya Space Centre is the only entity to benefit from the authorisation to launch objects from Norway territory into outer space: it enjoys a strategic geographical position, located very to the north, with limited air traffic and large bodies of water around. This launch point also has great experience with the launch for sixty years of sounding rockets. This space center could be the first spaceport on mainland Europe. Its main objective would be to launch satellites for Earth observation and communications. Although Norway is not a Member State of the European Union, the country is part of ESA since 1987 and actively participates in its activities.

The Norwegian space program specialises mainly in satellites. But Norway also specialized in the field of sounding rockets and has contributed to their development. Sounding rockets are rockets that test instruments that will be used on satellites and spacecraft in order to provide information about the Sun, stars, galaxies and Earth’s atmosphere and radiation. The country also contributed to missions such as Spacelab 1 and 2, the ESA’s cluster mission and the joint ESA/NASA mission SOHO, among others.

In 2013, the Norwegian Ministry of Trade and Industry delivered a report in which it draw the outlines of the Norwegian space policy. It lays down the four goal that the Norwegian government set. The first one is to keep settling in the space market so that growth and employment continue to increase. As described in the report, Norway’s participation in many ESA projects has enabled the country to be of a sufficient importance to be able to face market competitors. The next goal is to continue to meet the important needs of society. The third goal set by the Norwegian government is to increase Norway’s participation in the international space collaboration and more precisely into ESA’s programs. Eventually, the fourth and final main goal is to improve the quality of the Norway national administration of space activity by having more experts that would be able to identify national needs and judge the quality of technical proposals.

The report uses a term that rightly describes the Norwegian space policy, but also the Norwegian way of functioning in general. This term is “pragmatic”. Norway never intended to establish a colony on Mars but rather to use space to meet the needs of its people. With this perspective in mind, Norway has therefore established three priorities. The first one is to give the country the means to have a space-based service offer than can meet the needs of its population. Then, the country wants to develop its high tech economy and finally wants to strengthen its research capabilities. Currently, the Norwegian government is preparing a new space strategy as well as an update for the Norwegian space law.

As well, it appears from this report that Norway seems to have an almost environmental approach to space. The country wants to use space in a sustainable and respectful way. Especially regarding the exploitation of resources on the Moon and Mars, the country wishes to guarantee equal access for everyone and that the profits from this exploitation be redistributed equitably. In the future, Norway could therefore emerge as the model to follow for a respectful use of space or could try to influence the future space laws and policies in order to enforce principles of fair and sustainable use of space and its resources.

History of the French Hermes spaceplane

For this new space law article, let us have a look at the French Hermes spaceplane. In Greek mythology, Hermes is a deity of Olympus. His main mission is to be the messenger of the Gods. The name Hermes was surely chosen in reference to this function, the French spaceplane representing a bridge between Earth and the rest of space.

This project was part of an endless human dream: reaching for the stars and beyond. It all began in the 1980’s when the United States of America and the Soviet Union were the only two leaders in the space race. Major steps had already been taken through the Vostok mission, which send the first human, Yuri Gagarin, into outer space and through the Apollo program, which send the first humans on the Moon. During the 1970s and 1980s, the race for space conquest slowed down and stabilised itself as the technologies were getting safer. However there were still only two great powers participating in this race.

Europeans decided to enter the market by launching the Ariane space program in 1973, in order for Europe to be more independent from space powers, therefore from the United States of America or the Soviet Union. Yet, the aim of the Ariane space program was, and still is, to be able to put satellites into orbit. No manned flight was planned. This is why in parallel to the development of the Ariane launcher, another program started to appear: the Hermes spaceplane.

The roots of the program first developed themselves in French minds. At the beginning, it was solely a French project: the National Centre for Space Studies, or CNES, proposed in 1975 a spaceplane design. Despite the French roots, the program has grown into a European program. As the costs kept increasing, France understood that it would need the help of its European partners in order to carry out this project. The project was therefore designed as a spaceplane that would provide an independent access to space for Europe, thus allowing the old continent to enter the space conquest. More than that, it was about ensuring “human access” to space.

Starting as a small spaceplane, the project soon evolved, by 1984, into a small mini space shuttle capable of carrying four to six people to outer space, in addition with a five tons payload. The human mind has always had the delusions of grandeur, and that is why it has sinned in this project. The desire to send more and more passengers and cargo into space, and the desire, in fine, to arrive first in the race, started a vicious circle.

Indeed, as explained above, the small spaceplane evolved into a space shuttle capable of carrying several people as well as a significant cargo. When the project was designed, the goal was to use the Ariane launch vehicle to launch the French Hermes spaceplane, thus ensuring a full European program. Nonetheless, the project designers realised that the Hermes mini space shuttle was too heavy for the existing Ariane launch vehicle. It was decided to upgrade the Ariane launch vehicle so as to support the European space shuttle.

However, by 1986, the estimated costs of the French Hermes spaceplane had grown exponentially, up to one and a half billion dollars. But the costs did not stop at the sole design of the Hermes space shuttle: the amount of the adaptation of the Ariane launcher reached the sum of 2 billion dollars. The year 1986 brought more bad news: in addition to the concerns related to the increase in costs, which did not seem to stabilise, there was the Challenger disaster. The Challenger disaster refers to the explosion of the NASA space shuttle, called Challenger, in January 1986. The explosion occurred only seventy-three seconds after liftoff and claimed the lives of all seven astronauts aboard of the space shuttle. This disaster was caused by two rubber O-rings, which sealed the joints of the shuttle’s solid rocket boosters, which had failed due to the cold temperatures on the morning of the launch. This tragedy truly impacted the NASA space program but also had many consequences on the space programs of other countries and thus on the Hermes spacecraft project. One of the major consequences was the strengthening of safety standards. This tragedy made the industry, as well as the people, realise the gravity of the consequences if a security measure is not respected.

Consequently, adaptations were made on the Hermes spaceplane project in order to answer these safety questions. Thus, instead of taking six astronauts, the European space shuttle would only carry three astronauts. The payload mass was also reduced from five tons to three tons. Moreover, the Ariane launcher had, again, to be upgraded as the spaceplane was getting heavier. This again generated many additional development costs.

The cost of the project increased so much that, at the beginning of the 1990’s, it eventually reached the estimated sum of four and a half billion dollars. Although the project was European, it was mainly funded by three countries: France, which provided forty per cent of the funding, Germany and Italy. But the Germans have often expressed reservations about this project. Indeed, they often wanted to leave the program, mainly because of safety concerns and growing costs, but due to their own space program, they needed the Hermes space shuttle.

Difficulties started to emerge in the 1990’s. First, mergers were announced in order, perhaps, to centralise the conception, the costs, among a lot of factors. The ESA and CNES teams formed only one team as well as the four main industrial contractors which formed the “Euro Hermespace” management company. Despite the numerous efforts made to sustain the project, the costs kept growing and growing, reaching the staggering sum of six billion dollars. The project took on huge proportions, quickly becoming out of control. The viability of the project was starting to weaken. Actions needed to be taken.

The Hermes spaceplane project shows us two things: how an idea can become a concrete and feasible project when European cooperation is successful but also, how a project can be nullified from the moment when the European cooperation begins to no longer work, when countries can’t exchange anymore. Several times, meetings were organised in order to decide on the future of the project and to lay down the future guidelines to follow. But the countries participating in the project failed to reach to an agreement and the project was postponed.

What started in the 1980’s as a European space shuttle that could take up to six people into outer space has been reduced to a technology demonstration, with no man onboard, called the “Hermes X-2000” project. Its cost was reduced to two billion dollars. With the aim in mind of reducing costs as much as possible, cooperation with Russia has even been taken into consideration. But the pitfall of such a cooperation is the non-negligible decrease of the independence the project was supposed to give to Europe. The idea was, for Europe, to be able to have an independent way to access space, without relying on the United States of America, nor the Soviet Union, and be part of the great space power.

But then again, in 1992, the Hermes X-2000 project was downsized, its cost went from two billion dollars to four hundred and five millions dollars. Despite all the efforts made to save the project, it was in the end abandoned as it was judged too pricey and too uncertain. Unlike the United States of America, France does not have an individual vision of space. The country has allied with European countries but also with the international scene in order to be able to develop a cooperation as well as an international program of development and conquest of space. The failure of this project allowed us to learn a lesson: unity is strength.

Understanding the North Sea Continental Shelf cases (1969)

For this new public international law on Space Legal Issues, let us have a look at the North Sea Continental Shelf cases (1969). The question of the law of the sea has always been an issue, and especially since the time of colonisation in the 15th Century. Two main school of thoughts were always in opposition: on the one hand, there were the partisans of a sea which would belong to nobody and on the other hand, the partisans of the extension of the sovereignty of the State to the sea. So when Grotius published Mare Liberium (“The open sea”), a publication in favor of the freedom of the seas, Selden responded by publishing Mare Clausum (“The closed sea”), in which he declared English sovereignty over the sea around the British Isles. Despite the debate, the freedom of the seas was the concept retained and respected by the majority. Even today, a large part of the seas and oceans remain without any sovereignty and are called international waters.

However, the beginning of the 20th Century and the two world wars changed the rules. The States started to be concerned about the law of the sea. In 1930, an attempt to reach an agreement on the law of the sea failed and it was the Truman Proclamation on the Continental Shelf of 1945 that greatly influenced the development of the law of the sea. In this proclamation, the United States of America declared its sovereignty and jurisdiction over the natural resources of the continental shelf. In addition, the proclamation considered the continental shelves as an extension of the land of a coastal nation. This point of view was so vastly used that it has been codified in the 1982 United Nations Convention of the Law of the Sea.

The continental shelf is currently at the center of disputes between coastal states. But what is a continental shelf? It can be defined as the area of a land on the edge of a continent that slopes into the ocean. It extends from the coastline of a continent to a point called the shelf break. They are part of the continent and thus, each country that has a coastline has a continental shelf. These places are very strategic and are, from an economic point of view, necessary for the States. The continental shelf is very often rich in hydrocarbons, such as oil and gas, and in biological resources too. Such resources are more than necessary for the present economy and for human kind. For these reasons, the continental shelves are the subject of a merciless battle between the States which seek at all costs a part of it. This has led to a multitude of conflicts, the best known of which would be the North Sea Continental Shelf Cases (1969).

The North Sea Continental Shelf Cases (1969) opposed Germany v. Denmark and the Netherlands and concerned a series of disputes that came before the International Court of Justice in 1969. The disputes were about agreements, or this case disagreements, between Denmark, Germany and the Netherlands, regarding the delimitation of areas of the continental shelf in the North Sea. The parties had organised negotiations in order to find an agreement on the delimitation of the boundaries of the continental shelf.

If the delimitation had been determined by the equidistance rule (which is drawing a line, each point of which is equally distant from each shore), Germany would have received a smaller portion of the North Sea Continental shelf. The Federal Republic of Germany refused to use a principle that would have given it an unfair share. As the negotiations were fruitless, the countries decided to submit the matter to the International Court of Justice.

Germany argued and wanted the Court to determine the shares in proportion of the size of the state’s adjacent land, which Germany found to be a just and equitable share. However, in order to have the Court apply the principle of equidistance to settle the conflict, Denmark and the Netherlands invoked the fact that they had ratified the Geneva Continental Shelf Convention of 1958. According to the Article 6 of this convention, in the absence of an agreement, “the boundary shall be determined by application of the principle of equidistance”. For them, the equidistance principle was simply not a method of cartographical delimitation but an essential element in a rule of law, which should be applied. A new problem arose: Germany had not ratified the convention.

Thus leading to the main question the Court had to answer: was the equidistance principle a customary international law binding on all States, or as it rephrased it, is the Federal Republic of Germany under a legal obligation to accept the application of the equidistance principle? The Court ruled in its judgement delivered in February 1969 that the delimitation of the shares should be decided by an agreement between the Parties and most importantly, in accordance with equitable principles. Each party should have roughly the same portion of the continental shelf. With this judgement, the Court rejected the use of the principle of equidistance as defined in the Geneva Convention. It also declared that this principle was not a mandatory rule of customary international law as it was not a settled practice. The Court also argued that the Geneva Convention of 1958 could not be opposed to the Federal Republic of Germany.

Concerning the North Sea Continental Shelf cases (1969), as the parties had already agreed to delimit the shares of the continental shelf by agreement, the Court was therefore not responsible for prescribing the rules that should be applied in order to settle the conflict. As new negotiations would begin, the Court indicated that several factors should be taken into account, such as the configuration of the coasts and the physical structure and natural resources of the continental shelf areas, and the shares should be determined in a fair and equitable manner.

The United States Convention of the Law of the Sea of 1982 laid down the rules concerning the delimitation of the continental shelf belonging to a State. Now, it includes an area up to 200 nautical miles from the baseline of a state’s coast. But it can extend up to 350 nautical miles only if in return, the State distributes the resources drawn from this bonus. However, as in the North Sea Continental Shelf Case, the coasts of two states may be adjacent or opposite and may interfere with this famous area of 200 nautical miles. In this case, a “marine delimitation” will be necessary. It usually results from negotiations between the States, which would have to follow the law of the sea. If the negotiations are fruitless, the matter can be settled either by an arbitral tribunal, by the International Court of Justice or by the International Tribunal for the Law of the Sea. This is what can be said concerning the North Sea Continental Shelf cases (1969).

Understanding the Fisheries Case

Let us have a look for this new Public International Law article at the Fisheries Case. The territory of a State is the basis of its sovereignty, the basis of its power. Thanks to its territory, whether it is land, air or sea, the State then has many resources that it can use in order to develop its economic growth, technical progress and trade relations. Representing such challenges, the territory is very often a source of conflicts between States. Many Agreements, Conventions and Treaties have been concluded between States in order to establish rules for the management of these territories. For example, the 1982 Montego Bay Convention divides maritime space into different categories and sets out the legal regime for each of them. It clearly determines which area belongs to the territory of a State and which area does not belong to it. The Chicago Convention of 1944 does the same thing, but this time for airspace and establishes a system of authorisations for the crossing of these airspaces.

In the United Kingdom versus Norway Case of 1951, also known as the Fisheries Case, the dispute is over a maritime area where fishing was an important resource: the point was to figure out how much of that maritime zone was Norwegian, where Norway would have exclusive fishing rights, and how much was considered as high seas, meaning that the United Kingdom of Great Britain and Northern Ireland could freely fish in this zone. The dispute dates from the mid 1930’s. In 1935, Norway implemented a decree which explains that certain fishing zones or grounds located at its northern coast were reserved only for its own fishermen. To counter attack this decree, the United Kingdom of Great Britain and Northern Ireland argued that the baselines described in the decree were not conform to the general direction of the coast and were not drawn in a reasonable manner.

In 1949, concerning the Fisheries Case, the United Kingdom of Great Britain and Northern Ireland submitted a request to the International Court of Justice (ICJ) in order for it to determine with precision the extent of Norwegian maritime territory in the area of the dispute. The country also asked for financial compensation claiming that its fishing vessels were prevented from continuing their activities. Furthermore, the United Kingdom of Great Britain and Northern Ireland complained that the claims of Norway were against the rules of Public International Law. The main point was to determine if the lines of delimitation of the Norwegian decree were valid in regards of the International Law.

One of the issues was that the coastal zone of Norway is quite “confused”. Indeed, it is very mountainous, often broken by fjords and bays, meeting in the way a lot of islands, islets and reefs. The least we can say is that the coast does not constitute a clear line between the land and the sea. The United Kingdom of Great Britain and Northern Ireland divided its argument into four main points. The first argument resided in the fact that Norway could and should only draw straight lines across bays to determine the base lines. Then they went deeper into the argumentation by stating the fact that some of the lines did not follow the general direction of the coast or did not follow it correctly as well as not respecting certain connection of sea and land separation. For the third argument, they demonstrated that the Norwegian system of baselines delimitation was unknown to the British and that Norway did not provide a historic title enforcement over some of the fjords. Eventually, the fourth argument was more technical explaining that the length of lines drawn on the formations of the Skaergaard fjord must not exceed ten nautical miles.

For its defense, Norway on the Fisheries Case replied that they should draw lines following the natural direction of the coast. Moreover, Norway added that it was within its rights to claim fjords and sounds (large sea or ocean inlets) as well as their territorial waters, using the reason of its historic title to these lands which the Court agreed to.

By a judgement of December 18, 1951 concerning the Fisheries Case, the International Court of Justice (ICJ) ruled that Norway’s claims over the maritime zone were conform to the International Law concerning the ownership of a sea space. By ten votes to two, the International Court of Justice (ICJ) explained that the method used by Norway to delimit and implement the baselines were not contrary to the International Law. This point is actually quite important and has several consequences for other States. According to a CIA report of the case, by agreeing with the Norwegian method, the International Court of Justice (ICJ) implied that each nation has the right to determine its territorial sea using criteria such as “geographical realities”, historical precedent and economic necessity. This solution implies that more and more coastal nations are going to want to extend their maritime territorial zone. It also has various implications for other nations such as Iceland, the United Kingdom of Great Britain and Northern Ireland, Denmark and so on.

Rules have been implemented in order to avoid future conflicts over maritime zone and more specifically over fishing zone. Thus, an exclusive fishing zone has been created: it is an area with a length of twelve nautical miles from the coast in which the State has the right to fish. However, some States wanted to take advantage of their coastal position and wanted to claim a bigger zone in which they will right to fish. The idea was for the States to get a better control in the maritime businesses beyond their territorial limits. It was then the United Nations Convention on the Law of the Sea which established the legal basis for the Exclusive Economic Zone (EEZ). This zone stretches from the baseline out to two hundred nautical miles from its coast. It is an area in which the State has a sovereign right to explore, exploit, conserve and manage biological natural resources. However, the precise delimitation of Exclusive Economic Zone (EEZ) is also a source of disputes between States: between Norway and Russia, between Italy and Slovenia, between France and Canada, between Canada and the United States of America and so on. The resources contained in these areas are of such a great importance that it becomes vital for countries to have as many as possible.

The growing scarcity of biological resources will only exacerbate the problem of conflicts between coastal states. The Hague Court of Justice will undoubtedly see more and more cases on its agenda over maritime territorial zones and exclusive economic zones conflicts. This is what can be said concerning the Fisheries Case.

Towards an International Space Agency?

Could an International Space Agency may be a solution for the upcoming years? Interstellar, Star Wars, 2001: A Space Odyssey, Gravity, The Martian… All of these movies depict a human life in outer space, whether it be in our Solar system on a mission onboard of a space station, or in distant galaxies. They are all demonstrating at different levels of organisation how human life coordinates in outer space. For example, the movie Gravity is the closest to our current state on a technology level, on a type of mission level, as it is about astronauts on a space mission to repair the Hubble Space Telescope. Movies such as Star Wars or 2001: A Space Odyssey are depicting an enormous advancement in the conquest of outer space as humanity is deeper and deeper in the depth of space. Human beings are using a technology completely unknown and even master the laws of physics. On the contrary, more recent movies like Interstellar or The Martian, finally show us a fairly close future, something quite realistic. A future towards which humanity is leaning. Institutions have shown a clear will to go to Mars and even to start a few colonies on the “Red Planet”. A mission to go to Mars is something that will for sure happen in just a few decades. The story of Interstellar is likely to become our reality: the fact that a major climate change pushes us to leave Earth to find refuge elsewhere. Space stations like the “Cooper Station”, which is a space colony located in orbit of the planet Saturn, might also be our future, but this time in maybe a hundred years.

Space conquest and space occupation by humankind may be considered as the next steps for the human adventure. It’s on a much bigger scale yes, but humans always felt the need to explore and to know more and more about its environment. Go on adventures and discover the world is something visceral in human beings. As well to master a fear of the unknown, as to enrich and grow its knowledge, or answer an existential question that humanity has asked itself since the dawn of time, exploration is inherent to human beings. Thus, outer space is considered only as the next step, as the logical continuation of human adventure. Space exploration is still in its infancy, since we have so far only visited the nearby suburbs of Earth. To achieve an ambition as vast as the conquest of outer space, an international collaboration of all the countries will be very much needed. We have to take in consideration that if we look at the scale of space, the Earth should be considered as a whole. People will come from the Earth nation. We can no longer divide Earthlings into different nations. We can consider this both as symbolic, people who are conquering outer space come from planet Earth, and as gaining a consequent weight in order to settle. Nationality should be seen as a concept that should be overcame once in outer space.

Currently, the project demonstrating one of the greatest international cooperation is the International Space Station (ISS): it can be considered both as a technical achievement, but also as a success of cooperation between States. This shows that cooperation between countries is very fruitful. Countries from different part of the world participated in this project and took part in this adventure such as Canada, Japan, Russia, the United States of America, Brazil and Europe through the European Space Agency (ESA). It was actually a precedent collaboration that initiated the major project of the International Space Station (ISS) and it’s quite a surprising one: at the beginning of the 1990’s, the United States of America and Russia collaborated to create the Shuttle-Mir program. Joint missions are being set up, and American astronauts are going to the Russian Mir station and vice versa. This collaboration therefore gave an impetus towards the creation of a space program with a wider, more global collaboration. An agreement was then signed between fifteen states on January 29, 1998 which provided for the construction of the International Space station (ISS).

Therefore, like the example of the ISS shown above, if mankind really wants to explore and conquer space, global cooperation is more than necessary. It will only be when the nations have combined their financial, technical, raw materials and intelligence resources, all of this to form a cooperation, that the progress will be sufficient. The desire to go and land on Mars and to explore the planet should be the perfect case study to demonstrate the obligation of a completely international cooperation through an International Space Agency (ISA). Going to Mars is a goal that is distant and at the same time very close. The concept of a manned mission on the “Red planet” has been emerging as futuristic in recent years. Indeed, for a few years, the fever of the conquest of space has given way to a quieter use of space, more focused on the benefits brought to humanity. The race for the Moon has given way to a phase of stabilisation of launch technologies or at least, to phase that aroused less interest from the general public. However, recently, we have been observing that a new impulse has been given to the space conquest, that the fever of the conquest of space is gradually regaining spirits and now, organising a mission to go to Mars is a wanted and supported project by many people. Mars has always aroused a certain fascination for Earthlings, in particular with its “Little Green Men” which are now part of pop culture.

If going to Mars in the past was almost unthinkable, it’s something we can do almost now. NASA has expressed its desire to send its first manned mission to Mars in 2033. Such a mission will be unprecedented: it will be the first time that a space mission will be this long (about two to three years) and that it will also be far from Earth. A long-term mission to Mars is therefore something completely realist now even if its organisation take time to be able to clear up all the facets of such a trip. Indeed, there are still several technical challenges to overcome: we need calculate the launch window very precisely, we need to organise the daily life of the astronauts of this mission by coordinating the food, the construction of a camp, the scientific material for the missions which they will have to carry out, we also need to prepare the astronauts for a mental challenging mission, we also need to calculate which quantity of fuel will be needed as well as creating and building the ship. In conclusion, we can say that there is still a lot of work to do. But NASA is not the only one wanting to go to Mars, SpaceX also wants to organise a mission to go there. Elon Musk even shared his crazy dream of colonising Mars with a fleet of one thousand spacecraft and ultimately a city of a million people. Several organizations are therefore starting to compete in this area. Colonial projects are starting to see the light of day. A mission on Mars is no longer an area reserved solely for science fiction.

It is in the light of all this questioning, and of all this projects that we fully understand the need for an International Space Agency (ISA) which will establish a common program and course of action. It would define the objectives of humanity on a short, medium and long term. The first one could be the organisation of mission on Mars. For a more medium program, the future International Space Agency (ISA) may ask itself whether we should focus on establishing a colony on Mars or if we should continue the exploration of our Solar system. This agency would serve as a guide and coordinator for humanity, it would erase the tensions that arise with the appearance of various nationalities. The future of humanity lies in space but also in the creation of an International Space Agency (ISA).

The launch of the first Ethiopian satellite

Let us have a look at the launch of the first Ethiopian satellite. Ethiopia is worldwide known for its culture and art, for its sports skills, for its cuisine, mainly coffee (which plays an important part in the culture and in the national traditions). There is however an area in which we did not expect Ethiopia to participate in: outer space. Indeed on December 20, 2019, Ethiopia launched its first microsatellite, baptised ETRSS-1 or Ethiopian Remote Sensing Satellite, from a launching center in China. Even if the launch was in China, Ethiopian and Chinese officials, as well as scientists, watched a live broadcast at the Entoto Observatory and Research Center, which is located in the suburbs of the capital of Ethiopia, Addis Ababa.

Ethiopia has therefore added a new stone to its edifice of space conquest, or at least of its presence in the occupation of outer space. Currently, having its own satellite has become a necessity for each State, and more and more of them are launching satellites of their own nationality. It is necessary both for security and autonomy reasons, but also for symbolic reasons, since it shows a certain power that the State has (it is a source of pride for a country). The data from the Ethiopian Remote Sensing Satellite, the first Ethiopian satellite, will help the country to monitor its resources, such as forest and mining resources, improve weather forecast, as well as observe agricultural transformations which will therefore improve the quality of the country’s responses to various issues. The satellite will consequently have very precise and concrete uses.

Solomon Belay, the director general of the Ethiopian Space Science and Technology Institute, explained to the press agency Reuters that China covered most of the manufacturing costs of the satellite. Indeed, of the seven million American dollars in manufacturing costs, China paid for six million American dollars. However, if a large part of the funding has been provided by China, the satellite was designed by both Chinese and Ethiopian engineers. If at first glance, the Chinese funding seems surprising, it’s not when you understand the context. Indeed, China is Ethiopia’s first trading partner. Trade relations between Beijing and Addis Ababa dates back from the late 1990’s, and have intensified in recent years, with an increasingly strong presence of China in Africa. Beijing has a heavy preponderance in the economy of Ethiopia, the second most populous country in Africa. Thus, Ethiopia has become the second largest recipient of Chinese loans, having borrowed more than twelve billion American dollars from China since the early 2000’s, according to a study. There have been a lot of partnerships between the two countries, the most recent one being an industrial park project worth more than three hundred million American dollars in Ethiopia.

All of this is part of the Chinese strategy (since 2005) to settle in Africa. China invests a lot of money in Africa, in its strategy of creating the “New Silk Roads”. It invests in the African continent to assert its power in many ways. Its presence also has a political dimension since it gives the country support from an entire continent to establish itself as the first superpower in the world. However, the Ethiopian Minister of Technology and Innovation, Getahun Mekurian, expressed a clear willingness of the country to become more independent and more autonomous for the future satellite launches, by using their own system.

The Ethiopian Space Program was launched back in 2004 by the Ethiopian Space Science Society and its status was formalised by the government in 2016, with the creation of this institute. This space program is still in its early stages, currently focusing on the launch of satellites. Thus, the launching of the Ethiopian Remote Sensing Satellite is the first phase of Ethiopia’s space development program. The second phase should begin in early 2020, with the construction of satellite manufacturing, assembly, integration and testing facilities in Addis Ababa. This is a very substantial project which has been entrusted to French ArianeGroup. The amount of the contract has not been revealed, however, we know that the project is supported by the European Investment Bank in a tripartite agreement between the Ethiopian government, the European bank and ArianeGroup.

This desire to establish its presence in the field of outer space and to participate in the conquest of outer space is not unique to Ethiopia only; indeed, many sub-Saharan countries thus want to develop their own space programs to speed the development of their objectives up, as well as to encourage scientific innovation. Today, there are a few leading African countries in this domain like South Africa, Egypt, or Nigeria. There is a clear will on the part of African countries to form an agreement in this field with the aim of organising a continental cooperation. In this framework, the African Union adopted a policy on African space development in 2017, which declared that space science and technology will promote economic progress and natural resources management on the continent. As Dr. Mahaman Bachir Saley explained, the African space policy and strategy has four main goals: the Earth observation, the satellite communication, the development of astronomy and space science, and navigation and positioning. He explained that one of the strategic goal of the African space policy was to define a coordinated, effective and innovative African-led space program.

It was then with this objective in mind that African countries announced the creation of an African space agency, whose headquarters should be installed in Egypt. This will help create a cooperation on an entire continent, countries that will be able to form a significant space power and thus, take a part of the center stage, probably next to the United States of America, next to Europe, next to China and India. More and more African countries are launching satellites and will continue to launch satellites; more and more countries will give more funds for this domain. It is about pooling countries’ strengths so that the benefits will go to everyone.

The launch of the Ethiopian satellite is therefore a foundation, a stone brought to this massive building which corresponds to a cooperation between the countries of Africa concerning the outer space conquest. It also shows that space conquest is not a business concerning only the richest anymore, as each country can in theory participate in it. It is no longer reserved for a particular elite, it has become the business of the humanity in its entirety.

Can astronauts vote in space?

Can astronauts vote in space? If today you think, if you think about outer space, if you think about the International Space Station (ISS), about the astronauts on mission aboard the International Space Station (ISS), or even if you think about the future colonies on Mars, you are going to think, to wonder about the organisation of life up there: how do the astronauts eat? How do they drink? How do they answer to their primary needs? What are the raw materials that will be used and how to get them there? What are the missions of an astronaut? What is the person in outer space doing on a daily basis?

The human mind will jump from subject to subject, from idea to idea, from questioning to questioning, but rare is the mind which will question itself about democracy in outer space, and more precisely about voting in outer space. We may wonder: how does democracy continues, and how will it continue to be applied, to be exercised in outer space? And above all, can an astronaut on a mission in the International Space Station (ISS) vote for a national election?

Although this questioning around democracy, or at least around political organisation in outer space, is not the main focus of the public institutions, it will become so in a not too distant future, especially when we know that various States around the world have shown a will to return on the Moon, and even go to Mars, establishing colonies on it. With the arrival of several settlers, it will become more and more necessary to ask ourselves this question. The questioning can go even further if this time we think of a more distant future, and if we imagine the establishment of more human city-colonies in outer space: will the democratic system continue to be exercised or not? Should we keep our current system, present in most of the Western countries, or should we take this opportunity to improve the system and fill its gaps? In the meantime, the human presence is limited to the presence of people, astronauts on mission in the International Space Station (ISS). Even if the missions are relatively short, it is highly possible that a national election will take place while an astronaut is on mission in the “orbiting laboratory”. In this case, can the astronaut vote? And if so, what is the procedure?

Currently, only American astronauts can vote from outer space. Indeed, in 1997, the State of Texas passed a law which allows American astronauts to cast their ballots from outer space, from the International Space Station (ISS), and even if they were further out, like on Mars. A question arises: why only the State of Texas implemented such a law? Well for the really simple reason that most of the American astronauts are living in the State of Texas, they usually live near the Johnson Space Center (JSC) in Houston. It is the rule 81.35 of the Texas Administrative Code that states that “A person who meets the eligibility requirements of a voter under the Texas Election Code, Chapter 101, but who will be on a space flight during the early voting period and on Election Day, may vote”. Furthermore, this rule explains that it is a privilege only afforded to residents of Texas. The first concrete application of this law was made the same year as its vote. In 1997, the first astronaut to vote from space was David Wolf, who was on a mission aboard the Russian Mir space station.

The topic rose after that an American astronaut, John E. Blaha, who went on a mission to the Russian Mir space station in September 1996, wasn’t able to vote in the presidential battle between Democrat Bill Clinton and Republican Bob Dole. The project of such a law was an idea of Texas State Senator Mike Jackson who heard this story. To him, voting is very important and in his opinion, a single vote can make a big difference in the result as he himself experienced it. Indeed, he won his election in 1989 by seven votes out of twenty-six thousand. The timing is actually quite important, 1997 is not a random date. Before this period, the longest missions lasted around fifteen days. But in 1995, American astronauts began to complete missions for nearly six months onboard of the Russian Mir space station. The question of voting therefore began to form in people’s minds. Thus the implementation of a law to allow astronauts to vote from outer space.

Now you might wonder: but how can an astronaut vote from outer space when there is no ballot, no ballot box and no assessors? Well NASA has created and implemented a special procedure to answer this question. Actually, for astronauts, the voting process starts early, almost a year before their launch. Astronauts need to see and select which elections (it can be a local, state or federal election) they want to participate in, while in outer space. Then, the next step takes place in outer space on the day of the election. At this time, the Houston County Clerk delivers the ballot to the Johnson Space Center’s Mission Control, which will send it to the International Space Station (ISS) electronically. The clerk’s office also sends a particular code for the astronaut in order to let them access their personal ballot. At the end, when they chose their candidate and vote, they send their ballot back to Mission Control which will again delivers it back to the county clerk office.

We can observe that the procedure is closely monitored on behalf of public authorities in order to preserve the democratic system. Thus, even if your environment is quite special, it is still a citizen’s duty which needs to be protected. We shall always implement laws and procedures to ensure that it will be preserved. In spite of this, American astronauts can also make the choice to vote before their launch, like astronaut Shane Kimbrough, who voted even before leaving the United States of America.

There is another civic duty which astronauts can do from space: to pay taxes. However, for evident reasons, they will be exempted from jury duty. Following several researches on the moral of astronauts during long missions, civic duties such as voting is quite important for astronaut’s morals in a way that it helps them stay connected to Earth. The first astronauts that performed long missions needed to keep a strong connection with Earth. It helps them keep the feeling that they are still participating in the life of Earth, and especially in the life of their nation.

For now, this right to vote from outer space is only for American astronauts living in Texas, which is a fairly limited criterion, even if the American-astronaut fleet is quite large. The European Space Agency (ESA) didn’t say much about this topic; for now, the only example we have of a European astronaut voting, is French spationaut Thomas Pesquet, who voted by proxy for the first round of the French presidential elections. As explained before, it is highly possible that in a mid-term future, human colonies will be establish on other planets, such as Mars, and it will become necessary to fill the legal vacuum. We will need to create and implement procedures and laws to allow the future astronauts to vote from outer space. We can also wonder if it will concern the vote for Earth elections or if we will create a sort of political organisation for these colonies, and therefore if it will concern the vote of their own representatives. Voting from outer space, and maybe soon voting in outer space, will become major themes of the organisation of the outer space conquest and of the organisation of life in outer space.

Astronationalism or nationalism in outer space

Could we talk of astronationalism when talking about nationalism in outer space? The Oxford Dictionary defines nationalism as a feeling of love for and pride in your country, a feeling that their country is better than any other and defined nationalistic as having strong feelings of love for and pride in your country so that you think that it is better than any other.

Nationalism, as defined currently, is a quite modern concept. It is an ideology based on the fact that an individual’s loyalty and devotion to the nation-state shall surpass other individual or group interests. Nationalism is an idea that grows into people’s minds in times of conflicts, in times of stress and doubts. When the human being cannot proceed to understand and integrate the future or even what is happening in present days, he will have a tendency to seek refuge from the unknown. And what is something that one knows better than everything else? One’s own culture, language, history. The human being will shut himself away from the doubt. The mind will use this defense mechanism in times of fear and of inability to understand. Recently, in the last few years, nationalism made a big comeback. Far right-wing political parties have seen their popularity grow more and more and no continent escapes the influence of nationalism.

Nationalism is also mainly influenced by the competitive spirit. It is part of the human being mind and spirit to be competitive and wanting to be the first, to be the one who influences the most, to be the leader. Outer space will be no exception to this principle. At the dawn of space exploration, what happened on Earth will probably happen in space. Currently, most of the great powers of our world have a space program, whether it be the United States of America, Europe, China, Russia or Japan. After several years during which space conquest and space exploration was no longer a priority, a few entities have shown clear signs that they have made it now a priority. The United States of America reaffirmed their wish to continue the discovery of our Solar System, President Trump even wanting to skip a return on the Moon first and go directly to Mars. The European Space Agency (ESA) has voted a record budget of fourteen billions euros for the upcoming period with the idea of going to the Moon with the first European astronaut. China has clearly set some very ambitious guidelines towards the conquest of space, wanting to be a space superpower and becoming a leader in this field.

We can already forecast some tensions and objections between these gigantic and powerful entities. As things will progress and that technology will be more and more accessible, more and more nations will have the desire to be part of such an adventure. Therefore the more various and different entities there will be, the higher the risk of tensions or astronationalism. Every nations will want to contribute, every nations will want to see its name and the name of its people engrave in the marble of space conquest. Space exploration and its success is a tough, laborious, complex task that requires both enormous technical skills, intellectual skills as well as financial resources. Successfully completing such a task demonstrates the country’s high level of development. Moreover it will also allow a nation to acquire a more or less important power, something necessary to have control over resources, raw materials which are necessary for the expansion of a country. In the same way that the great powers colonized territories on Earth to extend their power and have always more and more resources, nations will want to do and will, almost certainly, do the same in outer space.

Aware of this concern and the possibility of astronationalism, a few treaties have already been negotiated and signed in order to prevent and avoid any tensions and appropriation by a State of a “land” in space. Thus, in the 1967 Outer Space Treaty, the first article states that “The exploration and use of outer space, including the Moon and other celestial bodies shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind”.

And again in 1979, the General assembly of the United Nations adopted the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. In its article III, the Treaty states that the Moon and other celestial bodies should be used exclusively for peaceful purposes and their environments should not be disrupted. However, we can point in these treaties the fact that it allows the exploitation of the Moon and of the celestial bodies. Even if they declared that the appropriation is for mankind in its entirety, it is still appropriation.

In spite of some efforts made by the States, the tendency to protect the Moon, celestial bodies and outer space from privatization fades, and it appears that the opposite situation is about to come true. One clue is the Space Act of 2015: the law passed on May 21, 2015 allows the American industries to “engage in the commercial exploration and exploitation of space resources” which clearly allows U.S. companies to search for, extract and sell the water and metals that they might find of asteroids and planets. The question of resources and raw materials from space can be considered as one of the main core of the conquest of space and “astronationalism”. Roughly we can divide the space conquest into two main parts: the first being the expansion of humanity beyond the Earth and to settle mankind into the Universe, the second one being a support for human life on Earth through medical researches, technologies advancements and raw materials constituting a new resource when ours will be drained.

Nationalism in space or astronationalism is, in my sense, something that should clearly not happen. Humankind, at least I hope for, should learn from the past and continue the international cooperation, as it is seen in the case of the ISS for example, to lead the space exploration. For space conquest, the Earth should be one, should form a single entity. Apart from the more realistic, the more technical considerations which are the questions on tensions between States, we should place this consideration, this idea of the Earth being one, on the level of a philosophical reflection. To meet and explore unknown worlds, humanity must move forward as united. As Sagan explained, we should now move forward and consider ourselves as “We are one planet”.

Cooperation is more than necessary in the next big adventure of mankind. Just as the European Space Agency (ESA) showed it, cooperation can totally work. If European countries with their past history can cooperate together for a greater goal, then an international cooperation could definitively work. It will be a very complex task, probably the most complicated task that has ever existed, but we have the resources to create and elaborate the cooperation. On the contrary of nationalism or astronationalism, this is called internationalism or astrointernationalism, a movement I hope will take the lead in the future years.

Legal issues concerning a Chinese booster which crashed in a rural area

For this new Space Law article, let us study the space legal issues concerning a Chinese booster which crashed in a rural area. China’s space program is described as an ambitious and flourishing one, demonstrating the willingness of President Xi Jinping to place China as a leader in space exploration. However such an ambitious program is not without its own risks.

According to the China National Space Administration, on November 23, 2019, China launched a Long March-3B rocket to put two navigation satellites BeiDou into orbit from the launching site of Xichang, located in the Sichuan province. This launch was the three hundred and nineteenth one with the Long March launcher. Still according to the statement of the Chinese space agency, the two satellites have successfully placed themselves in orbit. However if the launching was successful in placing the navigation satellites into Medium Earth orbits (MEOs), one of the Chinese booster crashed and hit a rural village near the launching site of Xichang.

The accident was relayed on social networks and especially on the national social network Weibo where the videos published of the accident allow us to witness the damages. We are able to note how the numerous debris of the booster impacted and destroyed several homes of the village. Thus, we can observe one part of the booster that crashed into the roof of a house as well as a lot of debris scattered on agricultural fields. But one thing raised major concerns: the yellow smoke rising from the debris. The yellow smoke is actually hypergolic propellant which is a very toxic substance. Hypergolic propellant is mainly used in different rocket and aircraft systems as a mean for propulsion and hydraulic power. In this way, orbiting satellites, manned spacecraft, military aircraft as well as deep space probes are using hypergolic propellants. According to a NASA’s report, hypergolic propellants are “toxic liquids that react spontaneously and violently when they contact each other”. The toxicity of this substance is then established. According to journalist Andrew Jones, the inhabitants of the village where the booster crashed were told by the authorities to stay away from the wreckage due to the toxicity of these fluids.

Actually, it’s not the first time that such an accident has taken place. One of the most important accident in this genre happened back in 1996 when a Chinese rocket crashed into the village near the launching site of Xichang which caused the death of six people according to the Chinese authorities, up to hundreds according to foreign sources. One of the most recent one happened last year in 2018. Indeed in April 2018, the Chinese Space Station Tiangong-1 failed and hurled back to Earth. As the crash site was unknown, it rose a few concerns among the international community and fortunately, the station disintegrated as it entered the atmosphere.

At the lights of these events, we can wonder why are the Chinese rocket more likely to cause damage and fall back on Earth rather than the American, European or Russian rockets? One of the cause for this problem is the fact that the Chinese launching sites are located inside the land and not along the coastlines, which will cause the rocket’s boosters to fall back over inhabited village when the American, European or Russian rockets will crash into the oceans. Space debris are a major issue of the Chinese Space program. As these kind of accidents seem to happen quite frequently, what is the legal basis on which we will be able to rely on?

From 1963 to 1972, the Convention on International Liability for Damage caused by Space Objects or also called the Liability Convention, was considered and negotiated. The agreement was reached in the General Assembly in 1971 and the Convention entered into force in 1972. In its article II, it established that a launching party is “absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft”. The Convention specifies that the word “Damage” means “loss of life, personal injury or other impairment of health, or loss of or damage to property of states or of persons, natural or juridical, or property of international intergovernmental organizations”.

China has not ratified the Liability Convention but has acceded it in 1988. According to the United Nations, “accession” is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states. It has the same legal effect as ratification. Both of these expressions have the same involvement, the States who acceded to a Convention have the same rights and obligations as those States that ratified the Convention. The difference only lies in a difference of terminology: a Convention is open for signature for a defined period. When this period is over and a State wants to become a party, it may only accede it.

In this specific case, it’s a Chinese booster that caused damages on a Chinese village. There is no involved foreign state in this accident. It will likely be that the Chinese government is going to give some financial compensation to the inhabitants whose house were shattered by the Chinese booster. Considering the political regime of China, and even if the People’s Republic of China is considered as liable according to the Liability Convention of 1972, it’s very unlikely that the Chinese people will claim for compensation or sue the government.

But what would happen if the Chinese booster crashed on the territory of any other State? The article II of the Liability Convention would apply and the State whose space object (here the Chinese booster) caused damages on the territory of another State shall be liable to pay compensation. Furthermore, the article VIII of the Convention states that “a State which suffers damage or whose natural or judicial persons suffer damage, may present to a launching State a claim for compensation for such damage”. There is then a possibility of one State to claim compensation. However, there are more questions that arise: how the amount of compensation for damages will be calculated and who will define it? Will it be possible to amicably settle it? If not, in front of which jurisdiction of which country?

The Liability Convention defined a few procedural rules to settle these issues. First, the Convention favors diplomatic negotiations to settle the claim. But if no settlement was found within a certain period of time, a Claims Commission should be established that would act as an arbitration tribunal, whose composition and procedure are defined in the article XV and XVI. In the end, it will be the Claims Commission that will decide the merits of the claim for compensation as well as determine the amount of compensation to pay. One major point of the Convention is that the decision of the Commission is final and binding if the parties have agreed to, which is quite important in order to avoid any blockage that would eventually penalize the civilian casualties.

Concerning the hypothetical situation where one state causes damages to another state but this time in outer space, the solution lies in the article VI and VII of the Outer Space Treaty of 1967. The article VI established that “State Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty”. The international responsibility for one’s national activities is reinforced in the article VII states that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is Internationally liable for damage to another State Party to the Treaty”.

In a nutshell, international responsibilities have been established for one’s space activities, whether the damages lies on the surface of the Earth or in outer space. As space exploration will only continue to grow and as the number of launching, satellites, boosters and so on will also only continue to grow exponentially, more and more situations involving damages caused by space debris will happen. However as new technologies, and especially with SpaceX‘s reusable launch system program, continue to be implemented, we may find a lasting solution to this problem. This is what can be said concerning the Chinese booster which crashed in a rural area.

Understanding the Barcelona Traction case

For this new Public International Law article, let us study the Barcelona Traction case. The past two hundred years have seen the transformation of public international law from a rule-based extrusion of diplomacy into a fully-fledged legal system. Some decisions have contributed to the development of international law into an integrated whole, whilst also creating specialized sub-systems that stand alone as units of analysis. The significance of these decisions is not taken for granted, with contributors critically interrogating the cases to determine if their reputation is deserved. The Barcelona Traction case is one of the most important, and needed to be analyzed in order to understand Public International Law.

Barcelona Traction, Light and Power Company was a Canadian company, created in 1911 and that operated and provided light and power utilities in Spain. Its headquarters were in Toronto, Canada, it operated in Spain but was owned mostly by Belgian holding companies. The company Barcelona Traction managed to survive the Spanish Civil War without many damages and was still quite profitable. Because of its foreign investors, the company issued several series of bonds, principally in sterling. However, in the idea of Spain’s financial recovery after the civil war, the government banned the transfer of foreign currency from Spain.

As a result of a financial maneuver led by Juan March in order to take control over the society, the Court of Spain declared Barcelona Traction Company bankrupt on February 12 of 1948. Belgium, in order to protect its nationals and their interests, sought reparation for damage claimed to have been caused to Belgians nationals who were shareholders in the company. A first round of diplomatic negotiations started involving a few governments, such as Belgium, Canada, the United Kingdom, and the United States of America. As it was a society ruled by Canadian law, Canada proposed to settle the matter with arbitration which the Spanish government refused but agreed to form a committee of experts to study the dispute. Because the diplomatic negotiations were unsuccessful, the Belgian government filed a first request before the International Court of Justice on September 23, 1958, which was in 1961 interrupted as new negotiations took place. Understanding that these negotiations would go nowhere, Belgium filed a new request before the International Court of Justice on June 19, 1962.

Regarding the jurisdiction of the Court, Belgium and Spain are both parties to the Statute of the Court meaning that the Court is qualified and has jurisdiction to hear and to resolve the dispute, in which Belgium is using its diplomatic protection for the benefit of its foreign nationals and supports that Spain broke the international law rules concerning the way foreigners are treated. In 1963, Spain raised four preliminary objections to the Belgian complaint. In a judgement of July 24, 1964, the Court rejected the first two preliminary objections and joined the second two together. In the decision of February 5, 1970, the main question revolved around the thematic of diplomatic protection: does Belgium have the right to use its diplomatic protection for the Belgian shareholders of a Canadian company and therefore stand before the International Court of Justice or not?

In this case, the Court made a distinction between two separate entities: the company and the shareholder, which are ruled by different law. The company was Canadian and the shareholders were Belgians. The Court emphasized the fact that the harmful acts attributable to Spain aimed at the company’s rights and not at the shareholders’ own rights. A clear distinction has been made between a violation of a company’s right and the mere prejudice towards the shareholders’ interests. Thus, in its judgement of 1970, the International Court of Justice rejected the request of the Belgian government and declared Belgium as not qualified to stand before the Court as it did not have jus standi, or recognized rights, to exercise diplomatic protection for its nationals. The Nationality State of shareholders cannot sue diplomatic protection. Moreover, the Court stated that Belgium couldn’t sue Spain by itself as the Barcelona Company was ruled by Canadian law. There was no legal interest in the matter for Belgium to bring a claim. What also emerges from this judgment is the question of the obligation to treat foreign nationals in a certain way. Belgium thought that it could use this mean to support its claim.

One of the main benefit of this judgement is the recognition of the concept “erga omnes”. It’s a Latin locution which means “towards all” or “towards everyone”. For the legal domain, it means that a judicial decision is binding towards everyone, rights and obligations are owed towards all. These norms are imperative. Maurizio Ragazzi explained in his book, The Concept of International Obligations Erga Omnes, that “In the Barcelona Traction case, the International Court of Justice identified a category of international obligations called erga omnes, namely obligations owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all”.

The judgement of 1970 is a fundamental one in the way that it expressed this notion of erga omnes that is now considered as one of the pillar of the international law. It expanded this notion in the international community. The notion of erga omnes is associated with the notion of jus cogens which corresponds to a fundamental principle of international, accepted by the international community, considered as universal and superior to which no derogation can be granted. The notion of jus cogens was established by the Vienna Convention on the Law of Treaties of 1969.

The case Barcelona Traction, Light and Power Limited Company is of the greatest importance and value in the field of International Law, and more particularly for diplomatic protection and the promotion of the concept of erga omnes norms and rights. Jean Charpentier explained in his analysis of the case, the relations between the states are rigid which does not facilitate the flexibility at the base of multinational companies. He then explained that the only solution would be to ask the State to which they invest a right of direct access to ad hoc arbitral bodies.

Is 2019 the Year When The First Crime In Space Was Committed?

Let us study for this new space law article the possibility of the first crime in space, maybe committed recently by astronaut Anne McClain. Crimes related to the space industry or space domain in general can be counted on the fingers of one hand. Indeed, space-related offenses are quite rare, as it is still a domain restricted from the general public. However, in 2019, a news made the headlines due to its surprising novelty.

In August 2019, the NASA astronaut Anne McClain has been accused of committing a crime in outer space. McClain would have tried to access the bank accounts of her former spouse without her authorization. The astronaut was accused of identity theft and of improper non authorized access to financial records. As a result of several things she did not understand, Summer Worden, McClain’s former spouse, asked her bank to find the locations of the computer that had access to her bank account using her login name. Surprisingly enough, the unknown computer was one registered to the National Aeronautics and Space Administration.

Worden explained that it was actually Anne McClain from the International Space Station (ISS) that had tried to access her bank account. Worden then filed a complaint with the Federal Trade Commission and her family later filed a complaint with NASA’s Office of Inspector general. Following this accusation and complaints, Anne McClain expressed her willingness to fully cooperate with the authorities and stated that she would answer truthfully to every question. She was then heard by a senior NASA official and by investigators from the Inspector General’s office in order to understand the situation, unravel the true from the false and hear what McClain had to say about it. The astronaut acknowledged and admitted having tried to access her former spouse’s bank accounts.

However, her defense line is based on the argument whereby watching over the joint account is something that she would usually do on a regular basis and that she just wanted to check on the finances in order to make sure Worden had sufficient funds to provide for her son’s care and to pay bills. She explained that it was purely based on a routine and that she did not have any bad intentions. Eventually, McClain did not carry out any financial transaction but the trial will revolve around the question of knowing if she did not carry out any financial transaction because she had no intention to do so or because she ran out of time, unable to complete a financial or any particular operation.

Several precedent cases have already taken place, space-related offenses are not unknown. In 2011, when a space engineer’s widow tried to sell a Moon rock, NASA organized an operation in order to prevent it. And in 2013, a Russian satellite was damaged after colliding with debris from a satellite that China had destroyed in a 2007 missile test. But this case is actually the first time that a violation was committed in outer space by a human being.

What are the legal basis on which this violation should be treated? The laws set on Earth continue to be applied even if one of the people concerned is on a mission in outer space. Actually, procedures have already been established. A Treaty named the Intergovernmental Agreement on Space Station Cooperation governs the International Space Station (ISS) and every jurisdictional questions that might arise. The five States which are involved in the International Space Station (Russia, Japan, Europe, Canada and the United States of America) signed this Treaty. According to it, if a crime is committed on the International Space Station (ISS), the country whose national was involved has criminal jurisdiction, unless people from other countries were affected. As Anne McClain is American and her actions affected only American citizens, the dispute will entirely fall under the American jurisdiction and law.

Space law is a relatively new field of law. According to the Washington Post, it can be defined as a field composed of both domestic and international agreements, as well as guidelines that govern issues such as space exploration, military and weapons use, and liability for damage. While it’s definitely a field that is growing and will continue to grow at an increasing pace, it’s still a niche domain. Furthermore, the law concerning reprehensible actions realized by human beings is even narrower. Indeed, space exploration began only a few decades ago, but it was only recently that human beings arrived there permanently and on a regular basis. And still, this only affects a handful of people, at least for now.

This dispute can be seen as quite easy, as it involves people from the same nationality, but it being probably the first crime committed in space raises questions concerning the development of space law. Thus, will it be possible to create a unified international space law which shall be applied in spite of the nationality? Or will each State want to create its own law? In this situation, if a crime happens in space and that multiple nationalities are involved, which law will be destined to be applied? All of these questions will need to be resolved and quite quickly as missions destined for human beings to make a comeback on the Moon are becoming more and more precise, and as a mission to explore Mars has left the realm of dreams to enter the one of reality. Longer distance and trips will be involved, different nationalities with different cultures as well.

Space law in general should be developed in the future years, as more and more conflicts in this genre are inevitable. The development of space tourism will surely be the main cause of the development of the space law. Already in 2017, an Austrian business man had sued a space tourism agency in order to retrieve his deposit for a trip that never took place. As Mark Sundahl explained: “The more we go out there and spend time out there, all the things we do here are going to happen in space”. As for now, no news was given on the outcome of the case. The investigation is surely following its course and it will decide if the matter should be examined by the judicial field or not.