TREATIES ON OUTER SPACE - A

BIRDSEYE VIEW
Before 1963 - Strong disagreement between U.S.
and USSR
US - Simplicity of GA resolutions
Idea of free use of technical advantage Recognized the Soviet lead in 1963
* Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies
1967 (Outer Space Treaty)
- Impetus - Successful landing of Soviet spacecraft on
moon in 1966
- Magna Carta of international space law
- GA resolution 1962 (XVIII) of 1963 - Fundamental
Principles
- Initial enthusiasm - Most popular among all space
treaties
- Left the door open for further development

11

* Agreement on the Rescue of Astronauts, the

Return of Astronauts and the Return of Objects
Launched into Outer Space, 1968
- Death of 3 US astronauts on board Apollo - I & one
USSR astronaut on board Soyuz - I in 1967
- States to notify launching authority and the Secretary
General of UN about any emergency or unintended
landing
- Search and rescue - Safe and prompt return
- Search and return of space objects - Upon request of
launching authority
- Launching authority must take effective steps to
eliminate possible danger of harm

* Convention on International Liability for

Damage Caused by Space Objects, 1972 (The
Liability Convention)
- Likelihood of accidents, misfires, mishaps, danger to
aircrafts, environmental damage and damage to person
and property of other states
- Absolute liability and liability based upon fault
- Joint launching - Joint and several liability

12

- Settlement of claim - Through diplomatic negotiations

* Convention on Registration of Objects

Launched into Outer Space, 1975 (Registration
Convention)
- Problem of identification of the space objects
- Double registration

* Agreement Governing the Activities of States on

the Moon and Other Celestial Bodies, 1979
(Moon Agreement)
- Conquest of moon on 21 July 1969 - Need for
regulation of human activities
- Article 11 - CHM

Legal Status of the UN Space Treaties

Binding effect - Confined to the contracting parties
Customary international law

The Midway Approach

Enthusiasm on treaties started to obliterate - Failure of
Moon Agreement
No consensus - UN remained as a spectator
* Principles on Direct Television Broadcasting, 1982
13

No consensus in COPUOS - Adopted by GA

Sovereign rights to be respected

International Cooperation, state responsibility etc
* Principles Relating to Remote Sensing of the Earth
from Outer Space, 1986
17 years futile negotiation in UNCOPOUS - Adopted
by GA
South - National Sovereignty - Prior consent & control
by sensed state
North - Freedom of use & dissemination
Sensed states right to have access to data, international
cooperation & technical assistance, benefit & interest
of all countries etc
* Principles Relevant to Use of NPS in Outer Space,
1992
Cosmos 954 - 14 years debate
NPS to be used only when essential
To be used in sufficiently high orbits
Safety assessment by launching state
Risk of falling to be intimated to other states & UN SG

14

State responsibility for national activities

* Declaration on International Cooperation in the

Exploration and Use of Outer Space for the Benefit and
in the Interest of All States, 1996
Supplemental to Article I, OST
Developed states - Skeptical about the information &
technology to be shared
More oriented towards developed states interests - IPR
incorporated - Environment was not mentioned
Nandasiri Jasentuliyana - International space law has
been developed quickly out of an imaginative and
innovative effort at international legislation within
United Nations. If not the United Nations efforts, the
world would have witnessed several major conflicts
between the states relating to space activities
Not perfect or complete - Role of political factors
Non acceptance by the states
Loose wordings of the Outer Space Treaty
No progressive development after 1979

Percolation into the municipal sphere

IPR, financing, licensing private activities, television

15

broadcasting, information technology etc

FUNDAMENTAL PRINCIPLES
GOVERNING THE OUTER SPACE
* PROVINCE OF ALL MANKIND
Res communis - Belonging to all - No appropriation Can be subject to use - No sharing of benefit
Art I, OST & Art 4, the Moon Agreement
Decolonization after 1945 - Economic and political
tensions
Advent of outer space - Hope for the future of the
states
Carl Q. Christol - Starting point for legal reasoning
Benefits derived - Must serve the whole of mankind
No mention of formal institution - Voluntary sharing
processes
Province - Connected with territory & responsibility
over a territory - Not with the property, resources or
benefits derived from such resources (heritage)

16

Carl Q. Christol - the principle of the Common

Heritage of Mankind has significantly advanced the
concepts which are central to the province of mankind
principle.
Article I - United States Senate - it was the
understanding of the Committee on Foreign Relations
that nothing in Article I, paragraph 1, [of the Treaty]
diminishes or alters the right of the United States to
determine howit shares the benefits and results of its
space activities.
Soviet Union - The mankind provisions of the Treaty,
including Article 1, paragraph 1, have no precise
significance and that the character and degree of
participation of States in international space projects
[such as the sharing of benefits] depend, ultimately on
their will

* NATIONAL NON-APPROPRIATION
Came into existence along with the beginning of the
space age
Neither USSR nor US obtained the prior consent of
international community - No state protested
Neither of the superpowers claimed sovereignty
U. N. Doc. A/AC.105/C.2/SR.7 (21 August 1962) - USSR
- No state could claim sovereignty & freedom of

17

exploration and use

Airspace regime is not applicable - First come, first
served can not be applied - Colonization

Article II, OST - 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.
Whether the term national appropriation includes
individual / private appropriation?
Is there a total ban on appropriation?
Stephen Gorove - the subject of the articles
prohibition is national appropriation by any means,
including claims of sovereignty, use or occupation, and
not the exercise of sovereign rights or prerogatives. The
latter would appear to be subject to the prohibition
only if it would, in fact, amount national
appropriation
Ezra J. Reinstein - Development in space must not
occur in a lawless environment. Some government
must be sovereign over each owned parcel of space real
estate, so that rule of law is applied. Without it, space
would most likely be rife with crime against property
and person.

18

Misunderstanding of the concept of sovereignty with

jurisdiction
But state sovereignty is not completely alien to
international space law

Manfred Lachs - States are barred from extending to

and exercising within the moon and other celestial
bodies, those rights which constitute attributes of
territorial sovereignty
Wilfred Jenks - it is most desirable that sovereignty
over unoccupied territory in the Moon or in other
planets or satellites should be regarded as vested
exclusively in the United Nations.

* FREEDOM OF EXPLORATION, USE AND

SCIENTIFIC INVESTIGATION
Article I, OST & Article 6, the Moon Agreement
Closely connected to absence of sovereignty
Neither absolute nor unqualified
Benefit and in the interest of all countries
In accordance with the international law
Promote the friendly relations and cooperation
among states

Should not unlawfully interfere with the

19

corresponding interests of other

Equitable sharing of the benefits

Peaceful uses

Should not result in the disruption or harmful

contamination of the environment

Restrictions are not exhaustive

Article 6 - Collection and removal of the samples

of minerals and other substances
At the disposal of the collecting state
Mineral resources and other substances
Supporting the scientific missions

Exchange of scientific and other personnel on

expeditions - No obligation
* COMMON HERITAGE OF MANKIND
Law of the Sea origin
17 August 1967 - Brain-child of Ambassador
Arvid Pardo
Not susceptible to a precise definition
Belongs to everyone & shared jointly by all
20

Developed countries - Neither realistic nor

practical
Concept of Mankind
Wide interpretation - Present, past & future generation
- Danger of loosing its significance
w

Question of representation of mankind - Can the

mankind be new subject of international law?
Organization - Representing the great majority of the
world population

Common Heritage
Heritage - Refers to some property or property
interests
Christopher C. Joyner - Clearly, the concept of
heritage conveys the proposition that common areas
should be regarded as inheritances transmitted down
to heirs, or as estates which by birthright are passed
down from ancestors to present and future generations.
A CHM regime would therefore designate that region
as an international patrimony, much the same as a
piece of property or estate inherited by one generation
from its predecessor
Who are the predecessors of mankind?
21

Did they posses any property right over CHM?

Literal interpretation - Leads to absurdity and

makes it an elusive and impracticable concept
Novel elements
* Prohibition on Individual Appropriation
* International Management System
* Equitable Sharing of Benefits
* Measures to Protect and Preserve the CHM for
Future Generation
* Peaceful Uses of Resources

CHM AND RES COMMUNIS

Arvid Pardo - the principle of common heritage
went beyond that of res communis and the
internationally accepted test of reasonable use. It
implied something to be administered in common and
thus contained the notion of trust and of trustees,
although not necessarily that of property

Law of the Sea

Grotius - Freedom of the Seas
John Selden - Mare Clausum - Individual rights

22

20 Century - Assertion of State Sovereignty

UN Conferences on Law of the Sea
UNCLOS - I, 1958.
UNCLOS - II, 1960
UNCLOS - III, 1973 - 1982
CHM as a Principle Governing the Area - Article 136

Part XI - Cooperation, equitable sharing,

preference to developing countries, protection of
the marine environment etc - Ceiling on the
production of commodities
International Seabed Authority - Strong
authority to organize, control & administer the
activities
Enterprise - A wing to explore & exploit resources
US objections - Participated in the negotiation till
1980 - Interest of private investors
* No special status given to US in decision making
* Financial payment to enterprise & mandatory
transfer of technology were opposed

23

Failure to negotiate with other states - US voted

against the Convention
Large part of the Convention, except Part XI, is
considered as part of customary international law
Package deal - No scope for reservations

The 1994 Agreement

Intended to procure universal acceptance to UNCLOS
US & other developed countries are given preference in
the decision making - Can block decisions by acting
together
Mandatory transfer of technology is dropped
No limitation on the production from the sea-bed
resources

CHM has lost its original meaning & substance in

law of the sea due to the 1994 deathblow
Weak authority
Absence of
countries

technology

in

the

developing

Only developed states will exploit - No sharing of

benefit

24

Incorporation of CHM into Space Law

OST was drafted three weeks after Maltas
proposal
No mention of CHM - Some elements were found
1969 - Samples from moon - New regime was
found necessary

1970 - Argentinas proposal to COPUOS

1973 - 79: Debate over the incorporation of CHM
Article 11 - Applicable only to the moon & OCB
The moon and its natural resources are the
common heritage of mankind, which finds its
expression in the provisions of this Agreement
The moon is not subject to national
appropriation by any claim of sovereignty, by
means of use or occupation, or by any other
means
Neither the surface nor the subsurface of the
moon, nor any part thereof or natural resources
in place, shall become property of any State,
international
intergovernmental
or
nongovernmental organization, national organization
or non-governmental entity or of any natural
person. The placement of personnel, space
25

vehicles, equipment, facilities, stations and

installations on or below the surface of the moon,
including structures connected with its surface or
subsurface, shall not create a right of ownership
over the surface or the subsurface of the moon or
any areas thereof
States Parties have the right to exploration and
use of the moon without discrimination of any
kind, on the basis of equality and in accordance
with international law and the terms of this
Agreement
States Parties to this Agreement hereby
undertake to establish an international regime,
including appropriate procedures, to govern the
exploitation of the natural resources of the moon
as such exploitation is about to become feasible
In order to facilitate the establishment of the
international regime referred to in paragraph 5
of this article, States Parties shall inform the
Secretary- General of the United Nations as well
as the public and the international scientific
community, to the greatest extent feasible and
practicable, of any natural resources they may
discover on the moon
The main purposes of the international regime to
be established shall include:
(a) The orderly and safe development of the
natural resources of the moon;
26

(b) The rational management of those resources;

(c) The expansion of opportunities in the use of
those resources;
(d) An equitable sharing by all States Parties in
the benefits derived from those resources,
whereby the interests and needs of the
developing countries, as well as the efforts of
those countries which have contributed either
directly or indirectly to the exploration of the
moon, shall be given special consideration
All the activities with respect to the natural
resources of the moon shall be carried out in a
manner compatible with the purposes specified in
paragraph 7 of this article and the provisions of
article 6, paragraph 2, of this Agreement

Not accepted by the developed states

Principle of Cooperation between States
Freedom of access, exploration and use Developing countries can realize only when the
developed countries cooperate
Extent of cooperation is not specifically
mentioned
Article I of OST - Question as to obligatory
nature
Article X, OST - Reasonable opportunity to
27

observe the flight

Obligation to intimate the activities to Secretary
General & public - To the greatest extent
feasible & practicable
Article XII - The stations, installations,
equipment and space vehicles on the moon and
other celestial bodies - Open to all states on the
basis of reciprocity

Astronauts Agreement - All possible cooperation

between the astronauts
Rescue and return
Article 10, Moon Agreement - persons in distress
to be sheltered in the stations, installations,
vehicles and other facilities
Megumu Nakamura - Almost all rules for
international cooperation in the Space Treaty,
which includes many conditions, would provide
for not active but passive cooperation in space
activities between the states.
Maureen William - International cooperation,
however, has not yet achieved the status of
international customary law but it is certainly
28

moving in that direction.

Jurisdiction & Control
State of Registry - Duty/right?
Different from flag state jurisdiction in Law of
the Sea
Conflicting jurisdiction
Ownership remains unaffected

Astronauts as envoys of mankind

Art. V, OST - Emergency assistance
Astronauts of one state party to assist the
astronauts of other
Any natural phenomenon dangerous to the health
of astronauts found in the space to be informed to
S-G
Astronauts Agreement - Notification to the
launching authority & S-G
Accident, distress, emergency or unintended
landing - Assistance to personnel - Launching
state must cooperate, if necessary (Art. 2)
Spacecraft in high seas / in a place beyond
29

national jurisdiction - On receipt of information,

states parties in position to provide assistance
shall render assistance (Art. 3)
Any personnel found - Safely and promptly
returned to launching authority (Art. 4)
Parts of spacecraft - Return [Art. 5(2) & (3)] Cost to be borne by launching authority
Who is an astronaut?
Status of space tourists - Astronauts / personnel?
LIABILITY AND REGISTRATION
Launching State
(i) A state which launches or procures the
launching of a space object;
(ii) A state from whose territory or facility a space
object is launched;

State of registry - A launching State on whose

registry a space object is carried

Can there be a change in the above status?

Liability Regime
OST - Art. VI & VII
Liability Convention - Absolute & fault based

30

Absolute liability - Damage on the surface of the

earth & aircraft in flight
Question of damage to ships in the high seas &
person / property outside the ship in high seas
Fault liability - Damage elsewhere from the
surface of the earth to spacecraft, persons or
property on board
Damage to third state by the space objects of the
states due to accident in outer space or airspace Joint & several liability - Absolute & fault

Burden of compensation for damage to be

apportioned according to fault - In case of failure
to establish the extent - Equal apportionment
Joint launching - Joint and several liability
Exoneration from absolute liability - Gross
negligence or act or omission done with the intent
to cause damage on the part of claimant state
No exoneration, if activities are not in conformity
with international law
Art 5 (4), Astronauts Agreement - Effective steps
on the request of states in which objects are found
- Launching state?
31

Settlement of claim - Through diplomatic

negotiations
Not later than one year following the date of
occurrence / identification of launching state
No obligation to exhaust local remedies
Damage to be determined in accordance with the
international law & the principles of justice &
equity - Restoration of condition
Claims Commission - If not solved through
diplomatic negotiations

Decision - Binding, if so agreed - Otherwise

recommendatory, but to be considered in good
faith
Registration
Identification of space objects - Jurisdiction &
control, Rescue & return, Liability & IPR
Space object - Includes component parts &
launch vehicles & their parts
Registration in national registry & UN registry
Shall furnish information to the S-G as to
(a) Name of launching State or States;
(b) An appropriate designator of the space object or its
32

registration number;
(c) Date and territory or location of launch;
(d) Basic orbital parameters;
(e) General function of the space object

Additional information to be given from time to

time - Scope for change in the registering state?
Damage - Other States Parties to cooperate in
identifying space objects

Cosmos 954
USSR nuclear-powered naval surveillance
satellite - Launched on 18th Sept 1977 - Orbit
became erratic - US calculated the fall
Secret meetings with USSR - Information about
the Cosmos 954 reactor was given to US - US
warned the NATO & OECD partners regarding
the fall & offered help to clean up
24th January 1978 - Cosmos 954 crashed on the
remote area in Canada - US proposal of
assistance - Accepted

33

Canada asked USSR to provide information USSR offered help - Declined

Cost - C $ 14 million to Canada + US $ 2 to 2.5
million to US - Bill of 6 million
USSR blamed the fall on a collision in outer space
- Canada blamed on a faulty motor
USSR declared the remains would cause minimal
radiation hazard - Limited local pollution Canada found 2 pieces to be lethal nature
Legal consequences
(a) Duty to forewarn
Canada - USSR had a duty to warn Canada &
other potentially endangered states as soon as the
fact was discovered
USSR - Only obligation to warn US - As per the
calculations on the basis of last visibility, satellite
was expected to fall into sea in the region of
Aleutian Islands
(b) Duty to provide information
Canada - Cosmos 954 specification were not
given, despite the repeated request - Information
34

must be publicly disclosed

USSR - Duty to provide information is a more
limited burden - Only minimum degree of
information needed for cleanup - Should have
been kept secretly by Canada - Intelligence
gathering effort by Canada by asking
unnecessary questions
(c) Duty to cleanup
USSR - Jointly by the injured state & the
launching state - USSR offered assistance Declined by Canada
Canada - Injured state is entitled to choose the
help from the states
(d) Duty to compensate for injury
Canada demanded C$ 6 million - Total cost of
cleaning radioactive debris - No offer for
repayment to US
USSR - Compensation to be paid only for
incremental costs that the injured state incurred
in repairing the injury (Confined to physical
injury) - C $ 3 million

35

US - Legal conceptions were much closer to those

of USSR, except duty to cleanup - Free choice of
state
Canadian observers on US policy - Both the
superpowers were concerned about their space
activities - US difference of opinion regarding
cleanup is because of self interest - US eagerness
to examine Cosmos 954 v. USSRs concern to
prevent it
Whether the USSR was liable under the Liability
Convention?

QUESTION OF STATE SOVEREIGNTY

September 1959 - Luna 2 carrying Soviet flag had
a hard landing on the moon
N. S. Kruschev - We regard the launching of a
space rocket and the delivery of our pennant to
the moon, as our achievement. And when we say
our we imply all the countries of the world,
that is, we imply that it is also your achievement
and the achievement of all people living on the
earth.
United States - Law on the Implantation of the
36

United States Flag

Section 8 - the flag of the United States, and no
other flag, shall be implanted or otherwise placed
on the surface of the moon, or on the surface of
any planet, by the members of the crew of any
spacecraft making a lunar or planetary landing
as a part of a mission under the Apollo program
or as a part of a mission under any subsequent
program, the funds for which are provided
entirely by the Government of the United States.
This act is intended as symbolic gesture of
national pride in achievement and is not to be
construed as a declaration of national
appropriation by claim of sovereignty
Bogota Declaration
3 December 1976 - Eight equatorial states Claimed sovereignty over the geostationary orbit
Existence depends on its relation to gravitational
phenomena generated by the earth - Therefore
part of earth
Scarce resource - Need to obtain their permission
for placement of satellite
GSO over high seas as CHM
Best interest of all countries and all mankind 37

Prevents developed states monopoly

Failed to receive any legal standing in the
COPUOS meetings - A. II misinterpretation
Soviet Delegate - While the position of many
states was based on a desire to prevent any
monopoly use of geostationary orbit, attempts
were being made by some to gain preferential
rights. Such an approach has no legal basis and
did not correspond to the interests of the
international community in the use of OS
Placement of satellites in orbit - A posteriori / a
priori models & A. II OST

CLAIM OF PROPERTY RIGHTS

Misinterpretation of Art II, OST & Art 11 (3) of
the MA
New phenomenon of selling the parts of the moon
and other celestial bodies
Dennis Hope - Ownership of the extraterrestrial
properties by the individuals is not forbidden
under Art. II
First claim - Registration of claim in 1980 - US
38

Governmental Office for claim registers, the San

Francisco County Seat - Americans were the first
to walk on the moon
Copyrighted his work with the US Copyright
Registry Office
Sent notifications of his claim to the US and
USSR governments as well as to the United
Nations - No answer
None of the argument has legal standing
Art. II prohibits individual appropriation - Not
res nullius
Not the first claimant - Frederick II in 1756

Mere claim does not confer ownership right Claim by the Masai tribe that they own all cows
in the whole world by divine command - animus
possidendi (the intention to possess) + corpus
possidendi - (an act of physical nature giving
effect to the intention to take the thing)
Recording of the document at San Francisco
County Seat - Just a proof that it was prepared
and executed on or before the recordation date Does not confer title

39

 Absence of governmental and UN protest - Not

expected for such trivial claim

Nemitz V. United States 2004 WL 3167042

17 February 1996 - NEAR Shoemaker spacecraft

March 2000 - Registration of claim in Archimedes
Institute Internet Registry - Ownership over
Asteroid 433, Eros, and a volume of space 50 km in
altitude into space from every point on the surface
12 February 2001 - NEAR Shoemaker landed on
Eros
Nemitz sent a letter to the Administrator of NASA Parking/storage fee - $20.00 for a period of one
century
NASA refused to pay - Archimedes Institute does
not have legal authority to confer property rights
Held: Neither the failure of the United States to
ratify the Agreement Governing the Activities of
States on the Moon and Other Celestial Bodies,
commonly referred to as the Moon Treaty, nor the
United States ratification in 1967 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, commonly
referred to as the Outer Space Treaty, created any
rights in Nemitz to appropriate private property
40

rights on asteroids. Nemitz has thus failed to assert

a cognizable cause of action against the Federal
Defendants

Scholars - Unanimously oppose the private

property rights
Frans von der Dunk - You should not expect to
have paid for any valid legal title to a plot in the
outer space, just for a nice piece of paper to stick
on your wall Whether that means its [the sale
of extraterrestrial property] fraud and such a
claim is null and void under national law, would
basically be up to any national legal system to
determine. It does mean, however, that under
international law the U.S. government should
unequivocally make clear that these practices are
not based on any sound legal premise
Statement by the Board of Directors of the
International Institute of Space Law, 2004 - The
prohibition of national appropriation by Article
II includes appropriation by non-governmental
entities (i.e. private entities whether individuals
or corporations) since that would be a national
activity.
The
prohibition
of
national
appropriation also precludes the application of
any national legislation on a territorial basis to
41

validate a private claim. Hence, it is not

sufficient for sellers of lunar deeds to point to
national law, or the silence of national authorities,
to justify their ostensible claims. The sellers of
such deeds are unable to acquire legal title to
their claims. Accordingly, the deeds they sell have
no legal value or significance, and convey no
recognized rights whatsoever
to comply with their obligations under Articles
II and VI of the Outer Space Treaty, States
Parties are under a duty to ensure that, in their
legal systems, transactions regarding claims to
property rights to the Moon and other celestial
bodies or parts thereof, have no legal significance
or recognised legal effect
Need to take action under municipal law

Human Habitation on the Moon and Other

Celestial Bodies
Shortage of space on the earth
US plans - Creation of the human friendly
environment - Water & air
Human habitation - National appropriation or
claim of sovereignty?
42

Occupation - Principal method of claiming

territorial sovereignty
Problem of allocation of property rights
Earthly principle of allocation based on first
possession - Would result in conflicts - Breed the
criminality and outright sabotage
Large-scale human habitation - Colonization Does not mean total prohibition on human
presence
Risk of transferring the terrestrial mistakes and
weaknesses to the moon and other celestial bodies
Environmental degradation
Problem of determination of law governing the
human population on the moon & OCB

QUESTION OF DAMAGE TO THE

SPACE ENVIRONMENT
Space benefits - Not available free of cost
Environmental damage - Threat to continuation
& expansion of the space ventures
Sources of pollution
* Space debris - Explosion, collision, ASAT

43

Speed 11,000 - 35,000 km

Danger of falling on earth & CB
* Chemical effluents - Long term effect
* Biological contamination - Forward & Back
* Radioactive pollutants - Electromagnetic waves
disturb
satellite
telecommunications
Cosmos - 954

Regulation of the pollution

More scientific than legal
Orion - Burning up in earths atmosphere
Bringing the object to an orbit subject to automatic
drag
Graveyard orbit
Space salvage - Question of ownership?
Efforts to minimize new debris creation

Legal Efforts
Art. IX, OST - No definition of harmful
contamination & adverse changes - More
oriented towards back contamination
Art. 7, MA - Prohibits adverse changes by harmful
contamination or otherwise
Placement
of
radio-active
44

materials on the moon to be

intimated to SG
Designation of international
scientific preserves

Art 11, MA - CHM

Liability for damage to space environment
Art. 14 - Need for detailed arrangements

MILITARY SPACE ACTIVITIES - NEED

FOR REGULATION
Advent of space - Struggle for power
UN GA Resolutions - Peaceful uses
End of cold war - Militarization continued

1996 - General Joseph W. Ashy, head of the USA

Space Command - we are going to fight in
spacesome people dont want to hear this and it
isnt in voguebut - absolutely - we are going to
fight in space.
August 2005 - Russian Defense Minister Sergei
Ivanov - Russia has the ability for an adequate
response to the countries that orbit their
45

weapons
Outer Space Treaty
Art. I - Interests & Benefits of all
Art. III - Activities in accordance with
international law including the Charter of UN
Purposes - Removal and prevention of threats to
the peace & development of friendly relations
among the nations - Art. 2(3) & (4)
Art. IV - Nuclear weapons or any other kind of
weapons of mass destruction - Conventional
weapons? - 1989 Venezuelas proposal
Question of placement on the moon
Peaceful Uses
Interdependent nature
Initially all states including the US advocated
non-military uses
Military reconnaissance satellites - Military
satellites not involved in aggressive operations
could and should be considered peaceful since
they would be harmless
Military use is inevitable - Instrument of
maintaining peace
Prohibition - Contrary to the right of self-defense
46

Vladlen Verschchetin - Semantic methods

cannot transform a military activity into peaceful
activity and vice-versa; in any language, peaceful
activity remains peaceful, and military, military
Stephen Gorove - Futile to debate over the
meaning of peaceful uses - Preferable to identify
the specific activities as permissible & prohibited
Outer Space - Peaceful purposes? - A. 103 UN Ch.
Art. IX - No harmful interference
Art. XI - Disclosure of the space activities to the
greatest extent feasible and practicable
Registration Convention - General purpose of
launch - Not directed towards the transparency France proposed amendment in 1993
Moon Agreement
Art. 3 - Improvement over A. IV, OST
Art. 11 - CHM
The Nuclear Test Ban Treaty 1963
ABM Treaty 1972
SDI - Star War Program - ABM missiles
Art. III & IV, OST
Art. 5, ABM Treaty
- Prohibition on new weapons?
47

- Research program

1979 - Italy proposed a Protocol to the Outer

Space Treaty
1981 - USSR proposed Treaty on Prohibition of
Placing Weapons of Any Kind in Outer Space
1986 - USSR proposed the creation of World
Space Organization
West - The existing legal regime provided an equitable
and balanced response to the need to promote peaceful
uses and arms control in outer space
East - The legal instruments are utterly inadequate in
forestalling an arms race in outer space in that they
contained no clear-cut provision on the prohibition of
all types of space weaponry

Chinas ASAT Testing

2002 Proposals for a treaty - Refused by US
2003 & 2005 - Manned flights
2007 - ASAT
Political & Legal Ramifications
Challenge to US space supremacy - Chinas
mastery over the key technology to track and
destroy spy satellites
Failure to conduct the test transparently Alexander Downer, the Australian Foreign

48

Minister, - the test was not consistent with the

traditional Chinese position of opposition to the
militarization of outer space what we dont
want to see is some sort of spread, if you like, of
an arms race into outer space
Potentiality to alter regional military balances
Prevention of US intervention in Taiwan issue
Art. III & IV, OST
Debris problem - 40,000 pieces - Art. IX, OST

IPR REGIME IN OUTER SPACE

Tremendous development in 20th Century Overlapping
Need to reward the intellectual creation
Patents - Strong national roots
* Protected only within the territory of the state
* Law of the state applicable
* Courts of the state has the jurisdiction

Establishment of ISS - Further plans to establish

stations on the moon & the Mars
Patent Monopoly v. Province of All Mankind &
CHM
Space Law - Directed towards state activities
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Cannot be applied strictly to intellectual creation Would result in killing the incentive
Need to strike a balance - Some sort of compulsory
licensing on fair & equitable basis

To whom patent can be conferred? - First to

file / First to invent
Nationality of inventor - Conflicts in case of invention
sponsored by a group of persons
State of Registration - Art. 21(2) of IGA on ISS Activity in any part of ISS - Deemed to be in the
territory of the state registering that part
Art. 21(3) - Nationality, if necessary to protect the
state interest

Infringement of Patents
Jurisdiction
Article VIII - State of Registry - Different from flag
state jurisdiction
Problem - Station belongs to state A & astronaut is
sent from a vehicle belonging to state B

Choice of law
lex situs - Not applicable
Transportation of municipal law on the basis of
connecting factors
Nationality - Absurd consequences
Violation by non-nationals
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Different applicable laws

Registration - Patents in Outer Space Act, 1990 - S.
105 Patents
Invention in the part under US jurisdiction &
control - Deemed to be within US territory

Launching

Invention made in US

Registration

Jurisdiction & Control

Inter-Governmental Agreement on the ISS
* Based on the legal fiction that EU states have same
IP law
* Single activity conducted in different parts of ISS Subject to different regime
Problem of unregistered objects

Launch from one celestial body to another - Question

of state of registry?

UNISPACE - III, 1999: Recommended

UNCOPUOS to conduct study in collaboration
with WIPO
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