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Up In the Air: The International Law of Satellites

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About The Author

Keir Baker (Former Editor in Chief)

Keir is a Trainee Solicitor currently in the fourth and final seat of his training contract at a major US law firm. He is a law graduate from Selwyn College, University of Cambridge. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

The rockets and the satellites, spaceships that we're creating now, we're pollinating the universe.

Neil Young

On the 7th February, North Korea launched an artificial satellite into outer space. Internationally condemned, it has been claimed by the US, South Korea, and even Pyongyang's ally China, that the launch was aimed at developing inter-continental ballistic missiles. This is in breach of UN sanctions imposed on the country. In response, the North Koreans have insisted that their space programme is purely scientific in nature and the purpose of the satellite – known as Kwangmyongsong-4 - is for telecommunications.

The launch of the satellite raises interesting legal issues. Noticeable the international community have focused their criticisms of the satellite on the breach of the UN sanctions and no reference has been made to the various treaties and customary international law that governs the law of outer space, despite the fact that North Korea has ratified many of the multilateral treaties outlining the law in this area.

However, it ought not be assumed that this demonstrates that the international law of satellites is either unimportant or uncomprehensive. After all, over 30 states have space programmes and 50 states have satellites in orbit – many through private companies – and space tourism is becoming a very real possibility. Furthermore, ambitious and resource-hungry states are casting their eyes at our natural satellite – the Moon – and the potential mineral-wealth it could hold. For example, it has been reported that the moon’s soil is rich in helium-3, an element rarely found on Earth that – because of its importance in nuclear fusion – could prove valuable for energy production. Indeed, it is estimated that reserves of helium-3 on the Moon total one million tonnes; just 25 tonnes could power the European Union and United States for a year.

Clearly, the international law of satellites is set to become ever more critical as humanity continue to explore beyond Earth. So, with all this in mind, this article seeks to examine the international law related to both possible forms of satellites: firstly, it will examine the international law applicable to artificial satellites like that of North Korea, and secondly the international law concerning the Earth’s only natural satellite: the Moon.

Where is Outer Space?

Satellites orbit the Earth. As they do so, it is only natural that they pass over states, but they do so at such a great height that in practice, it is very rare that they can impact upon those states in any way. It would seem self-evident therefore that this would pose no issue in international law. But there is the potential for a satellite to be incorrectly – or even maliciously – launched at such a height that could infringe upon the airspace and the territorial sovereignty of a state, especially if international law were to apply the Roman law doctrine of ad coelom - which translates roughly as “to whomsoever the soil belongs, he owns also to the sky and to the depths” – and has seen some application in English law (see Star Energy Weald Basin v Bocardo SA).

It is clear therefore that there must be a height at which the sovereignty of state should be limited; otherwise it could be that constant international disputes could arise in a way that undermines the practical benefit brought to humanity by allowing for the unencumbered use of satellites at a reasonable, non-impactful height. Unfortunately however, there is no consensus as to what exact height that should be.

The states which signed the 1919 Paris Convention for the Regulation of Aerial Navigation held that a state could extend its sovereignty upwards into its air space ad infinitum, reflecting the afore-mentioned ad coelem doctrine. This was reaffirmed in the Nicaragua case by the International Court of Justice, where it was confirmed that the rules governing a state’s sovereignty over that below its territory applied by analogy to the airspace above it. But this was in the context that the principle of respect for territorial sovereignty is directly infringed by the unauthorised overflight of a state’s territory by aircraft, and these rules were conceived before the mass influx of satellites into outer space – the concept of territorial airspace extending to an unrestricted extent is no longer viable.

Many suggestions have been ventured by academics and states alike. The UK subscribes to the school of thought which maintains that a state may only claim sovereignty over the height up to which aircraft can ascend – around 20 miles. But whilst this represents a common-sense approach, it is too uncertain: it is always developing in line with advancements in aircraft technology and cannot account for hybrid craft, such as those to be used by Virgin Galactic for space tourism.

Another suggestion – albeit one that should be dismissed as overly-restrictive and impractical – is that airspace is synonymous with atmospheric space and includes any space where air is to be found: a height of 10,000 miles.

Another possibility comes by analogy with the law of the sea: it could be argued that several lines should be drawn rather than one, with full sovereignty applying as far up as aircraft can go, followed by a second neutral zone for satellites, and the final zone of outer space.

However, the most sensible approach is to deal more explicitly and openly with the issue of satellites, thereby removing any uncertainty regarding the issue. It should be concluded therefore that a state should only exercise sovereignty over that area whose boundary is the lowest altitude at which an artificial satellite may be put in orbit at least once around the earth: 70-100 miles. This takes into account state practice since the launching of Sputnik, recognises the legality of satellites already in orbit, and may be reconciled with claims to sovereignty up to the height of aerodynamic lift.

The Law of Satellites and Other Orbiting Objects

Military Satellites

There is no evidence as of yet that Kwangmyongsong-4 is not what Pyongyang claims it to be; a mere communications satellite. Yet if it could be substantiated that the satellite does in fact – as the US, South Korea and China claim – something to facilitate the launch of weapons, the launch may breach more than just the UN sanctions imposed on North Korea.

Article 4 of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies – acceded to by North Korea in 2009 – holds that:

States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.

This – as with the rest of the 1967 Treaty and the other Treaties, Conventions and Agreements in this area of international law – is enforced by Article 6’s threat of being subject to proceedings in the ICJ for a breach of state responsibility.

However, even if Kwangmyongsong-4 is carrying something that could facilitate North Korean weaponry in space, there is scope for debate as to whether this would apply thereto. On one hand, it can be argued – as was done by the USA following disputes regarding their Strategic Defence Initiative (‘Star Wars’) - that Article 4 only prohibits nuclear weapons and weapons of mass destruction. After all, it is well-known that state have reconnaissance satellites used for military spying purposes and these are both permitted by Article 4 and rarely challenged (in fact, they are sometimes openly acknowledged as permissible) under international law by other states.

On the other hand, Article 1 of the 1967 Treaty holds as follows:

The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

It is reasonable to argue therefore that any military activity – as it is not carried out “for the benefit and in the interests of all countries” – actually contravenes the 1967 Treaty. This would therefore make not only North Korea’s satellite illegal (if its actual purpose is indeed for more than communications), but also the satellites of many other states under the 1967 Treaty.

The fears of states using outer space to facilitate weaponry was emphasised by the adoption by the UN General Assembly of the 1975 Convention on Registration of Objects Launched into Outer Space – also signed by North Korea in 2009 – the provisions of which outline a scheme whereby every object launched into space is subject to an entry onto a register kept by the UN Secretary General. As Article 4(1)(e) of the 1975 Convention requires the registering of the “general function of the space object”, the international community are able – covert operations notwithstanding – to use the register to ensure that no states are creating an arsenal in outer space.

Liability for Satellites

There is always the potential for a satellite launch to go wrong. Now described as ‘tumbling through space’, Kwangmyongsong-4 could potentially be illustrative of the need for international law governing cases in which the space object of one state causes damage to another.  This need was realised by the General Assembly in 1971, which paved the way for the aptly-named 1972 Convention on International Liability for Damage Caused by Space Objects.

Article 2 of the 1972 Convention establishes strict liability – subject to the one exception of contributory negligence by the injured state – for damage caused by a space object to persons or property on the surface of the earth or to an aircraft in flight. Fault liability (i.e. the inclusion of the ideas of negligence, recklessness and intention) is applied by Article 3 in cases where damage is caused to other space objects in flight and to persons in them. Critically, in the current age of international space cooperation, Article 5 establishes joint and several liability in the case of joint launch.

Throughout the years, there have been examples of space junk causing damage to states: in 1962, a part of Sputnik IV hit Manitowoc, Wisconsin; in 1969, space debris broke a kitchen window in Southend; and in 1978, a small nuclear reactor from Kosmos 954 broke up over Northern Canada – the USSR were forced to pay (Canadian) $3 million in compensation.

While countries often settle claims diplomatically, Article 14 of the 1972 Convention holds that if this proves fruitless, it will be determined by a Claims Commission, established at the request of either party. The compensation due “shall be determined in accordance with international law, and the principles of justice and equity in order to provide such reparation in respect of the damage as will restore the person or state... to the condition which would have existed.” It follows therefrom that there is – as the Kosmos 954 case demonstrates – no upper limit as to the amount of compensation that may be payable.

The Law of the Moon

Following the realisation that a moon landing was possible, the international community – with the US and USSR working in rare cooperation – acted uncharacteristically quickly and efficiently to draw up the basic legal principles that would regulate the use of the Moon by states. This was outlined in the aforementioned 1967 Treaty, the provision of which have been viewed by many as now stating customary international law, thereby making them binding on parties and non-parties to the Treaty alike.

Article 1 of the 1967 Treaty provides a comprehensive outline of the overarching principles contained within, stating:

Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies. There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation.

This is supplemented by Article 2, which holds that:

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.

Indeed, underwritten throughout the entire provisions are the concept of openness, mutual trust, international cooperation and solidarity in regards to the Moon; as Article 10 states, the exploration and use of outer space, including the Moon and other celestial bodies.... shall be guided by the principle of cooperation and mutual assistance.” This was reflected in other pieces of space legislation, such as the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space and the 1993 Principles Relevant to the Use of Nuclear Powers Sources in Outer Space.

The Moon’s Natural Resources

Nonetheless, as suggested above, states have realised that there is the potential for the Moon holding a great reserve of mineral wealth, which could be in the future subject to contentious exploitation. Fear of the potential for this to cause diplomatic issues led to the adoption by the General Assembly of the 1979 Agreement Governing the Activities of States on the Moon and other Celestial Bodies, in order to supplement the 1967 Treaty.

Article 11 outlines international law’s current provisional position regime on the resources of the moon, stating that:

The Moon and its natural resources are the common heritage of mankind... neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place shall be property of any State.

Article 6(2) provides the one exception to this rule, holding that, states have for the purposes of scientific investigation “the right to collect and remove form the moon samples of its minerals and other substances.”

However, this position is merely provisional. All states party to the 1979 Agreement have also agreed, under Article 11(5) and Article 11(7) to establish an international regime to govern the exploitation of the resources of the moon when this becomes feasible. This regime will have aims, with all the states involved attempting to: ensure the orderly and safe development of the natural resources of the moon; the rational management of those resources; the expansion of opportunities in the use of those resources; and an equitable sharing by all state parties – who presumably will be allowed to authorise companies to extract the resources of their behalf – to the benefits derived from those resources.

Yet it is worth noting that the 1979 Agreement does not rule out the possibility of private property rights and state sovereignty over the Moon and its resources: although Article 11(5) imposes an obligation on all states to negotiate in good faith to establish the proposed international regime, if no such regime can be agreed upon, the Agreement imposes no suspension upon unilateral exploitation by contracting parties. This is a major risk taken by the draftsmen of the 1979 Agreement. Given the potential for the exploitation of the Moon’s natural resources to cause major international disputes and conflict, it must be hoped by all that – as exploitation becomes feasible – states are able to follow their past practice of efficiently and successfully creating cooperative and fair treaties to govern the law of satellites, both natural and artificial.

Conclusion

The provisions within the various multilateral treaties concerning both artificial and natural satellites are demonstrative of a principle of international law known as the doctrine of the common heritage of humanity.  Viewed as one solution to worrying potential for the independent, self-interested actions of states to ultimately destroy many of the available-but-shared limited resource – such as the Deep Sea Floor, the Arctic, or the Moon – the common heritage of humanity principle holds that defined territorial areas should be protected from exploitation by individual states or corporations for the benefit of future generations.

The doctrine is explicitly referenced in the 1967 Treaty, and is also implicit within the other pieces of international legislation concerning satellites, with the imposition of strict and fault liability for damage illustrative of attempts to encourage the responsible use of outer space. By creating and ratifying the legislation in this area, the international community has recognised that it is increasingly crucial to uphold the doctrine, as states continue to become ever more interdependent and continue to develop the ability (and the perception of the need) for the expansion of humanity’s influence across the planet and beyond.

It is a surprise therefore that no state has thought to remind the North Koreans of the international consensus in this area. However, this can most likely be attributed to the depressing truth that priority is given to political point scoring over the upholding of international law, as is evident in many cases in many areas of international law.

Indeed, from a purely legal perspective, it may be said that it is the enforcement of international law and the overcoming of its regrettable subservience to the international order and geo-politics which represents the final frontier mankind ought to be trying to conquer.

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Tagged: Armed Conflict, International Law, Technology

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