Abstract
Space Law is deemed to be a branch of International Law and follows the dictum of pacta sunt servanda. This implies that specialibus treaties and conventions operate between “signatories and ratifiers”. It thus becomes a moot question whether the Space Law is applicable to other states and equally obligatory on them or that defiance is conceivable, maybe to facilitate the cause of non-state actors. This apprehension magnifies because except for Outer Space Treaty, ratifications for other conventions and agreements are rather limited. Thus, the sweep of Space Law is not global despite UN initiatives and Resolutions. There is however limited consensus that Outer Space Treaty, because of its wide acceptance, can be treated as Customary Law of Outer Space. Because its obligatory ambit is wide enough to be effective on space-faring states though not universal enough to cover all states, present and future. This needs judicious advocacy by space scholars to propagate OST as customary norms. By itself, Outer Space Treaty is one of the finest international instruments embodying new jurisprudence (non-appropriation principle, access to space for all states, even non-members), some principles of jus naturale (Common Heritage of Mankind and Sharing of Scientific Information and International Cooperation) and some established tenets of International Law (state responsibility and liability concept). International Law has its jus cogens as peremptory norms binding on all states. It seems desirable to select and evolve some precepts of OST as Jus Cogens of Space Law. These need no declaration or acceptance by any sovereign authority yet tend to become binding as supra-law. To attain this status, the selected principles need to be “lobby-ed” for opinion juris of Space Law scholars. This is a call in this direction.
This is a preview of subscription content, log in via an institution to check access.
Notes
- 1.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 1967. In short OST.
- 2.
Anthony D’Amato, “International Law as an Autopoietic System”, in Rudiger Wolfrum and Volker Robens, eds, Developments of International Law in Treaty Making, (Berlin, 2005), pp. 335–399.
- 3.
For example, analogous regimes of Antarctica and High Seas and aspects of International Laws like state responsibility, state liability.
- 4.
Details of these instruments have been cited wherever relevant.
- 5.
Note 1 supra.
- 6.
Detlev Wolter, “Common Security in Outer Space and International Law”, (UN Institute of Disarmament Research, Geneva, 2005), p. 111. UNIDIR/2005/29.
- 7.
Fenwick, Charles G., International Law, Vakils, Feffer and Simons Private Ltd, Bombay, 1965, p. 88. Words in parenthesis added for clarity.
- 8.
For a detailed and erudite discussion on the subject refer Posner, Eric A., Law and Social Norms, (Delhi, Universal Publishing Company, 2009), First Indian Reprint, pp. 4 ff.
- 9.
Oppenheim’s International Law, Vol. I, Peace, Seventh Edition by H. Lauterpacht, (Orient Longmans Ltd, 1952), p. 25.
- 10.
In short opinio juris.
- 11.
Fenwick, Charles G., International Law, (Vakils, Feffer and Simons Private Ltd, Bombay, 1965), p. 88. Words in parenthesis added.
- 12.
Ibid.
- 13.
Oppenheim’s International Law, Vol. I, Peace, Seventh Edition by H. Lauterpacht, (Orient Longmans Ltd, 1952). p. 24.
- 14.
Perambulatory Clauses to the OST, supra, n. 1.
- 15.
This Resolution was passed without vote in the UN General Assembly.
- 16.
Resolution 1962 (XVIII) of 13 December, 1963.
- 17.
This Treaty, referred to as OST in short, was adopted through General Assembly Resolution 2222 (XXI) on 19 December, 1966. The Treaty was opened for signatures on 27 January, 1967 and entered into force on 10 October, 1967.
- 18.
Bin Cheng, “United Nations Resolution on Outer Space: Instant International Customary Law?” in Indian Journal of International Law, vol. 5 (1965), pp. 23–48.
- 19.
D.G. Mejia-Lemos, “Some Considerations regarding “Instant” International Customary Law, fifty years later” in IJIL, vol. 55, No. 1, March, 2015, p. 87.
- 20.
This aspect was considered by ICJ in Fisheries Jurisdiction Case (1974) in relation to Law of the Sea.
- 21.
For a detailed analysis, refer D.G. Mejia-Lemos, “Some Considerations regarding “Instant” International Customary Law, fifty years later” in IJIL, vol. 55, No. 1, March, 2015, pp. 85–108.
- 22.
Manfred Lachs, The Law-Making Process for Outer Space, in Edward McWhinney and Martin Bradley, New Frontiers in Space Law, (New York, AW Sijthoff, 1969), pp. 18–19. Very few Declarations have been adopted in this manner. Other examples are the Universal Declaration of Human Rights or International Covenant on Civil and Political Rights et al.
- 23.
Ibid.
- 24.
Second Report of ILC on Formation and Evidence of Customary International Law (2014). UN Doc. A/CN 4/672 (2014), 7[21-22]-.
- 25.
D.G. Mejia-Lemos, note 21 supra, p. 106.
- 26.
Adopted on 13 December, 1963. Ogunsola O. Ogunbanwo, International Law and Outer Space Activities, (The Hague, Martinus Nijhoff, 1975), p. 14.
- 27.
Manfred Lachs, “The Law-Making Process for Outer Space”, in Edward McWhinney and Martin Bradley, New Frontiers in Space Law, (New York, AW Sijthoff, 1969), p. 22.
- 28.
D.G. Mejia-Lemos, note 21 supra, p. 100.
- 29.
Accessed from internet on 22 June, 2016.
- 30.
Starke’s International Law, Eleventh Edition by I.A. Shearer (London, 1994), p. 3.
- 31.
Charles G. Fenwick, International Law, Second Indian Reprint (Bombay, 1967), pp. 56–57.
- 32.
Benjamin N. Cardozo, The Nature of Judicial Process (New Havens, 1921), pp. 104–105.
- 33.
A Latin maxim meaning “Compelling or Strong Law.”
- 34.
Alfred Verdross, Jus Dispositivum and Jus Cogens in International Law, 60 Am. J. Int’l L. (1966), p. 55.
- 35.
Concept of jus cogens includes crimes such as slavery, torture, racial discrimination, murder and the like.
- 36.
Evans J. Criddle and Evan Fox-Decent, A Fiduciary Theory of Jus Cogens, Yale Journal of International Law, vol. 34:331–387.
- 37.
Georg Schwarzenberger, “International Jus Cogens?” 43 Texas Law Review (1965).
- 38.
Interestingly, Russia (erstwhile USSR) is a strong votary of this concept. Refer Michael Akehurst, A Modern Introduction to International Law, Third Edition, (London, Fourth Impression 1980), p. 46.
- 39.
Panchsheel is a Sanskrit word meaning five principles.
- 40.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967. Article I.
- 41.
Ibid, Article I, para 1.
- 42.
Detlev Wolter, Common Security in Outer Space and International Law, UN Institute of Disarmament Research, Geneva, 2005, p. 85. UNIDIR/2005/29.
- 43.
Note 1 supra, Article II.
- 44.
Agreement Governing the Activities of the States on the Moon and Other Celestial Bodies, 1979, art 4.
- 45.
Ibid, Article 4 (1). This principle comes closest to the concept of Co-Parcenary of Hindu Law which cannot be dissolved but benefits shared jointly and equitably between all co-parceners, present and future.
- 46.
Ibid, Article 4 (2).
- 47.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967, Article I.
- 48.
Ibid, Article IX.
- 49.
Ibid, Article III.
- 50.
Ibid, Article II.
- 51.
Ibid, Article I.
- 52.
Ibid, Article IX.
- 53.
Ibid, Article IX.
- 54.
Ibid.
- 55.
The new concepts of state responsibility relate to, for example, war and aggression, coercion of minorities, denial of freedom by colonial powers and now extended to international and inter-governmental organizations.
- 56.
Tunkin, G.I., International Law, (Moscow, Progress Publishers, English translation, 1986), p. 223.
- 57.
Barcelona Traction, Light and Power Co. (Belgium v. Spain) 1970 ICJ 3, 32 (5 February, 1970).
- 58.
Oscar Schachter, International Law in Theory and Practice, (1985): 264.
- 59.
The Vienna Convention of the Law of Treaties, Article 53.
- 60.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967, Article VI.
- 61.
OST, ibid, Article IX.
- 62.
OST, ibid, Article IV.
- 63.
Ibid.
- 64.
The Moon Treaty is popular abbreviation for Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 1979. This was adopted by the UN General assembly by Resolution 34/68 of 5 December 1979. Text within brackets has been taken from the Treaty.
- 65.
FOBS is Fractional Orbital Bombing System under which a bomb carrying satellite does not remains in entire orbit around the Earth but for a part of it and thus not violate the Treaty provision.
- 66.
G.S. Sachdeva, Outer Space: Security and Legal Challenges, (New Delhi, KW Publishers, 2010), pp. 161–85.
- 67.
OST, note 1 supra, Article V.
- 68.
Ibid, Article VIII.
- 69.
Ibid.
- 70.
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968.
- 71.
Benjamin N. Cardozo, The Nature of Judicial Process, (New Haven, 1921), pp. 104–5.
- 72.
The Vienna Convention of the Law of Treaties, Article 53.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2017 Springer Nature Singapore Pte Ltd.
About this chapter
Cite this chapter
Sachdeva, G.S. (2017). Select Tenets of Space Law as Jus Cogen . In: Rao, R., Gopalakrishnan, V., Abhijeet, K. (eds) Recent Developments in Space Law. Springer, Singapore. https://doi.org/10.1007/978-981-10-4926-2_2
Download citation
DOI: https://doi.org/10.1007/978-981-10-4926-2_2
Published:
Publisher Name: Springer, Singapore
Print ISBN: 978-981-10-4925-5
Online ISBN: 978-981-10-4926-2
eBook Packages: Law and CriminologyLaw and Criminology (R0)