Nicolas Giacomin

Legality of the Threat or Use of Nuclear Weapons

Let us look at the Public International Law case Legality of the Threat or Use of Nuclear Weapons. By a letter from December 19, 1994, filed in the Registry on January 6, 1995, the Secretary-General of the United Nations officially communicated to the Registry a decision taken by the General Assembly, by a resolution adopted on December 15, 1994, to submit to the Court, for advisory opinion, the following question: “Is the threat or use of nuclear weapons in any circumstance permitted under international law?” The resolution asked the Court to render its advisory opinion “urgently”. Written statements were filed by twenty-eight States, and subsequently written observations on those statements were presented by two States. In the course of the oral proceedings, which took place in October and November 1995, twenty-two States presented oral statements. On July 8, 1996, the Court rendered its Advisory Opinion. Having concluded that it had jurisdiction to render an opinion on the question put to it and that there was no compelling reason to exercise its discretion not to render an opinion, the Court found that the most directly relevant applicable law was that relating to the use of force, as enshrined in the United Nations Charter, and the law applicable in armed conflict, together with any specific treaties on nuclear weapons that the Court might find relevant.

The Court on the Public International Law case Legality of the Threat or Use of Nuclear Weapons discussed two procedural questions. (1) Did the Court have the competence to give an advisory opinion based on a request of the General Assembly? In other words, did the General Assembly have the competence to ask the Court for an advisory opinion on the above question? (2) If yes, were there any reasons that would compel the Court to decline to exercise its jurisdiction? The Court also discussed five substantive questions. (3) Did treaty or customary law authorise the use of nuclear weapons? (4) Did treaty or customary law contain a “comprehensive and universal” prohibition on the threat and use of nuclear weapons? (5) Should the threat or use of nuclear weapons be compatible with international humanitarian law and other undertakings of the law? (6) Will the threat or use of nuclear weapons be lawful in self-defense in situations where the very survival of the State is at stake? (7) Is there an obligation on States to work towards nuclear disarmament?

The Court concludes that neither customary law, nor treaty law, explicitly authorises the use of nuclear weapons (para. 52). Yet, it highlights that explicit authorisation is not required because the illegality on the threat or use of nuclear weapons does not stem from the lack of specific authorisation, but on a specifically formulated prohibition (the general principle is found in more details in “The Lotus case”). Next, it went on to examine if customary or treaty law prohibits the threat or use of nuclear weapons.

The Court concludes that there is no comprehensive and universal prohibition on the threat or use of nuclear weapons either in treat or customary law. In terms of treaty law, some States argued that the use of nuclear weapons would violate the right to life and other treaty-based human rights, prohibition on genocide, and rules relating to the protection of the environment. The Court says that none of these treaties provide a “universal and comprehensive” prohibition on the use of nuclear weapons. Then, the Court says that the “most directly relevant applicable law” is the U.N. Charter provisions relating to the use of force and those laws that govern armed conflict. However, it finds that both of these legal regimes also do not expressly prohibit, nor permit, the use of nuclear weapons. In terms of customary law, the Court finds that the opinio juris on the prohibition of the use of nuclear weapons differs amongst States, as reflected in the content and voting patterns of General Assembly resolutions, their views on deterrence and the non-use of nuclear weapons in the recent past. The Court finds that “The members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past fifty years constitutes the expression of opinio juris. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris The emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions between the nascent opinio juris on the one hand, and the still strong adherence to the practice of deterrence on the other”. The Court concludes that there is no comprehensive and universal prohibitions on the threat or use of nuclear weapons under treaty law or customary law.

Thus far, the Court has concluded that there are no provisions in international law that authorises or prohibits the threat or use of nuclear weapons by States. The Court now goes a step further to examine if the threat or use of these weapons is regulated under international law. In other words, should its use be compatible with the requirements of international law applicable in armed conflict (which includes international humanitarian law) and the U.N. Charter?

Continuing on the Public International Law case Legality of the Threat or Use of Nuclear Weapons, the Court finds as follows: “The Court had established that the U.N. Charter did not permit or prohibit the use any type of weapons. However, it finds that for the a threat or use of force in self-defense to be lawful under Article 51 of the U.N. Charter, the use of nuclear weapons must be necessary and proportionate to the armed attack against which self-defense is exercised. The Court says that the use of nuclear weapons may be proportionate in certain circumstances (the Court does not specify the circumstances)”. The Court goes on to hold that even if the threat or use of nuclear weapons is lawful under the U.N. Charter (in other words, when it is necessary and proportionate), it must still meet the requirements of laws regulating armed conflicts, including international humanitarian law and principles relating to neutrality. The Court finds that it cannot conclude that the recourse of nuclear weapons “would be illegal in any circumstances” or if the use of nuclear weapons was inherently and totally incompatible with international humanitarian law. In view of the unique characteristics of nuclear weapons the use of such weapons in fact seems scarcely reconcilable with respect for such requirements (relating to distinction and suffering). Nevertheless, “The Court considers that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance”. This was reaffirmed in the Court’s conclusion when it held that nuclear weapons were generally, and not absolutely, contrary to international law applicable in armed conflicts: “It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law”. The Court also finds that it could not reach a conclusion on the legality or illegality of the use of nuclear weapons in “an extreme case of self-defense”. The Court highlights the “fundamental right of every State to survival” and holds that “In view of the present state of international law viewed as a whole (and base on) the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality of the use of nuclear weapons by a State in an extreme circumstance of self-defense, in which, its very survival would be at stake”. The Court didn’t elaborate on what would constitute an extreme case of self-defense nor address whether a State having nuclear weapons (a nuclear State) can use it in the defense of another non-nuclear State when that second State very existence is threatened.

The Court finds that there is an obligation “To pursue in good faith and bring to a conclusion negotiations leading to disarmament”. Other interesting aspects of the judgement that haven been dealt with in this post, in detail, includes paragraphs relating to the applicability of human rights and environmental law in times of armed conflict, policy of deterrence, and General Assembly’s contribution to the progressive development of customary law. This is what can be said concerning the Public International Law case Legality of the Threat or Use of Nuclear Weapons.

The Order of the Dolphin and the birth of SETI

Let us look for this new article at the Order of the Dolphin and the birth of SETI. In 1961, when UFOs were all the rage, a group of top scientific minds met in secret at a rural observatory in West Virginia. At the time, the Green Bank Observatory was the biggest telescope in the burgeoning practice of radio astronomy. While the list of meeting attendees now reads like a who’s who of the era’s luminaries, the reason they gathered covertly was because of the taboo nature of their topic of discussion. These scientists wanted to find, and talk to, aliens. They didn’t know it, but they were about to launch the modern Search for Extraterrestrial Intelligence, or SETI.

Let’s back up a moment. In 1958, a newly minted Harvard Ph.D. named Frank Drake came to Green Bank. Usually, he sought out typical radio astronomy targets – the Van Allen Belts around Earth, say, or the surface temperature of Venus, or the radiation belts of Jupiter. But one day in 1960, Frank Drake and his colleagues instead tuned into two nearby stars, Tau Ceti and Epsilon Eridani. Their goal was simple: they were alien hunting, hoping to hear radio communications originating from intelligent extraterrestrials. UFOs were popular then, but Drake’s research was legitimate, one of the first dedicated scientific searches for aliens. Frank Drake had been spurred on by Giuseppe Cocconi and Philip Morrison, who the previous year had co-authored a Nature paper with the provocative title “Searching for Interstellar Communications”. It remains a foundational SETI text. Much to Drake’s surprise, his team actually heard something in those first few experiments. Unfortunately, it ended up being just a high altitude plane. Project Ozma, as the research was called (after Lyman Frank Baum’s fictional Princess Ozma), was both the first SETI experiment and the first SETI false alarm. “We had failed to detect a genuine alien signal, it was true, but we had succeeded in demonstrating that searching was a feasible, and even reasonable, thing to do” Drake wrote in his book Is Anyone Out There?, co-written with science writer Dava Sobel. While Frank Drake was launching some of the first SETI programs, John Lilly – a physician, philosopher, writer and inventor – was attempting to communicate with his own alien intelligence. He just wasn’t looking quite as far.

Humans are, in fact, surrounded by intelligence. Our fellow great apes understand the rudiments of language, and seem to possess highly organised social structures, tool-making skills and self-awareness. Creatures literally great and small – elephants and crows – have many of these qualities as well. Intelligent life isn’t isolated to land, either. The octopus brain is one of the most remarkable on Earth, and its close cousin, the cuttlefish, is no slouch either. But the superstars of the sea, to most humans, are marine mammals, especially dolphins and whales. John Lilly wanted to understand and communicate with dolphins – literally, to speak their language. And his ideas were taken seriously. He founded the Communication Research Institute in the late 1950s, and published research suggesting that his attempts to talk to dolphins were working. He also saw the experiments as a way to help efforts to contact aliens. If we can crack the code of dolphin language, John Lilly thought, we might just have a shot at decoding other alien communications, too. Now, back to that clandestine 1961 meeting at Green Bank.

The Space Science Board, a branch of the National Academy of Sciences, had tasked scientist and ballistics expert J. P. T. Pearman with putting together a meeting to expand the search for alien intelligence. While it wasn’t officially a secret meeting, it wasn’t well publicised either, since the topic was still considered one of the fringes of established research. No one wanted to put their career on the line to search for little green men. Counting J. P. T. Pearman, the gathering included ten scientists. Frank Drake and John Lilly were there, of course, as well as Drake’s inspiration Philipp Morrison. Also in attendance were experts Dana Atchley, pre-eminent biochemist, Melvin Calvin, optical astronomer, Su-Shu Huang (who first proposed the concept of “habitable zones”), computing pioneer Bernard M. Oliver and Russian astronomer Otto Struve. The final attendee was a young Carl Sagan, now perhaps the best known of the bunch. The biggest outcome of the conference was the Drake equation. To know if aliens were out there, it helped to have an idea of how abundant they might be. The equation quantified estimates of star formation, planet formation, the likelihood of intelligent life arising and other factors necessary for intelligent life to exist.

Despite its output of hard numbers, the Drake equation is more symbolic than descriptive, a thoughtful tool to guide how scientists should think about looking for alien life. It set the tone for SETI and how it would be carried out in the subsequent decades, and offered a way forward for research that combined various legitimate scientific disciplines. As it happened, Melvin Calvin won the Nobel Prize, and the attendees indeed busted out the bubbly. But John Lilly became another star of the show. Drake would write that “Much of that first day, he regaled us with tales of his bottlenose dolphins, whose brains, he said, were larger than ours and just as densely packed with neurons. Some parts of the dolphin brain looked even more complex than their human counterparts, he averred. Clearly, more than one intelligent species had evolved on Earth”. John Lilly told the attendees he also heard signs of language, and empathy, in recordings of the dolphins. “In fact, if we slowed down the playback speed of the tape recorder enough, the squeaks and clicks sounded like human language. We were all totally enthralled by these reports. We felt some of the excitement in store for us when we encounter nonhuman intelligence of extraterrestrial origin”. John Lilly’s research generated so much excitement that, by the end of the conference, the attendees called themselves the Order of the Dolphin. Calvin, in his post-Nobel joy, even went on to send commemorative pins to the attendees. “He caused to be made these little pins which had silver dolphins on them, which he sent to all of us. It wasn’t that we ever had meetings or chose officers of the Order of the Dolphin. It was just a souvenir of the particular time together”.

Their excitement may have been a little hasty. In retrospect, Frank Drake wrote: “I now think that Lilly’s work was poor science. He had probably distilled endless hours of recordings to select those little bits that sounded human-like”. “At that time, we were quite enthusiastic about it because John Lilly came and told us about communications with dolphins. Within a few years, the subject had pretty much dissipated, and Lilly’s work was not found to be reliable”. Shortly after the Order of the Dolphin meeting, Lilly began incorporating ketamine and LSD (legal at the time) into his experiments, hoping it would help him communicate better with dolphins. While Carl Sagan visited the early experiments, reporting back to Drake on Lilly’s progress, as the science became hazier, Sagan’s interest drifted as well. The work has tainted attempts to understand the intelligence of dolphins ever since. But while he may have veered into the realm of pseudo-science, Lilly did provide one useful guideline for future SETI efforts. “We came to a general conclusion, that in order to make any sense out of an alien language, you had to hear a conversation between two of them. You had to sit between them and hear a call and a response. You couldn’t just hear one side of the conversation, you couldn’t just receive”. This is what can be said concerning the Order of the Dolphin and the birth of SETI.

A history of Vomit Comets

Parabolic flight using what is sometimes referred to as Vomit Comets, as a way of simulating weightlessness, was first proposed by the German aerospace engineer Fritz Haber and the German physicist Heinz Haber in 1950. Both had been brought to the U.S. after World War II as part of “Operation Paperclip”. The primary purpose for Operation Paperclip was U.S. military advantage during the Cold War, and the Space Race.

The “Vomit Comet” refers to a NASA program that introduced astronauts to the feeling of zero-gravity spaceflight. Recruits climbed aboard a specially fitted aircraft that dipped and climbed through the air to simulate the feeling of weightlessness, in twenty to twenty-five second intervals.

The Vomit Comets

According to NASA, its “reduced gravity” research program started in 1959. NASA has flown several types of aircraft over the years, perhaps most famously the KC-135A aircraft that is now retired. The agency currently offers flight opportunities on the Boeing 727-200F operated by Zero G Corp. In late 2004, the Zero Gravity Corporation became the first company in the United States of America to offer zero-g flights to the general public, using Boeing 727 jets. Each flight consists of around fifteen parabolas, including simulations of the gravity levels of the Moon and Mars, as well as complete weightlessness. This profile allows ZERO-G’s clients to enjoy weightlessness with minimal motion discomfort.

In 2014, Integrated Spaceflight Services, the research and education partner of Swiss Space Systems (S3) in the United States of America, began offering comprehensive reduced-gravity services on S3’s Airbus A340 aircraft, as well as FAA certification of science and engineering payloads. This project has been unsuccessful and Swiss Space Systems has bankrupted and ceased all operations.

Aurora Aerospace in Oldsmar, Florida, offers zero-g flights using a Fuji/Rockwell Commander 700. It is also used to simulate the gravity of the Moon and Mars. The Canadian Space Agency and the National Research Council have a Falcon 20 used for microgravity research. The small plane is normally not used for people to float freely and experience weightlessness.

The first zero-g plane to enter service in Latin America was a T-39 Sabreliner nicknamed CONDOR, operated for the Ecuadorian Civilian Space Agency and the Ecuadorian Air Force since May 2008. On June 19, 2008, this plane carried a seven-year-old boy, setting the Guinness World Record for the youngest person to fly in microgravity.

Europeans, meanwhile, did the first parabolic flights to carry out experiments in microgravity since 1989 aboard a Sud Aviation SE 210 Caravelle. This program was initiated at the time by the French astronauts Jean-François Clervoy and Jean-Pierre Haigneré, to be independent of the United States of America or Soviet planes, which realized this type of flights after the Second World War. It was the French DGA which was operator at the time of the plane.

In Russia, commercial flights are offered on the Ilyushin Il-78 jet. Several U.S. companies book flights on these jets. OK Go, an American alternative rock band, made a music video for their song “Upside Down & Inside Out” while moving about in microgravity. The music video was shot on an Ilyushin Il-76 jet as part of an advertising campaign for Russian S7 Airlines.

What are they used for?

An airplane flies with its engines and wings mainly. The engines provide the acceleration necessary to counteract the drag force due to friction of the air. The wings provide the lift, a force that counteracts gravity. During a parabolic flight, the aircraft is brought into an angle that allows the suppression of lift and fall into free fall, like satellites.

For this, in a first step, the plane flying at twenty thousand feet (about six thousand meters altitude) is pitched between forty-seven and fifty degrees. The pilot then decreases the thrust of the reactors so as to compensate for the friction of the air and the aircraft enters the phase of free fall. Its content then returns to microgravity. The momentum of the aircraft allows it to reach twenty-eight thousand feet (about eight thousand meters) then it falls (descending phase of the parabola) with an angle of about forty-two degrees. Then, the plane resumes its horizontal flight at twenty thousand feet. The operation lasts about one minute to obtain twenty to twenty-five seconds of weightlessness sandwiched between two periods. During the phases of ascent, people on the plane can weigh up to almost twice their weight.

A typical flight will see two to three hours of plunging arcs, giving astronauts about thirty or forty chances to experience weightlessness when the airplane drops to a lower altitude. Some researchers also use the flights as a chance to run experiments in weightlessness.

At the beginning these flights were useful for science research, indeed many scientists work all day on theories related to space or lack of gravity, and that sometimes these same scientists need to go through experiments, their theories. These practical cases could be done in outer space, but for budget and practical reasons, the zero-g flight is an excellent compromise. The thing that is great with the zero-g flight, it is that the experiment can embark with the scientist, which is priceless and what is not really feasible during a space flight. The zero-g aircraft can board up to fifteen experiments at the same time. Some student research projects (and the students themselves) can also come on board. Nearly eighty percent of scientific experiments are satisfied with one or more parabolic flights, and do not need a space flight afterwards.

Also with Vomit Comets, before going into space, astronauts must train. They must know how to move in a state of weightlessness and these flights allow them to do this, as well as training in the pool to complete their training to go on missions aboard the ISS. Microgravity flights are used for a variety of purposes, especially in the film industry. For instance, the actors of the movie “Apollo 13” (Tom Hanks, Kevin Bacon and Bill Paxton) were probably the most famous visitors on the KC-135A parabola flights in the 1990s. Set designers created a spacecraft interior adapted to the inside of the airplane, then the cameras captured shots on film, in less than thirty seconds of acting at a time. Director Ron Howard leased the aircraft over six months to achieve the weightless shots. This is what can be said concerning Vomit Comets.

The Bogotá Declaration and space law

For this new space law article, let’s study the Bogotá Declaration. Faced with the saturation of the orbit and frequencies by developed countries, some equatorial countries have claimed in 1976 sovereignty or exclusive rights over portions of the geostationary orbit located above their territory. They questioned the applicability of the 1967 Outer Space Treaty to this area. Most states, on the contrary, believe that the 1967 Outer Space Treaty applies to the geostationary orbit.

By the Declaration Of The First Meeting Of Equatorial Countries or “Bogotá Declaration”, adopted on December 3, 1976, seven equatorial countries affirmed their sovereignty over the portions of geostationary orbit over their territory. These states are: Colombia, the Republic of Congo, Ecuador, Indonesia, Kenya, Uganda and Zaire; an eighth state, Brazil, has signed the Bogotá Declaration as an observer. Gabon and Somalia joined this group later.

The Bogotá Declaration and space law

In order to preserve their interests against the developed countries, the equatorial countries have claimed to extend their national jurisdiction to the part of the geostationary orbit situated above their territory. Because it only benefited a tiny minority of uninfluential states, this claim ran into opposition from the international community. The equatorial states have recently reformulated their claims in more moderate terms: instead of asserting their sovereignty, they now prefer to invoke preferential rights. Nevertheless, even in this form, these claims appear to be inconsistent with the 1967 Outer Space Treaty, of which Article II prohibits national appropriation: “Outer  space,  including  the  Moon  and  other  celestial  bodies,  is  not  subject  to national  appropriation  by  claim  of  sovereignty,  by  means  of  use  or  occupation,  or by  any  other  means”.

On a scientific level, the equatorial countries have argued that the geostationary orbit is a phenomenon related exclusively to Earth’s gravity and is not part of outer space. Legally, therefore, it cannot be subject to space law and the prohibition of appropriation enshrined in the 1967 Outer Space Treaty. The part of this area which is located above the equatorial countries would fall within their national space. These countries added that geostationary orbit is a limited natural resource on which they exercise their permanent sovereignty. The absence of delimitation of outer space and the right of each State to define its national space are invoked in support of these claims. It follows from this absence of delimitation that the scope of the principle of non-appropriation remains undefined and that that principle appears in any event to be inapplicable to the geostationary orbit.

The Bogotá Declaration states that geostationary positions above the high seas are the common heritage of mankind. On the other hand, no specific legal basis is clearly invoked to justify that the portions of the geostationary orbit claimed by the equatorial countries belong to these states rather than to any other state. Siegfried Weissner, a Professor of Law, believes that the claims of these countries are based on the idea of contiguity; “The Public Order of the Geostationary Orbit: Blueprints for the Future”.

As a consequence of its incorporation into the national territory claimed by the equatorial countries, the geostationary orbit (overlying) would not be subject to a regime of free and equal access for all states. The former would be the sole masters of the use of this space. The placing of geostationary satellites in orbit would be subject to prior authorization and the exploitation of this position should be in accordance with the national laws of the countries in question.

In the context of the International Telecommunication Union (ITU), the equatorial countries have repeatedly reaffirmed their claims. At the WARC on Direct Broadcasting, they expressed reservations to the Final Acts of this conference. They emphasized that they did not claim sovereignty over space within the meaning of the 1967 Outer Space Treaty, which did have the effect of including in outer space spaces previously subject to the jurisdiction of states.

They further stated that the positioning and operations of geostationary satellites over their territories should be subject to the authorization and national legislation of the underlying state. Finally, they added that they did not consider themselves bound by the resolutions, agreements and decisions of the Conference relating to the positioning of satellites in their orbital space. At subsequent ITU conferences, the equatorial countries have generally maintained their claims.

Because of the opposition they have faced with the Bogotá Declaration, the positions of the equatorial countries has evolved: they no longer claim sovereignty over the geostationary orbit, but only “preferential rights”. At the same time, they no longer oppose efforts, particularly by the ITU, to define an international regime for access to the geostationary orbit, taking into account the interests of developing countries, but consider that this regime should give them preferential rights. However, at the level of the legal regime of the geostationary orbit, the evolution of the requirements of the equatorial countries is less clear, since they always claim to require prior authorization for the geostationary satellites into orbit. Finally, Colombia suggested an analogy with the Exclusive Economic Zone in the Law of the Sea to distinguish sovereignty from the “rights to explore and exploit”. The role of the ITU and the place of a future international regime in relation to these rights does not appear to be very clear in the conception of the equatorial countries. Their claims have been rejected by the dominant doctrine and by most states.

The current access regime to the geostationary orbit includes both the prohibition to appropriate this space and the right to use it. The principle of non-appropriation of the 1967 Outer Space Treaty does not impose limits on the duration or number of satellites that a state may place there. Geostationary satellites also have the right to use the associated frequencies. This de facto appropriation by the first-comers, developed countries, of the orbit and frequencies, is protected by space law and International Telecommunications Law. The challenge by developing countries of grabbing these resources is therefore unjustified on the basis of existing law. Denying access to newcomers or making access more difficult does not constitute appropriation; it simply results from the traditional system of distribution of access rights.

The practice of developed states is based on free access and priority given to the first satellites placed in the geostationary orbit. The placing into orbit of satellites is in accordance with the 1967 Outer Space Treaty. These satellites have the right to pursue a trajectory without interference from satellites later placed in orbit. In addition, the international regulation of the radio spectrum has favored the development of satellite telecommunications systems. Increasing congestion of the orbit and frequencies may limit the access and opportunities of developing countries in the future. It will become more and more difficult to use frequencies from the geostationary orbit under satisfactory conditions (without creating or suffering radio interference, or without incurring additional costs). Common law regime for the use of frequencies traditionally protects the first users against such interference. In this situation, new entrants must design their space telecommunication systems taking into account both the trajectory and the frequencies used by the satellites in place.

Unlike the regime of orbit and outer space in general, for more than half a century, there has already been an institutionalized mechanism for access to radio frequencies. This mechanism makes it possible to coordinate the use of frequencies and thereby, prevents harmful interference between radio stations under the jurisdiction of different states. In order to avoid anarchy in this area, ITU distributes radio waves between recognized radio services. Thus, the frequencies used by the various services at the international level are determined in advance before the establishment of telecommunications stations. Any state wishing to establish a station and allocate a frequency band, must comply with the service allocation deriving from international regulations.

While inter-service distribution is pre-established, the distribution among states within a given service is traditionally done according to their order of arrival: the first to notify the use of a frequency band by a station under its jurisdiction acquires a right of priority at the international level. Frequency assignments by states must be registered with the ITU. Within the latter, the International Frequency Registration Board examines the compliance of these assignments with the regulations in force and the possibility of interference with other stations already in operation. In case of conflict between an existing user registered before the International Frequency Registration Board and a newcomer, preference is given to the first one; this is sometimes described as “first come, first served”.

Some developing countries have argued that the utilization of geostationary orbit by developed countries is contrary to the 1967 Outer Space Treaty and, in particular, to the principle of non-appropriation. For a variety of reasons, this challenge to current practice does not really addresses the problem of orbital saturation. First, the 1967 Outer Space Treaty and the prohibition of appropriation do not limit the use of orbital space. In addition, this instrument appears unable to provide a solution to the problem of saturation of the orbit, because it is primarily due to exogenous constraints related to the use of radio frequencies. Access to the frequency spectrum depends on International Telecommunications Law and not on space law.

Continuing with the Bogotá Declaration, Article II of the 1967 Outer Space Treaty prohibits, inter alia, appropriation “by use”. This terminology seems to support, as developing countries have done, that the occupation of geostationary positions constitutes appropriation. On the contrary, developed countries, including the United States of America and Russia, have argued that the use of a favorable orbit for legitimate activities cannot be considered a prohibited appropriation. The German Democratic Republic, for its part, has stated in 1976 that: “The use of the geostationary-satellite orbit by States or international organizations does not constitute an appropriation by use or occupation within the meaning of Article II of the 1967 Treaty as long as it is not dictated by the manifest intent to establish and maintain exclusive sovereign rights over any part of the orbit”.

Only a minority of authors have challenged the current practice of access to the geostationary orbit on the basis of the 1967 Outer Space Treaty. According to Marko G. Markoff, the permanent occupation of an orbital area by a space station which is used for the exclusive benefit of a state contradicts, even in the absence of animus appropriandi, the principles of non-appropriation and use of space in the interest of all states.

Concluding remarks

The geostationary orbit is part of outer space and, as such, the customary principle of non-appropriation and the 1967 Outer Space Treaty apply to it. The equatorial countries have claimed sovereignty and then preferential rights over this space. These claims are contrary to the 1967 Outer Space Treaty and customary law. However, they testify to the anxiety of the equatorial countries, shared by developing countries, in the face of the saturation and seizure of geostationary positions by the developed countries.

However, the question of saturation of the orbit is too complex to be considered and resolved within the limited framework of the principles of space law, including the principle of non-appropriation. The regime of res communis of outer space in space law (free access and non-appropriation) does not meet the demand of the developing countries that their possibilities of future access to the geostationary orbit and associated radio frequencies be guaranteed. New rules appear necessary and have been envisaged to ensure the access of all states to these positions and frequencies. That is what can be said concerning the Bogotá Declaration.

What is Asgardia?

Asgardia, also known as the “Space Kingdom of Asgardia” and “Asgardia the Space Nation”, is a micronation formed by a group of people who have launched a satellite into Low Earth Orbit (LEO). They refer to themselves as Asgardians and have given their satellite the name Asgardia-1. They have declared sovereignty over the space occupied by and contained within Asgardia -1. The Asgardians have adopted a constitution and they intend to access outer space free of the control of existing nations, and establish a permanent settlement on the Moon by 2043.

The nation proposal was announced in October 2016 by Igor Ashurbeyli, the founder of the International Center for Aerospace Research (Vienna), and by the chair of the UNESCO Space Science Committee. Asgardia has not yet attained the goal of being recognized as a state.

How does Asgardia works?

The Constitution of Asgardia divides Governance of Asgardia into three branches: (1) a legislative branch named the Parliament, (2) an executive branch named the Government, and (3) a judicial branch named the Court.

(1) The Parliament is composed of one hundred and fifty non-partisan members and each member is referred to as a Member of Parliament (MP). The Members of Parliament elect one Member to the office of Chairman of the Parliament. The Members of Parliament also appoint the Chairman of the Government. The Parliament has twelve permanent committees; the Chairman of Parliament of Asgardia is Mr. Lembit Opik.

(2) The Head of Nation is the most senior official of the executive branch. The Head of Nation is elected to a 5-year term of office. The Head of Nation may dissolve the Parliament and may then order the holding of parliamentary elections. The Head of Nation may initiate legislative proposals and may veto acts adopted by the Parliament. The Head of Nation may issue decrees that must be obeyed by governmental bodies and by the citizens of Asgardia. The Head of Nation is Igor Ashurbeyli.

The Chairman of the Government supervises twelve Ministers. Each Minister supervises the operation of one Government Ministry. Each of the permanent committees of Parliament monitors the operation of one Government Ministry. The Parliament may invite Ministers to attend meetings of the Parliament. Asgardia’s Head of the Government is Ms. Ana Díaz.

(3) The judicial branch includes a Supreme Justice, who supervises the operation of four judicial panels: (1) a constitutional panel, (2) a civil panel, (3) an administrative panel, and (4) a criminal panel. The Supreme Justice is appointed by the Head of Nation. The Justices who serve on the judicial panels are appointed by the Parliament.

Asgardia’s Supreme Justice is Zhao Yun, head of the Department of Law at The University of Hong Kong, and was appointed as Asgardia’s Supreme Justice on June 24, 2018 during the first parliamentary session in Vienna, where he was introduced to the elected Members of Parliament.

Its activities

Asgardia intends to launch a series of satellites into Low Earth Orbit (LEO). Its first satellite was successfully launched by Orbital ATK on November 12, 2017 as part of an International Space Station resupply mission.

Asgardia-1 was boosted to space and then deployed by U.S. companies on a NASA-funded mission; so the satellite falls under U.S. jurisdiction. Asgardia intends to partner with a non-signatory to the Outer Space Treaty (OST), perhaps an African state such as Ethiopia or Kenya, in the hopes of circumventing the OST’s restriction on states claiming territory in outer space. The satellite is expected to have a lifetime of five years before its orbit decays and it burns up on re-entry.

Often described as a billionaire, Igor Ashurbeyli, Head of Nation, has said that he is currently solely responsible for funding Asgardia, and that members will not be funding the planned first satellite launch. Although the cost has not been made publicly available, NanoRacks have said that similar projects cost approximatively seven hundred thousand American dollars. The project intends to move to crowdfunding to finance itself. Sa’id Mosteshar, of the London Institute of Space Policy and Law, says this suggests that Asgardia lacks a credible business plan. A company, Asgardia AG, has been incorporated, and members can buy shares in it. Asgardia wants to enable its founders’ companies to use Asgardia’s satellite network for their own services and business activities. These are to be settled via the crypto currency Solar and the reserve currency Lunar.

Eventually, Asgardia hopes to have a colony in orbit. This will be expensive: the International Space Station costed one hundred billion American dollars to build, and flights to it cost over forty million American dollars per launch. Asgardia has been compared to the troubled Mars One project, which aims to establish a permanent colony on Mars, although Asgardia’s organizers point out that setting up a small nation in orbit will be a lot easier than colonizing distant Mars. Other proposed goals for the future include shielding the Earth from asteroids and coronal mass ejections, and a Moon base.

Its future

Both U.N. General Assembly Resolution 1962 (XVIII) and the Outer Space Treaty (OST) of 1967 have established all of outer space as an international commons by describing it as the “province of all mankind” and, as a fundamental principle of space law, declaring that space, including the Moon and other celestial bodies, is not subject to any national sovereignty claim. Article VI of the Outer Space Treaty vests the responsibility for activities in space to States Parties, regardless of whether they are carried out by governments or non-governmental entities. Article VIII enounces that the State Party to the Treaty that launches a space object shall retain jurisdiction and control over that object.

According to Sa’id Mosteshar, “the Outer Space Treaty, accepted by everybody, says very clearly that no part of outer space can be appropriated by any state”. Without self-governing territory in space where citizens are present, Sa’id Mosteshar suggested that the prospect any country would recognize Asgardia was slim.

Ram Jakhu, the director of McGill University’s Institute of Air and Space Law, and Asgardia’s legal expert, believes that Asgardia will be able to fulfil three of the four elements that the U.N. requires when considering if an entity is a state : citizens ; a government ; and territory, being an inhabited spacecraft. In that situation, Ram Jakhu considers that fulfilling the fourth element, gaining recognition by the U.N. member states, will be achievable, and Asgardia will then be able to apply for U.N. membership. The Security Council would then have to assess the application, as well as obtain approval from two-thirds of the members of the General Assembly.

Joanne Gabrynowicz, an expert in space law and a professor at the Beijing Institute of Technology’s School of Law, believes that Asgardia will have trouble attaining recognition as a nation. She says there are a number of entities on Earth whose status as an independent nation have been a matter of dispute for a long time. It is reasonable to expect that the status of an unpopulated object that is not on Earth will be disputed.

Finally, Christopher Newman, an expert in space law at the UK’s University of Sunderland, highlights that Asgardia is trying to achieve a complete re-visitation of the current space-law framework, anticipating that the project will face significant obstacles with getting U.N. recognition and dealing with liability issues. The Outer Space Treaty requires the country that sends a mission into space to be responsible for the mission, including any damage it might cause. That is what can be said concerning Asgardia.

Swarm Technologies and space law

Swarm Technologies, the Silicon Valley creator of “SpaceBee” picosatellites, is an American start-up led by a former NASA and Google collaborator, based in California, founded in 2016 and which produces the world’s smallest two-way communication satellites, the SpaceBee. With these miniature satellites, Swarm Technologies wants to test in space a new type of Internet network, operating through a swarm of miniature satellites.

Since 2017, Swarm Technologies has built, launched and operated nine miniature satellites, raised more than twenty-eight million American dollars for a 150-spacecraft constellation, and forged agreements with some two hundred potential customers.

Swarm Technologies and space law

Four prototypes of the American start-up Swarm Technologies were illegally put into orbit on January 12, 2018, by Antrix Corporation Limited (Antrix), which could be presented as the commercial branch of the Indian Space Agency (ISRO). These stowaways (because Swarm Technologies knew they were not authorised by the Federal Communications Commission or FCC, an independent agency of the United States government created by statute to regulate interstate communications by radio, television, wire, satellite, and cable) were loaded aboard the Polar Satellite Launch Vehicle (PSLV-C40), containing a total of thirty-one satellites of different sizes. The information was revealed by the website IEEE Spectrum, and confirmed by the FCC.

Whenever a U.S. company wants to send a satellite into orbit, it must apply for a license with the Federal Communications Commission (FCC) to access the radio frequencies needed to communicate with the satellite. The same is true for international companies hoping to do business with their spacecraft in the United States of America” says The Verge.

The Federal Communications Commission (FCC) had rejected Swarm Technologies’ application for authorisation in December 2017, because, according to the Federal Communications Commission (FCC), the prototypes represented a risk of collision with other spacecraft due to their size. Each picosatellite is the size of a book, four times less than a standard CubeSat with a size of ten centimetres by ten centimetres by ten centimetres. According to the Federal Communications Commission (FCC), these picosatellites are not large enough to be tracked and located effectively in outer space, and could in case of software failure, turn into space debris potentially devastating for their neighbours. Swarm Technologies has added a GPS module and radar reflectors in response to the Federal Communications Commission’s fears, but for the latter, these precautions were not enough.

In addition, during its investigation, the FCC discovered that the start-up had been acting in the most complete illegality, including exploiting satellite signals for more than a week, by conducting unauthorised testing of weather balloons with the company (a ground station in Georgia and some equipment before the launch of “SpaceBee”). All of these activities normally require the approval of the Federal Communications Commission (FCC).

Access to outer space is regulated

Contrary to what we might think, access to outer space is well and truly regulated. It is not possible to place any object in orbit around the Earth without having previously obtained certain permissions. For example, the 1967 Outer Space Treaty requires States to register all their space objects by registering them in a national register, which is then communicated to the United Nations (UN).

Article II of the Convention on Registration of Objects Launched into Outer Space (entered into force on September 15, 1976), states that “1. When a space object is launched into Earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry.

2. Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, bearing in mind the provisions of article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and without prejudice to appropriate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof.

3. The contents of each registry and the conditions under which it is maintained shall be determined by the State of registry concerned”.

Such registration naturally implies that the authorities of the country in which the application was made have approved access to outer space. And this is not just about businesses; space agencies are also concerned. Thus, when NASA (United States of America), ESA (Europe) or any other space agency involved in the International Space Station (ISS) adds a new module, it must also be registered.

The registration application is not the only step to deal with. With respect to communication with the ground, one must also obtain, for the United States of America, permission from the Federal Communications Commission (FCC). In the French case, the approval of the French Frequency Agency (ANFR for “Agence nationale des fréquences”), which must ensure that the file is compatible with the rules in force. If these are respected, requests for frequency assignments are communicated to the International Telecommunication Union (ITU). From that moment, the lights are green to orbit an object around our planet.

Sanctions in case of illegal launch

The Federal Communications Commission (FCC) sanctioned the American start-up. The company was fined nine hundred thousand American dollars and subjected to extended surveillance for three years. This last point means that Swarm Technologies will have to notify to the FCC five days before the signing of a launch contract, and at least forty-five days before the effective date of this launch. The company, based in Los Altos, California, is now committed to strictly abide by the rules of the Federal Communications Commission (FCC).

Reacting to this sanction, one of the FCC officials said that it is not about preventing start-ups from conquering outer space, but from doing so in an orderly manner. “These important obligations protect other operators from radio interferences and collisions, making space a safer place to operate”. No need to make a Wild West. Nonetheless, less than a year after these sanctions, for the least severe, Swarm Technologies has reinforced its relationship with the American Federal Communications Commission (FCC), to the point where the Silicon Valley start-up is closing in on a license to offer communication services in the United States of America. This is what can be said concerning Swarm Technologies and space law.

The Convention on Biological Diversity

The International Convention on Biodiversity or “Convention on Biological Diversity” (CBD) brings together, under the auspices of the United Nations, one hundred and ninety-six countries participating in international negotiations on the preservation of biodiversity. The Convention on Biological Diversity was opened for signature at the Earth Summit in Rio de Janeiro on June 5, 1992, and entered into force on December 29, 1993.

The Convention is a legally binding international treaty with three main objectives: conservation of biological diversity, sustainable use of biological diversity, and the fair and equitable sharing of benefits arising from the use of genetic resources. Its overall goal is to encourage actions that will lead to a sustainable future. Moreover, because of its three objectives, the Convention on Biological Diversity is often considered as the main international instrument for sustainable development.

The Convention on Biological Diversity: context of its adoption

Since the dawn of the industrial era, the biological diversity of our planet (that means, the diversity of life forms on Earth, also called biodiversity) disappears at an alarming rate: this rate is estimated between one hundred and one thousand times faster than the normal rhythm on the geologic time scales. The experts call this ecological catastrophe the sixth massive extinction of species in the history of the planet (the last since the collision of a huge asteroid with our planet, sixty-five million years ago, that has erased of its surface half of the living species).

Awareness of this alarming situation by the international community is not new. It really emerged in the 1970s with the Stockholm Summit on the Environment as a highlight. Over the next decade, the publication of the report of the World Commission on Environment and Development had greatly increased the attention of policymakers and civil society to this situation. In the wake of this report, governments decided to take action by adopting the Convention on Biological Diversity, not without difficulty, in May 1992, in Nairobi (Kenya).

The Convention on Biological Diversity was opened for government signature at the United Nations Conference on Environment and Development in Rio de Janeiro in June of the same year. During the Conference, one hundred and fifty states signed the text, with the notable exception of the United States of America. Governments have recognised that sustainable management of the world’s living resources is one of the most pressing issues of our time, and have expressed their commitment to addressing it collectively.

The scope of the Convention

The Convention on Biological Diversity is a remarkable convention in scope, complexity and potential to redefine the distribution of rights and obligations of states. It is the first comprehensive treaty covering biodiversity in all its forms, from genes and species, to ecosystems. It recognises the need for a multisectoral approach to ensure the conservation and sustainable use of biological diversity, the importance of sharing information and technologies, and the benefits that can accrue from the use of these resources. For the first time in an international legal instrument, it recognises the importance of traditional knowledge: the sum of the knowledge, innovations and practices of local and indigenous people with direct relevance to the conservation and sustainable use of biological diversity.

Since its adoption in 1992, almost two hundred countries and one regional economic integration organisation, the European Union, have ratified or acceded to it, and it has become one of the most important international agreements. It has given rise to a great deal of activity both nationally and internationally, and increased coordination of intersectoral action within and between countries. It has also enabled the release of international funds to help developing countries and those with economies in transition, mainly through its financial mechanism, the “Global Environment Facility” (GEF).

It also recognises that the causes of biodiversity loss are of a diffuse nature and that they occur most often as secondary effects of economic activities such as agriculture, forestry, fishing, water supply, transportation, urban development or energy. But it is mainly the activities that focus on short-term gains rather than long-term sustainability that have the greatest impact on biodiversity. Thus, taking into account economic and institutional factors in the management of biodiversity is the keystone to achieving the objectives of the Convention on Biological Diversity, which will take into account the needs and concerns of many stakeholders involved, starting with by local communities.

Progress and efficiency

Since governments have not agreed to make the Convention on Biological Diversity a truly binding instrument, it follows that it does not favour the conventional or traditional regulatory approach. Likewise, its provisions are expressed in the form of strategies and general goals, and it is up to the Parties to decide on specific actions according to the circumstances and their capabilities, quite the opposite of precise and inflexible obligations. The Convention also does not set concrete and precise goals, as it does not contain lists or appendices relating to protected sites or species (which several European countries, and above all France, would have strongly desired).

Indeed, there can be only a very partial idea of the effective implementation of the Convention on Biological Diversity at both global and national levels, since there is no independent mechanism for monitoring and evaluating such implementation. The European Union has proposed the creation of such a mechanism at the last meeting of the Conference of the Parties (The Hague, Netherlands, April 2002), but both developed and developing countries are fiercely opposed. Only national reports by governments provide some insight, but many States Parties have not yet established and have not provided information through case studies or other submissions.

Countries did not prepare their strategy and national action plan on biodiversity, which was part of their commitments and cornerstone of national action in the implementation of the Convention. However, most countries became to be in the process of preparing it around nine years after the entry into force of the Convention. At the global level, the effectiveness of the Convention requires, especially, cooperation and coordination with a broad range of other conventions, institutions and processes. But the realisation of the calls for cooperation from the Conference of the Parties is a difficult task. Indeed, each convention or agency has its own work plan, its own constraints whether political or institutional or financial.

The Convention on Biological Diversity has been a key element in addressing the ecological challenge, but is not enough on its own to cope with the magnitude of the situation.

The Philippine Space Act

Rodrigo Duterte, the President of the Philippines, has just signed a new law called “The Philippine Space Act” (Republic Act No. 11363) on August 8, 2019. The latter will allow this country of Southeast Asia to create its own national space agency: the PhilSA. This agency will be situated in the Clark Special Economic Zone, north of Manila.

This new law also creates the Philippine Space Council (SPC), which will be the main advisory body responsible for coordinating and integrating policies, programs and resources affecting space science and technology applications. With this law, the Philippines will be able to acquire a space agency and respond to the “urgent need to create a coherent and unified strategy of development and use of space to keep pace with other countries in space science and technology”, according to the President of the Philippines.

In accordance with the law, a Philippine Space Policy (PSP) will be developed around six key areas; national security and development, risk management and climate studies, space research and development, capacity building of the space industry, space education and awareness, and international cooperation. It constitutes the adoption of the first roadmap for national space policy for the Philippines.

One more actor in the Space Race, thanks to the Philippine Space Act

The Philippines were already part of the Asia-Pacific Space Cooperation Organization (APSCO) as observer status since 2006; it was an inter-governmental space agency responsible for the cooperation of the space programs of the Member States in the Asia-Pacific area. However, the Asia-Pacific Space Cooperation Organization (APSCO) was not intended to allow the Philippines to truly enter the space race, considering the fact that some other countries had already their space program.

The ambitions of the Government of the Philippines is obviously not to send people on the Moon or expensive probes on Mars, nor even develop its own launcher (like India, China or Japan), but aims above all to respond to the need to implement a coherent and unified strategy for the development and use of outer space, with the goal of not lagging behind in space technology. It is also essential to provide the country with a single interlocutor, which will facilitate international cooperation and help maintain its national independence.

The Philippine Space Agency’s objectives will focus on several crucial areas for the country, starting with the management and study of climate risks, which particularly affects the archipelago with disasters and extreme events that are likely to become even more frequent in the context of climate change, or in a general way of global warming. Without real surprise, the Philippine Space Act will address issues of security and national defense, but will also establish a program of research and space development. The Philippine Space Agency, which will be attached to the Office of the President, will be the only interlocutor in the field allowing the country to seal international cooperation agreements on outer space.

According to The Philippine Space Act, an initial operating fund of one billion pesos has been allocated to the Philippine Space Agency, with a ten billion pesos “Philippine Space Development Fund” created exclusively for capital outlays. The agency is also permitted to generate income from its specialised products, services and royalties, as well as accept grants and donations and secure loans.

Soon, Filipino satellites in orbit?

In 2014, the country adopted a micro-satellite program called Philippines Scientific Earth Observation Microsatellite or “PHL-MICROSAT Program” which honed local engineers to produce Diwata-1, Diwata-2, and Maya-1, which were all subsequently launched to outer space via foreign facilities. Indeed, these satellites had been designed with the help of Japanese scientists, and launched by Japan.

Diwata-1 was the first microsatellite and the first satellite built and designed by Filipinos. The satellite was deployed from the Kibō module of the International Space Station (ISS). Its deployment took place in April 27, 2016. This deployment marked the first attempt of the Kibō module to deploy a microsatellite weighing fifty kilograms. The microsatellite was launched for a mission of approximatively twenty months.

Thereafter, Maya-1 was jointly implemented to the program as the first nanosatellite of the Philippines. It has been launched in outer space on June 29, 2018, and has been deployed on August 10, 2018 from the Kibō module of the International Space Station (ISS). Its mission was to experimentally test commercial apparatus. Due to its size, it is a cost-effective educational platform that can help Filipinos build future satellites. It can also be used to relay messages during natural disasters, such as typhoons. Its mission duration is from about six months to a year. Then Diwata-2 was launched on October 29, 2018. It has the same mission as its predecessor, Diwata-1, which is Earth observation. It also carries an amateur radio payload which extends the satellite’s mission to communications.

Filipinos aim to be permanently present in outer space, using these microsatellites within the period of 2017 to 2022. Indeed, Maya-2 and Diwata-3 will replace in the future respectively Maya-1 and Diwata-2. Nonetheless, their launch date is not announced yet.

These missions led the Department of Science and Technology (DOST) to invest around eight pesos since 2010 in space research and development, and has already more than a thousand experts in space science. The challenge of developing observation satellites is crucial for the Philippines. Indeed, the data collected by these satellites is essential, especially for weather forecast. For instance, in France, the data collected by satellites currently represents between seventy-five and ninety-five per cent of the data that feed the numerical weather forecasting models.

Created in 2000 at the initiative of the CNES and the European Space Agency (ESA), the “International Charter: Space and Major Disasters”, a venture between seventeen space agencies to provide free satellite data to those affected by natural or man-made disasters. During the Typhoon Haiyan, known in the Philippines as Super Typhoon Yolanda, one of the most powerful tropical cyclones ever recorded, ten satellites from the “International Charter: Space and Major Disasters”, have been solicited, especially optical satellites, which are more suitable. The difficulty was to cover a huge area that had been damaged, and the need for very high resolution images to cover all of it.

If the Philippine Space Agency’s budget will initially be only one billion pesos, the country intends to allocate ten times more in the years to come. The Philippines would then be able to design its own satellites, to reach mains goals like launching satellites by themselves, to have more independence, and could anticipate more effectively natural disasters. This is what can be said concerning the Philippine Space Act.