Some Preliminary Space Law Principles for Consideration by ICAO
© The Author(s) 2015
Ruwantissa AbeyratneRegulation of Commercial Space TransportSpringerBriefs in Law10.1007/978-3-319-12925-9_55. Some Preliminary Space Law Principles for Consideration by ICAO
(1)
Global Aviation Consultancies Inc., Cote Saint Luc, Québec, Canada
5.1 Principles and Guidelines Contained in International Law
United Nations Resolution 1721 (XVI) established the primary principle that international law, including the Charter of the United Nations applies to outer space and celestial bodies and that outer space and celestial bodies are free for exploration and use by all States in conformity with international law and are not subject to national appropriation. This principle is also contained in Article 1 of the Outer Space Treaty of 1967.1 It must be mentioned that this Resolution has no binding force on States and that it merely commends to States the aforesaid principles for their guidance. This notwithstanding, Resolution 1721 (XVI) was adopted unanimously by the General Assembly and is therefore supported by some States including the Russian Federation, United States and the United Kingdom. General Assembly Resolution 1962 (XVIII) contains the following principles in a Declaration, in addition to the guiding principles enunciated in Resolution 1721 (XVI):
(a)
States bear international responsibility for national activities in outer space, whether carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried on in conformity with the principles set forth in the Declaration. The activities of non-governmental entities in outer space shall require authorization and continuing supervision by the State concerned. When activities are carried on in outer space by an international organization, responsibility for compliance with the principles set forth in the Declaration shall be borne by the international organization and by the States participating in it;
(b)
In the exploration and use of outer space, States shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space with due regard for the corresponding interests of other States. If a State has reason to believe that an outer space activity or experiment planned by it or its nationals would cause potentially harmful interference with activities of other States in the peaceful exploration and use of outer space, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State which has reason to believe that an outer space activity or experiment planned by another State would cause potentially harmful interference with activities in the peaceful exploration and use of outer space may request consultation concerning the activity or experiment;
(c)
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;
(d)
Each State which launches or procures the launching of an object into outer space, and each State from whose territory or facility an object is launched, is internationally liable for damage to a foreign State or to its natural or juridical persons by such object or its component parts on the earth, in air space, or in outer space; and
(e)
States shall regard astronauts as envoys of mankind in outer space, and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of a foreign State or on the high seas. Astronauts who make such a landing shall be safely and promptly returned to the State of registry of their space vehicle.
Another noteworthy instrument of space law is the 1968 Agreement on the Rescue of Astronauts which addressed two issues, the first being the conduct of national manned space flight programmes where the Agreement recognises that accidents or mistakes may occur, and that astronauts may have to be rescued from space vehicles if they re-enter the earth’s atmosphere from outer space and land somewhere outside the territory of the launching State. The second issue arises from manned and unmanned space programmes. It recognises that accidents or mistakes may occur and that as a result space objects or their component parts may re-enter the earth’s atmosphere and land in areas outside the territory of the launching State. An interesting point has been raised by some commentators as follows:
Article 2 of the Assistance and Return Agreement require that when a landing has been made owing to accident, distress, emergency, or is unintended, the Contracting Party on whose territory the spacecraft has landed must “immediately take all possible steps to rescue” the personnel of the spacecraft and “render them all necessary assistance.” Thus Article 2 requires, at least in theory, that the maximum possible rescue effort be made by the Contracting Party. It may be argued that the Contracting Party must utilize all resources available for the rescue effort, even to the point of diverting certain resources from other important uses. This appears to be a greater measure of assistance than that required under Article 25 of the Chicago Convention, which requires only that assistance deemed “practicable” by the state on which a landing is made; but it is consistent with the measure of “all possible assistance” required to be rendered to astronauts under Article V of the Outer Space Treaty. Whether a real distinction exists between “all possible” and. “practicable” will depend upon the efforts exerted by states in comparable situations.2