New insights into space activities regulation: ab origine to contemporary
Research of problems of International Space Law. Search for approaches to the legal regulation of activities in space. Application of new methods for determining the spatial-territorial jurisdiction of states. Division the aerospace into special layers.
| Ðóáðèêà | Ìåæäóíàðîäíûå îòíîøåíèÿ è ìèðîâàÿ ýêîíîìèêà |
| Âèä | ñòàòüÿ |
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| Äàòà äîáàâëåíèÿ | 05.09.2024 |
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Îòïðàâèòü ñâîþ õîðîøóþ ðàáîòó â áàçó çíàíèé ïðîñòî. Èñïîëüçóéòå ôîðìó, ðàñïîëîæåííóþ íèæå
Ñòóäåíòû, àñïèðàíòû, ìîëîäûå ó÷åíûå, èñïîëüçóþùèå áàçó çíàíèé â ñâîåé ó÷åáå è ðàáîòå, áóäóò âàì î÷åíü áëàãîäàðíû.
In addition, there is a theory about determining the upper limit of airspace at an altitude of 60 miles (approximately 100 kilometers), above which a relative vacuum can begin. However, at the same time, there were also versions that the vacuum could only begin above 400 miles (about 644 kilometers) [4, p. 5].
In turn, one of the most promoted proposals for the delimitation of air and outer space is to consider the upper limit of the airspace of States to be the maximum altitude at which there is enough air for there to be a “'lift' from the air” for aircraft flights and balloons [4, p. 6].
However, despite such a large number of proposals and theories, all of them remained only subjects of behind-the- scenes negotiations, and none was taken as a basis since it was not considered acceptable from a scientific point of view [2, p. 138].
Perhaps the issue of delimitation of outer space and the spatial-territorial (air) borders of States has remained unresolved to this day because the expansion of the exclusive jurisdiction of States upward into space depends on it - i.e., the expansion of political influence. In any case, since the States failed to agree on such delimitation of space, it remains unclear how far the jurisdiction of a State extends in aerospace over its territory [2, p. 137].
In turn, when studying this issue, it is necessary to understand that the aspect of the spatial-territorial jurisdiction of the State is connected not only with the exploitation and use of the controlled space but also with the security of the existence of the State itself and its population. Thus, this issue is not only legal or technical-physical but also political.
I.e. to say, the main question of the spatial jurisdiction of the State is not about the border between outer space and airspace, but concerning the demarcation of the upper limits of the spatial-territorial jurisdiction of the State - in other words, it is about the border between outer space and the airpolitical space of the State.
To determine this border, it is necessary to understand that the air-political space of the State ends where the threat to the security of its existence (sovereignty) disappears.
Taking this into account, the air-political space of each State may be conditionally divided into at least three layers of security: a layer of life safety, a layer of economic security, and a layer of atmospheric (natural) security.
The layer of life safety of the State would always be limited by a human's ability to exist since without the existence of a human being the State cannot exist. In turn, an ability to exist at appropriate heights is most often determined by historical experience. To be sure, there are historical instances of the conquest of the mountain peak Zhumu- langma (or Everest) by people without using additional oxygen (in May 1978, this was done by Reinhold Andreas Messner and Peter Habeler). I.e., theoretically, one is capable of living and existing at least for a short time at the height of this peak, which is 8 849 meters (about 5.5 miles) above sea level, or slightly higher. Thus, we can roughly say that the upper limit of the State's life safety layer would end at an altitude of about 9 000 meters (9 kilometers or 5.6 miles) above sea level.
The layer of economic security of the State, first and foremost, shall be associated with the maximum existing height of air transportation (passenger and cargo) as well as with the prospective height of such transportation in the next 20-30 years after the boundaries of the layer are established. In this regard, the upper limit of the economic security layer could be set at twice the maximum height of air carriage (taking into account possible prospects for increasing the height). E.g., if the maximum altitude for cargo and passenger transportation (which can also include an independent flight from base to base of military aircraft, including pilotless and man-carrying aircraft) is about 30 kilometers, then the upper limit of the State's economic security layer would be at an altitude of 60 kilometers (about 37.3 miles) above sea level.
In turn, the layer of atmospheric (natural) security of the State would, first of all, be associated with the size and composition of the atmosphere, which affects the preservation of the natural human habitat on Earth and in water. E.g., the Earth's ozone layer is located at an altitude of approximately 10 to 40 kilometers, and its destruction over the territory of the State can lead to the destruction of the nature and population of that State. I.e., the thickness and composition of the Earth's atmosphere over the State shall remain such as to preserve the ozone layer and protect the Earth's surface from excess solar radiation. Also, the height, density, and composition of the Earth's atmosphere above the State shall remain such as to ensure atmospheric pressure within limits sufficient for its normal perception by humans and animals.
However, the most important aspect of the atmospheric security of the State is the risk of a potentially dangerous “object X” (a new active chemical element, a virus, an intelligent biological organism, or a similar object) entering the atmosphere of the State from space, which, if it gets the Earth, is capable of destroying flora, fauna, and even the people in this State. E.g., while passing through the atmosphere of a neutral State, when a spacecraf returns to Earth, some unknown space “object X” (previously attached to the ship in outer space or on a celestial body) may detach from it.
We can say that at this moment the “X factor” arises - the factor of “object X” entering the Earth's atmosphere. Imagine that this “object X” is an unknown chemical ele-ment that is inactive in a vacuum, but when combined with oxygen it could influence the atomic structures of known chemical elements (e.g., turn steel into powder). After such “object X” gets the Earth, our civilization may return to its primitive state. After all, the alchemists' legends about the philosopher's stone may be based precisely on such a cosmic “object X”.
Unfortunately, terrestrial technologies can identify in space those objects that they have already encountered and identified on the Earth. I.e., there is a high risk that none of the space researchers would simply be able to detect this new “object X” and it could be introduced into the atmosphere of the State that does not carry out space activities and does not have technologies capable of protecting it from “object X”. Accordingly, the question arises at what height (the height of the “factor X”) the density and/or composition of the Earth's atmosphere are sufficient so that, upon entering the Earth's atmosphere, this “object X” could further move into the life safety layer of the State and cause catastrophic damage. In turn, some scientists believe that the size of the atmospheric layer (including all its various layers, the troposphere, the ozonosphere, the ionosphere, and, to some extent, the exosphere), in which the gas-air space of the Earth is present, is located up to the height 1000 kilometers above sea level (about 621 miles) [4, p. 7-8]. Due to this, we can conditionally assume that the upper limit of the State's atmospheric security layer would be at an altitude of about 1000 kilometers (about 621 miles) above sea level.
Taking into account all of the above, we can conclude that the upper limit of the entire layer of spatial security of a State (about 1000 kilometers above sea level) can be defined as the limit of the spatial-territorial jurisdiction of each State, below which the State would have exclusive jurisdiction.
In turn, above 1000 kilometers and up to an altitude of 36 000 kilometers above sea level there is a layer of the atmosphere, which can conventionally be called the orbital layer (the layer in which the largest part of the artificial orbital satellites of the Earth is located). However, it is unlikely that this layer affects the security of only one State since it does not have a direct impact on the existence of the people of one particular State - most likely, the preservation of this layer and the possibility of using its orbits would serve for the security of all humanity on planet Earth. Therefore, conditionally, this layer can be called the layer of spatial security of humanity (up to an altitude of 36 000 kilometers or 22 370 miles above sea level) and the right to use it shall belong to all of humanity.
In addition, it is also necessary to underline such an object as the Moon, which is located from the Earth at a distance of approximately 378 000 kilometers (approximately 234 878 miles). Although the Moon is located further than 36 000 kilometers from the Earth, it affects the nature of the Earth and its damage, change or destruction can have a catastrophic impact on all of humanity. Therefore, it would be logical to include the Moon in the layer of spatial security of humanity. Thus, the layer of spatial security of humanity would include the layer of atmosphere around the Earth up to an altitude of 36 000 kilometers (or 22 370 miles) above sea level and the Moon.
At the same time, no State jurisdictions can exist in this layer and its use shall be carried out following plans and permissions received from non-state and non-political representatives of all humanity. Over time, to properly regulate activities in this layer, non-government, nonpolitical, and independent bodies and organizations (public, scientific, and similar organizations) shall be established to make effective decisions regarding the use of this layer for peaceful purposes and the benefit of all humanity. As for space above 36 000 kilometers asle and beyond the Moon, it can be considered alien outer space: space, i.e., alien both to the States and to all humanity on Earth.
Regulation of the activities in outer space and on celestial bodies. Widespread theories. The matter of regulating space activities, human relations, and state-to-state regulations (including those related to the jurisdiction of States) in outer space and on celestial bodies has existed from the very beginning of the development of Outer Space Law.
Attempts to solve this problem have led to the emergence of many concepts, theories, and proposals for determining the competence of subjects of space activities in outer space and on celestial bodies.
According to one of the most popular concepts of international public law, the State can act wherever direct prohibitions and restrictions are not established for it under international law, and sometimes it can even go beyond the framework of international law [5, p. 146]. This concept is a kind of “narcissist” concept since it invites States to act on the principle of “everything that is not prohibited is permitted,” and also to make decisions and act outside their territory based on their interests regardless of the interests of humanity.
However, based on this concept, three theories arose for the regulation of activities in neutral territories, which can be described as follows: “Res Communis” (or “Res Communis Omnium”), “Res Nullius”, and “Res Communis Humanitatus” (or “the Common Heritage of Mankind”) [5, p. 147].
According to the first theory of “Res Communis ”, outer space and celestial bodies are considered a common territory [5, p. 147]. Therefore, all States, their citizens, and legal entities are free to explore, use, and develop the “commons” area. Previously, this theory was especially popular among underdeveloped States willing to receive income from the use of raw materials outside their territory (terra nullius or on the high seas). However, when it came to outer space and celestial bodies technologically developed States supported this theory since this allowed them to operate in space as if on equal terms but enrich faster than underdeveloped States that are unable to get to space [5, p. 147]. Moreover, there is an opinion that by agreeing to the UN GA Resolution 1721 States recognized outer space and celestial bodies as the territory of “Res Communis Omnium” [14, p. 12].
Under the second theory, “Res Nullius”, outer space and celestial bodies are the territory that belongs to no one. However, this theory does not prohibit States or other actors from taking possession or control of the territory of “Res Nullius”” for their exclusively sovereign purposes by right of first discovery or use [7, p. 38]. In this regard, this theory, which has imperialist and colonial motives, is attractive to States that claim world hegemony.
According to the third theory, “Res Communis Humani- tatus”, outer space and celestial bodies are the common territory of all humanity. Therefore, all States, their citizens, and international entities are free to explore, use, and develop the common territory but only in the interests of humanity and on the condition that they share the resulting benefits with other participants (i.e., there is a joint use aspect) [5, p. 147]. However, despite high popularity, all these theories remain only theories, and the very concept of “narcissism” cannot be called perfect and acceptable, because it does not consider the element of equality for everyone and the possibility of the existence of alien intelligent beings in the Universe. Moreover, we can say that an attempt to extend this concept to outer space and celestial bodies is a dangerous process that could provoke a new space race and lead to a new type of armed conflict - space warfare.
The position of the UN General Assembly as of the end of 1963. Trying to resolve the issue of regulating space activities, by the end of 1963 the UN General Assembly announced several statements on this subject in the UN GA Resolution 1721 and the Declaration of Legal Principles, which could be formulated as follows:
“Outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, through use or occupation, or by any other means.
The jurisdiction of States extends to all objects registered by them located in outer space and to astronauts thereon. The activities of States in the exploration and use of outer space and celestial bodies shall be carried on following international law, including the Charter of the United Nations” [11, p. 579].
However, these statements did not answer questions about the competence of space actors. On the contrary, having announced these provisions, the UN General Assembly immediately faced the need to solve new problems related to the regulation of activities in outer space and on celestial bodies:
- determining the possibility of States applying national law in outer space and on celestial bodies,
- determining the boundaries of the competence of States to apply national law regarding their Cosmic artificial objects,
- determining the boundaries of the competence of States to apply national law regarding astronauts in the Cosmic artificial objects of these States,
- determining the possibility of States and international bodies applying international law in outer space and on celestial bodies.
The possibility of States applying national law in outer space and on celestial bodies. It should also be stated that throughout the entire period of development of Outer Space Law, mainly all the difficulties in determining the competence of public subjects of space activities were associated with attempts to transfer classical law into the legal field of outer space and celestial bodies.
However, as mentioned above, all attempts to apply classical legal concepts in space activities would never be successful since outer space and celestial bodies are not the natural human habitat, but are alien space and an uninhabitable environment.
In turn, when in ordinary life people are in their own space (e.g., in their room), then they naturally have a certain right to establish their own rules of behavior and relationships in such a space - i.e., for them there is a principle that can conditionally be called the “domestic room”” principle. Our planet Earth serves as a “domestic room”” for humanity.
However, when people get to alien space (for instance, enter someone's else room), they can no longer set their own rules there and cannot use alien space to their advantage. They can only agree on the way they should behave on a visit - i.e., a principle, which can roughly be called the principle of “alien room” takes effect. These rules of behavior and relationships in an “alien room” (on a visit) in the context of outer space and celestial bodies can be regarded as Extraterrestrial Law or Outer Space Law [11, p. 573].
The boundary between the “domestic room” and “alien room” in the Universe for people is the upper limit of the spatial security layer of humanity at an altitude of 36 000 kilometers above sea level (as discussed earlier).
In turn, both for the States and for the people, the principles of “domestic room”” and “alien room”” are also applied. However, unlike people, the “domestic room”” of States is much smaller, since it is limited not by planet Earth but by their spatial-territorial jurisdiction [11, p. 575]. This is due to the fact that the concept of State jurisdiction is based on the element of territoriality in the notion of sovereignty and the principle of national appropriation [6, p. 51]. At the same time, the exercise of State jurisdiction on Earth is primarily a function of the operation and use of the controlled territory, - accordingly, the exercise of State jurisdiction in outer space is a function of exploitation and use of outer space also [6, p. 39]. In turn, even the Declaration of Legal Principles proscribed the principle of national appropriation from outer space and celestial bodies. It follows that the rules of spatial-territorial jurisdiction of States do not apply to outer space and celestial bodies, since these spatial-territorial units are in an “alien room” concerning States. Thus, the State cannot apply national law in outer space and on celestial bodies and, accordingly, cannot use outer space and celestial bodies.
At the same time, the fact that the State lacks jurisdiction and any other competence in outer space and on celestial bodies (beyond the Earth) exists on its own and should not require proof or recognition by other States or the United Nations - if so, the claim can be accepted as the truth [11, p. 577]. The desire of certain States to extend their jurisdiction to the “alien room””, even if it is supported by the majority of States from the rostrum of the United Nations, cannot violate the principles of “domestic room” and “alien room” based on the spatial-territorial jurisdiction of States. Otherwise, the very principle of jurisdiction and sovereignty of States can become meaningless. Everything is quite simple - the State has jurisdiction and can act freely only within the boundaries of its spatial-territorial jurisdiction ("domestic room””).
At the same time, the boundary between the “domestic room”” and “alien room”” for States is the upper limit of the State's spatial security layer at an altitude of 1 000 kilometers above sea level (as discussed earlier).
Based on the above, we can conclude that none of the above subjects (neither States nor individuals) could establish standards of behavior in the “alien room” (outer space and celestial bodies) for other subjects of space activities. All of them can only agree on the way they would interact in outer space without doing harm.
Moreover, outside of its spatial-territorial domain a State cannot even use outer space and celestial bodies, but can only negotiate with other States and other subjects of space activities on the possibility of conducting any activity without causing damage to outer space, celestial bodies, and other subjects of space activities. At the same time, such activities cannot be carried out in the interests of only one State or group of States, but can only be carried out in the interests of all humanity as a whole. Any actions of States that violate these conditions can be regarded as a direct challenge to all humanity.
This concept of regulating activities in outer space and on celestial bodies may be formulated as follows: “Res Nul- lius Civitatis et Res Communis Animal Rationale”, or in a more expanded way - “Res Nullius Civitatis” [11, p. 578].
The limits of the competence of States to apply national law regarding their Cosmic artificial objects and astronauts thereon. Separately, it is necessary to underline the provisions of Paragraph 7 of the Declaration of Legal Principles, according to which the jurisdiction of States would extend to “an object launched into outer space and any personnel thereon”:
“The State on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and any personnel thereon, while in outer space. Ownership of objects launched into outer space, and of their component parts, is not affected by their passage through outer space or by their return to the earth. Such objects or component parts found beyond the limits of the State of registry shall be returned to that State, which shall furnish identifying data upon request prior to return” [18].
This statement is an attempt to establish quasi-territorial jurisdiction and personal jurisdiction on the Cosmic artificial object. At the same time, States justify quasi-territorial jurisdiction with the right of ownership of an object and personal jurisdiction with the concept of citizenship, accepting citizenship as the basis of state jurisdiction [6, p. 69]. However, despite the apparent “positive elements” of this provision related to the possibility of regulating legal relations within a Cosmic artificial object, this statement is purely colonial.
It is necessary to understand that high-tech Space States are constantly expanding their Cosmic artificial objects into outer space and onto celestial bodies, thus occupying the most advantageous places on celestial bodies and orbits around the Earth. It is already the case that no one can voluntarily remove them from these places. In the future, using the provision of Paragraph 7 of the Declaration of Legal Principles, these States would declare their jurisdiction over their Cosmic artificial objects and, thus, expropriate the physical places in outer space and on celestial bodies occupied by these objects without the consent of others States and humanity.
However, as was already mentioned, States do not have any competence in space above the upper limit of the State's spatial security layer, according to the principle of the “alien room”. At the same time, it is necessary to remember that quasiterritorial jurisdiction and personal jurisdiction are not jurisdictions in the literal sense of the word, but are only elements of an agreement between two States or within a group of States and can only apply to objects that are the property (or citizens) of one treaty States but are located on the territory of another treaty State.
However, in this case, Cosmos (which is an “alien room” for States and people) has no owner and therefore States have no one to agree with on establishing a prototype of quasi-territorial jurisdiction and personal jurisdiction.
I.e., in Cosmos, there cannot be any quasi-territorial jurisdiction and personal jurisdiction regarding the Cosmic artificial object and the astronauts thereon. Accordingly, States cannot apply national law concerning their Cosmic artificial objects and the astronauts thereon, but can only agree with other subjects of space activities on modalities of the activities of their astronauts and Cosmic artificial objects in this environment without possessing jurisdiction over them. However, the lack of jurisdiction does not mean the absence of State responsibility for the activities of such objects. At the same time, in addition, States would also need to agree on the format of activities with their astronauts, who would leave the jurisdiction of the States of registration after crossing the upper limit of the State's spatial security layer.
In the absence of such agreements, the only right that States have about Cosmic artificial objects is the right of ownership, and concerning the astronauts thereon - the right to prohibit the actions of astronauts to the detriment of the State of their registration.
The possibility of States and international bodies applying international law in outer space and on celestial bodies. As in the case of national law, regarding international law, there are also many theories and proposals for its application in outer space and on celestial bodies.
E.g., under the most widespread theories the entire Universe can be divided into two spaces: national (each State has its own national space) and international (all other space, including outer space) [6, p. 40]. Accordingly, national law can be applied within the boundaries of the national space, and peremptory norms of general international law (ius cogens) can be applied within the boundaries of the international space. This position corresponds to the previously described theory of ”Res Communis”.
Some lawyers have proceeded even further, declaring that laws shall follow people in the Universe, promoting Earth laws for the entire Universe [6, p. 40]. This theory has a little bit of religiosity since it reinforces the position that human is the most supreme intelligent being in the Universe excluding the existence of extraterrestrial intelligence.
In turn, to understand this issue, it is enough to “remember” that the creators and actual founders of the institution of international law are the member States of the United Nations.
However, as already said, the jurisdiction of States (including legislative jurisdiction) does not extend to outer space and celestial bodies above the upper limit of the State's spatial security layer - i.e., the jurisdiction of States is limited to their “domestic rooms'.
At the same time, the United Nations (the members of which are only States) does not have the authority to grant States additional competencies and rights of use outside their territory, since this is not provided for by the UN Charter. Moreover, according to paragraph 7 of Article 2 of this Charter, the UN has no right to interfere in the internal affairs of States, i.e., it has no right to act in such a way even to expand their territorial jurisdiction [11, p. 577]. Therefore, substantially, the actual jurisdiction of the United Nations is limited to the jurisdiction of the Member States, which in turn are limited to their territorial jurisdiction.
I.e., the “domestic room" of the United Nations (which operates based on its Charter, which is an ordinary international agreement) is also limited by the jurisdiction of the United Nations itself, which is limited by the jurisdiction of the Member States of this Organization, which in turn are limited by their spatial-territorial jurisdiction [11, p. 573].
Accordingly, neither the States nor the United Nations can establish standards of behavior in the “alien room' (outer space and celestial bodies) for other space actors. All of them can only agree on the way of interaction without causing harm in the “alien room'.
As the Representative of France to the United Nations correctly noted: “International law and the Charter of the U.N. do not apply to space activities in totd" (this French representative's suggestion was supported by other representatives to the United Nations) [6, pp. 39-40]. At the same time, the rules of international law are applicable concerning the terrestrial effects of space activities - in other words, these rules shall be considered applicable when they are supposed to operate in their traditional environment [6, p. 51].
It seemed to suggest that the established principles and rules of general international law can be applied only in two cases of space activity:
- to regulate relations between or among States in outer space and on celestial bodies;
- to govern the jurisdictional aspects of the terrestrial effects of space activities [6, p. 39].
I.e., international law cannot be imposed and applied in outer space and on celestial bodies as “ius cogens', but “ipso facto” can be applied as an element of Outer Space Public Law regulating relations between or among States in this environment [6, pp. 40-41].
General Principles of Outer Space Public Law. Despite the many unsolved problems in the field of regulation of space activities that arose during 1958-1963, the international community still managed to move a little forward in the formation of the main theses of Outer Space Public Law.
Conventionally, the mentioned theses can be formed into several General Principles of Space Activities, which can be considered the basis for the development of modern Outer Space Public Law.
The main feature of these principles is that they were not agreed upon and formalized in international treaties, but most often took the form of a kind of Conventionalis stipulatio (joint public commitment), which was set out in one or more Resolutions and/or Declarations of the UN [8, p. 349].
Wherein, in this study, the term “Cosmos” is mainly used to determine the name of these principles, and not “Universe” or “outer space and celestial bodies”. And this is not due to the astronomical or physical characteristics of spacetime-matter but to the everyday perception of an average person [8, p. 350]. Historically speaking, most people perceive the concept of “Universe” as the whole world that surrounds a human, who is perceived as one of the elements of this world. Considering that the planet Earth, along with the rules established on it, is also part of our “Universe” (in the ordinary sense), the application of this term to the space outside the planet Earth becomes incorrect [8, p. 350]. At the same time, the concept of “outer space and celestial bodies” when translated into different languages often has different meanings and cannot be translated literally. Moreover, this concept has a vague meaning because it does not take into account stars as well as air and other gaseous layers around celestial bodies.
In turn, the concept of “Cosmos” is mainly perceived as a definition of space beyond the planet Earth, which includes both cosmic objects and the space between them [8, p. 350]. Therefore, the use of this term to name the processes of regulating relations outside of planet Earth is likely to be more correct.
Given the above, the General Principles of Space Activities in the Outer Space Public Law formed as of the end of 1963 can be formulated as follows:
- The Principle of Free Cosmos;
- The Principle of Peaceful Cosmos;
- The Principle of Useful Cosmos;
- The Principle of Cosmic Traffic.
The description of the main process of formation and development of these principles during 1958-1963 was previously published in papers from this series: “Outer space public law: the 1958-1963 period. Part 1” [8] and “Outer space public law: the 1958-1963 period. Part 2” [9]. Hence, this paper outlines only the main aspects of the creation and formulation of the General Principles of Space Activity.
Conventionalis stipulatio “The Principle of Free Cosmos”. When describing this principle, the concept of Free Cosmos refers to both passive and active characteristics of such freedom.
At the same time, the passive characteristic of Free Cosmos is its independence and neutrality. I.e. freedom from any territorial and other claims both from States and individuals [8, p. 350]. In turn, an active characteristic of Free Cosmos is the possibility of its unhindered visiting and exploration by any individual, including those representing the interests of any State or other community [8, p. 350].
Thus, the Cosmos (including outer space and celestial bodies) in this case is the object of this principle, and individuals, States, and other communities are its subjects [8, p. 350].
At the same time, it is necessary to say that in 1958-1963 this principle just started to develop leading to many discussions and disputes. Therefore, its formation took place not only based on specific provisions of the Declarations and conclusions in Resolutions but also based on individual statements, proposals, and assumptions of the UN General Assembly. In this regard, at the end of 1963 this principle could be formulated as follows:
“Outer space and celestial bodies are free for exploration by all States (on a basis of equality and by international law) as well as by all people, private companies, non-governmental organizations, and other interested parties.
Outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, use or occupation, or by any other means” [8, p. 351].
Conventionalis stipulatio «The Principle of Peaceful Cosmos». This principle began to take shape since the adoption of the UN GA Resolution 1148 and continues to be relevant to this day.
At the end of 1963 this principle could be formulated as follows:
“All subjects of space activities can explore and use outer space exclusively for peaceful purposes, act only in the interests of maintaining international peace and security as well as for the development of international cooperation and mutual understanding, and have no right to carry out propaganda of war in space activities.
All subjects of space activities shall refrain from placing, installing, and stationing in any other manner (and to refrain from causing, encouraging, or in any way participating in the conduct of the foregoing activities) in orbit around the earth and in outer space and on celestial bodies any objects carrying nuclear weapons or any other kind of weapons of mass destruction.
At the same time, States undertake not to carry out or take part in carrying out any nuclear weapon test explosion in places that are located in outer space and on celestial bodies, and which are under the jurisdiction or control of these States” [8, p. 353].
This principle imposes an absolute prohibition on the placement in outer space of any weapons and equipment that could be used in armed conflicts.
At the same time, any satellites or other equipment that could in some way be used for military purposes should have been launched only with the permission of the UN and under its full control with open access for any State to the information received from such equipment [8, p. 353].
However, already at this stage, the first contradictions arose regarding compliance with this principle.
These contradictions have resulted in multiple “Fraus legi fit”, which some States use to interpret the phrase “peaceful purposes” in their military interests [8, p. 353].
Proponents of preserving Peaceful Cosmos claim that the phrase “peaceful purposes” means “non-military purposes” [16, p. 82] - i.e., a prohibition on the use of outer space for any military purposes and placing any military facilities.
Proponents of Cosmos weapons claim that the phrase “peaceful purposes” means “non-aggressive purposes” [16, p. 82] - i.e., the possibility of placing military objects in outer space (e.g., for reconnaissance and surveillance), if they are not used for forceful actions or threats of force. Although this option is the most absurd (because any military facilities, directly or indirectly, are used to carry out military force), nevertheless, it is this option that prevails in the world today [3, p. 337] and is most actively promoted by the United States to ensure its military hegemony in outer space and on Earth [17, p. 82].
At the same time, some politicians justified the military use of space by the absence of a line between the military and peaceful use of outer space, since supposedly in both cases the goals can be duplicated [2, p. 142]. In this case, this meant navigational actions or military actions to forestall an enemy attack and to protect the world.
However, no matter how some people try to justify military actions, they remain military actions, and the game of interpretation would remain an ordinary political game. The difference between military and peaceful goals has always been very simple - military goals are always directed against someone (even if they are carried out for the benefit of someone), and peaceful goals are always carried out for the benefit of someone and are never directed against someone.
Thus, any deployment of military objects in outer space contravenes peaceful purposes [17, p. 83] and also contradicts “The Principle of Peaceful Cosmos” [8, p. 354].
Conventionalis stipulatio “The Principle of Useful Cosmos”. This principle can be stated as follows:
“All States can explore and use outer space exclusively for the benefit and interests of humanity, avoiding national rivalries into this field” [9, p. 643].
Thus, any other provisions of international documents that grant States any rights to use outer space and celestial bodies can only be applied within the framework of the above formulation of “The Principle of Useful Cosmos” and to the extent that does not contradict “The Principle of Free Cosmos” and the condition of “Res Nullius Civitatis” [9, p. 643].
Conventionalis stipulatio “The Principles of Cosmic Traffic”. It can be considered that from the moment of the adoption of the UN GA Resolution 1721 and the Declaration of Legal Principles, an international process of regulating space activities began, within the framework of which several proposals were made, which can roughly be called Conven- tionalis stipulatio “The Principles of Cosmic Traffic”.
As of the end of 1963 this collection of principles included three special principles of space activities (The Principle of registration of launches, The Principle of mutual assistance, and The Principle of responsibility), which can be described as follows.
The Principle of registration of launches (the 1st Principle):“States launching objects into orbit or beyond undertake to register such launches to the Committee on the Peaceful Uses of Outer Space under the rules established by this Committee” [9, p. 644].
The Principle of mutual assistance (the 2nd Principle): “States shall render to astronauts all possible assistance in the event of accident, distress, or emergency landing on the territory of a foreign State or the high seas. Astronauts who make such a landing shall be safely and promptly returned to the State of registry of their space vehicle. Objects launched into outer space or component parts found beyond the limits of the State of registry shall be returned to the relevant State, which shall furnish identifying data upon request prior to return” [9, p. 645].
The Principle of responsibility (the 3rd Principle): “All States that carry national activities in outer space (including States which launch or procure the launching of an object into outer space, and each State from whose territory or facility an object is launched) bear international responsibility for national activities in outer space (including for the activities of governmental agencies or by non-governmental entities), for assuring that national activities are carried on in conformity with the principles outlined in the Declaration of Legal Principles, and for damage to a foreign State or its natural or judicial persons by such object or its component parts on the earth, in air space, or outer space.
International organizations bear international responsibility for activities in outer space to ensure that activities are carried on in conformity with the principles outlined in the Declaration of Legal Principles.
The implementation by States or its nationals of space activities (including experiments) that would cause potentially harmful interference with activities of other States in the peaceful exploration and use of outer space is possible only after an international consultation concerning the activity or experiment” [9, p. 646].
It should be separately noted that all these principles of Cosmic traffic did not take the form of imperative and mandatory norms but naturally turned into elements of law since all subjects of space activity adhered to or tried to adhere to these principles to ensure the safety of space movement.
Conclusion
Despite all the diversity, the Universe is one giant system with uniform physical and chemical laws throughout its entire space.
However, the current study suggests that human imperfection is the reason why it is essential to divide the Universe into two separate legal spaces concerning jurisprudence and human life: the “domestic room”” and the “alien room””.
At the same time, the paper proposes that the “domestic room” of humanity shall include the planet Earth and a layer of spatial security for humanity, which ensures the livelihoods of all humanity and includes the air-orbital space around the planet at least up to an altitude of 36 000 kilometers (about 22 370 miles) above sea level and the Moon.
At the same time, the “domestic room”” of any State, which is determined by its spatial-territorial jurisdiction, shall be located at an altitude no higher than the upper limit of the State's spatial security layer at an altitude of about 1000 kilometers (about 621 miles) above sea level (i.e., inside “domestic room” of humanity).
In turn, the “alien room” for States and humanity is the Cosmos (including outer space and celestial bodies throughout the Universe) beyond the layer of spatial security of humanity (beyond the Moon and above 36,000 kilometers above sea level around the Earth).
Upon that the emphasis of the study is on the fact that neither people nor States can establish their own rules in an “alien room” for the entire Universe, but can only agree on the way of behavior and relationships when visiting such an “alien room”” (i.e., on a visit).
Taking these features into account, the process of regulating space activities in Cosmos can be specified as a unique process. Moreover, this process is very recent in origin (not accounting for religious theories) and is only taking its first steps, resembling the process of formation of classical law in Ancient Egypt and Ancient Rome.
It is precisely because of the youth and uniqueness of the process of regulating space activities that the study suggests the possibility of the development in the future of several legal systems in Outer Space Law, such as Outer Space Law of Principles (or Animal rationale ius), Outer Space Private Law (or Cosmos Private Law), Outer Space Public Law (or Cosmos Public Law).
In turn, subsequently, this may also lead to the emergence of new subjects of Outer Space Law, in addition to States and the United Nations, and therefore, the study proposes introducing a new interpretation of the term “the subject of Outer Space Law” different from the outdated classical interpretation of the term “the subject of law”.
In addition, it should be noted that in the process of development of space activities during 1958-1963, the subject and object structure of such activities was gradually formed. At the same time, due to the lack of an effective classification of objects of space activity, this study proposes to divide such objects into four types: natural phenomena, artificial phenomena, artificial space objects, natural space objects (which include outer space and celestial bodies as separate spatial-territorial units).
Furthermore, considering a large number of scientific discussions on the topic of determining the status of “space objects” and “spacecraft” and responsibility for their operation, this study proposes introducing several new terms to solve this problem, namely the term “Cosmic artificial object” and the term “pre-Cosmic artificial object” as well as interpretations of these terms.
To summarize this study, it is safe to say that in 1958-1963 a gradual and confident process of formation of one of the above legal systems, namely Outer Space Public Law, began.
Given the unique environment for which Outer Space Public Law was developed, the sources of this law initially took on a non-standard form, a kind of Conventionalis stipu- latio (joint public promise) set out in the form of Resolutions and Declarations of the General Assembly of the United Nations or the form of other similar official documents.
However, even in the format of such Conventionalis stipulatio, the international community managed to develop the first four most important General Principles for Space Activities: The Principle of Free Cosmos, The Principle of Peaceful Cosmos, The Principle of Useful Cosmos, The Principle of Cosmos Traffic (which consists of the following three specific principles: The Principle of registration of launches, The Principle of mutual assistance, and The Principle of responsibility).
It is these principles that may in the future become the basis for the development of Outer Space Public Law aimed at the benefit of all humanity.
References
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Ñïèñîê âèêîðèñòàíèõ äæåðåë
1. Ñêàêóí Î.Ô. Òåîð³ÿ äåðæàâè ³ ïðàâà. Êè¿â, 2010. 520 ñ.
2. Asamoah O.Y., Asamoah O.Y. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. The Legal Significance of the Declarations of the General Assembly of the United Nations. Dordrecht : Springer Netherlands, 1966. pp. 129-160.
3. Beard J.M. Soft Law's Failure on the Horizon: The International Code of Conduct for Outer Space Activities. 2017. Vol. 38, Issue 2. pp. 335-424
4. Cheng B. Studies in International Space Law. Oxford, 1997. URL: https://doi.org/10.1093/acprof:oso/9780198257301.001.0001
5. Christol C.Q. Outer space exploitability. Space Policy. 1990. Vol. 6, Issue 2. pp. 146-160. URL: https://doi.org/10.1016/0265- 9646(90)90050-8
6. Csabafi I.A. The Concept of State Jurisdiction in International Space Law. Dordrecht, 1971. 197 p.
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