Gormley, W. Paul

English

University of Denver

Denver Journal of International Law & Policy Volume 21 Number 2 Winter Article 11 May 2020 International Legal Problems in the Peaceful Use and Exploration of Outer Space W. Paul Gormley Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation W. Paul Gormley, International Legal Problems in the Peaceful Use and Exploration of Outer Space, 21 Denv. J. Int'l L. & Pol'y 481 (1993)(book review). This Book Review is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. BOOK REVIEWInternational Legal Problems in thePeaceful Use and Exploration of OuterSpaceREVIEWED BY W. PAUL GORMLEY*ANDEM, M., INTERNATIONAL LEGAL PROBLEMS IN THEPEACEFUL USE AND EXPLORATION OF OUTER SPACE, Univer-sity of Lapland, Publications in Law, Series B20, Rovaniemi, Finland(1992); 511 pp.Advances in space science and technology have led to the evolutionof a new rubric of international law that impacts upon public, private,and comparative law. In order to deal with the growing demands imposedby humankind on this embryo branch of jurisprudence, Professor Mau-rice Andem has selected the vital topics of international and regional co-operation in the use and exploration of outer space for peacefulpurposes.'Within the time frame in which the study was composed, the everpresent threat of conflict in space continued to dominate legal and politi-cal efforts to assure global security. From this vantage point, the authorexamines the uses of space in various fields, including space communica-tions, meteorology, and remote sensing.' Andem also raises subsidiary is-sues, such as the significance of resolutions by the United Nations Gen-eral Assembly. Indeed, the significance of resolutions from the Assembly* A.B. San Jose State University; M. A. University of Southern California; Ph.D Uni-versity of Denver; J.D., L.L.M. George Washington University; M.Int. - Comparative Law,D. Jur., Free University of Brussels; L.L.D. Victoria University of Manchester. Member ofthe District of Columbia and United States Supreme Court bars. Formerly, Leverhulme andSimon Fellows, University of Manchester, England.1. MAURICE N. ANDEM, INTERNATIONAL LEGAL PROBLEMS IN THE PEACEFUL EXPLORATIONOF OUTER SPACE 7-8 (1992) (hereinafter cited as OUTER SPACE.)2. Id. at 8. As Judge Manfred Lachs observes in the Preface, "This study is one of themost detailed analysis of progress made in developing rules of conduct for States and indi-viduals to, in and from outer space. Reading it one becomes aware how instruments circlinground the globe had first been a romantic experience and have finally become an importantchapter of man's activities." Id. at v.DENV. J. INT'L L. & POL'Yis one of the recurrent themes of the book. In this regard, Dr. Andem hasunyielding faith in the potential of the United Nations and its efforts topromote world peace, the new international economic order, humanrights, environmental protection (by means of space satellites and spacestations), along with this newer rubric - the law of outer space.sThe legal nature of this contemporary branch of law, and its evolu-tion is examined in Chapter Two. Beginning with a series of resolutionsfrom the United Nations General Assembly,' eventually leading to the1967 Space Treaty,5 the world community embarked on a period of coop-eration (even though the two superpowers dealt with each other at "armslength") that had the potential of strengthening experiments directed to-ward world peace. For instance, the Committee on the Peaceful Uses ofOuter Space (COPUOS) and its sub-committees adopted the effectiveconsensus procedure for voting.6The author acknowledges states are the primary subjects of spacelaw, 7 but argues that international organizations should be recognized assubsidiary subjects, because of the missions they must fulfill. In the fieldof space law, the sovereign state remains supreme, and the changes per-fected in public international law8 have yet to be transferred or incorpo-rated into the law of outer space. Though rejecting the view of individualsand groups as subjects of international law, the author softens his view inthe concluding chapter when he speaks of mankind and humanity.9 In-deed, Dr. Andem notes the role to be assumed by individuals, privateenterprises and the human race when they utilize space for peacefulpurposes.3. Maurice N. Andem, International Law as an Evolutionary and Dynamic Legal Sys-tem - With Special Reference to the New International Economic Order, 2 FINNISH Y. B.INT'L L. 395 (1992); and Maurice N. Andem, The 1985 NIGA Convention and the Promo-tion and Protection of Foreign Investment, 3-4/1987 KANSAINOIKEUS lus GENTIUM 237(1987).4. From 1958 through 1966 the United Nations General Assembly adopted a series ofresolutions that are still binding on U.N. members. See G.A. Res. 1721 (XVI), G.A. Res.1802 (XVII), and G.A. Res. 1962 (XVIII), discussed at pp. 16-20.5. Treaty on Legal Principles Governing the Activities of States in the Exploration andUse of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T.2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205.6. OUTER SPACE, supra note 1, at 27-29.7. I. H. Ph. Diederiks-Verschoor and W. Paul Gormley, The Future Legal Status ofNongovernmental Entities In Outer Space: Private Individuals and Companies as Sub-jects of International Law, 5 J. SPACE L. 125 (1977). MYRES S. McDoUGAL, HAROLD D. LASS-WELL, AND IVAN A. VLASIc, LAW AND PUBLIC ORDER IN SPACE (1963).8. W. PAUL GORMLEY, THE PROCEDURAL STATUS OF THE INDIVIDUAL BEFORE INTERNA-TIONAL AND SUPRANATIONAL TRIBUNAs 7-126, 127-184 (1966).9. The imperative of his position must not be minimized, for as he concludes, "It isnecessary to emphasize that their present and future participation in outer space activitieseither individually or jointly with states and international organizations, will not in any waygrant them the status of subjects of international law of outer space. They, as a matter offact, shall continue to be subjects of the applicable domestic law of states," OUTER SPACE,supra note 1, at 39.VOL. 21:2INTERNATIONAL LEGAL PROBLEMSIn support of this position, Chapter Three examines the future im-pact of emerging international law, state practice, the legal force exertedby resolutions from international institutions, and judicial decisions. Spe-cial attention is devoted to the potential role of the International Court ofJustice"0 to resolve outer space and environmental disputes.The substantive portion of the book begins with Chapter Four, whereDr. Andem discusses significant areas of agreement between sovereignstates on the differences between air and outer space. While outer spaceis governed by the 1967 Space Treaty," air space above a state's territoryis regulated by the Chicago Convention on Civil Aviation of 1944.2 Herethen, is an area in which states have cooperated for the purpose of facili-tating communication and transportation. However, a major impasse re-mains unresolved, i.e. the delimitation between air and outer space. De-spite cooperation between the members of COPUOS, the boundaryremains unsettled. The author proposes 80 kilometers as the upper limitof air space in his final chapter. This limit needs to be set, since somesupersonic aircraft can fly into outer space, whereas space vehicles andsatellites must necessarily pass through air space. Moreover, multi-pur-pose vehicles are, being developed by the United States and Russia.In order to deal with this unresolved subject, the opening portions ofthe chapter present a historical review of the main theories governing airlaw. Next, Andem analyzes the evolution of the United Nations' conceptof freedom of outer space. Necessarily, the major issues to arise center onthe exploration of outer space. Proposals for joint undertakings betweenthe United States and Russia, along with other industrialized states, arecurrently being considered. Dr. Andem argues that comprehensive solu-tions are sought in order to create a zone of peace in outer space.From this premise, Chapter Five delves into the above mentioned is-sues, particularly by discussing the Bogota Declaration 3 in relation to thegeostationary orbit. A valuable survey of the viewpoints offered by states,international organizations and scholars are reexamined in order to deter-mine the limits of outer space and its future potential. Once again Dr.Andem returns to one of his categorical imperatives when he argues thatthe' "exploration and use of outer space, including the moon and othercelestial bodies, shall be carried out for the benefit and interests of allcountries, irrespective of their degree of economic or scientific develop-ment, and shall be the province of mankind. .. "" Underlying this themeis the norm of non-appr6priation, as embodied in the Space Treaty.10. Id. at 62-64.11. See Treaty, supra note 5.12. Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, T.I.A.S. No.1591, 15 U.N.T.S. 295. See I.H. PH. DIEDERIKS-VERSCHOOR, AIR LAW (3ed. 1988).13. ITU, Broadcasting Satellite Conference, Doc. No. 81-E, Annex 4 (Jan. 17, 1977).See also, CARL Q. CHRISTOL, THE MODERN INTERNATIONAL LAW OF SPACE 466-69, 514-31(1982); OUTER SPACE, supra note 1, at 159 if.14. OUTER SPACE, supra note 1, at 177.1993DENV. J. INT'L L. & POL'YChapter Six deals with the demilitarization of outer space, the moonand other celestial bodies. In support of his premise that the commoninterests of mankind will hopefully guide the conquest of the universe,Dr. Andem presents a detailed analysis of germane United Nations treatyarticles and views of jurisconsults. The immediate goal is broader partici-pation of states in applications of space sciences such as remote sensingof earth resources, protection of the environment, meteorology, spacemedicine, and joint projects (i.e. the construction of solar transportationsystems and space stations).With Chapter Seven, the focus shifts toward the primary applicationof space technology. Specifically, the final three substantive chapters(seven through nine) deal with earth based satellites, the use of communi-cation satellites and technology in space, and the resulting corpus of law.Beyond question, the employment of communication satellites continuesto be one of the most important aspects of this newer division of commu-nications law, which has evolved from the regulation of air waves. Spacecommunication is a field within a larger entity (i.e. space law), however,that acts concurrently with other categories of international law. For ex-ample, the employment of artificial earth satellites has necessitated a net-work of agreements, the creation of major international satellite systems(INTELSAT, INTERSPUTNIK and IMARSAT), and proposals seekingan umbrella international agency within the structure of the United Na-tions. Incorporated within the scope of these umbrella institutions, na-tional and regional satellite systems have been perfected for the benefit ofmaritime and aeronautical sensing. In excess of one hundred and twentycountries have cooperated in these regional and world-wide ventures. Thesuccess of the Indian satellite instructional television experiment, basedon an agreement between the United States and India is one example.Additional examples from Africa and the Andean sub-region illustrate theextensive scope of national and regional satellite undertakings.Numerous legal questions arise from direct television and radiobroadcasting, owing to ITU regulations imposing some limitations onstates and private parties. Steps have been taken to regulate broadcastsby the United Nations General Assembly under the provisions of Resolu-tion 37/92 of 10 December 1982, which carries the text of the PrinciplesGoverning the Use by States of Artificial Earth Satellites for Interna-tional Direct Television Broadcasting.15 These principles are in factguidelines that may in the future be implemented by the ITU. ProfessorAndem concludes that these IDTBS principles will contribute to the pro-motion and strengthening of mutual understanding by facilitating thefree flow of information through the exchange of scientific and educa-tional ventures.The underlying theme of international cooperation is carried forwardinto Chapter Eight, Satellite Meteorology, an area of particular impor-15. Id. at 280 n.93, citing U.N. Doc. A/RES/37/92 (4 Feb. 1983).VOL. 21:2INTERNATIONAL LEGAL, PROBLEMStance especially to the developing world. States have cooperated and re-frained from imposing defenses of sovereignty in the field of weather fore-casting, as evidenced from the high level of cooperation between theUnited States and the USSR in the early days of satellite monitoring.With the perfection of satellite technology, it became possible to predictimpending atmospheric changes. Hence, advanced warning made it possi-ble for regions, states and individuals to take preventive measures. As aresult, damage from severe storms and hurricanes could be reduced. Ad-vanced warning are especially helpful to developing countries, which pos-sess limited resources to deal with the aftermaths of natural catastrophes.Numerous programs of WHO are examined (World Weather Watch(WWWP) and the Tropical Cyclone Programme (TCP), along with re-lated efforts by other U.N. and multinational organs (e.g. UNESCO,ICAO, ITU and ESA). These numerous organizations have perfected aneffective system for the utilization of space technology. The primary ex-amples cited in the book involve NOAA of the United States, METEORof the Russian Republic, INSTAT of India and GMS of Japan. Othernational satellites, along with METEOSAT (of EUMETSAT) form por-tions of this global meteorological structure. Dr. Andem proposes the ex-isting meteorological satellite system be improved, rather than attempt-ing to create additional regional organs.The message emerging from this chapter (and similarly from thethree chapters dealing with space satellites) is that this area has achievedthe highest level of multinational cooperation and coordination. Valuablepolitical and legal precedent has been created that can be employed inthe future when bolder attempts are made to establish a functional orderfor both inner and outer space. Here then is guidance not only for states,but likewise for COPUOS.Although sensing by meteorological satellites is one of the oldest andmost successful applications of space science, one of the newer fields -and presently the most controversial - is the sensing of earth resources.Interestingly, considerable overlapping and concurrent jurisdiction existsbetween meteorological and resource sensing. The author observes thesesystems are complementary. In fact, he concludes that at some pointother systems will overlap with remote sensing.Ever present throughout Dr. Andem's discussion is the partially re-solved, though potentially dangerous, clash between state sovereignty andthe unrestricted use of space. Non space powers, especially developingcountries, strongly oppose the remote sensing of their territories (i.e. landmasses and territorial seas) because the acquisition of such data placesthe sensed state at a distinct disadvantage. A defense of sovereignty isimposed without success since the norm of freedom of outer space pre-dominates. Against this background, Dr. Andem supports the free dis-semination of sensed data and refined information. However, he seeks so-lutions that will protect the poorer and less industrialized states bymeans of cooperation within a United Nations framework that incorpo-rates the participation of specialized agencies. That is, the concept of the1993DENV. J. INT'L L. & POL'Yfree dissemination of data must be applied in such a fashion as to protectthe privacy and confidentiality of sensed states and regions.Following a review of earlier conventions,16 Dr. Andem bases his posi-tion to a considerable degree on the Principles Relating to Remote Sens-ing of the Earth From Space, 7 which are the result of fifteen years ofsustained study and negotiation by COPUOS. Dr. Andem implies thesefifteen principles can serve as the basis for future action, as for examplein the area of peaceful settlement of disputes. 8The author's detailed analysis serves as the groundwork for his finalconclusions. As was typical of the preceding chapters, he has the abilityto select those international and regional instruments that are contribut-ing to the evolution of a complete corpus of international space law. Con-sistently, current (and historical) accomplishments are employed as step-ping-stones to ultimate objectives, the main one being the perfection of anew "specialized international agency similar to the International AtomicEnergy Agency (IAEA) of the World Meteorological Organization (WMO)to coordinate and monitor all remote sensing activities."' 9 This new spe-cialized agency would be responsible for dealing with, and possibly dis-seminating, data and information received from remote sensing, and alsostrive toward the eventual unification of existing remote sensing programsand projects.Recommendations are offered in an effort to firmly base this newcorpus of international space law in reality. One major step will be a moreaggressive and far-reaching approach by COPUOS and its two sub-com-mittees (the "Scientific and Technical" and "Legal") in the search fornew solutions. Their prior record, as demonstrated in the book, is out-standing. Not only has COPUOS achieved considerable success duringthe prior decade in developing space science and law, it has also served asa model for organizations dealing with other rubrics of law.Concerning the future status of the geostationary orbit, including ra-dio frequencies, Dr. Andem proposes that satellite operators comply withthe provisions of the ITU Convention and the Final Acts of the WorldAdministrative Conferences. Within this context he recommends thatnew systems be established within the orbit on a regional and global ba-sis, with the participation of all states.Recommendations such as the verification of disarmament measuresare set forth, and as could have been anticipated from the underlyingtheme of the implementation of environmental protection throughout the16. Convention on the Transfer and Use of Data of Remote Sensing of the Earth FromOuter Space, U.N. Doc. A/33/162 (June 21, 1978); discussed in MORRIS D. FORKOSCH, OUTERSPACE AND LEGAL LIABILITY 184-85 (1982); W. Paul Gormley, Outer Space and Legal Liabil-ity, 10 BROOKLYN J. INT'L L. 581 (1984) (book review).17. For a discussion of the draft articles, see OUTER SPACE, supra note 1, at 387-401(and the sources cited).18. See, e.g., id. at 400-01.19. Id. at 402-03.VOL. 21:2INTERNATIONAL LEGAL PROBLEMSbook, recommendations are advanced that are designed to protect theearth's fragile ecology.Dr. Andem's final thoughts are directed toward future regimes, asmankind seeks to utilize the resources of the universe. Central to his pro-posals is the increasing position of the United Nations, "as the center ofinternational cooperation and for codification and progressive develop-ment of contemporary international law."20 As a counterpart, COPUOSwill periodically review the effectiveness of existing outer space conven-tions in attempting to achieve the final regime for peaceful purposes thathave been advanced throughout this excellent study.220. Id. at 426.21. Manfred Lachs, Preface, id. at x (footnote omitted). Lachs concludes, "This impactof scientific and technological progress has also led to some radical changes in the classicalconcepts and theories in contemporary international law and international relations."1993

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