Module_2

Module 2: The Basic Principles of Space law

2.1 INTRODUCTION
The widespread notion of the international community showing a common interest in the
exploration and use of outer space has led to the declaration of the outer space as the province
of all mankind.
The concept of province of all mankind is not confined only to the prohibition of national
appropriation of resources in outer space or sharing of benefits derived from the exploitation
of space environment.
The “province of all mankind” requires the states that within a new regime there shall be a
requirement to conserve and protect the outer-space environment.1

2.2. COMMON INTEREST

❖ The sovereign states have the power to pursue their own agenda without regard to the
reaction of other states but this option may not be fully available due to the existence
of international law and the international society.

❖ The states work on the assumption that there can be a common interest in the affairs
of states. The states shall always work keeping in mind the interests and mutual
advantages and will generally conform to international law.

❖ The concept of common interest shows its importance when claims have to be made
for resources outside the territorial sovereignty or national jurisdiction.

❖ It has been enshrined in the article I of the Outer Space Treaty that the exploration
and use of outer space shall not only be carried for the benefit and interest of all
countries but hall also be declared as province of all mankind. This shows that the
interest of all the states have been taken into consideration and shall be protected.

2.3. PROVINCE OF ALL MANKIND
Article I of the Treaty on principles governing the activities of states in the exploration and
use of outer space, including the moon and other celestial bodies2

1 David Tan, Towards a New Regime for the Protection of Outer Space as the Province of All Mankind, 25 Yale
J. Int'l L. 145 (2000) .

❖ This article states the exploration and use of outer space shall be carried on only for
the benefit as well as interest of all the countries and states that the outer space shall
be declared as the province of all mankind.

❖ The article further states that the celestial bodies shall be free for exploration and all
states have a right to explore without discrimination.

❖ It has been mentioned that the scientific investigation shall be carried on and the
states shall promote international facilitation and cooperation between the states.

India signed the Outer Space treaty on March 3, 1967 and it was deposited on January
18,1982.

2.4. NATIONAL NON-APPROPRIATION

❖ The principle of non-appropriation has been envisaged in the article II of the outer
space treaty.

❖ This article has stated that the outer space including the moon and other celestial
bodies shall not be subjected to national appropriation via the means of sovereignty or
by means of occupation or any other means.

If any part of celestial body is found on Earth, then it would not be subject to national non
-appropriation. Therefore, if a meteorite falls on earth, then it would be appropriated
whereas if a metal has been brought from space, that would be subject to national non
appropriation.

2.4.1. What is national appropriation?

2 “TREATY ON PRINCIPLES GOVERNING THE ACTIVITIES OF STATES IN THE
EXPLORATION AND USE OF OUTER SPACE, INCLUDING THE MOON AND OTHER
CELESTIAL BODIES.” International Legal Materials, vol. 6, no. 2, 1967, pp. 386–390. JSTOR,
JSTOR, www.jstor.org/stable/20690204.

❖ The treaty prohibits taking away of or acquisition by the states but contains no
prohibition regarding appropriations by individuals or by private organisations.

❖ In the current scenario, an individual acting on his own behalf has the power to
appropriate any part of outer space including the moon or other celestial bodies.

2.4.2. What constitutes as ‘appropriation’?

❖ The meaning of the term is taking away of property for one’s own or exclusive use
with a sense of permanence.

❖ If there has been no creation of exclusive authority or jurisdiction in relation to a
particular area, then it would not amount to appropriation.

❖ A temporary use cannot be classified as appropriation as it does not amount to
consumption or taking away of something for own or personal use3.

2.4.3. Whether there is any form of authority or a superior control by states carrying
forward the exploration?

❖ The treaty prohibits any form of exercise of authority if it amounts to national
appropriation.

❖ This however does not cover the temporary uses such as spatial use which does not
amount to transformation or deterioration. The consumption of a resource or
destruction may also not be permitted.

❖ The state has the authority and jurisdiction over the object launched and the personnel
sent to space.

❖ The treaty also adds that the state shall be held responsible for the national activities
in the space.

3 Stephen Gorove, Interpreting Article II of the Outer Space Treaty, 37 Fordham L. Rev. 349 (1969). Available
at: h p://ir.lawnet.fordham.edu/ r/vol37/iss3/2.

The Outer Space Treaty pertains to the constitution of International Space Law. This
treaty states that no country can place the weapons of mass destruction on celestial bodies
and should not be subjected to weapon testing. The country shall be held fully liable for
any damage caused by their space object.

❖ This principle has represented the fact that the states have the space to themselves for
free exploration without the possibility of being appropriated.

❖ Article II of the OST has made it clear that the international customs of obtaining
sovereignty, via the means of occupation and discovery, do not apply to the outer
space.4

2.5. FREEDOM OF EXPLORATION, USE AND SCIENTIFIC INVESTIGATION

The principle of freedom of exploration and use is a fundamental principle of the space law
and serves as the key provision in the outer space treaty.

2.5.1. Who is entitled to this freedom?

❖ The OST (Outer space Treaty) has provided that the outer space, including the moon
as well as the other celestial bodies shall be out free for exploration. The language of
the provision has suggested that this freedom is available to all states.

❖ The international organisations, non-governmental organisations as well as citizens
are not precluded from exercising freedom in space as their freedom has been
reinforced by the treaty.

❖ It has been stated in the outer space treaty that when activities are being conducted in
Space by international organisation, responsibility of the compliance of treaty is to be
borne by the organisation as well as the state party to the treaty which are
participating in such organisation5.

4 THE NON-APPROPRIATION PRIN CIPLE UNDER ATTACK: USING ARTICLE II OF THE OUTER
SPACE TREATY IN ITS DEFENCE , Fabio Tronchetti.
5 Freedom of exploration and use in the outer space treaty: a textual analysis and interpretation, Stephan Gorove.

In 2010, SpaceX became the first company to launch a privately built spacecraft into orbit
and return it safely to Earth. The company is now aiming to become the first to dock a
commercial space capsule to the International Space Station. The CEO of the company
has plans to be the first entrepreneur to put an astronaut in orbit.

2.5.2. The limitation on the Freedom of exploration and Use

❖ The Principle of freedom of exploration and use is subjected to various restrictions
and its application can be limited by both general as well as specific provisions.

❖ The general restrictions include the requirements that the explorations and use must
be done for the benefit and in the interest of all the countries.

❖ The exploration must be done without involving any discrimination of any kind and
shall be done on the basis of equality.

❖ The other general limitation which have been imposed are that the exploration must
be done in accordance with the international law and that the space shall always stay
the province of all mankind.

❖ There are some specific limitations which have been imposed on this principle as
well. Such limitations involve

Article II- Prohibition on national appropriation
Article IV- Limitation on military uses
Article IX- Avoidance of contamination which is harmful in nature

2.5.3. What constitutes as Benefits and Interests?

❖ The exploration and the use of celestial body must be carried on for the benefit and in
the interest of all countries.

❖ Benefit refers to advantages while the word interest has been defined as patterns of
demand and expectations supporting the same.

❖ The treaty has not specified the type of benefits that must be derived by the countries
in the exploration of space but it can be inferred that they shall include material,
political, military and other interests.

❖ It could also be assumed that the type of exploration which is permitted under this
treaty is the one which promotes the maintenance of international peace and security.

❖ Another requirement is of disclosing and releasing the information regarding the
exploration which is about to be carried on.

2.5.4. The exploration shall be carried on for “all” countries

❖ The exploration shall be carried on for the benefit of all countries which makes the
outer space a province of all mankind. It has assumed an ideological unity amongst
different nations and mankind.

❖ The phrase “all countries” will include all the states irrespective of the fact whether
they are recognised by other states or not.

❖ This is not limited to states which are parties to a treaty and shall include other states
as well.

❖ This conveys an idea that the treaty aims at making sure that the benefits of the
exploration reaches those states as well which cannot bear the cost of exploration.

2.6. THE COMMON HERITAGE OF MANKIND

❖ This principle has been applicable not just in outer space but also in various other
common areas such as ocean floor, the moon, Antarctica.

❖ This doctrine has made to consider the common spaces as areas owned by no
particular entity but managed by everyone.

❖ Under this doctrine, no international area could be owned legally in whole or in part
by a state or any entity acting under the influence of a state.

❖ The area would be governed by international law.

2.6.1. 5 principle elements which characterise the doctrine of Common heritage of
Mankind

1. The regions under the common heritage of mankind shall not be subject to
appropriation of any kind.

❖ Neither public nor private, national or corporate appropriation have been
permitted and cannot indulge in appropriation of any kind6.

❖ This doctrine mandates that the common areas should be owned by no one but
managed by everyone.

❖ The principle or element of sovereignty would be absent and the right attached
with it such as jurisdiction would still exist.

2. All people are expected to collectively share the management process of the common
area7.
❖ States and national governments would be precluded from this.
❖ This takes away the national interest from administration process.
❖ The universal popular interest should take priority and this should be the
foundation of the administration work carried on in the common space.

3. Sharing of natural resources extracted from common space

❖ The benefits of the derived from the common space shall be enjoyed and shared
internationally.

❖ The private enterprises working for their profit shall be considered inappropriate
unless they are trying to enhance the benefit for the entire mankind.

4. The use of common area should be for peaceful purposes

❖ The common area should only be used for peaceful purposes and the
militarisation or installation of weapons would be prohibited.

❖ There shall be no testing of weapons and no installation of secret military
equipment.

6 "Declaration and Treaty Concerning the Reservation Exclusively for Peaceful Purposes theSea bed and of the
Ocean Floor,Underlying the Seas Beyond the Limits of Prese National Jurisdiction,and the Use of Their
Resources in the Interests of Mankind,"UN Doc.A/AC.105/C.2/SR.75(17Aug.1967).
7 See Gorove,"The Concept of' Common Heritage of Mankind' : A Political , Mora
or Legal Innovation? "(1972) 9 San Diego L.Rev.390.

❖ Under the doctrine of common heritage, the area which I s common shall be
demilitarised and shall be used for peaceful purposes.

Some other characteristics of this principle are pertaining to the research and development of
the region8.

❖ It has been states that the research shall be freely and openly permissible which shall
not harm the environment of the outer space.

❖ The research should be made available as soon as possible to all the states who have
expressed their interests in it.

❖ It has been further stated that the fruits of such research shall be freely circulated for
the benefit of maintaining future scientific cooperation.

2.6.2. Concept of ownership under the Principle of Common Heritage of Mankind

❖ Ownership of regime is legally absent under the regime of common heritage.
❖ This principle lays down the policy of non-proprietorship, no sovereign title available

for legal acquisition.
❖ Consideration is of accessing the space and not the ownership of it.9

2.7. JURISDICTION AND CONTROL

2.7.1. Meaning of jurisdiction

❖ Under the regime of international law, jurisdiction can be explained as the power of
the state to exercise sovereignty and authority. It refers to the power exercised by the
state over persons, events and property.

❖ International law has set out the limits of a state’s jurisdiction and has the power to
prescribe the extent in which the state can exert its jurisdiction.

2.7.2. Article VI and VIII of the Outer Space Treaty

8 Legal Implications of the Concept of the Common Heritage of Mankind, by Christopher C. Joyner.
9 Dolman, at pp.226-230, and Larschan and Brennan.

Article VI

❖ These articles provide for obligations of the state to enact a specific legislation in their
domestic legal order.

❖ Article VI of the outer space treaty put international responsibility on the state of its
national activities in outer space.

❖ Article VI of the Outer Space Treaty raises accountability and provided a national
recourse to take action against the private space activities for which the state was held
responsible internationally

❖ It also states that space activities can very well be carried on by non-state entities but
their responsibility will be borne by the states.

❖ The private actor’s activities and the states activities have not been distinguished
under this treaty and there shall be a direct state responsibility for the actions of
private players10.

Article VIII

❖ This article states that it is the right of the launching state or one of the launching state
to get the space object register in order to exercise jurisdiction and control over it.

❖ Jurisdiction and control has been composed because of the non-appropriation
principle and the lack of state sovereignty.

2.7.3. Understanding jurisdiction and control

❖ Jurisdiction pertains to the enforcement of laws with respect to persons and objects.
Jurisdiction has been distinguished territorial, quasi-territorial and personal
jurisdiction.

❖ Control refers to the extent to which in a given situation control can be exercised by
technical means.

10 National jurisdiction for regulating space activities of governmental and non-governmental entities, PROF.
SERGIO MARCHISIO.

❖ There are different types of control which can either be on the space objects or the
crew operating the ship.

❖ There are various principles which the article contains which are as follows-
▪ It has made an important assumption which is that all the space objects are to
be registered at the national level.
▪ It states that these objects are under the jurisdiction and control of the state of
registry.
▪ It has stated that the stray objects shall be returned to the state of registry11.

The registration of space objects is done under the provisions of convention of
registration of objects launched into outer space which was concluded in 1975.

2.7.4. Future challenges

❖ Different states have established different interoperations of Article VI.
❖ States have taken into account their own reading of provisions based on their

economic, infrastructural, technological and legal features.
❖ This might create a problem in the interference of foreign legislations in the domestic

legislations.
❖ Harmonization of national legislations is needed which shall be achieved by

embracing a pragmatic approach and by making sure that does not work as an
incentive for the states who are not party to the treaty to accede them.

2.8. CO-OPERATION BETWEEN THE STATES

2.8.1. Need for co-operation between the states

❖ Building mutually beneficial relationship between the states in space activities is for
the betterment of all.

❖ In today’s world, the spending on research and development in Space activities has
increased and along with the commercialisation of space activities, the international
cooperation in space will face many challenges.

11 Ibid.

❖ Most of space agencies have realised that for any long range or multi-year project,
international co-operation and partnership is indispensable.

2.8.2. International Co-operation

❖ There are various forms of international co-operations which range from informal
interactions among scientists to formal agreements between governments.

❖ Co-operation can also be in the form of multinational organisations which are set up
for the purpose of facilitation of particular areas of cooperation.

2.8.3. Benefits of International Co-operation

❖ One of the biggest benefits in co-operation include an increase in payoff from a
particular mission.

❖ Partnerships allows to accomplish what an agency could not have achieved alone.
❖ Space activities increase a country’s prestige and displays its capacity and space

partnerships can align with a country’s goals.

In 2004, it was decided that US would go back to the moon, send crew to mars but this
failed in 2010 as it was felt US cannot pursue these ambitions alone. NASA then began
dialogue with various agencies and then in 2007 14 agencies agreed to be a part of ‘the
global exploration strategy’. ISRO is also a part of the international Space exploration
coordination group.

2.8.4. Encouragement to Co-operate

❖ Outer Space Treaty Art. I says that states are obliged to “facilitate and encourage
international cooperation in conducting scientific investigations

❖ Art. II holds that states should carry out space activities “in the interest of maintaining
international peace and security and promoting international cooperation and

understanding”, along with afford “opportunities to observe the flight of space objects
launched by them”
❖ Article IX of the treaty has stated that the states shall be guided by the interest of
mutual interest and co-operation, and if it is felt that the exploration of one state
would affect the exploration of another, they should first consult with them.12

12 Policy and law aspects of International Co-operation in the outer space, Christopher Johnson.