Question 1

Concept of Sovereignty in Outer Space

When the governmental, executive, or judicial functions of a foreign state or foreign law
(except Public International Law), is not subject to interference in another state as per its
international legal status, is regarded as ‘Sovereignty’. In other words, it is the principle that
vests exclusive control of authority over territory in the State itself. The application of
sovereignty is a universally applied concept to ensure state control within the boundaries of
the state. Furthermore, Article 2(2) of the UN Charter clarified the position of the state as a
sovereign, being politically independent.

With regard to Outer Space, to ensure that no state asserts its sovereignty, the United Nations
in 1957 clarified that outer space can only be used for peaceful purposes. There has been a
disoriented approach towards the concept of sovereignty traditionally. The Chicago
Convention provided that every state has exclusive sovereignty over the airspace above its
territory. But the Outer Space Treaty, 1967 clarified the position. The outer space treaty or
the Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies, was entered in 1967 to provide
for basic framework on International Space Law. It ended the debate over the issue of
sovereignty in the outer space.

Sovereignty as concept in outer space can be understood on three grounds. Firstly, national
appropriation is not applicable when it comes to moon and other celestial bodies. This is
because of the principle of res communis i.e., outer space is the common heritage of mankind
(Article II). Secondly, there exists free access to all areas of celestial bodies, thus giving the
freedom of exploration without any discrimination (Article I). And thirdly, the exploration of
outer space must be carried out keeping in mind the interests of all the other states i.e.,
province of all mankind.

Article III of the Treaty categorically states that all activities in the outer space would be in
accordance with the International Law and municipal law shall have no role to play. This is to
ensure that no State uses any form mass destruction or nuclear weapon that could prove as a
potential threat to any state. The position taken under the United Nations Charter was further
strengthened under Article IV of the treaty that limits the use of outer space for peaceful
purpose only.
In conclusion, till date there is no clear-cut demarcation as to where airspace ends, and outer
space begins due to disputes between the international community in fixing the boundary.
There has been concurrence on one point though, that outer space is common heritage of
mankind and no one can claim sovereignty over the same. However, it has been argued by
legal scholars like Naveau, who states that the concept of sovereignty in outer space has
become archaic and inadequate and needs to be redefined on an urgent basis.

Problem of Space Debris

Going by the dictionary definition, debris means the remains of something broken or
destroyed. However, in context of space, it would mean as space waste, orbital debris, space
trash/litter or space garbage or the debris from artificially created objects in space (old
satellites). European Space Agency clarified that space debris includes all non-functional,
man-made objects which includes fragments and elements thereof in Earth’s orbit.

The primary cause of numerous fragments in the space is the result of in-orbit explosions
because of the residual fuel in the tanks of satellite and collisions between satellites. Initially
Space debris was considered as nuisance, however, now it has become a potential threat as
initially states used to launch objects in the outer space without any concern for the
environmental damage it would lead to. Presently, it has become a necessity to ensure that
space is kept safe and clean for future use.

Satellites launched into outer space by the states can cause serious damage on the earth. One
notable example for the same is the Cosmos 954 crash in Canada in 1978. In the instant case,
a military satellite, Cosmos 954, launched by the Union of Soviet Socialist Republic (USSR)
disintegrated in the Canadian Territory. The fragments included hazardous radioactive debris
from the satellite dispersed over a large area of northwest Canadian territory which
constituted as violation of its sovereignty. Even though no harm was caused to people and
property, Canada, under Article X of the Convention on International Liability for Damage
caused by Space Objects (Liability Convention) claimed compensation for 6 million dollars.
It was primarily on the ground of costs incurred for clean up and search of fragments, some
of which were lethal radioactivity as per the Canadian Governments Nuclear Research
Establishment. Canada contended that under Article II of the Liability convention, the lethal
fragments rendered the hit territories unfit for use, which amounted to damage to property
and in such a case liability is absolute.
The problem related to Space Debris demands for mitigation, however, the current space
debris mitigation guidelines are non-binding in nature and can only become binding by
incorporating it in National Law or if it becomes a customary International Law by sufficient
state practice and opinion juris.

Furthermore, uncontrollable debris can collide with satellites in the space as was seen in
American ‘Iridium 33’ and Russian ‘Cosmos 2251’ case in 2009. The collision was
unprecedented in the amount of space debris it led to (approximately 2,300 pieces of varying
sizes). An analysis conducted by NASA states that more than 50% of Iridium debris would
remain in the orbits for over 100 years and as for cosmos it would be for a minimum of 20
years. Though there is no such provision in Outer Space law concerning the mitigation of
space debris as stated above, but Article IX of the Outer Space treaty categorically mentions
that states must take full measures to avoid harmful contamination of celestial bodies and
cause adverse changes to the Earth and further provides a duty of consultation.

A similar example can be taken from India as well where India tested an Anti-Satellite
Missile in March 2020 against one its own test satellite which further resulted in creation of
large amounts of space debris. Furthermore, the objective of Anti-satellite is to use it against
the satellites of other states, which makes the probability of creation of space debris caused
by International hostilities even higher.

Another important theory that needs to be considered on the topic of Space debris is the
Kessler Syndrome proposed by NASA. This basically provides that where each collision
creates space debris, it increases the probability of further collisions. The implication of such
space debris in orbits could result in impracticability of conducting space activities and use of
satellites in specific orbital ranges. Furthermore, the amount of space debris that enters
naturally in the earths orbits is way less than the number generated due collision of existing
space debris. Let’s say for examples, even if all the activities pertaining to space and launch
of objects were ceased, the debris would still continue to grow exponentially which would
result in a situation where specific orbits would become impassable in long run. Therefore,
active debris removal (ADR) is the only way for debris remediation.

As for the legal status of space debris, this could come under the purview of space objects as
they form a component of objects launched in outer space under Article VIII of the Outer
Space Treaty. However, there should be clear distinction as to what constitutes as fragments,
debris and wrecks.
Question 3

The Office of the Prosecutor (OTP) is an independent and separate organ of the International
Criminal Court (ICCC). When the Jurisdiction of the court is triggered by way of referral of a
situation relating to crime of genocide or crime against humanity, it is the responsibility of
the Chief Prosecutor to initiate such criminal proceedings in accordance with the powers
vested in him by the Rome Statute. Such action can also be taken in cases of proprio motu
(on his own impulse) after obtaining authorisation by the Pre-Trial Chamber. OTP is vested
with legal as well as operational independence under the statute. Furthermore, management
and administration of the office is solely handled by the Chief Prosecutor.

The primary function of the OTP is to investigate the situation referred to it by any State
Party or Security Council, to determine if a person should be charged with commission of the
crime. In proprio motu cases, the prosecutor cannot carry out a full-fledged investigation on
his own. The OTP needs to carry out a preliminary examination to analyse the severity of the
information received and may seek for any additional information if necessary.

Criticisms Against the Office of the Prosecutor

 Lack of resources: When it comes to selection of situations for preliminary

examination by the OTP, it becomes a cumbersome task. This is primarily because
there is a significant increase in the number of cases under preliminary examination
and there aren’t enough resources to tackle the same. Experts recommend that to
address the disparity, a higher threshold should be adopted for gravity of offences that
have allegedly taken place.
 Ambiguity vis-à-vis discretion: Article 15 of the Rome Statute states that the
prosecutor may initiate criminal proceedings proprio motu. However, the scope of
such discretion is not clarified. Due to lack of explanation, the OTP has come up with
its own procedure to identify and distinguish situations that do and do not warrant
investigation. It has devised four phases, firstly, initial jurisdiction assessment;
secondly, jurisdiction assessment; thirdly, admissibility requirement (complementarity
and gravity) and fourthly interests of justice. The first phase is to filter out such
situations that are outside the jurisdiction of ICCC and is not recognised by the Rome
Statute anywhere and is entirely governed by the discretion of the Chief Prosecutor.
 Ambiguity vis-à-vis Formal Commencement of Preliminary Examination: As
discussed above, going by logic the first stage should technically be the stage of
 preliminary examination as the Rome Statute also recognises. But as per Rome
Statute, phase 2 forms as the formal commencement date. Therefore, logically it does
not make sense to have preliminary examination divided into 4 phases and put the
commencement in the 2nd phase. If phase 1 is constituted as formal commencement,
then the examination begins as soon as the information is received and analysed by
the OTP.
 Redundancy of Phase 1: Both the phases deal with filtering out situations that are not
withing the subject-matter jurisdictions of ICCC. The existence of jurisdictional
mandate in phase 2 means that the assessment made in phase 1 is limited and only
seeks to achieve filtering out what is clearly outside the court’s jurisdiction. Phase 2
thus entails a more detailed analysis. Since phase 1 only concerns with jurisdiction
related issues, the question related admissibility need not be addressed. The same is
addressed in Phase 2 and Phase 3. However, doing so makes the entire process of
filtering out superfluous.
 Criteria for case selection and prioritisation: The process of selecting a case and
prioritising has not been defined in any of the statutory documents and therefore it
again falls in the discretion of the OTP. Vesting ample of power in the OPT leads to
problems pertaining to transparency of the entire process.
 Selection of charging Suspects: The OTP regulation provide that the investigation
should be carried out in respect of those person that appear to be most responsible for
the identified crimes. Here, ‘most responsible persons’ does not necessarily include
high ranking officials. However, the primary focus of a team of anyway limited
resources was on small number of high-ranking military officials. This approach has
resulted in numerous challenges relating to evidence, enforcement, arrents or even
witness interference.
 Over-Charging Practices: There has been criticism with respect to the approach of
OTP when it comes to charging the suspects. There is an issue of overcharging by the
OTP by presenting numerous case theories and modes of liability. This has resulted in
unnecessarily lengthy and complex pre-trial proceedings.
 Lack of Strategic Plan: It has been argued by the experts that when it comes to
selection of cases by the OTP, the selection is made based on ad-hoc proposals
instead of developing a strategic plan.
  Length of the Preliminary examinations: It has been noted that it takes a very long
duration to conduct the process of preliminary examination. The same is heavily
criticised as it leads to deterioration of the evidence, declining potential for future
cooperation and limited resources to the court. Furthermore, keeping such
examinations open for a long period of time may be considered as unfair to the states
concerned and reduce their willingness to cooperate with the OTP.
 Performance of the Investigation Division: The presence of the investigation
division has been criticised as they lack the knowledge of situation of countries. This
results in hampering the collection and evaluation of the evidence.

Difference between Genocide and Crimes Against Humanity

Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide,
1948 defines the term genocide, as destroying a national, ethnical, racial or religious group.
The same definition has been added in numerous other International Instruments including
the Statue of International Criminal Tribunal for the former Yugoslavia (ICTY), the Statute
of International Criminal Tribunal for Rawanda (ICTR), International Criminal Court (ICC).
The ICTY and ICTR have recognised this intent as dolus specialis. In the case of Prosecutor
v. Broanin, it was holed that the intent can be deciphered on the basis of the facts and
circumstances, however such intent must be the only reasonable inference available from the
evidence. Further, in Prosector v. Krstic itwas observed that the perpetrator must intend to
‘destroy’ the group. The ICTY further clarified that such destruction if is on the grounds of
cultural or sociological characteristics, it would not amount as genocide. The ICTY and ICTR
have further clarified that if the perpetrator recognises the existence of a specific group, it is a
persuasive indicator of genocide which they refer to as the subjective test. The case-specific
test on the other hand proposed by the ICTY, provides that the circumstances are to be
considered as the subjective test is not sufficient indicator as was seen in the case of
Prosecutor v. Broanin. Furthermore, such destruction could also be ‘in part’ that is it
involves considerable number of people or substantial part. The same was observed by the
ICTR in Prosecutor v. Kayishema. However, for a crime to constitute as genocide, it doesn’t
necessarily have to be established that the same was ‘planned’ or had any involvement of the
state or a statelike entity as was held in Prosecutor v. Kunarac.

The definition of Crimes against Humanity is defined in Article 7 of the Rome Statute of
the International Criminal Court and was developed in the trial of Nuremberg. The primary
test of crime against humanity is that there exists a systematic or widespread attack. In the
case of Prosector v. Blaskic, the term widespread was clarified as the scale of act perpetrated
and number of victims. Further, ICTY in Prosector v. Akayesu further settled the position of
widespread being frequent, large-scale, massive action carried out collectively towards
multiple victims. Systematic on the hand implies an organised pattern or purposeful repetition
of similar criminal conduct along with the number of victims, as was seen in the case of
Prosecutor v. Kunarac. Furthermore, for a crime to be regarded as crime against humanity it
requires evidence vis-à-vis existence of a political objective or policy in accordance with
which the crime was executed. Or in other words there should exist participation of high level
political or military authority as was observed in Prosecutor v. Blaskic. Finally, the term
attack was defined in the case of Prosecutor v. Naletilic and Martinovic where it said that
attack constitutes as course of conduct involving commission of acts of violence. Where such
attack need not be a part of the armed conflict under the CIL. Further, the must exist some
link between the attack and the act of the perpetrator, and the perpetrator must possess
knowledge of such attack being widespread and systematic (Prosecutor v. Kunarac). ICTY
in Prosecutor v. Naletilic further clarified that the majorly civilian population must form a
part and primary object of such attack.

The primary distinguishing feature of genocide from crime against humanity is the
requirement to prove the perpetrator possessed the intent to destroy a select group on basis
of race, ethnicity, religion.

Question 4

As far as the hijacking of and other unlawful acts connected with aircraft is concerned, the leading
treaties are the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft,
1963, the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970 and the
Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971.
The latter two instruments arose as a result of the wave of aircraft hijacking and attacks upon civilian
planes that took place in the late 1960s, and tried to deal with the problem of how to apprehend
and punish the perpetrators of such deeds.

The Tokyo Convention applies to both general offences and acts which, whether or not they are
offences, may or do jeopardise the safety of the aircraft or of persons or property therein or which
jeopardise good order and discipline on board. It provides for the jurisdiction of the contracting state
over aircraft registered therein while the aircraft is in flight, or on the surface of the high seas or on
any other area outside the territory of any state. Contracting states are called upon to take the
necessary measures to establish jurisdiction by municipal law over such aircraft in such
circumstances. In addition, the Convention permits interference with an aircraft in flight in order to
establish criminal jurisdiction over an offence committed on board in certain specific circumstances
by contracting states not being the state of registration. The circumstances specified are where the
offence has effect on the territory of such state; has been committed by or against a national or
permanent resident of such state; is against the security of such state; consists of a breach of any
rules or regulations relating to the flight or manoeuvre of aircraft in force in such state or where the
exercise of jurisdiction is necessary to ensure the observance of any obligation of such state under a
multilateral international agreement.149 No obligation to extradite is provided for. The Hague
Convention provides that any person who, on board an aircraft in flight, is involved in the unlawful
seizure of that aircraft (or attempts the same), commits an offence which contracting states
undertake to make punishable by severe penalties. Each contracting state is to take such measures
as may be necessary to establish its jurisdiction over the offence or related acts of violence when the
offence is committed on board an aircraft registered in that state, when the aircraft in question lands
in its territory with the alleged offender still on board or when the offence is committed on board an
aircraft leased without a crew to a lessee who has his principal place of business, or if the lessee has
no such place of business, his permanent residence, in that state. The Convention also provides that
contracting states in the territory of which an alleged offender is found must either extradite or
prosecute him. The Montreal Convention contains similar rules as to jurisdiction and extradition as
the Hague Convention but is aimed at controlling and punishing attacks and sabotage against civil
aircraft in flight and on the ground rather than dealing with hijacking directly.150 A Protocol to the
Montreal Convention was signed in 1988. This provides for the suppression of unlawful acts of
violence at airports serving international civil aviation which cause or are likely to cause serious
injury, and acts of violence which destroy or seriously damage the facilities of an airport serving
international civil aviation or aircraft not in service located thereon or disrupt the service of the
airport.151