DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
LUCKNOW

2017

PUBLIC INTERNATIONAL LAW

FINAL DRAFT ON
OUTER SPACE TREATY (1967)

Submitted by – Submitted to –

Vinay Sheel Mr. Manwendra Tiwari

B.A.LLB (Hon) Semester III Asst. Professor (Law)

Roll no. 166

Table of Contents

Acknowledgment.......................................................................................................................3
Introduction................................................................................................................................4
Common heritage principle of outer space................................................................................5
Property rights in outer space.....................................................................................................6
Jurisdiction in outer space..........................................................................................................8
Problems in judicial jurisdiction in space-.................................................................................8
Commercialization in outer space..............................................................................................9
Will commercial companies be allowed in space ?.................................................................11
Recent developments...............................................................................................................12
Conclusion................................................................................................................................14

ACKNOWLEDGMENT
I am feeling highly elated to work on the topic “Outer Space Treaty” under the
guidance of Dr. Manwendra Kumar Tiwari. I am very grateful to him for his exemplary
guidance. I would like to enlighten my readers regarding this topic and I hope I have
tried my best to pave the way for bringing more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this project was
not possible. Apart from all these, I want to give special thanks to the librarian of
my university who made every relevant materials regarding to my topic available to
me at the time of my busy research work and gave me assistance. And at last I am
very much obliged to the God who provided me the potential for the rigorous
research work.

At finally yet importantly I would like to thank my parents for the financial support.

INTRODUCTION
The Outer Space Treaty was considered by the Legal Subcommittee in 1966 and agreement
was reached in the General Assembly in the same year (resolution 2222 (XXI)). The Treaty
was largely based on the Declaration of Legal Principles Governing the Activities of States in
the Exploration and Use of Outer Space, which had been adopted by the General Assembly in
its resolution 1962 (XVIII) in 1963, but added a few new provisions. The Treaty was opened
for signature by the three depository Governments (the Russian Federation, the United
Kingdom and the United States of America) in January 1967, and it entered into force in
October 1967. The Outer Space Treaty provides the basic framework on international space
law, including the following principles1:

 the exploration and use of outer space shall be carried out for the benefit and in the
interests of all countries and shall be the province of all mankind;
 outer space shall be free for exploration and use by all States;
 outer space is not subject to national appropriation by claim of sovereignty, by means
of use or occupation, or by any other means;
 States shall not place nuclear weapons or other weapons of mass destruction in orbit
or on celestial bodies or station them in outer space in any other manner;
 the Moon and other celestial bodies shall be used exclusively for peaceful purposes;
 astronauts shall be regarded as the envoys of mankind;
 States shall be responsible for national space activities whether carried out by
governmental or non-governmental entities;
 States shall be liable for damage caused by their space objects; and
 States shall avoid harmful contamination of space and celestial bodies.

The Outer Space Treaty represents the basic legal framework of international space law.
Among its principles, it bars states party to the treaty from placing weapons of mass
destruction in orbit of Earth, installing them on the Moon or any other celestial body, or
otherwise stationing them in outer space. It exclusively limits the use of the Moon and other
celestial bodies to peaceful purposes and expressly prohibits their use for testing weapons of
any kind, conducting military manoeuvres, or establishing military bases, installations, and
fortifications (Article IV). However, the Treaty does not prohibit the placement
of conventional weapons in orbit and thus some highly destructive attack strategies such
as kinetic bombardment are still potentially allowable. The treaty also states that the
exploration of outer space shall be done to benefit all countries and that space shall be free
for exploration and use by all the States.

The treaty explicitly forbids any government from claiming a celestial resource such as the
Moon or a planet2.Article II of the Treaty states that "outer space, including the Moon and
1
http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html
2
Jennifer Frakes, (2003) The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and
Antarctica: Will Developed and Developing Nations Reach a Compromise? Wiscoscin International Law
other celestial bodies, is not subject to national appropriation by claim of sovereignty, by
means of use or occupation, or by any other means". However, the State that launches a space
object retains jurisdiction and control over that object. The State is also liable for damages
caused by their space object.3

COMMON HERITAGE PRINCIPLE OF OUTER SPACE

The success of the space programs of the United States and the Soviet Union has
demonstrated the feasibility of space use and has spurred the development of economically
practical space activity.4 While space activity has increased, the world community has had
increasing difficulty agreeing on specific rules of conduct to govern space use.3 Existing
space law is based on broad theoretical principles contained in the first international
agreement governing space use sponsored by the United Nations.4 These broad principles
were sufficient to guide space use during the formative years of the space age, but as space
activity has flourished, space law has lagged behind Specifically, states attempting to
formulate rules to govern specific space activities have not agreed on the meaning of space
law principles.
One of the earliest declarations concerning the legal status of outer space was that all states
are free to explore and use space.5 This broad declaration, however, has not proved workable
for space activities functionally related to earth. For example, while all states may operate
satellites, the world community has not accepted unrestricted satellite use for remote sensing
of the earth surfaces or direct broadcasting of television programs. Another early declaration
of space law was that the exploration and use of outer space is the province of mankind.6
This idea is repeated and expanded in the proposed Agreement Governing the Activities of
States on the Moon and Other Celestial Bodies7, (the Moon Treaty), which states that the
moon and other space resources are the common heritage of mankind. From each of these
declarations flows the proposition that benefits from space shall accrue to all mankind. The
principle of common heritage, however, has not received worldwide acceptance, This

Journal, 21, at 409

3
Current Developments in Air and Space Law, NLU Delhi Press(2012)- Dr. Ranbir Singh, , Dr. Srikrishna Deva
Rao, Dr. Sanat Kaul
4
Ambassador Peter Jankowitsch, chairman of the United Nations Committee on the Peaceful Uses of Outer
Space,
5
G.A. Res. 1721, 16 U.N. GAOR Supp. (No. 17), U.N. Doc. AJ5100 (1961).
6
Outer Space Treaty, supra note 4, art. I.
7
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 34 U.N. GAOR Supp.
(No. 20) 33, U.N. Doc. AI~1420 (1979) (opened for signature Dec. 18, 1979).
Comment focuses on the difficulties the world community has had in interpreting and
applying space law principles.8
In particular, the author discusses the problems arising from states' differing
interpretations of the principle of freedom of outer space and the principle of common
heritage. The author explores the viability of these principles in the context of current
political and economic world realities and suggests that the principles may yet become
functional rules of international law.

PROPERTY RIGHTS IN OUTER SPACE

The international environment for space activity has undergone a sea change in the past two
decades and so. Originally started from reconnaissance during the Cold War period, space
activities have now percolated to just about every other welfare activity. Needless to say, the
processes of commercialization and privatization have followed and altered the very course
of such activities.

Corpus Juris Spatialis has always regarded the outer space cannot be appropriated by any
state for its own purpose, the research and exploration must be carried out for the benefit of
mankind and not for any selfish needs of the State. The two treaties on outer space also state
that “outer space is the province of all mankind” and that it shall be “developed for the
benefit of all mankind”. The Moon Treaty Of 1979 states that the Moon is the common
heritage of all mankind, which suggests that the treaty read in its literal sense negates the
establishment of private property rights on the Moon and the Space.9

Another very strong argument in favour of the private property rights regime in the
environmental concern that of preserving the earth by looking at the alternative reserve of
resources.

Though the Outer Space treaty prohibits the appropriation of celestial bodies, it does not
allow space faring nations to have a degree of certainty with respect to ownership of objects
launched into space and material harvested from space. However, the moon treaty has
introduced unacceptable ambiguities to space property rights framework. The legal
environment concerning lunar mining, though, is presently unstable because the two major
aspects, namely, the retention of profits and the prevention of technology transfer, remain
unsolved. This instability has undoubtedly hindered investment in lunar minerals. Currently,
8
Ibid,6
9
Agreement Governing Activities of the State on the Moon and other bodies, Nov. 12, 1979, 18 I.L.M.
1434(came in force on July 11,1984)
the agreement governing the activities of states on the moon other celestial bodies controls
exploitation of lunar minerals. This treaty declares the mineral resources of the moon the
common heritage of mankind. The ambiguity and ramifications of the phrase have left space
law one of the most unstable areas of international law. As more nations and commercial
enterprises prepare to embark on space ventures, the need of certainty in international space
property rights law become increasingly critical.10

Although, there is a legal framework for the property rights of outer space but there is a need
for clarity in the basic structure. The problem is how to maintain the interest and investment
of the individuals and states on the earth that do possess the power and resources to explore
space without being able to guarantee them a stable environment in which to establish
settlements on the moon or other celestial body. Ownership and sovereignty accomplish
similar purposes in the modern world. They both provide a sense of security, which lies in the
knowledge that the land under the home, factory, or school that is built will not be yanked out
from under the establishment in favour of someone else’s idea of what should be done with
the areas involved. Thus, the future of space exploration and settlements depends upon
forming provisions to be added to the corpus juris spatialis that will provide a measure of
security to the investors and settlers who embark on journeys of exploration beyond current
earth borders.11

Another difficulty in considering ethical standards for commercialisation of space is deciding

whose ethical standards we accept? Even with the complications to the issues of ethically
commercialising the outer space, it is likely a given that as a people more than as any
particular nation, we are going into outer space in the coming years in ways quite different
from our previous history.

In order to manage these problems, it is proposed that a global organisation be set up to

regulate and administer properties found beyond the earth’s atmosphere. The organisation
will have the duty holding all the lands found in outer space as representative of the people
on earth, since all people on earth “own” everything in the outer space found within our solar
system is undivided, un-transferrable shares. The organisation shall consider the lease, and
extend exclusive use rights in accordance with principles set out by it. Regarding the
exploitation of resources, a more defined scheme is also enacted. When production begins,
investor shall be allowed to recover all costs incurred in the establishments of the extraction
process.12
10
http://www.curator.jsc.nasa.gov/curator/lunar/lnews/lnju194/hist25.htm
11
Kurt Anderson Baca, Property Rights in Outer Space, 58 J. AIR L.&COM. 1041 (1993)
12
Nandisiri Jasentuliyana, Article 1 of the Outer Space Treaty Revisited, 17 J. Space L. 129,141 (1989)
A more defined base from which to plan, outer space will become a much more viable
alternative for exploration and development. The above proposed alternatives attempt to
assure incentive and reward for those who make the initial investment in outer space, while
maintaining the underlying theory of Space Law13.

JURISDICTION IN OUTER SPACE

At the beginning of Space Age in 1957, discussions began in the State community, within the
UN, precisely on the legal status of the new issue. Several legal concepts of traditional public
international law could be applied to a newly discovered area. At final, the approach, which
was chosen by the State community, was quite different from but comparable with the regime
established from the high sea, where no State sovereignty is accepted. An outer Space was
declared as res communis which is not subjected to the sovereignty of the State, and where
states are bound to refrain themselves from any act that can adversely affect the use of an
outer space by other states. The Outer Space Treaty was a landmark in an establishment and a
progressive development on the rules of international space law. The principles of
international space law constitute the most general rules of behaviour for states in their space
activities.14

The 1967 Treaty specifically states that the appropriation of property is not permitted
by sovereign nations and the moon Treaty declares moon and celestial bodies to be common
heritage of all mankind. It is a common notion that the concept of private property is non-
existent in view of the essential in space activities. It is advocated that for maximum
utilization of the resources in space, which may include both commercial and non-
commercial activities, private participation is essential.15

Problems in judicial jurisdiction in Space-

In the midst of the space race that began in the 1950s, jurists began defining what legal rules
could apply in outer space. The United Nations formed Nations Committee on the peaceful
uses of Outer Space (UNCOPUOS) which drafted the so called Outer Space Treaty. The
treaty set out rules that governed the interactions between the States in Outer space. These
Treaties as a whole, though, tend to ignore the gamut of possible interactions between the
individuals in space. Because there are no laid rules in the treaty on Outer Space governing

13
Current Developments in Air and Space Law, NLU Delhi Press(2012)- Dr. Ranbir Singh, , Dr. Srikrishna
Deva Rao, Dr. Sanat Kaul
14
www.affs.org/html/existing_space_law_concepts.html
15
www.papers.ssrn.com/soll3/papers.cfm?abstract_id=1439883
the State so the party state did agree that space would be the province of all mankind, creating
an extra-jurisdictional territory. In recent times the climate of space exploration has changed
dramatically. Private sector has become more instrumental in the exploration of space. This
means that there will soon be new types of relationships occurring between individuals in the
space who are not necessarily representatives of state entity and the treaty regimes have not
anticipated.16

The space visa will seek to trace space sports as border regions, much as airports are treated
today. Through the auspices of the space visa, a state will grant permission to leave the
territory and enter space. In exchange for the permission, space traveller will subjugate
himself to the personal jurisdiction and laws of the state. The result will be a regime in which
every individual in space will be subject to at least one state’s jurisdiction at all times, and
that states will be better equipped to fulfil their duty to supervise the non-governmental
entities of the space.17

COMMERCIALIZATION IN OUTER SPACE

“There are some who question the relevance of space activities in a developing nation. To
us, there is no ambiguity of purpose. We must be second to none in the application of
advanced technologies to the real problems of man and society.”

The vision of Sarabhai was the vision of the country when we started the space research and
technological developments in space in India, today we haveno doubts or questions as such in
mind which can be raised on the relevance of space activities rather man is preceding towards
commercialization of space and space technology.18

Inaugurating a two-day national seminar on “Access to Justice”, organised by the Supreme

Court Advocates on Record Association in association with the United Nations Development
Programme, Dr. Kalam said that we have laws of the sea, air and environment and
intellectual property and cyber laws would get a new shape. However, he emphasised that
there is a need of law for protection of Indian space above 30 km altitude as the international
law on space may not be sufficient. The geo-synchronous orbit has become a competitive
business orbit (above 38,000 km.). When we look at the Space Vision 2025 statement given
16
Vikram Raghvan, Space Law in India, Lexis Nexis, Butterwoths, Wadhwa Nagpur Publication,2002
17
Ibid, 8.
18
India’s Space Odyssey March, 2002 issue, Friday, March 1, 2002,
http://www.siliconindia.com/magazine_articles/Indias_Space_Odyssey- YLS619821548.html.
by Prime Minister Manmohan Singh, he said “it should reflect how the country could more
effectively harness space technology for development. Exploring new frontiers of space
technology aimed at low-cost access to space, development of heavy lift boosters to launch
heavier satellites, realising high power and high bandwidth communication satellites and
remote sensing satellites with all weather capacity are some of the challenges.” 19 As an idea
or a concept it sounds fascinating ‘commercialization of space and space activities’ though it
has many positive aspects attributed to it, this can also lead to technological disasters with
Uncertain legal implications as laws and regulations in space are next to none. Unclear
without precedents and being a part of international law these laws boil down to moral
obligations. Man has explored space in a very short span of time. But, when it comes to
space, it is an area of law where law still lags behind. Space being a common heritage of the
mankind needs more cooperation and understanding between developed, developing and least
developed nations. However the space vogue has not been very old but problems are
apparent, and this can also not be refuted that few problems are yet to come up. As developed
nations started exploration early, they have an upper hand and an equally bigger contribution
to these problems. Problems vary from space debris to rapidly filling orbits, but a major
threat is of lack of responsibility of attributing liability to those who are responsible for these
threats which result in loss of life, limb and property20.
Issues related to launch services, satellite navigational services and intellectual property
rights, transfer of technology and national security are apparent as concerns today. This
research article highlights the vacuum in legal regime when it comes to space
commercialization, and commercialization of services provided for space exploration. This
article also highlights the issues and problems of implementation of the space treaties
between nations and against corporate entities. Towards the end of this article it is
emphasized that with the help of an appropriate national regime and multilateral treaties,
India can help the whole world in the development of space law which would also result in
encouraging the balanced and sustainable development to tap the potential of space
commerce and industry in India.

Will Commercial Companies be allowed in Space ?

19
India Opens World’s First Space Tech Institute, August 26, 2009,
http://www.zeenews.com/news558321.html.
20
Current Developments in Air and Space Law, NLU Delhi Press(2012)- Dr. Ranbir Singh, , Dr. Srikrishna
Deva Rao, Dr. Sanat Kaul
Many of the ideas in the Outer Space Treaty were adopted from either earlier treaties on
newly accessed environments (e.g., the Antarctic Treaty of 1959) or treaties concerning new
technologies (e.g., the 1963 Nuclear Test Ban Treaty). An earlier product of COPUOS,
United Nations General Assembly (UNGA) Resolution 1962 “Declaration of Legal Principles
Governing the Activities of States in the Exploration and Use of Outer Space” from
December 1963, also contains provisions that later became articles of the Outer Space Treaty.
Among these are the foundational principles of space law including the freedom of access to
space, the non-appropriation of space and celestial bodies, the applicability of international
law to space, and the direct international responsibility of states for their national activities.
This principle, contained in Article VI of the Treaty, reflects a major compromise between
the USSR -and the US, and a unique innovation in international law.
The American approach to space exploration envisioned that private commercial entities
would play a crucial role in partnerships with governmental programs. As such, the American
position was to allow for private entities to engage in space activities. However, the Soviet
approach to international law stressed that states are the final and ultimate responsible entity,
and therefore states should be the only actors in outer space (an international zone outside of
state territory.) A Soviet draft even required “All activities of any kind pertaining to the
exploration and use of outer space shall be carried out solely and exclusively by States.”21

The negotiators were able to come to an ingenious compromise. The end result was that
private enterprise was permitted in space, but the appropriate authorizing state is directly
internationally responsible for this commercial (or otherwise non-governmental) activity.
States have the affirmative obligation for “authorization and continuing supervision” of non-
governmental entities in space and for ensuring their conformity with international law.
Article VI of the treaty now reads:

“States Parties to the Treaty shall bear international responsibility for national activities in
outer space…whether such activities are carried on by governmental agencies or by non-
governmental entities, and for assuring that national activities are carried out in conformity
with the provisions set forth in the present Treaty. The activities of non-governmental entities
in outer space, including the Moon and other celestial bodies, shall require authorization
and continuing supervisions by the appropriate State Party to the Treaty.”

21
The US Draft, dated June 16, 1966, is UN Doc. A/Ac.105/32. The Soviet Draft UN, Doc. 32, dated also June
16,1966.
This clever compromise allowed the Soviets to reaffirm the primacy of the role of states in
outer space, while simultaneously allowing the Americans to develop a private commercial
space sector22.

RECENT DEVELOPMENTS
In recent years, the COPUOS and its Legal Subcommittee have considered some specific
problems relating to the interpretation and application of the Outer Space Treaty and of the
Liability and Registration Conventions. These efforts led to the drafting of two special
General Assembly resolutions, one deal with the Application of the concept of the “launching
State”, the other with recommendations on enhancing the practice of States and international
intergovernmental organizations in registering space objects. The General Assembly adopted
them by consensus on 10 December 2004 (resolution 59/115) and on 17 December 2007
(resolution 62/101), respectively.23

In the most recent period, the attention of the Legal Subcommittee has concentrated on the
role of national legislation of individual States in ensuring the legality of space activities.
This is the way in which the whole present system of space law has been growing. It
comprises principles and rules of international space law established by the United Nations,
the 1967 Outer Space Treaty being its basic source; principles and rules promulgated by other
international organizations in accordance with their functions in the field of space activities;
and multilateral and bilateral agreements on cooperation in space activities concluded by
international persons. National laws regulating the problems of space activities within the
domestic competences of individual States also belong to this wide system of the
contemporary space law.

The 1967 Outer Space Treaty initiated and provided the fundamental regulation of a new
kind of human activity having a great importance for the maintenance of peace and the
development of cooperation among all nations. It is almost incredible that such an instrument
could be accomplished in a relatively short interval of détente, but still during the continuing
cold war. Under the then existing world conditions, the principles of the Outer Space Treaty
probably achieved the maximum that was possible to attain. Peaceful activities of space
exploration and international cooperation, carried out under the scope of the Outer Space
Treaty and other United Nations space instruments, had a moderating effect on the arms race

22
Current developments in Air and Space law- NLU Delhi Press, 2012.
23
M. Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making, Leiden, Sijthoff, 1972
in outer space, which could have led humankind to the brink of war and complete destruction
of civilization.24

As a legal tool, the Outer Space Treaty, although receiving critical comments from some
legal experts, has been respected in the practice of States and international organizations
perhaps more than some other international law-making instruments. The application of the
principles of the Outer Space Treaty have not raised significant international problems that
would have required resolution at international conferences or by international judicial
instances.

Although the number of States parties to the Outer Space Treaty has now been increasing
rather slowly, notwithstanding the efforts exercised by the United Nations in this regard, the
fact that its status has reached almost one hundred States parties, as well as twenty-five
additional signatories, demonstrates that the Outer Space Treaty belongs to a category of
international instruments that have been endorsed by a great majority of the international
community. Without doubt, the Outer Space Treaty has been one of the most significant
achievements in the progressive development of international law attained so far in the
framework of the United Nations.25

CONCLUSION

Despite its importance, we must recognise that the Outer Space Treaty does have some
specific failings in the modern era – mainly since it is focused on countries only. Many
private companies, such as lunar land, have exploited this and have offered to sell plots of
land on celestial bodies such as the moon. Agents doing this justify their activity because the
treaty says that territory is not subject to national appropriation – and therefore, this
technically means that private companies or individuals could however make claims to
celestial territory, since they are not countries.

24
Ibid, 19.
25
http://legal.un.org/avl/ha/tos/tos.html
In an attempt to tackle some of the modern-day shortfalls of the treaty, the US government
passed the Space Act of 2015, which says that US citizens may engage in the commercial
exploration and exploitation of space resources. Although this seems to undermine the space
treaty’s ban on anyone owning celestial territory, the Space Act has a clause stating, in simple
terms, that the US does not lay claim to, or own, any such thing. This conflict, that indicated
that the US “may” be able to claim celestial territory, while not violating the treaty, remains
an issue of key debate.

Despite these obvious legal loopholes and challenges, the treaty has long formed the basis for
an international law with regards to outer space and it remains as the important backbone of
outer-space governance. The intention that it embodied when it was first written, to create
law in space, remains important – and whether any changes will be made in the future to
reflect changing political and commercial circumstances is yet to be seen.26

BIBLIOGRAPHY

 Current Developments in Air and Space Law, NLU Delhi Press(2012)- Dr. Ranbir
Singh, , Dr. Srikrishna Deva Rao, Dr. Sanat Kaul
 Law Of Outer Space in India- Vikram Waghawan, Lexis Nexis Butteworths Nagpur
Publications(2002)

http://theconversation.com/the-outer-space-treaty-has-been-remarkably-successful-but-is-it-fit-for-the-modern-
26

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