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Private Enterprises in Space Related Activities: Questions of Responsibility and Liability

Published online by Cambridge University Press:  21 July 2009

Kofi Henaku
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Extract

Classical international law was characterised by its insistence on the state as a sovereign who within its borders had no equal and thus permitted no interference in its acts. States were the only subjects of international law. All other entities were objects of the law which was inevitably dominated and dictated by states. Modern international law has seen a drastic shift from these views. For instance, legal theory now recognises other subjects of the international regime. States have yielded parts of their sovereign powers to personalities like international organisations. To a certain extent, natural and legal persons have found a place in the emerging international law. It must be emphasised, however, that this position of the latter does not go unchecked. States still regulate the activities of other international legal personalities. States are also seen jealously guarding their status as the prime subjects of international law.

Type
Student Contributions
Information
Leiden Journal of International Law , Volume 3 , Issue 1 , April 1990 , pp. 45 - 56
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1990

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References

1. See Matte, N.M. (ed.). Space Activities and Emerging International Law 228 (1984).Google Scholar

2. Böckstiegel, K.-H.Commercial Space Activities, XII Annals of Air and Space Law 175–180 (1987).Google Scholar

3. The Conestoga I was launched on Sept. 9, 1982.

4. The Dolphin rocket was launched on Aug. 3,1984; for a detailed analyses of developments in this area, see generally Steptoe, J.E.United States Government Licensing of Commercial Space Activities by Private Enterprise, 27th Colloquium on the Law of Outer Space 191–193 (1984).Google Scholar

5. Aviation Week and Space Technology, Nov. 1987, at 55.

6. K.-H. Böckstiegel, supra note 2, at 177.

7. Oppenheim, [Internationa] Law vol. I, at 19 (1955).

8. Treaty on the Principles governing the Activities of States in the Exploration and Use of Outer Spafce, incluiding the Moon and other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, T.IA.S. No. 6347, 610 U.N.T.S. 205 (hereinafter Outer Space Treaty); Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objestd launched into Outer Space, Apr. 22,1968, 19 U.S.T. 7570, T.LA.S. No. 6599b (hereinafter Rescue Agreement); Convertion on International Liability for Damage caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389 T.I.A.S. No. 7762 (hereinafter Liability Convention); Convention on Registrtion of Objects launched into Outer Space, Jan. 14, 1975 28 U.S.T. 695, T.LA.S. No. 8480 (hereinafter Registration Convention); Agreement governing the Activities of States on the Moon and other Celestial Bodies, UN. Doc. A/34/99 (1979) (hereinafter Moon Agreement).

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10. Outer Space Treaty, supra note 8, Art. XIII.

11. Liability Convention, supra note 8, Art. XXII(l).

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13. See the judgment of the I.CJ. in the North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands) 1969 I.CJ. Rep. 3 (§ 73).

14. See generally Convention Relating to the Regulation of Aerial Navigation (Paris Convention), Oct. 13, 1919, L.N.T.S. 173 (1922), Hudson, vol. I at 359. This Convention described as ‘the cornerstone of air law’ was ratified by 32 nations. See also Chicago Convention on International Civil Aviation, Nov. 1, 1944,1.C.A.O. Doc. 7300/5, T.I.A.S. No. 1591, 15 U.N.T.S. 295. For an comprehensive view of early 20th Century developments in Air Law see I.H.Ph. Diederiks-Verschoor, An Introduction to Air Law (1988).

15. See part II section 3 of the United Nations Convention of the Law of the Sea (Montego Bay) Dec. 10, 1982 (not yet in force).

16. U.N. Doc. A/6352 (1966).

17. Outer Space Treaty, supra note 8, Art. VI.

18. N.M. Matte, supra note 1, at 298.

19. Moon Agreement, supra note 17, Art. XIV.

20. See generally Reijnen, Outer Space Law and Private Enterprise in Outer Space: An International Perspective, 2 Houston Journal of International Law 65–68 (1979); Cocca, Legal Implications of Economic Activities in Outer Space, 24th Colloquium of the Law of Outer Space 19 (1981); Böckstiegel, K.-H.Commercial Space Activities: Their Growing Influence on Space Law, 27th Colloquium of the Law of Outer Space (1984);Google ScholarBourely, M.Rules of International law Governing the Commercialisation of Space Activities, 30th Colloquim on the Law of Outer Space 157–1581 (1987).Google Scholar

21. See generally Brownlie, L Principles of Public International law 38 (1979).Google Scholar

22. Advisory Opinion on the Jurisdiction of the Courts of Danzig (Danzig v. Poland), 1928 P.C.U. (ser. B No 15).

23. Cf. the Cosmos 954 Incident On Jan. 24, 1978 a Soviet space vehicle made an unprogrammed reentry to the earth and fell on Canadian territory. After the initial wranglings, the parties settled the issue. For a detailed information on this incident, see C.Q. Christol, The Modem International Law Of Outer Space 171 et seq. (1982).

24. Outer Space Treaty, supra note 8, Art. VH

25. Cf. Bittlinger, H.Private Space Activities: Questions of International Responsibilities, 30th Colloquium of the International Law of Outer Space (1987).Google Scholar

26. See generally C.Q. Christol, supra note 23.

27. See Outer Space Treaty, supra note 17, Art. VI; U.S. Commercial Space Launch Act 1984,199 U.S.C., § 2605(a).

28. See 49 U.S.C., § 2603(ii), (supp. II 1984).

29. Id.,

30. For an overview of the complex nature of this problem, see Fawcett, J.E.S. Outer Space: New Challenges to Law and Policy 37 et seq. (1984).Google Scholar

31. Substantial ownership, in air law, is normally acquired with a minimum of 51% of the shares, although in certain circumstances a lesser amount is required see Wassenbergh, H.A. Post-War International Civil Aviation and the Law of the Air (1962).Google Scholar

32. Cf. the notion of ‘flags of convenience’ in the law of the sea, see Sorensen, The Law of the Sea 202 (Int. Cone. No. 520, 1958); Bozeck, Flags of Convenience (1962).

33. Kolossov, Y.M.On the Problem of Private Commercial Activities in Outer Space, 27th Colloquium on the Law of Outer Space 66 el seq. (1984).Google Scholar

34. Id. at 67.

35. Bittlinger, H.supra note 25, at 4.Google Scholar

36. U.S. Commercial Space Launch Act, supra note 27; Sweden, Act on Space Activities (1986); United Kingdom, Outer Space Act (1986).

37. Moon Agreement, supra note 8, Art. IV.

38. Alabama Claims Arbitration (United Kingdom v. United States of America), Moore, 1 Int'l Arb. 495 (1872).

39. Outer Space Treaty, supra note 8, Art. VIII.

40. International Telecommunications Union (I.T.U.) Radio Regulations, Art. 1 (1982).

41. Outer Space Treaty, supra note 8, Art VII.

42. Liability Convention, supra note 8, Art. 2.

43. Id. Arts. 3 and 4.

44. Christol, C.Q.supra note 23.Google Scholar

45. For a revealing insight into the problems of liability of the international air carrier in case of injury under the Warsaw system, see Goldhirsch, L.B. The Warsaw Convention Annotated 92 el seq. (1988).Google Scholar

46. Liability Convention, supra note 8, Art XII. This article followed the rule promogated by the P.C.IJ. in the Chorzow Factory Case (merits), 1928 P.C.IJ. Rep. 47 (ser. A No. 17).

47. The Claims Commission is a body to be set up pursuant to artcle XV of the provisions of the Liability Convention by the lauching State and the injured State to determine issues related to compensatioa This Commission is to be set up only after the parties have failed to amicably resolve the issue.