Space Law History 101

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

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

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

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

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

What is Space Law?

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

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

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

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

Space Law History 101

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The birth of Space Law Institutions

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

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

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

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

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

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

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