9
Air space and outer space
9.1 Air space
9.1.1 Access to and overflight through national air space
The status of airspace has undergone significant evolution over the past century. As pointed
out, in the early twentieth century, “even military aircraft were sometimes able to fly freely
over foreign territory.”1 Limitations began gradually emerging around that time, mainly
through national legislation and practice, asserting territorial sovereignty and essentially
turning landing and transit facilities into commodities to be negotiated at a price. 2 The first
bilateral agreement on this matter, the 1913 exchange of notes between France and
Germany, stipulated that aircraft belonging to military service of one party could not fly over
the territory of another party except upon the latter’s invitation. However, civilian aircraft
could fly over and land on the territory of another State, subject to compliance with some
national regulations as to exclusion zones.3
The 1919 Paris Convention was the first multilateral treaty on the use of air space (even
though it was not widely ratified). Article 1 “recognise[d] that every Power has complete and
exclusive sovereignty over the air space above its territory.” But that was accompanied by a
far-reaching obligation under Article 2 “to accord freedom of innocent passage above its
territory to the aircraft of the other contracting States”. Furthermore, Article 15 prescribed
that “Every aircraft of a contracting State has the right to cross the air space of another State
without landing”. The Paris Convention extended this regime to all aircraft, including
military.
And, as though providing another leg to the above restriction, Article 5 suggested that “No
contracting State shall, except by a special and temporary authorisation, permit the flight
above its territory of an aircraft which does not possess the nationality of a contracting
State.” On the face of it, thus, the Paris Convention purported to create a special multilateral
regime premised on obligations of a non-reciprocal nature.4
Against this background, it is difficult to assume that customary international law could
have countenanced any general right of overflight or landing for any type of aircraft, given
that whenever necessary such rights were conventionally stipulated. The customary rule has
been that aircraft from one State have a right to fly over the high seas, but not over the
territory or territorial sea of another State. This rule is reaffirmed in Article 1 of the 1944
Chicago Convention on International Civil Aviation which states that “every State has
complete and exclusive sovereignty over the airspace above its territory”.5 Over the high
seas, overflights over warships and oil platforms are not generally prohibited.
Different treaties have regulated the overflight rights based on the differentiation between
various types of aircraft. Civilian, State and military aircraft are regulated separately.
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Under Article 30 1919 Paris Convention, State aircraft included military aircraft, as well
as “Aircraft exclusively employed in State service, such as Posts, Customs, Police.” However,
“All State aircraft other than military, customs and police aircraft shall be treated as private
aircraft.” The 1944 Chicago Convention6 acknowledges the dual regime applicable to State
aircraft and civil aircraft; State aircraft as broadly conceived include military, customs and
police aircraft. Unlike overflight prohibition applicable to military aircraft, specifically under
Article 32 Paris Convention, Article 3(c) 1944 Chicago Convention extends the overflight and
landing prohibition to all State aircraft broadly defined.
It is a serious breach of international law for a State to order its aircraft to violate the air
space of another State. In the period between 1950 and 1960, a number of aerial incidents
occurred in which American military aircraft were attacked, forced to land or shot down and
their crews interned by Hungary, the USSR and Czechoslovakia. 7 The United States took the
view that the use of force was unjustified because the aircraft were either flying over
international waters or had strayed inadvertently into foreign air space.
In May 1960, when a United States U2 reconnaissance aircraft was shot down over the
Soviet Union, the Soviet Union cancelled a summit conference with the United States in
protest against the violation of its air space.8 Apparently the United States did not protest
against the shooting down of the U2. Other States and the International Civil Aviation
Organization (ICAO) believe that civil aircraft must never be attacked in such circumstances.
On the other hand, civilian aircraft which enter the air space of another State without that
State’s consent can be ordered to leave or to land, and the State whose air space has been
violated can protest to the State in which the aircraft are registered if such orders are
ignored.9
This matter continued to arise for decades during international crises – for instance a US
plane was shot down over Cuba during the 1962 missile crisis. In 1981, the ICAO
recommended to its member-States that “intercepting aircraft should refrain from the use of
weapons in all cases of interception of civil aircraft”.10 In 1983, the Soviet Union shot down a
South Korean civil airliner which had entered Soviet air space; in the United Nations Security
Council a draft resolution condemning the Soviet action11 received nine votes in favour, but
was vetoed by the Soviet Union (Poland also voted against, and China, Guyana, Nicaragua
and Zimbabwe abstained). The preamble to the draft resolution contained a paragraph
“reaffirming the rules of international law that prohibit acts of violence which pose a threat
to the safety of international civil aviation”. The absolute rule that attacks on civil aircraft are
never permitted was supported by statements made in the Security Council by the United
States, South Korea, Australia, Togo, Ecuador and Portugal, 12 while Canada, Zaire, West
Germany and Fiji suggested that the Soviet reaction was “disproportionate” in the
circumstances.13 Even the Soviet Union did not claim that it had an unlimited right to shoot
down intruding aircraft; instead, it claimed that it had mistaken the South Korean airliner
for a United States military reconnaissance aircraft, and that the South Korean airliner had
acted suspiciously and had ignored Soviet orders to land.14
In 1984, the Assembly of the ICAO adopted an amendment (Article 3bis) to the 1944
Chicago Convention on International Civil Aviation15 which confirms “that every State, in the
exercise of its sovereignty, is entitled to require the landing at some designated airport of a
civil aircraft flying above its territory without authority”. But it also states that “the
Contracting States recognise that every State must refrain from resorting to the use of
weapons against civil aircraft in flight and that, in case of interception, the lives of persons
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on board and the safety of aircraft must not be endangered”. This is not intended to affect
the rights of States under the UN Charter (Article 3bis(a)), presumably referring to the right
to self-defence. The amendment did not come into force until 1998.
It could be questioned whether the balance in Article 3bis Chicago Convention as to the
rights and duties of States involved is adequate, especially in cases where the aircraft refuses
to land or comply with the territorial State’s instructions. With regard to this latter scenario,
the text of the Chicago Convention is silent. Humanitarian considerations involved in these
situations are pressing, and the gravity of the problem is somewhat mitigated by the fact that
modern airborne and satellite technologies enable the carrying out of air reconnaissance
without intrusion into the territorial space of the State. However, whether any absolute
prohibition against shooting down an aircraft in such situations forms part of customary law
with enough support in State practice is not obvious. For, a civil aircraft can be tasked to
perform duties of reconnaissance and military intelligence ordinarily performed by military
aircraft, or with unexpected intrusions to test air defences can fly over its territory, perform
its tasks, disobey the territorial State’s warnings and instructions, and still cannot be
attacked.16
During the war between Iraq and Iran (1980–1988),17 on 3 July 1988, the US warship
Vincennes in an engagement with Iranian gunboats in the Persian Gulf, believing it was being
attacked from the air, shot down the civilian Iran Air Flight 655, killing 290 passengers from
six countries and crew members. Although the United States did not admit its liability under
international law, it later offered to pay ex gratia compensation (which means without
recognising any legal obligation to do so) to the families of the victims (US$250,000 per fulltime wage-earning victim, and US$100,000 for each of all the other victims).18 Iran, however,
declined to accept the offer and in 1989 filed an application for compensation in the
International Court of Justice.19 On 22 February 1996, Iran and the United States settled
Iran’s claims concerning the downing of Iran Air Flight 655 in connection with the settlement
of other Iranian claims against the United States concerning certain banking matters, filed
before the Iran–United States Claims Tribunal.20 Under the terms of the settlement
agreement, the survivors of each Iranian victim were to be paid US$300,000 (for wageearning victims) or US$150,000 (for non-wage-earning victims).21
In another incident, on 24 February 1996, Cuban military aircraft shot down two civilian
aircraft registered in the United States, which led to a Statement by the President of the UN
Security Council condemning the act with reference to Article 3bis of the Chicago Convention
and calling for an investigation of the incident by the ICAO.22
The Open Skies treaty, which has 35 States-parties, entered into force on 1 January 2002.
It introduced a range of confidence-building measures, enabling States to conduct
surveillance of one another’s territories by using unarmed aircraft (which it describes as
“observation flights”). Each party has the right to conduct observations on the basis of quotas
available under the treaty. Under the treaty, “passive quota” means the number of
observation flights that each State-party is obliged to accept as an observed Party. “Active
quota” means the number of observation flights that each State-party has the right to conduct
as an observing party. Article VIII enables States-parties to prohibit observation flights that
are not in compliance with the treaty.
9.1.2 Regulation of flights
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The general legal and institutional framework for international civil aviation is nowadays
laid down in the 1944 Chicago Convention and the rules adopted by the ICAO which now has
practically universal membership. It has quasi-legislative powers with regard to laying down
“international standards” (as distinct from mere “recommended practices”), especially in the
field of air navigation.23 But the attempt since 1944 to establish on a multilateral basis rights
of aircraft of contracting States to fly into one another’s territories, whether engaged in
scheduled air services or in non-scheduled flights, has largely failed. The current system of
the exchange of lucrative traffic rights is essentially based upon a complex web of bilateral
treaties, by which one State gives aircraft from another State the right to fly through its air
space (usually in return for a similar concession from the other State in favour of the first
State’s aircraft, which constitutes a barter of rights of equivalent commercial value). 24 Air
transport disputes between States are frequently decided by arbitration.25
Within the ICAO Convention framework, non-scheduled flights enjoy the right of flight into
and transit over the territory of a State-party (Article 5), while scheduled flights require
permission from the territorial State (Article 6). The ICAO’s proposed definition of scheduled
flights in its 1952 Guidance refers to flights performed with recognisable regularity
according to the published timetable, carrying cargo and passengers through the airspace of
more than one State and being open to public access.26
For scheduled flights, or designated air carriers, access to national airspace is possible
through special permission and specific agreements. For instance, the UK–US Bermuda
Agreement has provided for the reciprocal use of the routes specified in the Annex to this
treaty.27 The Bermuda 2 Agreement, Article 2, has provided for the grant to international air
services of the right to fly over the territory of the State without landing, and the right to
make stops in its territory for non-traffic purposes.28
The relationship between territorial sovereignty and air space access rights has been put
to the test in the Kibris case before the Court of Appeal of England and Wales. The matter
related to flights organised to the territory of the TRNC which, under international law, is
not a sovereign State. The Court concluded that the UK could not grant permits in such a case
without violating the ICAO Agreement and the territorial sovereignty of Cyprus. The position
was not altered by the fact that the Republic of Cyprus has no effective control over the
Northern part of its territory:
RoC’s rights under the Chicago Convention are capable of being exercised in respect of northern
Cyprus even without effective control over the territory itself. The rights may not be fully effective
and enforceable, but they can be exercised effectively, as has been done in practice, by withholding
permission for, or imposing limitations on, flights over the territory and by the non-designation of
airports in the territory. The RoC is entitled to rely on other states to honour their obligations under
international law to respect its decisions on such matters; and the effectiveness of the exercise of its
rights is evidenced most obviously by the fact that all states other than Turkey have in practice
respected those decisions.29
The Court of Appeal also compared the position applicable to Northern Cyprus to that
applicable to Taiwan:30
By contrast with the position taken by the Government of the RoC in relation to northern Cyprus,
there has been at the very least a degree of acquiescence and a lack of clear and consistent opposition
by the Government of the PRC in relation to international flights to Taiwan.
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This attitude of China went hand in hand with its role that confirmed its sovereignty over
entire China, as
the Government of the PRC has designated two airports in Taiwan as customs airports and has given
location indicators to the five other airports in Taiwan which have been used for international charter
flights from a limited number of States.31
The nationality of an aircraft is based on registration, and an aircraft cannot be registered in
two or more States at the same time; the problem of flags of convenience, which has caused
so much controversy in connection with merchant ships, has scarcely arisen in the context
of aircraft. The most common offences committed against civil aviation safety are hijacking,
sabotage and forced flights to seek asylum in another State.32 Since the 1960s, international
legal instruments have been adopted to deal with unlawful interference with civil aviation,
including the 1963 Tokyo Convention,33 the 1970 Hague Convention,34 and the 1971 Montreal
Convention.35 These have been ratified by a large number of States and require that the
parties provide for severe penalties and far-reaching jurisdiction in most cases.
9.2 Outer space
9.2.1 Basic rules and instruments
Within the four decades following the launch in 1957 of the first artificial satellite by the
USSR, Sputnik 1, the use of space technology became widespread, not only for military but
also for civilian purposes, including satellites for communications, meteorology, television
and radio broadcasting and other applications.
The UN General Assembly started studying the legal problems posed by outer space
activities in 195936 and adopted Resolution 1721 in December 1961 to give guidance to the
subsequent evolution of space law.37 This culminated in the 1963 Declaration of Legal
Principles Governing the Activities of States in the Exploration and Use of Outer Space38 and
led to the adoption of four major multilateral treaties39 governing outer space activities from
1967 to 1975: the 1967 Treaty on Principles Governing the Activities of States, Including the
Moon and Other Celestial Bodies (Outer Space Treaty),40 the 1968 Agreement on the Rescue
of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space
(Rescue Agreement),41 the 1972 Convention on Liability for Damage Caused by Objects
Launched into Outer Space (Liability Convention),42 and the 1974 Convention on
Registration of Objects Launched into Outer Space (Registration Convention).43 In addition,
in 1979 the Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies (Moon Treaty) was adopted.44 But there are also special conventions dealing with
certain aspects of space-based activities, such as the 1963 Treaty Banning Nuclear Weapon
Tests in the Atmosphere, in Outer Space and Under Water,45 the 1977 Convention on the
Prohibition of Military or Any Other Hostile Use of Environmental Modification
Techniques46 and the Convention and Regulations of the International Telecommunication
Union (ITU).
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The basic substantive framework of the present law on outer space is contained in the
Outer Space Treaty of 1967. The treaty provides that outer space is free for exploration and
use by all States (Article 1) and cannot be appropriated by any State (Article 2). The
exploration and use of outer space must be carried out for the benefit of all countries (Article
1) and in accordance with international law (Article 3). Activities in outer space must not
contaminate the environment of the Earth or of celestial bodies, and must not interfere with
the activities of other States in outer space (Article 9). States must disclose information about
their activities in outer space (Articles 10–12). Activities of non-governmental entities in
outer space require governmental authorisation, and the State concerned is responsible for
all activities which it authorises (Article 6). A State which launches (or authorises the
launching of) an object into outer space is liable for any damage caused by that object (Article
7). States must assist astronauts in distress; an astronaut from one State who makes a forced
landing in another State must be returned to the former State (Article 5). Ownership of
objects launched into outer space is not altered by their presence in outer space or by their
return to Earth; if found, such objects must be returned to the State of origin (Article 8). The
rules in Articles 7, 5 and 8 were subsequently laid down in greater detail by the Rescue
Agreement 1968, the Liability Convention 1972, and by the Registration Convention 1974.
Article 4 of the Outer Space Treaty provides that the moon and other celestial bodies “shall
be used [...] exclusively for peaceful purposes ”. However, as regards spacecraft orbiting the
Earth, Article 4 merely provides that nuclear weapons and other weapons of mass
destruction must not be placed in orbit around the Earth. This difference between the rules
applicable to spacecraft in Earth orbit and the rules applicable to celestial bodies justifies the
inference that spacecraft in Earth orbit may be used for military purposes which do not
involve nuclear weapons or other weapons of mass destruction; in particular, they may be
used for purposes of reconnaissance. One advantage of the use of reconnaissance satellites
is that they provide an efficient means of verifying compliance with disarmament treaties; in
the past, avoidance of inspection has always been a major obstacle to disarmament.
9.2.2 Assertion and development of State rights
In terms of the law-making process, since 1958, in practice this has primarily relied upon the
work of a special international body, the United Nations Committee on the Peaceful Uses of
Outer Space (UNCOPUOS) with its two subcommittees, the Scientific and Technical
Subcommittee and the Legal Subcommittee. The administrative arm of the Committee is the
United Nations Office for Outer Space Affairs, based in Vienna. UNCOPUOS, however, is a
limited club with only a quarter of the members of the United Nations participating. The
important issue of the military use of outer space is considered by the major space powers
to be outside the mandate of UNCOPUOS and to properly belong to the fora dealing with
disarmament and arms control issues.47
Some customary law has developed in the relatively short historical period since
1957.48 This appears to be true for the essential principles of the Outer Space Treaty which
have been accepted by all States active in outer space by practice and with opinio iuris after
ratification, and where no evidence of dissenting practice of non-ratifying States is available.
It seems agreed that such principles include the freedom of exploration and use of outer
space by all States and the prohibition of national appropriation of outer space.
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In its initial formative phase, space law has developed in anticipation of outer space
activities at a time when such activities were still rather limited in practice. This process was
successful because only the two major powers, the United States and the Soviet Union, were
at the time actively engaged in outer space activities, while most other States failed to
perceive that any of their substantial interests would be affected in this connection in the
near future. Meanwhile, more and more States have become directly or indirectly involved
in outer space or consider that their political and economic interests require the taking of a
position.
One peculiar highlight of this process was the 1976 Bogota Declaration by eight equatorial
countries claiming sovereign rights to segments of the geostationary orbit 36,000 km above
their territory, which was met by rejection by the international community. 49 Equatorial
countries subsequently began abandoning this untenable position; however, the
controversial issue of whether there should be a special legal regime for the geostationary
orbit, in addition to the existing regulations of the ITU, which should provide for certain
preferential rights for developing countries, is still on the agenda of UNCOPUOS.50
All of the major treaty instruments were prepared on the basis of the consensus method
(instead of majority decision-making) to ensure the participation of the space powers.51 The
same applies to all other resolutions of the General Assembly prepared by UNCOPUOS with
the single exception of the controversial principles on direct satellite television broadcasting
adopted by majority against the votes of Western States in 1982, mainly because they
refused to accept the requirement of “prior consent” of the receiving State to foreign satellite
broadcasting.52 UNCOPUOS thereafter returned to the consensus method, as in the case of the
1986 principles on remote sensing or the principles on the use of nuclear power sources in
outer space.53
Conflicts of interest also became evident with the adoption of the Moon Treaty of 1979,
attempting to establish an international regime for the exploitation of mineral
resources,54 which was opposed by the major space powers. It has been accepted only by a
small number of States without any significant independent space capabilities, with the
exception of France.55 The demands of developing countries to share in the benefits of the
use of outer space technology are reflected in the continuing dispute in UNCOPUOS on the
item
Consideration of the legal aspects related to the application of the principle that the exploration and
utilisation of outer space should be carried out for the benefit and in the interests of all States, taking
into particular account the needs of developing countries.56
In March 2008, a number of States-parties to the Moon Treaty adopted the Joint statement
on the benefits of the adherence to the Agreement Governing the Activities of States on the
Moon and Other Celestial Bodies by States-parties to the Agreement. The Joint Statement
details the benefits of this treaty regime against the background of some States questioning
whether it constitutes part of international law. Among these benefits of Moon Treaty
provisions is that “they provide a better understanding of, or a complement to principles,
procedures or notions used by other outer space treaties”, and more transparent procedures
for space activities including the installation of stations on the Moon. More broadly, “The
Agreement does not pre-exclude any modality of exploitation, by public and/or by private
entities, nor forbids commercial treatment, as long as such exploitation is compatible with
the requirements of the Common Heritage of Mankind regime.”57
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Since Sputnik 1, artificial satellites have passed over the territory of other States on
innumerable occasions; for many years no State has ever protested that this constituted a
violation of its air space. The conduct of the States launching satellites, coupled with the
acquiescence of other States, may have given rise to a new permissive rule of customary
international law; States are entitled to put satellites in orbit over the territory of other
States, but not necessarily to pass through their air space to get into orbit in outer space. The
rule concerning outer space is thus different from the rule concerning air space (see above).
The natural meaning of “airspace” under the 1944 Chicago Convention is the space where
air can be found, i.e. atmospheric space.58 The precise location of the point where air space
ends and outer space begins, however, is uncertain but not crucially important, because the
minimum height at which satellites can remain in orbit is at least twice the maximum height
at which aircraft can fly.59 However, the alleged general customary nature of the rule allowing
free passage of space objects through the national air space of other States hardly exists.
UNCOPUOS has held extensive discussions on this issue. Germany suggested that “it is not
crucial to draw a fixed spatial borderline between outer space and airspace going beyond
the status quo of the current practice. In that regard, it does not seem appropriate to
anticipate technical developments”.60 Australia similarly held that “There is no definition of
‘outer space’ in domestic Australian law and Australia recognises that there is no
internationally accepted definition or delimitation of the term. In the absence of such
domestic or internationally agreed definitions, there was some uncertainty about where
Australia’s Act took effect and the activities that it regulated.”61 Owing to disagreement and
deadlock in UNCOPUOS, “one may reasonably conclude that the vertical limit of State
sovereignty, wherever it has been established at the national level, tends towards local and
national interests and often varies in nature and scope”.62 On that approach, unilateralism is
not completely ruled out.
9.2.3 Treaty mechanisms of State cooperation
While general international law, in principle, does not hold States responsible for the
activities of private individuals,63 in space law, Article VI of the Outer Space Treaty
establishes the rule that States-parties bear international responsibility for national
activities in outer space, including activities carried out by non-governmental (commercial)
entities.
Article II of the 1972 Liability Convention provides for “absolute” liability of States (as
distinct from launching operators) for damage caused by a space object on the surface of the
Earth or to aircraft in flight.64 According to Article XXII of the Liability Convention, an
intergovernmental organisation active in space is liable as a State, if a corresponding
declaration is made and the majority of member-States are parties both to the Liability
Convention and to the Outer Space Treaty. For instance, the European Space Agency (ESA)
and Eutelsat have made such declarations. International organisations are primarily, their
member-States secondarily, under a regime of joint liability to protect claimants. ‘Piercing
the veil’ to gain recovery from member-States directly is admissible only if the organisation
fails to pay the agreed or determined amount of compensation within six months.
The 1972 Liability Convention provides for the establishment of a Claims Commission at
the request of either party, if diplomatic negotiations fail. Although the details laid down in
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the Convention for the Claims Commission resemble in a number of aspects what is known
from international arbitration, the decisive difference is that the decision of the Commission
is final and binding only if the parties have so agreed. Thus, the procedure in fact amounts to
no more than conciliation. The same effect results, for example, from the general crosswaiver of liability between the parties to the 1998 Civil International Space Station
Agreement.65 In actual practice the settlement procedures of the Liability Convention have
not yet been used. The Cosmos 954 case, in which a Soviet nuclear-powered satellite
disintegrated in 1978 over the north-west of Canada contaminating a large area of territory,
was settled through diplomatic negotiations.
The technical necessities of jointly using resources,66 as well as the immense financial and
technological requirements of conducting activities in outer space, necessitate international
cooperation.67 Regulatory needs became most obvious in the fields of satellite
communications and remote sensing. The development of the substantive and procedural
aspects of space law was accompanied by innovations in international organisation
concerned with the exploration and use of outer space (ESA), especially with regard to
satellite communications systems providing global and regional networks (INTELSAT,
INMARSAT, EUTELSAT, ARABSAT).68
Furthermore, albeit controversial at the beginning, the competence to deal with the
regulation of the use of radio frequencies and satellite positions in geostationary orbit (a
highly advantageous orbit 36,000 km above the Earth’s equator) for space
communications69 rests with the International Telecommunication Union (ITU), with its
global membership.
The 1998 Intergovernmental Agreement on the International Space Station defines Space
Station as “multi-use facility in low-earth orbit”. Article 1 specifies that
The Partners will join their efforts, under the lead role of the United States for overall management
and coordination, to create an integrated international Space Station. The United States and Russia,
drawing on their extensive experience in human space flight, will produce elements which serve as
the foundation for the international Space Station. The European Partner and Japan will produce
elements that will significantly enhance the Space Station’s capabilities. Canada’s contribution will
be an essential part of the Space Station.
Article 2(1) specifies that “The Space Station shall be developed, operated, and utilized in
accordance with international law, including the Outer Space Treaty, the Rescue Agreement,
the Liability Convention, and the Registration Convention”. Article 2(2) specifies that nothing
in this Agreement should be interpreted as “constituting a basis for asserting a claim to
national appropriation over outer space or over any portion of outer space”. The Agreement
foresees that further evolution of the mission and structure of the Space Station could take
place and it may acquire added capability. Yet, Article 14 provides that “The Space Station
together with its additions of evolutionary capability shall remain a civil station, and its
operation and utilisation shall be for peaceful purposes, in accordance with international
law.”
9.3 The 'common heritage of mankind' principle
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The common heritage of mankind principle in relation to outer space has not been
uncontested.70 The term has emerged in connection with the progressive development of
international law and has found reflection in the reform of the law of the sea, in space law,
and in the legal framework for Antarctica. In space law (much earlier than in the context of
the law of the sea negotiations), the principle was first mentioned in UN General Assembly
Resolution 1962 (XVIII) of 13 December 196371 and was then incorporated in the 1967 Outer
Space Treaty in Article 1, which, however, uses its own terminology, stating that the
exploration and use of outer space shall be the common province of all mankind. Article 11
of the Moon Treaty refers to the common heritage principle more explicitly. Article 4 of the
same treaty combines both notions in laying down that the exploration and use of the moon
“shall be the province of all mankind and shall be carried out for the benefit and in the
interests of all countries, irrespective of their degree of economic or scientific development”.
‘Common heritage of mankind’ could, in this area, be seen either as a discrete principle or
as a rationalisation of a number of rules and obligations applicable to specific kinds of
activities of States. Legal consequences flowing from this principle are, arguably, not very
specific, and its customary law status is also doubted at times. It may also be suggested that
the res communis status of outer space already achieves the aims sought to be achieved by
the ‘common heritage’ doctrine. It seems that the relevance of the latter doctrine gets
enhanced when the possible exploitation of space resources is at stake.
A point of contention may also relate to whether the ‘common heritage’ doctrine can be
self-operating or, alternatively, requires the establishment of some joint exploration and
exploitation regime as has been the case under UCLOS with regard to the seabed. This matter
is not very acute currently as space exploration is not yet a fully-fledged technological reality,
but any possible claims in that area are bound to revive and intensify claims in relation to
the common heritage doctrine as well.
It has been argued that, unlike the seabed regime under Article 136 UNCLOS, the concept
of ‘common heritage of mankind’ in space encompasses only territorial appropriation, not
resource exploitation, and thus space resources are essentially in a ‘State of
nature’.72 However, this blanket distinction is not validated by the fact that the USA stated in
its submission to the legal sub-committee of UNCOPUOS that its legislation on this matter
“did not in and of itself constitute a violation of the Outer Space Treaty in the absence of an
authorization granted to an entity to extract or utilize resources from the Moon or any other
celestial body”. Any application for such activities “would necessarily be reviewed in
accordance with the international treaty obligations of that State”.73
Broad acceptance of the principle as constraining unilateral exploitation of outer space is
already there. The implication is that the ‘common heritage of mankind’ has regulatory
impact even in the absence of a multilateral regime, which is a legitimate superstructure to
be established on whatever pattern, including those foreseen under Article 11 Moon Treaty
or the above GA Declaration, but not a conditio sine qua non for the legal nature, scope and
normative force of the principle itself. As a comparison, General Assembly Resolution 2749
(XXV) endorsed the common heritage principle with regard to the international seabed area
on account of the substantive rights and duties of States in relation to that area
independently of the UNCLOS institutionalised regime in relation to that area, indeed long
before that regime was introduced.74
1 B Cheng, Studies in International Space Law (1997), 25.
2 Jennings, 22 BYIL (1945), 191–2.
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3 8 AJIL (1914), 214–5, also addressing the issue of distress; Jennings, 22 BYIL (1945), 103; Cheng, 42 Grotius
Society (1956), 106–7.
4 See further Ch. 3; though in 1922 this provision was amended, enabling conclusion of treaties with nonparties
provided that they respected the rights of parties, cited in Jennings, 22 BYIL (1945), 193.
5 Text in 15 UNTS 295.
6 Replacing inter partes the 1919 Convention, Cogliati-Bantz,79 NJIL (2010), 385.
7 U.S. v. Hungary, ICJ Reports 1954, 99–105; Aerial Incident of 7 October 1952, ICJ Reports 1956, 9–11; Aerial
Incident of 10 March 1953, ibid., 6–8; Aerial Incident of 4 September 1954, ICJ Reports 1958, 158–61; Aerial
Incident of 7 November 1954, ICJ Reports 1959, 276–8.
8 See AJIL 54 (1960), 836, and AJIL 56 (1962), 135; Colum. LR (1961), 1074. On the unregulated area of
espionage see J. Kish,International Law and Espionage, 1995.
9 Some such incidents are considered to be force majeure, Ch. 13.
10 ILM 22 (1983), 1185, 1187.
11 Ibid., 1148.
12 Ibid., 1110, 1114, 1118, 1129, 1133–4, 1139.
13 Ibid., 1117, 1120, 1133.
14 Ibid., 1126–8,cf. 1074. See also the 1993 ICAO Report on the Completion of the Fact-Finding Investigation with
Regard to the 31 August 1983 Destruction of Korean Airlines Aircraft,ILM 33 (1994), 310.
15 Text in 15 UNTS 295, amended text in 1175 UNTS 297.
16 See further on misuse of civil aviation Article 4 ICAO Agreement.
17 See I.F. Dekker/H.H.G. Post (eds), The Gulf War of 1980–1988, 1992.
18 AJIL 83 (1989), 912–3. See also ICAO Resolution and Report Concerning the Destruction of Iran Air Bus, 3 July
1988, ILM 28 (1989), 896–943.
19 ILM 28 (1989), 842; Aerial Incident of 3 July 1988 (Iran v. USA) Case, Order of 13 December
1989,ICJ Reports 1989, 132,ILM 29 (1990), 123.
20 See Ch. 23.
21 See ILM 35 (1996), 553; AJIL 90 (1996), 278.
22 See ILM 35 (1996), 493; AJIL 90 (1996), 448–54.
23 J. Ducrest, Legislative and Quasi-Legislative Functions of ICAO: Towards Improved Efficiency, AASL 20 (1995),
343–66.
24 Hailbronner, 77 AJIL (1983), 491–2; J. Naveau, International Air Transport in a Changing World, 1989; P.
Mendes de Leon (ed.), Air Transport Law and Policy in the 1990s, 1991; P.M. de Leon, Cabotage in
International Air Transport, 1992; M. Zylicz, International Air Transport Law, 1992. See also the United
States Model Bilateral Air Transport Agreement, ILM 35 (1996), 1479.
25 On the US/UK Arbitration Concerning Heathrow Airport User Charges, see J. Skilbeck, ICLQ 44 (1995), 171–9;
J.J. van Haersolte-van Hof, LJIL 8 (1995), 203 and S.M. Witten, AJIL 89 (1995), 174–92.
26 Cited in Cheng, Grotius Society, 111–2.
27 UK–US Air Service Agreement, Bermuda, 11 February 1946, Treaty Series No 3 (1946), Cmd. 6747, Article 1
and the Annex, section I.
28 UK–US Air Service Agreement, Bermuda, 23 July 1977, Treaty Series No 76 (1977), Cmd. 7016; Bermuda 2 is
now replaced by the EU-US Open Skies Agreement, see Article 3 on grant of rights.
29 Kibris, [2010] EWCA Civ 1093, 12 October 2010, para.38.
30 See further Ch. 5.
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31 Kibris, paras 57,63.
32 See E. McWhinney, Aerial Piracy and International Terrorism: the Illegal Diversion of Aircraft and
International Law, 2nd edn 1987; M.N. Leich, Aircraft Crimes, Multilateral Conventions – Montreal
Protocol, AJIL 82 (1988), 569–71.
33 Convention on Offences and Certain Other Acts Committed on Board Aircraft, ILM 2 (1963), 1042.
34 Convention for the Suppression of Unlawful Seizure of Aircraft, ILM 10 (1971), 133.
35 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, ILM 10 (1971), 1151.
36 International Co-operation in the Peaceful Uses of Outer Space, UN GA Res. 1472 (XIV), 12 December 1959.
See also the earlier Resolution on the Question of the Peaceful Use of Outer Space, UN GA Res. 1348 (XIII),
13 December 1958.
37 UN GA Res. 1721 (XVI), 20 December 1961. See Kopal, The Role of United Nations Declarations of Principles
in the Progressive Development of Space Law, JSpaceL 16 (1988), 5 et seq.
38 UN GA Res. 1962 (XVIII), 13 December 1963.
39 B.C.M. Reijnen, The United Nations Space Treaties Analyzed, 1992.
40 610 UNTS 205 (1967); ILM 6 (1967), 386. M. Lachs, The Treaty on Principles of the Law of Outer Space, 1967–
92, NILR 39 (1992), 291–302.
41 Text in AJIL 63 (1969), 382.
42 Text in ILM 10 (1971),965.
43 1023 UNTS 15 (1976).
44 ILM 18 (1979), 1434–41.
45 480 UNTS 43.
46 1108 UNTS 151.
47 B. Cheng,The Military Use of Outer Space and International Law, Vol. 1, 1992, 63–75; W.v. Kries, Anti-Missile
Defense for Europe and the Law of Outer Space, ZLW 42 (1993), 271.
48 But see V.S. Vereshchetin/G.M. Danilenko, Custom as a Source of International Law of Outer Space, JSpaceL 13
(1985), 22–35. See also Ch. 3.
49 K.-H. Böckstiegel/M. Benkö (eds),Space Law. Basic Legal Documents, 1990, Vol. 1, B.IV.
50 See UN Doc. A/AC. 105/573 of 14 April 1994, 15 et seq. and Annex IV, working paper A/AC. 105/C.2/ L. 192 of
30 March 1993, submitted by Columbia.
51 See E. Galloway, Consensus Decision-Making by the United Nations Committee on the Peaceful Uses of Outer
Space, JSpaceL 7 (1979), 3 et seq.
52 P. Malanczuk, Das Satellitenfernsehen und die Vereinten Nationen, ZaöRV 44 (1984), 257–89 with the text of
the principles; D. Fisher, Prior Consent to International Direct Satellite Broadcasting, 1990; M.L. Stewart, To
See the World: The Global Dimension in International Direct Television Broadcasting by Satellite, 1991.
53 M. Benkö/G. Gruber/K. Schrogl, The UN Committee on the Peaceful Uses of Outer Space: Adoption of Principles
Relevant to the Use of Nuclear Power Sources in Outer Space and Other Recent Developments, ZLW (1993),
35.
54 Article 11, 1979 Moon Treaty.
55 The Treaty entered into force on 12 July 1984, see C.O. Christol, The Moon Treaty Enters into Force, AJIL 79
(1985), 163–8.
56 See UN Doc. A/AC.105/573 of 14 April 1994, 8 et seq.
57 A/AC.105/C.1/2008/CRP.11.
58 Cheng, Studies in International Space Law (1997), 32.
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59 P.-M. Martin, Les Définitions absentes du droit de l’espace, RFDAS 46 (1992), 105–17; R.F.A. Goedhart, The
Never Ending Dispute: Delimitation of Air Space and Outer Space, 1996.
60 A/AC.105/889/Add.3, para. 2.
61 A/AC.105/865/Add.1, para. 4.
62 A/AC.105/C.2/L.302, para. 17.
63 Ch. 13.
64 See further Ch. 13.
65 Agreement between USA and Other Governments Signed at Washington January 29, 1998, Article 16. Article
17 provides that the Liability Convention is not affected.
66 S.M. Williams, The Law of Outer Space and Natural Resources, ICLQ 36 (1987), 142–51; B.E. Helm, Exploring
the Last Frontiers for Mineral Resources: A Comparison of International Law Regarding the Deep Seabed,
Outer Space, and Antarctica, Vand. JTL 23 (1990), 819–49; D.A. Barritt, A ‘Reasonable’ Approach to Resource
Development in Outer Space, Loyola LAICLJ 12 (1990), 615–42.
67 See R. Müller/M. Müller, Cooperation as a Basic Principle of Legal Regimes for Areas Beyond National
Sovereignty – With Special Regard to Outer Space Law, GYIL 31 (1988), 553 et seq.
68 M. Snow, The International Telecommunication Satellite Organization. Economic Challenges Facing an
International Organization, 1987; International Maritime Satellite Organization: Amendments to the
Agreement of INMARSAT, ILM 27 (1988), 691.
69 See P. Malanczuk, Telecommunications Satellites and International Law, Comments, RBDI 21(1988), 262–72;
F. Lyall, Law and Space Telecommunications, 1989; M.L. Smith, International Regulation of Satellite
Communication, 1990; I.H.P. Diederiks-Verschoor, Legal Aspects Affecting Telecommunications Activities in
Space, TSJ 1 (1994), 81–91; S. White, International Regulation of the Radio Frequency Spectrum and Orbital
Positions, TSJ 2 (1995), 329–50.
70 S. Errin, Law in a Vacuum: The Common Heritage Doctrine in Outer Space Law, BICLR 7 (1984), 403–31; D.
Wotter, The Peaceful Purpose Standard of the Common Heritage of Mankind Principle in Outer Space
Law, ASILS ILJ 9 (1985), 117–46.
71 Article 1.
72 Su, 66 ICLQ (2017),1001.
73 A/AC.105/1113, para. 76; Su,994.
74 On which see Ch. 8.
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