Space Law SCC

SCC Online Web Edition, Copyright © 2020
Page 1 Sunday, May 03, 2020

Printed For: KUMAR KARTIKEYA, Hidayatullah National Law University
SCC Online Web Edition: http://www.scconline.com
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Space Law: In the Era of Commercialisation
1. Law and Space Research
by
Dr. S. Bhatt1
ABSTRACT The entry into outer space and the subsequent developments have
added a new dimension to both science and law. In fact, the space research is one
of the areas where we find a close interconnection between science and law. While
the scientific developments are undoubtedly necessary, law is essential to regulate
the use and abuse of science. Therefore they always go hand in hand. The space
exploration has brought lawyers and the scientists together to shape a new world
order. Thus this article would first reflect on the theme of law and science by
analysing their synthesis, and then would analyse the implications of space
research on law. The major purpose of this article is to give a general understanding
of development of space law and to bring forward the link between space law and
science.
1. SYNTHESIS OF LAW AND SCIENCE
Law and science are the two disciplines which have similar goal; that is to discover
truth. Science is a search for truth and reality, as law is. Taken in larger global
dimensions, science attempts to discover laws of nature. International law makes an
attempt in the modern world to seek a just and scientific world order. Law cannot be
therefore different from science. While talking on laws of nature, a science noble
laureate, Eugene P. Winger says:
The regularities in the phenomenon which physical science endeavours to
uncover are called the laws of nature. The
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name is very appropriate. Just as legal laws regulate actions and behavior under
certain conditions, but do not try to regulate all actions and behavior, the laws of
physics also determine the behavior of its objects of interest only under certain well
defined conditions, but leave much freedom otherwise.2
Thus scientific laws are held good under certain conditions as are human laws.
There is a relativist approach to both law and science.
Ever since space exploration started, a new dimension has been added to the study
of international law. Law is now addressed to multiple problems of world society, and
for management of global resources and planetary life. Science also is emerging into a
new phenomenon when various scientific disciplines are interacting in the physical,
biological, chemical, engineering and other areas. A synthesis is taking place between
global science and international law. We are therefore witness to a new paradigm in
global science; as in global law. A new order of unity is shaping the world order—unity
of law and science. Indeed, Arthur Koestler in his book, “The Act of Creation”, cites
opinion of leading scientists to the effect that the process of science depends upon the
discovery of a new order of unity.3 We seem to be therefore in the midst of a new
discovery of unity of law and science.
2. ECOLOGY AND INTERNATIONAL LAW
As we see a biological revolution in the field of science, a similar revolution is seen
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in the field of international law, which is concerned with biology and man. The global
environment movement is a direct consequence of this biological revolution on the one
hand, and synthesis of law and science on the other. Indeed the present writer felt it
necessary to present an ecological approach to international law which meets the
needs of modern civilisation.4 International law including space law is much more
concerned with maintenance of ecological balance, global natural resources, forests,
agro-systems, rivers and oceans and life in them; in brief with the ecology of this
planet Earth. Indeed space law and
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space observation have brought a new vision for the ecological approach to law.
Ecology is defined as a relationship of living organisms and their adaptation to the

environment. It is indeed a definition as good for modern international law. It is a
discipline concerned with the relationship of people living in various parts of the world,
and with their peaceful adaptation to the environment which is what law is today
concerned with.
The advantages of combining science, ecology and international law are manifold.
The ecological approach to international (or national) law supports unity in diversity of
global life. The international notion of sovereignty can be better explained as diversity
of natural life in a unified world order. Grotius has in fact defined sovereignty as lawful
use of common property, not the notion of complete and exclusive competence of
nation-States. Lawful use of common property is expressed in the ecological
interpretation of modern international law. An ecological view provides synthesis of all
natural and social disciplines.5 As I have submitted, “An ecological view gives us a
unified view of what governs relationship of living organisms, and what governs their
adaptation to environment.”6 Such an approach would bring man closer to the laws of
nature, when man is considered as a part of global ecological system. Indeed, another
noble laureate, Dr. Rabindranath Tagore, had a vision of a universal man for a creative
unity of mankind.7
3. THEMATIC ORIGINS OF SCIENTIFIC THOUGHT
In our analysis, we shall deal briefly with the contemporary scientific ideas based on
the “thematic origins of scientific thought”. This theme helps integration of law and
science. The present writer has described this theme in the chapter “An International
Law for the Civilisation: Reflections on a Thematic Understanding of the Role of
International Law” in his book.8
A thematic approach in science has been suggested by Professor G. Holton,
Chairman of the department of physics and history of science, Harvard University. It
provides something like a bridge
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over ignorance. A thematic approach is not rigidly subject to verifications or

falsification.9 Yet it meets with the problems of global order and contributes to a
creative unity of life on this Earth. Professor Holton states that Einstein was also in
agreement with the thematic approach in science.10
In the thematic approach to international law, I submit that:

… we need an international law which would apply to civilization on the whole,
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which would probe the problems of civilization in totality and which would seek
solution to these problems in depth. Inter-state relations are subordinate to the
laws applicable to civilization. A thematic understanding of role of international law
is urgently required for organizing the present and future world order of 21st
century.11
A thematic approach to combining law and science is reasonable for promoting
world order. Professor Myres McDougal from Yale University Law School has done
tremendous contribution to law, science and policy approach. Some of the earliest
reflections on space law by Myres McDougal and Leon Lipson were based on the
reasonableness criterion.12
A thematic understanding of law and science therefore will bring us to understand
the laws of nature. The adherence to laws of nature, as Tagore says, is necessary for
creative growth of man and our civilisation. Tagore further says:
We expected that laws of nature should be held in abeyance for our convenience.
But now we know better. We know that law cannot be set aside, and in this
knowledge we have become strong. For this law is not something apart from us; it
is our own.13
Thus Tagore had a great vision to speak of the laws of nature in 1913. Nearly a
century later we reiterate his theme to realise laws of nature by combining law and
science. Professor R.P.
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Anand14 and Professor Upendra Baxi15 are two other scholars who support the
ecological view and the combination of law and science.
4. ESTABLISHING RIGHTS AND LIABILITIES IN SPACE FRONTIER THROUGH SPACE LAW

4.1 The first steps in space law through United Nations
Outer space breakthrough has been an expression of great creativity of mankind. It
has been a story of expanding mental horizons for the civilisation.16 Space goals make
for better life, pursuit of knowledge and advancement of science.17 The scientists also
expressed various views on space goals in the Senate Hearing at US.18 While
presenting the law of space, I refer to Aldous Huxley who says that in a broad and vast
spectrum of human activity “in practice we are generally forced to choose between an
unduly brief exposition and no exposition at all.”19 However Huxley says, “We must
learn to concentrate upon the essentials of a situation, but without ignoring too many
of reality's qualifying side issues.”20
The major concern of United Nations in early period was to maintain peace, and fill-
up the legal vacuum in outer space. By adopting resolutions, United Nations
responded admirably to legal and political challenges. The Charter of United Nations
bestows upon the world body some obligations, which include the development of
international law. A new frontier had opened in October 1957 when the first Sputnik
was sent into space from Soviet Union. On 12 December 1959, UN adopted Resolution
1472 (XIV) establishing a Committee on Peaceful Uses of Outer Space. This
Committee has fulfiled a historic role in shaping world order in space. On 20 December
1961, the United Nations passed
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Resolution 1721, setting forth the two major legal principles applicable to outer space.
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The Resolution called for furthering common interests of mankind and international
cooperation in outer space. The aforesaid legal principles were as follows: (a)
international law, including the Charter of United Nations, applies to outer space and
celestial bodies, (b) 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.
On 13 December 1963, the United Nations took another major step to formulate a
declaration of legal principles in Resolution 1962 (XVIII). These principles were: (1)
use of outer space for the benefit of all mankind, (2) freedom of exploration and use of
outer space in accordance with international law, (3) prohibition of national
appropriation of outer space and celestial bodies, (4) to carry exploration of space in
the interest of peace and security, cooperation and understanding, (5) international
responsibility of States for activities in outer space, (6) observing interests of other
States and providing for international consultations, (7) retention of ownership of
objects launched into outer space, (8) international liability of States for damage, (9)
rendering assistance to astronauts.21
4.2 Major treaties and conventions on outer space for establishing rights and liabilities
Customary law through UN resolutions provided the initial setting for law of outer
space. These resolutions also laid down rights and duties or responsibilities for States
in the exploration of outer space. Subsequently, treaties and conventions were
adopted by the Member States of the United Nations.22 The Outer Space Treaty was
signed in 1967. In the next year the Agreement on the Rescue of Astronauts was
signed. This was followed by the Convention on International Liability for Damage
Caused by Space Objects on 29 March 1972. Subsequently, the Convention on
Registration of Objects Launched into Outer Space was signed on 14 January 1975.
Finally, the Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies was signed on 5 December 1979.
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Four more declarations have been adopted by the General Assembly for which the
Committee on Peaceful Uses of Outer Space worked for quite a long time. These relate
to Direct Television Broadcasting (1982), Remote Sensing of Earth Resources (1986),
Use of Nuclear Power Sources in Space (1992) and Cooperation for the Benefit of all
States (1999).23
4.2.1 The Outer Space Treaty of 196724
The Outer Space Treaty is referred to as a Charter for Space Law and Exploration. It
gave shape to all human aspirations that brought mankind into space. The various
articles of this treaty indeed set forth the rights, liabilities and duties of States for a
just international order in outer space.
The Preamble of the Treaty refers to the common interests of all mankind, use of
outer space for the benefit of all peoples, broad international cooperation in the
scientific and legal aspects of space exploration, and also the development of mutual
understanding and friendly relations through cooperation. Indeed, cooperation seems
to have been given a stamp of grundnorm in international law and science of outer
space. This has been in much contrast to the adjacent regime of aviation, which has
developed based on principle of exclusive sovereign interest and competence of
States.
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Article I of the Outer Space Treaty sets forth the freedoms of outer space.25 The
freedom spirit is manifest in space exploration. The Treaty supports this scientific and
human quest. It states that 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
the basis of equality and in accordance with international law. It permits freedom of
scientific investigation and encourages international cooperation. In brief, this article
enables international community to move in outer space with cooperation and mutual
benefit, and to make space exploration a joint enterprise for all mankind.
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Article II provides that outer space including Moon and other celestial bodies shall
not be subject to national appropriation by claim of sovereignty or by means of use or
occupation or by any other means. This was a great step to halt rivalry in outer space.
Since the time of Antarctica Treaty of 1959, mankind had given up claims to own new
territories exclusively by States. Grotius dream of lawful use of common property was
being realised in practice in Antarctica, and now in outer space mankind has taken a
great step forward.
Article III formally extends Charter of United Nations and international law to outer
space. These provisions would be helpful especially when there is no specific space law
provision to govern any activity. It also calls upon the States to conduct space
activities in the interests of international peace and security and promote international
cooperation.
The first great step for arms control in outer space was provided in Article IV of the
Outer Space Treaty. States shall not place in orbit around the Earth any objects with
nuclear weapons. The Article calls upon the States to conduct activities on the Moon
and celestial bodies for peaceful purposes only.
Article V makes it necessary for all States to render assistance to astronauts. This
was to help in maintaining the pioneering spirit imbibed in space exploration. Later in
1968, an agreement was signed for help and rescue of astronauts in furtherance of
this provision.
A major provision relating to State responsibility is contained in Article VI of the
Outer Space Treaty. It states that parties to the Treaty shall bear international
responsibility for national activities in space. In Article VII, we have express provision
that a State which launches or procures the launching of a space object shall be
internationally liable for damage to another State property, or to its natural or juridical
persons. This is subsequently supplemented by a separate convention on liability.
Article VIII incorporates the jurisdiction and control principle. The jurisdiction is
vested in the State in whose registry the launched space object is registered. The
launching State also retains the ownership over such space objects irrespective of their
location.
Article IX calls upon States to work on the principles of cooperation and mutual
assistance, and to maintain due regard to the interests of other States. This Article has
the major focus on environment protection of space, and calls upon States to avoid
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introduction of extraterrestrial matters, harmful contamination of space, and also

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protect space from adverse changes in the environment. The Article finally seeks the
international cooperation between the States to avoid any damage to space
environment. Indeed international consultation has been made a new general principle
of international law alongside international cooperation.
Article X enables the States to observe the flight of space objects on the basis of
equality, and in accordance with mutual agreement between States. The United
Nations is kept informed about space probes in accordance with the provisions of
Article XI of the Outer Space Treaty. The State concerned shall inform the Secretary
General of the United Nations about the nature, conduct, location and the results of
space activities.
Article XII states that all stations, installation in space shall be open to inspection
by other States on a basis of reciprocity and with advance notice. The reciprocity
principle may create difficulty for visits to installations in space. A State without an
installation cannot offer any reciprocity. Nevertheless, in case of any problem on the
nature and purpose of a space station, the United Nations can under Article XI obtain
information, and if needed, conduct a visit on the installation. Article XIII extends the
Outer Space Treaty provisions to a group of States and to international inter-
governmental organisations involved in outer space exploration.
In conclusion, it is seen that the Treaty of 1967 on outer space provides for freedom
of exploration, peace, international cooperation, scientific investigation, international
consultation, liability of States, non-appropriation, mutual assistance of States, arms
control measures, and environment protection of outer space. A common vast new
frontier is available for use and exploration based on international cooperation and
individual initiative of States. The legal order is therefore in full response to the
scientific aspirations of mankind. Space Treaty is therefore a world charter for
exploration of outer space and the Moon and other celestial bodies.
4.2.2 The Agreement on Rescue of Astronauts
Within a year of the Outer Space Treaty, the Agreement on Rescue of Astronauts
was signed.26 It calls for rendering of all possible
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assistance to astronauts in the event of distress, accident or emergency and prompt

return of astronauts and space objects to the launching State. The State receiving
information shall inform the launching State of the incident or accident, take care of
astronauts, render assistance in search and rescue work to launching State. The
expenses for such work shall be borne by the launching State.27
4.2.3 The Convention on International Liability for Damage Caused by Space Objects28
The third most important convention is Liability Convention, which ensures that for
space activities States are liable for damage caused in space or on Earth by space
objects.29 Article I defines damage. Article II provides for absolute liability on surface
of Earth or for damage caused to aircraft in flight. Article III refers to damage caused
by a launching State to a space object of another State due to fault of the launching
State. Article IV provides for damage caused to a third State by two independently
launching States, which would be jointly liable. Article V has provision for joint and
several liability for a joint launch by two or more States. Exoneration from liability is
possible under Article VI, provided launch has been carried in accordance with
international law, the Charter of UN and Outer Space Treaty, 1967. In order to avail
the exoneration from liability, the launching State must establish that there was no act
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of omission or negligence on its part and the damage was caused due to the
negligence or omission of the claimant State. Article VIII contains provisions for
presentation of claims for compensation through diplomatic channels. The Convention
provides for a Claims Commission to settle any dispute for settlement of claims.
The Liability Convention thus establishes a just mode of compensation in the event
of damage caused. There is no requirement for exhaustion of local remedies, as the
claims are to be sent to the launching State through diplomatic channels. The Claims
Commission ensures that damage is paid for.
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4.2.4 The Moon Agreement30

Here we recall another landmark in legal regulation of the Moon. The Treaty of 1979
for the Moon establishes some important space law principles and develops some
already existing principles. This Agreement helps in the scientific exploration of the
Moon for peaceful purposes. It provides rights to remove samples for scientific
investigation.31 It introduces a significant principle that the Moon and other celestial
bodies and their natural resources are regarded as common heritage of mankind. In
Article XI, we have the provision to develop an international regime for exploitation.
Such a regime would provide in time to come, a means to a common effort by
mankind in use and exploitation of Moon and other celestial bodies. The former
American President, George Bush, has said that USA may land a man on Mars by the
second decade of 21st century. Mars landing will bear a stamp of all mankind and
would further the necessary international cooperation.
The Moon Agreement provides for the protection of the environments of the Moon
and other celestial bodies. It also tries to change the liability regime by asking the
States to have international arrangements for liability on Moon and other celestial
bodies. It also contemplates that the Moon and other celestial bodies shall be used
only for peaceful purposes and thereby prohibits their militarisation and
weaponisation. The Moon Agreement is a major contribution towards a peaceful and
just international order in space.
5. INTERNATIONAL LAW AND JUST WORLD ORDER IN SPACE
Credit for the creation of a just and legal world order in space goes to imaginative
scientists and jurists. The scientists presented their picture of space exploration. They
helped the global community to realise the benefits of scientific exploration. The
jurists provided the earliest thinking on space law. The American Society of
International Law discussed this subject in 1956 Proceedings. The erstwhile Soviet
Union held symposium on space law in 1959. The International Law Association also
discussed emerging problems of space law in 1956. The Indian Society of
International Law in India had been considering the legal problems of outer space. It
held a session on space law in its annual conference in January 1969. All these
institutions have not only made good
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beginning in the 1950's and 60's, but also continued their efforts towards a just world
order in space in the last half a century.
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Some of the jurists who helped to shape public order of space are Myres McDougal,
Ivan Vlassic, Carl Christol, H.J. Taubenfeld, Manfred Lachs, N. Jasentuliyana, Stephen
Gorove, etc. Dr. K. Krishna Rao and Late Mr Krishna Menon are the two main Indian
thinkers who contributed in the development of space law.
The jurists have continued to seek the creative elements in space law. The
International Astronautical Congress, which is held every year, has been a major
forum for the jurists to put forward their creative ideas, and thus leading to
progressive development of space law. These annual congresses cover a very wide
range of subjects, which include space systems, space stations, Earth observation,
space transportations, space power, space militarisation, safety and rescue, space
research, space insurance, settlements in space, space environment and many other
related areas. These discussions on the wide range of subjects are the clear indicators
of the tremendous impact of space exploration on the world society.
6. SOME CONCLUSIONS
I agree with Aldous Huxley that we are living in a brave new world of 21st century.
Space age and space exploration have had an impact on all aspects of global society.
We are now moving from nation-States concept to space-States. We share a common
vast frontier of space. This frontier has removed traditional rivalries based on State
sovereignty. Thus, space has united mankind. It has promoted a creative world order
with unity in diversity of international life.
Another conclusion one can make here is that there is a combination of law and
science in global affairs. This is something novel. Now it is a well-known fact that law
and science cannot develop in isolation, especially in the field of outer space. Further,
in space research we are face to face with a new environment. The problem of
maintaining environment balance, also known as ecological balance, is the
predominant concern of mankind. Indeed, the quest to know more about global and
cosmic environment is by itself a new paradigm.32 This revolution has synthesised
physical, biological and chemical sciences. It has also synthesised all
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forms of law, and all components of international law. The call for a “common law of
mankind”, given by eminent jurists like Wilfred Jenks, Myres McDougal, R.P. Anand,
Upendra Baxi and others, is now easily pursued with a clear vision. An ecological living
is the need of all mankind. Indeed, as stated in my submission, an ecological view of
international law meets with most of the requirements of modern civilisation.
Space law has brought forth a vision for harmony in universe and unity of
knowledge. To quote Rabindranath Tagore, “Through our sense of truth we realise law
in creation, and through our sense of beauty we realise harmony in the universe.”33
Therefore, we look to space law and science with a vision of beauty and harmony for
the universe.
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———
1
Former Advisor, United Nations (ICAO); Professor of International Space Law, School of International Studies,
Jawaharlal Nehru University, New Delhi; Member, International Institute of Space Law, Paris.
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2“Events, Laws of Nature, and Invariance Principles”, Noble Lecture in Physics 1963-1970 (Nobel Foundation,
Amsterdam 1972) at p. 2.
3 Arthur Koestler, The Act of Creation (London 1964) at p. 230.
4See, S. Bhatt, “Ecology and International Law”, Indian Journal of International Law, Vol. 22, 1982 at pp. 422—
38; Also see, S. Bhatt, “An Ecological Approach to Aerospace Law”, Annals of Air and Space Law, Vol. 4, 1979 at
pp. 385—96.
5 See, S. Bhatt, Environment Protection and International Law (Radiant Publishers, New Delhi 1985) at p. 13.
Also see, “Ecology and International Law” in S. Bhatt, Environment Protection and International Law, at pp. 7—
30.
6 Ibid.
7 Ibid, at p. 15.
8 Ibid, at Ch. 5.
9 See, G. Holton, The Thematic Origins of Scientific Thought: Kepler to Einstein (Mass 1972).
10 Ibid, at p. 57.
11 See, S. Bhatt, Environment Protection and International Law (Radiant Publishers, New Delhi 1985) at p. 62.
12 See, S. Bhatt, “Reasonableness as a Doctrine of Space Law”, in Studies in Aerospace Law: From Competition
to Cooperation (Sterling Publishers, New Delhi 1974) at Ch. 5.
13 See, Rabindranath Tagore, Sadhna (Delhi 1979) at p. 50.

14 According to Professor Anand, “Man must learn to live with nature rather than to conquer it”. See,
“Proceedings of the National Seminar, 1-3 March 1985” in R.P. Anand, R. Khan and S. Bhatt (Eds.), Law, Science
and Environment (Lancers Publication, New Delhi 1985) at p. 265.
15 See, Upendra Baxi, “Emerging Legal Issues in the Agroecosystems”, Ibid, at pp. 155—75.
16
See, Arthur C. Clark, Vision from the Sky (New York 1965) at p. 4.
17 See, Charles S. Sheldon in Arthur C. Clark (Ed.), The Coming of Space Age (London 1967) at p. 71.
18 See, “Scientists Testimony of Space Goals”, US Senate Hearings, 88 Congress, 1st session, 10-11 June 1963.
19 See, Aldous Huxley, Brave New World Revisited (New York 1958) at p. 7.
20
Ibid.
21
See, S. Bhatt, Legal Controls of Outer Space (S. Chand & Co., Delhi 1973) at pp. 58—59.
22For reference to various conventions and treaties on outer space, see, Carl Q. Christol, The Modern Law of
Outer Space (New York 1982). Also see, U.N. Treaties and Principles on Outer Space, UNISPACE III, Vienna
1999.
23 Ibid.
24See, S. Bhatt, Legal Controls of Outer Space (S. Chand & Co., Delhi 1973). This book provides a commentary
on the principles contained in the Outer Space Treaty. Text of the Treaty is available at pp. 313—20. Also see,
S. Bhatt, “Space Law in 1990's”, International Studies, Vol. 26, No. 4, 1989 at pp. 323—34. S. Bhatt,
“Reflections on Space Law After 32 Years of Space Exploration and Trends for 21st century”, Journal of Indian
Law Institute, Vol. 31, 1989 at pp. 449—55.
25See, S. Bhatt, “The United Nations Space Treaty and the Freedoms of Outer Space”, Indian Political Science
Review, Vol. 2, 1968 at pp. 132—54.
26 It was signed on 22-4-1968.
27 See, P. Abdurrasyid, “Agreement on Rescue of Astronauts” in N. Jaesntuliyana (Ed.), Maintaining Outer Space
for Peaceful Purposes (The United Nations University, Tokyo 1984) at p. 99.
28 Signed on 29-11-1971.
29 See, R.F. Stoowe, “The 1972 Convention on International Liability for Damage Caused by Space Objects”,
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Maintaining Outer Space for Peaceful Purposes (The United Nations University, Tokyo 1984) at p. 104. See also,
E.R.C. van Boyaert, Aspects of Space Law (London 1985) at pp. 159—77.
30 Signed on 5-12-1979.
31 Article 6.
32See, S. Bhatt, “Need for a Creative Environment Policy for India”, Environmental Awareness, Vol. 5, No. 2-4,
April-December 1982 at pp. 69—72.
33 See, Rabindranath Tagore, Sadhna (Delhi 1979) at p. 120.
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SCC Online Web Edition, Copyright © 2020

Page 1 Sunday, May 03, 2020

Space Law: In the Era of Commercialisation

1. Law and Space Research

Ecology is defined as a relationship of living organisms and their adaptation to the

over ignorance. A thematic approach is not rigidly subject to verifications or

In the thematic approach to international law, I submit that:

4. ESTABLISHING RIGHTS AND LIABILITIES IN SPACE FRONTIER THROUGH SPACE LAW

introduction of extraterrestrial matters, harmful contamination of space, and also

assistance to astronauts in the event of distress, accident or emergency and prompt

4.2.4 The Moon Agreement30

13 See, Rabindranath Tagore, Sadhna (Delhi 1979) at p. 50.

© EBC Publishing Pvt.Ltd., Lucknow.

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