Do space laws need to be modified?

Laws on outer space should ensure that

Published: Monday 31 July 2006

Do space laws need to be modified?

-- In the first week of October 2006, Valencia in Spain will host the 57th meet of the International Astronautical Congress. On the meet's anvil will be legal issues related to space exploration, matters pertaining to international cooperation in remote sensing and the issue of government and private sector forays into outer space. Delegates to the congress will also discuss if the current space laws should be modified during times of armed conflict.

But what exactly is space law? Simply put, it's part of international jurisprudence related to outer space. It follows customary practice in defining outer space, the region 100 km beyond the earth's surface. Below this region is airspace. The boundary between airspace and outer space has, however, not been defined by any international agreement. The un sees it as an unresolved legal issue. This lacuna might create difficulties if the traditional distinction between airspace and outer space lapses. By the shape of things as they stand today, this might not be very far of. Hyderabad's new airport, for example, is likely to have facilities for crafts taking off for aerospace.

Sovereignty over outer space is another contentious issue, though there is panoply of laws to deal with it. These include the Space Treaty of 1967; the agreement on rescue of astronauts, 1968, the Convention on Liability for Damage by Space Objects, 1972; the Convention on Registration of Space Objects 1975 and the Agreement for Activities on Moon and Other Celestial Bodies, 1979. Besides, the un has also made some declarations on remote sensing of Earth's resources and on using outer space for benefit of all countries, particularly the developing ones. The world body also has enunciated the principles relating to use of nuclear power resources in outer space.

Self defence This is an ambiguous area with potentials of a flare up. un's charter does state that outer space and celestial bodies are free for exploration and use by all states in conformity with international law, and they are not subject to national appropriation. But the charter's Article 51 also provides the right to self-defense. It states that "nothing in the present Charter shall impair the inherent rights of individual or collective self-defense if an armed attack occurs against a un member, until the Security Council has taken measures for maintaining peace and security". Though this provision was enunciated in 1945, much before space explorations began, it also extends to outer space.

After 9/11, the us government has called for the invocation of this provision. France has also expressed a similar desire, and even India has announced a policy to shoot down aircraft, if faced with security threat. In this context, we must remember that the Chicago Convention of 1944 -- which deals with air space -- was amended in 1984 after authorities of the former Soviet Union shot down a civil airplane, which had strayed into its territory. The amended convention prohibited use of force against civil aircraft. But this might be flouted now specially with the ambiguity over boundaries between airspace and outer space.

Matters such as these will surely come up at the Valencia meet. The participating delegates will do well to remember that the un Charter does not permit militarisation of outer space, nor does it allow nuclear weapons in the earth's orbit. It, however, does permit the use of military craft for the scientific exploration of outer space. The doctrine of self-defence in armed conflict requires urgent examination by scholars and nation states.

The theme of the Valencia conference is bringing space closer to people. The control over nuclear proliferation and militarisation of space has to be seen in this context. Space exploration has given humankind a new tool with which they can understand nature. It's proper that nations remember that.

S Bhatt was formerly professor of space law, and is currently honorary professor of International Law School of International Studies, Jawaharlal Nehru University, New Delhi. He is also adviser, United Nations (ICAO)

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