THE REGULATION OF ACTIVITIES IN EXTRA-AERONAUTICAL
SPACE, AND SOME RELATED PROBLEMS
Ren6 H. Mankiewicz*
Introduction
Space and pre-space law
The time has finally come to put an end to the interesting, but purposeless
discussion of the question whether and in what manner existing legal rules,
particularly those regarding sovereignty over airspace, apply or whether they
may be construed in such a manner as to make them apply to the status and
legal regime of extra-aeronautical space. It is gratifying to note that speakers
at the Fourth Colloquium on the Law of Outer Space, held at Washington in
October 1961, were less concerned with finding out where the outer limit of
airspace lies under the present law, and concentrated instead on the more
practical problem of where actually to draw the lower limit of extra-aeronautical
space which, it seems now agreed, is not subject to the sovereignty or juris-
diction of the underlying State. On the other hand, it is urgent indeed to
develop and to agree on the rules to govern the steadily expanding and
increasingly daring space activities.’
Space activities have presented humanity with a “novel case”. Hence, it is
useless to attempt to base the legal regime of outer space on the traditional law
of nations or on the existing rules of international air and maritime law.2
Like any “case of first impression”, a legal system for outer space, including its
geographical scope, will be established by decisions of an essentially political
character, even though some attempt will be made to vest these decisions with
a semblance of legal respectability by the use of such juridical alibis as
restrictive, extensive, literal or historic construction of existing rules, analogy
*The author is a member of the Legal Bureau, International Civil Aviation Organization, Montreal.
The views expressed in this article are, however, purely personal.
‘Writings on this subject have become so abundant that even a select bibliography becomes
unwieldy. An important selection of papers and a comprehensive bibliography have been published
in March 1961 by the Legislative Reference Service of the Library of Congress, Washington, under
the title: “Legal Problems of Space Exploration – A Symposium,” for the use of the Committee
on Aeronautical and Space Sciences of the United States Senate – Senate Document No. 26, 87th
Congress, 1st Session.
5 rhe question of the bearing of article I of the Chicago Convention on the legal status of outer
space has been authoritatively discussed in many publications and statements by J. C. Cooper. See in
particular: “Legal Problems of Upper Space” (1956) Journal of Air Law and Commerce, p. 308;
Proceedings of the American Society of International Law (1956), p. 84; “High Altitude Flight and
National Sovereignty” (1951) International Law Quarterly, p. 411; Hearings of the Select Committee
on Astronautics (Washington, 1958), p. 1277; set also my comments in Annuaire frangais de droit
international (1959), p. 129 and p. 149 ct seq., and E. Pepin, “The Legal Status of the Air Space in the
Light of Progress” in Aviation and Astronautics, (Publication No. 2 of the Institute of International
Air Law, Montreal, 1957).
MGILL LAW JOURNAL
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or argumentum e contrario.3 No such decision has yet been taken, and the debate
in the United Nations shows the great reluctance of States to venture in this
field.
A functional approach to “space law”
It is suggested that there is no urgent need to take such political decisions
forthwith. 4 It will indeed be sufficient to establish the regulations which will
govern the operation and exploitation of space vehicles, i.e. the technical
conditions of the day to day uses of extra-aeronautical space.5 Moreover, an
international agreement on that matter might probably be limited for the time
being to providing the necessary machinery for the making and enforcement of
these regulations, as was done to some extent at Chicago in 1944 for the regula-
tion of international air navigation.
Once it is agreed that the use of outer space shall be confined to peaceful
activities, there will be no need to take sides in the major dispute on whether
sovereignty extends into space, and to what height, and whether space above
E. Geny, Science ct technique en droit positif, t. I, p. 109 and t. III, p. 175; J. Dickenson and L. L.
Fuller in RecueilGn, t. II, p. 118 and t. II, p. 158. L.Gi. Becker has very properly stated: “And we
must recognize that the choice of rules in this area will represent a major policy decision for each of
the various States. . .”; The JAG Journal (1959), p. 30.
‘The debates in the United Nations show the great reluctance of States to venture in this field.
See statements made at the 13th General Assembly of the United Nations: (UN) A/C.1/PV. 985 etq.
and A/AC-98/C.2/SR 1 et.req. For the views of the USA, see the statement of Senator Lyndon Johnson
at the 1st Committee of the 13th UN Assembly: “Today outer space is free. It is unscarred by conflict.
No Nation holds a concession there. It must remain this way”; (UN) A/C.1/PV. 986, p. 23.
See also P. W. Quigg, “Open Skies and Open Space” (1958) Foreign Affairs, p. 9559; and J. G.
Fulton, “A Definitive Study of the Concept and Scientific Strategy of Outer Space”, in First
Colloquium on the Law of Outer Space (Vienna, 1959), p. 51. On the other hand, Mr. L. E.
Becker, The JAG Journal (1959), p. 459, has stated: “The United States has never in fact recognized
any top or upper limit to its sovereignty. Even if such international agreements as the Chicago
Convention of 1944 be interpreted as conferring ‘complete and exclusive’ sovereignty only within
some limit of ‘air space’ -a
concept not defined either in the Convention, by lawyers, or by
scientists –
it should be noted that this does not of itself establish that the United States has no
rights above these limits. Neither the United States nor any other nation has thus far taken any
. . Thirdly, as a policy matter, undesirable
position as to whether it possesses such rights.
implications might be drawn from any unilateral definition of ‘air space’ or even an attempt at
definition, which might prejudice the United States in possible future negotiations with other nations
for an appropriate regime for outer space. Thus, such a definition might be interpreted as a renuncia-
tion of existing sovereignty beyond such limits or as an indication that ‘outer space’ beyond the
‘air space is not capable of sovereign appropriation. While the United States may ultimately accede
to such views or such limitations, it seems wise for the moment to remain flexible and preserve all
rights that our activities may give us, so that we retain a bargaining position which we could use
in order to ensure that any international arrangements relating to outer space are in full accordance
with our security and other interests.”
.
5For a comprehensive analysis of the political and other interests involved, see M. S. McDougal
and L. Lipson, American Journal of International Law (1958), p. 407; E. Saengr, “Raumfahrt,”
in Aussenpolitik 1957, p. 310; and the speech by the Australian delegate before the 1st Committee
of the 13th General Assembly of the UN; A/C.1/PV. 986, p. 42 sq.
No. 31
EXTRA-AERONAUTICAL SPACE
a certain height is res communis or res nullius.l Before passing on to other
problems, it is however worthwhile to note that the extension of sovereignty
into outer space does not provide an efficient protection against hostile attack
from space; nor is it a prerequisite for assuring national defence and for the
safeguarding of public order and peace. For, in the present state of aeronautics
and space sciences, aerial espionage and bombardments can be carried out by
airplanes or space vehicles well outside the boundaries of the attacked State.
On the other hand, it would be very dangerous to recognize sovereignty above
the present airspace – whatever the height of the latter –
because that would
permit the underlying State to engage in space activities over its own territory,
however harmful to others, e.g. exploding of nuclear bombs, interfering with
telecommunications, spreading of disease, etc. It thus becomes evident that were
sovereignty to reach into extra-aeronautical space, the exercise of that sovereign-
ty would have to be limited by international agreement in order to protect the
vital interests of humanity. For the same reasons, an agreement to restrict the free
use of extra-aeronautical space is required if this part of space is considered to
be outside the jurisdiction of any State.7 That such agreement will be difficult
to achieve is evidenced by the fact that the nations assembled at Geneva for the
purpose of codifying the law of the high seas were unable to agree on the
interdiction of polluting the high seas through radioactive materials.’
The foregoing leads us to conclude: first, whether legal theory or political
expediency is to lead to freedom of outer space or to a system of outer space
parcelled out amongst sovereign nations, there will still remain, in either case,
the need to develop rules for the peaceful uses of space “by humanity, to serve
humanity”;g and second, once these latter rules have been established, the
6Westlake, Annuaire dc l’Institut de Droit International (1906), p. 293; H. Zitelmann, Luftschiff-
fahrtsrecht 1910. P. de La Pradelle, Recueil des Cours de la Hayc (1954), t. If, p. 126; Schoenborn,
“La notion juridique du tcrritoire”, Recucil des Cours de ]a Haye (1929), t. V, p. 158; A. Meyer,
“Rechtliche Probleme des Weltraumfluges” 1953, Zeitschrift fur Luftrecht, p. 32; H. W. Prinz von
Hanover, “Die Rechtsprobleme des Weltraumfluges”, in Weltraumfahrt (Frankfurt, 1953), p. 116
and Grotius Stiftung, 28 Aug., 1958; J. C. Cooper in First Colloquium on the Law of Outer Space
(Vienna, 1959), p. 38, and, more recently, in Astronautics, October 1961, p. 64, and Revue fran~aise
de droit arien, 1961, p. 220 sq.
?Those who advocate the recognition of “‘freedom of space” similar to the “freedom of the seas”
are likely to forget that the latter was recognized internationally only at a time where a network of
national laws and international customs had already produced a sufficiently vast body of “‘rules of
the sea”, to avoid anarchy.
“See Official Records of the UN Conference on the Laws of the Sea, vol. IV, Second Committee,
29th and 31st meetings, and vol. II, Report of the Second Committee, p. 94, Text of Art. 27 of the
Convention, p. 135, and of Resolutions I and II, p. 143.
From the message by President F. D. Roosevelt to the 1944 Chicago Conference: “I hope you will
not daily with the thought of creating great blocks of closed air, thereby tracing in the sky the
conditions of future wars .. . Rather, in full recognition of sovereignty and juridical equality of
all nations, let us work together so that the air may be used by humanity, to serve humanity”:
Preceedings of the International Civil Aviation Conference, Washington (1948), t. I, p. 43.
McGILL LAW JOURNAL
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regime of space will have been determined implicitly for all practical purposes,
and its geographical frontiers will become irrelevant. 10 There will be no need
to decide “Who owns the Universe”‘” when it has been agreed under what
conditions it can be explored and be used by everybody’s peaceful space vehicles.
The report of the United Nations ad hoc Committee on the peaceful uses of
outer space provides valuable information with respect to the manifold technical
problems for which the establishment of such legal rules is urgently needed in
order to guarantee “the orderly and peaceful use of outer space”. 12 This paper,
however, will deal only with two major questions, namely:
I-The prevention of harmful uses of space vehicles, and
H-The need for, and jurisdiction of, an international agency.
The report of the United Nations Committee refers also to the many
questions of substantive law, both public and private, which need to be
reconsidered and which require new solutions not incompatible with, and based
‘t Similar views were expressed in the United Nations ad hoc Committee on the peaceful uses of
outer space. See the Report, A/4141, No. 26, p. 68: “There was also discussion as to whether or
not further experience might suggest a different approach, i.e. the desirability of basing the legal
regime governing outer space activities primarily on the nature and type of particular space
activities.”
See also L. E. Becker, rupra, note 4, at p. 29: “… Various international arrangements to deal with
particular problems or activities might well be made, or the development of international law be
encouraged, by passing as it were the question of sovereignty, but providing a firm foundation for
cooperative activities of a peaceful, scientific and mutually beneficial nature…”.
110. Schachter, “Who Owns the Universe”, in Acoss the Space Frontier, (New York, 1952).
2The ad hoc Committee on the Peaceful Uses of Outer Space was established by Resolution 1348
(XIII) of the 13th Session of the General Assembly of the United Nations. It was composed of
representatives of Argentina, Australia, Belgium, Brazil, Canada, Czechoslovakia, France, India,
Iran, Italy, Japan, Mexico, Poland, Sweden, U.S.S.R., United Arab Republic, United Kingdom and
United States of America. However, the representatives of Czechoslovakia, India, Poland and the
U.S.S.R. did not participate in the Committee’s work. The Report of the ad hoc Committee, Doe
(UN) A/4141, was submitted to the 14th Session of the United Nations General Assembly. On
the recommendation of its First Committee, Doc (UN), A/4351, the 14th Session of the UN General
Assembly adopted Resolution No. 1472 (XIV), which establishes in Part A a Committee on the
Peaceful Uses of Outer Space, consisting of Albania, Argentina, Australia, Austria, Belgium, Brazil
Bulgaria, Canada, Czechoslovakia, France, Hungary, India, Italy, Japan, Lebanon, Mexico, Poland,
Roumania, Sweden, U.S.S.R., United Arab Republic, United Kingdom and United States of America,
and requests that Committee: “(a) to review as appropriate the area of international cooperation,
and to study practical and physical efforts for giving effect to problems in the peaceful uses of outer
space which could appropriately be undertaken under the United Nations auspices ….
and (b) to
study the nature of legal problems which may arise from the exploration of outer space.” Part B of
the same Resolution requests the Committee on Peaceful Uses of Outer Space, in consultation with
the Secretary General and in co-operation with the appropriate specialized agencies, to work out
proposals for the convening in 1960 or 1961, under the auspices of the United Nations, of a
Conference of interested Members of the United Nations and Members of the specialized agencies
for the exchange of experience in their peaceful uses of outer space. The Committee set up by the
14th General Assembly has met for the first time in November 1961, during the 16th General
Assembly.
No. 3]
EXTRA-AERONAUTICAL SPACE
on the novel fact of human activities extending into extra-aeronautical space.
As an example of a possible approach to these problems, Section III of this
paper will contain a discussion of liability arising out of the operation of the
space vehicles.
Section I
The Prevention of Harmful Uses of Space Vehicles
We can dispense with a detailed analysis of the potential dangers of non-
military space activities for life on earth. Indeed, it is sufficient to recall the
statement of Senator Lyndon Johnson (now the Vice-President of the United
States of America) before the First Committee of the Thirteenth United Nations
General Assembly: “From Outer Space the masters of the boundless space can
control the weather on the globe, give rise to drought or floods, change tides,
raise the level of sea waters, divert the Gulf Stream, and change moderate
climates and weather to cold climates.”” Hence, to limit the access of outer
space to “civil” space vehicles is not sufficient to guarantee its peaceful use.
Moreover it is all but impossible to draw a perfect distinction between civil and
military spacecraft, since the experts agree that “all types of space vehicles
have potential capabilities of military value, and these capabilities cannot be
physically or functionally severed from a type of space vehicle honestly intended
for civilian or purely scientific use.”‘ 4 It is, therefore, essential that international
legislation be adopted with a view to defining permissible space activities and
to provide machinery capable of ensuring that “‘civil” space vehicles will not
be used for harmful activities.
While a multilateral agreement can establish a definition of illicit space
activities, it will be impossible in such a treaty to describe in detail all
prohibited activities and to make detailed rules governing the peaceful uses of
space, for the question of whether a space activity is permissible is determined
“‘by reference not only to altitude and position, but also to trajectory, flight
mission, known or referred instrumentation, and other functional characteristics
of the vehicles or objects in question.’ 5
In other words, detailed technical
rules for ensuring the peaceful nature of a given space activity, including the
rules regarding satellite instrumentation, orbits, etc., can be adopted only on
an ad hoc basis. Also, since our present knowledge of space techniques and
1 (UN) A/C. 1/PV. 982, p. 6.
“Chester Ward (Rear Admiral, Judge Advocate General of the Navy), “Space Law as a Way to
World Peace” The JAG Journal (1959), p. 10, at p. 21. It appears also that it is relatively easy for
space vehicles, even when engaged in peaceful uses, to operate clandestinely, at least for some time.
Thus, it was reported by the New York Times Service on November 3, 1959, that American scientists
discovered after one year that a certain space probe had produced a second radioactive shield.
Actually, that shield had produced northern lines which Russian scientists had reported and studied
without knowing that they were due to a US space probe; see D. Dubarie, in Si.nIs du temps (Paris,
1959).
IsReport of the UN ad hoc Committee, p. 68, No. 27 in fine.
MCGILL LAW JCURNAL
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space potentialities is rather fragmentary, it would be most impracticable to
write such technical rules into a treaty which would require frequent amend-
ments in the light of experience gained. 16 For all these reasons it is believed
necessary to create an international organization for the development of the
technical regulations for peaceful space activities, which would in this regard
exercise functions similar to those of ICAO in the field of international civil
aviation.
A further question is the enforcement of the various general and specific
rules for the prevention of harmful space activities and for the orderly operation
of “peaceful” space vehicles. This question raises particular problems having
regard to the present world situation. Under traditional international law
the mere pledge of a State to refrain from a specific activity, and consequently,
to make laws prohibiting its nationals from engaging in such activity, is
considered sufficient to ensure the fulfilment of the relevant treaty obligation.
For example, the 1944 Chicago Convention on international civil aviation
prohibits the carriage of “munitions of war or implements of war in or above
the territory of a State in aircraft engaged in international navigation” and
authorizes each Contracting State to “prohibit or regulate the use of photo-
graphic apparatus in aircraft over its territory”. 17 However, it does not
require international pre-flight inspection, nor does it provide any specific
sanction in case any of these provisions are violated.
Thus, in the traditional view, the prospects of retaliatory action, ranging
from economic sanctions to declarations of war, were believed to be good
enough to guarantee the respect of treaty obligations. However, this is no
longer so in the cold war. Having regard to the enormous and irreparable
damage likely to be caused by the misuse of space vehicles, and taking into
account the ease and promptness with which peaceful space craft can be turned
to uses which are dangerous for whole regions of the earth or prejudicial to
public order and safety, it will be necessary to set up some international agency
to inspect space vehicles before they are launched. Clearly, the space vehicles
and space probes launched since 1957 by the U.S.A. and U.S.S.R. have not been
subject to a pre-launching international inspection. However,. these launchings
occurred while there was still no international agreement on the control and
peaceful use of outer space; and, although the peaceful purpose of some of these
,”The ad hoc Committee considered that a comprehensive code was not practical or desirable
at the present stage of knowledge and development. Despite the progress already made, it was
emphasized that relatively little is so far known about the actual prospective uses of outer space in
all their possible varieties of technical significance, political context and economical utility”;
Report of the ad hoc Committee, No. 7, p. 63. With regard to the determination of the legal lower
limit of outer space the Committee equally found that “an authorative answer to the problem at this
time would require an international agreement, and the opinion was expressed that such an agreement
now, based on current knowledge and experience, would be premature”: Report, p. 68, No. 24.
Also, L. E. Becker, supra note 4, at p. 30:”Once again sensible solutions cannot be evolved to future
rroblems whose nature and context cannot be accurately foreseen.”
1 Articles 35 and 36 of the Convention on International Civil Aviation.
No. 3]
EXTRA-AERONAUTICAL SPACE
space probes has occasionally been questioned, no space vehicle has yet been
used to attack a foreign State. This self-restraint may be attributable to the
fear of retaliation, or, more hopefully, it might be the first evidence of a common
desire for peaceful coexistence which is essential for the orderly and peaceful
use of outer space.
As space vehicles become more versatile and since their paths and activities
can be changed by remote control, some method of international inspection
and control of space vehicles will be an essential prerequisite to any agreement
on the peaceful uses of extra-aeronautical space. Indeed, a system of inspection
and control is essential to meet the legitimate apprehensions of the people of
the world. Further, it may well become the cornerstone of the future regime of
In fact, several delegates to the United Nations have strongly
outer space.
recommended that the exploration and peaceful uses of space be brought under
the vigilant control of an international body which, according to some States,
should have exclusive jurisdiction, if not true sovereignty, over outer space.
Thus, while a formal treaty is required to make such preliminary international
inspection of space vehicles compulsory and to lay down the principles and
procedure of such inspection, the actual carrying out of the inspection should
be entrusted to international commissions, or preferably to an international
space agency.
There are additional reasons for recommending the establishment of an inter-
national agency. Such body would not only control, but could actually foster
the conquest of space for the benefit and progress of all mankind. It could do
so by making rules and regulations with respect to space flights and activities,
and by direct participation in such activities. The following chapter deals in some
detail with the jurisdiction and functions which might be given to that agency.
Section II
Need for, and Jurisdiction of an International Space Agency
A problem to be solved
Space traffic has already gained momentum. At the present there are
approximately 60 man-made objects travelling through extra-aeronautical
space. The tremendous increase of that traffic expected in the next few years
makes it necessary to adopt basic regulations without any further delay in
order to ensure the “open and orderly conduct of space activities” andito
avoid space accidents.”‘ In particular, measures must be taken to prevent
certain legitimate space activities from interfering with each other, e.g. collisions
between space vehicles, interference with radio-communications, etc., and to
ensure that space activities will not impede navigation in the airspace, nor be
harmful to life and property on the earth.
At the present stage of knowledge and development it would be premature
if not impossible to draft final rules guaranteeing the peaceful use of outer
I Sce Report of UN al, hc Committee, p. 29, No. 11.
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.
space because, “despite the progress already made .
. , relatively little is so
far known about the actual and prospective uses of outer space in all their
possible varieties of technical significance, political context, and economic
utility”.19 Moreover, in view of the urgency of the matter it would be quite
unrealistic to suggest that the necessary rules could be drawn up in one or several
basic international agreements, for the negotiation, conclusion and final ratifica-
tion of such agreements are spread normally over several years; in addition, the
subsequent adoption of any amendments thereto would also be a very cumber-
some affair. The precedent established successfully in the field of international
civil aviation by the International Civil Aviation Organization (ICAO) proves
clearly that it is relatively easy for an international agency to develop the
required technical regulations and to amend them if necessary by a procedure
which does not involve lengthy delays.20 It is therefore suggested that an
international agency be given regulatory powers to promulgate and enforce
the rules required for the conduct of peaceful activities in space. This agency
should also be granted additional powers for the purpose of promoting the
peaceful development of space operations and explorations, and to ensure the
safe and orderly growth of space activities. 21
The following is but an outline of the desirable scope of the jurisdiction of
such an agency.
1. Regulatory powers to promulgate and enforce rules required for the conduct of
peaceful activities in space. These rules fall into two categories: rules for the
prevention of dangerous and damaging activities, and rules which will ensure
the “orderly and open exploitation of outer space” and the safe operation of
space vehicles. As already mentioned, the former group of rules must define
and list the characteristics of prohibited activities, making “appropriate
provisions respecting the permissibility of a given activity by reference not only
to the altitude and ‘vertical’ position but also to the trajectory, flight mission,
known or referred instrumentation, and other functional characteristics of the
2g1bid., No. 7, p. 63.
20International standards and recommended practices for the safe operation of civil aircraft engaged
in international flights are established by the Council of ICAO and are known as “Annexes”
to the
Chicago Convention; (see hereafter Note 23 for the list of technical Annexes). The drafts of such
Annexes are developed by Divisional Meetings, dealing with one subject, at which all Contracting
States may be represented. The draft is then submitted to the Air Navigation Committee, an
auxiliary organ of the ICAO Council, which may modify the draft. The draft annex prepared by
the Commission is communicated to all Contracting States for comments and, thereafter, reviewed
and, if appropriate, modified by the Council. The adoption of an Annex by the Council requires the
vote of two-thirds of the Council and becomes effective within three months after its submission to
Contracting States unless in the meantime a majority of the Contracting States register their dis-
approval with the Council (Art. 90 of the Chicago Convention). The same procedure is followed
for the amendment of an annex. No annex or amendment thereto adopted by the Council has been
disapproved by a majority of Contracting States.
21″The ad hec Committee feels strongly that the conduct of space activities must be effectively
open and orderly”; Report, p. 29, No. 11.
No. 3]
EXTRA-AERONAUTICAL SPACE
vehicle”.22 The rules governing the use and operation of space vehicles must
deal, for instance, with the identification and registration of space vehicles;
coordination between space vehicles and conventional aircraft; trajectories on
the way to and from outer space; “re-entry” and landing; allocation of radio
frequencies; equipment ensuring remote control; and “space-worthiness”.
These rules and regulations will eventually constitute a complete code of the
law relating to the peaceful use of outer space, establishing thereby the legal
status of outer space for all practical purposes.
The following is a first list of the main matters of substance for rules relating
to the use of outer space. It reflects in part the experience of ICAO in the
development of standards and recommended practices in the so-called Annexes
to the Chicago Convention (A) 23 and in part the appearance of new problems
peculiar to space flights and activities (B).
trajectories2 -Tracking
A-Matters arising out of the experiences of ICAO: Registration and nationality
of space vehicles24-Uniform dimensional units25-Minimum
requirements for
space vehicles and embarked tracking apparatus 26 -Cosmic charts 27-Allocation
of space vehicles 29-Space
communications 3 0-
of
Launching pad requirements 3t– Accident investigation 2 .
B-New Space Problems: Registration of orbiting elements33-Prevention of
dangerous activities-Control of orbiting space vehicles-Destruction of “wild”
-2Reporr of the UN ad hoc Committee, p. 68, No. 27.
231CAO has promulgated the following 15 technical Annexes which constitute a comprehensive
international civil aviation code: Annex 1-Personnel Licensing; Annex 2-Rules of the Air; Annex
3-Meteorology; Annex 4-Aeronautical charts; Annex 5-Dimensional units to be used in air-
ground communications; Annex 6-Operation of aircraft-Intrnational commercial air transport;
Annex 7-Aircraft nationality and registration marks; Annex 8-Air-worthiness of aircraft; Annex
9-Intemational Standards and Recommended Practices; Annex 10-Aeronautical telecommunica-
tions; Annex 11-Air Traffic Services; Annex 12-Search and rescue; Annex 13-Aircraft accident
inquiry; Annex 14-Aerodromes; Annex 15-Aeronautical Information Services.
24 t is essential that space vehicles, their origin, use and eventual destination be readily identified;
see Report of the UN ad hoc Committee, p. 45, No. 70; McDougal, “‘Artificial Satellites”, American
Journal of International Law, 1957, p. 77.
2 Same Report, p. 41, No. 60 and p. 49, No. 86 and 87.-See ICAO Annex 5.
21c is necessary to define the minimum requirements of “space-worthy” vehicles and to prescribe
the instrumentation required to guarantee the control and, if necessary, the destruction of the vehicle
while above the Earth.-See ICAO Annex 8, and Art. 30 and 33 of the Chicago Convention.
2rrhe Report of the ad hoc Committee mentions repeatedly the need for the overall collection,
cataloguing and dissemination of data and results obtained from space activities, “if the world is to
benefit fully from and to contribute to the advancement of the space era”, e.g. No. 19, p. 50, and No.
122, p. 58.
2sSee ICAO Annexes 2 and 11.
20see ICAO Annexes 2 and 11.
3OReport of the UN ad hoc Committee, No. 59, p. 41, and No. 69, p. 45.-ICAO Annex 10.
3’ICAO Annex 14.
z-Art. 28 of the Chicago Convention, ICAO Annexes 12 and 13.
3Reporr of the ad hoc Committee, No. 70, p. 45.
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space vehicles-Destruction of spent, useless or interfering satellites 34-Pre-
vention of contamination-Co-ordination of the activities of space vehicles-
Co-ordination of space flights and civil aviation.
2. Jurisdiction over space vehicles.-Apart from these regulatory powers, the
international space authority should also be vested with jurisdiction to control
the operation of space vehicles and their equipment. Thus it would be in a
position to ensure that these vehicles would not be used by some States as a
means of intimidating and subjugating others, nor put to uses likely to endanger
national survival or the life of human beings. This control should be organized
in different ways at various stages of operation, i.e. the methods of control
would vary with respect to inspection of engines and instruments before
launching, monitoring of trajectories and space communications, control of
messages sent and of orders given to the vehicle, observation and remote
control, monitoring of space stations, and administration and inspection of
space installations for common use.
3. Promotion of joint operations in space. The third main objective of an
international space authority should be the promotion of joint space activities.
States actively conducting space explorations already derive substantial ad-
vantages therefrom. New and precious benefits are expected from further
advance$ in the use of outer space. In the twentieth century, however, it is
inadmissible that these advantages should remain the monopoly of a few
“.privileged” nations. Therefore, provisions must be made for them to share
these benefits with other countries or, alternatively, for reserving to an inter-
national body all space activities which are for the common good of mankind. 5
On the latter alternative more will be said in a later paragraph.
“Report of the ad hoc Committee, No. 71, p. 46.-For a detailed analysis of the need for, and the
substance of rules concerning activities in space, see our study “Legal Regime and Conditions for
the Use of Space-Vehicles”, Review of Contemporary Law (1960), p. 25 et req.
3 “The Committee recognizes that the great forward surge of space activities may also tend to
widen the gap between the technologically advanced nations actively launching vehicles into space
and other nations watching and wishing to take part in space activities, but feeling unable to do so.
The problem is to make available and to exploit the possibilities that exist for participation by
nations at all levels of development, from supporting research or operation of tracking stations to
launching small vehicles or joining with others in more advanced undertakings”, Report of the
adbo Committee, No. 10, p. 29. Particularly, it is inconceivable that meteorological and communica-
tion satellites could be used only by the launching States, with the resulting multiplication of such
satellites by all States interested in their use and capable of producing them. In this respect it is
noted that the United States has already taken the initiative of inviting other States, including
the U.S.S.R., to participate in the common exploration of space. See the statement by T. Keith,
Director of N.A.S.A., on December 7, 1959: Department of State Bulletin, January 11, 1960, p. 58,
and also the resolution passed by unanimous vote of the Congress of the United States, which declares
inter alia: “That it is the sense of Congress . .
. that the United States should seek through the
United Nations by ‘all means as may be most appropriate an international agreement providing for
joint exploration of outer space …
(And) that the United States should press for an international
agreement providing for joint cooperation in the advancement of scientific developments which
can be expected to flow from the exploration of outer space such as the improvement of communica.
tions, the betterment of weather forecasting, and other benefits …. “, House Concurrent Resolution
332, United States House of Representatives, June 2, 1958; United States Senate, July 23, 1958.
No. 3]
EXTRA-AERONAUTICAL SPACE
Under the first alternative, however, the agency would be given the right
to decide whether a space vehicle of one State can be used by other States, and,
where appropriate, to prescribe the conditions and terms under which a nation
would be permitted to make use of the existence or activities of a space vehicle
belonging to another country.
Similarly, the competence of the agency would encompass the many space
activities which, by their very nature, require, and to ensure their successful
operation, need a combined international effort, as, for example, the joint
operation of certain space vehicles and ground stations. With respect thereto
the United Nations ad hoc Committee noted the following instances: simul-
taneous launchings of sounding rockets for the investigation of the upper
atmosphere and for rocket astronomy experiments,
international use of
launching ranges and creation of an international rocket range for scientific
experiments; co-operation in tracking and telemetering, since orderly and
successful tracking and telemetering normally require the establishment of the
appropriate stations on territories outside the jurisdiction of the launching
State; and international co-operation programmes for the processing of tracking
and telemetering data.3
“Report of the UN ad hoc Committee, No. 95, p. 51: * …
Moreover, since the space vehicles in orbit may soon outnumber the ground
tracking stations, it might become necessary to provide for the specialization
of the various ground stations and to co-ordinate the timing of communications
to and from space vehicles. Also, in view of the high cost of satellites and
space vehicles, there may be definite advantages in the co-ordination of the
space projects of the various nations. 37 It is submitted that the proposed
it might be desirable on occasion for a
single nation to undertake to launch a scientific satellite or space probe under the auspices of the
International Council of Scientific Unions or the United Nations. In such international project the
scientific payload would be instrumented as a cooperative endeavour . . .”. Ibid., No. 59, p. 41
et seq. See also the statement of the Australian delegate at the First Committee of the 13th UN
General Assembly (A/C.) /SR 86, p. 8): “International cooperation is also necessary because of the
fact that geographical position on the face of the globe would be a highly important factor in the
development of space research; if it were to be confined to the northern hemisphere, such research
would labour under great disabilities. The need for international cooperation would become even
more evident as soon as it became important to solve the problem of bringing space vehicles back
to Earth, for cooperation of distant countries with extensive land areas might be needed to permit
the tracking and guidance of the vehicles at an early stage of their descent.”
37Report of the ad hoe Committee, No. 59, p. 41: “The problem is to make available and to exploit
the possibilities that exist for participation by nations at all levels of development, for supporting
research or operation of tracking stations, launching small vehicles or joining with others in more
advanced undertakings”. See Report of the ad hoc Committee, No. 10, p. 29. The Committee also
notes (Report No. 77, p. 47), that “‘in the use of sounding rockets to investigate the upper atmosphere
and to conduct rocket astronomy experiments, there are several fields of investigation which would
be promoted more efficiently if simultaneous launchings were made in many countries.” According
to the ad hoc Committee (Report No. 35, p. 36), three satellites spaced 120 degrees apart in 35000 km
altitude orbits at the equator would establish a worldwide system for the re-broadcasting to the
Earth of radio signals directed to these satellites. It would be a waste of effort and money to install
more than three satellites of that kind, for the reason only that, being launched by one individual
Srate, they could not be used by other States.
“No single country extends over sufficient range of latitude and longitude to be able to track Earth
satellites adequately from its own stations. Earth satellite experiments have been wholly dependent
upon international cooperation”: Report of the ad hoc Committee, No. 63, p. 42. See also statement
of the Australian Delegate to the 1st Committee of the 13th UN General Assembly (UN) AIC.1/9S6,
p. 9.
McGILL LAW JOURNAL
[Vol. 8
agency could play a most useful part in this field both by programming and
scheduling the different projects and by providing the necessary tracking and
information centres.
4. Right to own and operate space vehicles and ground installations.-Finally,
the agency could be authorized to operate, in the common interest, its ovn launching
pads and tracking stations and, possibly, its own space vehicles.
Precedents developed in international aerial navigation. In all these fields the
experience of the International Civil Aviation Organization (ICAO)
in the
field of aerial navigation, and several basic provisions of the 1944 Chicago
Convention on International Civil Aviation might serve as useful guides.
First, the Chicago Convention has already established a precedent for the
common, international use of installations maintained by a single nation.
Thus, air navigation facilities provided by a Contracting State may be used by
any aircraft registered in an ICAO State.3 s
Secondly, in order to ensure the provision of the facilities and services which
are necessary in a given region for the safe operation of aircraft, ICAO has
developed a particular procedure which may be copied by an international
space agency in providing ground facilities and services for space explorations.
Under that procedure, ICAO calls a meeting of all States whose aircraft fly in
a certain region. This “Regional Air Navigation Meeting” establishes a
“Regional Plan” which lists and describes the installations and facilities
needed. The plan is examined and, if necessary, altered by the ICAO Air
Navigation Commission, which is composed of twelve persons with suitable
qualifications and experience in the science and practice of aeronautics, ap-
pointed by the Council from among individuals nominated by Contracting
States. The Council of ICAO then studies the plan and approves it with the
necessary amendments. Contracting States are requested to implement the plan,
and special machinery has been developed to induce them to fulfil their obliga-
tions.3 9
Finally ICAO has developed several schemes for the joint financing of
necessary air navigation facilities and services which a single State is unwilling
to provide at its own expense. These schemes are also used when the establish-
ment and operation of a given service by more than one State would be too
expensive or be a useless duplication of effort. Thus, under Articles 69 et seq.
of the Chicago Convention, ICAO has promoted the establishment in Greenland,
the Faroes, and Iceland of air navigation facilities which the Danish and the
Icelandic Governments were reluctant to finance themselves. Similarly, several
38Art. 15 and 28 of the Chicago Convention.
TIhe latest resolutions of the I.C.A.O. Assembly on this subject are Resolutions A 12-14 and A
12-15 (ICAO) Doc 7998, A 12-P/3. For background information regarding these resolutions and
details of the machinery for the implementation of regional plans, see (ICAO) A 12-WP/13 and
A 12-WP/111.
No. 31
EXTRA-AERONAUTICAL SPACE
members of ICAO have agreed to the joint establishment, operation, and
financing of ocean weather stations under the control of the ICAO Council. 40
With regard to the possibility of empowering an authority for space
activities to establish and operate its own launching pads and control stations,
an important precedent is also found in Articles 69 et seq. of the Chicago
Convention, referred to above, authorizing the Council to provide for “all
or a portion of the costs” of the installation and/or operation of airports
or other air navigation facilities, including radio and meteorological services
of a Contracting State, if in the opinion of the Council these airports, facilities,
and services are “not reasonably adequate for the safe, regular, efficient, and
economic operation of international air services, present or contemplated”, and
if the State concerned does not wish to bear all the costs involved. Moreover,
Article “72 permits the acquisition and use of land by the Council of ICAO in
the following terms: “Where land is needed for facilities financed in whole or
in part by the Council at the request of a Contracting State, that State shall
either provide the land itself, retaining title if it wishes, or facilitate the use
of the land by the Council on just and reasonable terms and in accordance with
the laws of the State concerned.” However, it should be noted that ICAO has
not yet taken over or operated air navigation services and facilities, except under
the Expanded Programme for Technical Assistance, and has limited its efforts
to the promotion of joint financing schemes instead.
International jurisdiction over celestial bodies. It is finally submitted that the
much debated question of the legal status of celestial bodies could be solved in
what might be considered the most satisfactory manner by giving to the inter-
national space authority exclusive jurisdiction over these bodies, including the
exclusive right of their occupation, administration and exploitation.
Many learned papers have recently dealt with the question of whether
celestial bodies are res nullius or res communis and whether the present rules of
international law apply to the acquisition of sovereignty thereon. In his report
to the 4th Colloquium on the Law of Outer Space Mr. Fasan, 41 speaking for
the study group established by the International Institute of Space Law,
expressed the view that “objects with no firm surface like the sun” are res
communis. “The sun being a natural conditio sine qua non for life on earth,
sovereignty of any nation over it would legally enable the latter to exclude all
other States and peoples from its rays and warmth … Therefore sovereignty
over the sun is illegal under natural law … It belongs to all mankind and is
therefore naturali iure res communis”.
Mr. Fasan suggests, however, that “objects with a firm surface like the
moon” are not indispensable for life on earth and therefore should be considered
11R. H. Mankiewicz, “‘Le r6le du Conseil de IOACI comme administration des services de navi-
gation a&ienne”, Revue frangaise de droit a&rien, 1954.
4’The Colloquium was held at Washington in October, 1961. The reports have not yet been
published in printed form.
McGILL LAW JOURNAL
[Vol. 8
as res nullius over which a State could acquire sovereignty in accordance with
the traditional law of nations.
As Mr. Menter has pointed out in his communication to the 4th Colloquium
on the Law of Outer Space4 2, there are likely to arise practical difficulties in
applying those rules because they make the acquisition of sovereign rights
dependent on occupation of, and effective control over the celestial body and
these may be difficult to achieve. Still, according to Mr. Menter, occupation
and effective control may not be altogether impossible for the following reasons:
“What was difficult and time-consuming in exploring the interiors of un-
known continents in Columbus’ day, while not less difficult, may be more
quickly accomplished on the moon and perhaps on other celestial land masses
with the unfolding scientific developments of this age. If we develop the
capability to disembark on land masses in outer space, our explorations, unlike
those of the past on Earth, will not start at a shoreline and work towards the
interior. In fact, the natural perimeters of past explorations will be different.
We shall probably disembark on “land” of our choosing on the land masses
concerned. Our area of effective occupation, however, will be sharply limited
to the state of our developed ability for space survival and exploration. This
will be due to lack of oxygen, food, water, atmosphere, the variations of
temperature, radiation hazards, and other dangers encountered in travel to, and
sojourn on, the land masses concerned. Assuming the application of past
“earth-law” principles, initial visits would create but inchoate rights which,
because of the natural perils to success of any occupation, could not effectively
ripen into “effective occupation” until demonstrated success of the colony
over a substantial period of time.”
Both Messrs. Fasan and Menter agree that the application of present
international law to jurisdiction over celestial bodies leads to undesirable
consequences and that, therefore, a special agreement on the legal status of
celestial bodies is required. Even more so “as there is no certainty that the
law of extension of sovereignty to terra nullius on earth would not apply to
occupation of land masses in outer space.”
It is suggested that this approach to the problem of the legal status of
celestial bodies is impaired by a basic misconception. For none of the rules
relating to res nullius and res communis nor any other traditional rule of inter-
national law can apply with respect to these bodies, neither directly nor by
analogy. Legal rules are developed with reference
to precise facts and
experiences. They grow in and for a given milieu when they provide a legal
order based on the balancing of the various interests involved. It is a matter
of record that each change in the “facts of life” has entailed a modification or
refinement of previous legal rules. Thus, when Roman lawyers proclaimed the
principle cujus terra they were concerned only with rights in that part of space
which they could reach. When that part expanded in modern times through the
4-See preceding note.
No. 3]
EXTRA-AERONAUTICAL SPACE
invention of powered flight, the scope of the rule cujus terra has been scaled
down and land owners were deprived of their right to oppose or interfere with
the overflight of aircraft over their land. Thus, it is obvious that the present
rules of international law, since they were not molded by the realities of extra-
aeronautical space, cannot apply in or to that space. Indeed, the exploration
of outer space is an event so unprecedented that all pre-existing legal rules
become irrelevant. The material law of that space, including rules with respect
to the legal status of celestial bodies must be framed anew, in the light of the
novel facts which confront mankind in this revolutionary venture.
Those new rules should ensure that celestial bodies will not fall under the
exclusive jurisdiction of any nation and that they are only to be used for the
benefit of mankind. This principle has already met with a large degree of
agreement. It could be implemented at once if the nations of the Earth would
agree that the right to explore, to occupy, and to exploit celestial bodies be
vested in an international space agency. It would then become the function
of that agency to make rules on the participation and share of States or State
controlled agencies in the activities leading to the exploitation of celestial
bodies.
Section III
Civil liability for damage caused in connection with space activities
Regulations dealing with the technical aspects of space activities will solve
some questions of the substantive law of extra-aeronautical space by implica-
tion, viz. the legal status of extra-aeronautical space and conditions under
which it can be used. Still, these regulations are but a part of the entire space
law, and there remain many questions, both of public and private space law,
which require the development of new legal rules, e.g. rights with respect to
space vehicles which have landed or fallen on foreign territory, civil liability
for space vehicles and space activities, etc.43
Here again situations arise which have been unknown previously. There-
fore none of the existing “earth-bound” rules can provide an adequate answer.
Since the very essence of a legal rule is the adjustment of a given set of con-
flicting interests it is obvious that when a new fact arises, the established rule
must be re-examined and eventually modified in the light of the newly created
situation. This is why the emergence of the “space factor” makes all traditional
legal rules obsolete.
The following paragraphs on civil liability for space activities are intended
to provide an example of the approach which this writer feels should be fol-
lowed in framing the new rules of the law of space. The topic of civil liability
is chosen as an example because it has been discussed at the recent Colloquium
on the Law of Outer Space, on the basis of a preliminary report by Working
Group IX of the International Institute of Space Law.
4 For a summary of the legal questions likely to arise, s~e our studies in the Review of Contem-
porary Law, note 34 above, and in Annuaire Franqais de Droit International, 1959.
McGILL LAW JOURNAL
[Vol. 8
Civil liability for space activities may arise from damages caused by space
vehicles or space activities in extra-aeronautical space, in airspace or on the
‘surface of the earth; damage may be done to persons or individuals or groups
of persons, e.g. a nation, or to goods on the earth, to space craft in orbit and
to aircraft in airspace, etc. The question is: what rule applies to the indemnifica-
tion of the victims.
Under traditional law, liability for damage is linked to negligence. Only
the person whose negligence has resulted in damage is required to indemnify
the victim. In recent times, various refinements of that basic rule have been
adopted in the light of changing social conditions. Thus, where the damage is
caused by a dangerous thing its owner or user is held liable without proof of
his fault. This, however, amounts only to a presumption of negligence, based
on the idea that a dangerous thing should not be used or made available without
appropriate safeguards. With the further development of our technological
society, the mere presumption of negligence was transformed in certain cases
into an irrebuttable presumption of law, with the effect of making civil liability
absolute. In many countries this principle has formally been embodied in
statutory law relating to damages caused by railroads and other mechanical
means of transportation.” Elsewhere, case law has developed along similar
lines by using such devices as res ipsa loquitur, implied conditions of safe
transportation, etc. A further departure from the principle of liability based
on negligence was achieved in the United States of America in MacPherson
v. Buick Motor Co. 4.- a case which became a persuasive precedent in other
common law countries.” Under the MacPherson rule the manufacturer of a
thing, whether dangerous in itself or not, is liable, without proof of negligence,
for damage caused by that thing to any third person. 7
Another trend of themodern law of liability is illustrated by the nearly
universally adopted Workmen’s Compensation Acts. Fundamentally these acts
are based on the following reasoning: since it is rather difficult to decide
whether an industrial accident is attributable to the negligent behaviour of
the worker or whether it must be charged to the employer who required the
worker to use a potentially dangerous machine, the criterion of negligence is
abolished as a good basis for the right of recovery as well as for the obligation
to indemnify the victim; instead, Workmen’s Compensation Acts establish an
insurance scheme which guarantees that, wherever the fault may lie, the worker
will obtain appropriate indemnity.
44For a partial survey of aviation laws which provide for absolute liability in case of damage to
third parties at the surface, see (ICAO) Doc 7379 LC/34, Vol. 2, p. 63.
“217 N.Y. 382.
4″For instance, it has been referred to by Lord Atkin and Lord MacMillan, in the House of Lords,
in Donoghue (McAlistrer) r. Stetnrson [1932] A.C. 562.
47Ce for instance, “L.a responsabilit6 du fabricant A l’6gard de l’usager ou consommatcur dc scs
produits d’apris le common law canadien”, Revue internationale de Droit compare, 1956, No. 2.
No. 3]
EXTRA-AERONAUTICAL SPACE
In the light of the foregoing one might conclude that in modem society,
having regard to the steadily increasing role of technology in everyday life,
the obligation to indemnify the victim of an accident is no longer apportioned
on the basis of negligence but is allocated according to principles of social
policy in order to ensure adequate reparation of the damage even in those
cases where negligence on one side or the other cannot clearly be established.
The owner or user of the instrument or of the “going concern” which has
caused the damage, must indemnify the victim, his liability arising from the
mere fact that the damage has occurred (absolute liability). In contemporary
society where world-embracing insurance companies are willing to underwrite
practically any risk at reasonable rates, this principle of absolute liability
appears to be an equitable one since the potential debtor of the indemnity is
now in a position to cancel out his own liability by making appropriate in-
surance arrangements, the cost of which is part of his overhead.
The rules governing liability for space vehicles or space activities should be
developed in the light of the modern trend of the law of civil liability as out-
lined in the foregoing paragraphs. Still, account must be taken of the special
features of space activities, two of which are of special importance, namely, the
uncertainty of the cause of a space accident and the high amount of possible
damage resulting therefrom.
Notwithstanding our increased technical knowledge and control of space
activities, any such activity and any space vehicle is liable to cause damage to
persons and goods in extra-aeronautical space, in airspace and on the surface
of the earth. Such damages may result from the malfunctioning of the vehicle
even though all necessary precautions were taken before the launching. What
is more, the proximate cause of the accident may never be known. In fact, the
damage may result from force majeure. There also remains the possibility –
even though the space vehicle itself functions properly – of a space activity
producing unexpected and unforeseen effects in space or on the earth, entailing
damage to persons or whole nations, as in the case where such activity would
produce meteorological disturbances and thereby cause the flooding of a whole
region. Indeed, it must not be forgotten that for many years to come each
activity in space is a new and unprecedented experience, the consequences and
effects of which cannot be predetermined precisely. Any of these activities
may result in great damages in spite of the fact that all precautionary measures
have been taken in accordance with the most advanced standards of present
day scientific and technological knowledge.
Under these conditions it is submitted that liability must be absolute and
rest with those who control the launching of the space vehicle or the activities
for which it is used. The aforementioned working group of the International
Institute of Space Law has advocated this very solution for damages caused by
space craft to goods and persons on the earth only. It is submitted that the
McGILL LAW JOURNAL
[Vol. 8
same principle should apply to whatever damage is caused by a space vehicle
or a space activity, irrespective of the kind of the damage and the place where
it occurs.4 8
The difficulty in the implementation of such a system of absolute liability
raises, however, special problems where the damage is caused by more than one
space vehicle or by conflicting space activities, for the question then arises how
to allocate liability amongst the vehicles and activities involved.
No practical or legal difficulty arises as regards the indemnification of the
victims because they may pursue any or all of the owners or users of the space
vehicles, as well as those responsible for the damaging space activities. The
situation is different with respect to the relationship between those liable for
the damage. One may think of applying thereto the principles recently
developed by a sub-committee of the ICAO Legal Committee in the Draft
Convention on Aerial Collisions49 This Draft Convention provides as follows:
if the cause of collision is unknown the damage rests where it lies; if the collision
is attributable to the negligence of one of the parties, this party only will bear
all the damage; where all concerned were negligent, the damage will be
apportioned amongst them according to the degree in which the negligence of
each party contributed to the damage sustained. Still, it is submitted that
that system cannot be adopted in the case of damage resulting from space
activities. The reasons for this are manifold. First, space experiences and
technical knowledge have not yet developed to a point where one could
establish with certainty that negligence was the proximate cause of the damage.
Moreover, in the case where that cause can be isolated it would always be
possible to show that the accident could have been avoided by the application
of an improved technique or by a more exact evaluation of the consequences
of the space activity concerned.5 0 Thus there could always be proof or pre-
sumption of a certain degree of theoretical negligence, provided, indeed, the
exact cause of the accident were known. This, again, would apply to all
concerned. Therefore, there would be little justification to apply the principles
of the Draft Convention on Aerial Collisions to accidents caused by colliding
space vehicles or space activities. It would be more in line with the facts of
space operations that the principles of absolute liability apply generally what-
ever the real or supposed cause of the space damage.
“8For a precedent along these lines which has just been established in another “ncw” field of
human activity, namely the peaceful use of atomic energy, see OEEC and IAEA Conventions on
Liability for Nuclear Accidents; M. J. L. Hardy, “International Protection against Nuclear Risks”,
The International and Comparative Law Quarterly (1961), p. 739.
1(ICAO) LC/SC Aerial Collisions Nos. 69, 71 and 72.
5 It will be recalled that manufacturers of goods which have caused damage to third persons
have often invoked the defence that all technically possible measures had been taken to prevent
the goods from causing damage; but the courts have always rejected that defence. See our study
referred to in note 47.
No. 31
EXTRA-AERONAUTICAL SPACE
Another major element to be considered in framing the law of liability is
the enormous amount of the damage likely to be caused in many instances.’
Whole cities or regions may be affected, and such incidents as space communica-
tions interfering with telecommunications on the earth may result in extensive
damages to pcrsons and goods. The virtual danger inherent in space vehicles
and space activities is so great that it is most unlikely that any insurance
concern will be willing to underwrite it. Therefore, effective protection of the
victims will require that liabiliiy for damages resulting from the use of space
rest with the governments engaging in such activities. This solution would be
the logical consequence of an agreement under which space activities could be
undertaken by governments only. There are many reasons why such an agree-
ment would, indeed, be highly desirable. If States alone were permitted to
engage in such activities, only then would it be possible to co-ordinate these
activities in an appropriate manner so as to prevent space activities from over-
lapping or interfering with each other. It would also provide safeguards against
the possibility of a certain space activity being preempted or made impossible
by the unco-ordinated launching of space vehicles by private persons or insti-
tutions. On the other hand, if the right to space activities were vested only in
States, they still would remain liable for any damage caused by any private or
public authority to which a given state had delegated the exercise of its right.5 2
As will be seen from what has been said previously with respect to the
jurisdiction and functions of an international space agency, the best solution
would still be to give such agency the monopoly of space activities, with the
result that liability for damage caused by these activities would lie with the
agency itsclf
The foregoing analysis of some problems of the law of extra-aeronautical
space, while rather summary, may still reveal the urgency of taking immediate
steps to bring space vehicles and the operation of activities above the airspace
under a comprehensive legal order.
‘For the estimates of the damage caused by the malfunctioning of one nuclear reactor only, see
Hardy in the study quoted in note 48 above.
52Ncedles
to say that, in order to be of practical value, the convention on liability arising out of
space acti itics should stipulate that governments can be sued by private persons (nationals and
foreigners), in the law courts or administrative courts, as the case may be.