Part 1 Preparing for space law

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1 flights. This example demonstrates how, even above technical issues, it is legal issues that rule spaceflight. This book by Alexander Soucek is about space. I first met Alexander about eight years ago when he gave a lecture to my students at the Technical University of Munich. I cannot imagine a more professional expert, but also emphatic speaker in the field of space. If you get the chance of visiting one of his presentations, don t miss it otherwise, read this book! Prof. Ulrich Walter, Astronaut of the Space Shuttle mission STS-55, Chair of the Institute of Astronautics, Technical University Munich, Germany Part 1 Preparing for space 1. Why going into outer space? 1 Outer space 2 Advantageous characteristics of the near-earth environment In one sentence: Space isn t remote at all. It s only an hour s drive away if your car could go straight upwards. (F. Hoyle) From the perspective of humans, outer space can be defined as the environment that surrounds Earth and the denser parts of its atmosphere ( > 325). Human space activities are concentrated in a minuscule segment of outer space: the Solar System and most of all the near-earth environment up to app km altitude above the Earth s surface. It is there where we benefit most from properties unique to the outer space environment. An important aspect of placing hardware in outer space is the gain of distance and perspective, i.e. altitude. Another aspect is the gain of time to cover a distance or relay information, i.e. velocity. The absence of denser atmospheric regions filled with air molecules means less drag acting on a space object. A satellite in a so-called Low Earth Orbit (LEO, > 325) achieves one full orbit around Earth in 90 minutes on average. A third aspect is to benefit from the microgravity environment (popularly referred to as weightlessness > 325). 4 LPS LINDE Praktiker Skripten Special

2 Space Law Essentials Exploration is the discovery of something somewhere yet to be explored; utilisation is the economic and non-economic use of outer space (Hobe et al. 2009). Space uses both concepts to describe the rationale for human presence in outer space: leaving Earth to seek out new worlds and expand human knowledge (e.g. by sending a rover to Mars or by mapping star positions with a satellite) and to benefit from the properties of outer space for managing life on Earth. Both require knowledge, resources, services and infrastructure. From the outset, space has emphasised that the exploration and use of outer space shall be carried out for the benefit of all peoples irrespective of the degree of their development, and it calls for cooperation to that end ( > 237 ff.). 3 Exploration and utilisation 4 In the interest of all mankind 2. Recalling basics of public In one sentence: The nucleus of space forms part of public. Space is rooted in public. For the most part, norms of space form part of public, so it is essential to have a solid understanding of this field. This chapter cannot replace a systematic introduction into the theory and practice of public. It merely outlines basic elements of public which are required for the understanding of space. Public can be defined as the sum of legal norms regulating the behaviour of subjects of. Because of the (theoretical) equality and independence of States as main actors and the absence of central, universal organs of legislation, jurisdiction and execution, public differs from national legal systems and is strongly dependant on coordination. Norm enforcement and sanctions are interwoven with political considerations. While the classical nucleus of public mainly defined the borders between the rights and competences of States, modern developments have made public a multilayer instrument to achieve purposes such as the maintenance of peace, a balanced socio-economic development and the promotion of universal human rights, global environmental protection and sustainability. 5 Definition, function and peculiarities of public LPS LINDE Praktiker Skripten Special 5

3 6 Subjects of public 7 Legal personality 8 International responsibility and liability The most important subjects of public are sovereign States. States are independent and equal in principle; according to legal theory, statehood requires a permanent population, a defined territory (see also > 12, 13 and 14) and a sovereign government (capable to enter into relations with other States; sometimes also referred to as a sovereign and organised political authority ). States have been the only space actors during the early space age ( > 17). International organisations (IOs) in the sense of intergovernmental organisations (IGOs), used synonymously in this book, are characteristically created by States through agreements; they possess an institutional structure (at least one organ, typically two: a plenary body and an administrative body, e.g. a secretariat); opposite to ad hoc conferences, they are established to last for a longer period of time. IOs possess (derived) legal personality which usually includes treaty-making power and responsibility. IOs and their staff enjoy certain privileges and immunities, such as the immunity from national jurisdictions. To determine the range of competences of an IO, it is important to analyse the functions it is endowed with ( implied powers ). The United Nations (UN; also: United Nations Organisation, UNO), owing to its quasi-universal character both in terms of State membership and range of activities and competences, has been and still is instrumental for the development of space. Other examples of IOs in the context of space are described in Part 4 ( > 245 ff.). The term legal personality describes the fact that subjects (individuals or entities such as companies, organisations or States) possess rights and duties enforceable by. In other words: Legal systems recognise that certain subjects are the holders of legal rights and duties and thus they have legal personality. In public, it is widely accepted that States and most IOS possess legal personality. An important case for understanding the theory and extent of THE legal personality of IOs is the Reparation for Injuries Suffered in the Service of the United Nations, International Court of Justice (ICJ), 1949: 178. International responsibility describes the attribution of breaches of legal obligations by subjects of public, based on the understanding that every ly wrongful act of a State entails the responsibility of that State (Article 1 Draft Articles on Responsibility of States for Internationally Wrongful Acts, International Law Commission (ILC) 2001). The term also covers the new legal relations which arise under interna- 6 LPS LINDE Praktiker Skripten Special

4 Space Law Essentials tional by reason of the ly wrongful act of a subject of public (ILC 2011). The wrongful act (an action or an omission) must be attributable to the subject and must constitute a breach of an obligation of that subject. In contrast, liability is understood as the obligation to settle damages. International liability can be triggered independently of a breach of obligation, but it requires a damage ( > 48; 62 ff.). Article 38 ICJ Statute lists the widely recognised sources of public : treaty ( conventions, whether general or particular, establishing rules expressly recognized by the contesting states ) custom ( custom, as evidence of a general practice accepted as ) general principles of ( the general principles of recognized by civilized nations ) subsidiary sources ( judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of ) The most important source of space is treaty. The of treaties is codified in the Vienna Convention on the Law of Treaties (VCLT), The VCLT defines a treaty as an agreement concluded between States in written form and governed by, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (Article 2 para.1(a)). Treaty obligations are only binding upon parties to the respective treaty. The core of the codex iuris spatialis consists of five treaties, with the Outer Space Treaty (OST) taking the first and most essential place. Customary requires an objective or material element (State) practice ( material facts ) and a subjective or psychological element the belief that the practice is ful ( opinio iuris ). Some argue that with the silent acceptance of space objects being launched into outer space and satellites orbiting high above State territories, States laid the foundation of customary norms (freedom of access to, exploration and use of outer space). Whether or not the OST, or parts of it, can be considered custom today is subject of discussion and has not yet been confirmed by a competent court; after more than half a century of relatively consistent State practice and wide- 9 Sources of public LPS LINDE Praktiker Skripten Special 7

5 10 Soft 11 Ius cogens (peremptory norms) ranging evidence of opinio iuris, this may well be answered affirmatively ( > 55). General principles of are deducted from (national) legal systems by means of comparison, analogy, etc.; they are considered subsidiary to treaty and custom. Soft describes non-legally binding instruments which nevertheless can have quasi-legal effects. The resolutions of the United Nations General Assembly (UNGA) are one main example. Also non-legally binding codes of conduct (e.g. for space debris mitigation) and guidelines are subsumed under the term. Although the very concept of soft is discussed controversially, it is of importance in space, where treaty-making has lost ground today in favour of non-legally binding instruments ( > 18, 103 ff., 324). Some governments and scholars see this development with scepticism and regret, while others deem it advantageous and inevitable. Ius cogens norms are legal norms from which no derogation is permitted; they are cogent ( peremptory norms ). Such norms can be derived from treaty or custom; they represent fundamental and superior values (Shaw 2014). Treaty norms in conflict with ius cogens are void (Article 53 VCLT). 3. Spatial regimes in : a legal and geographical approach to outer space 12 Law of the sea In one sentence: A lot can be learned for space from sea, air and the governing Antarctica. Space can be better understood and appreciated if studied on the basis of other regimes that were developed as the result of human expansion into and conquest of: the oceans, the atmosphere and the poles, in particular Antarctica. Wherever humans went, followed. Elements of the of the sea had been developed by the Greeks (lex Rhodia de iactu), the sea-faring powers of the middle ages and renaissance (e.g. Black Book of the Admiralty, Treaty of Tordesillas) and during the heydays of exploration and overseas trade in the 17 th century (e.g. bellum librorum between Hugo de Groot, ditto Grotius, and John Selden on the freedom of the seas). Modern of the sea has been codified in the 1982 UN Con- 8 LPS LINDE Praktiker Skripten Special