Reasonable Uses of Outer Space, 55 I: Alvion

KALVION
ISSUE NUMBER 1
The Outer Space Treaty provides that outer space, including the moon and other celestial bodies,
shall be free for exploration and use.1
M.N. SHAW, INTERNATIONAL LAW 6TH EDITION
Page 548
 That important article emphasises that no private rights of ownership over the moon or any
part of it or its natural resources in place may be created, although all states parties have
the right to exploration and use of the moon.2
Reasonable Uses of Outer Space, 55 INT'L L. STUD. SER. US NAVAL WAR COL. 263, 318 (1962)
 Freedom of outer space for peaceful uses means freedom from unilateral control so long as
the users conduct their activities in a reasonable manner.3
 The right of free and reasonable use relieves a state from the duty of not interfering in uses
by others when the specific uses by others become so unreasonable4
 Thus, if it is contended that free and peaceful uses of outer space are illegal until
specifically permitted, it can be stated that the principle of permissibility for peaceful uses
has been determined by general customary international law and Resolution 1721 (XVI).5
1
Outer Space Treaty, Art. 1
2
M.N. SHAW 6TH ED. 2008
3
Reasonable Uses of Outer Space, 55 INT'L L. STUD. SER. US NAVAL WAR COL. 263, 318 (1962)
4
Id.
5
Id.
 Reasonableness emphasizes the essential values of a world community of interests, and
when conditioned by acceptable international tolerances provides the basis for effective
and cooperative international relations.6
 Peaceful, and hence reasonable uses of outer space, may include military uses when the
latter are nonaggressive and beneficial in their purpose. Therefore, it may be concluded
that the reasonableness of space activity is determined not so much by the possible military
uses or capabilities of space devices, but, rather, by the nonexistence of aggressive intent
or by the absence of unpeaceful circumstances.7
Ricky J. Lee & Felicity K. Eylward, Article II of the Outer Space Treaty and Human Presence
on Celestial Bodies: Prohibition Of State Sovereignty, Exclusive Property Rights, Or Both?
 Article II does not refer explicitly to private entities even though the extension of the non-
appropriation doctrine to private entities is “firmly established in space law”.
 Article VI of the Outer Space Treaty, any act of national appropriation in outer space and
on celestial bodies that are conducted under the State’s direction or influence, regardless
of whether the act was undertaken by public or private entities, is prohibited.8
 Article II also prohibits the creation of private property rights9
 At a minimum, “appropriate international consultations” requires States to provide affected
States sufficient information to take appropriate action to avoid potentially harmful
interference and to mitigate effects10
6
Id.
7
Id.
8
Ricky J. Lee & Felicity K. Eylward, Article II of The Outer Space Treaty And Human Presence On Celestial Bodies:
Prohibition Of State Sovereignty, Exclusive Property Rights, Or Both? IAC-05-E6.2.02
9
Prevost, Law of Outer Space Summarised 19 CLEV. ST. L. REV. 595 at 606(1970)
606, Tennen, Outer Space: A Preserve for All Humankind (1979) 2 HOUS. J. INT’L. L. 145 at 149.
10
OPPENHEIM'S INTERNATIONAL LAW 302 (Robert Jennings & Arthur Watts eds., 9th ed. 1992).
ISSUE NUMBER 2
ISSUE NUMBER 3
M.N. SHAW, INTERNATIONAL LAW 6TH EDITION
Page 544
 Such resolutions constituted in many cases and in the circumstances expressions of state
practice and opinio juris and were thus part of customary law.11
Page 546
 Whereas article III provides for fault liability for damage caused elsewhere or to persons
or property on board a space object.12
Page 783
 To be contrasted with this approach is the subjective responsibility concept (the ‘fault’
theory) which emphasises that an element of intentional (dolus) or negligent (culpa)
conduct on the part of the person concerned is necessary before his state can be rendered
liable for any injury caused.13
In the Corfu Channel14 case the International Court appeared to lean towards the fault theory15 by
saying that:
It cannot be concluded from the mere fact of the control exercised by a state over its territory and
waters that that state necessarily knew, or ought to have known, of any unlawful act perpetrated
11
M.N. SHAW
12
the Exchange of Notes between the UK and Chinese governments with regard to liability for damages arising during
the launch phase of the Asiasat Satellite in 1990 in accordance with inter alia the 1967 and 1972 Conventions, UKMIL,
64 BYIL, 1993, p. 689.
13
M.N. SHAW
14
ICJ Reports, 1949, p. 4;
15
Oppenheim’s International Law, p. 509.
therein, nor yet that it necessarily knew, or should have known, the authors. This fact, by itself and
apart from other circumstances, neither involves prima facie responsibility nor shifts the burden
of proof16
Krystyna Wiewiorowska, Some Problems Of State Responsibility In Outer Space,
 States bear responsibility for their activities in outer space whether such activities are
conducted by governmental agencies or by non-governmental entities17
 Aside from responsibility arising as a result of wrongful acts, international law also
considers responsibility for lawful acts.18
M. LACHS, THE LAW OF OUTER SPACE: AN EXPERIENCE IN CONTEMPORARY LAW MAKING
(LEIDEN, 1972).
 M. Lachs rightly states that in space law, States bear direct responsibility, and that "the
acceptance of this principle removes all doubts concerning imputability. The importance
of this will be appreciated by those familiar with the serious difficulties to which this issue
has so frequently given rise in practice19
Page 114
 State bear international responsibility for any activity in Outer space, irrespective of
whether it is carried out by governmental agencies or non-governmental entities.20
H. BRIGGS, THE LAW OF NATIONS 45 (LONDON, 1952)
16
ICJ Reports, 1949, pp.
17
Krystyna Wiewiorowska, Some Problems Of State Responsibility In Outer Space, 7 J. SPACE L. 23 (1979)
18
Id. at 32
19
M. LACHS, THE LAW OF OUTER SPACE: AN EXPERIENCE IN CONTEMPORARY LAW MAKING 55 (LEIDEN, 1972).
20
Id. At 114, Manfred Lachs
 It is accepted in the doctrine of international law that violating the law means not only
violating the treaties or international customary law but also the general principles of
international law."21
I.A. Csabafi, The UN General Assembly Resolution on Outer Space as Source of Space Law.
Proceedings of the VIII Colloquium on the Law of OuterSpace 336 (1966);
 The violation of the decisions of international organizations and unanimously adopted
resolutions of the General Assembly of the UN containing the confirmation and broadening
of principles of international law is also considered a violation of law22
O. OGUNBANWO, INTERNATIONAL LAW AND OUTER SPACE ACTIVITIES 153 (THE
HAGUE,1975),
 The formulation of the term "damage" accepted in the Convention of 1972 includes the
concepts of damnum emergens as well as lucrum cessans.23
NEAPILIA
ISSUE NUMBER 1
 It does not provide States any ability to limit, prevent or even prohibit another State from
engaging in activities constituting harmful interference. Article IX only allows an affected
21
H. BRIGGS, THE LAW OF NATIONS 45 (LONDON, 1952)
22
I.A. Csabafi, The UN General Assembly Resolution on Outer Space as Source of Space Law. Proceedings of the
VIII Colloquium on the Law of Outer Space 336 (1966)
23
O. OGUNBANWO, INTERNATIONAL LAW AND OUTER SPACE ACTIVITIES 153 (THC HAGUE,19/5),
State party the right to put forth a request for consultation, but the result of the consultation
is not stipulated.24
ISSUE NUMBER 2
Page 783
 The principle of objective responsibility (the so-called ‘risk’ theory) maintains that the
liability of the state is strict. Once an unlawful act has taken place, which has caused injury
and which has been committed by an agent of the state, that state will be responsible in
international law to the state suffering the damage irrespective of good or bad faith.
ISSUE NUMBER 3
24
Li Juqian, Legality and Legitimacy: China's ASAT Test, 5 CHINA SECURITY 45, 48 (2009).

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KALVION

shall be free for exploration and use.1

M.N. SHAW, INTERNATIONAL LAW 6TH EDITION

the right to exploration and use of the moon.2

the users conduct their activities in a reasonable manner.3

by others when the specific uses by others become so unreasonable4

and cooperative international relations.6

or by the absence of unpeaceful circumstances.7

on Celestial Bodies: Prohibition Of State Sovereignty, Exclusive Property Rights, Or Both?

appropriation doctrine to private entities is “firmly established in space law”.

of whether the act was undertaken by public or private entities, is prohibited.8

 Article II also prohibits the creation of private property rights9

 At a minimum, “appropriate international consultations” requires States to provide affected

States sufficient information to take appropriate action to avoid potentially harmful

interference and to mitigate effects10

M.N. SHAW, INTERNATIONAL LAW 6TH EDITION

or property on board a space object.12

theory) which emphasises that an element of intentional (dolus) or negligent (culpa)

liable for any injury caused.13

Krystyna Wiewiorowska, Some Problems Of State Responsibility In Outer Space,

conducted by governmental agencies or by non-governmental entities17

considers responsibility for lawful acts.18

M. LACHS, THE LAW OF OUTER SPACE: AN EXPERIENCE IN CONTEMPORARY LAW MAKING

has so frequently given rise in practice19

whether it is carried out by governmental agencies or non-governmental entities.20

H. BRIGGS, THE LAW OF NATIONS 45 (LONDON, 1952)

Proceedings of the VIII Colloquium on the Law of OuterSpace 336 (1966);

 The violation of the decisions of international organizations and unanimously adopted

of principles of international law is also considered a violation of law22

O. OGUNBANWO, INTERNATIONAL LAW AND OUTER SPACE ACTIVITIES 153 (THE

concepts of damnum emergens as well as lucrum cessans.23

engaging in activities constituting harmful interference. Article IX only allows an affected

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