Studies in International Space Law

Studies in International Space Law. By Bin Cheng. Oxford, New York: Oxford University/Clarendon Press, 1997. Pp. lxviii, 798. Index. $130, 65.

The extraordinary growth of space law occurred in the context of an international system that was based on the Cold War between the two superpowers and space powers. While one might think that this system was based exclusively on conflict and competition, there was much cooperation, which is apparent in the consensus development of five international treaties, six UN General Assembly resolutions, and numerous bilateral and multilateral agreements. Much of this law owed its inception to the work of the UN Committee on the Peaceful Uses of Outer Space (COPUOS).

In this volume of his collected writings, Bin Cheng, emeritus professor of air and space law at the University of London, analyzes and elucidates the space treaties and resolutions, the full texts of which are reproduced in the appendix. In addition, Cheng provides the reader with an extensive list of acronyms and abbreviations, a glossary of foreign words and technical terms, a table of cases (though mainly from the International Court of Justice rather than from national courts addressing issues of space law), and many maps, tables, and figures. The book’s twenty-six chapters comprise articles or chapters that he published between 1956 and 1995. The first chapter, written before the 1957 flight of Sputnik, is an examination of the International Geophysical Year (July 1, 1957 to December 31, 1958) in which he argues, inter alia, that the “freedom of outer space is thus closely analogous to that of the high seas” (p. 10)-a prescient remark. The most recent chapter is on international responsibility and liability for launch activities, in which he pointedly asserts that there is an upper limit to air space, over which states have sovereignty, and then outer space begins, in which states have no sovereignty. He writes that “outer space begins at least from the point of the lowest perigee of any artificial earth satellite so far recorded” (p. 601)-a controversial and not so prescient proclamation.

The book’s chapters are not in chronological order but are grouped around six themes, the first of which is “International Law and Space Law.” Here he examines space law as part of the development of international law in general. He compares air law to space law, a subject that he returns to in the epilogue. His often reiterated point is that in space law there can be instant, or quickly agreed upon, customary international law (for example, regarding the limits of state sovereignty over outer space), whereas in air law the lawmaking process is typically long and slow (as in developing a treaty on the unlawful seizure of aircraft). Further, as is acknowledged in Article 34 of the 1969 Vienna Convention on the Law of Treaties, “A treaty does not create either obligations or rights for a third State without its consent.” Vis–vis outer space, Cheng contends, “All the rules of international law governing the attribution and exercise of all types and all elements of State jurisdiction are fully applicable extraterrestrially” (p. 87). Here he posits that outer space is not rex communis omnium, implying joint state sovereignty, but res extra commercium, implying that it is not subject to national appropriation. This point, made in 1965, was fulfilled, as discussed below, in Article II of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty).

The second and third themes of the book concern the powerful role of the United Nations in the development of space law. Cheng analyzes, in particular, the five space treaties and the preceding UN resolutions. In addition to the Outer Space Treaty, the treaties are the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space (1968), Convention on International Liability for Damage Caused by Space Objects (1972), Convention on Registration of Objects Launched into Outer Space (1975), and Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979) (Moon Agreement). While Cheng examines these treaties in great detail, three of their articles are especially worth highlighting here. The first is Article II of the 1967 Outer Space Treaty, which provides: “Outer Space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” This farsighted provision limits old-fashioned territorial claims that have given rise to so many wars and conflicts in the past. Periods of dtente and limited cooperation were, indeed, very much part of the Cold War dynamic. The Cold War was not an unrelenting zero-sum game. Of course, the military use of space was not completely forbidden, as we can observe in earth-orbit military reconnaissance satellites, remote-sensing satellites, military global-positioning systems, and space-based aspects of an antiballistic missile (ABM) system. But in another important article of the same 1967 Treaty, weapons of mass destruction (WMD) were prohibited. In particular, Article IV provides: “States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.”

Also worth making special note of is Article 11 of the Moon Agreement, which states that the “Moon and its natural resources are the common heritage of mankind.” Though this agreement was the last treaty of the early, glory years of space law, its particular history has been less than glorious despite its having originally achieved a consensus within COPUOS. While agreeing to it in COPUOS, neither the United States nor the Soviet Union (now the Russian Federation) has ratified the treaty, which has been ratified by only ten states-versus the ninety-eight that have ratified the Outer Space Treaty. The main sticking point is Article 11 of the Moon Agreement and its reference to the “common heritage of mankind”; most spacefaring states believe that any international regime established under this article will prove to be a politically dysfunctional, economically inefficient, global bureaucracy. But as Cheng points out, “These provisions, in fact, amount to relatively little” (p. 161) because states obligate themselves only to negotiate in good faith on establishing a regime to protect the moon as a common heritage of mankind. The exact substance of the regime is not specified.

The book’s fourth section, “Outer Space, Astronauts, and Space Objects,” sometimes repeats explanations and arguments made earlier, such as the point that there should be a definite boundary between air space and outer space. His early (and continuing) support for a territorial line rather than a functional one is well apparent, but the dire consequences that he has predicted-from not immediately coming to a spatial definition-have not occurred, thus lending weight to the U.S. functional conception.

The fifth section concerns military uses of space. Of special interest here is Cheng’s disagreement with the U.S. position that the term “peaceful” in the Outer Space Treaty means “non- aggressive” and not “non-military” (p. 515). He interprets Article IV of that Treaty in light of Article I of the Antarctic Treaty (1959), which pro vides: “Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military manoeuvres, as well as the testing of any type of weapon.” Further, Cheng believes that a parsimonious reading of Article II of the Outer Space Treaty clearly indicates, contrary to the U.S. position, that “peaceful” in Article IV means nonmilitary and not merely nonaggressive; under international law in general-for example, the UN Charter-aggression is already a violation of international law. he refers here to Article 2 (4) of the Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Cheng is very critical of the United States and Soviet Union as superpowers, and he finds the U.S. position to be “[p]otentially [n]oxious” (p. 521) in its consequences; if other countries were to adopt that interpretation, they would all begin building “non-aggressive bombs” (p. 522). He also notes, however, that there is a problem or limitation with the Treaty itself: the “limitation to use space exclusively for peaceful purposes . . . applies only to the moon and other celestial bodies and does not apply to the vast empty space in between” (p. 529). Certainly in this space, which he somewhat awkwardly calls the “outer space void” (id.), there are many orbits where military programs are proceeding- including the new U.S. ABM system (which does not otherwise violate \international law, because the U.S. withdrew from the ABM Treaty in 2001, after the writing of Cheng’s book).

The final section of the book covers the commercial uses of outer space. Here Cheng examines communications satellites and the establishment of INTELSAT and INTERSPUTNIK. Inasmuch as his analysis was written in 1971, it is basically of historical interest because now these organizations and others set up by treaty (for example, INMARSAT and EUTELSAT) have been privatized. Cheng examines the remote-sensing industry by looking at the workings, for example, of Landsat, EOSAT, and Spot Image, and also at the UN Principles Relating to Remote Sensing of the Earth from Outer Space (1986). As he demonstrates, “Perhaps the only thing that potentially sensed and non-sensing States managed to get out of the whole 15-year exercise is to be found in Principle XII” (p. 593), which gives the sensed state access, on a nondiscriminatory basis and at a reasonable cost, to primary and processed data. Cheng points to a responsibility of states to supervise the activities of their private corporations in space, an obligation under Article VI of the 1967 Outer Space Treaty. This issue is currently under active discussion because some individuals and firms wish to claim private property rights on the Moon in violation of Articles II and VI of that Treaty. Cheng’s mentions, too, the need for new treaties on commercial space flights. We are now witnessing the presence of tourists, and not just astronauts, in space, and the future will bring the human presence in space beyond low earth orbit.

The epilogue, written in 1986, elucidates the contribution of air and space law to international law in general. Cheng contends that these two branches of international law have “probably contributed more to the understanding and development of general international law than any other branch of international law” (p. 671). Though arguably an overstatement, it is nevertheless true that a happy congruence of interest led the two space powers during the early years of the Space Age to fashion new law of far-reaching scope. As Cheng says, realistically, in lawmaking some states are more equal than others, but once law is made, it applies equally to all. It would violate one’s sense of justice were it otherwise, as Cheng continually reminds us through his forceful writing and sharp wit.

JONATHAN F. GALLOWAY

Lake Forest College

Copyright American Society of International Law Jul 2004