Outer Space: Problems of Law and Policy [2nd ed.] 0-8133-1802-5, 0-8133-5680-1

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Outer Space Problems of Law and Policy

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SECOND EDITION

Outer Space Problems of Law and Policy

Glenn H. Reynolds University of Tenvressee

Robert

Merges

Univeirsifyof Calijlornia at Berkeley

Westview Press A M c m k r of the X3erscus Books Group

Ail rights reserved, 13rintedin the United States of America, No part of this pubtieation maj be reproduced or txa~sxnittedin an) form or by arty means, efectronic or mechanical, including photmopp, recc~rding,c?r an] inhrmation storage and retrieval sjstem, without pemission in writing from the publisher.

Copyright C : l %9, 1997 by Westview Press, A Member of the Perseus Books Group Published in 199'7 in the tinited Slates c?f America by Weslvietv Press, 5500 Central A~~enue, Etoufder, Colordo 80,301-2877, and in the United Kingdom bj Westview Press. 12 Mid's Copse Road, Cuntnor Hi11, Oxford C>X29JJ

L,ibrar] of ("ongress C:aldoging-in-Publication Data Rejnotds, GLenn H. Outer space : problems of law and policy i Glenn H, Reyrzolds and Robrrt E? Merges. -- 2nd ed. p. cm. Includes bibliograpllical references and index. ISBN 0-8f 33- 1802-5 (he) - ISBN 0-8 133-5680-1 (pbk.) l. Space ta%v-Cases, X. Merges. Robert l? JX58IO.K49 I997 341.4'7-de2 f

The paper used in this publication meelf the recjuiremenlr; of the Americarz Natior~alStai~dardfor Per~naneneed Paper for Printed 1,ibrary Materinis 239.48-1484.

Contents xiii xvii

1 Some History and Background S~SACE HIS'TCIKY -THEBRIC'~" MOON AND ALL,THA'F, 1 W. MeDc>~lgall, ... the Heaveris and the F ~ r t l 1lThe A-41, 3 W Mv?I3ougall,. .. the Heavens and the Farth I Farly Space LAW

1, S

Some Observations, 10 Further Rcading, It I SPACE EMVIROFIMEN'F, XX Where Does Spice Begin'? I I What's Et Like idp'l'here? 12 Meteorcslids and Micronncte~roids,X 3 Vdcuurn and Mierogrdvit>, 2 3 Gettillg 'I'here and Stajing 'There, 14 Rockets and Propulsion, 16 When You Are "There: What People Do in Space, I8

?'WE

ByerIy, The Coinrnercialilrtduslrial rises czf Space, f 8 X30wcr Stations in thc Sky, 20

Furlher Reading, 23

2 The International Law of Outer Space: Basic Principles Intrduction, 25 "The Roots of S p x e Law, 27 Air and Sea l a v : Rules C3ovcming Overflight and Tcrritoriai Waters, 28 DeSaussure, Maritime and Spice iaw, 28 I. White, Deciuioil-Making for Space, 36 Center for Kcscarch &Air and Space l a w , S p c c Activitl'es and Emerging Internatioi~alI~tw,39

Notes, 42

25

l i N Effcjrts and Aspirations, 43 MeDorrgal & tipson, Perspectives fc9r a Laiv of Otrter Space, 44

Notes, 46

3 Early Treaties Governing Activity in Ourter Space Jessup & Euhenfeid, The ttnited Nations Ad Hoc Corninittee on the Peacefuf Uses d Outer Space, 49

The 1,irnited 'Test Ran l"rc"aty, 5X MultiIateral Treaty Bailning Ntrclear Weago11Tests, 52

Note, 54 Matte, ?"heTreaty Banning Nuclear Weapns 'I'ests in the Atmosphere, in Otrter Space and ttnder Water, 54

Note, 6 l The Outer Space Treaty of X 96%62 MultiIateral Treaty on Principles C;ovcming the Aetivities of Slates, 62

NcXe, 68 Ctembling & Arons, The Errdutton of the Otrter Space Treaty f Outer Space Treaty of f 967 f ,68

NcXe, 77 Sovereignty, 13rc)perly Rights, and Spice Resources, 77 Christot, Article 2 of the 196'7 Princigtes 7'reaty Retiisited, 78

NcXes, 82 Arms Control Provisions, 82 Qrr, The Treaty on Outer Space, 83

NcXe, 88 C;orove, Arms Control Provisions in the Outer Space Treaty, 89

NcXes, 92 4 Development ancl Defense: Treaties of the 1970s

'I'he ABM "I'reatj,95 Kackgrc>und,96 Treaty or1 the Lairnitationof Anti-Ballistic Missile Sjsterns, 96

Note, 97

The ARM ""Rcinterprelation," W Notes, 99 'I'he Moon '1-reaty, 10 f Agrccrnent on Activitl~sof States on thc M c ) and ~ Other Celestial Rdies, 101 Nash, Contemporary Prdctice of the t inited Sttttes Relating to International I ,nw, 1 Q9

48

NcXe, 1 l 4 Spitz, Note, SPACE t,AW----Agreement C;overning the Activities of Slates on the Moon and Qther Celestiaf Bodies, l t -3 NcXes, X X S C;ailloway, Issues in Implementing the Agreement Gwerning the Activities of Sldtes on the Moon and Other Celestial Bodies, I l6

Note, 1 17 Watstl, Controsersiaf Issues I Jnder Article XI CA' the Moon Treat5 f 18

NcXes, X X 9 Reynolds & Merges, The Role of' Commercial Development, 120

Organi~aticlniltStructures for Carving Out rhc Moon 'frcaty, X 20 C;ailloway, Issues in Implementing the Agreement Gwerning the Activities czf States c311 the Moo11and Other Celestial Bcdies, f 2 1

NcXes, X 22 Christoi, Alternative Modeis for a Future InternatinnaI Space Organi~ation,123

NcXes, X 25 C;oedhuia, So~neRecent-Trends in the Interpretation and the Impt ernenkatiu~~ czf the Rules czf Interilatioilal Space h t t , f 26

NcXes, X 30 Ctrtpuy, The Nogion of the Cornlnon Heritage of Mankind Applied to the Seakd, f 3 f

NcXe, 132 Wufford, Ideological Rigidity vs, Poii ticaI Reality, 1 32

Notes, 133 Devclopcd World and Third World Views on Space Development, 134 Finch & Moore, The 1979 Moo11Treaty Enco~~rages Space X)evelopment, 135

Notes, 138 Duta, Free Enterprise and the Reposed Moo11Treaty, 138

NcXes, X43 Webher, Extraterrestriai LAW on the Final Frontier, 14-1.

Notes, 148 Kao, C_"ornmanHcri tage of Man kind and thc Mcwn 'f'reaty, l49 Notes, 151 A Note on the New Enternational Ekonornic Order. 152 NcXes, X53 A Note on Common Proprly Resources and Efficient A1Ioca;tion, 155 Wihlborg & Wijkman, O~rterSpace Reso~lrcesin Efficie~~t and Firri table tJsc, t 57

NcXes, X @ Common 13rc)perlyand the ColIective Action 13rc)hlem, I65

5 Other Treaties, Agreements, and Issues

1 78

The 1,iabiXity ('onvention, 178 Cohen, Cosmos 954 and the International LAW of Satellite Accidents, 179

Notes, 186 Space Remate Sensing. X 89 tx~gsdon& Monk, Remote Sensing from Space, 1%

Notes, l96 IDcSaussure, Remote Sensing, t 97 P~t~ciples Kclating to Remote Sensing of the b r t h from Space, 200

Rescue and IZeturn o.f Astronauts, 203 Registration of Spacecraft920.2S p e e En\~ironmenblMatters, 205 I J.S. Congress, Office of 'Fe'echnoIugyAssess~nent, Orbiting Ilebris, 207

6 Spaee Communications Space and International 'Iktecomm~micatiotls,2 16 U.S. ReguXation of Space Communicatians, 220 Of'liice of'f"ommercia1 Space Policy, t1.S. Ctepart~nentof Commerce, Space C0rn1nel.c.e~220

NcXe, 222 Senior Intemgency C;roup on Inlernatioi~alCorn~nunication and Information Policy, A White Paper on New International Satellite Sq stcms, 223

Notes, 233 Depdrtment of S@tef Legal Memorandum 1,235

NcXes, 2 4 Direct SateIIite Broadcasting, 242

7 Space-Related Internationill R a d e Issues Fxonomics of Space industries, 247 Reynolds & Merges, Toward an Industrial Policy for Otrter Space, 248 Before the Office of the Ilaited States Trade Represenlatice Chairwoman, Scction 301 Committee /'ll'ranspace X3ctl'tion1, 24.9

Note, 25 1 Determinatic>nIlnder Seclic>n301 of the Trade Act d 1974,252

NcXes, 253 Reynolds & Ragos&, International Trade in 1,arrnch Semices, 254

246

NcXe, 255 Co~lgrcssisnalResearch Service, Commercial Space L ~ i r n c hSemices: hsition, 255 'Yhe 1I.S. Cc~~nptitive

Export Controls and Trade in Space-Rclatcd Ciocsds and Ser~lices,261 MeCall, "'lfhe Inexorable Advance of' Teeftnoiogy"? American and Intemationaf Effofis to Curb Missile Pmliferdtion, 264

NcXes, 268 Reynolds, New Developments in IntematinnaI Trade, 270

8 The Law of Private Commercial Activities in Buter Space

Jurisdiction, 276 Office of' Teeftnoiogy Assessment, Space Stations and the I,aw, 276

Notes, 282 Smith \. linited States, 2% E4ual Emplojtnellt Opportunity Com11-tissionv. Arabia11American Oil Company, 291

NcXes, 296 Tort LAIFV,296 Office c>fI c h n o t ogy Assessment, Space Slations and t11e Law, 297

NcXe an I,iability: Approaches and SancSards, 302 42 t1.S.G". 8 24513b. Insurance and Indcrxtnifjeation, 305 Liability far Damage to Cargo, 306 The Clzallenger Disaster, 308 Contracts Relating to Olatcr Space, 309 Commercitrt Launcl~Serciice Contracts Between Marlin Marietta Covration and Intcmatimat l"crlccommuntcatlmsSatellite Organization "'INTEI,SAIX'," "3 0 Martin Marietta Covration v, In tematic>natrYelecom~nunicatic>ns Satellite Organization, 3 19 F;rom the I>ictrict ("ourt Ofinion, 326

Notes, 327 Hughes Communtcatl'on Galaxy, Ine, v. 'l'he Linited States, 330

Notes, 336 Impact c>f Slaa Ageernents and Other Industry Incentic es c311 Commercial Spacc Markets, 336

Notes, 338 Sample l,aimch Agreement, 338 Kascd on Agreement Wetitieen the linited States of America Represented bj the National Aeroilar~ticsand Space Administrati011 and Satellite Business Syste~nsfor hunch and Associated Services, 338

Notes. 340

Intellectual Prowrty, 343 P.L. 101-580, Inventioi~sin Outer Space, Sellate Report No. I O l-266,343

The Effect of Entcmational rrrcatics,345 tJnited States Code, 35 tJ,S.C, 105, Inventions in Outer Space, 346 Patents in Space, Wectrresday, October 4, f 989,346

NcXes, 352 Protecting 'l'rdde Secrets in Space, 355 Reynolds, Bcwk Review, 355 Busk, EBrotectionofl"rade Secrets in Outer Spacc Activity, 356

A Fedeml Common Law for Outer Space? 360 Impact CA' Slaa Agreements and Other Industry Incentic es c311 Commercial Spacc Markets: Hearing Hehre the Sukommtttee on Space, Committee on Science, Space, and kchnology, 361

Notes, 362 Administrative Law: Rcguiation and ilercgutatian of Space Activities, 363 Go~nmercitrtSpace Launch Act czf f 984,3644

NcXes, 372 CcAe of Federal Kcgulations. Title 14-Aeronairtics and Spce, 3'72

'I'he Land Remote Sensing Commercial i~ationAct, 3819 tint ted States Code, AnnoQtedt l"itle 15-Commerce and 'I'rade, 380

Note, 394 Kemtjte Sensi~lgRegulations, 394 Civilian Rcmotc Sensing X,tcensing Regulations, 394

Criticisms of Remote Sensing ReguIations, 395 Merges & Reynolds, News Media Satellites and the First Amendment, 395

Note, 396 Extraterrestrial Contaminaian, 3 9

9 Some Issues of the Futixre Coverclanee of Space Societies, 398 Space Settle~nentsand the Law:Address d Justice Williain J. Brennan, Jr., 398 Ragosta & Reynolds, In Search of Governing P~t~eiples, Declaratiort czP First Rinciples for the Governance of Outer Spacc Societies, & I f Remarks of Williarn J, Rrenna11, Jr., Assmiate Jtistice, Supreme Court d the llaited Slates, 404

NcXes, 406

Contact with Extraterrestrials, 4 7 Keynolds, lnterilatiurral Space Larl:: Into the Trverzty-First Century, 4L 3 IDcclaradon d Rinciplcs Concerning Actikities FoIlowing the 12etection d Extratel~estriaIntelligence, 414 Reynolds, lnterilatiurral Space Larl:: Into the Trverzty-First Century, 417

Rcynolds, Structuring I>etctopmcr~tin Outer Space, "52 1

Puqace to tjEe Second Edition

Preface to the Second Edition Almost eight years have passed since the tlrst edition of this book went to the publisher. fn cvriting it, tve attempted to produce a work that wczuld be useful in the sometimes contradictory ralcs of ciassrcmm text and self-tcaching tool for interested la~vy ers, actclemics, and lay persons. Judging from the rnally gratif"S.ing reviecvs that the first edition received, we were generally suceessfut, Hotvever, thc passage of time changes many things, and we considered it important to kccp this book up to date. Although some aspets of space law remain largely unaltered. others-particularly in the fast-groiving field of commercial space activity (both in terms of its regulation, and of the international trade friction that it creates) and the cotlterrtious area of control over syice resources-have changed a great deal. Our updatillg efforts hatre thus been greatest in those departments, We have also given additional attention to the burgeoning topic of space environmenbl issues. When the first edition of this book appeared, that subject had received little attention, and some thought our brief treattnent somecvbat daring for its mcrc existence. That has changed now, with topics like orbital debris and planeQry protection receiving considembIe attention in the literature. an exransiczn that has k e n matched in our treatment as well, And, naturally, the entire book has been brc3ught up to date with refcrcnce to changes in the literature, thc statutoq background, and the geneml cjirnate. Of course, the greatest change that has txeurred since the publication of the first edition is the apparent end of the ('old War, along with thc breakup of the tizrrner Soviet Union into its various constituent slates. Formally, this is of reIativelj little impomnce to the field czf space law, as those cc~nslituentstates, particularly the Russian kderation, remain adherents to all of thc imporhnt internatiollal agreernetlts, Realistically, hojvever, the shift from a bipolar Cold War cvclrld tcl a multipolar post- uf 'Iknnessee and Bostcjn tinivcrsitj, and at the tiniversity XdingSoviet threat, tvhilc the European powers that had played an impomnt mle in prewar years cvcre in no position to undcfiake any projects beyond recovering from devasation. 'l'he Soviet Union was ~vorkingon development of large boosters as a counter to American air superiority, but results were not to come for some time and no one outside a select grc3up of Soviet leaders and engineers knew what was going on. Still, wczrk on space boosters continued to prcjgress slocvlj in the lJnited States, and some American scholars, pfiticians, and diplomats began ta talcc an interest in iss~resof spice law. As the Soviet Uniotl acquired the satus of America's key aaidversairj, interest in using satet lites for reconnaissance grew, "I'here wcre, ho~~ever, serious erslncerns about the international law rami ficatians af sateIIire overftlights, concerns that were sharpened considerably after the Soviet IJnion launched the tvorld's first satellite, Sputnik. Some argired that such at erflights cvould constitute violations of the sovereignty af the nations overflawn,

Some History a ~ Backgro-olcljd ~ d

5

with in-jury k i n g added ta insuft cvhcrc thc flights cverc: for reccslnnaissance purposes. Much of U.S. strategy was influex~cedby these debates.

...

W. MsDorrgalE, the Heaverms and the Earth: A Political Hkliory of the Space Age 185189 (1985)

Few diplomatic issues seemed as urgcnt and loaded with implications for world peace as the law of outer space. Were were a new complex of frightening technologies avlcll a iirtmllj limitless medium, opened up simultaneously for human exploitation,And just as the voyages af the Agc of Xliscovcry stimulated inquiry into the law of the sea that aclval~cedinternatiollal law generally thrczugh the wczrk of Htigo Grotius and others, so the launching of the Space Age inspired a burst af inquiry on the fundamenu1 principles that ought to guide all the decds of nation-states. The most beguiling legal problems were those tied to suvereignty: could nations claim space; divide it intel zones according to some scientific, political, ar technical pinciplc; make it off-limits to Fveapnv; extend the cooprative framework of the lGY [Internatioilal Geophysical Ye&rl?What legislative and enforcement mechanisms were preferable for space law? What arrangements could be made for advance notice af launches, exchange of data, assessmellt of liability for damage caused by spzce vehicles'? Who ocvned the moon or the electromagnetic spectrum? Hcacv could space boosters be distinguishcd from militarj) mxnirilesW"r space development bcst served by an international effc3rl or by national programs owmting under ground rules'? A handf1.11 of visionaries tackled such p u ~ ~ f even e s before Sputnik, John Cl'obb Coclper, air taw expert and fcflocv of P~nceton"Institute for Advanced Study, tezok up thc question of sovereignty in a I951 article, reviewing the histo? of air law from the Romans (who said land ocvnership extended ""~.syuec.zvrd cselum"") tcj the great jurisprudential theorists af the se~icntccnthand eighteenth centuries (Samuel von Pufendorfr"limited sovereigrlty in the air to the ability far ""effective control'"), tcl the Cl'hicago Convention of 2944 (which recognized complete and exclusive naticslnal sovereignty over air space). Rut how far up did air extend'? Sounding rockets revealed that the atmosphere did not just stop, but grdclualfy dissipated. Cl'omper opted for "effectic e control"(alsc~ the formula chosen b> the 1885 Redin Conference, which set rules for the colcsrnjzatian af Africa). "The territosy of each state extends upivard into space as Far as the scientific progress of an> state ... permits such state to control it*'' After Sputnik, numcrous propsals Fvere advanced for defining outcr space, "The so-called von Kczrman line set the bounclaty at the point at ivhich a vehicle trait eting seven kilometers a secclnd loses aerodynamic lift and becomes a ""sace~craft~"" Such an eiJent ~voutdoccur about fifty-three miles up. C'ooper and common law fpcyst-Clctober 4, 1957) indicated that s p c e simply stopped at that pczillt belocv which an orbit could not be sustained. Btrt such "lines"' were a function of velocity and therefore of technology, and Fvere in no way innate. Every-

6

Surrze History and Baekgru~nd

one knew ~vhcreland ended and the acean kgan, but now man had entercd a realm that, in a real sense, did not exist except as a fluaction of mat1"s ocvn tools. An) definition of outer space was a solipsism, Thc critical variable in the definition of space was pcrceivcd military interest. "The higher the boulldary of national sovereigx~ty,the greater the protection against unfriendly overflight, but the lesser the ability tcz pl] the Lower rexhes of space for any purpose. It was guesstvvrk in 1958 as to cvhich rsiould best suit America11 or Soviet interests. Similarlq, ~vhett-rer a Xoiv limit was good or bad depended on the international regime that cvoutd obairn in space. If a rigid sjstem af international contrt3I cvas instituted, then naticslnal freedom was best served bp a high boundarq.. if a laissez-Pdire regime arose in space, then rratio~laIfreedom cvoutd be greatest bq loivering ""outer space'" as ctcjse to the earth as possible; ""Cpcn Skies." "These ambiguities gave spacepdring nations no incentive to solve the riddle. State Beparrtrnent counsel Becker explained that the lJnited States, cvhile nclt recagni~ingany top limit to its airspace, conferred the right to p14 space cvhcrever it was, In short, the 1;Xnited Sates believed in "fieedorn of spiace," but reserved its he positiczn on what that f ~ e d o mentailed or where it took effect. ""Mc~reczver,"" continued, "'there are very great risks in attempting to transmute a body of law based t ~ none determined set of ftlcts (e.g., air or sea Iaev) into a body of law with respect tcz which the bslsic facts hatre nut been determined." 'I'he State Departmcnt cvas "inclined to view with great reserve any such suggcstians as that the principles of the law of space should be codified. ..." 'I'he prillcipat concern of American poliej cvas alcvaqs the prt3teetion of spy satellites. Rut thc right ta launch satellites over the t e r r i t o ~of other states was already eslabiished during the IGU. In this cotll~eetion,George J. Feldman, counsel tcz the Senate Space Committee, declared that security considerations atone would prcscrve the principle of savereign air space and work just as porverfully against a definition of where that air spice ended. S@eIIites had alread) been launched witho~xtprc~test,impljing that formal consent tcz satellite overflight was either unnecessary or imp1icitli y given. ""X is tempting to accept the first expfianation-which ivould mean, for example, that President Esenho\ver"sOpen Skies propczsaf is an accomplished fact. Hobvecer, an> such assumption cvoutd be premature and unjustified," Limited agreerncnts on space might be made, but none shottld be sought ""which are more comprehensi\?eor explicit than our present knczw ledge cvarmnts." The sarnc caution obkined in debate acter sovercigntq on heabtenly bodies. As early as f 952 a UN lawyer, Clsear Schachter, asked "Who o\vrrs the urri\?enef!'" ~ rival~esin space, of ""lunar and worried that cve might somedaq read C Icolonial Wshingtons and Nccv Yorks, perhaps of King Gcorge mountains and Stalin craters." He suggested that space and celestial bdies belong, like the high seas, to all mankind, States shoutd be al 1owed to det elop sett1ements and mineral deposits, but in such a way as not to cause waste and destruction "qainst the gen-

Some History a ~ Backgro-olcljd ~ d

7

eral interest af mankind,"' 'f'hc fcar of a ""smmblc for colonies"' in space, more rapxious even than the tlineteenth c e n t u ~ "scmmble in Africa, also motivated space laet. ther~ristsafter Sputnik, But if space cvas not subject to sc~cereignty, what cvas its legal sutus? Was it res nut/ius-space as belonging to no one, hut presumably sub.iect to cIairns? Or yes c~l~rntdrzis un?tzl'u,n -space as ""the heritage of all mankind" with an implied right for all powers to regulate and reap the benefits of sprtceflight? Or res extra curzzrzzerciuun- with sovereignty and j uri sdiction vested in the UN'? The first threatened to starnwde the pwers, but the others implied an i~lternationalccjntrof oc er national technology that the US and USSR afikc cverc: unIikely ta accept, EdrIy discussic~nof such problems fell roughly into two cakgories, a Fitet aeknotvledged bj leaders of the schmfs themselves, Andrecv Haley and Mpres NcDougat. The former, an amateur racketeer turned tacvyer, counsel to the ARS [American Rocket Society and president of the international Astronautieal Federaticyn, evas the major exponent of the "natural fact. school.'%ccording to Hatey, taw rested on uniclersat moral principles derived from thc nature of man: moral preceipts such as the Goitden Rule that found expression in aII great religions. Codified natural 1atv theor_)arcjse, signifieantlj, in respnse t t ~prtlblerns posed by European discr~ver>) of the Ncw World. Rut the law of nations, as the moral lacv of indikiicluais writ large, did not constrain the sbtes of earl) modern Eurup, with untilaunate results. Now the cvorld's governments agaill Pdced virgin territory. This time states must join in advancl: of the conquest of space ta set standards and principles of conduct, and so avclid the old patter11of abuse and competition. 'I'he ""positivist schocll" of space latv, associated wit h Mel>ougal o f Yale, argucd that laev emerged frc~mprttterns of crslrnmon usagc and crsluld not be invented in advance of knowledge of the Facts and emerging national interest. The difficult> in separating militaq and civilian activities rendered prc~hibitionof the tatter all but imp3rssihle, and space taw in any case cvould alivays be a function, not a dcterminax~t,of" international politics. High-blown principles and futife attempts to shacklie the space ptzcvers cvould only make the principles appear ridiculous. Instead, the paaerns of usagc of space must be allorvcd to establish themselves before codiflcatictn. 'I'he tcvc~schods could aptly be temed the idealist and the realist. The most striking vindication af the realistic positivists was the fact that the secret NSC" decisions had already rex~deredthe spice law debate aaetlclernic. The reasons for the Supeqocvers' aloclfness included the one offered in disparagement by the natural law idealists- that nations cvcre atrsessed bp pocvcr and flouted the ethical imperatives embedded in every human being-and the one offered in sweet reason bj the positivists-that it cvc~uldFx: folly to make artificial rules far a c ast area of human activity bcforc the facts cvcre knorvn, Hence the USSR boycotted the Ad Hoe COPUCIS [Committee Cln the Peaceful Uses of Outer Space1 entirety, cvhile the linited SQtes sharply circumscribed its agenda. The upshtslt was that discussion \voutd proceed an such things as spacecrall registration and lia-

8

Surrze History and Baekgru~nd

bility, ssha~ngthe rdio spctrum and scientific data, but not on restrictians an the cleveloprnetlt and use of space technology by competing tlational slates. Man5 space fact. theorists expressed their disgust with this nanoiv nationalism and hypocrisy, but the cries of "space for peace"' and "space for alli mankind" carried tlo krther that1 if they had h e n shouted in the vacuum of sinace itself. 'I'he ircjny is that those enthusiastic about the human adtentuse in space should have k e n rejoicing. Cornptition was the cngine of spaceflight, Had space cxploration been truly internationali~edor demilitari~ed,the Superpowers ~voulcl have had little incentive to make huge investments for its realization, Space programs would have bcen stunted with malnutrilion. As the above passage demonstrates, the space law debate af the 1BSCls was of more than actclemic signitkax~ce.Indeed, many believe that some elements of the lini'sed S.tates go~ernmentfavored allowing the Soviet lJnian to launch the first satellite, as it did with Sputnik, an the ground that that would cstap the Soviets h m complaining about overfllights by [Xnited States satellites. Whether or not that was the intention, it was certainly the eflcct-although there were a few pro fortna complaints about intellt gcnee satellites, thc Soviet tinicsln nciJer scriouslq challerrged the right of the United States to gather inhrmation that way. 'I'hat constituted a substantial victor] for the American go1ernment: As an clpen society locked in cold-war struggle with a closed onc, the tlnited States found itself heavilb dependent on the abilit~to gather infc3rmation via twhnical means, of which aerial photogmphy cvas the most significant, t)r;iginaIly, such information was gathered largely by high-altitude aircraft such as Canbcrra bomkrs and the U-2, but increasing Soviet proficiency at fighter inQreeptim and antiaircrdft missile design made that risky. As a result, Il.S, p~liticaiand diplomatic strategl in the space arena throughout the ten years following the Sputnik launch cente~d around prcltecting the legality of satellite inteiligence-gathering. 'I'hraugh vigomus efforts in the tiN's Committee on the 13eaceful tises of Outer Space (COPUOS), in the General Assembly and the Security C'ouncil, and in the tlegotiations and public psturing that led to the Cluter Spee "Treaty,the llni'sed States championed a view of space as reserved for "~aceful"activities but o p n ta miliary presences that did not violate this princifle- i,e,, reeonnaissanee satell ites. 'I'he Sot iet Ilnion, surprisingly to some, cvcjund up goi1,ingalong, Perhaps this was kcause some farsighted Soviet officials rcati~cdthat in thc fang run space surveillance was in their interest as well, or perhaps it was keause the formulation that cvas chosen also did not oudatv ballistic missiles (ivhich pass thrcjugh spacc in flight), a technology in ~vhichthe Soviets had invested much and demonstrated considemble competence. Whatet er the reason, this tiewv cvas accepted and made part of the Outer Space Treaty; in fact, a fctv years later the Soviet [Inion wound up formally rec-

Some History a ~ Backgro-olcljd ~ d

9

agni~ingthe legitimacy of satcllite ahscrvation as part af the SAXdrFI l"reatj, which bound the [].S, and the Soviet Union to refrdin h m intertering with each other's "nation& technical means of verification," a term that encompassed reconnaissance satellites. Other agreements in the post-Outer Space l"rc"aty period, such as the ABM Treaty7the Accident Measures Agreement, etc. (see Chapters 4 and 5, irtflva, for more on these and other space agreements), falfotved this pattern, establishing autcr space as a p)iacein cvhich milibry presences Fvere pemitted, but in which aggressive acts were tlot. This formulation, ho\vever, in large part reflected the technical capabilities negotiations and ratlfications) should be ex-

Some History a ~ Backgro-olcljd ~ d

21

plored, Otherwise space lawyers and their elicnts may find that someone else i s making the nttes by which they play. FURTHER READING W. Bainbridge, ?"he Spaccflight Kct dution: A Socldogicai Study f f 976) W. B~rrrotvs,Deep Black: Space Espionage and Natioi~alSecurity C 19%) M. Cdlins, Idiftoff(1988) N. Danilo~ff,The Kremlin and the Cosmos C 1972) IDembling ctli: Arms, The Evolution of the Outcr Spacc Treaty, 33 Journal d Air JAW & Goinmerce 4 L 9 ( I 967) ?"he Iitustrated E~~cqclopdia d Spacc 'l'cchnology (K, Gattand cd. 1984) Goidman, The Moo11Treaty: Reflectio11s czn the Proposed Moon 7 ' r e a t ~Space Law, and the Futuii-e,in People In Space (J. Kstz ed, 1985) T. McDrjnough, Spdce: The Next T~tenty-FiveYears 19g7) W. McDougdt ,. .. the Heavens and the Earth: A Pol t tical Hi starj of the Space Age I t 985) National Commission on Spacc, Pioneering the Space Frontier ( l 986) Of'liiiee of 'Technology Assessment, Internatioi~alCoopemtioi~and ("ompetitioi~in Civilian Space Activities f f 985) Reynolds & Merges, The Rote czf Commercial Detieloprnent in Preventing War in Outer Space, 25 Jurimctrics: Journal of X,aiv, Science & 'l'cchnology 130 ( l 985) F. Winter, T2reludeto the Space Age: "fhe Rocket Societies: 1924- f 9-40 ( 1983)

THE SPACE ENVIRONMENT Space has changed in the pears since the Second World War. Or, to be more precise, our undersQnding of spice has changed. As Walter McDougaIl puts it, spacl: is nrj longer the realm rtof custczmarq lacv has deveiopcd, discussed in fofforving chapters, to the effect that any okject in orbit is in syace, and that seems enough to satis@ evetycjne for the time being. Whether that will remail1 so is unclear, See gener~llyMcDougal, The Emerging C'ustczmV Space, 58 Narth~vesternliniversity ]law Reviecv 61 8 ( 1 963). ary I ~ I of WHAT" IT LIKE UP THERE? Photos and movies taken in space give it a peaceful, serene appearance. it looks like a place cvhere the give and rake the atmosphere is replaced by a sczrt af prpetual stillness- But the appearance is deceptive, In Fdct our atmosphere protects us frt~mmuch of what is dallgerous in space. First, there is a great deal of mdiation. Visible light, X rays, infrared, radio and athcr forms of energy -calliectively callcd eXcctromagnctic radiation- arc: eveqwhere. This presents a danger, in terms of wear and tear otl machinery and possible health effects on astronauts. (It also presents an opprtunitj, since many spacecraft are powered by these forces, k3th by generating electricity from sunlight using solar panels alld-in the future-using light pressure from s~rlllightto propel spacecmft using ""sctlar sails"") One of the primarq problems caused by radiation is simple heat buildup: since the temperature af an unprotected object will rise mpidly on its sunlit side, speiaI reflective and insulating materials have been developed to keep equipment (and pople!) operational in space. In addition, this electromagnetic energy (when at frequencies other than those of infrared and visible light) can produce inte~erencewith communication, guidance and navigation equipment. Second, subatomic particles from various sources shoot through space quite frequently. Man> come from the sun; in Pact, the f'low of' such particles from the sun is so steady it is referred to as the ""sofar wind." haunatel> far space travel, due to the small amaunt of mass and energy in these particles they (50 not normall4 pose a serious threat to activities in space. A third source of potential trczuble is radiation trapped in the earth's magnetic Geld-the Van AlXen Radiation Berts. -These are two bands af charged particles, one beginning at 250-750 miles up and er~dingat about 6,200 miles, and the other kginning at about 6,2W miles and extending tcz 37,I)o tcz 52,OClO miles. The composition of the two belts differs slightly, but flight tra,jectorics for manned spxeemfi must be designed carefully to avoid spending too much time cvitbin them. lJnmanned craft, such as communications satellites, can and do op-

Some History a ~ Backgro-olcljd ~ d

23

crate within the belts, horvcver; thcy can be designed ta ~vithstandthe efkcts of the radiation -for many years. 'I'he high-sped scllar protons emitted by a solar flare on the sudace of the sun are probably thc most dangerous af the radiation ha~ardsta space flight, Flares themselves are the most spectdcular disturbances seen on the sun, "I%eqappar as a sudden, large increase in light and radiaian from a portion c$ the sun" atmosphere, Even on the earth, they can cause subsbntial problems-such as radio noise storms that infedere with communications. But from the point of view of the space traveller, the real danger caused by sofar flares is the large number o f high-energy soliar prc3tans thcy release into space. l"hcy can carry extremely high etlergies. As a consequence, they can cause the release of lethal doses of seccjndarq radiation, such as gamma rays, when thej cc~llidewith spacecraft. tintili now this has never happened, largcly because sprtcecmft can be shiclded to protect against rnrich of the rildiatioll in this form. Nevertheless, solar flare radiation remains a real threat to human health in space.

Space is also ppulated by larger prtrticles, some with masses as large as several tons, called metec~ruids.Most, hojvever, are quite small, and are knojvrr as micrometec~rclids.. When a meteclroid enters the earth's atmosphere, it is called a mctear; remnants of meteors arc: often found on earth, In space, micrometeoroids regularly strike sateilites and other syace vehicles. (In fact, some space scientists klieve thej are responsible for several othertvise incxglicabfe satellite majfunctians.) Over time. micrometeoraid impact can h expcted to towear doivn the s u e ~ c eof satellites or spice stations. This is especially impomnt tvbere sensitic e materials, such as optical lenses or reflective coatings, must h exposed for the satellite or space station to (50 its job. But even though micrometeoroid impr;;tctcan be expected, the proIb.$tbiIityof impact with a devastatir~glylarge meteoroid is quite low. Not all dangerous objects in space art: of natural origin, hocvcver: as a resuit af accidenbl explosions and militaq antisatellite tests some orbits conQin considemble q~rantitiesof' artificial debris, a prcjblem that is grotving and maj smn pose a real threat to man) space activities. This issue is discussed furlher in C'hapter 5,

VACUUM AND MICROGRAVITY "Ilivoother features of the space er~vironmentare the relative absence of gases and other matter and the reiative absence of gravitational puil-traicuum and microgravity, respecti vejy. Space is. by the sandards of earth clc~~eIlers, quite empty, Vet spice conQins gases, albeit at concentrations that are tin) compared tcl the earth's atmosphere,

24

Surrze History and Baekgru~nd

This relative absence of gases is one of the features af the space environment that makes it attractive h r mat~uFdcturingpurpses, It is thought, for insance, that the space atmcjsphere cvilf permit greater purity by redtrcillg unwanted gases that are introduced in eertak manuPdcturing processes on earth even when sophisticated vacuum pumps are used. 'I'he other, more important, aspect of space for puwoses of potential msmukturing applications is minimal gravity, The term "'wtierogravity" is uusualfy used to describe this characteristic of spiace. As this term implies, obijects in spice are affected by grai itationai forces, cvhich exist eierj\i,here in the universe, The point is simply that these forces are less apparent ~vithinthe frame of reference of an okjject in space than on the sueace of a pjanet. Space consequentlq is thr~ughtbj some to hold great potential as a manukturing site for the future. Advanced materials, for cxampic, are often mentioned as pssible products, 0 1 1 earth, alloys and other materials are susceptible to imperfections cattsed bj tiny currents. 'l'hese ""convection currents,'" as materials scientists call them, result from the action of gravity during the cooling of alloys and other materials. ManuFitcturing in the microgravity envirc3nment of space can eliminate these imperfections, Moreover, space may pravidc a more hospiable cnvironrncnt for growing intricate crystals, such as those used in semiconductor manuFacture. It also allows the irse o f methods of sepamtion (such as those used in McDonnell I>ouglas's C'ontinuous Flow Electraphoresi expcrimcnt flown on board the Space Shuule:, that re1y on firms too weak to be of much use under gmvity. 'l'hese are just a few examples of how scientists on earth plan to make irse of the special environment af space; other ideas wiIX no doubt appear as we gain more expcrienee.

GETTING THERE AND STAYING THERE "The essex~tialmathematics of rocket launches and earth orbits were worked out by astronomers in the seventeenth centurj, especially fohannes Kepler and Sir Esaac Neivtan. Of course, they probably had no expccbtion that their lawus of celestial mechanics would have any appjicatictn to pmctieal engineering prrjbferns, But as it turns out the problems of determilling how ttc get an rjbject into space and how ta keep it there are just two special cases af mare general astronomical problems. 'I'he key is that for the purpose o f calculating orbits and trajectories a space vchick is just another celestial body. \vhosc motion is governed by the same laws that dic&te the movement of the planets. "hbe s ~ ~ ritei,s a tiny body reIative to the earth, But the beairtj of the astronomical lawvs ttp. thc 1 5 society, ttmk its name fram one of the I,ag~~ngian pctints as a stzxtenlent of its supp'fl for the O'Neiil cancept and lobhied acli\cfy (and successfulfq, in Lhe ease of its efft~rlto block ralificalion of the Mc?c>n'l-~at)) prior ttk tnerging M ith allother group to become the National Spacc Societj. Thesc initial designs hate ifeen refined a nun~kerof times. and will likelg go through manj challges hefore there is an5 substa~ltialcharice of their king implemented. In this, rhej m;%>!rcscmhle the earlj 13ritish Inlerplandar) Scxietj moo11 ~nissicsnplans-better at aniicipating the gencl-jri rlature of the pntblerns encountered ancl their st>lirtionsthan at diag~imntingthe precise n;rture of fttlure cr*aR, Yet sitch cofonies itre a distinct pssibilitg ober the long run, and iaould raise a sariet] d itlteresting legal quesrims. For c.tmj?le, the Clutcr Space Treat?, and the Kcgistratiiitn Con\ ention pro\ ide for national *jrrrisdielionand cr)nrrt,l oxcr all space t)@jects(we Chapcrs 3 and 5, irtfrtr), hut the inhabitants d a space edonj. sooner or later, are liketg to rrbject to a regime in which on15 earthside sobercigntj is rccogniked. And, in the case (>fail1.S. colon), lhcrc \trouldhc interesting cluesticrns raised its to H hether the Constit~rrion~ o u l d"'Fc)llo\t the flag" in that cantext. linder the a~~spices of the Smithsoninn Institution, a coi~ferenccof feading acilifernics and lat\gers. incltiding one Suprefne Court Justice, has for the Icwked into these issues and drafted a '"Pkclaralion d First I."rit~ciplcs"' goternance d space smieties. Such issites are Iikelj to rweit e furlher discussion in the future. See C"hapter 9, itifin, for a discussion of ehcsc yuestiot~s.

Military Activities Since kfcfre Sputnik, milirar2 use nfouta-space has k e n a tntgor tcrpic. Xn thc first thirtj q ears d the space age, the prinrarj milirarj use d s j ~ has ~ ek e n fc9r cctmmurtications and ~.econnaissancc,one that most exprfs agree has exefted a stabilizing and hneficiai effect on ttorld zgfikirs. Althotrgh there hafe k e n some efftrrts at deieloy?ing techniqctcs for denqing enemies the ahifitj to use space in this fiishioir-1-heginnitlg with t1.S. prrjects (warned Bold (Irictn and SAINl) i n the late 1950s and ovrational (or so it n as claimed) sg stems on the part of h>th the linited States tin3 the Sr~\ietiinion in the l W s and 19TOs-it itas not until the 1980s that scfious proslrecis ib mrrre aclite r n i l i h ~uses d'outer space kcgarr tcr develop. In principle, outer spacc ma? be used miIitariI> in the same B aq that land, sea, and air are used: As a base fbr atlaicking the enemj, its a source of matelials. as a

Some History a ~ Backgro-olcljd ~ d

23

vanhge for observation, and as a mcans of rapid mavemcnt. Most propsats for future military uses of outer space, however, focus on antisateilite (ASAT) and ballistic missile defense (BMU) s5stems. Some o f these pose legal probfemsKMD systems based on nuclcar cvcapons, for cxamplc, ~vouldvialate the Outer Spce Treaty (not to mention the more speifulc ABM Treaty), while the use of an antisatellite cveapczn to disable a satellite cvould undoirbtedly constitute an aggressive act in eontraventicsln of the tinited Nations ('harter. 'l'hese topics are discussed i ~ ~ f i along n, with other topics groiving out of the interl~atiotlallaw of outer space. For more on these topics see I? Stares, Space and National Security ( 1987); Reynolds, National Security on thc High Frontier, 2 High 'fechnofogy Law Journal 28 1 ( 1988). Current militarj uses of space involve the irse c$ three kinds o f satellites: intelligence, communications, and early Fvarning. Intelligence satellites are capable of taking photcjgraphs of dramatic resolutioll (reportedly, as good as a few inches), (->I" monitoring communications (as activity known tcl the intelligence cornrnunkty as cleetranic inteitigcnce or EX,XN7"), and of producing all sorts of less drdmatic but often impmnt inhrmation concerning things like crop yields, rainfall, etc. Communications satellites allow central cclmmanders to exercise control over Pdr-flung forces to a degree that cvas not possible previously and to receive real-time information about the progress of campaigr.1~ or about possible enemy acticln. Early cvarning satellites monitor enemy territory for missile launches. providing additional minutcs of cvarning time that could prove crucial in a war-or, more impomntIy, deter a fulrst strike to begin with. In addition, meteorcllogical satellites f metsats, in mili tarq jargon) provide data impomnt for mifilary opcrations and TC3RM Eargeting ad.justmcnts. Afl of these, however, are what are kxctojvn as "force multiplier" applications, meaning that their militarj role is one of amplifying the effect of other, more conientiond, forces, not onc of taking action on thcir own. Satellites eapaMc of attacking targets on the grclund are some time abvay, although evex~tuaifythey could revolutionize land ivadare, prohaQI5 putting a premium on speed and concealment to a greater degree than any othcr type of cvcapon, For the coming decades, though, the key issues are likely to involve various ob-jects in syace and their relations with one another: ASAT cveapons, and cveapons capable of knc~ckingout IG'SMs during thc spaceflight phase of thcir trajectory, 'f'hose arc: likcl~to prove ehallenging erlough,

FURTHER READING The New Solar Syste~nCJ. Beatty, B. OTxary & A. Ghaikirl eds. f 982). W. B~rrroivs,Deep Black: Space Espionage and Matiuilal Seeurity C 1986). K. Gatf and, The Illustrated E~~cyclo~editr of Spice TechnoIugy ( 19%). and tre* gmrantees of eqiml access t orbital debris, are of growing importance but have not yet bccn addressed. For mare an these topics, see Chapter S. 2, Shortfq after the publication of the a b v e article, the tinited Nations organi~cdC'OPIICIS, the C_"ommitteeon thc Peaceful Uses af Outer Space. That cornmittee was until the mid-1970s the most imporlant single source of international law relating to space activities. Since the mid-19"7s, hocvet er, C(IZ13110Shas Pdlfen victim to the increased Pdctionalism af thc llnited Nations, and its efkctivetless has been diminished. For a discussio~~ of the origins of COPUCIS, see fessup & '1-aubenfeld, 'f'he llnited Nations Ad Hoe Commitlee on the Peaceful lises of Outcr Space, 53 American Journal af Intcmationat iacv 87V 1959). One interesting q~testionis ivhether the traditional technique of arriving at multilateral treaties through C70PIIIOS,which is based on consensus, is stil f an effective method, See gerzlarnlljp (iennady Danilcnko, Outer Space and the Multilaieral "Treaty-Making Prc~cess,4 High 'l'echnoIogy Law f oumaI 2 I7 f 1990); Eilene Gallowaq, Consensus Decisionmaking bq the tinited Nations ("ammittee on the Peaceful tiscs of Outer Space, "7 Journal of Space imv 3 (1939 ).I)oesthe end of the Cold War help or hurt the prospects for reaching consensus in large multinational Mies?

Early Treaties Governing Activity in Outer Space "The previous chapter outlined the basic principles of general internatio~~al Xaw got erning activities in outer space. With this chapter we will begin to discuss the impomnt early treaties providing more specific kgai norms for nations" space activities: the 1,imited "Test Ban 'l'reaty of 1963 and the Outer Space Treaty of 1967, 'The process by cvhich these were devetoped was a gradual one: the Limited Test Ban Treaty, cvhich among other things prohibits nuclear explosions in outer space, was the result of discussions beg~tnin the early 1 9 5 0 and ~ ~ of internaticznai pressure orchestrated Nobel laureate Linus Pauling, who created worldwide erslncern regarding the ha~ardsaf nuclear h 1f out frc~matmclsphcric tests; the Outer Space Treaty developed as the result of a lengthy process of nego~tiatictnand refinement of language in the UN's Committee on the Peaceful Uses af Outcr Space (COPLJOS),the ercation of ivhich is described in the article by f essup & 'FdubenfeId, i~ifin,The rregotiatiolls leading up to the Cluter Space 'I'reaty are discussed at considerable length in Demhfing & Amns, also ir$r~z: what kcomcs apparent from even a superficial reading of that picce is that one reasoll h r the ler~gthynegotiation was that many of the tlations involved lacked a clear sense of their interests- bcgh future and contemporaneous- in an) particutar space regime. Most of the participants had only hazy ideas af what woufd come to pass in the spice field, and how it wuuId itffeet their o\vrr destinies, and even the lJnited Shtes and the Sot iet IJnion seemed far mczre cvilling than usuaj to bc persuaded by one another on most issucs. R~radoxicalfy, this compimtive Xaek of spcificail y self-serving goals may be one reason why the Outer Space '1-reaty is iie~vedwith such respect-approaching reverence at times- bp sa many. Having been arrived at by nations operating behind an almost Rawlsian veil of ignorallce, the Treaty cm be said to represent a more general iiecv of the interests o$ humanit) instead otf being mere11 a compromise among interested parties, shaped primarily by the balance af power, Wow close this preeption is to the Pacts is allother matter: the 1;Xnited States, at least, was quite concerned abcjut maintaining its ability to operate intelligencegathering satellites and hence cvas not unclear abut its interests in that regard,

Erzrly Treaties

Still, cxcepLing such relatively narrorv issues, it probably is the ease that thc participat~tsin the processes leading up to the Outer Spice Treaty took a brc~ader and longer view than is typical in internationd negotiations, and that the Outer Space rTreaty does gain in f cgitimacp as a rcsul t. Whether this eircurnstanee can be dupIicatcd in the future is urreIear, but worth haring in mind as a goal. This e, if not actually altruistic, debate can be canclimate of reasonably objecti-~ trasted with thc mueh more sclf-interested debate aver the Moon Treaty, described in the next chapter; the dismal results of the latter process speak for themselves. The foflorving excerpt from an article by Jcssup &L l"aubcnfcld describes the tizrrnatioil of the Committee on the PeacefuI Uses of Outer Spice. The COPUOS continues to be the tlnited Nations' primaq space-related Qodj, alth~lughits influence has dirninishcd along with that of the tJN in gcneral in recent years. As the article demonstrates, however, the key issues later deait with in the Cluter Space '1-reaty were identified earl> on, Jessup & Tatrbenfeld, The Unit& Nations Ad H@cCommittee

on the PeacefuI Uses of Outer Space, 53 American Journal of'International Law 8717 (1959) After forrnal inaugural meetings, the Ad Hc3c Committee fomed a 'lkehnicaf and a 1,egai Committee, By mid-June these two Committe"eshad completed their reporls and the Secretariat hacl also prepared a Reporl on ""the activities and ref the llnited Nations, of its specialized agencies and of other internasclurces o tional bdies related ta the peaceful uses of outer space."" "The members of the 'l'echnical Committee took as a basis working papers circulated by the tinited States and Italy on the scientif7c possibilities of' use of autcr space and on the activities and resources af the linited Nations and the specialized agencies in the tklcl c.tf outer space. The "Tcchr~icatCommittee also received oral comments frclm persons connected bvith such organizatic~nsas IJNE K C ( the World Mcteorological Organization (WMCI), thc InternatlonaX "TcIeeommunicatic~ns Union (1'l'lJ) and the International Civil Aviatioll Organizr-ttion (IC'AO). 'There was general agreement that the exploration of space was ""a task vast cnaugh ta enlist thc talents of scientists of all nations.""tsst as there was no way to limit the definition of "%atmospherewh r WMO" sveather purposes, there was general agreement that outer space was scientifically indivisible, 'rhe usefulness af participation in space cfli~rtsby nations lacking launching eapabilities, pdrticularly through such votunbq cooprati~rescientific arrangements as the IGY's successor in this field, CI'(lkSPAK (Committee on Space Research), cvas cmphasi~cdand the llnited States was eomplimentcd several times on its offers to prmit scientists from other nations to desigsl experirnellts to be carried out by f the CI'QSPAK ll,S.-lalmched satellites. "1-hestress cvas on cc~c~perative efforts o type, though it was generally a g ~ e dthat, when the research stage was passcd,

functioning intergovernmcntaf arrangements of the WMO, ETU type \vere probnbIy essential. 'l'he possibility of international Iaunching sites was also mised. The 'Ikchnicaf Committee" repot was approved by the Ad Hoc ("ommittee on June 18, and became part of the report to the General Assembly. 'Fhis report stressed that to make best use of all avaiiabie talent and, in some cases, due to the casts ink c~lvcd,"space actic ities, scientific and technological ... even more than ... astronomy ... inherently ignorc national k3undaries. Space activities must to a large extent be an effc3rt of XYlanet Farth as a whole." The connection l-Kt.t\\~een militarq activities and space research with its hampring effect on exchange of information was also noted, but it was concluded that the development of space vehicles has reached the point in several countries where it was a question of engi~leeringonlq, not ojf science, 'I'he Legal Committee proceeded with the aid of working papers and drafts submitted by the linited States and Mexico. Its rep3rrt was also approved bp the Ad Hoe Committee on June 18. The Committee observed that the prr>t~isions of the tinited Nations Charter and of the Statute (.l:the Internaional Court of f ustiee arc, as a matter of principle, not limited in their owration to the confines of the Farth. It was agreed that not erlough was now known about the actuai and prospectice uses o f outer s p c e to make a. comprehensive code pmcticable or desirable, but that it was necessary to take ""tmcly, constructive action and to make the law of spice responsi~reto the Facts of spice." It. was u~ranimouslyrecognited that the principles and procedures detielczped ... to got cm the use of such areas as the air space and thc sca dcscn ed r-lttentivc study far pussible fruitful anatugies ... fthougjnjouter space activities tvere distinguished by many spcific k t u a l conditions .. . that wt~uldrender many ot' its legal poblcms unique.

Among legal prc3bferns susceptibfe of priority treatment, it was suggested, is the broad one of freedom of 0ultc.rspace h r explordtion and use. Here, the X~gal Cl'ommittee, in mentioning the flight of space iehicles ""of er" countries during the IGY, suggested that with this practice" therc may have been initiated the recogni6nil or establishment of a generally accepted rule to the effect that, in principle, outer space is, cm cr~i~ditions of equality, freely available for exploration and use by all in accordance with existing czt future inlemalionaf latv czt agreeinents.

Clther priority problems included by the Committee \yere liability for in-jlaq or damage caiirsed b j s p c e trehicles, incl~rdingthe need for machiner] to determine liability and ensure prtyrnent of compensation. Hcre, the C'omxniuce suggested

Erzrly Treaties

54

thc compulsory submission ta the International Court of Justice of disputcs bett;creen states as to liability, and considered relevant ICAC) experience with respect to the 1952 Convention on I>amage Cl'aused b> Foreign Ai rcrafi to 'I'hird Parties on the SurPdce. All xation af radio frequencies, ternination of tmnsmissions, avoidallce of intert'erence betktreen spice vehicIes and aircrdft, identitjcation and registration o.f vehicles thrclugh markings, call signs and ctrbit and transit characteristics, rcgistmtion and co-ordination af launchings, and rc-entrj) and landing prr>bIems\yere also cotlsidered of current irnporlar~ce. Problems which maj br; ignored for the present, as either tcm remote frclm the point af view of tcchnofogical development or because activities can bc conducted ~vithouttheir resolutiocr, were thought to include the determination of precise limits betkveen airspace and outer space, the prot ision of regulations against eonbmination af outer space or from autcr space, thc prc3mulgation of rules covering sovereignty, exploration, settlement and exploratior~of celestial bodies and ruies for the avoidance o f l interkrcnce among space trehicles. As is obvious, the report avoids comrnitmcnts on scvernl prablcms tvhieh many feel are more imminent than. the C0rnmit.tc.eis cautiously willing to acknojvledge. 'I'hus, the Committee stressed at rnost a role of co-ordination or the prcjmotion af co-opration for the United Nations, though the Sivedish represcnl;ltive cxpressed fears that there might be an increasing gap betktreen the great fofi\~ard surge (.l"spacl: actic ities and the efirts of the linited Nations tc~prcjmtjte the irse af space for the kncfit of all mankind, unless immediate action was Ukcn tvithin the 1;Xnited Nations. Others, however, insisted on ""dest proposaIs" to meet only the most pressing needs. "I'heAd Hoc ("ornmittee's cauticln is quite understandable in thc political circumstances, since in any actual program for promatof the Soviet tlnion ing the peaceful uses of outer space, the tlon-pirti~i~ticjn cvclulld mh the effort of much of its value. It was the obvious h o p that if Sot iet nonparticipation were duc to any misunderstanding of the C'omnniuec3 functions, that difficulty ivould be overcome. Of course, if, as a matter of rational policy, the Soviet lJnion d c ~ not s tvish tc~co-operate in this effort, it will find pretexts for further refusals, The Committee finished its work and approved its R e p r l to the General Assemblj on f une 25, 19559,

THE LIMITED TEST BAN TREATY Although a numkr of Resolutions by the lJnited Nations Cjeneral Assembly had previously called upon thc space potvers to refrain from military uses of outer spice, the fkst legally binding document renouncing any such uses was the Limited 'lest Ban 'Freatj of 1963, 'I'hat trc*, signed b j the tinited States, the Savict Union, and Cireat Britain (other nuclear powers, such as France and

C'hina, have not signcd the treaQ), forbids thc explosion of nuclear devices in thc oceans, the atmosphere, or in outer spce. The text of the treaty itself tizllocvs; we cvill then discuss some of the issues raised bj the tre*,

Multilateral Treaty Banning Nuclear Weapan Tests in the Atmosphere, in Buter Space and Under VVater, ergtiered ink0 force Oet. 10,1963, 14 t7,S.T'. 1313,480 IJ,N.T.S, 43 D o ~ at e Moscow August S, 1963; States qf America Septefnber Rnttficatiorz advised by the Setwte qf the U~zifed 24, 1963; Ratified by the P~sidetztof the United S / f m oj' America Bctoher 7, 1963; Rnttficatiorzs of the Governmefztsqf tlze U ~ ~ i t Sates ed of America, the U ~ i t e d Kiftgdonz c#(C;t.eat Britairr and Nc~rtlzerr?Irejauzd9avlcll tjze Unio~? (IfSo~~l'et Soci~list Republics depo~ifed~ ~ iflze f hsafne Gover~rnzerztsat Waslziuzgtotz,b~zdnir,arld lilrl~scowOctober 10, l 963; I-Irc;lctaimed h:)!the I""resideuz1c$ the United States c$ Arnerica October IO, 1963; Etztered I'rztofovce October 10, 1963. 'I'he Governments of the tinited States of America, the Ilnited Kingdc~mof Great Krilain and Northern Ercland, and the linion of Soviet Socialist Republics, hereinafter referred to as the ""Origii~al13agies9" Prclrclaiming as their principal aim the speediest possible achievement of an agreerncnt on general and complete disarmament under strict international eontroI in accordance with the ob.jeetives of the United N;ltions which would put an end to the armaments race and elimillate the incentice to the prcjdtlction and testing of all kinds af cveapons, including nuelcar cvcapons. Seeking to achieve the cliscc~ntinuanceof all test explosions of tluclear cveapons for at1 time, determined to continixe negotiations tcj this end, and desiring to put an cnd to the eonhrnination of m a n 3 environment by rdioactive substances, Hatie agreed as follocvs:

Article X 1 , Fach of the Parties to this -Frcaty undefiakes to prohibit, to prevent, and not to carry out any nuclear kveapn test explosion, or any other nuclear explosion, at an> place irnder its jurisdicticjn or contrt>l: (a) in the atmosphcrc: kyond its limits, including outer space; or underwater, including territorial ivaters or high seas: or (l>) in any other entrironment if such explosion cairses radioactice debris to br; present outside the territorial limits of the Sratc under cvhose jurisdiction ar eon-

Erzrly Treaties

trol such explosion is conducted, It is undcrstod in this connection that the provisions of this subparagraph are without pre-judice to the conclusion of a treaty resulting in the permanent banning o f all nuclear test explosions, including all such explosions undergrcslund, the conclusion of cvhich, as the Partics have stated in the Preamble to this Treaty, they seek to achieve. 2. Edch of the 13aaiestcl this "I'reatj undertakes furthermclre to refrain frclm causing, encouraging, ar in any way participating in, the carrying out of any nuclear iveapon test explosion, or ally other nuclear explosion, anyivhere which cvoutd take place in an] of the environments described, or have the effect referred to, in prtragraph 1 of this Article.

Article 11 I . Any Party may propse amendments to this Treaty. 'l'he text of any proposed amendment shalt br; submitted to the I>epositarj,Governments cvhich shall circulate it to al f Partics to this 'Treaty. 'l'hercafttcr, if requested to do sa by oncthird or more of the R~rties,the DeposiQry Coverclrnents sltatf cotlvelle a collference, to cvhich thej shat l ini ite at l the 13aaies,to consider such amendment. 2. Any amendment to this Treaty must be approved by a majc3ity af thc votcs of all: the 13aftiesto this Treaty, including the votes of ail of the Original 13arties. 'I'he amendment shall enter into force far all Parties upon the deposit ttf inslrumcnts of ratification by a mqjority of alli the Parties, including thc inslrlxmcnts of ratification of all of the Original Parties. Articte III

I , "I'his 'Treatj shall be open to all States for signature. Any State which does not sign this l"rc"aty kforc its entry into force in accordance with paragraph 3 of this Article may accede to it at any time. 2, 'This 'Treatj shall be subject to ratification by signatorq States, instruments af ratification and instruments of access shaft be dcposi ted \vi th the Governments of the Clriginal Parlies-the 1;Xnited Sates of America, the United Kingdom of Great B~tainand Northern f reland, and the tiniun of Sr>vietSocialist Republics- which are hereby designated the Depositary Ciovernmcnts, 3. 'l'his "Treatyshall enter into force after its rdtification bj all: the Original Parties and the deposit of their instruments of ratification, 4. For States \vhosc instruments of ratification or accessicsln are depsited subsequent to the entry into farce of this '2'reaty9 it shaif enter into farce on the date of the dewsit of their instruments of ratificaiticjn or accession, 5, The ilepositary Gt.>vernmcntsshall promptly inform all signaloe and acceding States of' the date of each signature, the date of deiposit of each instrument of ratification o f and accessicln to this 'Freatj, the date of its entg illto force, and the date of receipt of any rcqucsts for conferences ar ather notices.

6. This Treaty shall bc registered by the Deposita~Governments pursuant to Article I02 of the Charter of the United Nations.

Article XV 'I'his 'Treat) shall be of unlimited duration. Fach Ptzrty shalli in exercising its national sovereignty have thc right to withdraw from the 'l'reaty if it decides that extrdordinary events, related to the sub*jeet matter of this 'Treaty, have jeopardized the supreme interests of its countrj. It shall give notice of such cvithdrawal Ea ail otficr Parties to the Treaty three months in advance.

'I'his 'Treaty, of cvhich the English and Russian tents are equal14 authentic, shalf bc dcpositcd in the archives of thc Depositary Gavernmcnts. flu1y certified copies of this 'I"reaty shall h trdnsmitted bj the DeposiQa~Governrnel~tsto the of the signator) and acceding States, G C Jernments ~ DONE in trip1icate at the city of Moscow the fifih dzy of August, anc thousand nine hundred and sixty-three.

NOTE "Theprirnaq goal of the 1,irnited 'l'est Ban Treaty was not arms control, but the prevention of globaI nuclear contaminatic:,n; even the provisions barring nuclear cxpfiosicslns in outer space cvere designed to protect against prc*bterns stemming h r n radiation and electrornagr~eticpulse-exprirnenb with high-altitude nuclear explosions hat i11gcaused damage to orbiting satellites and t~:,electronic devices on the surface at great distances, as cvelf as having created an aflificiai radiation k i t that prsisted for some years. The 'l'est Ban Treaty can thus be viewed primarilj as an environmental agreement rather than a militar3 one, though it was, of course, of milibry importance,

Matte, The Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Oater Space and Under Water (10 October 1%3) and the Peaceful Uses of Outer Space, 9 Annals of Air & Space Law 39 1 (1984) "The atomic bombs which were dropped on two Japanese cities in I945 may have ended the Sect~ndWorld War, but the) left behind an atvesome legacy

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55

which continues to haunt the ""peace"' that suhscquently ensued, l"\vo pol i tically anwgonistic powers, the U.S.A. and the U.S.S.R., ~vhichjoined together to fight a commcjn enemj (Hitler) for a limited puqose and short duraticjn, continued their rivalry and mistrust af each athcr ancc the war had ended. 'i'he Soviet Unioll having gained veto power in, and permanent memhnhip ot; the U.N. Security Councit, secured its Icmg desired political parit] with the West. Hocvever, American mastery over nucjiear technology resulted in vast resources being invested by the U.S.S.R. in order to cdtch up. The interrsity of its comptition ~ vthi the West cvas the cause of the II,S.S.l;?,%re-jection of the Baruch Plan o f 19% with respcct ta the prohibition of the manufactrarc of nuclear weapons and the internationalism of control of this new technology. There was urrdou btedly a lack of mutml trust betiveen the super pjcvers and the plan. while it ""seemed to be in conhrmity with the requirements af tcehnical reality, ... did not adequa.te1y retlect the cotltlitions of political reality."" Qn August 29, 1949, the t1.S.S.R. tested its first atomic bomb and thus entered the nuclear race, However, its efforts cvcre not tataffy devoted to the development of nuclear techllology but also to long-mnge rockets and jet propulsion in order to perfect the delivery sg.stern for its nuclear weapons, Et cvas a. refined version of the (ierman V-2 rakcts Fvhich helped the U.S,S,XE. to taunch Sputnik I an Clctober 4, 1957, Every opprlunity was taken to publicize, both at home and abroad, the IJ.S.S,R.'s superic~ritjin the field c3f science and technc~fogyand in militarj) capability, Up until the launch of Sputnik I, the tJ.S, had been the unrivaletl kcrorld leader in technological achievements allcl militaq calr>-;;tbilities and, although assured that Sputnik I was of limited militarj significance, the t1.S. President felt that something had tcsl be donc to follow the Soviet sucecss. C'ivilian and military technological capabilities were thus geared to catch up with the Russians, especiallj after the launch f;;lilure of the Vanguard I satellite on Ueccrnber 6, 1957. Von Rraun, with his army balifistic missile team, was given only three months by the then Secrelaw of X3efense to corr~ierta Redstone missile into a Jupiter C' launcher, which finaillj brought the IJ,S, intcj the space age on January 31, 1958 when its first satellite, Explorer l, cvas launchcd,

Halting acquired tllc necessary technology to build their first nuclcar weapns. the U S , and the U.S.S.R, continued the f'urther development and testing (l" their nuclear arsends. Between 1945 and 1958, the IJ.S. conducted 139 nuclear tests in the atmosphere and 18 under grcslund. 'f'hc U.S,S.K. an the ather hand cox~ducted55 similar tests, during the period between 1949 and 1958, all in the atmosphere. "I'he extent of these tests ca~rsedserious ccjncem not only with respcct to thc continued stockpiling af nuclear cveapons but also about thc adverse effects of rddiation hll-out on the etlvircjnment, as weII as living beings. Alreadj on Ilecember 3, 1955, the t1.N. Cjeneral Assembtj had estab-

tishcd the Scientific ('ommittec an the Effects af Atomic Radiation, and at the London meeting of the Subcommittee on Disarmament the issue of banning nuclear tests dcjminated the discussions. Hocvetrer, cvhile ""the W s t argued that the establishment of a control system and the cessation of the production of fissionable materials for miliitav purposes should precede any agreement to limit nuclear testing, the Soviets argued that a test ban cvas of such importance that it should be impfemcnted immediately independent af any other disarmament measure and ivjthout contro!." Fratlce, which had not yet tested its nuclear cveapons, did not share the triews of the Western or Socialist pczcvers and started to remove itsclf from the negotiations on disarmament, especially an the test ban issue. in 1958, the three nrielear pojvers-the I;X.S., the I;X.S.S.R., and the IJ.K. -ccznvened a tripartite "Conference on the Bi scontinuation of N~rclear Wapons l"cstsWin Geneva. In 1962, the functions of the tripartite C_"onfcrcnce were taken over by the U.N. Eighteen Nation Disarmament Committee's (ENDC's) ""S~bcrzmmitteeon a 'I'reaty for the Discontinuation of Nuclear Weapons -I;ests."''l'he t1.N. Scientific Committee on the Efkcts of Atomic Radiation conducted studies and prepared two reprls far submission to the Cerreral Assembfj in 1958 and 1962, It concluded that nuclear tests might hatre sericzus adverse effects an the health af pccslpfic exgoscd to nuclear radiation. In its X962 report, the Committee emphasized that As there are no effectitre measures to pretrerzt the occurre11ce czf harmful effects czf global radimctivc contamination from nuclcar expl,~osions,thc nchievcment of n final cessation czf nuclear tests would benefit preserzt and future generatiorzs of mankind.

However, the political realities of l962 were such that ""finat cessaticzn o f nucfcar tests"' was not acceptabtc to thc super pacvers. ""Relations between the United SQtes and the Soviet Union""as described by Barton and Weller, ""hd e been so dominated bq cold war attitudes earlj in the era that comprehensi.~ agreements ~vouidhave been almost unthinkable."' i3resident Kennedq was convinced that the space program should colltinrie on the basis of strict competition with the t1.S.S.R. since ""h considered it essential to the national intercst that the tJ.S, continue ta dcvetop the capahilikics nccessary far a full lnastexy of space and not pull hick at a time when the I;X.S.S.R. was in the lead.'" The Cuban missile crisis obliged a more conciliator> attitude. The President was convinced that the anXy way ta difluse ('old War tensions was to develop areas of common interest with the IJ.S.S.R., "h a manner and scale that cvould introflr e meaningful moi ement towards a genui~lerapprochement between the two countries." "ccific arcas af bilatcraif coapcration Fv'tzieh cvcre singled tjut under this plicy of rapprochement and interrsiiie negotiations with the II.S.S.K. resulted in

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57

1 , the 1962 Tlryden Klagonravov agreement regarding scientific and research cmpcclrdt ion, 2, the 1963 "Hot tine"?Agreement with respect to the estabf ishment of a direct communications link betcvc.cn Mascorv and Washington, 3. the I963 bilateral understanding to support the U.N. General Assemblq resolution on banning the placement (l"nuclear cveapczns in orbit around the Farlh, and 4. the tripartite 1963Treaty Banning Nuclear Weawns 'rests in the Atmosphere, in Outer Space, and under etfater.

It was the plicy of selective rdpprochemenr which cotlrributed to U.S. acceptance of the partial nuclear test ban cvhen, at the 1963 NCJSCOFV tcilaiteral tat ks, all the ""efli~rtsta agree on a comprehensive trea4 foundered on the inspection issue. The American tlegobiarors knew that the Senate would not consent to a comprehensive test ban treat1 that did not provide more on-site inspections on Sot iet soil than the Soviets ~vouldaccept."' "The Soviet Union" svillingness to conclude a treaty 0x1 nuclear test bans dcjubtlessly stemmed from its ahilit] to monitor compliance with such a treat>; it had already developed surveillance satclt ites af such a degree of precision that it could match the I;X.S.A."steehnologj in this field. There was also a desire to dec elop cordial relations with the West, in the pursuit of a plicy of peaceful cmxistenee, given that relations with its communist ally, China, cvcre rapidfy deteriorating.

3, The Provisiarrs of ehe 1963 Reaty (a)Ail~l .. I he principal aim of the three original parties to the Treaty7i.e. the U.S.A., the I1.S.S.R. and the ti,K,, in negc~tiatingthis Treaty cvas the speediest pc~ssible achievement af an agrccmcnt on gcneraf and complete disarmament Fvhich kcrould put an end to the armament race and eliminate the incenticre to the prcduction and testing of all kinds o f cveapons, inel~rdingnuclear cveapons, at at1 times. To achiei~ethis aim, they declared their determination to continue ncgotiatitslns in this regard and expressed their dcsire to put an end to the conbminatallon of man's environment bq radimctive substances, 'hcvhat extent this determination and desire have been executed shall k assessed latcr in this paper. v

(b)Anpll'catiou?

"The Treaty has onIy five articles. Article 1, which contains the main prohibition against nuclear tests, proc ides that

Each of the 13artiesto this Treaty underlakes to prohibit, to prevent, and not to carry out any nrrclear weapon test explosioi~or any other nrrctear explosion, at any place under its jurisdiction or control:

(a) in the at~nosphere;beyond its lirnits, including outer space; or u~lderwater, incltrding territorial tvaters or high seas; or (h) in any other environment if such explosiim causes radioaetike debris to bc present outside the territorial limits of the shte under ~+tlose jurisdiction czr control such explosion is conducted.

A careful reading of this provision shows that nuclear explosions are prohibited in all environments except irnderground tests carried out kvithin the territorial lirnits of the parties to the 'Xi"reat5.Moreover, underground tests svhich could cause radioldctive debris to be present outside the territorial lirnits of the concerned state part] are at so prohibibd. It is interesting to note that the drafters of the rTreaty ""atoided the doctrinal question where outer spice begins since the prohibition ntns within the atmosphere and bejond its limits,""In other cvords, the 1963 'l'reatj considers both air and autcr spacc as a single medium for the purposcs af prohibition af nuclear tests. 'l'his view has long been advocated bq the writer who considers it on14 logical to speak o$ an aerospace continuum governed by the noms and the rules c ~ f aerospace taw, than to draw artificial bt~undariesktcvc.cn the air space, on the one hat~d,and outer space on the other, *The1963"Treatyis very cIear on the areas to cvhich it applies, in contrast to the 196'7 Quter Space 'Freatj which is silent in this respct. "The prtlbibitic.ttl conained in the 1963 Treaty seems to apply to aalI nriclear e their test sites from tests carried out in outer space, irrespectic e of the d i s ~ n c of the Farlh. since there is no outer limit of outer space. Similarly, such prohibition ksrould applq to nucIear tests conducted on celestial bodies, since they form pirt of outer space and testing could result in contamination. 'This interpretation secrns to be in line \vi th the description given in article I of the l"reaty of all cnvironrnents in which tluclear tests are prohibited, During the '1-re* negc.ltiatir?ns,prohibition of nuclear tests in the atmosphere and in autcr space was readily accepted bp the II.S,S.R. as svcl f as the U.S. and the U.K. because moniwring was cotlsidered to be relatively easy and feasible. No provision was included with resyxlct to i erification of compliance with the Treaty. It was generally understood that each party could monitor thc nuclear tests of the other parties by national means of veritkctation. During the I1.S. Senate hearings on the 1963 Treatj, iariclus senatclrs expressed concern ak3ut the possibility of conducting nuclear tests in deep space and thus avoiding detection by monitoring devices. RoIbert S, McNamara, the then I1,S. Secretarq ojf Defense, in response to these concerns, stated that:

Erzrly Treaties Multimegaton wcapclns del efopment tests would havc to bc conducted mare than

20 million miles from the earth-IS0 times as far away as the rnoo1.l---if they were to have a good chance ot'escafling detection by a ground-bascd system. .. . The tinited States on its own can deploy earth and solar satellite systems fc9r detectioi~of deep space 11uctearexplosions; ... While tcsts at extrcmc rangcs are a technological pssthittty, they would inkollvc years c>f preparation plus several mc>i~ths to a year of actual execution, and they could cost hundreds of mlillims of dollars per successt'clI experiment.

We cotleludcd that although "%S a pr;.actieai matter, illegal cjandestine testing in deep space is not a reasonable proposition" one can prt3perity protect.against such testing, "Theprohibition of explosions in the specified er~vironmentsrelates to "any ... nuclear exptasion." This phrase was inserted in article I to cot er "peace-time nuclear expliosians that arc: not weapons tests," Hence, nuclear explasians for peacef'uI purpcjses are also prohibied under the terms of article 1. Hoivever, it is impomnt to note that the prcjhihition applies to "nuclear" tests and not tcl those af a conventional, chemical or biological nature, or ta high energy laser ham weapons etc. SQtes parties must not only prohibit, prevent and not carry out nuclear tests but must also refrain from causing, enecluraging, or in an> cvaq participating in, the carving out of any af thc prohibited tests. Et was keause af the broad nature of this undemking that the U.S, refused to ttransprt French prsonnel tcl the French 1301j nesian islands at a time when France was planni~lgto conduct nuclear tests there. This ~vouldhave k e n to encourage and pafiicipate in an indirect way in the collduct of the prohibited nuclear tests, and thus a violation of II,S, 'Treaty oobiigatians,

4, Analysis and Assessment Thc major advanbge af the 1963l"rc"aty is thc csbbf ishrncnt af cssentiallp Favordbie conditions for the pacehl use of outer space relatively free from the adierse effects of electromagnetic pulse fEMP) which can br; created bj a nuclear explosion in the atmasphere ar in autcr space. i n space, the pufse is not dissipated by the atmosphere and the effect of a single t\tro-megatonbomb expIoded 50 km or higher above the earth caufd affect. circuits in nearly all satellites in geostationary orbit, 36,000 km above the earth, Ncu. military satellites are being protected against EMP but commercial satellites are still very much threaterred, Although commercial satellite systems can be reinforced against EMP, it may

not be pssi bfe to keep them \vi thin cost-effective t imits. Similarly, the *f'rcaty has contributed to the \vorld%relative freedom from radioactive conbmination, since the major nuclear powers (the U.S.A., the U,S.S,R, and the II,#.) stopped high attitude nuclear testing after signature of the X963 'f'reaty. Since it has been widely accepted and its provisions cotlsistentlj respeted, there is every reason to believe that this situation cvilil continue to prekail in the future. Nc>nethclcss,it should not be forgoucn that the Treaty was merely the outcome of selecti~rerapprochement betbveen the super pocvers, which alienated at feast tcvo other major powers, i.e. Fl-ance and the Peoples Repubf ic of China. Thcy nciJer became parties to the Treaty, White France considered it to be of only ""Xinrrired practical importance," China "=fled the "Treatya %big fraud to fool the people (E the world' and accused the Sotiets of "etling out the commlmist camp."The rTreaty thus intensified the Sina-Soviet split,"'Both countries continued their altitude nuclear tests; between 1963 and 1982, Fritlce cc.ttlducted 41 and Chi~la22 such tests, and thus diminished the significance ojf the '1-peaty's pprohi bi ticms. While the desire of the original parties "Yoput an end to the contamination of man's eni ircmment bj mdioactive substances""seems, to a limited extent, tcj have been fulfilled, their objective ta "pit an end to the armaments race'keontinues to be elusive. After signature of the 1963 'l'reaty, the U.S.S.R., the U.S.A. and the II,K. stopped nuclear tests in the atmosphere, but intensified and accelerated imdcrground explosions. l"hc nuclcar stock-pile (not counting thc increased destrrrctive power) of the three originai pdrties, according to the most cotlservative estimates, increased from 26,439 nuclear cvarhearfs in 1965 to 42,3 10 in 1982, According to Hussain, who undertook a thorough study of thc impact af weapons test restrictions on arms control and disarmament, the hopes fc9r the Partial Test Ban Trcaty (FFBT) were that it should stow the teehnological progress and innotration of 11uclear weaporrs by making tests more diffierdt and rnorc costly to eox~duct..,. It has not k e n p;ll.ticulariyeffective, Certainly, the IYf'K'I' has not sfowcd the rate of innovation of systems; on the contrary, most eurrcnt teehiloiogy has been derived from experimental undergrclrrnd nuclear test explosions following thc 'l'rcatg 'S imflcmenktion.

Concern about the proliferation of iluclear weapons and the dallger of nriclear cvar, resulted in adoption of the Treaty on the Non-Proliferation of Nuciteair Weapons in X 968 (hcrcinafter rekrrcd to as the Non Pro1iferation 'f'rcaty). However, both 'rreaties have been ineffective in this respect. India, for example-a part> to the l 963 'Freatj -expladed underground its nuclear device in 1974 and ather countries such as Israel, Pakistan, South Africa, South Korea, Rra~il,Argentina, 'l'aiwan, etc., in addition to kanee and China, have developed, and are developing their nuclear cveapons' capability,

Erzrly Treaties

In retrospect, therefore, the expressed aims of the Treaty seem to have been nothing more than a pc~liticalexercise to enhance and improve the image of the super poivers. While the American President declared that the 1%3 "I'reatj was "The first concrete result of X8 years of efforts by United States to impose limits on the nuclear arms race," it was clearly urrderstmd by the American government that the Treat) cvoufd ""not reduce weapons in king or prevent their production" md moreover that "this Treaty is not in that direction-this treaty is not itself dealing with that problem."

NOTE Aside from its obvious bars to nuclear explosions in outer syace, the "rest Ban '1-reaty would impose (among its signatt~ries)a ban on nuclear fission as a. means af space propulsion, As cvas mcntioncd in C7hapter X , the fate 1950s and early 1960s saw cc.ttlsiderable exprimenQtiorr with ORfQN propulsion systems (so named becairse of the code name o f the military prcjject irnder cvhich the experimcnts cvere conducted) that ~vouldusc small atomic bombs as fuel. Those experirnet~ts\yere abat~donedafter the mtifieation of the 'l'est Ban 'l'reaty, whose pkin (emban on ""an] nuclear cveapon test explosion or czny other nl4clel;l.re.r~~lc~sic;ivr" phasis added) in outer space does not admit of any loophole that would support nriclear explosive prc>pulsion,For a short, clear histoq of the ORICIN project and how it was ended bq the Treat>,see F. D3son, Satum by 19'70, in Disturbing the IJniversc 107 (1W9). However, many nations with nuclear and space capabilities are not sigr~atories tc~the 'Test Ban "Treaty and cvoufd face no such impediment. As discussed iulfia, the Outer Space Treaty (to which many more naticslns are signatories) is not a bilr to the use of nuclear explosives h r propulsion sr:, long as appropriate p~cautions against harrn to other naians are observed. Although QIZION technology is in some cvays rather crude, its crudity may well be offset b) its ability to deliver cxtremeIy poweduI propulsion with relativelq few new technical demands, allowing a new space power (such as a third world countq n d bound b j the 'lest Ban Treaty) to pcrbrm impressive feats cvithout developing the sophisticated technologies pssessed by more exprienced spice powers. Such uses bq cc~untriesnot signatc~riesto the Test Ban 'Tre* might we1l lead to an arncndmcnt of thc treaty to allow its signatories to dcr tkc samc-or to presSUE on nonsignatories to conform to its limits. This is a lesson worth karing in mind with regard to arms control treaties in general: g i ~ e nthe rapid spread of space tccknolagy, treaties binding only existing space pocvers-or worse yet, treaties binding only the 1;Xnited Sta;tes and the Soviet Union-are likely to hcome obsolete, and maq even keorne sclurces of conflict themselves. See the

discussion regarding the ARM l"reaty in C'hapter 4, inj"ra, for other cxamplcs of how overly llarr0~7i'treaties may become subject to obsolescence.

THE BUTER SPACE TREATY OF 1967 Among alli of the treaties relating to activity in outer space, the Outer Space "Treatyof 1967 en.joys the brc~ddestsubscription and the highest regard. Although sclme of the regard Eitr the '1-reaty may stem as much from sentiment as from an) concrete benefits it provides-thc Outer Space Treaty halting bcen a triumph of consensus and fon\rard-looking thought at a time when Cold War tensions and narrow nationalism were the norm-the Outer Space '1-reaty does accclmpfish a great deal, It provides limits on xnifilary activities beyond carth. prevents the cxtension of terrestrial sovereigrlty to spice or celestial hdies, and establishes a framecvclrk for the furlher development of law got erning activ it:, in outer spacl=, serving as a precursor and underpinning to such essential doczuxncnts as the Liability Convention, the Rescue and Returtl Agreement, and so on. On the other hand, the "I"reatjf eaves man) impjmnt questictns immswered.

Multilateral Treaty on Principles Governing the Activities of Sbtes in the ExpXorsttion. and Use of Outer Space, Ineluding the Moon and Other CeEestial Bdies, entered i~toforee Oct. 10, 1967,18 U.S.Te2,420,610 U.N.T.S. 205 Done c.zt W~tshi~zgtr~n, Lr;lndon, avd Moscc3l.v J~znuaq7.27~ l91967 ; Ratification advised by the Setzate of the Uniaed Sl'ates of America April 23, 1967; e d of America Maay 24, I 967; Ratified Izy tjze Presiderzt the U ~ ~ i t States Ratification ojtize UfzitedStates of Atnerica deposited at Waslzirzgtorz,b f z d ~ ~ t , and MOSCOW Ocf~lberlQ 1967; Proclaimed h:)!the Presiderzt c;lf the United States c$ Alnerica October IO, 1967; Eliztered irztoforce October 10, 1967. 'I'he States 13aaiesto this '1-reaty, Inspired by the greater prospects opening up befi3rt: mankind as a result of man" sentry into outer space, Recognizing the common interest of all mankind in the prt3gress of the expf oration and use af outer space for peaceful purposes, Beliebring that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective (.l" the degree of their ecanclmic or scientific deveiopmcnt,

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Desirhg to contrihute to brc3ad internaticslnal cooperation in the scientific as well as the legal aspets of the explordtion and use of 0ultc.r space for peacet'ul purpclses, Re1ieving that such coopration wilt eontrihute ta the development of mutual understanding and to the strengthening of friendly relations between States and peoples, Recalling resolution 1 962 (XVIJX), cntitlcd ""tcclaration af 1,egai Princi pIcs Covercling the Activities of States in the Exploration and Use of Outer Space,'* which was adopted unanimcjuslj bq the llnited Nations General Assembly on 13 Deeembcr 1963. Recalling resolution 1884 (XVXXX), calling upon States to refrain from placing in orbit around the Earth anq objects carrying nuclear cveapons or an5 other kinds af Iveapns of mass destruction ar from installing such Fveapons on eelestial bodies, which was adopted una~~imo~tsIy by the tjnitcd Nations Ger~eralAssemblj on 1'7 Octclber 1963, 'raking account af tinited Nations Cieneral Assembly resolution 1 1 U(IX) af 3 Noriernber 194.7,\v hieh condemned propagat~dadesigned or likely tcj provoke or encourage any threat to the peace, breach of the peace or act o f aggressicjn, and considering that the afc3remcntioncd resolution is appfieabtc to outer space, Collvineed that a Tredty on 13rinciplesGoverning the Activities of SQtes in the Exploration and Use ol" Iluter Space, ineluding the M a ~ nand Other Celestial:Bcxlics, wilt further the Purposes and Principles af the [:harter af the linitd Nations, Wave agreed on the tizllocving:

'I'he expfomtion and use of outer space, including the moon and other celestial bodies, shalli k carried out for the bcncfit and in the interests of all countries, irrespctive of' their degree of economic or scientific development, and shail be the prcx ince of all mankind. Outer space, including the mcmn and other eelcstiaX bodies, shall be free for exploration and use by ail Sta;tes with~lutdiscrimination of ally kind, on a basis of equajitj and in accordance with International law, and there shall be free access to all areas of celestiat bodies. "Thereshall be freedom of scientific investigation in outer space, including the moon and other celestial Wies, and S.tates shall facilitate and encourage international eo-opcmtian in such investigation.

Article 11 Cluter space, incIuding the moon and other celestial bodies, is not subject to nation& appropriation by claim of sclvereignty, by means of use or occuption, ar by any athcr means.

Articte III

Sates Parties to the "Treaty shall carry on acti~ritiiesin the explordtion and use of outer space, incl~rdingthe moon and other celestial MIes, in aeeordance cvith international law, including the C1hav;lerof the tinited Nations, in the interest of mainkitining intert~ationaipeace and security and promoting international cooperation and understanding, Articte IV

States Parties tcl the '1-reaty irndertake nclt tcl place in orbit around the Earth an) objects carrj)ingnuclear wcapslns or any othcr kinds of Gvcapons of mass destruction, ins&lf such Fveapons on celestial bodies, or sution such weapons in outer spice in ally other manner. 'I'he mtmn and other celestial bodies shall be used by the States Parties tc~the rTrcaty excl usively for peaceful purposes, The cstablishmcnt of miliury bascs, inslallatiolls and fofiificatisns, the testing of any type of Fveapons and the conduct of military maneuvers on celestial bodies shall be forbidden, 'The use of militarj) personnel for scientific research or for any othcr pcaceflxt purposes shall not h prcjhihi&d, The use of ally equipment or Facility necessary for peacet'uf exploration o f the mcjcln and other celestial bodies shall also nut be prcjhibited. Articte V

States Parties to the 'Freatj shall regard astronauts as envoys of mankind in outer space and shall render tc? them all pcslssihlc assistance in thc cvent of accident, distress. or emergency landing on the teterritorj of allother State 13astyor on the high seas, When astronauts make such a landing, thej shall br; safely and promptly returned to the SQte of registrj) of their space vehicle. In earrjing on activities in outer syace and on celestial bodies, the astronauts of one State Partj shall render all possible assis~nceto the astronauts of other Statcs Pzrties. Sa&s Parlies to the 'l'reaty sshal I immediate11 inhrm the other States 13astiesto the 'Ikeaty or the Secretary-General of the lJnited Nations of an> phenomena thcy discover in outer space, including the moon and othcr ccicstial bodies. which could constitute a &angerto the life or health of astronauts.

Article VI States Parties to the 'Treatj shall bear i~ltemationalresponsibilitj for naianal activities in outcr space, including the moon and other celestial bodies, cvhether such activities are carried on by governmen&]agencies or by non-governmenbl entities, and for assuring that national acticrities are carried out in confomity with thc prc3visions set forth in the present rTreaty,The activities of non-govern-

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mental entities in outer space, including the moan and other eeicstiafi bodies, shall require authorization and continuing supervision by the appropriate State Party to the '1-peaty, When acticities are carried on in outer space, including the moon and other celestial bodies, by an international organi~alion,responsibility far compIiance with this 'l'reaty shall be bortle both by the International organization and by the States Parties to the "I'reatj participating in such organizatictn.

Article VII Fach State Pzrt~ta the Treaty that launches ar prcxures the launching af an object into outer space, incIuding the moot1 and other celestial bodies, and each State Part> from whose territor?,or bcilit?; an object is lalmched, is intemationally liable Zi>rdtlmage ta another SQte Pa%yto the 'fireaty or to its natuml or juridical persons by s~rchobject or its cornponellt parts on the Earth, in air syace or in outer space, including the moon and other celestial Wies. Article VIII A State Ptzrty ta the Treaty on whose registrj) an abject launched into outer spice is carried shail retain jurisdiction and control over such object. and over an> personnel thereclf, while in outer spdce or on a celestial body. Ownership o f objects launched into autcr space, including ob'jects landed or constructed on a celestial body, and t.rf their cornpotlellt parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth, Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifyir~gdata prior tcl their return. Article XX In the cxplioratian and usc of outcr space, including the mc3on and other celcstial bodies, Spates Pdrties to the "Treatyshaf l be guided by the principIe of cooperation and mirtual assistance and shall conduct a11 their activities in outer spacl=, including the mcx3n and other celestial,bt>dies,with due regard to the corresponding interests of all other S"Etes 13artiesto the "Treaty. Sates krlies tcj the "Treaty shalt pursue studies of outer space, incl~rdingthe mmn and other celestial Qodics, and conduct exploraticsln af them so as to avoid their hamful contamination and also adverse changes in the envirc>crmentof the Edrth resulting from the introduction of extraterrestrial matter and, where necessaq, shall adcjpt appropriale measures for this purpose. I f a State Pzrt~ta the Treaty has reason to believe that an activilt;y or experiment planned by it or its nationals in outer spice, includi~lgthe moon and other celestial Wies, would cairse potentiallj harmfut interference with activities of other States Pzrties in the peaceful exploration and use

af outer space, including the mocsln and other celcstial bdies, it shalli undefiake appropriate international consullations before proceeding with any such activity or exvriment, A State Part;] to the Treatj which has reason tc~believe that an activity ar experiment planned by another Statc hrty in auter space, inciudirzg the moot1 and other celestial bodies, would cause pterrtially harmful intederence with activities in the peaceful explc->ration and irse of outer spaclre, including the moon and other celestial b-adies, may request consultation concerning the activity or experiment,

Article X In order tc~promote international co-owratic~nin the exploration and irse of auter spa", including the mcxsln and athcr celestial btdies, in conformity with the purposes of this 'l'reaty, the States 13artiesto the Treaty shall collsicler on a basis of equality an] requests by other S.tates Parties tc~the Treaty to br; afforded an apportunity to observe the flight of space oqjects taunehcd by those States, The nature of such an oppofiuniv for observation and the cotlditions under which it could be afforded shall br; determined bj agreement bet~veenthe States concerned. Article XI In order to pprmote international co-c.twmtion in the ~aceftulexploration and use of outer space, States Parties tc>the Treaty conducting activities in outer space, including the moon and ather celcstial bodies, agrce to inform the Secrctary-General of the Unikd Nations as welt as the public and the international scientific communitj, to the greatest extent feasible and practicable, ttf the nslturc, conduct, locations and results of such activities. On receiving the said information, the Secretaq-Gener.niof the United Nations should be prepared to disseminate it immediately and effectivel>. Article XI1 All stations. inshllations, equipment and space vehicles an thc moon and other celestial bodies shall be open to represenbtives of other Sates 13artiesto the '1-reaty on a basis of reciprueit]. Such representatives shall give reasonable advance notice af a prc3jccted visit, in ordcr that appropriate ceonsuXtaticslns may be held and that maximum precautions may be taken to assure safety ancl to avoid intefirenee bvi th nctrrnal oprations in the facilitj to be trisited. Article XIXI The provisions of this l"rcat5 shall apply ta thc activities af Statcs hrties to the "Treaty in the expIorzation and use of outer sinace, including the moon allcl

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athcr celcstiaf bodies, Fvhcthcr such activities are carried an by a singlc State Party to the Treaty or jointly with other Sates, incIudEng cases where they are carried on within the frametr,ork of international inter-governmental organizations. Any practical questions arising in conllectioll ~ vthi activities carried c'ttl by internaticlnal inter-governmental organizations in the exploration and use of outer space, including the moon and other celestial bodies, shafl be resalved bp thc States X3arties to the Treaty either with the appropriate international organimticjn or with one or more States members o f that international organi~ation,which are Parties 1~7the l"rcat5. Articte XIV

I , "I'his'Treatj shall be open to all States for signature. Any State which does not sign this l"rc"aty kforc its cntry into force in accordance cvith paragraph 3 of this article may accede to it at any time. 2. This Treaty ssbalf be sub*jectto mtifieation by signatoq States, Instruments of ratification and instruments of accession shall be deposited with the Golx ernmcnts of the linited States of America, the linited Kingdom of Grcat Rri tain and Northern Ireland and the Union of Soviet Socialist Republics, ivhieh are hereby designated the Depositaq Governments. 3, This Treaty shall enter intcsl forcc upan the deposit of instruments of ratification by the five Governments including the Governments desigr~atedas Depsitarq Cjovernments irnder this 'Treat>. 4. For States ~vhoscinstruments of ratification of accessicsln are depsited subsequent to the entry into farce of this '2'reaty9 it shail enter into farce on the date of the dewsit uf their instruments of ratificaiticjn. 5, The ilepositary Gt.>vernmcntsshall promptly inform all signaloe and acceding States of' the date of each signature, the date of deiposit of each instrument of ratification of and accession tc~this Treat), the date o f its entrq illto force and athcr notices, 6. "This"Treaty shall be registered by the Depsitaq Government punuaxlt to Article 102 of the Chafier of the Ilnited Nations, Articte XV

Any State Party tc't the Treaty may propclse arnendrnetlts to this 'l'reaty. Amendments shall enter into force for each State X3art>to the 'Tr"eatj accepting the amendments upan their acceptance by a majority of the States P;trtit;t;sta the "Treaty and thereafter for each remaining State Party to the 'X"reaty on the date of' acceptance by it, Article XVX

Any State Party to thc l"rcaty may give notiec af its cvithdrawal from the "Treatyone year after its entq into force by ~vrittentlotifieation to the Depsitaq

Governments. Such \vithdra~valshall take cfkct one year from the date of receipt of this notification,

Article XVXI 'I'his 'Treat), of cvbich the English, Russian, French, Spanish and f:hinese texts are equally authentic, shall hc depsited in the archives of the Depositarj) Ciovertlments. Duly cedit'iied copies of this Treaty sshalI be transmitted by the Depositarq Governments to the Cjovernments (.l"the signatorq and acceding States,

NOTE In order tc~understand the Outer Space "I'reaty's provisions, and the high regard in ~vhichi t is held, it is imporbnt to know something of the process by which it was developed, 'The 'l'reaty grew gradual1y out of' a series of eunt"t3renees on outer space Iacv and a number (BC General Assembfj declarations stating general pri,ncipIcs for international activity in outer space, '-fhisprocess is chronicled in the article by DernbIing &Art>llsfrom which the hllocving, rather lengthy, except comes. 'I'he excevt sets out some ojf the histcllrq prior tc~the negc~tiationsof the Fifth Legal Subcornmittcc that led to the 'f'reaty 's final form, as cvcl f as the key happnings at the Legal Subcommittee during those negotiations. 'l'ogether, these pieces of history provide considerable information regarding the positions af difhrcnt partics and the contemporaneous understanding af drafters regarding the Outer Spice "Treaty's key provisions. 13auI Dembling was Cenemi Counsel far NASA when the article was cvritten; he is now a partner at the Wdshingtc~n, I)-C'., office of Schnader, Harrison, Segat & Jmvis,

Dernbiing & Arons, The EvoIueian of tire Oater Space Reat_lV,33 JournraX of Air Law & Commerce 419 f 1967) An announcement was made on 8 Decembcr 1966, that agreement had k e n achieved among the members of the tkventy-eight nation United Natiolls Outer Space Gornrnittee on the text of a treaty governing the activities o f states in the exploration and use af outcr space, thc moon, and ather celestial bt~dics.Approval of the 'l'reaty was recommended unanimous1y by the 13cA itieai Committee of the General Assembfj on 1"1ecemkr 1966, 'I'kvo daj s later, the 'IVreatycvas endorsed by a unanimous vote of the Cicncml Assembly. Regardless of the tataf numkr of Shtes which may sign and ratify the 'lTreaty9 a remarkable endeavor of great significance to international law and politics has reached fmition. Nations aflcn in conflict with one another and adhcring to \vidcXy divergent politieaf

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philosophies have agreed on the first Treaty of gencral applicability governing activity in o~tterspace. The principles set forth in the 'Treat> had been adc anced pret icjuslq in the form of General Assembly resolutions, analogous international agreements, 40mestic legislation, shternents bj government oftjeials, articles bj scholars in the field and other expressicjns of views. Hocvever, agreement on the Treaty cvas primarily thc product of thc tabors af the t~vcn&-cightmcmber !&gal Subcommittee of the tinited Nations Generdl Assembly" Committee on the Peace-Tul Uses of Outer Space during the Subcommittee3Fifth Sessic~nheld in Czeneva from 12 July to 4. August 1 and in New York from X 2 to 16 Septembr 19%. The few issues requiring resolution subseq~telltto the concIusion of the Fifth Sessioll were the subject of various bilateral negotiations and other discussions held during the 'f'kventy-First Sessicsln af the Cicncral Assembly. Agreement was abbined on those issues shofilq behre the 8 December announcement that agreemellt on the 'Treatj as a cvhofe had k e n reached. Although the scope of the 'I'reatj as evcntuatlq agreed upon includes both outer space and celestial bodies, an imprhnt aspcct of the deliberations leading to agreement on the "Treaty is the extent to which the nations and individuals int cjlved were concerned, far the first time, with the formulation of realistic principles cvhich might govern activity on celestial bodies in addition to, but as distinct from, outer space. This consideration of eelestiai bdies was based upon a body of thought and action that preceded the Fifth Session claim o f sovereigntj based upan this occurrence, Although ivriters regarded the legal principles derived from expIoration of the earth's surface as potentially applicable to exploration containing the foflotving elements: 1 . The moor1 and other celestial bodies shczuld be free for exptoratic>nand use by all countries. No country should he p m i n e d to advance a claim of sot ereignty.

2. There should be freedo~nczf scierrtific intiestigatic>n,and all co~rrrtriesshould cmperate in scientific activities relclting to celestial bdies,

3. Studies should be made to avoid hamful conlamination. -3. Astronatrts d one country should give any necessary help to astronauts of an-

other c o u l l t ~ . S. No courrtry shczuld be permitted to station \+eapoli1sczP inass destruction c>n a celestial body, Wcapns tests and military mancuvcrs should be forbidden.

"Ilivodays after the president made his slaternent, United States Ambdsstddor to the linited Ntltians Arlhur J. Goldkrg addressed a letter to Dr. Kurt Waldheim of Austria, thc tuntaqbasis. As a result of the Soviet view, Article XI is ambiguous, as distinguished froin the cc.tmpamtiveiy uneyuivocaI obligation impsed on parlies to the Treaty by the third paragraph of Article V: The principles of assistance to astronauts in distress and their return to the launching State or other State of registv were already accepted by the members of the Legal Strbcommittee as constituting htrmanitarian obligations,

E, Parties Shall Bear International Responsibility for National Activities in Outer Space, Article VI of the l"rcat5 assures that the parties cannot escape thcir international obligations urrdcr the treaty by virtue of the Pdct that activiv in outer spice or on celestial brdies is conducted through the medium o f nongovernmentat entities or international clrgani~ations.Pcrhaps the mast important of the three scntences from the standpoint of domestic concern is the second, which slates that the activities c$ nongovernmentat entities in outer space and on celestial bcjdies shalf require authorization and continuing supervision bp thc State concerned, "The obvious example of activity covered by the secotld sentence is that of the Cl'ommlmications Satellite Covoration, a nc~ngovemmentalentity cvbose actic ities are authori~edand regulated by tJnited States federal agencies pursuant to federal slatutes and reguIatltons, However, while no one ~vouIddoubt. the need far governmental contro1 of er space actic it> at its present stage, the second sentence of Article VI cvvulid prohibit, as a matter of treaty obligation, strictly private, unregulated activitj in outer spice or on celestial bodies even at a time cvben such private activity becomes most common-place, Although the terns ""authori~ation"md "mntinuing supervisivn" are own to different interpretations, it ~vouIdappear that Article V1 requires a cemin minimum of licensing and enforced adherence to goc ernment-imposed regulations.

E Parties to the: Treaty That: Launch ar Procure the: Launching of Qbijecb into Outer Space Shall Be Liable for Damages, Article VII concerning liability was also talccn almost verbatim from an article of the Soviet drift, in this case Article VXX. "The Soviet drift was based on bra-

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graph 8 af the Declaration of 1,cgat Principles. Although the tinited Statcs draft conQined no similar provision, the United Sbtes delegate readily agreed to the incl~rsionof Article VII c$ the Soviet draft. sub-ject to minor drafting changes. The United Statcs delcgate9along with athers, reeogni~edthat the Legal Subcommittee was in the process of drafting a detailed treaty con liability, btrt no objection was raised to the mere inclusion of an article stating the generaj principle in the present 'Treaty an outer space and eelestiaX bdies. As the French delegate stated: The cluestions of Iiability and assistance were extremely co~nplicated,and if any reference to them was included in the treaty under discussion, it should he very brief and simple and should merely eskablish the principle concerned. Any additional details might dcaI too rapidly wt th prohlcms which had not yet been scttled.

Qn this basis, agreement was reached shortly before the close of the Geneva portion af the Session on the inclusion of Article VfX of the Soviet draft with minc-?r modiflcdtions. l'he sub-ject of international liability far damage caused bq space iehicles is indeed anc involving a multitude of problems, discussed clservhcre bp the authors in cotlnection with the work of' the Legal Subcommittee on the draft cotli entions on liability, Since Article VXI of the Treaty is essentially a repetition of Paragraph 8 af the Declaratinrr ojLegnl Principles, these problems were hardly touched upon during the Fifth Session in the course of discussion on liability. Hocvever, the Indian delegate questioned the meaning o f the word ""internrztionally,"' as used to mcdify "'tiablc," and stated that the article would only bc acceptable i f ""iternationally" meant "absolutelq,""But other delegations noted that the concept of "absolute iiabilitj "" was still being refined in discussions of the detailed draft treaties on liability and doubted the feasibility of embodying the concept of absolute liability in the text of ArticIe VII. As the A~rstraIiandelegate ncjted, "At earlier sessions the Subcc~mmitteehad found that absolute liability was necessarily subject to limitations and qualifications if justice was to be achie~~ed."

G, Jurisdiction and Canerof over Persannel and BbjecQ Are Not AEected by Their Presence in Outer Space or on CeXestiaX Bodies, Article VIEX af the Treaty consists af three sentences, two af which sbte general mles cotlcerning co~1tro3and ownership of prsotlnel and objects while in outer space and on celestial bodies. 'l'he third sentence imposes an obligation upan parties ta the Treaty to return found ot7jects to the party ta the Treaty an whose registry they are carried. *TheS&te of registq is required to furnish identi-

fy ing data if so requested, l"hc third sentence, in providing for the return of space objects, can be regarded as a companion provision to Article V ~vhichprovides far the assistance and return of astronauts. 'I'he return of space vehicles tc~the Statc af registry has bcen considered bp the Lcgat Suficornmiuee in previous scssions as a part of a treaty that, i f adopted, ~vouldregulate the assisknee and return of astronauts. Article VIXt cvas taken from Aaicie V of the Sociiet draft which virtually repeated R~ragraph7 of the Declamtion of X~gsllPrincipIes. Article 7 of the lJnited States draft was a similar pro~isionbut was concerned cvith c~lntrolof persclns and ocvncrship of objects only an celestial Mics. Also, the tinited States version did not contain a prot~isionfor the return of okjects, Wobbrever, the lJnited Shtes delegate readily acceded to the Soviet iersion, applicable to both outer space and celestiaX bdies, subject to a few minor drafting changes. l"hc mast noticeable change was the substitution of the word "hnded" "r "&livered t ~ in " the second sentence,Agreement on the final text of Arlicle V111 cvas reached one wcck &fore the close af thc Geneva portion of the Session, prior to the agreement on the finaI text of any other article.

X, Parties ta the Reaty ShalB Avoid Harmhl Contamination of Qurter Space, CelestiaX Bodies, and the Environment of Earth, and ShaII Consult with Other Parties Regarding PotenitialBy Harmful Experirnenb, As stated by a leading proponent of the 'Treaty as an instrument of international cooperation, Article IX is ""a prt3vision cvhich is designed to protect outer spice and the celestial bodies from conkmination and pIIution and to protect s undue interference,'" the legitimate programs resumabf>the additional right of free access to outer space, per sc, exists, since, if this right Fvere not present, the right of free access to the Moot1 and to other celestiaI bodies cvc:,uld be frustrated. It is generallj accepted that mention of celestial bctdies in thc 'f'reaty includes reference to the Moon. It is now considered to k the right of natural and juridical persons other than States, as well as SQtes, to have the right of free and equal access to the space environment,per- se. Nc~reover,the sights of such persons are extended to exploration, expfoiution, and use. 'f'hcy may also

engage, pursuant to Article X , in scientific investigations, and pursuant to Article 4, in scientific research. These are all o~rdtiotlalas distinguished h m management activities. It is, however, a fact that the Principles Treaty makcs no explicit reference to the exploration, use, and exploil-ation of the resources of the er~vironment,'The agreement neither expressly authorizes nor prohibits, the exclusive acquisiticln of the resources of the area. Nonetheless, thc general availabilit~of such resources for inclusive exploration, exploitation, and use, by way of syace-related '"ctivities,'" can be supprted on setieral grounds. First, as noted. the res CCII'IZI'IZL-Irtis principle measurably affccted the thinking and the conclusions of the ncgotiators, Second, interl~ationalprdctice has gone forwrird on the basis of the principle. 'Third, Article 2, through the acceptance of the principle of non-appropriation of the area- thereby rejecting the res tzullicts princi plc-ordained that the area was not ""subject to national appropriation by claim of soirereignty, by means of use or occupatictn, or bq an) other means."" 'I'hus, the conclusion may be drawn that Slates and other natural and juridical persons have the right of free and ey uaI access to sinace er~virc)nment,per se. Morcot er, their rights are alsc~extended to exploration, exploitation, and use. Afl of this is based on the fundamenbl proposition that ArlicIe 1 autk3ri~esthe cxploration, exploitation and use of the area and the resources of the area provided such '"ctivities'? are carried out, as Article 1 specifies, "fc~rthe benefit and in the interests of all countries, irrespctive of their degrcc of economic or scientific development, and shall be the province of all mankind." "Thecentral issue presented by the foregoing prescriptions and examined here is cvhether the Principles 'I'reatj in its entirety, as supplemented bq subsequent international agreements, and by international pmctice, prevents juridical persons, other that1 States-and in pdrticular intert~ationaiinkrgovernmenQI organi~ations- from cllzimillg exclusivc operaticlnai, as tveX1 as management, rights, which are denied to SQtes. Being prevented from claiming sovereignty and cxcIusive property rights located in the spice envirc)crment for thernseIves, it will be argued that States are alsc~prohibited frclm granting quasi-sovereign and exclusive proprty rights over such areas and resources to those natural and juridical persons which are subject to national jurisdiction and which are created through international agreements, It is clcar that ArticXe 2 prohibits national claims relating to the area of the spice er~vironment,and to the resources of that area, sub*jectto the "hot in place" terms of the 19'79 Mcmn 'I'reaty. 'This raises the yuesticln initiallj whether Article 2 can construed to prevent the effective assertion by an international intergovert~mentalorganization of exclusive rights-both operational, e.g., exploration, exploi&tion, and use, and got ernmental, e.g., prescription attempt at definition, There was recognition bp the linited Nations that the problem of determining where air spice ends and outer spice kgins ivould require its attention. fn the General Assemhll resolution adopting the '1-reaty, a stud] of the definition problem was requested, Responding ta this requcst, the Ccjmmittcc on the Peaceful Uses of Outer Space recently held a tlumber of sessions at which the problem cvas considered. While a definition has not k e n agreed upon, these sessiclns have produced enough discussion to justify analy~ingthc relei~antconsiderations as judged by the 'I'reaty 'S ddraftsmen. The French cvere the first to advwate a stud] of the definition o f outer space as it applied to the Treaty, and were the first to present their view af the issucs involved. Centril to their concerll was that the Treaty affirmed renunciation by states of an> sovereigntj of er outer space. Pointing out that states now retain sovereignty over congrucnt air space, they desired sornc delincation of \vhcrc:air spice ends and outer spice begins. fn light of aerospace vehicles, this delineation seems efen more desirable, Even if a nation's vehicle remained "over" its awn territorjl, it might not be subject to that natian3jurisdietion and might even k in violation of the 'rreaty. Even with an intrduetion this brief, one realizes the complexi~of the problem of defining outer spacl=,It is this complexity, coupled with the need far additional scientific data, that has led a number af ccruntrics to urge a cautious approach to the definition problem. Many feel that definition does not require priority attention. 'The one thing about the definition of outer spacl: that can be said with certainty is that anything in arhit is generally accepted as king in outer spice. In determining how to treat aemspace trehicles under the 'Treaty, the wczrd ""sation" md how it afkcts the interpretation af "'such weapons in outer space" in Article fV could be relevant, No information pertinent to this admittedly subtle inquirg, cvas found in the record of the draftsmen's discussicjns. "Station" secms ta imply something mare permanent than thc prtssing through outer space which deseri bes the flight of an aerospace vehicle. ... The fact that ICBM's which simply pass through outer space are not considered triolations of the Treaty supprts an intcrprehtion of "'station"' implying wrmancncy. The Fveapons prohibited "in orbit around the earth"' and ""sation[edj ... in outer spceSbre"nuclear weapcjtls or ally other kinds of weapons of mass destruction." Usual1y given as examples o f "other kinds of weapons of mass destruction" are bacteriological and chemical weapons. Conventional weapons are

not included, E-;,\.cnthe largcst of the non-nuclear explosive Fveapjns are not considered iveapns of mass destrrretion, Any weapon develr;t~din the future with the capacit> to cairse the extent of destruction or loss of human life which nuclear weapons can wreak would at so prohi hited, Even a term seemingly sr:, cIear as ""nrielear weapon""is subject to cotlflicting interpretations cvhen read in the cantext of a parlicutar militarq system, One long range propsal for a defensive system against missiles incltrtjcs a satellite using a beused beam of mdiation h m a nriclear reactor [i.e., an X-Ray Iaserj as an atomic heat ray to destro) an enemj missile. A similar S] stem cvas studied b j the linited States but later abandoned as too expensive and unreliable. With the rapid advance of technoIogy one cannot safely assume that it will not be revived. A nuclear reactor used as the source of a radiation beam differs from the usuaj nuclear cvcapon in that it dms not explcde, While it is nuclear and a cveapn, it is not necessarily therefizre a iveapn of mass dcstntction. Article TV could be read as prohibiting only nuclear cveapons of mass destruction. Some suppczrt is found for this vicw in the Treat] language "'nuclcar Fveapons or any other kinds of weapons of mass destrrrctioll ..." (emphasis added). It could be argued that the use of ""other'"implies that nuclear cveapczns cvere included onlij as an example o f what the l"reaty prc3vision cvas actualf y intended to prohi b'rt- \veapons af mass destruction. 'l'his being trrre, then the slatus of a nuclear weapcjtl under the Treaty should be decided on the basis of whether it can cairse mass destruction. In rejecting this argument, the Legal Adviser to the Secretary af State. honard C. Meeker, sated that ""any nuclear Fveapn is forbidden in sinace ... je fven a small one is considered ... tcl be a weapon of mass destructicln.'"His interpretaticsln of thc language would read "other" as assimilating nuclcar Fveapns to iveapns of mass destruction, and prohibiting both.

NOTE Mr. C1rraspiece provides a good survey of many of the issues as they appeared cvben the Outer Space '1-reaty was ratiGed, In many waj s, little has changed-he describes thc EIynaSoar, which was never built, but the legal problems he descri hes in connection with the DynaSoar are just as applicable regarding the Space Shirttle or various aerospace plane designs new under cansideration, Similarly, he describes the potential crnploymcnt af space-based nuclear reactors to power X-Ray lasers for antirnissife use. AXthortgh such designs are considered as impractical next. as cvhen he cvrote, there has been cc~nsiderabfcdiscussion of the use of X-Ray lasers powered instead bp nuclear explosives. linlikc reactor-pocvered lasers, though, such devices ~vouldelearlq violate the provisions of both the 'Ikst Ban and the Outer Space '1-reaty since theq cvcluld involve bc~ththe placing af nuclear weapons in orbit and (rvhcn uscd) the detonation of nuclear Fveapns

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in orbit- al though the -rest Ran rTreaty forbids such detonations only in pacetime, a cotldition that ~vouidpresurnablj have passed if antimissile systems \yere in use. Still, the lest Ban 7'reaty would forbid any in-space tests of such a system, leaving its rcliabijity in doubt. In addition, af course, such a system (whether bomb- or reactor-powered) ivould Pace probiems with the ABM "Treaty, problems discussed in the fof loiving chapter. As discussed earlier, horvever, same space pwcrs coutd make use af nuclear explosives for spice prrjpulsion ~virhoutviolating any treaty obligations. "The Limited "I'estBan "I'reaty applies on14 to its signatories, a group that does not include a number of emcrging space pocvcrs, Thc 'rest Ban Treaty forbids any nucIear explosion, ~vhett-rerpaceful or militaq, in outer space. 'l'he Outer Spice '1-reaty forbids ont-?,the pl acing in orbit r.f ""anj objects cairrq illg nuclear weapns ar any other kinds af cvcapons of mass destructian"' rather than prohibiting the use or orbiting of' nuclear explosives. Nuclear explosives used for propuXsio11 cvould not constitute ""weapons"kanceptwllq,si~lcethej are not intended to produce harm, and prc3bably cvould for tcehnicnl reasons bc unsuited for dcstruetive purposes. 'l'hus, the Outer Space 'X"rr=aty9s arms control provisions ~vouldprobably not bar the use of ORI(ZN type nuclear propulsion, at feast for pexef'ul purposes, tisers of such systems \v~ufd,however, remain liable under Article VII t"or any clamage caused by use of such a system, meaning that its use anywhere near the earth cvoufd be limited bj dangers to other spacecraft and satellites from radiation and e'leetramagncticputsc. Gorove, Arms Contral Pravisians in the Buter Space Treaty: A Scrutinizing Reappraisal, 3 Georgia Journal of International and Comparative Law 114 (1973) Nuclear and Other Weapons of Nlms Destructian. Pdragraph anc of article IV of the l"reatj relates to nuclear cvcapons and any other kinds of Iveapons of mass destruction. 'l'he initial problem presented by the 'I'reat-?,is the Lack ttf a. definition of what canstitutes a "nuclear cveapczn""or a '"weapn of mass deslrmetian," lt may be presurncd that all arms which utilize atomic energy in accompIishing their intended purpse, irrespective of their size or destructive force, wczuld be regarded as nuclear cveapons, At the same time, it may also be assumcd that conventional cveapns do not come under the category of either nuclear weapcjtls or any other weapons of mass destruction. While there is no illdieation in the "Freatyas to how man> perzple must be affected to canstitutc a cveapn of mass destruction, a group af 20 to 30 people or less probabt y would not constitute such a mass. If on the other hand, bacterioXrjgica1 and elrtemical cveapczns cvere used, even against a smafl group, then these cveapons cvoufd sccm to falt under the category of \.ticaponsof mass deslruction,

Second, the states prtrties to the Treaty undertake not to ijwt~ltnuclcar and other iveapns of mass destrrrctioll on celestial bodies or station them in outer spacl: in an> c)ther manner, 'The drafters omitted any reference to the mtmn in this provision even though in other parts of the l"reaty they have Pdirly consistently rekrred to the ""moon and other celestial bdies.""It is by no means clear, however, whether the omission o f the word ""moon" was intention&, or if the implication is correct that no restriction is placed on the instafiatlon of atomic weapons on the moon. Clne may surmise, hoivever, from the freyuelltly used phrase ""mmn and other celestial brzdies'2hat the moon is to be regarded as a celestial btdy under the 'f'reaty. Moreover, it \voutd make little sense to pcrmit installation of t+reapc.ttlsof mass destntetion on the moon while prrjhibiting such installation on other celestial bodies, when man" use of the Latter Iooms in the more distant futurc. Signilkant q~restionswith respect to the interpretation of paragraph one of article IV relate to the meaning of the words ""install"" and ""stion." At cvhat point does a Fveapon kcorne installed?Xs the mere presence of a cvcapon on a celestiaX body prohibited? Furthermore, what collstitutes stationing in outer spiicef?is this identical with orbiting, or d c ~ its hate a distinct meaning? Anj definition c$ installation of a cvcapon should require something mare than the mcre presence of a iveapn on a celestial body. On the other hand, shtion should be interpreted to i~lcl~rde the placing of a weapon in a relatively fixed orbit in relation tcl the imderlying celestial body. such that the speed of the orbiting oqject cvoufd coincide with the speed of rc)&-ttionof the celestial body.

Use for '4Peacefu'tf'Purpases "The second paragraph of article iV states that the moon and other celestial bodies shall be used bj the parties exclusivetj for peaceful puyoses, Like paragraph onc, this proitision obligates only thc states prtrties to the Treaty and is not declamtoq of a more geneml obligation, it should also be tloted that this provision makes ncj reference to outer space. 'This is nclt an accidental omission. Both paragraphs one and two af article IV cxpress the underlying policy of prohibiting only certain uses of atcjmie and other iveapoxls of mass destruction in outer spacl=,yet nclt completely outfatving their use. Another interesting problem that may have some practical relevance tcl the f~rture application af prtragraph ttvv relates to the s i ~ eof ccicstiafi br>dics, Hocv large must a celestial body be to be considered such a body? Wuld a meteorite or asteroid or a small mcjcm o f a celestial bod~constitute such a bcjdj irnder the terms of the 'f'reaty? An examplc of the ptential probIems cvas indicated when

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not long ago scientists reported that it might become technically fcasible for a future space exvdition to steal one of the smaller s i ~ mmns e (5-10 miles in diarneter) of Mars, tc~remoi e it from its Mafiian orbit and to place it in orbit around the earth, and thus effectively change the sotar system. Would the removal af a celestial body from its natuml position bj human intervention chal~geits chamcterization as a celestial body irnder the '1-reaty:) A meteorite cv hich lands on earth bp natuml forces and uvithouthuman interference prcsumabfy loses its designation as a celestial b d ] under the Treaty. But the srime is probably not true with respect to the example of the Martian moon. Pdragraph two conuins one of the most eontrc)versiaX provisions in the Outer Spce 'rreaty. "The meaning of "peacehl""has given rise to at least twc~ma-jor interpretations, tInder one interpretation the tvord ""paeeful""means ncmmilitary, while under a second interprebtion the term means nonaggressive, "There is a vast diRerelace insofar as the outcome of these two differex~tinterpretations is concemed. tinder the fomer interpretation no military activities could be conducted an the mcx3n and athcr celestial bdies except those Fvhich are spcifically prmissi bie under the pardgraph twro language, e.g., the use of militarq persclnnef for scientific research, tinder the fatter interpretation, actic ities nonaggressive in nature would t7c: pcrmissihtc, cven if they are conducted by the militaq, with cefiain exceptions. These exceptions are those specifieallq farbidden bj article IV. e.g., the establishment of militarj bases, installations and fortifications, the testing of any types af weapons and the conduct of military maneuvers on celestial bdies. "1"hoseadvwating this second position have referred to the Charter o f the tinited Naticjns for their meaning of peaceful. 'The fomcr position is supported by the Statute af the International Atomic Energy Agency ~vtziehdistinguishes pacehl from military uses of atomic energy. In reality it would appear that the dratlers of the outer Space '1-reaty have not adoptcd either af thc above interpretatians. -Fwv fzcts support a meaning af peaceht that is distinct from earlier usages. First, certain activities. such as scientific research or the use of any equipment and facility necessarq for pexefuf exploration arc: not prohibited, even if underhkcn by the military. Second, eerFain other activities, such as the establishment of mifitaq bases, installations and fortifications, the testing of an> type of iveapons and the conduct of military manetxvers, are forbidden cven if these activities are of a nonaggressive nature, Onc possible shnddrd is the relation of an activity to national security. C'ertain activities may t~oth as critical or signilkcat as others. 'rherefcjre, it would be better to identify those activities which constitute minimat threats to national security and prmit those regardless of the ultimate purpose for such activities or their cotlduct bj mifirary personnel. in this manner the whole bthersorne issue of peaceful iersus militaq or aggressive could be at [bided for the most part, although qucstians af interpretation ~vouldstill remain, Far example, nation states

may dccidc to permit photography of thcir underlying territories from outer spice regardtess of the ultimate purpose for the photogrdphs, if this were to he done, the t ~ p of e problem which might arise wczuld relate only tcz the interpretation of the ward ""photagraphy," which woufd appear to be much more easily identifiable than ally uI tirnate use or hidden purpose. It may also be of interest to pint out that the use of any eyuiprnellt or f'ilcility is permissible under paragraph ttvo scz long as such use is utecessarq for the peaceful exploration of tl~cmcx2n and other celestial bdies. Therefore, it cvould appear that mili&tv eyuiprnellt or Pacitities could legitimately be used for s~rch purpose. However, as pointed out, it maj br; argued that the word peaceful cvas not meant to imply nonmilitav, A similar argument may be predicated on the language in paragrdph two that altocvs the use of militarq personnel for scientific research or for an] other peaceful purposcs. Thus, scientific research is regarded bp the drafters as an activity basically of a waceftul character. 'This is the connotation that may reasonably be drawn from the use of the phrase "for scientific research or far any other peaceful purposcs." Et may thcn be safe to assume that no scientific research is prohibited by the 'l'reaty regardless of whether or rrot it is cotlducted bj civiliatl or mifitarj personnel, There may be strong doubts about this assumption, hut the express language does not place any restriction on the abjcctive of thc research. "Thus, the object of the research, ivhether the advancement of sciexlee, mifitaq defense, or perhaps even outright aggression, cvould hatre no bearing on the lacvfufness of any research activity under paragraph two. Admittedly, this construction may ntrr contrary to the general spirit and other prr>visionsof the 'l'reaty, i.e., that the exploration and use of outer space br; carried o~rtfar the benefit and in the interests of all countries, and that thc moon and other celestial bodies be used exclusively t"or peacefir! purposes. Ho\vever, the ~vordingof the prrjvision pertaining to the free use of militarq personnel for scientific research makes no mention af the mc3on ar other cetestial bodies or, for that matter, af outer space, "Thus,one may assLrrne that it was rneallt to apply generally. The drafters of the '1-reaty hatre indicated that scientific research should not be curtailed and reatisticalliy they have ailowed the usc of militarj) prsonnclt to further such rescarch. Et is reasonable to cotlclude that regardless of its objective or where it takes place, scientific research is favored bj the 'Treat) terms.

I , In his call for mczre precise definitions of terms, Cjorove takes a different position than Orr; who generally scems more ccomfortable with flexihlc interpre-

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tatians. There are arguments btsrth cvays: averly specific definitions may be rapidly rendered obsolete by technological or other change, while olierly brozid definitions maq be so vague as tc~be meaningless. 'The QluterSpace "I'reatj's reference to ""nuclear Fveapons or any othcr kinds of Fveapons of mass dcstruction"' seems a good compromise: it includes what the drafters were most immediately concerned with, the stationing o f nuclear bombs in orbit, as weff as possible new weapons, unforeseen bp the draCZers but psing similar threats to global security, that might arrive later. See getterally Peacet'ul and Non-13ea;cefui Uses of Space: Problems of I>el"initionfor the Preiiention o f an Arms Race (B. Jasani ed. 1992); C'entre for Research of Air and Space i,acv, Space Without Weapons (1990); Dana Johnsox~, Impact of International Law and Treaty Obligations 0x1 llnited States Military Acticities in S~dce,3 High "I'ecbnologq l,aw faumat 33 ( X 988). 2, Despite the cotleeras mentioned by both Orr and Gorove, the legality of satellite reconnilissaince is no longer a major issue. fsartlj keause the technolog) for such reconnaissance has become widespread and Pdmitiar, and partly because the benefits of such systems in prr'tmoting sability and in verifying arms control agreements are widelj recagni~ed,fetv nations ncm dispute the legality of such activities, The Soviet Union formerly opposed satellite surveillance, but has ceased tc't do so; in 1972 it signed the SALT 1 "Treaty, Ma) 26, 1972, U S . ll,S.S.K., 24 ti.S,'1: 3462 (expired), in which each party undertook not to interfere with thc other's ""national technical means" of verification, a term cneornpassing sateIIite recotlnaissance (see Chapter 4). More recently, the 1;Xnited Nations Cl'QPlJOS has drdfted p"icip1es on remote sensing that underscore its legality in general, For more an the international legal status of remote sensing. see Chapter 5. 'Phere have also been some interesting developments in U.S. domestic 1aw relating to pricate entities' use of satellite reconnaissance technology, See Merges &L Rcynolds, News Media Satellites and thc First Amcndmcnt, 3 High "rmhr~ologyLaw Journal I ( 1988),and Chaper 8, r'nfia:. 3. Man5 issues touched on bq the Outer Space 'lreaty cm14 briefly and in general, such as thc treatment of liability or thc duty to rescuc and return astronauts, are addressed in more cletaif by later agreernetlts-tizr example, the 1,iability Cl'oniention or the Rescue and Return Agreement, "I'hese ""miscellaneous treaties," along with othcr issues, are discussed in Chapter 5.

Development and Defense: Treaties of the 1970s With the early treaties discussed in Chapter 3, the international community established some basic principles to goc ern space. In the l WOs, attention cvas focused on more specific goals, That decade prc3duced two impomnt treaties that will have a significant impact on ftiture aetic?itiiesin space: the Antibailistic Missile (ABM) "I'reaty of 1972, and the Agreement Gotrerning the Activities of States on the Moon and Other Celestial Bodies of 1979, knobvn as the Moon .. I reaty. In this chapter cve will keep to the chronological order established in Chapter 3 and consider the ARM Treaty first. Although this l"rc"aty is far less comprehensive in its treatment of space activities, it is more important than the Moo11 '1-reaty in at least one respect: its signatories-the llnited States and the former Soviet linion (nocv the C'ommonweait th of Independent States)-are the n?a.jor space pc.r\vers, while tleither these tlations nor any other space poFver (save France) has jet signed the Moon 'Treat>.See C'hristol,'l'he Nc~onTreaty (Current Developmcnts), 79 Amcrican Journal of International Iacv l63 ( 1985). In the second part: of this chaptcr, we will explore the reasons far this. As we evil1 see in the excerpts from Kene-Jean Duguy and Eilene Gatloivay, both iulfia, thc major controversy revolved around thc provisions of Article XI, which declared that outer space and celestiail bodies are "the common heritage of mankind." At issue cvas the future det etclpment regime that cvclruld govern the exploitation af the vast resources af outer space. A definitive reviecv of those resources concluded that the moon alone conbined huge amounts of raw materials for making ""sructurat metals, silicon glass, and ceramic products." Staff clrf Senate C'ornm, on Commcrce, Science and 'f'ransportation, 96th Clang,, 2d SCSS., Agreement Governing the Activities of States on the Moot1 and Other Celestial Bodies, Part 4 at 41 5 ( l980). Although the meani~lgof the "commcln heritage" principle is shroudcd in mystery, its origins in the ideologically divisive Imv of the Sea Treaty guarax~teedthat its interpretation in the spice cotltext-where so man) pcJtentiatly impofiant natural resources are at stake-cvoutd became politici~ed,While some abservers from the developed countries klicved the Moon v

Treaty would promote development, see the excerpt from Finch and Mcwre, iinfin, the ccjnsensus of this group, ret.?ected in the excerpts from Dula and the Georgeto~vnstudent note bgi Alan Duane Wehkr, inJfva, was that the traguely communitarian ""emman heritage"' principle cvould put a crimp on pioneering spice deveiopmel~tactivities. In this view, the common heri&ge principle ~voufd lead to a centralized administrative structure requiring fims and governments tc~ share their bounty with all the nations af the earth- thus standing as a major disincentive to high-risk development activities. Representatives from the imderdeveloped countries take a different view of the eomman hcriuge principle. As the cxcevt from Kao, infia, shows, they saw the Moon "Treatyas the first step in the essential process of bringing the underdeieloped cvclritb into parity cvith the tveafthq nations, 'The Treaty in this i iew invites the establishment of an international regime to equitably distribute the proceeds from space resource development, 0x2 the theory that such resources belong tcl all mankind. In this sense, the 'Tre* is one of the first manifestations af the Ncw International Economic Order, a prc3posed restructuring of {he global economy based generallq on principles of sharing and equilabie development rather than "neo-colonialist expfoitation.""This new economic thinking is descrt'kd in a brief note alter the Kac, excerpt. Wester11legal commenktors and economists remain unprsuaded of the merits of the principles underlying the New Enternational Ekc~nomicOrder, howet.er, as the excerpts fr13m Webber and Dula. and the Note on (_"ommanPrc3perty Kesources and Efficient Allocation, all I'l~Jrja,dernonstmte, *Theybelieve instead that the best way tc~encourage develcjpment is to permit pioneering firms and govemmcnts to lcccp their prc3fits. Without the turc af substantial profits- undiminished by the uncerlainties of a scheme of international sharing-they argue that space development is too risky to br; imdertaken by an> rational organization. Dula takes prhaps the extreme free-market vicrv; others, nobbly Wcbker, and some of the ecotlornists cited in the Note, see some merit in an international regime h r allocating development rights-so long as the profit-sharing component of the regime is kept separate frcm the system us& to allocate deilelogment rights, Sc3 we have some interesting issues awaiting us in this chapter. We turn fjrst to the ABM "I'reaty, its background, and what it means for space activities.

THE ABM TREATY Thc ARM Treaty sei~erclylimits the deployment, testing, and use of missile systems desiglled to intercept incoming strdtegic ballistic rni ssiles. it is a bilateral treaty ktcveen the llnited States and the Soviet lJnion that took effect in 1972, Missiles, launchers, and ABM-related radars are prohibited or sharply Emited under the 'X"reaty9which applies to sea-, grc)und-, and space-based ABM systems (see Article V, reproduced k l o w ) , "I'here is one exception to the general prohibition af Article 11: Article IIE pernits cach side to mainain onc ARM sys-

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tem around its capilal and anothcr around a group of Inter-Continentd Ballistic Missile (ICBM) silos of its choosing. Arlicle fV also allows the U.S. and the Sot iet llnion tcl keep the det elopment and testillg operations thej had at the time thc 'f'reaty was signed,

BACKGROUND "TheARM "Treaty grew out of the Strategic Arms Idimitation'FZlks fSAL.3' I), which kgan in Not ember of 1969. 'The basic philc;lst,phj behind the 'Treat] cvas simple. The recently d c v e l o ~ dARM systems, with their potential ta give one side protection against the other's missiles, might give one nuclear p w e r the irnpressiizn that it could launch an attack against the other tvithout suffering significant damage itscl f, l"his cvas abviousliy a frightening scenario; important1y, it was just as dangerous ~vhett-reror not it was true, so long as one side believed it had an advantage. "I'he solution to this problem (and the related threat of a massive "vending race"") it cvas agreed, was a treaty limiting thc deployment of these systems, 'I'hus the ARM "Treatywas born. Only two of the "I'reaty9ssixteen articles relate to space, Articles V and XIE, They are set forth bclow. Treaty on the Limitation of Anti-Bailistic Missile Systems, May 26, 1972, U,Sc-17.SIScR.,23 U,SIT.3435

I , Edch 13art>[i.e., the lJnited States and the Soviet lJnion1 undertakes nclt to develop, test, or deploy ARM systems ar components cvhich arc: sea-based, airbased, syace-based, or mobile Iar~d-based, 2, F ~ c h13art>imdeaakes not to det elop, test, or deploy ABM launchers for launching mare than one ABM interceptor missile at a time from each launcher, nor to modifji deployed launchers to provide them with such a capability, nor to develop, test, or deploy autclmatic or semi-automatic or other similar sqstems for rapid reload of ARM launchers.

Article XXX 1 , For thc puFose af providing assurance of compliance with the provisions of this "Treat), each Pwty shall use national techr~icalmeans of verifkation at its disposal in a manner consistent cvith generallj recogni~ledprinciples of international law.

2, Fach Ptzrty undcrbkcs not to intcficre with thc nalicsrnal technicaji means of verification of the other Party opmting in accordance with pamgraph I of this Article. 3, Fach Pzrty undertakes not to use deliberate conccalmcnt measures ~vhich impcclde verification by national technical means of compliax~cewith the provisions of this "I'reaty.This obligation shall nut require changes in cunent construction, assembly, conversion or overhaul practices.

There are two points cvvrth mentioning about Article V. Paragraph X spcificall) refers to ""space-based" ABM systems even though in 1972, when the '1-reaty was signed, no such s5stems were opemtional. Second, Paragraph 2, limiting the capacity of ARM missilc launchers ta one missile at a tirnc. does not prevent a party from placing more than one t~on-missilepro,jectile on a launcher. ('I-his cvas one component in the controversial Keagan Administration "reinterprebtion"' af thc ARM 'f'reaty, discussed in the follocving section.) Arliele XI1 is significant in that it represents the codification of the ""open skies" "principle. ('Fhe SAIX f Agreement. another bilateral treaty adopted in 1 97 3 ,also prohibi ted interference with the ""ntional technical mcans af veri fjeation" of the other country; it has since expired, See Interim Agreement on Certain Measures bvith Kespet to the Limitation of Strategic Of-fensikeAms, bvith Protcxol {SALT I), 23 li.S.'f: 34-62. (effective Oct. 3, 1922;expired).) With this prcjt~ision,space-based surveil t ance satellites not 0111 y became legal ; they became an essential component f the language, intent of the parties, and purposc d the prot isions. 'l'he interrelation and mutually reinforcing effect of the setrerat protrisiorls irz its articles (and related agreed statements expanding on them) arc also important. fudge Sofaer /as he prefers to be called1 in effect turns the prcxess c$ interpretaaliorl the text cm its head: instead czf interpreting the tenns of the treaty as a whole, he disaggregates and then reassernbles them, czften tvith great triolence to the clear meaning of the larzguage. Bencfi~lg the parts to flt his prefemed pattern, he constructs a kind of ABM Treaty Mod IT, ""Made in the IISA,'"o suit the needs of a policy git ing priority to the Reagan administratioil%SDI [i.e., Star Wars] progmm, rather than to the intent and purpose of the lJnited States and the Soviet tinion when together the) concluded the ABM Treaty.

R. Cafihoff, Policy Versus the Law: "The Reinterpretation of the ARM 'I'reaty 20 ( 1987).

1 , Prior ta the dramatic rejnterprelatian of the ARM 'f'reaty, mifilary leaders and the Reagan Administrdtion argued that the Star Wars program, or Strategic Defense Initiatiire (SDI), cvas not a violation of the 'Treatj because it cvas on14 in the research stage. As Gcncml Jarncs A. Abrahamson, ilirector af the Strategic Defense Initiative Organization, explained in Congressional testimony on the program, "rThe ABM] agreement does permit research short of field testing nof the ABM "freaty appears to differ subslarrlially from the consenting Senate d the 'I'reaty. A fair reading of the Senate hearings strongly suggests aborrt the meaning czf the ABM Treat}: first, when Article 111, paratwo co~~clusisns graph 1 of Article V and Agii-eed State~nentI> are rcad together, their impcrrt is that the detieloprnent and testing czf ""Sir Wdrs" k c h ~ ~ d o giny any basing mc>de other than a fixed, land-based mode is prthibited; and, second, that the depiqrnent of such technology in et en the fixed, land-based mode is prohibited undcr the l'rcaty.

Kenncdy, Treaty Entcrprelation by the Executive Branch: 'Fhc ARM Treaty and ""Star Wdrs" "'I'esting and Development, 80 American Journal of fntertlational Law 884,866 1986).See c.zlsoA, Sherr, A Legal Anal>sis o f the ""New Interpretation"' of the Anti-Kalfistic Missilc Treat] (1986); Chayes &L C'haycs, -resting and Deveioprnellt of "%xotie""Sqstems Under the ABM Treaty: The Great Reinterpretation C'aper, 99 Harvaird Law Rec iecv 1956 ( i 986). 5, Many members of Congress were so incensed at the proposed reinterprehtion that the Sellate threatened to block rdtifieation of another arms control tre* -the f ntemediate Nuclear Forces f INF) Treaty ot" 1988- until the Reagan admi nistraticln w i thdrekzi thc A KM reinterpretation. See Norman, Showdocvn Nears on ARM "Treaty, 238 Sciex~ee147, 149 ( 1988). In aclditiotl, because the ABM reinterpretation goes against the understanding in the same area t$ or in the same orbit around or trajectory to or around the moon, it shall promptly inform the othcr sbte of the timing af and plans for its own operations. (3) fn taming out actit ities under this Agreement, states parliies shall prompt15 infom the Secrehy-(ieneral, as ~vcllas thc: public and thc international scientific community, of any phenomeila they discover in outer spce, including the moon, which could endanger human life or health, as well as (.l"an] indialion of ormnic t ife,

(I) l"hcre shall be freedom of scientific investigation on the mocsln by all states parties ~vithoutdlrscrirninatic~nof any kind, on the basis of equality and in aeeordance with internationill l a i ~ j . (2) In carrying out scientific investigations and in furtherance of the provisions of this Agreement, the sates parties shall have the right to collect on and remove from the mcjon samples of its mineral and other substances. Such samples shall remain at the disposal of those sbtes partics which caused them to be collected and may be used by them for scientific purpcjses. Sates parties shaII have regard to the desirability (.l" maki~lga t".)rtionof such samples at ailable tcj ather interested state parties and the international scientific community for scicntifk investigation. States parties may in the course of' scientific investigdtions also use mineral and other substances of the mocjn in yimntities appropriae for thc supp3rrt of their missions. (3) States wfiies agree on the desirability of exchanging scientific and other personnel on expditicjns tc~or installations on the mocjn to the greatest extent feasi"oe and practicable,

Article "I (I) in exploring and using the moan, states partics shalli takc measures to prcvent the disruption of the existing balance of its en\iironment whether by intro-

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ducing adverse changes in that environment, by its harmful contamination through the intrduction of extra-er~vironmenblmatitcr or otherrvise. Sates parties shall also take measures to attoid hamnf~rllyaffecting the enc ircmment of the earth thrt3ugh the introduction of cxtratenestrial matter or otherwise. (2) SQtes pdrties shall infc3rm the Secretaq-Generdl of the United Naiorrs of the measures being adopted by them in accordance with Paragraph 1 of this Article and shall also, to the maximum extent feasible, notify him in advance of all placements by them of mdio-active materials on the moon and of the purposes of such placements, (3) States partics shalli rcp3rrt ta other states prtrtics and to the Secrebry-Generdl concerning areas of the moon having special sciex1tit5c interest in order that, cvithctut prejudice to the rights of other states parties, consideration may be given to the designation of such areas as international scientific preserves for ~vhich special protective arrangements are to be agreed upon in collsuitation with the competent bodies of the lJnited Nations. Article 8

(1) States parties may pursue their activities in the exploration and use of the moon anywhere on or below its sueace, subject to the prrjt~isionsof this Agreement. (2) For these purt.>osessbtes parties may, in particular: (a) Idandtheir space oh-jectson the moon and launch them from the moon; (b) Place their prsonnet;, space c ehictes, equipment, facilities, stations and installations any~%~Irserc on or belocv the surface of' the moon, Personnel, space vehicles, equipment, Facilities, sations and installations may move or be moved frcelj over or below the surpdce o f the moon. (3) Activities af states parties in aceor&ance with Bragraphs 1 and 2 of this Article shaII not inledere with the activities of other states parties on the moon. Where such interference maj occur, the states parties concerned shalt tandemke consuX1.Lttionsin accordance with ArtieXc 1 5, Pdragraphs 2 and 3 af this Agreement.

(1) S&tes parties may establish manned and unmanned stations on the mcjcln. A sbte party cstabfishing a station shall use only that area ~vt-tichis required for the needs of the slation and shall immediately infi>rm the Seeretaq-Generdl of the tinited Nations of the lueaticnn and purposes of that station. Subsequenttl, at annual intervals that state shalli likccvisc inform the Secrehry-General cvhcthcr the slation continues in use and whether its purposes have changed, (2) Staticjns shall be installed in such a manner that the5 do ncjt impede the free access to all areas of the moon bp personnel, vehicles and equipment of

athcr sbtcs partics conducting activities on the maon in aceor&ance with the provisions of this Agreement or of Article I of the Treaty on Principles governing the Activities of States in the Exploration and llse o f Outer Space, including the Moon and Other Cclcstial Kc3dies.

(I) S"Etes parties shall adopt all pr;.actieable measures to safeguard the life and health of persons on the moon. For this purpose the) shall regard any person on the moon as an astrc3naut within the meaning of Article V of the Treaty on Principles gover~~ing the Activities of Sktes in the ExpIordtion and Use of Outer Space, including the Noon and Other Cl'etestiaf Bdies and as part (.l:the personnel of a spacecraft Fvithin the meaning of the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Okjects launched into Outer Space. (2) States parties shall offer shelter in their stations, instajlations, trehicles and athcr Pdcilities to pcrsons in distress an thc mcmn.

Article If (I) "The moon and its tlatural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in Paragraph S of this Article. (2)The moo11 is not subject to national appropriation by any cIairn of sovereignty, by means of use or meupation, or bj an> other means, (3) Neither the surhce nor thc suhsurPdce of the maon, nor any part thcre~3rfrslr natural resources in place, sball become propeay of any state, intert~ationalintergot ernmentat or non-go1 ernmental organization, national organization or nongovernrncntaf entity or of any natural person. 'f'hc placement af personnel, space vehicles, equipment, Facilities, shtions and installations on or blow the sufiaee of the mmn, including structures cc~nnectedwith its sudace or subsurface, shall not create a right af rslwncrship aver the sufidce or the subsuhce of the moon or any areas thereof. 'l'he tizregoing provisions are without prejudice to the international regime refeued to in 13aragmph5 (l'this Arlicle. (4) SQtes partics have the right to cxpfioratitl>nand use of the mc3on \vithout discrimination of any kind, on the basis of equality and in accordance with internation& law and the provisions of this Agreement. (5) States partics ta this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the mmn as suck exploiQtion is about to kcclme feasible, This provision shalli tw: irnpIficmented in aceor&ance with Article X 8 af this Agrecment. (6) In order tc~facilitate the establishment of the international regime referred to in Paragraph S of this Article, states parties shall infc3m the Seerehry-Cjencral

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af the United Nations as \veX1 as the public and the international scientific cornmunity, to the greatest exterrt feasible and practicable, of ally t1atur;nl resources thej may discover on the mcjon. (7)-?"hc h ppurpjses of the international regime to be established shall incIude; fa)"I'heorderly and safe development of the natural resources o f the mcjcln; (b) -?he rational management of those resources; (c) The expansion of oppo&rrnitiesin the use of those resources; (d) An equitable sharillg b j all states parties in the benefits derived frclm those resources, \vhcrehy the interests and needs of the developing countries, as well as the eRorts of those countries, which have contributed either directIy or indirectlj tcl the exploration of the moon, shall be given special considemtic>n. (8) All thc activities with respct to the natural resources of the moon shall h carried )-Generalof the United Nations. Article 14 ( I ) S&&s parties to this Agreemetlt shall bear international respotlsibility for nation& activities on the mcjon, cvhether such activities are carried out bq governmental agencies ar bp non-governmental entities, and for assuring that na-

tional activities are car~edout in conhrmity with the provisions set forth in this Agreement. Sta;tes parties shall ensure that nor^r-governmenbler~titiesunder their jurisdicticjn shall engage in acti.~ ities on the mcjcjn on11 under the authority and continuing suwrvisic3n of tl~cappropriate state party. (2) States parties recognize that de&iied arr&t~gernents concerning Xiability for damage caiirsed on the mmn, in addition tcj the proi isions of the 'I'reatj on Principles governing the Activities of States in the Exploration and tise of Outer Space, including the Moon and Other Celestial Bodies and the Convention on International t,iabilit> far Damage caiirsed bq Space Objects, maq became necessary as a result of more cxtensivc activities on the mcmn. Any such arrangements shall k elaborated in accordance with the procedure provided for in ArlicIe 18 of this Agreement. Article 15

(1) Fach state party may assurc itself that the activities of other states parties in the expIoration and use of the moon are compatible with the provisions of this Agreement, 'Fo this end, at l space vehicles, equipment, facilities, stations and installations on the mcx3n shall bc open to other s&te parties. Such sbtes parties shall give reasonable advance tlotice of' a prcgected visit, in order that appropriate cansirltations may be held and that maximirm precautions maj be taken tcj assure safety and to abioid interkrence with normal operations in the Facility to be visited*In purslrance of this Article, ally slate party may act c:,n its o\?il^rbehaif or with the f~rltor partial assistance (E an) other state part] or through appropriate international procedures within the frarncwork of the linited Nations and in accordat~eewith the Charter, (2) A state part] which has reason to k1iea.c that another state part] is not fulGlling the obligations incurnbnt upon it pursuant to this Agreement or that another state pafly is integering with the rights which the former state has under this Agreement maj request cansirltaticjns with that state part>.A state party receilfing such a request shatl enter into such consultations ~vithoutdelay. Any other state party which requests to do sr:, shall be entitled to take part in the consultations. Edch state part> particir;tating in such consuftatians shall seek a mutually accepbble resolution of any controversy and shall bear in mind the rights and interests of aII slate parties. The Secretary-General of the 1;Xnited Nations shall be inkrmed of' the results of the cansirltations and shatl transmit the information received to af f sbtes parties concerned. (3) If the consul~talionsdo not lead to a mutually acceptable settlement which has due regard far the rights and interests o f all states parties, the parties concerned shalli take all measures to settle the dispute by other waceful means of their choice appropriate to the circumstances and the tlature of the dispute. ff difficulties arise in connection with the opning (l'eonsuttatlc-tns,or if consultations do not lead to a mutually accepbble scttlemcnt, any statc party may scck the as-

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sistance of the Secretar_\)-General, Fvithout seeking the consent of any other state party concercled, in order to resolve the controversy, A state party which does not mitilltain diplomatic relations cvith anclther state party concerned shall participate in such eonsultativns, as its choice, either itself cslr through another state party or the Secl-etaq-Cened as intermediarq..

Article 16 With the exception of Articles X 7 to 2 1 . refcrcnces in this Agrecrnent to states orgarrization sbaII be deemed to apply to ally i ntertlational inter-govert~rnex~bl cvhich conducts space activities if the organizalion declares its acceptance of the rights and obligations provided for in this Agreement and if a mi?,jorityof the states members of the organization are states prtrtics to this Agrecmcnt and to the f2.%7fTreaty of Principles governing the Activities of States in the Exploration and llse of Outer Space, including the Ncx3n and Other Cl'efestial Bodies. States members of any such organization cvhieh are sutes parties to this Agreement shall take all appropriate steps to ensure that the organization makes a cleclaration in accordance with the proi isions o f this Arlicle.

Article 17 Anj state party to this Agreement maq propose amendments to the Agreement. Arncndments shall enter into force for each state party to the Agrecrncnt accepting the amendments upon their acceptance by a mciority of the slates parties to the Agreement and thereafter for each remaining state part> to the Agreement on the date of accepanee by it.

Article 18 Ten years after the entv into force of this Agreement, the question of the review of the Agreemellt shall "O included in the provisional agenda of the General Assemblj uf the lJnited Nations in order to consider, in the fight of past application of the Agrcerncnt, \vhcther it requires revision. Hc~wevcr,at any time after the Agreement has been in force for five years, the Seeretaq-Cenerdl of the llnited Nations, as depositc~rq,shall, at the request o f one-third o f the states parties to the Agrecrnent and cvith the concurrence of the rnqjority of the states parties, convene a conference of the states parties to review this agreement, A rei iew conference shall also consider the question (.l" the implementation of the provisions of Article 1 X , Paragraph S, on the basis of the principle referred to in Paragrdph I of that AaticIe and taking into account in particular ally relevant technological dei ef opments.

Articte 19 ( I ) 'X"hisAgreement shall be open for signature by all sates at 1;Xnited Nations Headqmrters in New York. (2) This Agreement shalf be sub-ject ta ratification by signatory states. Any state which does not sign this Agreement before its entry into force in accordance with Paragraph 3 of this Arlicie maj accede to it at an> time, fnstruments af ratification ar accession shall k deposited with the Seerebry-General of the United Nations. (3) "I'hisAgreement shall enter into farce on the 30th daj follocving the date o f deposit of the fifth inskrurncnt of ratification. (4) f i r each state depositing its instmrnellt of rdtification or accession after the entrj into farce of this Agreement, it shall enter into farce on the 30th daj following thc date of deposit of any such instrument. (5) 'l'he Seeretaq-CerrerdI shall prr3mptly inhrm all signatoq and acceding f the date of each signature, the date of deposit o f each i~lstrumentof ratistates o Gcation or accession to this Agreement, the date of its entrj) into force and other notices. Articte 20 Any state pafly to this Agreemellt mlly give notice of its ~vithdrawalfrom the Agreement one >earafter its entry into farce bj cvritten notification to the Secretar>)-Gcncmlof the United Nations. Such ~vithdracvalshall take effect onc year h n n the date of receipt of' this notification. Articte 21. "The original of this Agreement, of ivhich the Ardbic, Chinese, English, French, Russian and Spanish texts are equally authentic, shalf be dewsited cvith the Secretary-Generaj af the lJnitcd Nations, \v ho shall send certified cogics thereof to all signatog and acceding states. Mash, Contemporary Practice of the United States Relating to International Law?74 American Journal 418,421-26 af Xmterxlational Law (1980) Moan Treaty Senator Frank Church, chairrnan of the Senate Cl'ommittee on Foreign Retations, and Senator cfacob K, Javitr;, ranking minority member af thc committee, addressed a joint letter to Secretaq of State Cyrus R. knee 0x1 October 30, 1979, in which theq expressed concern that several aspects o.f the (lfnitetrt Nations) Agreemcnt Governing the Activities of States an the Moc3n and Othcr Ce-

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testial Bodies (Moon Treat]) eoufd prcslve damaging to the national ecclnomic and security interests of the tjniteeul Sates, Qne source of concern was their view that the law of the sea neg~iationshad shown that thc meaning attached tcsl the concept, "'common heritage of mankind," by many countries of the world was cotltrav to the eeotlomic interests of the llnited Stattes and of other countries with free enterpriselfree market economies, Another source af concern was their view that the trea4 woufd resujt in a "dc fitcto moratorium" on resource-related activities in outer space (through the commitment to negotiate a subseqirent resource regime), which cvouid not deter the Soviets from moving forward in resource development under thc guise of scientific investigatioll because they would hare "no fear of' signifktzant competition from the West, which must re14 cm its industq to proi ide commercial initiativ~,~' Secretaq Vance, in his replies to Senators Church and Javits on Nolirernber 28, ncjted that on Novemkr 1, Ambassadcdr Richard W. 13etreehad placed on record the tJ,S. intcrprehtion of various treaty provisions, including those of concern to the Senatcjrs, during the debate on the resolution of the UN Special Political Cl'ommittee cammending the Moan Iqreatyand recommending that it be opened for signature. l"hc lrnited Slates had joined with 27 other countries, including the United Kingdom, the Federdl Republic of Germany, Frztnce, Belgium, the Netherlands, Italy, Canilda, Australia, and fapan, in sponscjring the resolution, which had been adopted by consensus an Nc3vembcr 2, (The Gencral Asscrnbly approved the resolution on Dwember 5, 1979.) 'I'he Secretag clarified the legal significance of the t1.S. actions to date in connection with thc trcaty, sbting, in part: Of course, our cospnsorship of the resolution and joining in consensus approval d the resdritioll does not entail legal obligations for the tlnited Sbtes, Onlj mttfication d the Treaty after the advice and consent of the Senate cm impose binding obligations u p n the linited States, The Administration has not yet t~irnedto questions relating to signature of the l'rcatq or its submission to the Senate. When we &gin to coi~sidersuch matters, we \+ill give the rnczst careful cunsicferdtioi~to concerils ~+hich you and others have raised in regard to thc Mmn Treaty. I would, howct er, like to address myself to some of your points in a preti~ninaryway, In regard to the important matter of the exploitation of the natural resources ot' the moo11 and other celestial bctdies, the Treaty contains no moratorium on expioitatioi~ and, in fact, has provisions designed to facilitate and encourage such exploitation. Fczr example, Article XT(3) of the Mr)o11Treaty makes clear that although the 1967 Outer Space Treaty proit Ides that "Outer space, includi~~g the moon and other cclestial bodies, is not subject to natic>~~al appropriatioi~by claim czf sovereignty, by means of use or occrrpatioi~,or by any other mea~~s," this "'non-appropriation'" prii.1ciple applies to the rraturat resoklrces of celestial bodies only when such resources are "in ppl;tee."'Tbus, Article XI(3) woufd pennit ownership to be exercised by Stares or prikate cntitlcs over those naturaf resources which have been removed from their

""Pace" on or hctow the surflace of the moon or other cetestial bdies. (Such removal is permitted by the article conbined in the 1967Outer Space Treaty which states, inter nlia, that "Outer space, inctuding the moon and other celestial bodies, shall be free for exploration and use by ail ShLes. ..."l We afso do riot believe that the Treaty \+outcf benefit the Soviet IJnion to the disadvantage ofthe tinited States. While the Soviet ttnion first prclposed a Moon Treaty, their draft text contained na detailed pro\ isions concerning exploitation. It was, rather, characterized by the Sr>trietsas a ""navigation treaty," It was the Ilr-tited States which in 1972 first prcjpsed detailed provisions concerning exploitation and the cornmc>ix heritage concept, (The 1967 Outer Space 7'reaty, wl~ichthe tinited States has ratified with the Senate's advice and consent, already had provided that czuter space was the ""c>inmion province" of inarrkind and that ""the exploration and use of outer sp'dce, includitlg the moon and other celestial bcydies, shall be carried CZLI~for the benefit and the interests czf all countries, isrespectice c>f their degree czf economic or scientific development ..." "rticfe I),) Until July of 1979, the Soviet tinton maintained strong oppsition to the common heritage concept, and it was essentially because of this opposition that the Treaty was not concluded several years ago, I,ike.cvisc, the Soviets, as well as the lirlited States, opposed thc concept czf a mc>ratoriumc>ix expioitation c>f natural resources.

"The statement of Ambassador Riehard W. Perree, I;X.S, Deputy RepresenQtive to the Securitj (C'ouncil, enclosed with the Secretarj,'S fetters, summarized important U.S, space activities during the year and U.S. views on issucs before thc 1JN Cluter Space Committee. In regard to the Moon 'l'reaty, Ambassador Petree stated, in part: 17"fhedraft Moon Treaty . .. is, in its own right, a meaningful advance in the codificatioi~of international law dealing with outer space, conbini-tg obligations which are of both immediate and long-term application in regard to s~tchmatters as the sdfeguarding of hrrman life on celestial bodies, the prclmotion of scientific investigation and the exchange of infc3mation relative to and derived from aetikities on celestiaf bodies, and the enhanceinent czf c>ppofitrrritiesand coi~ditionsfor etialuatic>ix, research and exploitation of the natural rcsourees of celestial bdics. We think it in the draft useful to address sorne of the especially significant pmtiisions cc~i~tained Moon Agreement, this "fifth star" in the coi~steilation of outer space treaties.

The colnrnoil heritage coileept, which was initially suggested by Argentitla, but formally proposed by the Ilnited Slates in 1972, is set forth in Article XI, paragraph 1 , which makes clear that its meaning for purposes of the Mmn Treaty is to be found within the Moo11 Treaty itsetf. Like~lise,its meaning in the Mcwn Treaty is tvithcz~~t prejtidice to its use or mealling in my other treaty, Article XI also rnakes clear that the parties to the treaty undertake, as the exploitation d the nattxral resources of the

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celestial bdies othcr than thc earth is a b u t to hccome feasible, to entcr into negotlatioi~s.to establish a mutually accegtahie intemattct~~ai rcgirne to govern the exploitstiun of those mineral and other suhsantive resources which maj he fot~ndon the sudace or subsurf'aee of a celestial body. My Government will, when and if negottatiuns for such regime are called for under Articles XT and XVIX, make a good faith efhfi to see that such negotiations are successfully currctuded.

v .

1he draft treaty, as part of the compromise by many delegations, places no moratorium up011 the exploitation of the nattrra) resokirces on celestial bodies by States or their nationals, hut does prot ide that an] exploitation of the rrtatural resources d celesttat bodies be carried out in a mallner colnpatible with the puicposes specified in paragram 7 of Afiicle XI and the provistons of paragraph 2 of Article VI, We view the purposes set forth in paragraph 7 as providirsg both a frframeivc>rkand art incentive for exploitation ot' the natural resources ot' ccIcstial hdics. ?'he4 constitute a li.arnet.to5.k because even expIoi&tior~tvbich is undefiaken by a Skate Party to the Treaty or its nationals outside of the et31ltext of an4 such regime, either beearrse the exploitation cxcilrs before a regime is negotiated czr because a particular State may not participate in the intemattonaj rcgirne once it is established, will have to be compatible with those purposes sct forth in Arficle XI, pragraph "Iof the Moon Treat).

In a fetter of November 13, 1979, Senator Richard Stone, alsc~a member of the Senate Committee an Foreign Relations, urged Secretary Mnee to rcei~ajiuatethe U.S. position on the draft moon treaty, which he described as having ""extremely dangerc3us potentialities'" because it appeared to decrease ""re ability of the linited SQtes to advance in yet uncxpliored fields" md ta "g;rcatXy inhibit the actions and desires of l;X.S, corpc.trations in syace, tlegate the tlotiotl of free enterprise, and ... place the linited States in a position subservient to the Soviet lJnion." f. Brian Atwood, AssisBnt Secretarq. of State for Congrcssiotlal Relations, replied tc~Senator Stone on behalf c~fthe Secrctarj in a fetter (.l"January 2, 1980, as liollows: The provisions of the Moo311Treaty rnust be cor~sideredin the cr3r1text eskdblished by the 1967 'I'reaty on Princtplcs Cjoverning the Activjties of States on the ExpJoraLion and l Jse c>fOuter Space, Including the Moon and Other Celestial Bodies (the ""Outer Space TreatyW")to which approximately 75 countries, including the KJnited States, reserare parties. This Treaty receitiect the advice and consent czf the Serrate ~+ithout vations,

The Moon Treaty piaces no lirnikatic>r~s on the exploitation czf celestial natural resources bq any government or p r i ~atc entity beyond thosc already contained in the 1967 Outer Space Treaty except that the "activities tvith respcl to the rraturat re-

suurccs d the moon shall bc carried out in a manner comptiblc with the purposcs specified in pamgraph 7.,"'(lSeeArticle XIC8) and the environmental proteetioi~scontained in Article VXI.)

In regard to the internaianal regime deaIt cvith in Article XI(5) of the Moon Treaty, ncithcr the ""cmmon heitage of mankind""concept as crnlbodied in the

Moot1 Treaty nor any other provision of the "Treatycomwls ally spcifk form of international arrangement for the regulation of the exptoiQtion ttf mmn or other celestial body resources. Neither the 'I'reaty nor the ""emman heritagc"' concept enQifs ally spcific obligation on S"Etes in regard to the eswblishment of such a regime except the cc~mmitmentt t ~ engage in good faith negotiatittns to establish a mutually acceptable international regime to govern the exploitation of natural resources on ceIestia1 bodies when exploitation of such tlaturdl resources i s about to become feasible. The Law of the Sea cxwrience with the common hcriuge concept, cvhife relevant, would in no way be controlling regarding the negotiatiolls of any such hture agreement. Article XI(1) of the Moon Treaty makes clear that the commcjn hcriuge concept in the Moon l"reaty finds its meaning toally cvithin the text of the Moon Treaty itself. A ftuture negotiation for the regime to govercl Ithe 1 moon or other celestial body resources could, hobvever, benefit frclm the l,aw of the Sea experience,just as it could kncfit from the experience of such multinational cooperative ventures in outer space as f N"TEX,SAT, which organization is evidence that the criteria set forth in Arlicle Xl("7) the Moun "I'reatycan be met bq institutional arrangements quitc different from those contemplated in the law of the Sea negotiations on sea-kd mining. We do not believe that the Moot1 Treaty language ~voulclinhibit commercial investment bq nc~n-governmententities in the exploitation of celestial natumI resources ar the operation of the frce enterprise system in outer space generally, "The article of the Moon Treaty most relevatlt, Article X, makes clear that all Shtes hrties to the Treaty hatre a significant interest in the possible future exploiution of the natural resources of the moon and othcr celestial bdies and that their views are to be given seriotrs considemtion at any f'uture international cotlference cvhich maj attempt t t ~establish an international regime specifically concerned with exploitatit~nof celestial natural resources. Given the legal context eswblished by the 1967 Outer Spce 'l'reaty, such an interest can be tleither denied nor ignored. It is irnprhnt to note that efforts by some developing countries to have the "Treaty prrjvide far a moratorium on the exploiQtion of the natumi resources of celestial bodies except under the auspices of an international regirne cvere rejectcd. l"hc 'freaty contains no moratorium on exploiution and, in fact, has pro-

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visions designed to clarify cerbin important ambiguities in the 1967 OOuler Space "Treatyand to other~viseFacilitate and erlcourdge the exploitation of celestial tlat~ makes clear that ural resources, For example, Article XI(3) o~fthe N C J OTreaty although the 1967 Outer Space 'f'reaty prc3vidcs that "'Outer Space, including the moon and other celestial bodies, is not subject to national apprrjpriation bj claim of sovereignty, bj means of use or occupation, or by any other means,'? this ""non-ay>popriation'"rineiplc applies to the natural resources of eeilcstiaX bdies only when such resources are "h place."

NOTE "This excerpt summarizes the pc~sitionof those who negotiated and helped draft the Ncxln 'Freatj. The views o f the State Ilepartment, cvhich supporlied the Moon Treaty, are sct out more fully in Staff of Senate C'omm. on Cl"ommerce, Science and Trilnspmtio~~, 96th Cong., 2d Sess,, Agreement and Governing the Acticities of States on the N C J Oand ~ Other Cl'efestial Bodies, Part 3 at 31618, 3 6 3 4 5 IComm. Print 1980). Unfc3rtunatcly Zi~rthem, a host of othcr space interest groups mounted a storm of protest over the 'l'reaty, culminating in the Failure of the Senate to even i ate on ratification. See, e.g., id at 3 18-26, 36679 (summary of space group 1 5 Socicr,?i%slbjections to Moon rTrcatj. and text of L5 Society point-by-pint rebuttal of State Department memorilndum). 'I'he iss~res that the negotiators thought were resolved in the 'Freatj 's text in fact proved to be the downh'all of the agrccmcnt, pafiiculfarly thc ""eornmon hcritagc'Ylanguage in Arlicle XI. fn the excerpt that t'ctllorvs, a student Note ivritten at the time the '1-reaty was being debated points out sclme of the problems with the 'Treat),

Spitz, Note, SPACE LAW- Agreement Governing the Activities of States on the Moon and Other CeIestial Bdies, 21 Harvard XnternatiorraX Law Journill579f 1980) Most o f the proi isions of the Agreement hat e already been set forth in prei ious space accords. The 1967 'f'reaty on Principles Governing thc Activities of States in the Exploration and Use of Outer Space, incIuding the Moon and Other Cl'elestiaf Bodies, which has seiientj-six member states including the IJnited Statcs and the Soviet tinion, set forth the principle that the moan and other celcstial bodies shall be used exclusively far wacef'ul, purposes. "The signifleant change in space Xacv which the Agreement makes is the application (.l"the ""cmmon heriage'? pprillciple to the natural resources of the mcjcln, The [Outer Space1 Treaty declared that the moon was not sub'ject to national ay>-

propriatian and that outer space was the ""pravince af all mankind," Hwever, neither it nor subseyuex~tagreements have addressed the natural resources question, A commitment to ""an eqiritable sharing""by ail states in the moon's resources and the establishment of an international regime to achieve that purt.>ose will have a sigr~ificar~t effect on the exploitation of the solar system. The common heritage prot isions of the Agreement, cvhen t iewed with similar themes raised in the Lacv of the Sca Conference and the discussions on Anlarctica, points to a trend grc~ivingin acceptance in the international community. lf it achieves brcjad acceptance, the Agreement could haire great impact: outside the area of space taw. However, a great pc~terrtialXimiQtion on the effectiveness of the Agreement is that it makes no proirision far signatory sdates to compel the parlieipatictn of athcr states. There is also no mechanism to protect the interests of member states against non-partici~ax~ts. Even though the Agreement may be adopted wide1y enough to hate some force as customaq international Iawv, it will need the accepbnce of thme states capable of conducting space operations to be effective, "Though the Agreemel~tshould have no trouble ~vinningaccepktlee by developing states, the suppoa of the two current space powers is more problematic. The Soviet linion in particular opposes intcmationaf control af the natural resources of spice, and frcjrn the begirxning of the discussion it opposed the application of an> part of the Agreement to celestial bodies other than the moon. Soviet ratification af the Agreement, if it occurs at all, will be reluctant. The United States shnce on the Agreement is less clear. Since the exploi&tion of the mmn's natural resources has seemed far in the future, the State Depart.ment and the National Aeronautics and Space Administmtion have bccn supporting the drafting process since its inception, RecentIy however, the United Sbtes seems to have recclnsidered its position. This points up the basic dilemma of the Agreement. Without the common hcritage prrjvision, the Agreement is largely a reitemtion of previous treaties. With them, it loses its appeal to the tkvo space powers cvhose support. it will prcjbably nccd, The success of the Agreement may hinge on the cvilltingness of the United States and the Sot~iet1;Xnion to accept the common heritage provisions,

NOTES I. The author of this Note states that "% great pc~terrtiallirnivation on the eRectiveness of the Agreement is that it makes no provision far signator?, states to compcl the participation of othcr states. There is also no mechanism to protect the interests of member states against tlon-participants." Was it a misbke for the drafters of the 'I'reatj to assume that the central administrative organi~ation callicd for in Article 2 cvould bc ,joined by alli countriesW h a t probt ems could a

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single non-joiner cause for those cvho haliejoined? Is the "quitable distributic~n" provision enough of an incentive for developing countries to joinf? 2, "I'heexcerpt from an aaicle by nclted space Ia~vjerArt f)ula, reprduced i ~ l @a, is an example of the Fvriting that came out of the anti-treaty camp. A similar piece appeared in the magsltine of the 1 3 Society at the time of the Treaty debate. See I>ttla, Free Enterprise and the Propjsed Moon "I'reaty, L5 Neivs, Oct. 1979, at It. See also C'hristal, 'X'he AEA and thc Moon 'X'reaty. 9 Journal of Space Law 77 ( 1981) (describing det ibemtions hhind ABKs tizrmal recommendations on the "I'reaty), 3, As of this cvdting, thc Soviet Union has yet to sign the 'X'reaty. It has long taken the position that spslce resources should be freely exp1oiQbIe by the rations that find and dei ef op them. Did the fact. that the IJ,S. refused to ratify the Treaty make it politically easier for the Soviet Union-~vhich sometimes styles itself the friend of the developing ~vorld- to refmin from mtibing it itselt"?What cvcluld be the dynamics of a centralized internaional agency governing space resources having on14 one of the two major powers-the t1.S" ar the St7rviet Union-as a member"?Wuld it be economically feasible for one to join and not the other? Alscl, it is i~lterestingto at least ponder the thought that the Soviet Iinion, the nation cviih the greatest practical cxwrience in thc area af centrali~ed econc.tmie planning and controli, may know all too well the pitfdils of such arrangements. Abscnt adoption by the mqjor space pcvcrs, thc Moon l"reaty is unlikely to play a ma-jor role in the future. Nevertheless. the hilure of the maor spzzce pocvers to ratify the 'Treaitj does not mean it is irrefef ant. For one thing, as one o f the first international dcxumcnts to embody concepts identified with the Necv International Fxonomic Order, it reflects imporlslr~tintellectual trends among the def elc~ping naions o f the world, In addition, it shtluld be recalled that the tJ.S,-Sovict domination of space capabilit~is by no means a permanent afhir; other natiotls-some of whom have alreadq sigr~edthe Moon "I'reaty-are rapidiy def elc~pingsuch a capability, as was shoivn in Cl'hapter 1 . "I'husthe Nc~on '1-reaty is Pdr fx>rna dead letter on the international scene. Galloway, Issues in 1nnpIernentin.gthe Agreement Governing the Activities of States an. the Msont and Other Celestial Bsdies, in Proceedings of the Wenty-Third CoIIquiurnn an. the: Law of Quter Space 19,20 (298a) Article I, paragraph 1 (.l" the Moon Agreement text provides that "the prof isions of this Agreement relating ta the Moon shall also apply to other celestial bodies within the solar system, other than the earth, except in sr:, Fztr as specific legal norms enter illto force with respect. to an> (.l"these celestial bodies." COPIIOS related this principle to paragraph 1 of Article 11 which provides that "'The

moon and its natuml resources are the common hcritagc of mankind, Fvhich Gnds its expression in the provisions of this Agreement, in particular in pardgmph 5 c$ this article,'Taragraph 5 o.l"Arl;icle1 Z prot ides for the establishment of an international regime when cxploitaticsln of the natural resources af the moon and other celestial bodies is "about to become feasible" h t slates tkat this provision must be implemented in accordance cvith arlicle 18 of the Agreement. ... 'I'he off'iciat C70Q1J0Stinderstanding is as follows: The Committee agreed that by virtue of article I, paragraph 1, the principle eontaincd in article XI, paragraph I , would also apply to ccfestial hactics in the sojar systern other tkaa the Earth and to its natstl-al rcsorrrces. (Paragraph 62)

This is a significant intcrprehtion regarding natuml resources of celestial bodies, and it is part: of the negotiating history, but its fc3rm-and the Fdct that this CI'OPIJOS understanding (as cvett as the other understandings) is usually omitted when the Moon l"reaty tcxt is distributed- raises the issuc af the exact Iegal status of such an understanding. When the Generdi Assemblq voted on the treaty text, specific reference was made to the COI>IIOSunderstandings as paragraphs 62, 63, and 65, Fvhich could tend to strengthen thc status of thc undcrstandings; neveflheless, this is an issue ~vhichcan arise in the future to create p&blems, and when analysts first read these imderstandings and reali~etheir importance, thej wonder cvhy these points are not inciuded in the treaty text. "Thedelegates to the 1979 COPUOS session thought it was rreeessaq to cclarif4 article 1, paragraph 2 which provides that 'Tcx-the puyoses of this Agreemcnt references to the mc3on shalli include orbits around or arhcr tm*jcctoriesto or around it." h fnesiponse, COPUOS recorded this understanding: Following a suggestion for cIarification c>f article I, paragraptl 2, the co~nmittee agrccd that the tr;?jectories and orbits mentioned in article I, paragraph 2 do not incltrde trdjectories and czrbits czf space objects in Earth c>rbiksc>nfyand trdje"orieuzf space objects bctivccn the Earth and sttefi orbits, (hragraph 63)

'I'his means that trajectories to the Nc~on- and other celestial MIes- and orbits around the Moon are covered by thc Agreement, but not covered are carth-orhiting spaeecrdft and trajectories from the earth to orbits around the earth.

NOTE "TheMoot1 "Treatydoes not cover earth orbits or trdjectories into earth orbit. In 1976, hocvevcr, there was an attempt tc~make earth orbits subject.to a "ccommcm hcri@geV-likeregimc, in the Bogota Resolution, a grcslup af developing nations

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located near the equator on various continents declared that geosynchronous orbits overhead were suqject to their sovereignty. 'l'he ger)synehronous orbit issue is discussed in Chapter 8, Much of the common-resource discussion later in this chapter applies to that resourcc as well. It is safe to say that the Resolution has not met with ividespread international aecepktlce.

Walsh, Controversial Issues Under Article XI of the Moon Treaty, 5 Annals of Air Elr Space Law 489 (1981) 111. National Apgragriattion ancl Property Rights

Another issue in Arlicle XX ... is what its provisions regarding tlationai appropriation and propert] rights entail. 13aragraph two of this article provides that "the coon is not subjcct to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means." Consistent with this paragraph is the first sentence in pamgraph three which states that: Neither the surpace nor the subsurface CA' the mooil, nor any parts therecl^ or ~rraturat resources in place, shall become prctprtq of any State, international, intergot ernmenta) or non-gosemmenk entity czt czf any natural persoil,

'I'hese tkvo proi isions in Article XI appear to greatly limit the extent of an entity 3 activities on the moon and other celestial foodies, although definitions for appropriation and prrjprty are not given. The latter provision regarding property maj, in fact, be o~fgreater consequence because it applies not only tc~States, hut to international, intcrgovcmmcnbl and non-governmcnbl entities, and natural persons. 'I'he prohibitions imposed by the two aforesaid provisions appear, ho~vever,to be negated by a subsequent provision in thc article, A latter part of paragraph three states that: The plwernent czf perso~i~net. space tiehictes, eyuipinent Edcilities, sldtions and inskallations on or below thc surface of the moon, including structures connected with their surface or subsurpace, shatf not create a right of o\vnerstlip cztier the surface czr suhsu~aecof the mom or an] areas thereof.

'I'hus, even though national appropriation ears by the General AssembIj. tinder the first aption, it is pssihlc for a smalli grc3up of States Parties to control planning far operations ivhieh affect ""he common heriQge of mankind." Under the seeand prmedsrre provided in Article 18, it is possible that planning for operations af a technological space system would be assigned to the !&gal Subcommittee of COPUOS. in any event, it will be many years before feasibility far exploiting natural resources can be established and thus we hatre time to consider additional apprc3aches to this prahlcm. l"he existing model cvhich is apt to be mast adaptable is that of INMARSAT which affc3rds a realistic example of bow to relate the attainment of general objectices to institutional arrangements, 'This task should not be regarded as primarify an issue for argument but as an opportunity for sober, objective analysis of the most effective teehllical means required for the smtmth operaticln ctof a necessarj function. The method used thus Pdr to formulate spacc law has been outstandingly sueeessf'ul as compared to the law of the sea. "The law of the sea is being negotiated

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from a composite text which incfudcs every conceivable problem, a method which rraturally raises a maximum number of q~restionsand takes much longer to achieve international agreement. In contrast, space law started from the charter 1967 Treaty on Outer Space and as difkrcnt problems devclowd ncw treaties were formulated to meet spcific situations. Spce law was expax~dedto cover assistance to astronauts, their return and the return of space obects; liability for damage b m space objccts; and registration of space abjccts. Similarly, space law as deiieIoped by the International Telecurnmunication lXnioi1 (I'I"U) is tailormade for space commlmications, The sweific function of space commlrnications i s furthcr provided for by EPd'li"EI;,I,SAT and XNI"ERSPt77"NIK, Navigation has been improved bq using sritellites, and INMARSAT takes ""to account that a iery high propczrtion of world trade is dependent upon ships"' and therefore provides "'for the bncfit of ships of all nations thrcslugh thc most advanced suiablc spice technology available, [and] fizr the most efjcient and economic Facilities pczssible consistent with the most efficient and equilable use of the radio spectrum and of satellite orbits.'' In addition, syace law has been hrmulatcd during the past 22 years in tlumerous bilateral and multilateral agreements on specific programs requiring the irse af space technology, "Theonly conclusion that can be drdwn is that extmordinaq experlise has h e n derncmstrated in handling s ~ c i f i functions c which can be improved b> the use of space science and technology and this has brought about a remarkable degree of internatiox~alcooperation in the pacehl uses of outer space. "This sarne ability can br; used in cvclrking out viable operational and ecclnomic arrangements for thc Moon and other celestial bodies, and if cvc are temporarily overcomc by this task, it is on11 because we are trying to formulate space law mally years, prhaps decades, in advance of the actual eommitrnent of resources to the Moon and athcr celestial bodies.

1 , Many of the cxcevts in this chaptm refer ta the negotiaticslns concerning the United Nations Law of the Sea Treaty. "This was an international agreement drawn up to got ern the development of mineral resources in the deep seabedprimarily rnangancsc nodules, given today "stechnafogy. 2, The Moon 'Treaty tries to make Xaw Fdr in advax~ceof the actuality of space resource devetopment, How does this compare with the general apprtzach taken in the Outcr Space'f'rcaty of X%7? Xs thc Moon l"rcaty more spcific in its aims than the OSri"?is this perhaps the reason it xas more divisive-i.e., unIike in 1967, more than general principles were at stake? Consider also the follotving differences bctwwn the OS1" negotiations and those surrounding the Moon rTreaty: (a)

pal iticali dcvetopmcnts in the U.N. since 1 967, (b) more advancd technof ogics in the late 1970s as compard to the mid- I96Qs,and (c) an increase in the number of nations bvith space capabilities or the ptential far debteloping them,

Christoi, Alternative Models for a Future International Spaee Organization, in, Proceedings of ehe: Twenlry-FourthCoXXwuiarn on the Law of Outer Space 173,175-78 (1981) It is kcoming increasingl~,evident that an optimi~lationof opportunities and benefits may require the establishment of a new body capable of dealing in a prdctical way with increasingly large-scale and complex operational activities.

... As a regime erncrges for the Moon and its natural resources, attention wiff have to be given to the chardcteristiesof the mandated organizr-ttion.in assessing the role and the functions of that future M], i~lcl~rding its pcvers and duties, it may becomc lzighXy desirable to detcrminc if it, over time, will be augmented by a number of other spxe-oriented organimtions having special and discrete responsibilities. An alternative cvould be to cctnsider the establishment of a brcjadf y based international space agency ar argani ~alionhaving general and wide-ranging rights and drtties.

The Special Issue of Vating In the creation of interclatiotlal intergoverclmenbl organizatiotls the issue of c c~tingrights has became a central issue. "Fwo basic alternatives hate been the burcaucratic mcdel in which each memkr psscsscs one vote and the corporate modcl in which there can be iveighted voting based either on the ownership of shares or on the amount ojf use, Votes maj k allocated on the basis of regicjnd interests as \veil as a verj) wide combination af other Pdctors. INX'ELSKT "S voting procedures are particular1y instruetive. 'l'he Assern bI y, cvhose f~rnctionsare more politicat than technical, makes recommendations tc~ the Board af Ciovcmors respecting general policy and long-term ob'jecti ves. VC%ing is on a one-SQte, one-vote basis. IM'l"E1,SA'X'k Meeting of Sigr~atories,composed of technicians, also oFrates on a one-State, one-ttote basis. Hcacvever, the Board of (i)overnors, limited to about 20 rcpresentativcs of States, operates on a weighted-voting formula. 1;Xnder the terms of' the agrcernent a signatory possesses an investment share corresponding to its percentage of irse ojf the s j stem when compared uviththe tataf amount of the use of the IPJ'fl;;,l,SA-Fspace scgof the quota of votes with the United ment. No State may possess more that1 4% Shtes being restricted to this prcentage. LNPf'EI,SA'rhas demonstrated that the burcaucratic organizational mc>dcl can bc ,jcrined efkctiveiy to a corpratc orga-

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ni~ationalmc>dei,in which ownership af shares or allocation of shares can bc dependent on the extent of use with the heab~ieruser being given voting rights in proportion to use. 1For mcjre on INTEI .SKI': see Cl'hapter 6, irt@a,f INMAKSAr also allows for a hybrid voting prcxess. Faeh af the partics possesses one vote in the Assembly, in the Councit, hojvever, 18 of the 22 members hc~fdinvestment shares, cvhile the remaining four do nut havc tcj meet this requirerncnt. No rcpresenhtive may psscs on behalf of one signaloe more than 25% of the to&] voting participation in the organizdtation, 'I'his is suqjeet to an exception contailled in Article 14(3)(b)Civ),which reads: ""Eb the extent that the investment share of thc Signatorj)is in excess af 25% offered for distribution in accordance with the prtjceclure set forth in this paragraph, the voting of the representative o.f" the Si gnator?, may exceed 25 percent.'" Another technical organixation, the I'Fti, accords to each of its members a singlc vote in its wriodic cvorld administrative radic:, conferences. No single model necessarily *"is the needs of a f'uture special or genemi internation& spacl: organization. It cvould he expected that there cvoutd be a need for an aceommadation af views arnang the sprtce-resource Statcs and those which are in the prtxess of' development,

Existing international intergo1ernmental organixatians havc been granted the judicial pocvcr to resolve disputes arising among thcir members respecting their respctive rights and duties purs~rantto the terms of their sevemi constitutions. Furlher. such organixatians maj, in specified circumstances, i~litiatelegal actions befi3rc the tribunal of the institution in order to obtain a clarification of their own rights and duties. It has alreadj been reccjgnited that internationd organitations dealing cvi th space-environment activities nccd a judicial arm. For example, pursuant to the terms of' the relevant fN"I'EX,SA'I"agreernellts and annex, an arbitrdl tribunal can arrive at a binding decision both where member Shtes and IMPf'EI,SA'r,per se, have presented justiciablc issues. Where thc decision is that rules and regulations of an organ of INTEI,SAT are invalid, the decision is binding on all of the members as eve11 as the organization. Li kecvise, the terms of the I W3 f'Tti Cc->nvention made prc3vision for a number of proeedurcs for the resolution af disputes incf uding arbitration. 'l'he members are bound by the terms of the decision. l'he 1976 INMARSKI' f'clnventiclrn also made proirision for kvide-ranging prwesses for dispute resolutian inciuding both arbitration and reference to the

World Court. l"hcse processes contemplate disputes bctcvc.cn members and also betktreen members and the organi~ation,If the holding confirms that the organization has exceeded its authority the ruling becomes binding on all the parties to the agreement. tinder Artielc 1 1, paragraph 5 of the Moon Treaty. it cvould be possi bfe to cstabIish a spcial dispute-resolving instrrrmenklity to deal with the equitable distributiclrn of Moon benefits. While not all space uses and actik ities maj be equal iy amenable to dispute-resolving procedures, since contending claimants far equitable shares to the hnefits derived fmm the exploitation of the Mmn's natural resources cvill br; seeking tclr obtaill sclrmething that has prek iorxsl] been unavailable for distribution, they may be morc inclined to support the prmess than in a situation where they might fear having to give up something already cvithin their possession or contrtbl. In terns of policq it cv~uldbe possible tclr establish a Space Court as cvas suggested in 1962, or a separate and special Intcmaticslnal Spatial 'f'ribunal as was suggested in 1976. Alternativelq, a spec tribunal might form a pat of a more complete internaional organixation cvhere it cjptimatly wcluld have the same authority as has k e n assigned to the International Ccjurt of Justice. It has been p s s i hlc to devise in the I1"U an international organization capable of dealing with the allocation and sharing of cons~antlyrenewing electronic spectra. ... ft should be no more difficult to fornutate a governing bctdj having the porver to distribute on an equiablc basis the kncfits derived from the disposition of M m n minemis or other Mcwn resources.

1. C_"hristolsays that nations may bc less inclined to support an ailocntion scheme in a situation where ""they might fear having to give up something alread> cvithin their possession or contrtbl.'" How does this square cvith the point made in the introduction to the Outer Space l"rc"aty in (_"haptcr3, that the OS1" was drafted behre it was known how widespread sinace capabilities ivouicl become, and that the OS'f' was therefore less cclrncemed with national self-interest than it otherwise might bc-~gain, note the similarities to the Kawlsian "'veil of igr.~orilnce,"and its predecessor, Jean-facyues Rousseauk 'bhte of nature." See f. Rabvlts, A 'The00 of Justice 128-92 f 19'72) (C:hapter 3, 'Fhe Original 130sition). NcXe also the li~nitaticslnsof this concept in the space arena; the ti.S, and Soviet

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linion are obviously closer (at this pint) to development of space resources than many other nations. "They are thus less anaIugous to individuals in a hypothetical "(originat position,"bi~lcethis assumes complete ignorance over what attributes anc wif l have when one leaves the original position. 2. For an assessment of the relationship of organizational strrretures to the purposes and goals t,f six internaional intergot ernmental space organizations, four al" kvhich cngagc in eammunicatians activities, see the background paper on "Multilateral intergover~~metltd cooperation in Space Activities,"W.N. Doe. A/C:(lkNF. I O f /BP/ 10, 10 Jainmq 1981, "E'hestudj was made in eonnecticjn cvith plans for thc Second linited Nations Ccjnkrence an the Exploration and Peaceful Uses of Outer Space. 3. Christ01 concludes that INTELSA'I' might br; the best model for an organization 10 govern space resources; it ""hasdemonstrated that the bureaucratic organimtionaf mdel can be joined eRect'Ively to a corprdte organizational model in which t~~vnership of shares or allocation of shares can be dependent on the extent of use with thc heavier user being given voting rights in proprtion to use," Compare this to the assessment of lN"TEX,SAI" in the excerpt from AIIen Duane See also Ffeming et al.. Wehber's article in the Georgeta\vn Law Review, iuJfi.~. State Sovereignty and tllc Effective Managcmcnt of a Shared Universal Rcsource: Observatiolls Dria\ivn from Examining Developments in the f nternatiorral Regulation fthe regime, /Oversight Hearings on the Activities of' the t1.N. Corn~nitteeon the E3eaeefui Uses of Outer Space: Hearings Before the Suhcamm. on S.t;lncc Science and Applications of' thc HOUSC Comnn. on Sciencc md Technology, %€h Cctng., I st Sess, at 9G100 ( t 979) (statement of' Neil X-iosenball, at t l)./

If the tinited States becomes a partj to the Nc~on'Freatj, the opporttinities and prospects for private enterprise development of thc resources of thc Moon and other celestial bodies wilI be negligible if not tlon-existent, Specifkeally, the dmft tre* cvoufd:

I. Create a moratorium 0x2 commercial expIoitation of the resources of the f M1oon and other celestial bodies, irntili a seeclnd, mlrch more comprehensive trea4 for rcguIating resource activities is concluded; 2. EsQblish guiding principles for the tlegobiatiorr of this secotld treaty which are completely antithetical tc~the commercial det elopment c~fouter space resources by pri vatc enterprisc; and

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3,l"hcreby give the Soviet ar l"hird World countries tremendous pof itical eontrol over the timing ancl direction of expanding commercial uses of outer space, as well as the question of cvbether to perrnit such uses, "TheAdministration, paflicuIarlq the tlegotiators of this draft treaty, argue that llnited States public statements to the effect that the treat> does not establish a moratorium ncgate the implicit moratorium in the trea4, Unhrtunateiy, such a moratorium is now contemplated in the treaty and underscored h> the U.S. delegation" statements on the record. Howet. er, et.en if it is cc~ncededthat the llnited States"unilateral statements control thc treat) 3 meaning, the Pdct remains that no private enterprise, or even a government, is going to invest billioi~sof dollars in deteloping new commercial applicaticzns of space technc~fogjif most of the world disputes its t egai right to ddepf oy and profit from that technology, It may be asserted that the guiding principles set out in the treaty fizr constructillg the legal regime tc~contrctl exploitation of outer space resources are empty phrases to be given later mcaning, The Moon Treaty, however, must be cc.ttlsidered in the context of intert~ationallaw ancl practice. 'These phrases all hate a verj cvell-defined meaning and hate been exhaustivelq elaborated in ather treaty negotiations. Since the Soviet Union first introduced a draft text an the Moon in f 971, the politics of resource development in areas kyc.ttld the territoriat borders of nsllions hate changed dmmatically. "I'hetact. of the Sea Conference has moved to near-eomplction of a treaty establishing a deep scabed resource regime based on virtuaily idel~tiealguiding principles to those conbined in the Nc~on7'reaty. Examples of parallel provisions prove that such resources are the ""emmon hcibge af mankind," that their development should be orderly and rationally managed, and that the benefits ( b t h tlwancial and technological) should be equitably distributed. Regardless of cvficther the law af thc Sea Treaty ever enters into force, thc "Third World has now developed a very sophisticated psition on the conterrt of an international resource regime that best serves its interests. Many infamed obsertterswill suppfl the view that this de@ifd efakoration of these revolutionay new ideas retlects the intemationaj custom, prdctice, and consensus as to how socailed ""common pmprty" "sources are to be regulated, managed, and developed. Thc Draft l m v af the Sea l"reaty requires the coflcctivization of resource deveiopmellt through a glohdl monoply under the political control of a General Assembly-type body dominated the "Il"hirbWorld. Et restricts the rights of sbtes and private enterprise to carry out profi t-making activitics, bp t imiting these activities to a11 initial priod during ~vhichthe necessary techllology is fully transferred tc~the monopoily, Finally, it provides far intematictnal regulation production tevefs and prices in order to discriminate in favor of developing countries.

In summary, the Moon l"rc"aty, if adopted as the basis for negotiating a future resource regime for the Mmn and other celestial bodies, ~vouldborrow meaning from these precedents. 'I'here are manj other imaginative approaches cvhich would enable the nations of the cvorld to cooprate peacefully in expanding thc commercial appjications of cjuter space technologj to resource exploration and development. C$oclrd examples alreadj exist for commercial irtilization ojf outer space, and there is no reasan cvhy the United States should pemit outer space resource development to be thrust into a quagmire of political principles derived from the "ne~vinternational economic order.'" In view of the enormous capital and technology requirements contemplated far the future industrializdtion of ottter space, political skhility far investments will be absofutel~critical. ff this trew is ratified by the IJnited States, hobvevcr, any commercial application of outer space tcehnology cvhich involves use of Moot1 or other celestial resources wit1 be sub-ject to the greatest insecurity irnaginabie. While the spillover effect for other commercial activities in outer spacl: cannot be fully predicted, it may be very significant.

Specific Negative Implications of the Moan Treaw f"or Free Enterprise

[Another keyf issire is the definition of ""sientific investigaticjns,""'R) the extent that it excludes research and de\ielopmcnt activities underaken bp a commercial er~lityin the hope of hture profit, p'dmgraph 2 of Article VX kcrould prohibit such an entity" irsing resource samples collected from the Muon and other celestial bodies cikher for research and devefopmcnt or for the suppart of its missions. Pdmgraph 8 of Article XZ reinhrces this apparent prohibition on the cotlduct believe that free market economics in the traditional scnsc will have an14 a small role to piay in space industrialization. Vet it may be short-sighted to concede in a binding treaty that the political will of the m;ljoritj of nations, rather than market-oriented forces, should dictate the pace and subsbnce af outer space resource cSe\~elopmcnt. Second, the principle of ""expansion of opportunities in the use of those resclurees" will ultimately etrolve into a 'Third World position that access to the Moon and other ceilcstial resources must bc limited for industrialized countries, so that developing countries have a chance to pdrticipate. @he Soviet bloc can also irse the principle tcl insist that Western and Sot iet actitities using the Moon's resources kept at thc same level of intensity*) 'i'he clearest ei~ofutian of this cotleept is found in the draft Law of the Sea 'l'reaty which creates an internation& milling monoplly for half of the deep seabed's milleral resources, based an the argument that dc\leitoping countries can only expand their oppjrtunities to use the resources on a collective and subsidized basis. Finally, the p"incip1e of "equitable sharjng of benefits" ccould br; interpreted tcl require a system of international hxatian of any profits made by commercial re-

source developers, Since the term ""bncfits"' is not restricted to the financial realm, the principle should dieate mandatory transfer to aaif countries of the tech4 to exploit the resources, no1~ 3 . ~used

Present space law, incIuding the Mootl "Treaty,has been hrged aimost entirely out c$ high academic ideaIs in advance of an> practical commercial realitj. "True space law, if it ailocvs free enterprise ta owrate at all, cvijl evoilve to meet the needs of practical commercial ventures. In this author" opinion, practical business space law cvoufd, if not preempted, evolve shortlq after space-based exploiBtion af basic resources and energy begins to yicld subsbntial profits. History teaches that the transition between actlclemic and practical legal regimes can be graduaj or traumatic, but that such transitions inek iublj cjccur, Ominausly, the cvorld now spends Pdr mare for military purpses in space than far actlclemic studies. Apparex~ttythe only remaining substantial pc~ssibilitjfor free enterprise non-militarq development of space requires large scale commercial development of basic natural resources, i.e., racv materials and energy from spice. On11 basic raw materials and erlergy from spice can return a profit commensirrate with the capitat expense and risk that will & required to start up spacl: industrj). On1y targc scale deveiopnncnt of these basic space resources can provide sufficient economies of seaic to prmit development of space as an industrial f rontier bq f see enterprise capitalism. Such large capibl investments cannot be made bp free enterprise ~vithoutclear legal guidelines that allorv commercial operitions to exploit spice resources for profit. Free enterprise institutions simply cannot make significant ink estments in space while they are under the threat of tawsuits over the meaning of treaty terms or ex PUS$ fid;cto appropriation of their investments by a tlebulous future international regime.

I , I>ullz makes the point that the 'I'hird World countries cc~uldchallenge the tcgaf ity of t1.S. enterprises initiated prior to the formation af an international spdce regime. As a practical matter, what form could these challenges take? Keeping in mind the general principles of the 19Ci7 Outer Space "I'reaty-especiafly that space is to be used for pcaceful purposcs-cvould it be legal for an

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international regime to mount a militarj) challenge to unauthorized t1.S. cntcrprises, or the etlierprises of' any countq? See also Moon "Treaty,Arlicle 3. Without the threat of jlzr'litary action to back up an> policing effort, how much of a disincentive to dcvefapment is the passihititj of hostile reaction by a future space regime'? 2, Duta mentions that a spacl: development regime could unilaterally expropriate non-authorized hcilities and resources, One justification for this move could be that development whose benefits were not shared was in violation of the actibrities with reArticle 11(8) of the Noon Treatj, which requires that "[@Ill spect to thc natural resources of the moon shall be carried out in a manner compatible with" the specific provisions of Article I I , i.e., an international regime, designed tc~facilitate an "equitable sharing,""etc, Note in this regard that one bvaj thc t1.S. government could mitigate the uneerbinty asswiatcd cvi th p s s i hlc CXpropriation would be to eswbiish a political risk insurax~cepool for space activities, si~niitarto the Overseas Private Ini estment C'orpration (QI>IC),which provides pof itical risk insurance for U.S. companies involved in overseas activities. 3. 'X"hroughoutthis article, Dula uses ""the Soviet Bloc""and ""the 'X"hird Wc)r1d9' as interchangeable terms. Keep this in mind when reding the excerpt from Kao, sJtpra, on Third World views af the Common Heriage Ccjncept. Ewecially in light of the Fdct that the Soviet Union has joined the U.5, in refusing to sign the Mocln 'I'waty, do >ou think Duta's categorimtions are accurate? Also, bear in mind that the Soviet tJnicsln joined the t1.S. in resisting the intrduction af Cornrnon Heritage language into the Law of the Sea "Treaty. 4. For an aaicle that suggests an even mcjre ""lihearian"" view of spacl=, and condemns a11 space treaties that give sbtes, but not indittiduals, rights in space, see Wdsserrbergh, The Unfreeclorn 1;Xnder Outer Spice Law, IO Air Law 161 ( l985), But c$ J. Fatvcett, Quter Space: New Challenges to Law and 1301icy 121 (1 984) ("'.,. pperhaps no human activity has ever bccn so basically iniernational").

Webher, Extraterrestrial Law on the Final Frontier: A Regime to Govern the Development of Celestial Body Resources, "IGeargetawn Law Journal 142'7 (1983) In 1969, when two United States astronauts Xandcd on the M a ~ nNeil , Armstrong proclaimed their success tc~be ""one giant leap for mankind,'" "Fen >ears tater, the llnited Naticslns C'ornmiitce on the Pcaceful tJscs of Outcr Space (("OPUOS) also took one giax~ileap for mankind-backkvards. "Thecommittee reached an agreement, commcjnlq knotvn as the "Mcmn 'I'reatj," w k h will, if given effect, significant1y inhibit comrncrciaX exploibtion of natural resources an celcstial bodies.

The Moon Treaty Does Nst Eliminate the Problems of Colonialism Prior to thc cstablishmcnt of the regime required by article XI paragraph S, the Moot1 Treaty t3ivouId prmit a period of colonialism. During this priod, each ration would bc left free tcl follow its own interpretation of the trcatj's prot isions, and ... these intemrelations differ ~videly,Nations cvould interpret the provisions in their o\vn interest instead of for mankind" knefjt. Differing interpretations cvclufd increase the likefihd of conflict. The prc3kle-m~of cofonialism would also surhce duflng thc negotiations to estab1ish the regime. 'I'he treaty expressll states that nrra;tionswill pedorm the task of estahlishillg the regime, Negotiations cvc~uldbe conducted under one-nation, onevote procedures. 'This ~voutdpit conflicthg national interests against each other. "Thedeveloping rations ivouid have the votes to push through a regime similar to . The space powers, hobvec er, cvhich by then would have inthe Sea Bed Autho~tj vested large amounts of capial and tcchnofogy in development, could refuse to abide by s ~ ~ ac11hagreement, claiming that it deviated from their longstanding interpretation of the provisions of the Moon '1-reaty, tintess the develczping countries agreed tc? thc intr=rpre&tionof the space pwers, thc space pwers ~vould likely to prtxeed with development unet~eumkredby the regime. The Moon 'Treaty, therefore, does fitrte to abate the problems (.l"cdmialism,

The United Nations Is an Inapprapriate far Celestial Bedy Resource DeveXogmexlC Afthough the lJnited Nations, through its committee structure, has contributed a great deal to thc dcvelopmcnt of space taw, it is not the appropriate organization to cotltrul the development of extraterrestrial resources, "TheUnitd Nations is institutionally weak and incapable of enforcing an> mandate, A slow and Gumbersornc body, it cannot rcspnd cffectivetp to conflicts among nations. In addition, because the United Naio~lsdeals with a wide mnge of activities, it ~vould be imable to govern resource detrelopmenton celestial bodies indepndent c3f terrestrial concerns. l"hc involvement of terrestrial conflicts in celestial k7dy decision-making ~vouIdinterject extrdneous iss~resinto the process, and burden and deiaq an> decisions that were made, As a resuit, the tinited Nations could not providc the inciestlncnt security nccessaq tc? foster thc deveir7ipmcnt of celestial body resources, ... XNTELSAT Does Nsf: Offet. an Adequate M d e l

A regime modeled after EN'I'ELSA'r ... cvc~uldhate serious ftacvs, Such a regime cvvuld cngagc in resource exploitation itscif, create a monopoly, and

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free~cout independent public and priilate initiatives. These actions cvould violate the principle of free use. If an organization modeled after IftJTELltiKT has any role in the development of outer space, it should hr;as a participant withi11a legal regime, not as a governing Ipt~fy, In addition, the political conditions that led to INrI'EX,SKT"ssuccessf"u1eslablishment hate ceased tcl exist tc~daj.The organization's operational decisims are made by a committee in cvhich each signatay" stating pwer is determined by its investment in and utilir,ation of INTE1,SA'I'. Developed countries would not be able to gain similar contrcjf over a lunar regime under existing pczlitical conditions. 1f\3'1["F",jtJSAr was formed befc~rethc challienges by developing countries to the existing distribution of international economic power became an important i~lfl~renee in wclritd politics. Anothcr reason that INTE1,SA-F%success cvvuld not be transferable to a lunar regime is that INrfEX,SA'I' prtjvides telecommunication services, the value of which lies in their widespread availahilitj, Nation-states haire a mlrttsal interest in the expansion af internatic3nal communications. Onc country can not fully cnjoy the benefits of the organi~ationunless a significant number of other nations also participate. INote: 'I'hese benefits fmm brmd participation, known as "network extcmafities," are a key feature of the telecommunications ivorid. See Chapter 6, r'jgra, far more on how such considemtions shaped the structure of IMl'EI.SA'T, f This is nut true for celestial bodies, cvhere the knefits can be profitably manopli~cdby onc nation, Finally, IN'I'ELSA'X' uses resources that, when the orgat~izationwas created, were virtually limitless and did n d threaten the natural resource markets dominated bp the dcvcloping countries. In contrast, activities on the Moon ivilt produce a vast supply of natuml resources that ptentialXj wifl compete with the resclurces of developing countries in tenestrial markets, 'The developing countries, therefore, would be threatened by a regime, dominated by the developed eountries, that could diminish the value of their vilal expofis.

The Antarctica Treaty Does Nst Offer am Adequate Made1 'I'he treat> tc? ensure the peaceful scientific explomtion of Anhrctica has been mention& as a mdcf for a ceXcstial body regime. The Anbrctica agreement, however, does not provide h r an authority governing expIoration ancl development, but only for a mference mechanism to ~ r m imsultatians t between signatohes.

A Pr~pasedRet;;lmef'or Exploitation of Celestial Bedy Resources ... frt. order to cclnsider the interests ol" mankind as a cvhole, as well as mankind" respnsihility to reserve celestial btdjes, a new type of regimc is re-

quired. Mankind should establish an cxtraterrcstrial regime for thc sole pur~>osc of controlling celestial body ... development. "The regime should concentrate on Facilitating the development of celestial body resources for the benefit of all mankind. In determilling whether a particutar resource should bc extracted, thc regime should consider economic benefits to mankind from exploitation, preservation of future rights of access to the body's resources, and protection of the eni ironment o f the celestial bodj . First, without thc cxpioi&titl>nof resources, mankind wilt receive no bcncfits from celestial Itodies. Secotld, the maintenallce of free access is impomnt in assuring lesser-developed countries that they will br; able tcl use celestial body resources when thcy acquire the capabilit;)-.Finally, mankind cannot rely solely on profitmotivated entities to protect the envirc3nment of celestial bodies. l'he regime should institute a licensing slstem to ensirre the benefit of mankind, future access, and environmental protection. An entity wishing to develop resources or use the sufiace of a celestial body in any way should be required tcl stlbmit its proposaj tcl the regime and the regime should have the authority to grant or deny the request. If the proposal mct previously established criteria, the regime would issue a license. 'l'he license would cover only an area suMieient to aIito?v an adequate return on investment, and bvouid be subiject, upon prmf of adhcrcnce to establ ishcd criteria, to renewal or revoctation, l"he l icense would not confer ally permanent property rights over the area. Only the resources exploited bq the licensed entity cvould come under its exclusive control. The primary goal of the licensing prrjcedure should be to limit the domination of investi~lgentities to an area that thej can profib"8j exploit over a l imited period of time, in a manner consistent with thc benefit af mankind principle. For example, the regime could license a mining company to utifize a one square mile area over the course of one year, and simultaneously grant provisional options aver ad.jacent square mile plots for thc next ten years, So long as the entity" activities were consistent with the conditions of the license, the regime would renew it each year, so that the entitj would alivaq s have rights to mine resources ten years into the future. This cvvuld provide the security necessav to induce investrnellt without giving the investing enti9 cotltrol over a large land mass. Such a sj stem bvould prevent foreclosure o.f a large area frclm necvcomers. The Regime S/zould Have iIze Power to E u Entities Utilizing Celers~iczlBody Resclu~es

"Thet~xationof resource exploitation ivould be the regime" pprimaxy source of income, 'l'he regime should use the revenue to meet its administratiire costs, conduct public research to improve the quality of human lift "con celestial bt~dies,

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t earn mare abt~utthe envi ronment of celestial bodies, and discover information that might prove useful on earth. Information acquired bj the regime ~vouIdbe available to ail.

The Regime Sjzould P$ot Attempt to Redistribute Wealth Av~longNations or Organiz~tions

The an14 purpse af the regime should be to develop extratcrrcstriai resources far the benefit of mankind in accordance with the free access and er~vironmenbl protection principles, nclrt to redistribute wealth.

I4aurl'eiptl'rzgDevelopers Should Be Giverz Greater J P Z ~ than U ~ ~o~l~mufici]3~znt~

Entities that participate in the develapmcnt af eelestiaX bt~dyresaurccs have a greater interest in the ef."fecti\?eoperation of the regime than the rest of mankind, and consequently should have a greater input intclr the decisionmaking process than nonpartici pants.

I , Webber criticizes the role of the t1.N. in the spacl: de~~elopment regime envisioned by the Moon l"reaty, sbting that U.N. involvement ""would interject cxtraneous issues [i.e., "terrestrial concernsW"fintothe prr>eessW of making decisions. But what alternati~einternaticlrnal body could possibly eliminate the inclusion of ""tcrrcstriaf concerns" h its decision-makingf?Even with voting weighted in Fiver of tlations active in sinace, an intert~ationaiorgat~izationcould be expected to reflect political and ideolc->gicaftensions. Even IN7I'I;,t,SATI;the international communications satelf ite cmsortium, has seen its share af political wrax~gling;a recent example is the controversy over I;X.S. eswblishment of a pri? ate communicaticlrns sate1lite in dust^ outside the airspices o$ INL'ELSA'I: See, e.g., X Mcredith et al., Amcrican Enterprise, the law, and the C_"ommcrcialUse of S p c e 22-24 (1986). "Thistopic is discussed at length in Chapter 6, i~ifin,as are the circumstanrlles leading to fN'I'E1,SA"E"screation, uses resources that, when the organi~ation 2. Webbcr states that ""IN?"F",X,SAr was created, \yere virtuall) limitfess." This is somewhat misleading. The formation of ENI'ELSKE' can more accuratelj be described as an effort tclr centrali~eresources to create a hcitity that ~vouldbe difficult for each nation to duplicate.

See Sandlcr & Schul~c,The Ecarznri.lics oj Outer Space, 21 National Resources Journal 371 (1981). See generafly FAelson, Global Satellite Commrd~zientl'o~w, 236 Scientific American 58 (1977"7)Thus, it cvas the poclling of capital for creating what might be dcscrihcd as a ""natural monopofy," rather than a lack of eornpetition over communication fieyuencies, that led to the eslablishrnent of IN'1EI,SA"I7.For a detailed description of the negotiations leading up tcj the fornation of INTEI,SAF, see C'ot ino, International 'fi=lccornmunieationSatellite in I Manual on Space Law 363-99 (JasentuXiyana Clrganizr-ttion(IM'X"ELltiP;i~, and Lee eds.. 1979). 3, Wcbber reaches an interesting conclusion by employing the logic of sclf interest often used by developing natttic3n ecotlomists to describe the behavior of the II,S.: "activities on the Moon cvif l produce a c ast supply of natural resources that potentially will compete with the resources of developing countries in terrestrial markets," Thus the Note implies that a "Third VVarId-dominated space regime might act tcj restrict the output of space-derived resources tc~protect domestic markets for the same or complementar~~ resources. NcXe that sci~eralconsidcratioas might mitigate this brmd of protectionism: (1 ) the Fztcr that the mdcjrity of the Third World countries each produces only a handkl of natumt-resourt;e commodities, ~vhichmakes it less likely they ~vouldhave a unified economic interest in excluding or restricting any particular resource; and (2)the Mocjn "Treaty itself states in Article 11(7that one of the principles tc~be implemented by a spacl: regime is ""te expansicsln of opportunities in the use of Ispace] resources," wkch presumably would not be served by a restrictive self-interested policy of limited development. Nonetheless, Mr. Webber" pjint is well-taken.

Rao, Common Herihge of Mankind and the Moan Treaty, 21 Emdim Journal of LnternaitionaiI Law 275 (1981) "TheAgreement Governing the Activities of States on the Mmjn and Other Celestial Bodies, 1 W9, is largelq addressed to regulate ""eppfomtion and use""of the Moon and other celestial bodies. A pint for eonsidcration is whether it is prmissi htc for a S&tc Pwty to exploit, and thereby exprc~priatc,the resources of the Moon, peilding the estahiishmeilt of an international regime. This issue assumes some significance in view (of the fact that the developing muntries did not insist on a prc3vision for a moratorium on the exploitation of the rra;turdl resources of the Moon, peilding the establishment of such an international regime like theq did in the case of sea-kd rest~urces. [ I jt appears that the absence of a moratorium clause in the Agreement amounts to licensing unilateral exploitation of the resources of the Moon, penQng the cs-

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tablishrncnt of an international regime and that the reference in Article X 1(8) to Article 6(2) does not place any limit on the extent of commercial exp1oit;ltion of natural resources of the Mcjc~n."f"heseideas come out clearlj despite the contrived attcmpt to conform to Article 612). ... [This bccamc] all the rnorc clear when the U.S. Represenbtive approvinglq referred, a1heit impliedly, to the views bltrxntty presented earlier bj the t1.S. Representative to the Legal Sub-Committee of the IINCCIBUOS on April 19, 1 973: The tinited States i s not prepared to accept an e-rpre~s or irvtied prohibition on posapsible natural resources before the international currference meets and agrees prcltpriak machir-rerj and procedures iat~d]a treaty conbining them take[s/ effect.

That there is no express prohibition against a Memkr State exploiting the resources is apparexlt, The tX.S. Represenbtive, however, right1y anticipatecl one implied limitation (and there are man) mc~re)in A&icle 11(3) and then sought to explain it away in the following manner: (7')he words "in piace" in the first sentence of pamgraph 2 are intended to indicate that the prohibition against assertion czf property rights would not apply to natural resources once reduced to possession through explctitation ei ther in the pre-regime pt.ric>dor f o l l o ing ~ the eshblishment czf the regime.

"The views expressed by the tX.S. Represex~tativeslead to tkvo propositions: one, there is no Limilaticjn on exploitation of the Moon" resources cvithin the rncaning of Article 6(2); and two, a Member SQtc may not claim proprty rights on the rrarural resources of the moot^, but once the resources are collected or excaitrated, a Member State can hold possession of ithem f and expropriate ithem f. The tenability of these psitians may briefly be cxamincd. Article 1 l(8) of the Agreement subjects a11 "acti~iitieswith respect to the tlatta article 6(2) (one such activity doubtless k i n g the ural resources '*ttc ddescrihe mcjdem fand-use liacv, making some areas nonappropriable by pdvate cntitics). It c v a ta foresbli such "'land grabs" that

the li.S, government instituted a ""claiming" "stem for mineral deposits on federa1 lands in the nineteenth century. See X. C'. X,indfey, A 'rreatise on the American Lacv Relating to Nines and Mineral Lands Within the PuMic f ,and States and "I'erritorics 761-95 (315 cd, 1914). As a thought experiment, crslnsidcr how such a cjairning system might be stmcturd for space. A helpful article, applying allocative economic principles te> the prt3hliem o f satellite freyuencj assignments, and suggesting the adoption of an auction system for fquency and satellite icleation resources, is Wihlborg & Wii kmar~,Cluter S p c e Resources in EfEeierrt and Equitable Use: New Frcmtiers for Old Principles, 24 Journal of Law & kkonomics 23 ( 1981); a pcslfiion of this article is reprcKtuced irrfia. "The article just mel~tionedconkins a very usefuI proposal regarding the reconciliation of efficiencj and distrjhutionilt cc>nsiderations,llnder the proposed schemc, alli property rights over frequcncics and satellite location would initially belong to a centralized agency. The agency would then auction off the rights to specific frequencies and locations, distribirting the proceeds from the auction as it saw fit-e.g., by some "P~irness"pprinciplc. among mernbcrs, As a second thought exprirnent, consider how this auction system might work in the context of space de~elopment.First, only those resources that are relaticely easy tc~develop ~vouldbe included in the centmli~cdagency. Second, the agency woufd have to have some en-tizrcernent mechanism to ppuish tlotl-members for transgressing on the ageneg,'S proprty rights, "I'hird,the right tcl develop a particular resource cvvuld k time-limited, so that future bidders woufd have an opportunity to gain access to the same resource. Such a scheme ivoutcl insure that the resclurces went tc~the highest bidder, and that nt-,group of earl> bidders could monopolize resources tong after the initial bidding, Such a regimc ~vouldalso solve the ""ragedy of the commons" pproblcrn alluded to above. In addition, since the bidding scheme cvould be independent of the system for allocating profits, it ivould in no way constrain the centrali~cdagency from alfoeating its profits to assist less developed countries in achieving spice capabilities or simpI5 in developing their ecanclmic sqstems in general, Do you think such a system would hc compatible with the principles and provisions of the Moon 'X"reatyf"'I;Vhat positioll ~vouIdjou have to take on the two kej interpretive issues in the 'Treat>-the meaning of "h place'" resources and thc "'common heritage of mankin&"in order to espouse such a system? How kfirould it square with the arguments and icleolc~gyassociated with the New Xnternation& Fxclnomic Order? WihXborg & Wijkmar?,Outer Sprrce Resources in Eftficient and Equitable Use: New Frantiers for Old Principles, 24 JaarxtaX of Law Elr Economics 23 (1981) Space is the common propert) of mankind. "I'r;zditianally,access to commcm property resources such as the weans has b e n open and free. This is appropriate

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for resources that are plentiful. At first glance, space appears to h not on14 abundant but inflnik. Hoivever, future demand for syace resources may soon rnake them scarce in the sense that an allmation mechanism cvilil be needed for their efficient utili~ation,Satellites already prform traditional and ncw services using outer spce resources, and plans h r industrial ventures in spice are under way. Space acticities compete with more earthlj activities for use of the scarce electromagnetic spctrum, "Thispaper dcmonstmtes how the general pri nci pXes of efficient markets easif y can be extended to space resources, fn fact, the market mechanism is particularity well suited t ~ 7achieving efficient usc af these resources given thc difficulty for a central authority to ohkin the tlecessriq infiurmation. The paper is inspired by twcz seminal articles b> R,H. Cl'cjase on the organixaticln cjf econclmic actic ity, Our application is one of many possibilities: tkc samc reasoning could be applied to other properly resources.

11. Properties of Emeient Markets for Space Resources

"This sectiox~argues that markets allocate rights to use orbit-spectrum resclurees more efllcientfq than do the nonmarket mechanisms cunently in use. ft considers three aspects af cfficicr;ne;)i.First, cfficieney means that a resource is allocated so that the marginal unit cannot be reallocated to another user without locvering value added. Second, an efficient system motes towards a new efficient allmation in the above sense after any disturbance such as an increase in demand or a reduction in production costs. '2'hese two aspects of efficiency will be denoted as particil efficiency in the markets for space resources. 'Third. and more general, an efficient system provides incentir~sfor investment or research in new activities when they are expected to produce higher value added that1 do cunent activities, As an economic resource, space consists of orbitaf positions and frequency bands. Efficiency requires that these can be combined free1y. Currently they are sclfd as a unit with fixed coefficients. 'I'his is like assigning a radio station on earth a spcific piece of real esbte for a transmitter together with a frequcney. Separate markets in frcyuex~eybands and orbit psitions make it pcjssible for all users o f space locations and frequencies to trade the two separable ecanclmic resources until a Pdreto-optimal situation is reached, In such a situation no user can chal~gelocation and freyuex~cywithout paying more that1 the ptential gains genemted by the new combination. Note, howet.er, that in order far the markets for the resources to functi~jnefficientfy. it must h possible to purchase a unit of one of the resources cotlditioaal on obkining a cemin unit of the other resource. Not on14 are the resources in general complementary brat specific units of the two resources may be compierncntary.

["flfic markets for space resources should have the follocving properties: (a) cc.trnplete allc.teatiotl regime, fb) divisible and markelable user rights, (c) lotlg contract periods, fd) well-defined liabilitj rules,

An allocation regime can be efficient only if it includes all resources that substitute for, ar complement. each other. 'fhus, markehble user rights to resources in syace rnrist be defined to encompass substitutable modes of producing paflicular g ~ ~ o and d s services. For instance, long-distance ccjmmunications can be transmitted bp submarine cable, wire, and \vireiless as well as by satellite. Since real estate on earth is a ~vell-pricedand marketed resource, efficiency requires that scarce orbital positions, too, be priced in competitive markets. This allows a firm to compare the true costs af alternative tocations fur a relay station, If orbital slots remain free though scarce, too many resources wit1 be invested in the building and launching of sateiliks. [In addition, l the close substitutahilitj bet~veendifferent parts of the telectromagnetic] spectrum necessitates that markcable user rights be defined for the entire spectrum-along the ground as well as in space-hr the market system to be efficient. B. Divisible arzd Marketable User Rights The trade-offs facing users of the electromagnetic spctrum are more eompf icated than a simple choice betktreen grc)und and space frequencies. Many tradeoffs exist with respect to strength o f signal, size of antennae, cveight o f satellites, precision in direction of the signal, and preeisian in the use of frequencies. "Trade-oEsoccur between diEerelat geostationary orbits and other orbits and betiveen the choice of orbit and all of the above aspects of frequency use, 'I'he t ength of ti me a frequency is used can also bc traded off against Iexation aspects and the different aspets of frequency use. "The tlumber of combinations among all these c ariabfes is immense.

User rights rnaj be purchased for either a limited or an indefinite p e ~ o dof time. While b t h .r"ormaIJyare eases of leasing, a tease for an indelkite pcriod of time in

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effect conveys a title of orvnership to the Icssw, How docs the length of the contract perid dfect the efficiency of the market systemf?We show here that eft;ciency af\.\raysprevails cvith indefinite user rights, while inefficiencies can br; causd by time-limited user rights if the duration of the lease is shorter than the economic iife spin of the sd&llites,More spcifieal t y, it is the time-limit combinecl with costs for tmnsfoming the satellite to use other firms and costs for transferring the sate!l ilc: to other orbit-slots and/or fi.cqucncics that cause incfficicncy. Pdrtial efficticncy in the markets for space resources also prevails in cases involving factor-specific equipment with time-limited as well as indefinite user rights. Efficiencj with respect to investment and research incentices presumes indefinite rights, hocvever, 'fi, show this, consider how cfficicncy is achieved in the two cases after a technological change. For an irzdefi~iteuser right the new firm must now bid a price that covers the present tralul: of the incumbent" eexpected rent on thc orbit slot and the frequency plus compensation to him for eapitaf loss on the equipment. 'l'his is efficient because capiPal destructioll should not CIccur unless new capital is sc~much more productitte that the increase in value added coelers the expected remaining val uc added on the old equipment, An identical situation \firill result with time-limited user rights. It is not sufficient for the new firm simply to bid more for the lease than the current ho1der pajs. hcause the incumbent will bc tvilting to increase his bid up to the point when he can no longer cover variable costs. 'The old Factor-specific equipment therefizre l: until it prduces a negatitre tralul: added at the will not br; taken out rcthe space objects are installed, Current users of adjoining frequencies and locations must pay a higher price, therefore, tc~reduce interEi=reneeto an optimal fecef (as defi~ledin the case with perfect information). i f instead the ncbv entrant were liabtc for

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damages caused by his sateilitc, he cvoufd be induced to surt negotiaticslns when the costs of modifying the eyuiprnellt are at a minimum.

Choice of Management: Regime: Efficiency and Equity Considerations Is there an> need for an international orbit and frequency authorit], and, if so, what roles should such an authority hacie"?l"his section coneludcs that an authority can contribute little to achieving e@cie~tc-yotlee the institutionai frdmework for ccjmplete markets exist. E-loweiier, \veil-functioning international markets may require international trade and legal conventions, l"hc main task of an international sinace resource authority is instead to achieve equity in the clistributioll of rents among naions. We suggest, therefire, creating an international condominium to auction the electromagnetic spectrum and the orbits and to distribute the resulting revenues. 'I'he current regime has been called a sqimtters"rights regime becairse ocvnership is distributed on a first-come. first-scrved basis, This is a misnomer in onc irnportarrt respect. Once a squatterasclaim is secured, his prtjperty rights are complete and he can self his farm tcj mcjre eflicient, more eager famers or subdivide it for development. This cvas the ease an thc American lirontier dufing the 1800s. While it is true that a user of orbit slots or the frequency spetntm is a squatter in the sense (l" claiming resources not irsed b j anJone else, his claim and use af these resources do not grant him the right to self all or part of them. W is property rights are therefore circumscribed in an im pomnt respect which distinguishes the current regime from a true squatter's regime. Cl'urrentlj there are restrictions an the intmnational transfer af user rights as well on their international trading. For example, the Federal Communications Commission must appro1e users of" the electromagnetic spectrum in the Ilnited States. A true squatters"-rights regime may be tcss efficient than auctioning uscr rights even when the co~~ditions for effjeient markets are fulfi-illetl.One reasoll is that transfer costs betcveen different orbits and frequencies maj prekent a latecomcr in space from obtaining an optimal position ar frequency, since the resources cannot be claimed ivithout physical presence. 'l'he complemenbq nature of orbit slots and frequencies empfiasi~esthis inefficiency of the squatters3rights regimes kcause a potential uscr of space resources cannot claim parts of the two resources simultaneously, An auctioning system cc.tuld be clesigrled in such a waj that this compfementarit] cc~uldbe recognized, ho~vevcr.... However, the ma~rrdifference hlwccn a squattersLrights regime and a resource auction is reIated to the problem of equity rdther than efficiency. We shail return to this issue belotr., ...

Thus, there is an imporhnt rofc for international conventions similar to those of the Generdl Agreement on 'Fdriffs and 'l'rdde (IGA1"l'). 'l'he optimal &riff argument suggests that one country cc~uldgain b> restricting trade in its shares of the space resources if thcsc were imperfect substitutes for the shares of other countries and pc~ssesseda compdmtive advanwge in producing speil7c services demanded by other naions. 'rherefore, in an initial distribirtion o f proprty rights no single country or small group of countries should bc given a monopoly on specific space resources that it can exploit bj impsing an optimal tariff. Some naions maq also cvish to allocate all or parts of their resources in a spectrum for rnilitav purpjscs or for other services that are suppiicd by government authorities. "The frcyuelley spectrum can provide public goods, such as emergency commlmications and mi t it35 serf ices, which are nonmarketabf e, but this should not free the respective government authority from the market test of the willingness to pay far the use of a scarce resource. ... Inevitable inte&ercnces in the use of swetrum and orbit resources suggest the nccd for an international legal convention, bccnusc liability rulcs must be defined and enforced. Such a cotlvetltiox~~vouldnot be tlecessary if ellough tlational labvs cvere direct11 applicable to the use of space resources. Lacking these, international interference requires an internaticslnal lcgat framework that is accepted and etll"oreed by aII nations. Specification of such a legal framework cvould not he imique, 13arallels exist in international law, such as the liability rules regulating collision at sea. T,iabifity rules could either be accepted internationally and enforced by courls in individual tlations, or the international authority could serve as a court for eases involving damages in the use of the frequency spectrum and thc physical space resource, ... 'The ma-jor task of an. international authority for mallaging spice resources will be tcl distribute rents, When a nclnreproducible resource becclmes scarce, it generates rents. iliscussian of the normative qucstians of cvho should enjoy these rents and how the desired distribution can h achieved has often been cotlfused since space has traditionall) been considered an international common prtlperty resource to ~vfiiefiaccess is open and free. Properly rights to the resource conscquentlq have usuaIIy not been precisely defhed and their rents have seldom appeared explicitly, The importance of rents is nevertheless illustrated bq the struggle over property rights at thc World Administrative Radio Conference (WARC-79) proceedings, Allocating irser rights through a regime of squaters' rights cvoutd resemble thc acquisition of titles to gold and land during the west~vardpush of the Amcrican fiotltier, Space ~vouldbe a new frontier and firms and nations ivould rush to claim the most valuable orbit slots and frequencies, The best-equipped firms in the most technologiealliy advanced nations could quickly cXztirn valuable space properly, and little of"the rents would remain for other tlations. Such a regixne is unacceptable to most countries.

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The current regime regulating access to the e'lectramagncticspectrum and orbits is similar to that trdditionaliy used fizr commons. Govertlments apply far user rights tc~the International 'I~elecomm~mications tinion which grants such rights on a first-come. first-served basis for an unlimited time period, The applicant is in effect granted rents h r the period of use. ff entry were not regulated by this ncmmarket method, rents cvoutd be dissipated through congestion and interference, Some developing countries have proposed either that user rights be reserved far future use by cc~untriesthat have no current use for them or that the electromagnetic spectrum and thc satcltile orbit subdivided and title ta its parts distrib~ttedamong countries in an equitable manner. These two pmcedures are eyui~alentin terns of eyuitj when user rights are accorded in perpetuity. Wotvever, unless markets for resale or subleasing af space resources are also aflocvcd, greater equity is achieved at the exvnse of less eficiency since scarce resources will he hoarded for future use. The auction mcthod for allocating user rights as a way to ensure efficiency in resource use is cox~sistcntwith ally distributiox~of rents, 'l'he equitj aspect of managing orbits and frequencies could therefore be separated from efficienel aspects.

I , The authors suggest that an international authority is only necessary from an ef"zciencysandpoint when so rnally activities are affected by some p'aflieular activity that Liability rules ancf/sr bargaining over property rights are not sufficient to reduce interfcrcnee to an opimal level, that is, when there are excessive transaction costs. fs outer space suf"icient1ylarge to avoid the need for a centralized agencq tc~achiecre effiiciencj? Would it be cvise tc~plan now for the day when intcrfcrence bctcvc.cn rival space deveiopers is mare [likely? On the nccd to regulate communication via space sateIli&, see R. White cYr: W. White, Jr., The Law and Regulation of f nternationd Space Communication 5-43 1988);see also C'hapter 6, ijzfia. Note that thc 1988 Space VVlARC (Wcfrld Administrative Radio Conference), concluded as this book was in press, adoped a new regime far allocating geos>nchrc~ncjus orbial slots, This regirne is discussed in Cl'hapter Q, 2, The authors also note that equity, if not efGciency. requires an international ""e?tldominiunn"" or central agency. Es it too early to toworry about equity in spice development? Is "fair dei elopment""an important enough principle to cause us to sacrifice "'early deveiopmcnt""?'i'hese arc: qucsticslns that will not die with the Moot1 "Treaty;they are likely to be with us for a long time. 3, On these topics generally, see Coase, 'I'he Federal Communications Commission, 2 Journal af Law & Economies 1 (1 959) and Coasc, The Prt3bicxn of

Social C'ost, 3 Journal of I,atv &L Economies X ( X 9601, 'fogether with William Meckl ing and Jora: Minasian, Codse bvrcjte 13rc)bIemsin Radio Frequency AIIoeaticzn (Rand Corp. 1963). Although this manuscript remained unpublished, the coauthors later published two important contributions. See Wilfiam H. Meckling, Managernel~tof the Frequency Spectrum, I968 Washington tjnitrersity Law Quafierly 26 f 1968);and ford K. Minasian, Proprtj Rights in Radiation: An AIternalive Apprc3ach to Radio Frcqucnep Allocation, 18 Journal of latv & Economics 22 I (1 975). See akso A.S. DeVdx~yer al., A Broprty Sq stem for Market Allocaticzn of the Efectrczmagnetir: Spectrum: A l,egal-Economic-Engineering Study, 2 1 Sunford iatv Reviecv 1499 (1 969).

COMMON PROIOXFRTY AND THE COLLECTIVE ACTfON PROBLEM Prclrpsals tcl fairly and efficiently allocate space resources, such as those imder discussicsln here, have the virtuc of coordinating rights alliocation (and hence development more genemlly) through a centmli~edagency, Cet~tralizationsolves a number of prcjbfems, most ncztably the transaction costs of locating rights owners and finding out about the rules of orvncrship and transfer, (This advanbge obiriously is a major motivating force behind the proposals discussed in this section.) But these proposals ignore a tough question: how tc~rouse the trarioirs nations (and fractious forces cvithin them) into organizing thetnseives into a unified group. in other words, these proposals msume an illternational organizdtion to admillister space rights, and proceed direct11 ta a discussion of how hest to structure the organi~ation, A large and important literature has exterrsic?elq documented the difi"Zcu1ties involved in organiting an] large group to coclperate. 'This is known as the csllecfive actiarz pbletn-a probtcm which, if you stop and think about it, is ubiquitous in social and economic life. To take one simple example, consider legislation that benefits cm14 one small group fsaj, sheep fiimers whose sheep produce a certain rare type of wool) at a high crslst to taxpayers in general, Et is easy for the sheep Farmers tcj identify each other, and thus to form a lobbying grczug, and thence for this group to know its goal clear11 f maximizing the subsidy andlclrr import tariff for this type of cvool), On the other hand, hxpayers in general each suffer on1y a slight economic harm clue to t the spcial ivool-prtjtecting f egislation backed b j the small fobbj. As a consequence, although it is rational for them tcl oppose the legislation in princi plc (because it is not cost-justi fied), they almost surely will t~ot.It is simply not worth the cost of organizing and fighting the s p cial legislation. The taxpalers, in other words, are likelj to be imaMe to ot ercome the collective action problem facing them. See Naneur Cllson, The Logic of Collective Action: Public Gouds and the Theory of Grc?upsf2d ed. 1971). 'l'hc same proeess has ailread] been documented in the brief histoy eepSeakd, Outer Space, and Antarctica, 23 Vand. J, I'ransnatY L. 8 19 (1990). Heim points out that three arcas which have pcsltential as sources of minemi dep~sits(Anbrctica, outer space, and the deep seabed) share two common problems cvhich have frustrated agreement Qet~veen i~ldustriali~ed countries and less developd eounifies (I,IZCs): ( X ) a definition of the common hcriuge principle; and (2) a ~vorkabiemanagemellt regime. Although the author suggests the adtersaries compromise and find a solution quickly, there is little real hope they will do so, as her own rescarch shows. (She points out, h r instance, that the proposed AnQretie Mineml Contiex~tion,which gave strong voice tc~the "cc~mmonheribge'" principle, would hatre created more problems than it solved: it gave developing countries ultimate controf over developed country activities, even though in the early years at least it is the latter group which wilt bear the risks c$ mineml dei elopment.) Heim argucs that a regime should be structured that both the nurncrc3us developing countries and the ~vealthj,technologically advanced countries ~vouldrdtif4 under a one-nation, one-vote s jstem, Prcferahll, she s a s, ~ this s jstem cvouf d provide imrncdiate gains and controf of development to thc countries or entities that take the initial risks and would provide the developing countries with a hture oppartunit:, to take part in either the development or conservation of the areas. Id. at 83.6. Yct she gives no indication of any recent precedent indicating that such a scheme ~vouidhave ally chance of being created, In fact, recent evidence indicates that countries are cm14 too cvilling tc~take advanhge of existing institutions to further selfish goals, A recent article provides

ane relei~antexample from the space Geld, Jonathan Ira E~or,in an article entitled Costs Overhead: 'l'ongaas Claiming of Sixteen Geostationaq Orbital Sites and the Impiicaticlns for t1.S. Space Policy, 23 Law & Pol'j Int'l Brrs, 915 ( 1W3), describes how the nation of 'fonga successfull y acquired six val uabfe orbi tal slots through the I'f U ailoeation process, over the objection of IM"I'E1,SKT. 'I'he author saqs that "I'onga's actions will affect the satellite telecommlrnications market and pricing structurc and rnay even influcnee cvho the players are in the sateifite area. This incident should serve as a ~vake-upcall to the IJ.S. in p'articufar, the author concludes, which has up until now nclt mcjnitored the allocation prwess as carefully as it should have. Even if a centralized institution could be created, rational economic agents can be expected to spend significant sums of money to i~lfluencethe rights-at 10cation proeess. l"hc general outtine af such expenditures, as \veil as the payoffs h n n them, are only too Fdnrriliar to students of administrative agelleies respnsible for dcjfing out economically valuable rights, 'To take one simple example, consider the vast sums expended to influence the acvarding af defensc contracts. or governrnellt computer processing services contracts. It is wise where pssible tc~at oid these expenditures and instead encourage activities that are mcjre direetl y prc3ductive, "Thus even though one mrist acknowledge that there might be signilkax~tadi antages in cont.ening a centralized agencj to administer rights tc~outer spacl: resources, it rnay be practical li y impssi bte to achieve consensus on the specific farm such an agency wit1 take. And it may turn out to be ivasteful. to encourdge the expenditure (.l"resources on the rights alfcxation process, g i ~ e nthat total expenditures for all space-related activities arc: of course limited, Even assuming this is so, an interesting qrtestion arises whether something short of a centralized administrative agency might emerge for be agreed upon) tcl perform some af the samc functions. Institutions of social control, after alli, run the gamut fiom such large hrmalized agetleies through more local authorit), common law rules that emerge from isolated disputes ot.er time, and et.en tct infomal (strictly speaking, non-lcgal) norms of acceptable and unacceptable conduct. See, e.g., 1iobert Ellickson, Order Without Lacv (1991). With the large catreatthat any discussion of such intermediae rules is necessaril y speculative, it might bc usefut to explore a few p s s i bilitics. First is the possibility that something fess than full intertlational agreement might join tclgether not all pcjtentiat spi.leefaring nations, but at least all (or most for af) the imprtant ones. Something like a "European Economic C_"ornmunitj9' sinace, h r exampIe, might be feasible, l"her~,once srrch an institution were up and running, other countries bvo~fdjoin. 'I'his \v~)uldceminly be so if membership in the institution \verr: seen as conferring significant benefits. e.g., if the stability and predicabiti9 in the definition and exchange of propcclrty rights were seen as desirable. Then new members cvould ""opt in"'to aiaif themselves of these benefits, and the institution \vouId, over time, csbbfist.1 itself as the stan-

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dard, l"hc alternative, of coursc, competing groups, some in the system and others otttsicle it, either as tlon-afiliatesor members of a rival group, is cotlceitiabIe; but the possi bilitj for conflict. irnder these circumstances cvould ceainf 5 be present. Indeed, it. is not hard to imagine a cvar under this scenario; it certainly matches to some extent the conditions that created cotlflicts among rival European pjcvers in the then-ne~vljexploited North American cafcjnies in the sevcnteenth and eighteenth centuries, A second pssibititj is that some purely national law wifl emerge as a slatldard, or at least as a model far other countries to follow. In other legal areas national t cadcrs have efkctively estabtished patterns that have k e n fa1lawed by other countries; commercial laiv in the U.S. (much in evidence in the Unikd Nations concention on the International Sale of Goods) and patent law in (;reat Britain come to mind, Othcr countries could adopt thc basic framccvork cvorkcd out in the pioneer countq, or private entities could specifically ""opt into""coverage irnder this cauntq 's iacvs, e.g., b j choice of law proi isions in prii ate contracts, This scenario is obviously more likely when a single country dominates the industq; experience shows that the legal framework often follows from this fact. 'The efkct would be somecvhat similar to the limited-memkrshipgroupjust described, with a jurisdictionally Ximited legal regimc emcrging as thc dc hcto international sanclard. A third possibility is that the space industlcq. wilt settle on a set o f non-kmat rules or norms that govern their activities. This is thc case in samc industries, such as diamond selling, where disputes are very rarely rekrred to fc~rmallegal institutions such as coufis, but are instead resolved bj respected industry members according to cvcl f -understood and agreed-upon norms. See, e.g., Sal1y Pdl k Moore, Law and Social Change: "TheSemi-Autonomous Social Field as an Appropriate Subject of Stud). 7 Law & Soc'j Rev. 719 (1973); Lisa Bernstein, Opting Out of thc Legal System: Extralegal C'ontmctual Relations in the Diamond Industry, 22 f. k g . Stud, 1X 5 ( 2 992). It should be noted, however, that arrdngements such as these are usually stable cm14 in small, close-knit societies, where nonlcgat sanctions such as negative gossip or reduced standing in a common religious or ethnic community are effective disincentives against ruiebreaking. See Landai. A 'I'heorq of the Ethnically Homogeneous Middleman Ciroup: An Institutional Alternative to Contract iacv, 10 1. 1,cg. Stud, 349 (X9111); Alien & Iaeck, "The""ack Forty" on a Handshake: Specific Assets, Repubtion, and the Strueture of Farmland Cl'clntracts, 8 J. L, Pkcjn. & Org. Beh, 3% (1992); Glenn C.l' Stclvcnson, Common Prapcrty Regimes: A General 'Thcory and Land Use Applications (1991); f>aniel BromIey, ed., Making the Commons W r k (1992); Elinor Qstrom, Goieming the Commc~ns(1991); Etlickson, supru. "I'he parallels Qetwecn these societies and the '"society" c7if international space commerce being limited, it is not clear how Fir shared norms can be expeted to carry the industq toward stable legal relations.

An interesting argument aiong these lines is put forward in Iaa\vrc:nceI), Roberts, The haw of the Commons: A kamework far the Eftkient and Fguitable llse c$ the Lagrange Points, 6 Conn. J. IntY it,. 151 ( 1990). Rclberts argues that the unique "'gravity-neutral" arcas around the Moon and Earth knorvn as the lagrange Points could be govertled bq what he calls the "traditional Law of the Cl'ommons," W whh maximi~eseflicieneg, and equitj svithout incur~ngsubstantial transaction costs. According to Robcrts. thrce main features of this law as ay>plied to this valuable space resource are: (1) sovereignty is invested in tlo s p cific user, but all users are entitled not only tcj freedom of access but alsc~ freedom of use regulated within a strict code af conduct, Id, at X 66;(2) rights arc: granted only to those entities which exploit the resource, Id, at 167; and (3) because seserai t$ these pczillts tend tcl draw objects tclcvard their centers, the danger af collision is high, either placing competing orbital facilities in physical conQct or pre-agreed, binding arbitrdtion might be necessary as the community grokvs large, id,at 1 69-70,

Alternatives to Centralized Rights Allocation Of course, the legal forum that applies rules is really only as efkctive as the content of the nttes themseIves. Thus we must returtl to a diseussio~~ of which propert> rules make sense in the space cantext, The centralized agencies that are most often discussed cnvision a structure that allocates pre-existing rights on some basis. e.g., by auction. There are obviously a variety of alternatijres. One alternaice among man> that can be imagined evil1 be discussed. It envisions an administrative structure to hcititale trading in and ather cxchangcs af rights, the ownenhip of which are determined outside the exchange systcm, according to a simple rule, such as first p~ssession.It cvoutd also introlce a regime to resolve disputes among mul tipie claimants. Discussion of this alterl~ativebegins with the tlotiotl that it is difficult, ancl perhaps foolhardy".to specify the precise cantent of prol)(=rtjrights befire the economic activity they wili cover has matured. Consider a farnous article on the emergence of propeay rights in beaver hunting territories among tlatisre inhabitants on Labrildor in the eighteenth centuq. The author argues that before property rights emerged it was too expensive (i.e., not worthwhile) to gct eiJerj/oneto agree volunbrily on the optimal Trteab~erharvest, and then to enfcjrce the agreement bq policing the harvesting ground or the place cvhere pelts are traded. This was not a problem until western traders in effect increased the value of haver peIts by paying more for them, for sale in the European fur market. At this point the lack czf cajrdination amczng the native illhabitants becclmes t m castlq to continue. The problem is solved by giving a single individual exel ttsive control over some spci-fulcporlion of the hullling ground, lJnder private ownership, it is the ocvner c v h ~suffers due to of erhars esting; since she knocvs this, and fcriticaflj)

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since she akorre controls thc harvest rate, she will aGust that rate so as to harvest only the optimal number of hab~ers."Thatis, she wifl make her plot self-suspaining, if pczssibfe. 'The key is that she cannclt foist off the negative consequences froin her decisions antcsl the community at large; she must "intcmali~c"'these cxternalities and hence take account of them in her decision-making. "The point is genemlized in the arlicle as fofloivs:

IWfhat converts n harmft~lor beneficial effect /e.g., the effect of hart esting one more beaver1 into an externality is that the cost of bringing the effect to bear or1 the cfccisions d one or more of the interacting pcrsons is tau high to make it worthwhile. Internalizing sueh effects refers to n process, usually a clznngc. I'IZ pmperfy riglzts, that e1labIes these effects to bear (in greater degree) on all interacting persolrs. A primary function of property rights is that of'guiding incentives to =hieve a grcater interilalizaliorl czf externalities. Dernsetir,, 'f'oward a Theory af Prowrty Rights, in Cl~~ncrship, C_"ontroland thc Firm: The Organimtion of konornie Activity: Vb1 I ( 1 988) (emphasis added). A similar statement can be found in Yaram Barzel, Economic Analysis of Property Rights (Cambridge tinit.. Press, 1 91391, at p. 65: X3coplc choose to exercise rights when they belict c the gains f-i-omsuch actions will exceed their costs. Conversely, people fail to exercise rights when the gains from owning pmperties are deemed insufficient, thus placing (or leaving') sueh propefiies in the public domain. What is found in the public dumairl, therefore, is what people have cfiusee not to claim. As conditions change, howct er, something that has been considered riot tvorthwhife to otul may be rret.tiy perceived as tvofihs\#hile;csnverseiy, what was at first osvned may be placed in the public domain.

"The F~~nrrous Coase theorem makes a related pint. It slates that, given some i~litialassignment of proprty rights, those rights cvilil be traded until they reach thc hands af the highest-valuing user, regardress of who holds the rights in thc first place (assuming low transr.tetion costs). This is of course most Famous as applied tcz legal rules; at feast in its ""smng'" form, it implies a thought that chills many a la~vycrand judge-vi~,, that lcgat rulcs are irrelevant, at least in terms of their impact on over;;tlI output. See R. Cooter, The Codse 'rheorem, in "The New Palgrave (1983. See also Rohert Ellickson, Prczpertj in Land, 102 Yale Law Journal 1315, 1337-1 341 (1 993) (noting that assignrncnt af private land plots great11 increased agrieultumi productivity in the earliest colonies). Applqing these theoretical p~intsto the design of a regime for spacl: entails taking care not to brcclasc grcater specification af rights in the future, While h n n the point of view of the ""srocrg" form of the Coase theorem the initial allocation c$ rights does not matter, in practice it sure14 will. "I'ransaction costs are tikely to be high, at least where rights holders are widely dispersed and the valuc

af rights is sub'ject to a grcat deal of uncerhinty. If, for inshnce, space minerals are discovered that were not known at the time rights were initially alfoeatcd, it maj be practically difficult for a campanj \veil-positioned tcl take adtantage o f the new mineral to locatc and bargain with alji rights holders whose permission must be obained to take advanbge of the new mirreral. 'l'he system of property rights must br; designed with this sort of future contingene] in mind. Yet it must also be uniform cnough to create scttled cxpec&lians. See Etlicksan, sttpra, at 1 362 ("'A grc3uup that is \vilIing to recognize private propcclrty in land must decide what standad bundle o3f rights to confer an a meritorious occupier of a part of its tcrrikorj)."")~"or present purpjses, it is imporhnt to keep in mind that the initial allocation of rights wift be subject to subsequent refinemetlts, and, as a cc.ttlsequence, subsequent transactions, and to design it aceclrdinglj, 'I'his emphasis on future flexibility dues not preclude any af the models of ri ghrs aIIoeation mentiotled SC) hr. Cerpainly the international rights "cox1dominiurn'" could be founded with the principle of future flexibility in mind. On the athcr hand, if flexibility is the most important attribute af thc system, it must h conceded that a celltralized administration is tlot the onlv system that will work. And if there are casts to such a stem-far example, as argued above, the casts af activities designed to influence thc aljiocatian and content of rights (i.c., "rent seeking" costs)- then aI ternatives that provide the same tlexibility without these casts must be explored. We turn tcl this task in the following section.

Mdifieil First Possession and "Deed Regis&ys' As an Alternative Economic theory in general does not look Cavorably upon a rule of f%sk possession, at least in the terrestrial context, Most ecclnclmists cvhr:, hatre considered thc qucstian agree that "'squatting," as evell as thc various forms of "'homesteacling" "htat \vex used to settle the American West in the tlineteenth century, probably encouraged people to enter the land earlier than thej would have under a system of comptitive bidding, Aside from the assumpticsrns inherent in the cconomie models used (e.g., the usual one regarding complete infiurmatiorr coneercling f~rtureactivities on and therehre tralue of the land), this consensus triertr makcs a realistic point: the race to possess free (or nearly free) land can h cxpeeled to pull resources out of other productive uses at a Caster rate than seems optimal, Indeed, an impofiant and interesting branch of economics has cansistcntly concluded that gcmds cvhose prices are regulated will come to bc rationed by a cc.tmbination of price and tlotl-price "expenditures,""e.g., ivaiting in line, that arc alcvaqs less efficient than allocation bj price alone, See Voram Barzef, The Eeonomic Analysis of Prapcrty Rights ( j 989). Impomntly, cvhat empiF-)cal evidence there i s on the topic seems to support this view: the Failure rate among ftdrms started on cheap (i.e., "underpriced"" homestead lands appears to have been significantly higher than it cvas on ather farms. See, e.g., R. 'faylor Denncn,

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Somc Efficicncp Effects of Nineteenth-C'entury Federal Iand Policy: A Dynamic Analysis. 5 1 Ag. Hist. 7 18, 734 f 1977).See also Terry X,. Anderson & Peter J. Hill, 'l'he Race for Propert] Rights, 33 f. L. & Econ. 177 (19%); Dai id D. Habdock, First Pc~sscssianVersus Opdmal -riming: I,imiting the Dissipation of Economic Value, 64 Wdsh. 1;X. L.Q. 775 (1986). Other historical sources support the same point: II Innumerable tumrtlts must have ariscn, and thc gmd order of the world been c m tinwally broken and disturbed, while a variety of persons were striving [to see] who should get the first wcupatjon of the same thing, or disptrting which of thcm had aetua11j gdined it, 12 Wifliam Blackstone, C'ommenbries "41

In the face of alli this theory-cvhich is explicitly applied to space bp Wihtbag and Wijkman in this chapter- how can anyone oppose a centralized rights-allocation authority tcl airction space rights? fn a sense, the anskver is nrl one. But this ignorcs an important point. As menticslncd earlier, the forces that cvill bc called upon to form this authorit) go beyotld-and in many ways, can be expected to be inconsistent with-- the forces of reason in support of efEicient space development. li, be blunt, politics will enter. And when this happens, the cfficicnt auction mechanism could be transformed into a hideous bureaucratic monster. 'l'o some extent, the pc~intis that an approximation tcl the ideal solution mail be worse than another solution entirely-a classic ease of the "'theory of the second best," aarlf'ull y deseribed by Professor f ,eE: [Iln cc~~nplex processes ... a move in the rigfit direction is not necessarily the right mot c. To pick a simple example, if I am on a desert island, subsisting sdcly on eocorluts ai~dczysters and kginrring to hate it a Iut, and acmss the bay from me there is ) ~ pclsition ~ in life by swimming another island, tusk and fertile, X do not i m p r ~my half way across,

Arthur A. Leff, Economic Analysis of Law: Somc Rcalism Abt~utNominalism, 60 Universitj of Virginia Law Review 41,456 (1974). 'Thus, a1thr~ughconsiderable centrali ~ e dauthority is necessaq to the efficient auction schemes mentioned hcre, it should k recogni~cdthat strong centmli~cd authority could be Far from efficient if used for more than rights auctions. 'l'he fall of the Soviet IJnicln and man) Eastern European governments is the only evidence that nccd cited here, At the same time, history also teaches that pure anarchy has its costs as well. Indeed, an intriguing analjsis of the emergence of informal for, perhaps better, quasi-formaf) property rights among gcslld miners in the laivless (i.e., "‘statelessW")oId mining countq of Calihrnia in the 1850s recapitulates a story that mirst be common in pre-history: the gold millers disccliered that it was cheawr to respect certain rights than to fcnd off usurpers, In a la~vlcssregime, in other

words, they found that too much effort was devoted to physicaf defensc af a cIairn, leaving too little time and effort to actuallj develop it. 'l'hey thus formufated a classic instance of the Hobhesian bargain cvhere power cvas ceded to some ""authority"'for definition and prc3tection of rights, resulting in more stable cIaims and therefore more effleient economic production. See John LXnnbeck, A 'I'heo~of Propert5 Rights with Application to the Cl'atifomia Gold Rush 1981). It is hopcd that cxplorcrs and developers of space resources will not have ta recapitulate this experience yet again. Vet if they Fztil to institute some minimalist state in the earl) dajs o f space industry, they sure11 cvilil. What is needed, then, is arguably a simple rule for allocating space property rights, together with something akin to the semi-centmli~ecl,fairly minimal system of deed registries that flourishes in man) countries. "I'hiss j stem has the benefit af simplicity, casc af administration, yet sufficient crxsrrdination to make properly transdctions feasilctle. Both parts of this ""minimalist prrjpsal" will be explored in the sections that foLloiv: the first-possession rule of title acquisition, and the deed-registry system for claims. Why First Possessian? As indicated above, first possession is often a poor way to allocate prrjprty. However, three factors make it attractive in the space context, First, it is simple; it requires very little government involvement. Asidc from a method of recording cIaims, and some threat or sanctioll to deter stronger second-eomers from displacing rightful first possessors (discussed heloiv), very fittIe in the way af gavernrncntaf authority is nccdcd. See Kichard Epstein, Pc~sscssion as the Root of "Title, I3 Georgia Imv Review 1221 f 1979). Secc~nd,its treq defect frclm the point of iiecv of theory-tc~cl-rapid development-may bc a nceded countermeasure when pcoplc are (inefficiently) risk averse and when tlot.1-economicgoals are also served by development, Given the state of weapns of mass destruction and environmental threats on earth, it is not too ridiculous to asscrt that encouraging space development might be a good insumnce policy far the species. If special incentives are needed to serve this valuable goat, incentives which might bt: iiecved as excessive from the limited perspective af maximizing current expectcd net profit, thcn they may weft be justified in light of the importance of the goal. Finally, the "rent dissipation'?from frontier land det elopment served no useful purpose; it was pure economic cvastc, In space, however, inefficient races to claim and develop space resources wit1 come with a very significant spillover benefit: the development of more mpid and more dic erse space exploration trehiGICS. This is a verj) important difference from the land development analogies, where racing depletes fixed resources in the context of seatic technologies. In much the same cvaq that societj encourages technical progress through what might bc described as "'racing for patents," an the belief that the spil lovers tc) so-

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cietj exceed the costs of racing, it should consider encouraging a race into ever deeper space. Gt Rc~bertE"? Merges & Richard R. Nelson, On the Complex Eeoncjmics of 13atentScope, 90 Cl'olumbia Law Review 806 ( 19%) (criticizing econornists"atent race mc>delsalong thcse lines). An impo&ar~tscholar of property rights has ivritterr that ""Xdividualownership does, hotvever, generate some new transaction costs, mainly those arising from thc proliferation of boundaries and ownership entities."' Robcrt EHlickson, Property in X,and, I02 Yale Xaw JournaI 13I5, 1329 f 1993). f i r this reason, private ocvnership, at least where population growth begins to cairse some degree of crowding, cnuils thc creation of a system for prc3ving title claims and kceping them straight-a deed registq, See, e.g., Ceorge X,. Waskins, 'l'he Beginning of the Recording S j stern in Massachusetts, 21 Boston IJnicersity Lacv Reviecv. 281 (1941) (discussing carlicst colonial recording systems). Notc, however, that Ellickson, in the article just cited, does provide an interesting prediction applicable to the space context: ?"he efficiency thesis predicts that innm atlms in technologies for marking, defending, and proving bor~~~daries lead to rnore parcelization because they reduce the transactlm casts of private propcrr;y regimes. According to this kiew, for example, advanced nations has passed. For another, it makes goad political scnsc: it wilt surely give developing countries a greater stake in the space development, and perhaps even bring them more readill into an international regime tcl recogni~cpropert) rights in the first piace, Fc;or arguments along these tines, scc Edcvin W. Pdxson IIE, Sharing the Benefits of Outer Space Exploration: Spice Law and Ecotlomic Development, 14 Mich. J. IntY L. 4 7 (1W3). 13axscm argues that a regime tcl use lunar mining, involving transkrable credits bnscd on a nation" populiatlon and allorving Moon mining for finite periods, \vouId benefit developing countries and therefc3re merits investigation, In addition to devetopment presemes, there should be envirctnmental research and conservation preserves. It should not bc necessary at this point to defend such an idca. 13erhaps 10 to 15 percent of' the area capable of being dcvelc;t~d ought tcl be presened for this purpse. If preserves are built in to the development scheme from the bcginning. many of the prc3btl;ms af terrestrial environ-

mental preservation can be avoided. If it turns out aver some suibbfy tong priod of tirne that there is littie of interest in the preserved areas, then they can be auctioned off or given to developing countries. Preserves will be established and maintained by thc sarnc "~ccordingauthority""that keeps title records, arranges transfers, and the like. One possible way to d to give a bounty tcc any part> tvho enfi3rce the Qclundariesof preserves ~ m l be diseociers cncraachrncnt on preserve lands-e.g,, in thc form af a grant of titlc over sorne moderatelq large claim. 'This ~vouIdcreate a11 incentive for er~hrcement bvithout the need far the enforcing authorit] to hate an extensive presence in the area. The basic point, hocvcver, is that prcscrved space for future development and pure conservation should be built into the s p c e properly regime from the beginning, to avoid the cost and political difficulties of creating such preserves after property becorncs valuable. Of coursc. if psscssion plus adherence to sorne minimum formalities are recognized as the international sundarcf for securing a claim, all spacefafiing nations must agree tcc recognize preseries and abide by their boundaries. In, the beginning this should not bc too difficult pmctically, since the t~urnhrof s~acehringnations will be small. Over time, a simple mechanism may come to be used to ensure multilateral recogniticcn of preserves-c.g., a rule that claims wilt not be en-forced if made by a naticslnal of a countq that does not recugni~ethe legitimacy of preserves, or that has prmitted illcursions into them by claimants,

Other Treaties, Agreements, and Issues "The preceding two chapters dealt with the overarching treaties governing activity in outer space. 'I'his chapter deals with a number of remaining treaties and issucs that-although not necessarily of lesser imprmnce-involve matters of less geneml appjieation. Some, like the I,iability Convex~tionor the Rescue and Ketum Agreement, implement poflions of the treaties described prek ioirsl] ; others simply involve more spccifie t~7pics.WC will dcal with the most imporant remaining space agreements at sume le~~gth, and wit1 at least touch on many other issues. We cvilf also attempt to illustmte the waj s in which different space agreements may interact in the context of a reat-world fact situation.

THE LXABXLlTY CONVENTION Clne mdcjr space law agreement that has seen dmmatic application is the Conr ention on Enternational l,iabilit:, for Darnage Caused by Space Objects of 197224 U.S.?'. 2389, 'f'.I.A.S, 7762. ?"hat treaty proci ides detailed rules that flesh out the gel~eralliabit it] provisions conpained in the Outer Space Treaty cof 1967 (see Cl'hapter 3, supr~i).The Liability Cl'onvcntian is applicable to both militag and civilian space activities af its signaloe nations; it provides for absolute liabil"ly by launching sates for damage caused by their syace objects on the s u ~ d c eof the earth or ta aircmft in flight (Article El), and Iiahilils:,based on Fault where the damage is to space ob'jects of another launching state elsewhere than an the surFace of' the earth (Adicle 111). 'l'he larinching slate may, horvever, be exonerated cvhere the injurj is caused hj the gross negligence or malice of a third party-for example, a terrorist bomb that causes a Space Shuttle cxplosion, 'f'hc ('onvention also provides for joint and severdl liability where more than one launching state's space object, or space objects belonging tcl more than one lairnching state, are involved. "The 1,iabitit) Convention has been applied in the real world amid rather dramatic circumstances: the crash in Canada (E a Soviet satellite powered b~ a nuclear reactor. Thc follocving article by Alexander Ccjhcn descriks the satellite's

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crash and the legal and political response thereto. C'ohcnk aarticlc, part of a symposium on intert~atiotlalincidents as a source of intert~ationallaw, shows how concrete events can shed considerable light on how different grctups interpret international law.

Cahenr, Casmos 954 and the XnternatiianilX Law of Satellite Accidenl, 10 Yale Journal of International Law 78 (19234)

X, Problem Falling satellites are an unavoidable hazard o f space exploration: at the current level of technology*a cerbin number of satellites will inci~ibbfy fall out of orbit, Nevertheless, the traditional sources of intert~atiorlallaw provide Iitrlc help in deterlnining what norms would gczsern a situation in which a falling satellite causes injury, The X478 crash of the U.S.S,K."sf osmos 954 satelXi& has shed some light on the normative expec&tionsof sbtes concerning sr-ttelliteaccidents. From the events ieding up to and following the crash o.f Cosmos 954, four governing noms emcrged: (1) A state that bccomcs aware that onc of its satcllites will crash has the duty to forewarn a state that is in clanger; (2) The slate f another state has the dutj to procvbose satellite has crashed in the tenitor?, o vide that state with information (regarding the spccifieations of that satellite) to enable the enclangered slate to assess the dangers and act to counter them; (3) Spciaf rules govern the duty tcz clean up the remains here intruding into Canadian nl'r space at: abc~rrt1 1 :53 A.M. C;reenivieh Mean Time to the north of the Queen Charlotte Islands

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czn the west coast of Panada. Qn re-entry and disintegration, debris f m n the satellite was deposited on Candian tenritorj, incltiding portions of' the Northwest Territories, Alberla, and Saskatcheivan.

U.S. President Carter notified Cmaclian 13rirne Minister 'X"ntdcau ivithin fifteen minutes o f the accident, and repeated the IJ,S, proposal of assistance. 'Frudeau accepted , of the irnmincnt re-entry of thc satell ire.

Efites in Canada thus seemed to tobelieve that the U.S.S.R. was obligated to forewarn all potentially endangered states of the hazards posed by its fafling satellite, no matter how remote thc possibility of injury. Soviet elites viecved the tlorrn differently. hey claimed that the U.S.S.R. hacl an obligation to cvarn only the llnited Sbtes of the impending crash part in the cleanup operation. Nevertheless, the apparent difference in legal conceptions obscures the possibility that the two superpowers \Yere motivated by similar concercls, It is not unreasonable to suppose, as did sclme Canadian obsert.ers, that each was anxious to participate in the cleanup chicfly to gather intelligence, ar ta prevent the other from doing so. The U.S. eagerness to exarnine what was left of Cosmos 954 was sure11 matched by Soviet desires tc~den> the 1J.S. just suck an opporliunity. f t cvcluld therelbre seem misleading ta characterize the U.S. appraisal as an aflirrnatitsln of free choice for the injured state. Rather, it appears to be an assertion of the right of the in-jlared state to int.ite on14 its political allies to participate in the cleanup,

The norms cstablishcd by the C'osrnos 954 incident provide that the major sateilite Xaullching tlations- the U.S, and the U.S.S.R.--notify each other of hazardous et.ents due to satellite failure, retaq information tcl facilitate damage control, assist their political allies in clcanup oprations, and share thc cost af cornpensating the state injured by a Palling satellite, regardiess of whose satellite caused the irtjuq and regardless of fault, The critical norm is that of joint compensation, l"his norm ~vouldappear to provide compensation only for the incremerz&f costs of' cleanup associated with the accident. It maq alscl be l imited in applicaticln to surveillance satellites. AXthough it is possible that the paymcnts made bp the U.S. and the U.S,S.R. were trr gratl'kr and, hence, devoid of normative conterrt, at least the size of' the Soviet paj rnent tends tcl argue otherttise; in the context of negotiations with the U.S.S.R., a fifty percent settlement is apparently quite high. Bndecd, that the U.S.S.R. paid anything is striking in light of the fkct that it was tlot obligated to paj irnder the 1972 l,iabil;itj Convention, 'I'hat the IJ.S, paid its share cvithout being at fauft lends further support to the existence of this norm. VIIEL, Writer's Appraisal "The Cosmos 954 incidellt iflustrates the paradox of satellite utilizttion: satellites simultaineousil prutect and endanger the international community, Keconnaissance satclliteti play a crucial role in maintaining the stability of thc US,U.S.S.R. nriclear balance. At the same time, nuclear-prvered satellites present clear hazards, as the ("osmos 954 incident demonstrilted.

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Onc response to this problem cvvuld be to prohibit the use of those satellites that are most hakardous. At the time of the Cosmos "34 incident, 13residerrt Cl'afier suggested a ban on nuclear-powered siltellites: ""Icve cannclt evolc e those Pdil-safe mcthcxjs, then 1 think there ought ta be a total prohibition against [nucIear-pojveredl earth-orbiting satellites. I ~vouldhvor at this moment an agreement with the Soviets to prohibit earth-orbiting satellites with atttmic radiation material in them."' A ban on n u c l e a r - p ~ satellites e does not seem a realistic solution. in the first place, the IJ.S, and the II,S.S,R, are unlikelj tc~cansent to a. prohihitic>n,because certain satelljtes must carry an on-bt~ardnuclear power source in ordcr to pedcjrm their missiotls. indeed, Carracla" attempt, in the wake of the Cosmos 953 incident, to impose a new regime on the irse of nuciear power sources in space through thc lJnited Nations Cl;ommittee on the Peaceful lises of Outer Spee, has made little prrjgress, in addition, the costs of such a ban might well outweigh its benefits in that rest~etionson nuclear-pocvered satellites could conceivably desl;lbiXi~cthe nuclear balance. "Thenorm of joint compensation that appears to emerge from the Cosmos 954 i~lcidentis a. better anstver to the paradox of satellite utilization. "I'hestates cvith the greatest investment in satellites arc: exposed to the greatest potential of l iabiXity. but that liability is limited, and is not such as to discourage satellite use. This nclrm takes intcl account the probability that sclme satellites will inevitahf] Calf, bp requiring payment regardless of Fault, The outcome of the Cosmos B54 incidellt may well have had a psitive effect on world order. "I'he IJ,S, and the II,S.S.R, apparentlj recognized that it cvas in their mutual interest 10 cooperate rather than ta turn the incident into a propagancla battle. *The1;J.S. and the 1;X.S.S.R. thus demonstr;rted their ability to take joint steps to deaf cvith the dangerous items over which they exercise control. Their ec~opcrationhclps to increase the security of the two states and the world, While a price is paid for this securitl by the uniueky victims in such third slates as Canilda, the norm established h) the incident provides at feast for the pajment af substantial reparations. "The use of nuclear-poc7i.erc2clveed satellites will continue to threaten the earth with falling debris. "The Cosmos 9.54 incident offers hope that coclperatic e measures can be taken to offset the damages that result, and to enhance global security in the satellire age.

NOTES I. Although good practice calls for satellites carrying tluclear materials to be bclclsted intc:, long-duration orbits at the end o f their usehl lives, accidents like the C'osmos 954 crash are tikely ta happen from time to time, 1n this context a

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strict liability regime makcs sense. l"hc operators of most satellites arc: likely ta be either wealthy tlations able to afford the clearlup cost out of pcxket or (though there are currently no civilian applications for nuclear-pocvered satelliites) coporations able to insure against loss. And, of course, thc Outer Space Treaty of 1967 irnpses ultimate liability far Xaullches by tlon-governme11b1or intergovernmental organixations on the launching state or spates, Since the cc~untriesinvolved tend to fly many satcltites, a strict liability regime allows ""spreading" of the tototal liability over a number of satc1Iites. See generafly G. Calabresi, The Cl'ost of Accidents 39 et sey. ( I WO). Imposition of fault-based liability on11 as bet~vecnspace ob'jects also makes sense from a ""src&tSing9' sbndpoint. 2. Note the magr.~itude of the costs invol\fedin the Cosmos 954 cleanup, which bq the standards of' mast earthbound disasters were retativetj minuscule, Although thc Idiabilirty imder the l,iabilitj Cl'oni ention: since space debris (made up af frdgnncnts frcslm defunct satellites, spent boosters, and space weapjns tests) i s a growing threat, but since it may he difficult to tell after a collision which ration's craft created the particular particle of debris caiirsing damage, liabilitj maj be difficult to assign, Aside from this problem af proof, in a d e r ta recover the

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complaining party cvould have to show that (X) the aceuscd party was ncgfigent in either creating the debris or in Failing to towart? of its presence; and (2) that its ocvn actions were not the primary catrse of the in,jtrry. Giren the difficult:, of proving the origin of a particular picee of debris, a morc cvorkablc solution might be for the space natttiotls to contribute toward clamage awards based on the prrjpczrtion of space debris that each has caused, mirch as has been done in some phamaceutical cases. See, e.g., Sindclf v. Abk3tt I,aboratories, 26 Cal. 3d 588, 6 12. 60'7 R2d 924, 937, cert. defzied,442 U.S. 9I 2 ( 1980) fdefeildant%liability based on market share in offending product), For pczf itical reasons it is imlikely that such a campensation sehcnnc would bc agreed to, ho\vciler, aithough it would have a valuable incelllive effect as it ~vouIcfdiscourdge rratiolls h m cotltcibuting to the amczunt of space debris in orbit, 7. C'ohen speaks of ""joint compc;lnsation" by thc linited SQtes and thc Soviet Union. 'l'his is an incorrect characterization, however. Although both the United Shtes and the Sor iet tinion made payments to Canslda, the payments were for difhring purpjses. 'fihc Sociiet Ilnion's payments were cornpnsation under the Liability Convention; the I;X.S. pyments and assislance were in exchange for access to intelf igence data concerning Cl'osmos 954, an impczrtant mililav satellite. See W, Bwrrorvs, Deep R tack ( 1986). If. As a formal mattcr, the procedures of the 1,iability Conventioll \yere never invoked over the Cl'osmos 954 crash, as the matter was settled rather smtmthly. C'nnadak claim appears at X8 International Legal Materials 8W (X979); the settlemetlt protocol appears at 20 International Legal Materials G89 ( 2 98 1). C1bi.iouslj, however, the (bone ention cvas vcq impc~flantas governing law.

SPACE REMOTE SENSING lise of satellites for earth observation is not a new idea: in 1946 a secret 120~glas AirclrafitiMNIS Corpc.tration report for the lX.S. Army recommended making use ttf captured Gerlnan rczcket technofog) to lairnch reconnaissance sateiltites that could abscrrle thc Soviet Union and othcr potentially hostile nations. ilouglas Aircraft Co. f nc. Report No. SM 1 182'1, 13relirninag Design of an Experimental Wc>rld-CirclingSpaceship fMaj 2, 1946). By the early 1950s. even though thc tinitcd Slates cvas years away from launching any kind of satellite, plans were alreaclq undernay for orbipal reconnaissr.tt~ce(see Chapter X). See also I_), Shrcs, the Milirarizatian ojf Space: II,S. 1301iej 1945-84 (1985); W. Burrcjcvs, Dccp Rtack: Space Espionage and National Security ( 1986). Civilian remotc sensing did not get under way far some time afterrvards, but by the 1970s it was alreadj becoming a reality, On civilian rcmczte sensi~lggenerallj, see 'I: Lillesand & R, Kie-fan, Remote Sensing and Image Interpretation (1987);R.M. Hord, Remote Sensing: Methods and Applications f 1986). Although such activities held the promise o f more accurate maps, better crop and resource management, discovery of new deposits of mineral rvealth, and

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more effcctit'e cnvironmcntal monitoring, thcy also raised concerns on the part of two classes of nations: less developed coulltries who feared that corprations and detreloped nations cvoutd havc unhir bargaining advantages regarding resources if they pclsscssed such information, and totafitarian or authoritarian countries who regarded such sensing as an intntsion on their jealously guarded sclvereignty.'These fears fed tc3 considerable discussiijn in the 'tllinited Nations and C'OQUOS, uvithresults discussed in thc articles k l o w , cvhich also prc3vide somc infc3rmation regarding the techllol ogy behind and uses of remote sellsing.

Logsdon & Monk, Remote Sensing from Space: A Continuing Legat and Policy Issue, 8 Annals of Air Et Space Law 409 (1983) 3, International and Foreign Poliq Issues Thc capabilitj tc7-make useful observations of all parts of the earth's land surFace from orbit, using a U.S.-developd and operated satellite system, has prot ided a fcjreign poficq oppclrtunit:, for the tinited States, It has alsc~ created international demands that the tinited States, along with other potential operators of earth observation systems, be governed by a series of existing and emerging international obligations and principles related to remote sensing frcm space. These opportunities and obligations define an essential part of thc context ~vithin which various scenarios related tc't a permanent IX.S, remote sensing venture mlrst be evailwted. C'urrent U.S. government plicy with respect tc7- thc international aspccts of remote sellsing dates back to Richard Nixonas 1969 pledge before the U.N. Cerrera1 Assembly that "this prcjgram cvill be dedicated to producing infilmation not only for the t1.S. but also for the li.N. community." h thc years foflocving this statement, the Unikd States has put forth, and strong11 defeilded against criticism, a policj of open and nondiscriminatorq access on the part of all countries and their citi~enstc7- the product of thc IaANDSKrsystem. The linited States has taken psitive steps to implement Nixon3 1969 shternent and its open access poficy. ranging from permitting other countries direct access to LANDSAT spacecraft through their own grcslund stations to providing technical assistance to cc'turrtries wishing to use 1,ANDSA'X' intizrmation. Any attempts to reverse the policj -tc~ change the expectations or to modify the patterns of use that havc \vi If be certain tc7- create international tension. t evolved aver the p ~ sdecadeThe current state of international thinking on remote sensing at the goverclmental fek el is perhaps best reflected in the r e p & of" the 1982 llinited Nations linispace Ccjnkrence, 'f his report noted that although remote sensing is still in a ""per)peratiotla1""slage, "it i s on11 a matter of time-and a short time-before this very important application attains a completelq operational status,'" Given

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this reality, the rcpofi reeommcndcd that "'agreement should bc reached on principles govercling sr-ttelliteremote sensing. Work to this effect ... shottlct be cotly on such principles.""tn tinued as a matter uf priorit>,aimed at s ~ e d agreement addition to a frdmework of general principles, concern was expressed that: Satellite operatclrs should give assumtlee about contitluity of &a&tflows and provide indicatioils ak3ut estimated Lifetime [of! preuperational and czperdtional systems i11 order to help aIL countries, in particular the developing countries, Cctmpatibility of various systems and data formats is another impowant aspect. ... Since remotc sensing can collect data from all countries, it is thcrefc3re pssihle to use shared o r internationally czivned remote sensing sateltites. ...

It. is suggested that a stirdy be urrderkaken to assess the need for and the triabifity czf a woridtvide re~notesensing system. Such a study could eo11sider various ivays of prokiding remote sensing data-ir-tcluding regional, bilateraj, mrtltilateral, and intcmatioilal a~angements- with the users bearing therefore the development, prc9ductiot1, launching and operation costs of the satellites. Assuming that any one d these systems currid provide assLIrance czf continuity czP data formats, avczid forced c>bsolesccncc of equipnlent, and enable the development and usc of standardized data analysis sol'l~are,the study should in particular indicate the comparative cost czf such systerns to the users vis-8-vis systems ctirrentl~;in operation andior under development.

A prsistent issue in international discussions is "% ppossilctle situation in which data are not atailable to the sensed State hut are available for commercial and athcr forms af expfoi&tian bk another country," At thc conference Some delegations expressed serioirs concern regarding the disserninatio~lc>f daka collected by rernote sensing satellites, While several developed and developing countries felt that such infc~rmationshould be freely atrailable to an interested Slate, most delegatioi~sfelt that the coilsent o;t" the sensed State should be required before data could bc rc;3leased to a third State, organization, or third party. Some dcvcloping nations felt that the cmsent of the second State must be obtained before sensirzg, et en if the infclrmatim was not to be disseminated beyond the concerned States; some felt that in 110 case should the information be available to any Sldte other than the sensor and sensed States. Most rcpresenktives expressing an opinion on the p i n t agreed that priority in access to data must be accowded the sensed Skate,

"The central pints made by potential fcjreign users of Xat1c.f remote sensing prdtrcts are: The nccd for continuity in aperation and overall system chamctcristics. "Thetleed for guamnteed access at an acceptable price with prot~isionsto avoid i~ltrusionson nsllional sovereignty.

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The linited States has attempted ta deal with these pressures from the international communiv in Fvays that maximize the following I;X.S, policy objectives: Maintaining t1.S. leadership in space technofog). Assisting the economic and social dei~eiopmentsaf the developing countries. Prtjmoting international cooperation as a means of achieving common okjectives as an example of the benefits (E harmcmious relationships among naions. Ensuring U.S. ability ta use space technology for its awn natitslnal at?jectives, including operation of earth observation systems by both civil and national seeurity agencies. Enhancing the dcvelopmcnt of thc U.S, economy by fostering new industries, new employment opporturrities and new markets for U.S. firms, In seeking tc~achieve these oMectivcs the 1I.S. government has entered into a seics of legal and pof itical obligations. 'fihesc inci ude: "The provision of the Outer Spice Treaty cof 196'7 that requires ""Stes party to the 'Treaty'? to "'bear internationill responsibility far national activities in outer space, Fvhcthcr such activities are carried an bp governmental agcncics or by nongovernmenkl entities,""such ~~ongoverclmerzwl activities "require authorization and continuing supervision bq the apprcjpriate Statte party to the 'I'reaty,'* A series of agreements negotiated with other governments to permit thcir access, under mutually agreeable terms, to the output of U.S. remote sensing satellites using fcjreign-ocvned and operated ground stations, Through ti.S, advocacy of the policy of open nondiscriminatory access in U.N. fomms and othenvise, a Fairly explicit obligation not to create either formal or informal (such as unaBordahfe prices or continuing changes in technical format or the system output) barricrs to any country, organi~ationor individual who wants to use the system, with all users receiving tlotldiscriminatory treatment, 'I'hrcjugh negc.ltiatirons in the International "Telecommrsnicatic,nsIlnicjn, agreemcnt not to use the frc=qucneicsalliocatcd for communicating remote scnsjng data streams to ground stations h r ally other purpses. Given this melange of concerns, objiectives and obligations, intemationd issues suggested incl udcd:

Clver coming years, as remote sensing cap~bilitiesevolve, there are SLIE to be continuing internationat negotiations, "These cvilf take pface in the tinited Nations, ather permanent mulitilateral organi~ations,ad hoc ... multilateral grc>ups, or on a bilateral basis. 13articipationin these negotiations may vary, depnding on the frametvork adopted for IJ.S, remote sensing activities. If a. p r i ~ ate sector option is selcctcd, clfhat international role, if any, Fvi If thc pfivate sector operator want the U.S, goverclrnent to play? What role will U.S. government agencies hlime is required to protect t1.S. public interests?

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Thc interests of a commcrciai opcmtor might sometimes conflict with the long standing U.S. poticy in this area; one way of increasing the value of remote sensing prod~rctsis tc~limit their dissemination. Anclther is by providing primity access to some users. Thc tJ.S, ilepartment of C'ommcrcc land Remote Sensing Advisory Committee recornmetlded that there be a gcyvernment requirernetlt "that the operator, whether it be the government and/sr the private sector, subscrik ta thc opcn sky policy -meaning that anyone, anywhere, in any country can purchase the data at equipable prices." "'l'he current government policy, as enunciated in President Reagan's space policq statement of fulj 4, 1982, is to ""sppart the pub1ic, nondiscriminatc?~direct readout of data from kderal civil systems to foreign ground s&tions and the provisioll of data to foreign users under specified conditions,'" The poficq is silent on requirements for nongot ernmcnt systems. Clne way to restrict access to remote sensing data is to adopt policies that are explicitlj discriminator>.Anclther means is to price ceaain data (such as ""quick tooksW")n ways that cxcl ude some potentially interested users. This possibility has been noted by the internatiox~alcommunity; for example. a Romanian spokesman tdd CI'QPUOS in the sprillg of 1983 of his concern about "the reialively new question af considering satellite remote sensing activities as operational, on a purely commercial basis, with the immediate cotlseyuexlce of augmenting b j several times the costs of remclte sensing products. rllnder these conditions, cfkctive access to thc datais practically possible only for developed cc?untriesm*' How will considerations of cost recoveq and commercial profit interact cvith an open access policy as an oprational system ei~olves'?Will system prc3ducts be provided to poorer countries otl a subsidized basis? What are the interactions among IJ,S. policy objectiwes vis-8-iris developing countries, the eccmomic viability of an operatitslnal system and the general concern of avoiding tension'?Although poorer countries may in the long-term have the prospect of receiving the most benefits from remote sensing, who cvilf make the investments required for them to be cfkctive users, and thus expand the market for the system? fn thc sborl run, would more expnsive prt~ductsfrom a private commercial system dril e atvaj non-tJ. S, users? c. Meatzr'rzg qf U.S. Leadership in Space Tech~zology

C'urrent tJ.S. policy is to "'maintain United SQtes space teadershi p,"' particularly in "critical aspects of spice, applications, and technolc.rgyW; in these areas, the ol?jective is ""peeminenee." The meaning c$ this policq cvith respect to re-

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mote sensing technology is unciear. Given the emerging foreign competition in the field, how wiIi the U.S. government respond: b j a cox~tinuedprogmm of K&l> in the remczte sensi~lgarea;, keyed to staqing ahead o f compting systems; by reliance on the private sector to develop a superior system far the tinited States, without continuing government R&D subsidies; by providing s~rbsidies or incentives bcjond R&D to a commercial operator in order to help it best foreign comptition and thus bring the kncfits of a growing remote sensing industry (sales of equipment, training of non-U.S. personnel, cotlsuiting services, etc.) to the li.S. econclmy? Or is civil remczte sensi~lgnclt a ""critical" area, and thus not anc that requires U.S, leadership'? What cvoutd be thc costs in terms af more geneml hreign policy or economic objectives of a t~on-t1.S.system dominating the world market for remtjte sensing? This cczuld happen if ncl commercial system is estabtished and the li.S, government \vithdratvs from remate sensing activity after 1,AP;IDSAT-Sreaches the end c$ its lifetime, or if the U.S. commercial ienture is imsuceessful.

4, f7.S. National Security Issues It is a matter af public record that the linited States uses earth observation satellites as one mealls of gathering intelligence information with respect to other areas of the world; these satellites are assets of extreme11 high value to li.S. national security interests. The capabilities af thcse satellites have also been extensively discussed, and in most pardmeters, they clearly exceed those available for cicrilian use. Hocvever, it is also reasc~nablteto suggest that some informaticsln \vi th intelligence significance can be extracted from existing civilian land observation satellites and that present national securi& systems may not duplicate all capabilities available in civilian satellites (far example, coverage in particular spectml bands). Thus, there are unavoidable national security aspects to the rczutine operation of"a civilian land remote sensing system. in times of internaticznal: tensiclns or crises, these aspects becclme more pronounced; the U.S. government will want ta ensure that its national security agencies will be able to obtain immediate control over all earth ohservatioll systems, f ust as earth observation systems hate b t h civilian and national securitj applications, thc technologies on Fvhich they arc: based halie "dual use" characteristics. Capabilities developd initial11 for national security purposes have potential relevance to civilian uses, and the technologies intc~lvedin sensors, data processing, image interprebtion, ctc,, arc: sensitive in terms of export control regulations. Ciiven these reailities, resulling national securitj issues include:

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'Qj2e~zSkies" Precederzt avd Ahilig to Carry Out National Securil)' Observations

Q.

Onc not quite incidenbl fallout from the tJ.S, plicy of open, non-discriminatory access to the products of civil earth ohservatioll systems is the creation of a climate in cvbich at l l J.S. observation satellites can functicjn cvithout dratving protests from the countries of the cvorld. Any rncdification of an open access policy, particularly by a private operator seeking competitive advantage or increased economic returns, could change this situation. For example, in the cvake of the recent Administration announcement of its intent to tmnsfer ownership and opcclrdtion of civilian earth observation satellites to the private sector, one Cl'anadian official i~ldicatedthat his government was "wry concerned,'" sa~ing ""we have a satellite looking down at our countv and eve don't calif it a spy satcllite because we have tlondiscriminatczq access to it. But if we were charged 100 times as much b j some companj, then tve might hatre to begin to cvcjnder a b u t this."" b. Tradeofl Between Natic~rzalSecurifiy fnteresfi artd Ecorrounic Cotnpefitivertess Corzcer~rs

lJnder continued gotrernment ocvnership and operation of the land remcjte sensing satellite system, past patterns of coordination kt~vcennational security agelleies and civilian agencies such as NASA and NOAA ~vouldlikely prsist. Some civilian sectar otrtjectives differ from those of the intelligence commlmity, as illustrated by the conservative position adopted by natitslnal security agencies tojvard making advanced sensor capabilities available for civil sector use. On the cvhole, hobvevcr, the relationship betcveen the twcj sectors of the government has worked cvclf. l"hc potential for the transfer of the system out of government control does create serious q~testionsregarding the extent of government supervision necessarj and possible. National security-related areas for cvhich a possible regulatory regime might engage itself includc: spectral rcsoiution, center frequency and tunable range; spatial resolution; geogmphic covemge; tiilneliness of data availabilitj ;tasking prcjcedures and contrtzls; and data di sseminaticjn policies. Thc kind of quiet coordination that is possibfe cvithin the government cvould be much more difficult to maintain in a relationship with a private sector er~tity. In the illstance of private sector operation o f the s j stem, it becomes vcq important to recogni~cthe nced to temper national security considerations when desigr.~ing an appropriate regulatoty regime. Due regard must be given to the internaticznal market in cvhich the private entity is operating, so that regulator> pmctices do not serious1y crode the systern's searnpctiti ve position, A pri vatc operator may find, far example, that improved sensor characteristics may be required in order tc~keep itself econc~micalljsolvent.

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From the naticslnal security point of view, those sensor characteilristics may gresent problems either in terms of revealing sensitive U.S. technological calr>-;;tbiIities or in terms of prt-jvidingimages of the lJnited S&res or other countries from which intelligence information could tw: extracted. If sensor capabilities cvcre to be improtred, then the intelligence community might want to involve itself in the process of deterrnini~lgappropriateness of data for disseminaion. INOI'E: 13recisely this issuc has since arisen in the United States concerning civilian systems-see Chaper 8, r'npa.1 Reaching a balance Qetcveenconsiderations of national securitj on one hand, and the nccd to develop a high pefimance, cconomicalliy competitive system on the other, will cotltinrie to be a very difficult and complicated issue as Ialld remote sensing satellite technolog) develops. Furlher aggrat ating this balance is the Pdct that [).S,national security interests and contrt3ls are in a large part derived from a different set of motivations and values than the ptential security controls that might be applied to the French, European, or Japanese sjstems, Thus there is unlikely to be easy agreement among operators of remote sensing systems over what are acceptable limits on system pedormance from a rratior~al security perspctive.

Thcre is heightened concern in recent years that [Jas.-developedtechnology is being acquired by its adversaries and used as a major basis for their military capabilities. 'rkere is also recognition that the exptlrt of products and services based an advanced technology is a majcrr source of positive U.S. balance-aftrade. Creating an opmtional U.S. land c.tbservation system aimed at dominating the international market bril-igs with it an exprt control issue: cvilf the linited States aggressively seek to supply all elcmcnts required for other countries to participate in such a system, e.g., ground stations, cc.tmputing capabilities and image interpretation capabilities, or will concern over the export of sensitive dual-use technologies limit the ability of the tinited States to capiblize fully an such a market opportunityf! National security concerns such as those embodied in the last tbtio issues discussed above, in thc context af a privately operated system, must be addressed within the hmework of whatever regulatory regime is created to oversee such a s5 stem.

I , Since Ix~gsdon& Nc~nk'sarticle, the remote sensing industrj has experienced considerable growth, with ncw entries from France (SPOT Image) and thc

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Soviet Union (Soyur, Karta). In addition, a number af American media interests, spurred b j the use of SPOT and LANDSAX' images of the Cherclolbyl accident and scenes from the ImnlImq war, hate discussed the possibilit~r questions unanswvered. howvever: What if a rescued astronaut wishcs to defcet to the rescuing countrj)'?'f'hc Agreemcnt"slanguage is mandatory and does not admit of any exceptions based otl the wishes of the astronauts ink cblved, although other international law ((suchas the tinited Nations Charter and the Universal 13eclaration of Human Rights) at least secrns to suggest othen\rise. Some states signing the agreement reserved the right: to grilnt pcofitical asylum to an astranairt. See IJ,N. I>K. AIAC",105/(1,2/SR,8"7'2 2t;eruary 1968 pp. X0 et seg. (this position taken by Australia and France). Thc United States rqjects this position, as do most nations, on the grcound that requests for aslfum may be cmrced-particularlj when the requestor is the trictim of a recent space accident and may not bc in full possession of his or her faculties. See U.N. Doe. AIAC. 105iC.2iSR.86,Webruaxy 1968, at 8; U.S. Congress, Committee on Foreign Relations, Hearings on the 'Treat) on Outer Space, 90th Cong., I st Sess. 1 967 at 27. Clther questions: How should rescuc cxpcnscs be treated'? ls the launching state cobligated to reimburse the rescuing sate'? What if a rescue attempt is bungled-wilt the rescuing state br; liable, or does some sort: of Gocld Samaribn principle apply? Should there bc such a principle. since rescuc is mandatorj? In light of these questions, it may be time for an update of the Agreement in order to avoid confusictn or ill cvill. 'This has been suggested by Nathan Gt3ldrnan. Gol dman, l"ransition or C_"onfusion in the l a c v of Outcr Space, in lnternatiotlal Spdce Policy: hgal, kotlornic and Strategic Options for the '1-cventieth Centurq and Be] ond 157, 162 (D. Papp & f . Ncf ntyre eds. 1987).

REGXSTRATXBN OF SPACECRAFT The Ccjnvention on the Registration af Objects launched into Outer Space of 1976,28 U.S.T. 695, "r.1.A.S.7762, prrjvides that each signatog shall mainbin a registq of all objects that it Lairnches into earth orbit or be4 oncf. The launching state shall alsc:, provide to the Secrehry-(2eneral of the tinited Nations information concerning each object on its registry, including: the name of the launching state or states, a designation or numkr, the lclcation of the laimch. the object's basic orbital parameters (incf uding nodal period, incl ination, apogee, and perigee), and the general function of the ob-ject. Nations are also to pprvide the Secretar>-C;eneral with illfilmation regarding objects on their registrq that hatre ceased to be in orbit.

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Where an ob'ject is launched by more than one nation, the nations involved arc: to determine ~vhichof them shall register the object. This is not simply an administmtive matter, since the state on cvhose registry the object is c a r ~ e dretains full jurisdiction and controf aver the object under Article 8 of the Outer Space "Treaty of 19f57-although Article 7 of the Spice "Treatyand Arlicfe f of the Liability Cl'onvcntion c~fI W2 do not assign responsibility on the basis of r e g i s t ~but an the basis of who is respnsibfe for thc launching of the spacecraft, and Ariiclc 1V ofthe 1,iability Con\iex~tionallorvs far joint and several liability in the case of mu1tiple launching states, 'I'his leaves open the possibility c~fone nation having jurisdiction aver an object (a matter af considerable significance with regard to manned craft, see U.S. Congress WCice of Technologj Assessment, Space S&tions and the I,awv: Selected I,egal Issues- Background 13apr( 1986);Reynofds, Book Kcvie~v,2"jrurimctrics: Journal af I,acv, Scicnec & 'I"echnology 431, 43435 ( 1987)) while another bears internatiotlal respox~sibil ity therekr. AIthough such matters are easily resoltrable through negotiaticjn, laivjcrs ini c~fved in such matters (for example drafting memoranda of understanding regarding joint missions or space statiox~s)should bear such rnatitcrs in mind, rTypiczallj, launch serf ices contracts specif] that the space object launched will be placed on the registry of a pafiicular nation and provide that thc launching entity will cnSUE that that is done. f i r more on this topic, see Chapter 8. SPACE ENVIRONMENTAL MATTERS Because the space eni ircjnment is infinite in size, the vcq concept of bvorrying about maintaining the space environment secrns absurd ta many, particularly as (at the time of this ~vriting)tlo life is knowrr to exist beyotld the Ezrth3 biosf phere, Yet in fact the outer space environment has already been the subject o considerable pllution, and some space environmental prc3blerns demand irnmediate attention if they are not to create serious problems here on earth, f Space p01lution dates back to the dawn of the space age. f n 19C;2,a series o very high altitude nuclcar tests, code named Fishbc)cvi, led to the creation af an arlificial rddiation belt around the earth that damaged a number of satellites and interfered with scientific experiments, At around the same time, Project West Ford, a misguided communications experiment, established a ring af cop~)(3rdipole alltennas around the earth; these were supposed to serve a primitive relay function b j reflecting radio signals back to the sudace. Radio astronomers raised a furor regarding these antennas, ~vhichthreatened their observations. Because of negative public reaction, neither experiment has been repeated, f i r more on these and other issues see C;c-rrcjc e, Pollution and Outer Space: A Legal Analj sis and Appraisal, 5 Nccv York tiniversir;?iJournal af Xnicrnational Law & Politics S 3 ( 1 972). Another space eni irc~nmentalissue is the question of contamination, both "hnvard" md "back," "Forward contamination" occurs when, for cxamplc. mi-

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croorganisms from carth are carried to other planets or cefestial bt~dies.Such conQmination could cotlceivably have disastrous effects: far example, if earthbased organisins were able to survive on the surface ($ Mars thej could institute drastic and unplanned changes in its cl innate, as cvcli as great1y complicating efforts by scientists to determine ivhether Mars supprts life of its own. in order to prevent this from happening, space proks are sterili~edprior to launch, a practice originated very early in thc space age. See Horowilz, Sharp & Tlavies, Planetary Cox~taminationI: The Problem and the Agreements, 155 Science 1501 ( 1963);Mumj, Davies & Ekkman, Planetary Contaminaticln f l: Soviet and IJ,S, Practices and Pot icies, 1 55 Science I 505 ( X 96'3));Sagan, IJcventhal & Ixdcrberg, Contamination of Man, I59 Sciellee I 191 f 1968). "'Back conlaminaticln'? intrczfves the contamination of earth bq foreign microorganisms (or conceivably athcr substances not necessarily "'alive"' by tcrrestrial standards but still capable of causing problems). Such conbrninatiorr is unlikely for two reasons; first, there is (as of this cvriting) no evidence that fife exists outside earth" biosphere, and second, any Xife that could live, say, on Mars or the Jovian moons ivould probably be pcjorlq adapted to earth and hence not mlrch (.l"a threat, Still, earth histcq is full of eases in which whole per~pleswere decimated bp the introduction of diseases to ~vt-tiefithey had no previous cxposure, and sciex~cefiction is full of accounts of such horrcjrs k i n g brought to earth from spacl=,fn response to such fears, astronauts returning from the Moon were quarantined (along with their samples) in the 1,unar Receiving I a b r a t o ~until scientists and physieiax~s\yere certain that no conkminatttion had occurred. See MeC:lane, et al., Lunar Reeei~i11gLabratory, 1.55 Science 525 ( l%?), Such precautions, in the case of future manned or unrnanned missions, are required by the Cluter Space "Treat), as discussed in Chaper 3, S M ~ Y See ~ . also DarIene Cupser, Internationill Latv and 130ficj of Extraterrestrid Planetag Prc~tection,33 lurimctrics: Journal af JAW,Science and 'fechnology 315 (193). Existing 17.S. rcgulations designed to prrjtect against extraterrestrial conQmination are discussed in Chapter 8, iuzfia. 'The3 do not, hocvetrer, address other more immediately pressing space cnvirc~nmcntalproblems. The most pressing such prrjblern is the matter of earth orbital pllution, or spacl: debris. As was mentioned earlier in this chapter in the context (.l"I iability issucs, space near the carth is kcaming fillcd with an increasing quantity of debris h m spent boosters, defunct sr-ttellites,and the aftermath of space Fveapons tests, Since such debris tmt els at enclrmous speed (approximatelj 18,W miles per hour in most cases), even smalli fragments can do enormous darnagc. Worse yet, collisions bet~reenspace debris and other space ob-ieets create still more fragments, which themselves threaten to dc:, damage. At some point this process can become self-sustaining, a chain reaction known as the "Kessler effect" "cause the pioneering anaiysis was done by Dotlald Kessfer, See Kessier & Cl'our-13ajais, Cl'olfision Frequencj of Artificial Satellites: The C_"-rc.ationaf a Debris Rett, 83 Journal of Geophysical Research 2637

OtI~erTreaties,Agreer~teziis, a ~d Issues

207

619%). At present, it is impossible to tell how close we arc: to the ercation of a seif-sustaining debris belt, but it d c ~ appar s that the artificial debris tlux in near earth orbits exceeds the natural meteorite flux-meaning that already a spacecraft in those orbits is more likely to eolf idc with a piece of space junk than with a rratural meter)rite. See Kessler, lF;,arth Orbital Pc~Ilution,in Beqond Spaceship Earth: Environmental Ethics and the Solar S j stern, 47, 4849 (E, Hairgrove ed, 1986); David Enrico Reikl, Prevention of Orbital Debris (paper presented at 38th annual ccjngress of the International Astrox~auticsFederation, Brighton, II,K., October 10, 1987).As of this writing, there is evidence that orbital debris is not merely a menace to navigation in space, but may in fact be working substantial changes in the t~ear-earthspace er~vironment.See, e.g., Konradi, Effect of the Orbital Debris Environment on the High-Energl Van Af len Prclrton Belt, 3 2 Science 1283 (19138). On space pllution issues generally, see Restatement ('rhird) of Foreigr.1 Relatltol~sLaw 60 1 ( 1B?), esp. at note 6. 'The following except describes the problems created bq orbital debris and sclme accompanjing tegai issues.

U,$, Congress, Q E c e of Technology Assessmenh Orbiting Debris: A Space En~iranmel[lt;;tX Prabtem f 1990)

Debris, left in a multitude of orbits about Farth as the result of the exploration and use of the spacl: en-Lironment, poses a grocving hatard tcl future space operations. tinless nations reduce the amount of orbibl debris thcy produce cach ycar, future s p x e activities could suEer loss of capability, loss of income, and even foss of life as a. result of collisims between spacecriltl and debris, Because of their concerns about the safety of spaceflight, the Senate C_"ommittee on Commerce, Science, and 'I'rdnspomtion, and the House Cornmititee on Science, Space, and "I'echnofog>requested an assessment of the f~rturehatard from orbital debris, and an examination o f strategies for reducing that thrcat, "This backgrc)und paper derives primarily from a ~vorkshopon orbi&l debris held at 0"TA on September 25, 1989. In preparing this paper, CYI'A also received assistance from other contributors. O?"A gathered information frcm many othcr sources, incIuding the I989 U.S. Report on Orbi&l Debris prepared by the Xnteragencq C;roup (Space), the l B 8 Europan Space Agencq (ESA) Repafi Sr>dce Debris, and a cvorkshop convened,jcrintly by and the tl,S, Space Foundation in April 1989. Since the launch in "wace object." Consider, for exampfc, inactive payloads. l"hc I,iability C'onventiion is silent on ivhether a payIuad must be active to quaXifi as a "space ohhieet"capable of causing damage, f E inactice payloads are included, then thej are spacl: debris, with liability for compensation attaching to thc launching state. Clrbital debris may also be considered a "space ob*ject""if it fitlls under the term "ccompcznent parts.'" Yet cvhat exactlj constitutes "ccompcznent parts'" is not settlcd. According to thc description of space object in the f,iahiliQ ('onvention, all operational debris except litter appears to be ""eornpnent parts," although jurists do not agree on this pczint. Whether all fragmentation d e b ~ and s micrtlparticulatc matter arc includcd is cven more probblcmatie, cven if thc broader interpretation of ""space oh-ject" i s invoked. "This fuzziness is unt."arturratebecause fragmentation debris represents a b u t half czf the orbitat debris population, Surnmari~ing,the only classes of orbital debris included in currcnt treaty law, with any degree of ceminry, are opcclratioaal debris, to the exeIusion of inactive paj l tzads, fragmentation debris, microparticulate matter, and litter. 'The degree of difficulty already manifest in attempting to ohbin international agrecmcnt on the definition of debris cIearly suggests that early voluntary t~ationaiaction to limit and reduce debris maj be far mczre effective than attempting tcz obtaill an> international agreement on debris reduction procedurct-s in the ncar term,

Whr:, has jurisdiction and control over spice debris'? if remedial action is to be included in an] regulatorj scheme for orbital debris, ccznsidemtion should br; given to the issuc of who is authorized to rremove orbital debris, Article VIEX of the Outer Space "Treaty provides tbat the State of registry of "%an ob-jectlaunched illto outer space" has the right to make and enforce domestic law in relation tcz that object and ""ay personnel thereof*"'and that orvnership of a space ob'ject is not affected by its presence in outer space. "Ilivo legal iss~resraised by this provision are cvhether czrbital debris falls cvithin the scope of A&icle VlII and the extent to cvhich jurisdiction and control over space ob'jects is pcmancnt.

OtI~erTreaties,Agreer~teziis, a ~d Issues

221

Ixgali analysts agree that Imth active and inactive payloads fail under Article VIIE. 'I-hey do not agree, however, on an appropriate method far distinguishing

active pajlaads from inactive ones. Althr~ugha test of "efleetice phqsical control" has been propscd, successfully applying this test is hampred by several obslacles. First, legal opinion Favors the view that jurisdiction and cotltrol of a State oter its space objects is permanent, Moreover, because ocvnership of a space abject also is permanent, regardless af its use and condition, and because the owner retains the rights of possession, use, and dispsal, states or other legal entities cvoufd require the consent o~fthe State ears alreadj, under an interim arrangement in which the IJ,S, participant in INrX'Et;;,14SKF9 thc C'ommunications Satelli te C'orporation (COMSM'), provided managemellt and technical services. After the agreement, these services were gradmlly taken of er by f NTEL,SA"E'. f N'I'ELSKE' had 12 2 member countries by thc end of X 987, with rncrnbcrship continuing to groiv slocvlp. "Those countries are all: pat ocvners of INrX'EX,SA'X', with their ocvnership sbare iarying aceclrding to their use of fN'I'E1,SA'T facilities, fN'i"ELSA'T3 structure r It is gocterned bp a Board rcfltccts its overall philosophy in h ~ ~ofo participation,

af Governors, an Assembly of Parties, a Meeting af Signatories, and an Executive Organ. "TheAssemblj of X3arties cotlsists of all member countries and meets biannuajlj tcl decide issues of long-term impjmnce. The Meeting oE Signatories is made up of designated represenbtirles of mcmkr countries; those reprcsenutives are teXecommunieadox~sproviders such as COMSAT from the 1;Xnited Shtes. The Board of C;ovcmors meets four times a >ear to make executive decisions, while the Executive Organ, hcadcd by a Director Gencral, oversees thc day-to-day opmtions of INTELSAF. IINrI'EX,SAr is headquartered in the United Shtes, in Washington, I3.C'. For more on the organi~ationand o ~ r a t i o nof IN?"f";I,SA-F,see R. White & H. White, The I a t v and Regulation of International Spce Communication 2 1622 1 ; M. KinsIey, Outer Space and f ni~erSanctums ( l 976). See Chapter 4 for ecclnomic analjsis applicable to the establishment o f Ir\S'X"EldSAI" as an efficient way to make usc af slharcd orbit and spectrum reSoLfrces, 'I'he interesting legal and policj questions relating to INTELSA'I' groiv out o f two issucs: its pricing structure and the requirement in Article XXV(d) af the Agreement requiring that prties establishing separate systems consult with 1N'I'E-:L,SA'rtcl ensure technical compatibilitq and to avoid significant ecc~nomic harm. Both issucs have become items of considerable controversy over recent years. 'I'he pricing poficq is one of globat avemging, Nemkrs of EN'I'ELSAE' share revenues and addjusttheir in~iestmcntamounts in proportion to their use af thc system, as merztioiled above, tinder this system, therefore, the price that members pay for an EN'I'ELSAF"circuit is approximately eqiml tcl the globaIIj at eraged cost of circuits throughout the INTE1,SA-I" system. Because the fixed costs of prot~idingservice are high and the marginal costs low, economies of scale are t ery significant, 'I'his results in a subsidj for thinlj used rcjutes (such as the Facific and the Indian Ocean) and a ""tax"' an scrvice aver the heavily used routes such as those between the United S"Etes and northern Europe. Afthough this subsidj was deliberate, in order to help mclte less-devclopd countries into the global village, it leads to considerable incffieicncies. On thin routes, the subsidy means that the tletbvork will be used more often than it ~vould if prices were equal tcl costs, while on heat ily used mutes the tax means that there will be less traffic than if prices cverc equal to costs. Of course, such an outcome was precisely the goal of the subsidy scheme when IN"TE-:L,SA'Iwas " organi~ed,but as the mclre advanced naions find themsel c es increasing1y struggling for economic competitiveness with the I,I>Gs (and partkularly those in the P&cific and Indiar~Cleean regions), whose costs in many areas are already lower, the5 increasinglj seem to resent that su bsidj, particuf arll given the increasing importance af tclecammunications scrvices in the grcsliving information cconorny. For an excellent allalysis of this topic see Ktvere1 cYr: Pitseh, FCC ReguIation of International 'lklecommunications Satellites and Cables, in 2 Amefican Enterprise, the Xmv, and the GomrnerciaX Use of Space 1 1 9 (F, Mink cd, 19236);

220

Space Commurzicatiom

Federal C_"ommunicationsC'ommission, Office af Plans & Policy. Prt3motiing Cctmpetition Between international Telecommunieatit)n Cables and Satellites (OPP Working Paper No. 1 9, January, 1 986); IJ,S. Congress m i c e of "I'echnolagy Assessment, International Ccjaperation and C'omptition in f i v i l ian Space Actii-itiesat Ch. G (1985). Similar iss~reshave arisen in the U.S. domestic arexya as a result of the breakup of Al'dkl" See gevreraliy Kahn, 'The Rc~adto More Intelligent 'I"t*ephonc Pricing, 1 Ydlc Journal on Regulation 339 ($9813). CX course, as the 1,IK economies grojv (something that, at this ivriting, appears like15 to continue), sc~too will use of the parts o f the fN'I'ELSAE' net~ifork serving them, meaning that the problem may cvcll solve itself ~vithina decade or two. 'l'he yuestioll is whether the more advanced countries wilt be willing to cotltinue the subsid5 irntili thi~lgseven out, given the level of eccmomic competition that appears to be growing. 1'he fJnited Slakes, at Icast, appears somewhat hostile to the subsidy, as the discussion of U.S. satellite plicies later in this chapter shows, fn addition, as Kcverel & Pitsch pjint out, maintaining the subsidy will be difficult for athcr reasons. l"hc growth af fiber optic cable systems-which arc: not suqject to restriction under the IMTE1,SP;I'Agreement-ivilI projvide considerable comptition for sateilite services and cvill as a result force prices tobvard costs. f i r the time being, however, the subsidy remains, and the Agreement requires that member naticjns rake steps in the satellite field to avoid ""sgnificant ecanornic harm" to INTEI9SA'T.The foilowing discussion outlines the way in w hieh the 1;Xnited States has attempted to balance its genemi psition in Fwor of free markets and against subsidies cvith the responsibilities grobving out o f its role in INFEI9SA-E'. f7.S. REGULATION OF SPACE COMM1JNIGATXONS

"The United Sates regulates spice communications involving its territory and nationds under a framecvcjrk of both domestic and international law, 'l'he fc>Ilotving excerpt providcs an averviecv of that systcn?,

OBce of Commercial Space Polic;r; V,S, Department:of Commerce, Spaee Commerce: An Xndlxstry Assessment 3-0 (1988) The cornerstone of U.S, teieeonnmunicatic~nslaw is the Communications Act of I934 as amended 147' U.S.C. 1 S1 (1 982)1. ft eslablishes the Federdi Communications Commissicjn fFCC) as the regulatorq and liwnsing authorit] for nonFederal Government uses of the radio-frequency spectrum. Against this b.dckdrop, the 1962 Cctmmunications Satellite Act (Satellite Act) 147 U.S.C. 701 ( l 982)1 provides for the establishment cjf a global, commercial cammlrnications satellite system (now knorvn as IN'FEX,SA-E') and providcs for the establishment

af a private corpratian, C_"omsat,as the sole li.S, pafiicipant and investor in the system, "The Satellite Act requires Comsat to provide tlon-discriminatory access to the s jstem far alf airthorized users 147 t1,S.C. 73 1 f 1982)l. Importantf>, the Satellite Act states that it is not intended ta preclude thc establjshmcnt of cornmuniedtions sr-ttellitessepamte from INrX'EX,SAT that are determined to be in the nation& interest or required to meet uniq~regovernmental needs, 'I'hrec separate pal icics have k e n esbblished to ensure that li.S, domestic and international satellite teirecummunications activities are cot1sisterrt with U.S. law and i~ltemationsllagreements: f l ) the U.S. Domestic Satelti'se 1301iej,cvhicb is intended to ensure a robust domestic satellite marketplace, (2) the 'f'ransborder PoIicy that applies to domestic systems used to provide incidental international services to neighboring countries, and (3) the t1.S. Sepamte Systems Policy far satcl f ite systems intended speci fical l y tcsl provide internatie~nalpublic tel;ecommuniedtic>nsservices sepamte frcjn? INrX'EX,SAT. U S , obligations under the IN'I'E1,SA"E' Agreement cvere a major consideration in the creation of each of these policies. In the early I970s, the FCC adopted a policy of ""open erltry""for yualilkd domestic commimicatians satellite s] stems (dtzmsats) 135 FCC2d 86 ( 18700),reeun. grauzted in part, 38 FCC2d 81313. ( 19'72)j. -I"tzis policy, Fvhich is still in effect, is based on the concept that licensing all applicants meeting the FCC"s established technical, l egal and finsmcial fitness requirements far obtaining a license cvi l1 encourage thc deveiopmcnt of ncw tcchnologics and services at lcslwer costs ta the public. These requirements have been tightened over the years as the number of domsats has increased and the orbitlspectrum resource has became more congested, The FCC has sbted that if thc ntxmbcr of domsat applications ever CXceeds the orbi&l positiolls and spectrum available, it might have to resort to administrative selection procedures, such as camparatice hearings, auctions or totterics [Bk d . Keg. 40,233 (Sept. 6, 1983)j. Use of l1.S. domestic satellites for tratlsborder services is govert~etlby the [I, S. '1-ranshc~rderi>oIic>.The 'Iil.ransbrderPolic~.was estabf ished bj the Executive branch and the FCC' to balance the cfficieneics of using li.S, dorncstic satcllites to prrjvide service to neighboring countries within the footprint of the satellite, with the t1.S. desire to atoid causing significant economic harm tcz INTE1,SA-I".'f'hc 'f'ransborder Policy. esbbf ishcd in 1981, requires: C l ) a shocving by the applicant that f N"TEX,SA'I" could not practicail y or economicall> provide the same services as the requested domestic satellite, and (2) consuttation cvith INTf'EX,SAr pursuant to Articie XIVfd) af thc EN7"ETdSA'X"Agreerncnt, prior to initiatioll of service 188 FCC2cl258 f 1981)].'l'he FCCk tmnsborder decisions to date have been limited almost excf~rsiwellto the authorization of video and private linc voice and d a b services. In 1984, the President determined that U.S. intert~ationaisatellite systems separate from IN"TEtSK1-(separate systems) are in the naional interest, This determination was made in accordance with the 1962 Satellite Act and was accompa-

222

Space Commurzicatiom

nicd bp the conditions that (1) such systems may provide services only through the sale or long-term Xease of space segment capacity for communications not interconnected with the public-swvitched netsvork, and (2) at feast one foreign authority must authori~cuse of each separate system and participate in consultations with the 1;Xnited States under the INI'ELSAT Agreement, to ensure technical compatibility cvith the f N'I'E1,SA'f" sq stern and attoid causing it significant economic harm, In 1985, the FC"T uscd this dctemination and the conditions as the basis for its decision to license qualified appliear~ts ZOl FCC2d 290 ( 198$), recc;fn.gr~tntedill p~irt,FC:C 861M (April 17, 198Q),jdrlhe~ recc1~1.denied, I FC'C Kcd, 434 ( X 986)1, "The"TransborderPc~Iicyhas always been distinguished frcjm the U.S. plicy on separate intemational sS.stems, because it on11 ccjncerns II,S. domsats used to provide incidental services to nearby countries. 'fhc Separate Systems Policy, on the other hand, concerns satellites that are specifically intended to prcjvide internation& services, and are considered a greater threat tcl INl'EI,SA'l% economic well-king. Ilnlike the separate systems policy, thc l"ransborder Palicy does not expressly prcjhibit interconnection with the public switched rretbvork, nor does it require the sale or long term lease of transponder capacity as a precondition tcl use. 'Xi"hescdifkrcnces, coupled with, thc recognition that IN'X'I"J19SA-Fhas developed into a robust and highly profitable global cummunieations satellite system, has prompted the Administration to initiate a cornprehensile reviecv o f U.S. international satell ite plicy. 'fhi s process is undcrkvay.

Far a thorough survey of li,S, regulatory afpdirs, see Pamela Meredith & Franceska Schrcjeder, I"rivateIy Owned Commercial "Telecommunicalion Satellites: f,icensing and Regulation by the Federal Gommunicaticlns Cl'ommission, 27 Ca'f ifornia Western Law Rcview 10'7 ( 1991). See aiso Michael Straubei, "Telecommunieatioa SateIIites and Market Forces: How Should the Ceos&tionary Qrbit be Regulated b j the FCG? l"70rth Carolina Journal of fnternationat I,aw and C'ornmcrcial Regulation 205 ( X 992). l"hc lini ted StatesVecisivn regarding separate satellite systems was arrived at only after extensive study and considerable dissension. The fal lowing exeevt from an internal paper prepared bp thc Senior Intemgeney Group on Intcmaticslnal C'ornmunication and Information I3cfIicy explains the rdtionaie behind the decision in consider*;tblecletaif. A numlcler (.l:expeas- not tcl mention those at CI'QMSKI and IM'f'EI.SKI'-- dispute its conclusions. For a gcxsld summar>/oaf their views see Sarreals, International "Teliecommuniealions Satellite Services: The Spirit of Cooperation versus the Battle far Gomptition, 26 Jurimetrjes: Journal of h c v , Science & 'Iechnofogq 267 ( 1986).

Seniar Interagency Group on International Commaxtication and Infarmtation,Policy, A White Paper on New Xnkrnational Satellite System, Februarh 1985 Since 1983, several U.S, firms have fikd applications with the Federal Cornmlmications Commission (FCC) tcz establish i~ltemationalcommunications sateltitc systems in addition to the gfobaf system oivned by the InternatlonaX "TeIecornmunicaticjnsSateIIite Clrganization (IM"I'E1,SKT). Orion SateIIite Corporation, International Satellite, Inc. (ISI), and Cl'ygnus Corporation prt3pose new transatlantic communicaticlns systcms, and RCA Amcrican Communications, Inc. (IXGA) has applied to use capdcity 011 a U.S. domestic sateIIi& to prtjvide internaticznal service. Pan American Satellite Cl'or"pomtic>n(PanAmSat) propczses to esbbiish a system which cvoufd serve latin America, In addition to existing and planned regional sateIIi& systems indepndent of 1NrI'EX,SAT, other tmnsoceanic satellite slstems are under consideration abroad. Approtied and proposed transatlantic submarine cable communications h c i t ities, many of \v hich are actuallj or ptentiallj competitive with f NTE1,SAF. are pending as well.

'I'he filing (.l" II,S.-based satellite system appf ications with the FCC' prompted action by the Executive branch, which has special rcsyxslnsibilities in this field under the Communications Satellite Act of 1962, as amended (4'7 U.S.C. 702 et seq,), includi~lgthe responsibility to determille cvhether additional t1.S. international satellite systems are "'required in the national interest." "The Senior interngency Grcjup on internatio~lalCommunication and Inftjrmation Pc3Iic-y (SIG) rec iecved t1.S. international satellite poliej to determine cvhether, and under what conditions, authorizing satellite systems and serviecs in addition to INTEI,SA-F would be: (a) consistent with prevailing I;X.S. law, practice, and international tre* cjbligations; (b) compatible with sczund fareign poliej and tetecommrsnications policy goals; and, (c) in the U.S. natitjnal interest. "TheExecutive agellcies represented cjn the SXG undedook a study and reached a unanimous position in favcjr of new entq, subject to c e a i n limitations. A recarnmcndation subsequently was made to the President by the Secrcbries of State and Commerce. 'Fhe President determined on November 28, 1984, that international satellite s~stemsseparate from IN"17EL,SAI'cvere required in the II,S, national interest, subject to cerhjn conditions. Specific criteria relating to the President" determination were then t'orwrirded to the FCC by the Secretaries of Cl'ommerce and State jointf>, See Apwndiries A and B. This report provides background information regarding the President" determination, and it also provides inhrmation on irnporlar~tregulatoq and other parallel measures cvhich are desirable to ensure that the Executive branch's fundamental policy goal -an efficient and rcsyxslnsive international comrnunicatians

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environment-is achieved, The discussion here focuscs an the majc3r communications and inhrmation plicy iss~resrdised by the applications be-fore the FCC. It addresses commercial, trade, and legal matters, and also examines major IJ,S, foreign plicy interests and concerns.

L, The International Communications Marketplace Tday

'I'here are two principal i~lternationaltransmission modes: submarine cables and communications satclt i tc facilities. The submarine cables which prov idc U.S. international service are owned collectively by ArKl', the XRGs [International Record Garriersj, and their foreign correspondents, Sek en transatlantic cables norv terminate in the tinited States and an eighth, 38,0a0-circuit, fihr optic cable has been apprrjved by the FCC. U.S. international sr-ttellitecircuits are proiibed bq ("omsat, bvhich has functioned as a "carrier's carrier'" and holds a 23 percent interest in EN7"f";TASAF9 the 1 09-nation argani~ationthat orvns and manages the global sateIIi& system. Cornsatasinvestment share is adjusted annuaIIy to reflect fi,S, use of the fN'l"EL,SA"E'system,

'I'he international communications and information poliej goats of the llnited States arc. the following:

* 'R) enhance the free flow of information and ideas among nations; li,promote harmonious international relations and contribute to world peace and urrdersta~~ding through communications: * 'R) promote, in cooperation with other nations, the det elopment czf efficient, innovative, and cost-efkctive international communications serviees responsive to the needs of users and supportive of the expanding requirements of cczmmerce and trade; li,ensure the continued technological and economic strength and leadership of the United States in the communications, infc?rmation,ancl aerospdce fief ds; li,expand U.S. private sector investtncnt and involvement in civil space and related acti vities; * 'R) promtjte expanded international trade and tcz ensure oppczrtunities tcz IJ,S, firms to participate in such tradc:

To promote the continuing evolution of an international configuration of communications services that can meet the tleeds of all nations of the world, with attention toward pro1 iding such services tc~det eloping nsllions; -Fo cnsurc efficient utilization of the geoslationaq orbit and the e'lectromagtletic radio frequency spctrrrm; * 'ri, pramclte competiticzn and reliance on market mechanisms, as feasible, and to foster cost-based pricing, quality service, and more efficient use of resources: and, * 'ri, ensure the needs of n&ional defense, securitj, and emergency preparedness are satisfactorily met. The INTf;,E,SKT system and the number of fdcilities which access INl"E1,SA'I'"s satellites have expanded rapidly. f N"TEX,SAT9s I5 satellites today serve I73 countries, territories, and possessions direct11 or indirectfl, and the organization leases satellite capacitj to 26 nations for domcstic services. Nineteen ncw earth sations and 39 new internatiollal communiedtions anterrllas were added in 1982 alone. As of Not ember 1984, there were 198 INTEL,SA'L' earth station sites and 293 international antennas in X 5'7countries, dependencies, and arcas of other special sovereignty. INvf'E1,SAI' now handles about two-thirds of the world's transoceanic teXccommunicaticsms traffic and most international tclcvision transmissions. Dcmand far full-time voice, record, and data services for IM'X"E1,SAT grew by 18 percent in lfd82; these services accounted for about 86 percent of the total satellite utili~ationrcvenuc received by IN?"F",X,SArthat year. The most recently published INrTE1,SA'I"annrial report sates that 1PJ'I"ELSA'Xexpects ' cotltinried strong grokvth of 15 percent annualfg, on an expmded base of conventional international traffic over the 1988-2000 time period, With the grorvth of the IN?"F",X,SArsystem, circuit charges have steadily declined, The annual charge for a 1965 IN'X"E1,SAI'1 "Farrly Bid" "if-circuit, for example, was $32,OQO,while the 198243 charge for an eyui~alent,though technically superior, half-circuit was $4,680. 'f'hcre is d'lsagrcement, however, over whether the subshntial 1M'X"ELSP;I'charge reductions over the past decades have been futly reflected in the prices which C'clmsat has charged [].S, internationilt carriers or the prices which those carriers have charged their customers. At present, end-user prices for many internatiollal satellite services both here and abroad typically are betiveen tr;rio to ten times INTEtSA'l"s charges, U.S. international communications costs, moreover, often are very substantiatly above those for comparable domestic service. IN't'EI,SA'r has continued to grokv and to prosper in an increasinglj competitive international communications environment, Since X 98 1. the FCC' has sanc-

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tioncd cerbin international communications services using U.S, domestic satcllite systems. At present, U.S. and Canadiar~sateilites are used to prcjt~ictecertain services throughout North America and the Cl'aribbean. Additional proposals far such transk3rder satellite service will bc the object of consuX1.Lttionswith IN?"EX,SAX'. INTELSAT recentlq accelerated its plans and now offers a number of internation& communications services aimed particularlj at meetillg s~cializedand sophisticated business ccmmmunity nccds,

International communications services constitute an essex~lialcornpnent of international t r d e tcjdaq. Efficient and effective international cammimications are necessary to international finance, to Pdciliatc the prduetion and shipment of gouds, and to manage T1.S. off-shore oprations, assets, and investments. International ccjmmunications are also critical to the continired det elopment of U.S. trade in scr\liees, Fvhich excecded $4bilticsln in 1982, International cornmunications, moreover, play a central role in FdciIitating the further economic development o f less developed nations, thus pemitting these cc~un'lriesto participate rnorc fully in thc Fvorld economy and contributing to peace, stability, and greater undersanding. Space cammirnieations is a major part of the aerospace industrj, one of the world economy 3 most important ""high-tech"br ""surisc" sectors, and an area where the excelfence of U.S. manuf.";tc.ruringcturng techniyues and high techr~olugiesis reflected in the preeminence of the IJ,S, aerospace industrj. 1J.S. aerospace trade is forecast to accelcrale in I985 as both cxprts and imports reach record highs, Aerospace expoas should climb to a projected $18.9 billion, while imports wilf rise tc~$5.0 billion. The resulbnt trade surl>lusof $13.9 billion cviliit be more than 30 pc=rcentabove the Ievel reccslrdcd in 1984, 'fotal tJ.S, aerospace cmplc~mcnt will rise an estimated 4 percent in I985 to 739,000, with an estimated gain of 7 percent in the number of prdtrction cvorkers,

'I'he established foreign and dcjmestic tx;lf icies o f the I1.S. C;overnment in this area seek to furlher thc basic goals which arc: outlined above. 'fhcse plicies incIude: Adhering to thc requirements and provisions of the C'ommunications Act of 1934, as ametlded (47 U.S.C. 151 et seq,) and the I962 Satellite Act, as amended (47 U.S.C. 701 et seq,);

Ccjmply ing with the terms of thc IN?"F",I,SKrAgreement (TIAS 7532) and all the privileges and obligations the Agreement provides its 13artiesand Signatories; Supporting IN?"F",I,SAras "'a single global commercial teXccommunications satellite system as part of at1 imprcjved glohdl telaommunications net\vork"" (I%eamble,INrl'ELSAI1Agreement), and as a keq element prc~vidingall countries of the cvorld access to global communications services; * Concurring in the development, separate from fN'I"I";LltiAI",of custc.tmized, regionill, and transhcjrder satellite services where technical or economic consultation, or both. is acc~slmplishcdas required under the terms of the IN1"F",IdSA1Agreemellt and such systems are consistent with the Agreement: * Pursuing a nondiscriminatorq satef l ite launch pof icq ; Adopting domcstic communications plicies cvhich emphasi~ereduced Ciovernment regulation, ivherever feasible, and increased reliance on market forces in the provision (E eommrsnications and information serf ices; Advocating and adopting international communications policies ~vhich stress reliance on free enterprise, competition, and free trade, ~vhereverkasibIe, bvith f~rltrecognition that provision of international comm~micatinnsand information services involves joint undertakings among sovereign nations requiring mutually acceptable agreements to accommodate di-flteringnational pof icies; Supporting and fostering tllc dcvelopmcnt of a diversity of internationaj commullications technologics and modes, including fixed, mobile. and broadcast satellite, microcvaf e, terrestrial and undersea cable, and optical fikr; * Suppofiing and undemking bilateral consul&tions and agreements, as well as multilateral delikratirtns in appropriate international forums, to ensure order and cooperation in the evolution of international communications and infiormatiorr services.

X I , Institutionill Limll;s;an Competition

'I'he llnited States since the earfq 1970s consistentfq has sc~ughttc~reduce outmoded communicaticslns regulation and to eliminate unncccssary barriers to cornpetition chiefly domestically, but internationall) as well. Irnporlar~tchanges and regulator> reforms have been accomplished. All recognize, hocvef er, that achieving a regulation-free international eornmunications environment is not tizreseeable at this time. There will remain significant I;X.S, limitations on comptition in international communications as well as limits imposed by commrsnica-

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tions administrations abrcslad, tinderstanding some of thcsc limits on potential competition is irnpmnt to addressing the issues presex~tedby the satellite applications pending before the FCC and reinforces our assessment that these applications imply continued evolutionary devclopmcnt, not radieai or disruptive change.

'I'here are, to kgin cvith, a numkr of statutory requirements and limitations which k a r on the level and intensity of potential compctition in thc international communications field. To enter the intertlationai communications sateifite business, 1i.S. fims require Ft:C prmission under title IIE of the 1933 Communications Act, provisions of title II of that Act (for ~vould-bccommon carrier entrants), as well as prr>visionsof the 1%2 Satellite Act. The FCC is required by fact. tcl make an affirmative ""prblie interest"' finding prior tcl issui~lgconstruction permits and iicenses to use the radi~slfrequency spectrum. Considerable regulatory review of proposed systcms typical11 is enl.;tilcd.ft is also relevat~tin this regard tcl note that given spectmm irse limitations and international procedures gcslverning the usc of the gcostationary orbital resource, there are significant technicaI constraints on pssible entry into international satellite cornmunications, ISee generally Orbital Loeaticlns, 54 E), & F. kddio Reg, 2d 550 ( 1983);Qrbital Spacing, 54 P. &Z F;: Radio Reg, 2d 577 63483); Robinson, Regulating XnterLaw l , national Airkvaves: the I 979 WARC, 2 1 Virginia f ournal of Internatio~~al 4 ( 1980).1 Entrants proposing to operate on a common carrier basis are subject to many provisions of title fX of the L934 Communications Act (e.g., 47 U.S.C. 214). 1;Xnder title If, the FC?Cmust generally find that the public interest, cc~nvenience,and necessity will bc furthered by approciing an additional international common carrier Facility. Existing common carriers, moreover, must ge~~erally receive permission to make irse of new ffacilities, As with other regulatory agencies, the Ft'C3 is required to weigh cornpctitive hcmrs when it functions as a ""gatekeeper" with respct to cornmorl carrier communications. Under present lac& however, the FCC maj not legallq authorize new common carrier S> stems simplj tc~faster compctition. It must instead make affirmative public interest findings that cornprogress, increase efficiency, and petition, far example, cvifl spur tech~~olc.rgicai more rapidfq expand customer choice. Executive Responsibilities In addition to the limitaticslns on cntry and competition containcd in titles I1 and ff l c.tf the CornmunicatiotlsAct, section 102(cf)of the Satellite Act recognizes the fareign pof icq, trdde, and nsltional seeuritj aspects of international satellite communications and provides that thc President is respansible to determine

w hethcr additional international satefilite systems are required to mcet unique

governmental needs or are othen\~iserequired in the tlational interest. 'I'he term "national interest'" is not defined in the Satellite Act;, but it encompasses considerations brc3ader than those implicit in the FCC's regulatory ""puhc interest" "nclard, a sandarcf which the courts have mled is not limitIess. [See NAACl) tr, Federal 130werCommission, 425 li,S. 662,669 ( 19 6 ) ; National OrC'ir, X 977). 1 "'Nalionaf ganization for Women v. FCC", 555 E2Q 1002, X 01"7(D.C_". interest" i s iswithin the manclate of the Executive braneh and incIudes such Factors as general competition policy, whether entrj cvill advance technological progress and innovation, promate U.S. international trade in g o d s and services, expand the international cornmullications options available to the U.S. business community. and further overall t1.S. spectrum management goals. Foreign p:,licq and national security considerations are also imprtant aspects of the national interest, and matters which are the Constitutional resyx.>nsltbilitiesof the Executive branch. 'The FCC' in the past has generallq dekrred tc:, Executive branch triect*son policies Fvt-tich are not directly Fvithin its regulatory purvic\v, In sum, the "'national interest" "slandard in the 1962 Satellite Act should be read as according the Executice branch responsibility to determine the compatibility of propsed international satellite systems with the broad range of li.S.. programs and pficies affected by such erlterprises. *

In addition to the limitations on competition implicit in the 1933 Communications Act and the spccial ""ntionaf interest"' criterion in the X962 Satellite Act, U.S. internatiol~alobligations are relevant, Cemin respnsihilities under Article XIV c:,f the IN'I'EL,SA"E"Agreement are alsc:,discussed in the Memcjrandum of the !&gal Adviser of the Department of SQte which was transmjltcd to the FC"C in 1984 and ivhich is set forth as Appndix B to this report, 'I'he INL'E1,SA'I' Agreement entered illto farce for the llnited States on February 12, X 973. While thc ItN"i"E1,SAT Agrccmcnt implicitly acknocvledges that nations party to the Agreement retain the sovereign right to esvablish satellite telecomm~micationsfacilities separate from the INTI-';L,SAl'system, the Agreement esbbfishcs: ( 1 ) a generalized obligation of thc parties to act in a manncr consisterrt with and in f'urlhemnce of the principles sated in the 13rearnbleand other protisions of the Agreement (Article XiV(a)); and (2) a consuftatim process to be undertaken before a nation or its designated operating entir;?i(a ""Signatory"")establishes, acquires, or utilizes separdte, tlon-f N'PELSA'I' space segment facilities tc:,meet its tetecomm~micaitionsrequirements (Article XIV). Article XIV(d) of the INTE1,SK~Agreernentaddresses the consulV&tionobfigation with regard to international public telecommunications services. in substance, it provides that a nation member or its Signatory shall f~rmishall relekant information to INTE19SA-Fand shall consult with INTX"E1,SKC (1 ) to ensurr: tech-

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nical compatibility of the contemplated satellite Pdcilitics with the use af the radio frequency spectrum and the geostationaq orbitaj spice by the existing or planned 1M7I'EL,SA'I'satellites; and (2) to avoid significant econclmic harm to the gtobdl system of INTE1,SA-F. At the conci usion of the consulhtion process, thc Ir"rl'X"EI,SACX' Assembly of Pdrties (the principai organ of INrI'EX,SAn: composed of the representatives of all memkr nations) makes findings in the form oE recammendations on the subjects of the eonsull;ltion and further regarding the assumnce that the proposed satellite Facility will t~otprejudice the esaMishment of direct telecommunications links through the IN'FEL,SA'T space segment amclng all the participants in the proposed system.

111. Foreign Policy Considerations Regarding linternatiiarrili Satellites

Addressing the issues rdised by the proposed establishment of U.S, international satellite s jstems separate from INrT'ELSA'I' rey uires cc~nsiderationof I J,S, foreign policy c7ibjectives. These abjectives have k e n considered cvithin the Executive bmnch and do t~otcotlstitute an appropriate matitcr fizr indepndent determinaion by a regullztorjr agencq. Here, hocvevcr, the major foreign policy matters that Fverr: cveighed arc: generally discussed ta further undershnding of thc President" dcle&rmination, In his September 1983 letter to Chairman Cl'harltes H. Percy of the Senate C'ommittee an Foreign Relations, Secrehry af Skate (jcorgc P, Shulr~reiterated the basic tizreign policy ohjeeti~resof the 1;Xnited Sates in interclationai esmmunications, and they are similar to those enumerated in detail above: ""1-0 promote an environment in ivfiich ideas and information can flow freely among nations, to support the advat~eernentof internaticjnal commerce through the efficient and innovative use of communications resources, and to expmd information access and communications capabif ities of developing countries." "The 1962 Satellite Act reflects these objectives and others which have been furthered through our participation in developing and supprting the IM'FEI .SAT system. INTEI,SA;T""smanifest success has:

* Pro1 ided a dramatic example c$ IJ,S, leadership in the pexefut use o f spacl: in the interest of all countries; * Contri buted to meeting evolving 1;X.S. commercial needs for efjcient international communications serf ices; Provided developing countries with irnprc3ved communications at reasonable and aflordable rates; * Confined the Soviet fN'I'EKSYllrFNIKs5stem to a relativetb smatl portion of the cvorld;

Supplied developing countries \vi th access to thc gcostationary orbit and satellite rddio frequencies: and, * Pro1 ided benefits to U.S. companies through open internaional prveurement for the intcrnatitslnal system % space crslmrnunications equipment and services. Permitting li,S, internatlonaj satellite systems separate from IPd?"E;,I,SKF, however, COLEICI: Bring ncw diversity and ficxibility to international communications; * Create or expand markets in new areas, s~rchas customized, data. and video sen ices; Provide incentives for IN?"EI,SA-F and its Signatories to be more efficient and innovative; and, * Permit outside fi~lancialsources to undertake high-risk, speculatice trentures, thercby enabling INTE1,SA-F to concentrate its resources on furthcr extending basic services through prudent fiaalleial management.

Access tr, the Gec>st~~tisna~.yry Orhit Wow all tlations can enjoy ""equitableaccess" tct the geoshtioaaq sr-ttelliteorbit and to the assclciated radio swetrum is a majclr concern cvithin the International 'Fc'c3.lecommunicatic1ntinion (fT1J). Thc results of the IrTIJ"sconsiderntitjn of this iss~reat the upoming World Administrative Radio C'otlferelaee otl the Use of the Cjet~stationqSatellite Orbit and the Ir7"la;nning of the Space Serf ices IJtiti~ingIt (Space WAKC) in August X985 and Junc 1988 [are] imporhnt to the United SQtes and mally other countries. 1PJ"TEX,SA'if%role in meeting developing countrieskeommlmications needs cc~ufdmake it a critical, if indirect, participant in the resolution af this issue an terms aceepbbfe to n"ti mcmbcr naticsns. [See Chapter 4, suprn, for a discussion of ecollomic rationales far INrX'EX,SAT"s role. 'The outcome of the 1988 Space WAKC is discussed in this chapter, irlfi.a.f For more than a decade, same developing countries halie sought a guamnteed share of the geosationary orbit and the radio spectrum allocated to space serf ices, 'I'hej mainbin that imconstrained grocvth of commercial satelt itx communications systems could exhaust the geoshtionay orbit and the frequencies CUP retltly available. Fearf'uX of losing their share of what they underseand to be f imi ted global resources, developing countries in 1983 inscrikd "quitable access" povisians into the ITU C_"onvention,By the X979 WAKC, they wcrc determined to write new mles for the use of the geosatiotlar;)iorbit and associated radio spetrLrm and obtai~leda commitment for the tkvo-part Space WARC in the 19811s.

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The akiaiXability af IPdl"E1,SKT has not eliminated developing country demands h r eyui.t;lbleaccess to the geoslationary orbit and related spectntm. Nek ertheless, its existence offers an allernatice tcl the implementation carto k sufficient to cstablish Xegallj that the parties to the INrX'ELSArAgreement intended to so link and limit it, in fight of a number of factors: First, there are many difkrent definitions of '-public." Seeoxld, ivithin the telecommullications authorities and administrations of most of the participants in the IN'I'EL,SA'I' negotiations, pro5 ision ol" circuits dedicated to the user" sawn communications are considered part of the public netktrork, and wholXq ""ri\?ateW"stems are tlot a feature. 'Third. the practice of the parties in the application naifagreements or U.S. municipal law, Because at this writing we are only now on the irerge o f such disputes, this chapter will not attempt a microscopic disseetian of existing international tmdc

taw, such as it is, nor wilt it attempt 1~7foresce all of the possible disputes in the of'ting. Instead, it wit1 examine the reasons why s~rchdisputes are likelj to occur, will discuss the farces that cviltl tend tcl shape them, and will suggest some things that might bc donc to reduce the magnitude of the problem and to safeguard 1J.S. national interests. In addition, this chapter discusses the imyact of U.S, and international technologj controls on spacl: industries and =tic ities,

Although the term "space industries" mctlmpasses a wide variety of cntevises, from launch semiees to mierc~grdvitymanuPdcturing to telecommunications, such i~ldustrieshave, in broad, some irnpflant elements in c;clmmcm.First, the> tend to bc at or ncar the cutting edge of technological de~lelopmcnt,Second, they tend to by subslanti;rl economies of scale. 'rhircf, they tend to be of conbe cha~icteri~ed sidembfe importance to both "~upstr~am'~ndustries (that is, suppliers) and "dotvnstream" industries (that is, customers)-for example, the tclecommunieations sdtellite industq is a consumer of many high twhncjIogy products, as well as a key input far long distances telephone companies and televisicm nettvclrks. And fcjur;rh, space industries are often of "dual use" "character, having both ciililian and milihq applicatiotls which are largely inseparable-fcjr example, the technologies inidved in entehng the cic iltian launch industrq are little diflerent frcjm those nec;nte-& to construct batlistic missiles capable of ca~yingnuclear ~varhcads,a Pdct not csrverlmkd b j the Indian and Brd~iliangovernments, or their tleighbors. Aside frclrm their mititarq implications, space industries are strategic in an economic scnsc as cvclf, for the reasons listed above. Nations involved in markcling spice goods and services do so far the opprlunity to gain economies of scale, to move up the learning curfe, to drive development of key technologies, and tcl gain hard currency and international prestige, Although these arc: all lcgitimatc ancl even desirable goals, they do pose problems from an interl~ationattrade standpoint, since they maq be better serf ed by national strategies invof ving prieing bctclu. cost (iidumping") and unfair government subsidies than by strategies based solely on cc.tmmercial competitivetless. Dumping and subsidization are fenem11y considered imfair pmctices in international trade; hotvever, they are often engaged in by nations (particularly mereantitistic or non-market economics) far strdtegic reasons. Such behavior is Iikely in a number of space-related areas, particutarlj the launch services field, and is hence liketj tc~lead to disputes. For more on thesc economic issucs see Reynolds & Merges, 'foward an Industriaf PoIiey for Outer Space: 13rcIblemsand Prospects of the Commercial Xaurreh industry, 29 Jurimetrics: Journal c~flatv. Science & 'Ikchnologj "71988). To provide a bit of the fjavor of such disputes, and to aljiow a bit of 1)(;1rspcctit'e on the discussion to follory we reproduce here excerpts from one recent internaticznal dispute over international trade in the lartnch services field. Follo~ving those excerpts is a discussion of how U.S, taw and existing internationaf trade

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agreements apply to trade in space-related g o d s and services, and somc ohservatiolls for the future.

The Transpace Section. 302 Petition As the moc e toivard commercialization of the launch services market kgan tcz get underway, several companies cvcre argani~cdto enter that market. tinfortunateiy for these entities, market prospets \yere difficult: NASA sbuttIe launches cvere still subsidized, and NASKs only active competitor, the Europan consortium Ariancspace, was meeting NASA"s prices in an cffc~rtta attract business. Since NASA was bdcked by the U.S. treasury, and Arianespace by the scarcely less fc~mnidableresources of the major Eurczpeain countries, it cvas diflieult for entities that had to make a profit ta compete. One of the new companies, Transpice Carriers, Inc., thus filed a so-called ""Section 301 petition" with the United States 'I'rade Representati~e."I'he folttocving discussion cvill make clear why rrranspace chose that approach, after cvhich are excerpts from bt~tlxthe pctitian and the I%residcntialdetermination stemming from it. Reynolds 4% Merges, Toward an IndastriaE Policy for Outer Space: Problems and Prospec& of the Commercial Launch Industry, 29 Jnrirnetrics: Journal af Law, Science & TechnoXo~7 (1988) Because of the like1y impmnce of price in this market, new foreign competitors can be expccted to price aggressively, and even ta dump, in al-dcr to obtain market share and sealie economies. Existing U.S. trade laws, hocvever, are not admirably suited to the prt3blem of unfair trade in launch services, The antidumping law, Section 7'3 31 of the -Fariff Act of X 930 as arncnded 1 1 9 ti.S,C7.5 X 673( 1) (1988)],focuses on "% class or kind of fc3reign merchandise" that '""iseing, or is likelj to be, sold in the lJnited S&tes at less than its fair value." Launch services almost cerbiniy cvould not be found to be "merchandise" for thc purpose af this provision, nor is it likely to to fou~ourrdthat a tizreign launch provider, by contmcting with a U.S. customer, has "sold"' anqthing "h the tinited Slates.'" Similarly, lJ.S, countervaiXing duty law 1 19 t1,S.C. 5 I (in(1 9138)l prcfivdes for imposition of a; duty in response to "a subsidy with respect to the manuFacture, prtduction, or expmtion cjf a class or kind of merchandise imported or sold (or l ikef 5 to br; sold) for importation, into the United States." Both, laws also apply an injury test, although in the case of the countervailing duty law the ixl,juq requirement is omitted as to countries nczt part] tcz the GATE"subsidies code. Because these lacvs were designed to deal with traditional trade in goods, they are poorly suited to dealing with predatory pricing in the launch services field, Sczmewhat more sumss might k expcted under Section 301 o f the '1-radeAct af 1974 as amended 1 19 U.S.C. 15 ;?iCj 1 ( t 98811. Among other things, Section 301 allows the President to ""lice all appropriate and kasible action ~vithinhis pwer""

in respnsc to any foreign practice that "is uunjustifiable, unreasonable, or disciminatoq and burdens or restricl?;Unitd States commerce." Unlike the antidurnping and countervailing duty lacvs, Section 301 explicitly applies to3 sewices as well as merchandise, and grants the Resident sweeping power to rcsyxslnd via duties, restrictions on foreign services, and xtions in trdde sectors other thran the one in dispute, 'l'hus (for example) predatc~ypricing in Chillese launch services might be pnalized via a ban on i r n ~ j f i af 3 Chinesc textiles or agrjcuttural priducts. Despie the p w e r and t-lexibilityof Section 301, however, there is surprisingly little enthusiasm among space and international trade lawyers t"or its application to3 launch ser~liws.This is bccause in 1985 the t1nitc.d States refusd to take action against the Eurc)wan S p c e Agency in response to the ptition by 'l'r&nspaceCarriers, a li.S, launch wmpanq: Ilespite this ref usa1 to act, hotve?er, Section 30 1 may profiQbly bc. applied ta the future, giilen the changes in thc industv. in U.S. practice, and in the degree and tlature of foreign competition. Hovk~ever,trade legislation spcifieall;) airnd at launch sewices wot.rld be beneficial, not least as a signal to foreign prislviders that the linitcd Sates takes thc matter seriously, Another pssibIe soluriotl, which we erldone, ~vouldh to pursue multilateral trade talks regarding launch services with all other spacefaring nations, Some such talks have bccn going on informally already; these could bc cxpanded intcsl a full-scale trade agreemellt governing launch services, or perhaps incorporated into the current round o f negotiations under the General Agreement on 'Fariffs and Trade, Such talks are certainly cvorth pursuing and such an agreement, if \firell-drafted, \fi~ouldbe worth concluding. in general, though, the eRectiveness of such agreements in preventing unfair trade practices has not been stellar; at best thcy prevent the mast egregious abuses, at fivorst they simply intrduee market distortions that ultimateiy harm the cornptitivetless of domestic industries. "h survi~ein the long run, lJ,S, lairnch services industries need to be better than thcir foreign cornptitors, which mcans that the launch technology thcy cmpioy must be more efficient and at least as reliable.

Before the Office of the United SIates Rade RepresenQtive Chairwarnan, Section 301 Committee; Petition Seeking Presidential Action Under Section. 301 of the Trade Act of 1 9 4 as Amended (19 1J.S.G. 9 2411, et sq.) by Rmspace Carriers, Inc. Against the Governmerxb of Belgium, Denmark, France, Germany, Ireland, Italy, the Iciietkierbnds, Sweden, Spain, Switzerbnd and the United Kingdom and Their Space-Related Xilstrumemt;llities 'I'his petition is filed on behalf of the civil expendable launch trehicle services industrj), by 'l'ranspace Carriers, Inc. (""1"CfW")ursuant to 5 301 et seg. af the "TradeAct of 1974, as amended, I9 U. S.C. 9 24 L I , et seq. (Supp. 111 1979)(I-tere-

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inafter ""tc Act") and 15 C.F;,R, 2NIli.O(h) (1 982). This pctition contains alli intizrrnatioll reasonabiy available to petitioner. 'I'he subject ecifieallj,the abr3ve-referenced go1ernments and their instrirmentalities, parti cutarjy the Frcnch national space agcney, Ccntrc N;llional d " Etudcs Spatiale ("'CCES""), are subsidizing the activities of a French compidny, Arianespee, S.A., which is in direct competitim with petitioner in the provision CCcivil expendable launch vehiclc serilices ta customers in the linitc;tdStates and third countries. "I'he specific subsid;\,practices c~fwhich petitioller complains, incIude: -The two-tiered pricing of Iaurrch services c>fferedby Ariarrespace. Mernber States of ESA ha! c agreed to pj 25% to 33% per "haunch more than i s charged ta thc export market for the same sercices. -The provision czf Iaurrch and range Edcilities and services ai~diorprsonnel at no charge, or unreasonably low cost, to Arianespace by the French national space ngencj, CNES. 'l'he cost d tnunch and range f'acllities and scrviecs represents approximately oi~e-thirdof' the total cost cltr a launch. -The pmtiision czf CNES administratic e, management and/c>rtecfinical personrrel to Arianesp'dce either at no charge or at rates that are unrcasmably low. --?'he subsidtzatin~lof' mission insurance rates which Arianespace customers ivorrld otherwl'sc pal.

As a beneficiav of such subsidy prdctices, Arianespace has been able to offer launch services tc~tinited States companies and third countrj customers at rates which are substantialfy less than those charged to Member Sates of ESA and subslat~tiallybelow those prices that Arianesrdce ~vouldbe able to charge in the absence of subsidi~aticjn.'This unfair competiti~eadtantage has resulted in lost sales to pctitic3ncr and price suppression, if not depression, of hid prices. Furthcrmore, it p s e s a serious threat to the establishment of a United Sates commercial launch services industry, Petitioner therefore requests, pursuant to section 301(a) af the Act, that thc President take all apprrjpriate and feasible action within his power to obtain the eliminaticjn of such acts, policies CIKpractices that are irnjustifiabIe, unreasonable ar discriminatory and that burdcn ar restrict this important ncw service industry, and to take s~rchother action as is sanctioned by section 301(b) of the Act. In particular, petitioner requests the President tcj seek the immediate discontinuance of the two-tkred pficing plicy for Ariancspace launches observed by the

Membcr States af ESA, thc cl iminatian af the cost-free ar below-cost support in Facilities, services and personnel provided by the French national spice agency, CI'NES, and the subsidization of mission insurance rates, such that ail outstanding and future Arianespace bids for launch services reflect actual costs plus a reasonable prtjfit far each launch. 13ending the elimination of s~rchacts, policies and practices, the President is requested to retaliate b j prclhibiting Arianespace U S A . from advertising and marketing its scrttices in the United States and bp impsing economic sarrctions against the goods and services of the Member Shtes of ESA,

NOTE llnder Section 30 1, action is nut mandaturjr . 'The tinited States 'Trade Representative, cvhose office is part of the Executive Office of the President, investigates and makes a recommendation to the 13resident,who determines whether or nctt to act. Afthough time limits i ary depending on the allegations invclfved, the President must in no case take longer than X 2 months ta respond. The President's determinatiotl, along with the reasons behind it, is then published in the Federal Register. Bectsluse the language subsidi~ation policies. It may be difficult to dcvelop agreements that would create a level playing field. Tra~zspaceCarrier Unfair Ifaricilrg AElegntiorzs

'I'he issue cc~ncerningsuhsidi~edpricing of commercial launches cvas farunally ritiscd in 19134 by l"ranspace C'arricrs, Inc., a {].S, company then attempting to market launch services on the Delta EI,V In 1984, 'Transpace i~litiateda complaint against Arianespace with the Office af the U.S. 'f'radc Kcpresentativc (US1'K) far unfair trade practices under Section 30 I fa) of the "TradeAct of 1974. 'l'he ptition Fvas filed on hhalf of the civil expendable lairnch serf ices industrj. 'I'he complaillt alleged that the member countries af ESA, prtrticularly France, were subsidi~ingthe activities of Ariancspace which was in direct cornptition with 'Tmnspc'e in selling launch services, 'l'hc specific subsidj practices that 'l'ranspace complained about included:

* 'l'he two tiered pricing of Xaurreh services ot%ered by Arianespace. where Member states o f ESA agreed to paj 25 percent to 33 percent per launch more than is charged ta the export market for thc samc services; * 'l'he provision of launch and mnge Facilities and services andior prsonllel at no charge, or unreasonabl) low cost, tc~Arianespace b j the Ffench nation& space agency, CNES (the cost of launch and range hcitities as scr~licesrepresents approximate!j one-third c3f the tr3tal cost of' it launch); * 'The proi ision of CNES administrative, management and/c-tr technical personnel to Ariancspace either at no charge ar at rates that are unreasanablp Xorv: and * 'The subsidization of mission instlrtrnce rates which Arianespace custclmers ~vouldatf-tcrwJIscpay.

?"ranspace stated that as a result of these subsidies, Arianespace had been able to offer Iaunch services to U.S. compax~iesand third countv customers at rates cvhich were substantiallj less than those charged to member states of ESA and substantially below those prices that Ariancspace cvvuld tw: able ta charge in the absence of subsidiic;ation."Tmrrspacecotlcluded that such subsidies posed a serious threat to the establishment of a II,S, cc~mmereiatlaunch services industrj. liSTR investigated, but ultimately dismissed the complaint because the European goverclrnent katiing of Arianesrace was hund to be no greater than I;X.S. Cicx ernment backing of the commercial launches on the U,S, space shuttle, (As discussed clsccvhere in this report, commercial taunehcs are no tonger offered an the space shuttIe unless the cargo requires the ullique capabilities of the shuttle or of erriding foreign policy concerns exist.)

The 'Franspace C'arriers ease raisd the question of what "ruujjes of the road" to t"ol1ow in pricing Iaunch services. Both sides agreed to discussions, but little progress was made in the late 1980s. fn 1988and 1989 when the IJ,S. was negcbtiating with C_"hinaover its enty into the launch services market (see belorv), same Europeans expressed displeasure that the I;X.S. Cioverclmerzt was moving ahead more y uicklq cvith China than with them. 'I'he Bush Administr;llion's wmmerciaf space launch plicy released in Seplemkr l WO shted that the t1.S. Gociernmcnt wo~rldenter into ttlegotiations to achieve an agreement with FSA, ESA member states, and others as appropriate, cvhich defines principles of free and fair trade. On Septembr 24, XWO, talks comrncnced bctcvecn the liSTK and E M on csbblishing s ~ ~ rules c h of the road and louking at horlv the United S"Etes ancl E t l r o ~ should respond to the entrq of countries with non-market economies (NMEs, specifically thc Soviet tinion and China) into the launch ser\liees business. The first actual negotiating session was heId on Februav 26-27, 1992, where the tevo groups offered "frame~vork"3c~cuments setting out their respectic e p s i tions. 'Fwv cvorking groups cvcre then created to trj) to mcld the position prtwrs. "The ivorking groups dc.t not have the authority to tlegobiate; they are simply def eloping dmuments that set forth both positions and indicate areas o~fagreement and disagrecmcnt. 'The first is dealing with ""emman principles" on pricing; the second deals with the NME issue. 'l'he ~vorkinggroups have met regularly since Februarjr . The Departments of Commerce, Defense, State and 'Transportation and lisl"f2. are represented on the first ~vorkinggrcslup; all but DOT3 are an the sccond. 'l'he individuais representing DOC, DOS, DOT and I;XS"TR are the same far both groups. A negotiating session cvas schcdulcd for April 29-30, 1991, but the decision was made to have the ivorking grc~upsmeet again at that time instead. Another negotiating sessicjn was planned for July 10- 12, 1992 , brat it also was postponed until the fall. Thc cvc~lrkinggroups continue tcsl meet. Both sides anticipate that ne-

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gotiations will continue through 1992, The {].S, expects that the final agreement kfirould be signed not only by ESA, but bj individual member countries of ESA that are involved in the Ariane launch vehicle and/or hatre satellites.

A fundarncnhl issue bctween the two sides is the scope of the agreement to negotiated. According to USPI"R,FSA wants to limit the discussion to iss~resinc cdving government support far launch serf ice providers, such as research and development funding, use of launch hcilities, insurance, etc., while the U.S. wants to tobraden the scope to include "market behaviorltrade""issues such as g ~ ernment ~c "iindtrcements'3lo custtjmers (such as a European got ernment offering rcxket engine technology to a customer if the customer chcxslses an Arianc launch), as well as urrf'air business pmctices (such as bribes). 'l'hc U.S, also ivants a general statement on the principles of pricing, ESA's chief neg~iatorand director of administration, George van Recth, asserts that ESA does not have the power to negotiate a comprehensive trade agreemellt and the U.S. is complicating the talks by insisting on its position. Eztropeatz Access t.a the U.S. Governme~ltSatellite lilrl~zrkt:

Another controversiaX topie is \vhcthcr Ariancspace should be able to bid for launches of U.S. Governmellt sr-ttellites. Oftuzcially this issue is not a subject of the negotiations, but is often raised nonetheless. Current U.S. policy requires li,S, Government satellites to be launched on U.S. launch vehicles. Arianespace ~vantsthat restriction lifted. Charles Bigot, Arianespace's Chairman and t'hief Executive Officer, noted in a 19% interviecv that although Arianespace has 5Ck55 percent of "the market"' for satellite launches, that market does not incIude U.S. Government satellites and therehre Arianespace actually launches only I$ percent (.l" the tc~tatnumkr of satellites placed in orbit, "We are not complaining, but our American competitors have access to the American governmellt market and we do not have this access. So we saj the rules are not the same for everq body and wve ask that they be changed."" IJ-S,obscrcterscounter that although France and other European governments apparentXj do not have ~vritltenplicies requiring the use of Ariane for their government satellites, a de facm policy exists nonetheless. Stec en Dorhan, a carporatc vice president for satcll ite manuPdcturer Hughcs Aircra-nft,Inc., extends the criticism to satellites, He asserts that Eiaropcclan governments (and China) wilt not purchase American-made sate1lites and that if Europe cvants tc~sell launch services in the US., they should be prepard to prmure launch services and satcllites on a free-market basis, Others note that the Europeans do not purchase I;X.S. launch c ehicle components, either-all Ariane parts are made bq Emrowan companies.

The issuc of \vhcthcr ar not tJ.S, Gociernrncnt satellites could k launched on hreign launch vehicles became controversial during deliberations on the FV 1992 NASA authorizaticlrn bill that passed the House on M a j 2, 1991 (H.R. 1 91581, Some Members wanted to pemi t foreign launches of cerlain NASA cnvironmenQl satellites art of the Mission to Planet Farth prrjgram) because the IJ,S. could n d launch mid-sized satellites into polar orbits, Such launches take place from Vandenberg Air Force Base, CA, and there is no launch pad there for the new Atlas launch vehicle (Atlas IXAS) required for ""medium""s i ~ e dspacecraft, Rather than being forced into building either mirch larger satellites that would take advantage of the Titan's substantial f ift reapability or smaller satclt ites s i ~ e dto fit on Delta, the Members recommended flexibility on the issue of using foreign launch capabilities. Qther Nemkrs, howet.er, were concerned about the effect this might have an the tJ,S. comrncrciaf launch industry and on the tradc talks with ESA, UltimateIy, Represen@tiverI'orricellisucceeded in amellcling the NASA authorization hill so it states that existing IJ,S. policy should be maintaincd, a waiver from the President should be required for any exemption ta the policy, and exemptions ox~lyshould be granted if the 1;X.S. does not have the needed launch capability, IJ,S, companies ~rclruldnot be hamed bq the cvaivcr, and prc3gram kncfits \voulld accruc. Kepresentati ve 'forricelli rwommcndcd that a launch pad be built at Vandenberg for the new Atlas laulleh vehicle to remedy the problem, and suggested that the Elepartment of Defense "contribirte" ta paying for its construction, DOf> suhscqucntfy announced plans to request funding to refirrbish a launch yad at Vandenberg so it can support Atlas IXAS launches.

Controversy Over the Arabsat Agreement

In March 1990, Arianesrace charged that CGWXlC had reached agreement to launch the Arabsat l -C satellite for the Arabsat Consortium for a price below fair market prices in contradiction to the agrccmcnt China signed with the U.S, flPdciliation Act, which passed Congress in 1990, btrt was vetoed by the Presidel~t.(The language in H.K,W3 cvas in an amendment sponsored b> Representative Solomon during House consideration af thc bill on Junc X 0. 1990. During the debate, Represenhtive Solomon said that he did not intend to affect the ALXSSA'X"export licenses.) House action on S.320 is pending, Regarding the Arabsat contmct, ('hen Shouchun, vice president of CGWXC asserted that Arianespdce, not China, charges unpilir prices. For example, he noted that it took only 28 months to develop the l,clng March 2E bcjclster (the necvest version), compared to the 3 4 years it cvould have taken in the West. *'fihercfore, CCWXC can charge lower prices that nevedheless accurateiy reflect its costs. We also stated that Ariane has had more failures than Chinese launch vehicles and those costs must be bt~mcby customers. From his point of view, ('lxina was abiding by the terms of the U.S,-China agreement. X,in Huabao, deputy chief c?f engineeri~lgat the Chinese Academy of Space 'I'echnolog~(attached to the Ministl-?, af Aerosprtce Endustrj)),went further in stating that the {].S,-China agreement itseIf is unt"air. ""China is a sovereign country, "There should not be ally Xirnits irnposed bq (jutside governments like this. For a sovereign naion, this is not a gocld thing." "Thisparticular issue became moot in the spring of 1991 when the Ambsat cotlsclrtium terminated the contract with CGWXC and subsequentfg, signed cvith Ariancspace for the launch. l"hc Arabsat Consortium has not revealed what led to the change in plans, nor have ally of the parties revealed Arianespace" price. Qne media report asserted that the change cvas due "at least in part tr, Arabsat's realization that the infrastructurc/suppc,rt required to launch on Long March kfirould be more complicated and expensi~rethan originaily anticipdted." A AChinese space ojffieiat, Zhang Jian~e,asserts that '%er~~spatiale acted in a c e q imfriendly and unhir way," "delaying action to apply for an export license, and substantially inflating the charges it would assess the Ardhsat Consortir~infor launch suppart serf ices. Zhang alleges that Aerospatistle wczufd have charged four or five times as much as Hughcs charged for supp3rrting the Asiaat launch in 1990,

An Aerosptiale rcprescntatir7e countered that the company had made an "'exhaustive study" of how rnuch support would he tleeded to assure a successful f aunch and determined its charges according1y, At about thc same time, the Indonesian government sciccted an American cc.tmpany, McDotlnelI Douglas, over CGWXC and Arianespdce for launch of a Patapa communications satellite, 'The issue garnered much interest kcause ftthe first satellites, space probes, and manned spice capsules. 'l'he Soviet tiniun lairnched Sputnik I. its Lunik mocjn proks, and all its manned capsules using modified intercontinental ballistic missilcs. i,ikewise, Amcdca relicd on its f?rrst ballistic missiles to launch early sr.ttelitiltesas weII as Mercury and Gemini manned capsules. The Cl'hinese have fallowed suit;,devetoping their series af sateliite kx3sters from earlier miliary ballistic missiles. f apll ar~dEurope entered the space launch field with their own civilian satellite launch boosters, and other commercial enteprises and concems have entered the field with a host of small sounding rctckets, used for atmospheric testing, up to larger boosters capable of putting satellites into orbit, However, as one observer has noted, dual uses are aiir;*aysimplicit in even purely civilian, commercial booster designs and sales: ""fhe only essential differences bcttvecn a [spacelaullch vehicle] ar~da baIIistie missile are its tru4jectoq ar~dthe pdylo~dIt carries. Suppliers cannot ~enaturc~pace-launch technologq and hc: cemin that it tvill be used only for civilian pumses. Once a nation has the ability to place a satef Me in

arhit it is, at most, only a fcw years from bcing able to launch an intemcdiate range ballistic missile. ... 'i'he differences relate to intentions, not capabilities." 'The minimal nature of such differences is amplj prot. ided b j the experiences af a German company, Orbitat 'f'ransport und Raketen, A.G. ("C.YI"RA(1;'". After desiglling and testing a variety of bvusters with var;)i'rngsuccess, G T M G marketed itself as ''a pwceeful commercial alternaice to Wstern and Soviet lalrnch services." AAltler using test facilities in Zaire and I,ihya-at a time cvhcn Iaibya9s highly controversial leader Muammar Qudddafi had alreacl~,declared his inlerrtions to acqirire missile teehnologq -Cn'KAG cvas denounced bq man> Western nations, including the linited States, in 1478-8 1 , and ultimately cvithdrew its operations to Germany and Sbveden. Brazil. tocl, has adapted its own golernment-financed rockets, originally concei ved as sounding rockets for upper atmospheric research, for rni t i tary purposes, Its Sonda 111 sounding rocket, originally inlerrded for atmospheric testing, was converted into a short-range missile. Hcztvever, its fallow-up mcldei-also ostensibly a civilian sounding rcxkct-has bcen successfulty test-taunchcd and has been touted to foreign customers as the Clrbita IVfBiEE-CiOO, allegedly developed cvith Libqan assistance, Iraq was also alleged tcl hat e contributed financial l y to another Rra~ilianrnissilc program, the Avi bras SS-3OC1, under development in 1989. Israel has launched two satellites into orbit tc~date irsing an unusuajlj powerful boaster, the Shakiit Ii, in September X988 and April 1990. Although Isracl cIairned that the Shavit 11 is intended purely far paceful space explomtion purposes, trarious aniltysts hat e rejected this descripticjn: "pit is difGcult to imagine that Israel, with its over-stretched dcfense budget, would develop two completely differex~tsets of boosters far missiles and spxe-launch purposes, when one set could be irsed for both missions.'" C'iviliatn boaster technology is perhaps thc most obvious example of uncontrolled dual-purpose techr~ology"s latest threat: ""Bwause of the inherent similary civif ian prtzgmm ities land also the mixed mcltivations1, et.en the most genui~lel has mili*larypotential ... [and such programs1 will be defended bp their makers as peacef'uI spice launchers up to the moment they are used to deliver m i f i k ~ t.varheads." 1'1'. Other Dual-Pzirpose Technology Ti-nn~fers

A host af items with civilian uses conceiilably can also have military purpjses thit require moniwring or exprt controls to limit or halt their trdnsfers. These items run the gamlrt from wmponents and testers of missile-related final products (end items)-such as high-speed clectronie switchcs. or krytons, useful in civilian centrihges btrt also in nriclear warhead triggers; flash X-ray mahines; chemicals, such as ammonium prchlordle, irsefui for rcjcket propellants and a key component of commcrciaj fertilizers (and, af course, missile engines); gyroswpes; high-

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speed capacitors, used in ei~eythingfrom cars to high-speed laser research, but also for nuclear device timer triggers-to the end items themselves, s ~ ~ as c hcornputer systems; Global Positicming Sjrstemsatellite nat igatimal signals, usef~rlfor commcrciali aircraft (and for eruisc missiles) to adjust their accuracy; and even to commercial trucks modified to sserve as mobile missile trdnspoflers. In summation, the entire heart (l'the legal challenges posed b j the dml-use dichotomy is best cxprcssed by a quotation from President Kcnnedy, When asked what was the difference betin*reenthe Atlas rc3cket that launched astronaut John Cjlenn's capsule and the same nuclear-tipped Atlas missiles directed toward thc Soviet linion, JFK resgondcd simply: "Attitude." The mcdern industrial Fvorld is so dependent on precision machining, highstrength and high-temperature alloys, sophisticatctlaviotlics, and other technologies that ct3lIectivelj constitute ""space launch technologies"' that a complete ban on exports ~vouldconstitutl: technoliogieal and markct suicide. Some seepage is thus inevilable. flespitc controls, then, the primary barrier to the spread of nuclear missile technolr~g)is f i kelj to br; political pressure from the mclre advanced couxltrics. Whether those nations pssess the political will and cvhcrecvithal to exert that pressure in the Face of other (c3ften conflicting) plicy goals is unclear. In the meantime, hotvecer, export controls remain in existence, and it is likely that thcy wilt bc of some use in rebrding, if not halting. thc spread of nuclear, chemical ancl biological missile capability. 'l'he fc3llowing section provides a brief oirervien*~ of existing contrt>ls,with emphasis on U.S. mechanisms,

Existing Export CsnttraXs The current U S , and international export controt regime constitutes onc of the most confusing and tcchr~icaliydemanding areas of law practice. The export of commercial space prcjdtlcts, services and techndi->gq,for example, is generallq controlled under thc provisions of thc State Department" IMcmational l"raffic in Arms Regulations, 22 CFR pts. 120-1 30 (1993). issued under the authority of Section 38 of the Arms Export C70ntrr>lAct, 22 IJ.S,C. 5 2778, the I'FAR governs the licensing of exports and recxports of "Vdcfense articles and services," Le., goods and services that are ""inherently military in character""and consequently i~lcl~rrfed im the [].S, Munitions List, 22 CFK 1M1.3. ff an item appears on this list, Fvt-tichis administered by the State Elepartment" Office of Munitions epafiment%Bureau bIems,and export. controls generally, it is strongly recommended that spacl: lacvjcrs and businesspeopf e seek exprienced and y imlificd specialist eounscl in thc export control field; export control lawyers, mcanwhile, are urged to consult closeiy with spzce counsel and clients, as a complete knclwledge of the industrj and its o~eralllegal environment is essential to dealing with its export control problems. Because of the intricate and Fdst-changing nature of the fjeld, this book cannot hope to serve as a debiled guide. The most it can prt3vide is some sense o f the out1ines and flat or c$ the f"ielb, The mast important point to rcmcmbclr is that export controls affect far more than the average Xayperson ivoulcl expect. Almost anycjtle ivoulcl expect to run into export control isstles when exprting ballistic missiles, or guidance systems for thc samc. But the prohibitions and restrktions of I1.S. export controis arc:

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much farther reaching than that. Not only goods, but also technology and information may cotlstitultc"prohihied exports. Seemingly inncxuous items, like cornmimications satellites or computers, maj be restricted. And the tern "export" encompasses not only the shipment of gcxslds or information from the linitcd States to a point outside the United St;ttes, but also other transactions, such as the cornmimication o f information to a foreign citizen cvithin the tinited Sbtes, or the " ~ c x p r t "of information from an approved destination abroad to some athcr tocation. Furthermore, pnalties are severe, authorities have considerable discretion, and the right to appeal an adverse decision is extremely limited. For a gocld survey of the structure of exprt controls, see McFddden. Snyder & Schocttler, "The Structure of Export i,icensing, in The Commerce Department Speaks 379 (I>, Riggs ed. 1987).

1 , From reading the above, it should bc obvious that many space-related transactions will require cIose coopmtion with specialist export control counsel. Becairse (.l"the brmd sweep (.l"exprt contrclfs and the dual-use chamcter o f man) space tcchnologics, virtually any transbt~rdcrshi pmcnt of space hardware ar technical infc3rmation is likely to raise export control issues. X~avingaside s~rch ob-~ ious elements as launch vehicles, many other space technofogies-such as sateilitcs, radiation-hardened chips (essential for satellites but with obvious mil iVary implications), and teIernetq gear-are treated as ""munitions" for export purposes, 22 CFR 121 . 1 ( l W3) (Categor?,XV). Gic en the stiff penalties that can resuit from illegal exprts. it is very imprtant that all technology transfers in the spice area be scrutinized i"or export control compliance. As mentioned above, such transfers need not involve an> shipment of g c d s (or even da&) across borders, For example, disclosure of technical, data nccdcd to mate a communications sifLc"I1iteto a fcfreigrl launch vehicle, even if such disclosure is made cvithin the llnited States to a representative of the foreign lalmch provider, and even if the satellite itself is manufactured abroad, could qualify as an "export" of technical data. 1,eaving aside the yuestiotl of the treatment of data see Department tjf I>ethat are clmsified and therefore suhject to s ~ c i acontrr>ls, l fensc, Industrial Sceurity Manual for Safeguarding C'lassi ficd Information ( X 9871, the mere diselosrrre ivithin the 1;Xnited S&&sc$' nonclassified clat&controlled by either the I'WR or the EAR can be subject to export license requirements if the disclosurc is made to a foreign national or with the intent ar knorvledge that the data will be released to a foreign tlational or taken out of the United States. A broad definitio~nof the tern "exprt" mises spcial conccsrns for companies aflcring launch ser\liccs, bccause the launch of a vehielc could Ire. mnsidcred to be an exprt from the 1;Xnited Sates. Indeed, prior to the enactment of the Commercial Spa= Launch Act o f 1984, a Launch cvas msidered an export subject to fTAK liwnsing requirements, S. Rcp. No, (i,S6, 98th Clang,, 2d Sess. 17-18 (19M). Sec-

tian 21 (b) af the Ccjmmercia-tSpace faunch Act, howei~cr,spcifically provides that the mere launching of a payload or a vehicle cannot, solely by reason cjf the launch, be considered an export under an> exprjrt-control law, Pub. 1,. 98-5"7,$2 1 (b), 98 State3055, 3063 (19W) edified at 49 t1.S.C'. 2620 (1992). in accordance with this provision, the fVi'ARnowr spcifically excludes the launch of a paylwad tjr iehicle from its definition of an exprt, but gicalcveapczns, or missiles; controls an exports and recxpjrts to specific end-users found ta bc engaged in production, development, etc., of chemical or bioic.rgical weapons, or missiles; controls on many activities-somc af which (50 not involve cxpjrts or recxports- by U.S, entities that might contribute to the proliferation of chemical or bid ogical weapons or missiles. "Theoutlines of these controls are addressed below. Technolagy Controls

'I'hese ccmtrr)ls are airnd at spcific prtlducts, technical data, and sczftware that arc: used in the design, development, prtductian, ar use af missiles and chemical or biological weapns. An ivzdivr'dttnl validated Il'cer?se(1Vt) is required for export or reexprt of these items to an3 count9 in groups QS'TVWUZ-i.e,, to any wuntq ather than Canada. l"he s p i f i c chemicals subject to U.S. foreign policy controls are identified in ECCN 47%13; the specific equipment and materials are identified in E";C7CNs 51296 5 1326 5 133F, 5 134F, S135F, 5 l@& 5 141F, and 57WF. Chemicals undcr ECCN 47BR require an IVL for export to all destinations cxeep COCorn mernkrs, Austria, Iceland, New %aland, and SwikerIand. Fquipment and ms~teriaisr e q u i ~a trailidaid license for export to Cormty C;roups S and Z, and the regions and cvuntrics listcd in Supplement S to part 778 of the EAR. Lirnivations on biological Fveapc.ttls, cemin itiruses, bacteria, t'ungi and protozoa, identified in EGC'Ns 4997B and 499XB are eken mclre stringent: exports require an IVE, to all destinaticslns cxcept C_"anada.Fguipmcnt and material decmed useful far the production of bioXogical agents are covered under ECCNs 5 165E 5 1@F, 5 170F and 5997F. These items, tt~c~, require an fV1, for export to Countq Groups S and Z, and the regions and countries listed in Supplement No. 5 to EAR Part-778. Teclznical dcztrx @reegualZy. subject fo tizese csvr trots. For exampf e, technical data license GTDR is not available for export, reexport, transfer ar release of techr~icaldata for the production of chemical precursors under ECCN 4981t3, except for exports and reexptlrts to CoCom countries, Austria, Iceland, New Zealand, and Stv'lt~erland, An IVI, is required instead, Similarly, G?"DK is not

avai labfe for the cxpjrt, reexport, release or transfer af technical data related to the productioll of the biological agents sub.ject to these new controls, An IVX, is required tcl expclrt to cizlt destinaians except Canada, Similar restrictions applj to d a b related to the material s ar cquipmcnt subject to these controls, G'f lf R is also now unavailable for the export, reexporl, trdnskr or release of technical data for facilities to produce the precursclrs cantrolled by EGC'N 4798B, except to the C'oCcjm countfies, Austria, Iceland, New aaland, or Swit~erland,l"his includes:

* overall plant design dcsign, specification ar pracurcmcnt of cquipmcnt * supervision of eotlstntction, inslallatiotl, or opcclmtion of complete plant or components thereac training af pcrsonnc'l: or * collsullatioa on specific problems in~iolvingsuch Facilities

End User Cantrak 'I'he secclnd tjpe of restriction is based on whether the end-user (that is, the foreign purchaser or user af the cxprted product) is engaged in prohibited activities related to chemical or biological Fveapons or missiles. For missiles, the new rule requires an lVL to e x p r t any commcjditj, sdtware, or technical data (except for technical data that are eligible for general license G?"I,A and commodities identified in ECCNs 75991 or 79991), when the exporler knows or is infamed b> the C'ommerce Department that the e x p r t or reexport: I. is destined for a project listed in suppIement 6 to EAR R~rt778; or 2. wilt be used in the design, development, prt)duction or irse of missiles in or by a countrj) where a prc?ject listed in Supplement 6 is located, ~vt-tcthcror not that use in~iolvesa listed prrjject. Note, however, that Supplement G is currently still k i n g prepared, [It has since k e n published. f f i r chemical or biological weapons, an IVX, is required to export any commodity, softitare or technical data (again, excludi~lgtechnical data eligible for general license G?"I,A and commodi$ies identified in E-;,C7C"s75991 ar 7W9I), when the exporler kxctows or is inhrmed by the Commerce Department that it will k irsed in the design, development, prt)duction, stockpiling or use of chemical or biological Fveapons in or bp a country listed in Supplement 5 to part 7 3 . In addition to these controls, a11 IVX, is also required for an export or reexport: to an indicidual, entity or project anywhere in the workd where C'ommerce has infomcd the exporter or reexprter that an lVI, is required, Such notice may be cither thrcjugh pubtieatioll of a change to the EAR, or through notice directlj to the exporter or reexporter, Direct ncltice maj be oral or in cvriting, although oral notice must be foflocved up with written notice ~vithintwo days,

272

Space-Relafed Xr~fernatl;o~znlE ~ d Issues e

Reslcriclions on U.S. Persons Beyc.ttld the a b v e restrictions, the new rule also imposes controls on the activity ry, 2, The Naer'o~znkityPn'l-lciple-A state may exercise jurisdictioll with respct to its own national, \vhere\ier he maj be. 3. The Protective Pritzcipke -A sbte may excrcisc jurisdiction cvi th respect to cefiain types of acts wherever, and by \vhomever, committed where the cotlduct substantiatlj affects ceain vital state interests, such as its security, its proprty, or thc integrity of its gavernrncntaf process4. Tlze UtziversafifyPrr'lzeiple-A stoate may exercise ,j uri sdiction w i th respect to cemin specific universally cc~ndemnedcrimes, principal11 piracy, cvher-

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ever and by \vhomcver eommiued, cvithout regard to the connection of the collduct with that state. 5. The Pczssizpe Persr~nalityI-)rinc@le-A state may exercise jurisdiction with respect to any act cornmittcd outside its territow by a foreigner cvhich substantially affects the person or property of a citi~en. (S. Houston b y , Howard cf. Tauknfcfd, l"hc Law Relating to Activities of Man in Space, The University of Chicago Press, 1970). f urisdiction must be exercised somewlzere, with respect tc~somedzing or persat2. [J lurisdietion cannot be appiicd to the high seas or to outcr space [exceptinsofar as a nation may exercise jurisdiction and control over a ship UPE the high seas or a space object in outer space] Qecairsethese areas are considered res csbnrnuxtis under international law and thcreforc are not "'places" that can appropriated by claim of suvereigr~ty,Hoivever, the 1967 Orrter Space 'l'reaty declares that a nation maj exercise jlurjsdiction and control over otrtjects in space, much as a nation may exercisc jurisdiction over a ship at sea, Objects in space and ships at sea are treated (with some important limitations) as if the> were part of the territor?,of the country on cvhose registl-?;thej are entered and cvhose flag thej fly. ["fhclegal fiction that ships on the high sea and space objects in orbit arc: Iike ""floatingislands""has not been urrivenallj accepted. The tX.3. Supreme Cc-turt,in Cl'unard S.S. v, Mellton Co. 262 II,S. 100, f 23 f 1923), referred to the floating island theory as ""aigurc: of speech, a mc&phor,"'l

International lawrrecogr~izesa nation" jurisdietioll over its citi~ens,its territor?,,territorial waters and airspace, and those ships and aircraft cvhich it has registered, Whcthcr nations have, through the exercise of their domcstie Xacvs, actually extended their jurisdictiolls to the full extent allocved by internatiollal law7 is a mclre complicated question, With rcfercnee to t7.S. jurisdiction aver space activities, it will be important to distinguish between what the tXnited States is capable of doing and what, through congressionatly ensleted legislation, it has already done. Absent a specific slaterncnt of congressional intent, U.S. courls have been relucbnt to give extraterritorial reach to toemin domestic laws, f i r example, in MeCulluch v. Sociedad Nacional de Marineros de Honduras 13'72 II,S. 10 (1963)j, the Court cvas asked to decide \vhcthcr U.S. labor laws would apply to ships registered in Honduras and ocvned and oprdted hi> the Hondurdn subsidiary of a ti.S, corporation. 'I'he Court noted that Congress had the "mnstitutional power to appll the National l a b r Kelaticslns Act to the erecvs ~vorkingforeign-flag ships, at least ivhilc they are in American ivaters," but decided that the resolution of the case depended on ""whether Cl'ongress exercised that pocver.'"I'he cou& held: "to sane-

tion the cxercisc of Icxal sovereignty in this 'delicate Geld af international rclations there must be present the affirmative interrtioll of the Congress clearly expressed .'... Since neither cve nor the parties are able to find any such clear expression, we hold the [Naticslnal labor Relations1 Roard cvas cvithout jurisdiction, ..." Similarlj, in lJnited States v. Cl'ordova 189 F, Sugp. 298 (E.I>.N,Ye 1950) f, the C'ourt cvas asked to decide cvhcthcr an assault committed in a tJ.S, flag airplanc tlying over the high seas was within the admiraltj~and maritime jurisdiction as described in the then current IJ,S. Cl'rimind Code f 18 IJ,S.C.A, Sec. 45 I). /At the time, 18 U,S,C7.A.See, 4-51 stated that thc admiralty and maritime jurisdiction of the United Sates extended to ""American vesseis on Ithe] high seas.""lthough the Court nclted that ""Congress could, under its police power, have extended feberal criminal jurisdiction to acts committed on board an airplanc ocvncd bp an America11 national.. .," the applicable legislation (1 8 U.S.C.A. 9 4-5 1) spoke onIy of "%.l.essels'" on the ""high seas.""lhe C a ~ ~then r t concluded that "%"tsce19... evokes in the common mind a picture of a ship, not of a plane," and that no case or Xegal principle cvould ""justif] the extension of the words 'high seas-o the air space of er them.'" [Cordova incofvcd the interpretation of a criminal statute; therefore, under U.S, law, the statutc cvas strictly construed. Not a11 statutes are strictly cotlstrued, For example, the Death on the High Seas Act 13.1 Stat. 5371 (46 [J.S.C. 5 7-61),which prc3vides a remedj for cvrongf'ut death txleeurring "c311" the high seas, has bcen interpreted bp several Fcdcml courts to apply to tortiaus conduct "over""as we11 as "btl"" the high seas, See DXAIeman v. Piin America11 Worf d Airttays, 259 F.2d 493 1 (2d Cir, 1 958)1.1 Thc U.S. sbtute defining thc "special maritime and territorial jurisdiction of the United Sates""for criminal jurisdiction has since k e n modified to resolve the probtem presented in lJnited States f . Cl'ordotia and to t q to anticipate those problems cvhich might arise in future space actitiitics. [ 113 IJ.S.C_".A.See, 7.1 furrentty, this special jurisdiction includes: I . ... any vessel klonging in whole or in part to the tinited Sbtes, or any citizen thera)f, ar ta any mpration created by or under thc tarvs of the tJnited Sutes. ... 5. Any aircraft belonging in whole or in part to the 1;Xnited States, or any citizen thereclf, or to any ccjrporation created by or under the lacvs of the lJnired States, ... while such aircraft is in flight over the high seas, or over any other waters within the admirdlty and maritime jurisdiction of the United Sates. ... 6. AV vetrl'cle used or designed ,fur ,flI'gIzt or navl'ga?isvr in splice c.znd uuz tire registry of lrlzc U~~iaed States ptdrstlanit to the ( 1 967 Outer Space T r e a ~ .].. avld the [Registmtiun Gonverztio~~I ... while rl~atvehicle is in el-jrig/r?... I emphasis added l 7. Any place outside the jurisdictian of any naticsln with respect to an offcnse by or against a national of the United Sates. Gic en the restrictive interlpretation of the t1.S. jtrrisdicticjn presented in the McGulfoch and Ccjrdava cases, it is possible to imagine further problems cven

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under the revised C'rirninal Code, For examplc. is a large, manned space vehicle ""used or desigr~edfor fxight or navigation in space"'? If so, then paragmph 6 of the Criminal Code (above) cvould include a space station cvithin the "vecial maritime and territorial jurisdiction" of the United States. However, since space svations have attributes which differ frcjrn those of space trallsporlation vebicles-e.g., their size, complexit>, mirltinational nature, duration in orbit. etc,-Ithe code provisions] might be mrjrc: applicabfe to shuttle-typc vehicles, If space stations did not meet the requirements of paragraph 6, they still might be included under the general proi isions o f paragraph 7, In the futurc, it is entirely pcslssihlc that some space staticslns will k privately owned. Xt is also possible that syace shtions ocvned in whole or in part by I;X.S. nationds or corporations cvilf be registered in other countries. A state is generally considered to have jurisdiction to prescribe (though not nccessarity enforce) rules of law regarding the conduct of its nationals ivherever that conduct occurs. [Restatement (Third) of Foreign Relaticlns Law ol" the tinited States, 8 4-02 (1986).j ?'he extensicsln af U.S. law to privately owned space sbtions that \vere registered in other countries would h complicated by the Fact that the law of the state of registrj might conflict with that o f the tJnited States. 'I'his could caiirse problems since the IJnitcd States, under article VI of the Outer Space Treaty, woufd remain responsible for the acts of its tlationais in space. Finally, should the tinited States have the right to exercise its jurisdiction in a particular instance, it \voufd still be nccessary ta decide how to share porver ktween the Federal government and the individuai States. "I'his generally rneans deciding: 1) cvhether the grant of jurisdiction in a particular case is exclusicely limited 10 Federal courts ar is shared with the sbte courts, and 2) Fvhcthcr the individuai Sates would k allowed to pass laws in this area. [Somelaws may have to br; exclusive (e.g., registration lawvs and lacvs perlaining to the spacecvcjrthincss of spacecraft); athcr labvs might bc amenable to concurrent SQtelFcderal jurisdiction (e.g., criminal and tort law pemining to iindividuais on board),l 'l'he f udiciaq Act C$ I789 granted Federal courls exclusive jurisdiction oi er i r ~rem (action against the vessel) admiraltj questions. However, in persarratn (action against the ojvrrer of the vessel) maritime cases can be hrrjught in State courts. [Maritime cakrses of action brcjught in persr,rlatjz in State courts must rely on maritime law and not the common law of the State of thc forum. (See Garrct v, Moore McCc)rmaefl CC).,3 17 IXS. 239 (1"34.2).)Justice Black, ivriting in Hossidt i , tinited Fruit Cl'o,, 365 t1.S. '73 1 ( 1961), noted that ""Article V! of the G'cbnstitution carries with it the implication that wherever a maritime interest is involved, no mattcr how slight or marginal, it must displace a local interest, no matter how pressing and significsmt," The supremacj and imihrmity dextrines that prec ail in maritime lac\. could be applied to law in outer space. 1 Similar grants or rcstrictions of the jurisdiction of kdeml and State courts may be necessaq for eases involving space acticities, In addition, Cl'ongress rnaq choose to limit the ability af States to pass laws in cerbin areas while allorving State courts ta apply Fed-

eral law. Far example, the Federal Aviation Act 149 U.S,C. 8 4 1 01. et seq.1 limits the right of States to legislate with respct to commerciai air travel; however, State courls share bvith Feder& coirrls the ability tcl interpret the Federal Aviation Act. The "'Commercial Space launch Act" [49 tJ.S.C7. 8 7010 1 et seq,], csbblishes a Federal licensing mechanism but notes that the "authority of States to regulate spacl: launch actitiities within their jurisdictions, or that affect their jurisdictions, is unaffected by this Act. ..."' To summarize, the issue of jurisdiction is f'urrdamenbl to the application of IJ,S. lawvs to spacl: acticities, 'The fact that internationill law wczuld allocv an extension of tJ.S. jurisdiction in a particular instance does not mean that such an extension has occurred. l a w s meant to regulate tX.S. domestic activities may not appll tc~IJ,S. space activities Gust as the lJ.S. criunind lacvs did nut applj to the ('ordova case) unless C_"ongresshas clearly esbbl ished its intention to so extcnd these laws. Should international law allow an exterrsion of U. S, jurisdietiox~and should Congress establish its intention tcl take advantage of such an extension, it would still be nccessarj) to decide rs~hethcrFcderaf laws would preempt Statc laws with respect to spice activities, and whether jurisdietioll was shared by both Federal and State courts.

A space staticsln could have at least four difhrcnt typcs of legal status, making it either: 1 , a ~latiarzal-$pacesliatinrr under the jurisdiction and control of a singlc nation; [Space stations owned by private sector entities ancl registered ulldier the lawvs of a single state cvcluld atso fall in this category, A space station that was orvncd by a U.S. national but registered in another country ~vouldhj1 in this category btrt wvould raise a more complicated set of Iegal issrres. 2. a t~zultinarisvralsj2lzce sf~ztisvrirnder the joint jurisdieticln and control o f several nations; 3. a rnulii~zatl'o~znl $/?aceseatl'o~zthe individuai moduIes of ~vhichare urrdcr the independent jurisdiction and control of separate naions; or 4. at1 r"rrterrzaifiot2als p c e statinrr under the jurisdiction and control of an intertlationai governrnenbl orgatlization similar to fN"TE1,SA'I".

tinder each of these options, the rights and liabilities of the ti.S, Government and its citize~lsCCIIIJ~ be s~rbstantiallydifferent: I ) U.S. Jzrrisdictioitz arzd Co~ztvoE.Ih at clid the controt ers) and compfexity of coo~lc;?ratitic= intematicslnal ownership and operation, the tJnited Sratcs may wish to retain complete control over the spce station. Assuming the spice sation is ocvned and registered solely b> the tJnited Sbtes irnder the terms of the 1976 Registration ('onvention, its legal status cvould be similar to that of a ship or air-

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plianc flying the U.S, flag, As discussed above, ships [Restatement ('f'hird) of Foreign Relations Xa:w of the 1;Xnitet.jStates, $ 502 f 1986)i and aircrdft [ l944 Cl'onvcntion on International Cl'i.~il Aviation, 61 S&%. 1 180; "T.1.A.S. 1591 f have thc nationality af the state in which they are registered. The United SQtes cvould have the sole pwer to make and enhrc'e rules of law regarding the opration of such a space station as long as such rules did not violate international law, Presumably, thc linited SQtes ~voutrlcoordinate many af these rulcs with the foreign participants in the space station. As discussed above, Congress could appll IJ,S. lawvs to the activities aboard a li,S, space sution, but in the abscnce af elcar congressional intent such taws might not be indepndentIy applied by the coufis, 2) Joint Jzkr1;Sdicti0~ram-f Corztrot, Nations considering investillg a substantial portion af their financial, technical, and human resources in the space station may wish to jointly own and register it through some type of international ,joint c enture. tinder current international law, joint registr~ztir;fvr (as distinguished from ownership) of space ohjects is not prc3vided for. Article V111 of the 196'7' Cluter Space Treaty eswbiishes the principle that ""A State ... on whose registrq. an object Launched into space is carried shall retain jurisdiction and control over such oQject." 9 0 Outer Space 'f'rcaty, Article VIII. 'f'he 19% Registration Convention mainpains that where two or more states may be considered ""Iunnching states""[defined in Article I of the Registration Concenticjn as: (i) A State which launches or procures thc launching of a space object; (ii)A State from whose territoq or Faci1ilt;y a space ohhieetis launched], "they shall joint11 determine cvhich one of them shall register the object ... bearing in mind the proc isions af article VfII." "he Registration ougal, Farervord to R. R o e ~ e k Flags , of Ccjnvenienee at xii (1962);see also H. Meyers, The Nalionality of Ships (l%?). In any event, for practical reasons it i s generill1y mceded that the IJ,S, dtxs have jurisdict-ion over "spacc objects"' listed on its registrj). See, e.g., C_"unningham,Space ('ommcrce and Secured Financing-New Frontiers h r the U.C.G., 4-Q Business Xawyer 803, 8 16 ( 1985). But c$. I>eSaussure& Hzj~anappel,A llnified NulltinationaI Approach to thc Application of Tort and ('ontract Principles to Outcr Space, 6 Syracusc Journal of International Law & Commerce 1,4 f 14)78) farguing that jurisdictiona;E prcjvision of Outer Space '1-reatj is o f onlj limited effect without implementing legislation in common law countries). 7. 'l'here is usuaIIy a choice of law provisioll in a contract f'or commercial spacl: activities, such as the ones excerpted later in this chapter. Note that sclme couas look with disfactor on contracts that attempt tc? divest them af jurisdiction, For example, a French citizex~has a s a t u t o ~ right to resort to the Frel~ehjudicial s5stem even if she was damaged on foreign soil or bj a foreigner. 'I'he French ('it."I X d e , Artielc X 4, provides:

An alien, evcn one not residing in France, may be summoned bef-irrc: the Fmnch courts for the fulflllment of obligations contracted by him in Wance; he may be brought before the French courts for obligations contracted by him in a t-irreign country toward French persons.

Fr. C. Cl'iv. Article 14, reprinted i r ~H. DeVries, N. Cjalstc~n,& K. Lcxning, Materials for the French I q a l System 2 (2d cd, 1977). N W that under Frcnch law, ""obligations"'refers to tto~iousas well as conttuactuai obligations. 8. For an interesting discussion of these issues, see Helen Shin, Note, ""Oh, I have slipped the surly bonds of earthv":ultinational Space Stations and C'koice of Law, 78 California Law Review 1375, I375 (1990), which includes the following h] potheticaf : An American biologist is conducting an expriment aboard an orhi tint; mrritinationaI space statiml built by the 1Tnited States. Canada, Japan, and the European Space Agenej, The biologist is passing through the Canadian module, where a Frerzch astrophysicisl is repairing an instrument panel. The astrophysicist carelessly pushes asidc a wrench, which floats away and ir~~jures the biologist, Which statc's choice of Iaw ruIes-and institutions-determine which slate's substanlice laws will apply to the issues ofthe astrophysicistk liability and the American" ability to recover damages'?

The author argues that maritime choice of law rules for torts a c ~ n i n ganbard vessels at sea is the best model for deciding which stdte" laws govern the problem. She also states that arbitmtion rather than fuf l-scale litigation is the prefened forum for deciding the issue. Id., at 1378, She goes on to t isl the tkrw traditional Pdetors from maritime choice of law that should intluence choice of law dcterminations: the registq state o f the space vessel in which the incident takes pfaccs; the nationality of the plaintiff; and the nationality of the defendant, Id, See also Mary McChrd, Note, Responding to the Spce SQtlon Agreement: 'l'he Extensioll of U.S, Xaiv into Space, 77 Gec~rgelicJwnh t v .fournail 1933 ( 1989) (arguing for use o f a ""mnimum mnbcts tcst ... to deteminc the rcasonahlcness af the U.S. exercise of jurisclietioll over ncjn-U.S. tlationals in or on non-U.S. elements fof a space s&tionj9'). 9, For a discussion of all~atiano f jurisdiction b> international agreement, see I)av"t d.Stewart, Resolution of igegai Issues C'onfrontlng the InternatlonaX Space Station Prtgect: A Step Fon\~ardin the DeveIopment of Space Law, 29 "&. f. fnt'l L. "745 (f989),

Smith v, United States 113 Secte11% 8 19 3 ) Chief Justice REHNQUXS"ITdelivered the opinion of the Courl, 'I'his case presents the question whether the Federal 75rt Claims Act (FrC'A). 134(b), X402(b), 2401(h), 2671-2680 (1988 cd, and Supp, EX), ap28 t1.S.C'.

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plies to torticsrus acts ar amissicsrns a ~ u r r i n gin Anhrctica, a sovereignless region without civil tort Xawr of its own. We hold that it does not. [From footnote I: Without indigenczus human ptzpufaticzn and containing roughXy onc-tcnth of the cvorld" land mass, Antarctica is best described as "an entire continex~tof disputed territory." F. A~rburn.Antarctic Law and Politics 1 ( 1982). Seven naions-Argentina, Australia, Chile, France, New Zealand, Norway. and the linited Kingdom-presentXy assert formal claims to pie-shaped portions of the continex~tthat tolal about 85 percent of its expanse. Boczek, 'The Soviet IJnion and the Antarctic Regime, 78 Am,f.fnt'l I,. 834, 840 (1984); Hayton, The Antarctic Settlcrncnt of X 959, 54 Am,J.IntY li,. 349 ( 1%Q). l"hc lil~ited States does not recognize other nations"claims and does not itself assert a sovereign interest in Antarctica, although it maintains a. basis for such a claim. Lissit~yn,l"hc American Position on Outcr Space and Anhrctica, S3 Am,J.IntY l,, 126, 128 (1 959). In ally event, these sovereign cIaims have all: been suspndcd bq the terrns of the Antarctic 'Freatj, coneluded in 1959,Antarctic '14reaty,Dec, I. 1959 11961 1 12 U.S.1". 794, -I'.l.A,S. No, 4780, Article 4 af the l"rc"aty states that no claim may be enfc~reed,expanded, or comprtzmised while the Treaty is in force, Id,, Arliete EV, 12 II.S.T,, at 796, thus essentially freeting nations' sot ereign claims as of the date of thc Treaty's execution,] Petitioner Sandra Jean Smith is the ~vidowof John Ernrnett Smith and the duIy appoiinted representative o f his e s ~ t eAt . the time of his death, Smith worked as a carpenter at MeMurdo Station an Rass Island, Anuretica, for a construction company under contract to the N;ltional Science Fc)urrdation, an agency of the Ilnited States. Smith and two companions clne daj tczc~ka recreational hike tcz C'nstfc Rock, Icxated several miles autside of MeMurdo SQtion, On their return, they departed frcjm the marked route to walk acrcjss a snocv fjeeld in the direction of Scott Base, a Netv Zealand outpost not far froin MeMurdo Station. After stopping for a snack, anc of the three men tcwk a step and suddenly droppcd frcsrm sight. Smith t"oltowed, and he, too, disappeared, Both men had fallen into a trek asse, Ilespite search and rescue efforts, Smith died frczm exposure and internal injuries suffered as a result of thc hlt. Petitioner filed this ~vrongfuldeath action against the United S"Etes under the k V K Ain the Ilistrict Court far the District of Oregon, the district where she resides. Pctitioncr alleged that thc United States was negligent in failing tc? pravidc adequate wartling of the dangers psed by crevasses in areas beyond the marked paths. ft is undisputed that petiticznerk claim is based exclusively on acts or omissions occurring in Antarctica, tipon the motion of the United States, the District Court dismissed ptitiotler" cornplaint h r lack of s~~b~jeet-matter jurisdictim, 702 F.Supp. l480 f 1989), holding that her claim was barred by 28 li.S.C7.9 2680 (k), the foreign-county exceptian, Section 2680(k) precludes thc exercise of jurisdiction over ""lay claim arising in a ftlreign cc~untq." 'I'he Cl'ourt of Appeals affirmed, 953 E2d 1 Z 16 (CA9 l W l). It noted that the term ""Toreign country" "atits of muttiplc interpretations, and thus looked to the

language and structure of the 'f'CA as a cvhofe to deternine Fvhether Antarctica is a "Yctrrzlrgncountq" w\i\.itnthe meaning of the slatute. Adopting the analjsis and conclusion of then-Judge Scalia, see Beattie v. IJnited States, 244 li.S.App.D.CJ". XII,85-1 09,756 E2d 91, 106-1 30 (1984) (Scalia, cf., dissenting), the Court of AppaIs mled that the FZ'CA does not apply to cIaims arising in Antarctica. "I'ohctfd othercvise, the Cl'ourt of Appeals stated, cvould render two athcr provisions of the Ff'C'A, 28 U.S.C. $9 1402(h), X 34(b), nonsensical. 'fihc Courl of Appals held, in the al.tcrtlative, that ptitioner" suit ivould be barred even if Antarctica were nut a ""fclreign countq'" far puqoses of the FFCA. Because the Ff'C-'A was a limited reliinquishmcnt of the common-law immunitj of the 1;Xnited States, the Court of Appeals cotleluded that the absence of any clear congressional intent to subject the tinited Shtes tc~liabilitj for claims arjsing in Antarctica precluded ptitioncr" suit. We granted certiorai to resolve a conflict betktreen tkvc? Couf"lsof Appeals, 504 U.S. - -, L 1 2 S.Ct. 2%3, 1 19 Xd.Ed.2d585 ( l W2), and ncxv affirm. Petitioner argues that the scope af the foreign-country exception turns on whether the United SQtes has recognited the legitimacy of allother tlatioa 3 ssovereign claim ofer the foreign land. Other~vise,she contends, the land is not a ""eount~"b r purpjses of the FTCA. Petitioner points out that the linited Slates does not recognize the validity of other tlatiotlskefaimsto toportions of AnQrctiea. She asserts, mcjreoi er, that this mstruction o f the term ""Ejreign country" is most consistent \vi th the p u p s e underf y ing the foreign-counte exeeptian. According to ptitioaer, Congress enacted the foreign-count9 exceptiotl in order to insu1;lle the llnited States from tort liability imposed pursuant to foreign lawv. Beea~rse Antarctica has no taw af its awn, pctitioncr claims that mnventional choice-oflaw rules control and require the applicatiotl of Clregon law, the law of her domicile. 'I'htas, ptitioner concludes, the rationale for the foreign-countv exception would not bc: comprami~dbp the exercise of jurisdiction here, since the tinited S&&s ~vouldnot be sub,ject to liability under the law of a tizreigrl ration. Petitioner's argument for governmental liabilitj here faces significant obstacles in addition to the foreign-country exception, but cvc turn first to the tanguage of that prot~iso,f t sates that the FZ'CKs ~vaiverof sovereigrl immunity does nut apply tc~"bjnj claim arising in a foreign country,'"28 IJ,S,C. g 2680(k). Though the FTCA offers no definition af ""euntr>/,"the cornmansense meaning of the term undermines ptitioner" attempt to equate it with "%overeigx~ state."" 'I'he first dictionarjr definition of ""cuntq" is simply "h]region or tract of land," Wcbster" NW International Dictionay 609 (2d ed, 1945). bc surc, this is not the only pssible interpretation of the term, and it is therefizre apprrjpriate to eexamille other parts of the statute before making a final determination, But the ordinary meaning af the tanguagc itself, eve think, includes Antarctica, even though it has tlo recugnited government. Qur construction of the term ""Coreign country'" dmcvs suppoa from the language of 8 1346(b), "'ltlhe principal provision of the Fedcm1 -Fort C_"lnimsAct."

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Kichards v, linited States, 369 tJ.S, 1 , 6, 82 S,Ct, 585, 589, 7 II,,Ed,2d492 (1962)-That section waives the sovereign immunity of the Unikd Sta;tes for certain torts committed federal empiojees ""under circumstances ivbere the linited States, if a private person, would be liable to the claimant in accordance with the laiv of the place where the act or omissiox~occurred.""28 I;X.S.C. 9 13Sfb) (emphasis added). We hate construed 3 1346Ib) in determilling cvhat taw should apply in actions brought under the kTl'CA, See Richards, supra. Rut by its terms the section is more than a choice-of-la\i\r provision: it delineates the scope of the rllnited States' cvaiver of sovereign immlmity. ff Antarctica were nczt a ""litreign eounir>/,"md for that reason included cvithin the YfCA"s coverage, 13461b) ~vouldinstntct courts to look to the law of a place that has no law in order to determine the fiabiltitj of the linited States-surely a bizarre result, Of coursc. if it were quitc clcar from the balance of thc statutl: that governmcnhl tiability was intetlded for torts cc.tmmitted in Antarctica, then the fitilurc: of 9 134(b) to speci-Eq any governing law might be treated as a statutorq gap that the couas could fill by decisional taw, IZut couplcd with what seems to us thc most natural interpretation of the foreigx.1-countqexception, this porlion of l 3 4 ( b ) reinforces the conclusicjn that Antarctica is excluded from the cczverage (l'the kTCA Section 13461b) is not, hojvever, the only FrCA provision that cotltradicts ptitioner" interpretation of the foreign-country exception. 'The statute's i enue provision, 1402(h),provides that clai ms under thc kTF(T"Amay be brought ""only in the jtrdicial district where the plaintiff resides or tvherein the act or omission crzmplained of occurred." Because ncz federal j~~dicial district encompasses Antarctica, petitioner's interpretation of the Ff'C*A ~vould[cad to yet another anomalous result: the FX'CA would eslablish jurisdiction for all tort claims against the tinited States arising in Antarctica, but no i enue would exist unless the claimant happncd to reside in the United Slates. As we observed in Brunette Machine Works, Ltd. v, Kockurn Industries, Inc., 406 I;X.S. 706, 710, n. 8, 92 S.Ct. 1936, 1939, n. 8,32 l,.EA,2d 428 f 19'72), "Congress does not in general intend to create venue gaps, ~vt-tichtake away with ane hand cvhat Congress has given by way of jurisdietiox~algmnt with the other," "'l'hus.in construing the kvFC'A, it is ""reatznable to prefer the construction that avoids leaving such a gap," ibid., especially when that construction comports with the usual meaning of a disputed term. Qur decisions interpreting the FI'C'A contail1 varying statements as to how it should be construed. See, e.g,, United States v, Yeltorv Cab C'o., 3 4 t7.S. 543, 5 4 , 7 1 S,Ct. 399,403, "3 5.Ed. 523 (1951); Dalehite v. LXnited States, 3415 I;X.S. 15, 3 2 , 73 S.Ct. 956, 965, 97 L.FX. 1327 ( f 953); rllnited Shtes v, Orleans, 425 li,S, 807, 813, 96 S.Ct, 1971, X9Z, 48 ia.Ed.2d 390 (1976); Kosak v, United States, 465 U.S. 848, 853, rr. 9, 104 S.Ct. I5 19, 1523 rr. 9, 79 L.Ed.2d 860 ( 19841, See alscz rllnited Staks i. Nordic Village, Inc.,-- - ti.S,--- --. -- -, 112 Sect.101 1, --, 1 X "7 ld,FA,2d18il (1992). A recent sbtcmcnt of this sort, and the

ane to cvhich we now adhere, is found in linited States v, Kubrick, 444t1.S. 1 X X, 1 17-1 18, 100 S,Ct. 352, 357,62 L.FA.;?ci 259 f 19'79): "We should also have in mind that the Act cvaives the immunitj of the linited States and that ... cve should not talcc it upon ourselves to extend the waiver kyond that Fvt-tich ('ongress inknded. [Cit.atic.rnsornitted.1 Neither, however, should we assume the authoritj tc~narrow the w a i er ~ that Congress intended.'" Keading the farei gn-country exception to the FTCA ta exciude torts committed in Anbretica accords with this canon of construction. Lastlj. the presumption against extraterritorial application of tinited States statutcs requires that any lingering doubt regarding the reach of thc k-?"c'A resolved against its er~eompassingtotorts committed in Arrkrctica. It is a longstar~di11g principle o~fAmerican law ""tat l egisiation of Cclngress, unl ess a contrarq intent appears, is meant to apply only cvithin the territorial jurisdiction af the --, 111 United Slates." EEEOC v. Ambian Arnerican Clil Co., 499 U.S.--, S.Ct. 122'7, 112319, 113 1,.kX,26 274 f 1991) (yuclting Foleq Bros., Inc. v. Filardo, 336 li.S. 281, 285, 69 S,Ct, 5 3 ,5'77, 83 ia.Ed, 680 (1949)). In applying this principle, "kyle assume that Congress legislates against the backdrop of the presumption against extrater~torialitj.'?Arabian American Oil Co.. SUPP"LL,4-99 1I.S.. at - -, X X 1 S.C_'t,at 1230; accord, e.g., Argentine Repubtic v, Arncrada Hcss Shipping Corp., 488 I;X.S. 428,440, 109 S.Ct. 683,691, 102 Xd.FA.2dS18 f 1989) ("When it desires to do so, Congress knc~wshc~wtcl place the high seas cvithin the jurisdictional reach af a s&tuteW)..?"heapplicability of the presumption is not dekated here just hcause the FIX?A specifically addresses the issue of extraterritorial application in the fcjreign-countq exception, 'Ibthe contrary, as we stated in tinited States v. Spclar, 338 U.S. 217,2222, "70S.C_"t,10, 13,W Ia.FA. 3 (X949), "Blhat presumption, Far from being overcome here. is doubly fortified by the language of this statute and the legisfaitice purpose underlying it." "titioner does not assert, nor could she, that there is clear ei~idenceaf congressional intent to apply the R'CA to ceIaims arising in Antarctica. [Frcjm Foc~tnote5: E3etitioner instead argues that the presumption against extrater~tclrialityapplies only if it serves to avoid """unintended cXashcs bet~vecnaur laws and those of other nations which could resuit in intert~ationaldiscord."" Brief for 13etitioner 16 (quoting EEOC v. Arabian Alnerican Oil Co.. 499 U.S. - -. - - 111 S.C"t. 1227, 11230, 1 13 ia.FA.2d 2'74 (X99l)). Rut thc presurnpticsrn is rooted in a number of considerations, not the least of which is the common-sense tlotion that Congress generally legislates with domestic cclneerns in mind. I For aXI of these reasons, cve hotcl that thc PTI"CA%svaiver af sovereign irnmunity does not appIy to tort claims arising in Arrkrctica. Some of these reasolls are based on the language and structure of the statute itself: others are based on presumptions as to extraterritorial application af Acts af Congress and as to cvaivcrs of sovereign immunity. We think these tlorrns of statutory construction have quite likely led us to the same conclusion that the 79th Cl'ongress cvoutd have reaclhcd had it expressly considered the qucstian ~ v enow decide: it ~vauldnot

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have included a desolate and extraordinarily dangerous land such as Antarctica within the scope of the FI'CA. The ,judgment of the Court of Appeals is therefizre Affirmed.

Equal EmpIayment Opportunity Commissian v, Arabian American 8 X i Company, 499 U.S. 244 (1W1) Cl'hief Justice KEt-INQtlIS'F delivered the opinion of the Cl'ourt. Thcsc cases present the issue cvhcther l"itle VII applies cxtratcrritorjalfy to regulate the emplobment prdcfices of United States employers who employ llnited States citizens abrwd. 'Fhe tJnited States Cl'ourt of Appals far the Fifth C'ircuit held that it does not, and cvc agrcc with that conclusion. Petitioner Boureslan is a naturali~edLXnited States citizen who was born in Lebanon. "f'he respondents are two Delacvare corporaticzns, Arabian American Oil Ccjmpany (Aramco), and its subsidiary, Ararnco Service Ccjmpany (ASC), Aramcoasprincipal place of business is Dhahran, Saudi Arabia, and it is Xicellsed to do husi~lessin "I'exas,ASC7's principal place ozf business is Houstc~n,'Ikxas. In 1979, Rouresfan was hired by ASC': as a cost engineer in Houston, A year later he was transkrred, at his request, to work for Ararneo in Saudi Arabia. Boureslan remailled with Aramca in Saudi Arabia until he was discharged in 1 984. After Gling a charge af discrimination with the Equal E;,mplc)ymcntOpprturrity Commission (EEOC), he instituted this suit in the tfnitcd Sbtes District Cl 'ou& for the Southem Distrjct of 'Texas against Aramco and ASC. He sought ret ief under k3th sbte taw and Title Vf l of the C'ivil Rights Act of 1964, "78 Stat. 243, as amended, 42 I;X.S.C. $9 2WQa-2000h4, on the grczund that he was harassed and uftimatelq discharged by respondents on account ozf his race, religion, and national origin, Respndents filed a motioll far summary judgment on the grczund that the District Court lacked subject matter jurisdiction of er Sourcslan" claim because the protections of I'itile VIE do not extend to United States citi~cnscrnpfoyed abroad by American. employers. The District Court agreed, and dismissed Bcj~~reslan's '1-itle VII claim; it also dismissed his state-lacv claims far lack t3f pendent jurisdiction, and entered final judgment in Pa%r af respondents. A pancl for the Fifth Circuit affirmed. After vacating the panel" dclelsisioll and rehearing the ease en banc, the court af%imedthe District Court" dismissal of Baureslank complaint. Both Kourestan and thc EEOC peliticslned for certiorari. WC granted both petitions far certiorari to resolve this irnpmnt issue of satutory interpretation. Both parties concede, as thej must, that Congress has the authorit> to enforce its taws beyond the territorial boundaries af the tinited SQtes. U" FoIcy Rroti., Inc. v. FiIardo, 336 I;X.S. 284,284285,69 S.Ct 575,527,93 L.Ed. 680 (19-5-9); Benz v. Cornpania Natriera Hidalgo, SA,. 353 t1.S. 138, 147,77 &Cr. 699,704. 1 Ia.Ed.2d "709( X 95'7)).Whether Congress has in Fact cxcrciscd that authority in

this case is a matter of statutory construction. It is our task to determine cvhcthcr Congress intended the protections of 'rifle VIE to apply to 1;Xnited S"Etescitizens employed bj American employers outside of the llnited States, It is a tong-standing pfinciplc of American law ""lhat legislation of Congress, unIess a contrary intent appears, is meant to applq on1y ivithin the territorial jurisdiction of the llnited States," b l e j Bros,. 336 IJ.S., at 285, Q9 S.Ct., at 577. This ""eanon of construction ... is a valid approach \vhcrcb;)"uncxgresscd congressional intent may be ascemined,""Id, Et serves to protect against unintel~dcd clashes betiveen our laws and those of @her naions cvhich could result in international discard, Sec McCullcxh v. Socieddd rcdacional de Marincros de Hondums, 372 U. S. 10,2&22,83 Sect,67 1,677478,9 L.FA.2ci 547 ( 1963). In appljing this rule of construction, we lcmk to see cvhether ""lnguage in the IreXci~antact) gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure o f legislative contrr>l."Fofeq Bros., supra, 336 ti.S,, at 285,69 S.Ct.. at 577. We assume that C'ongress legislates against the backdrop of the presumption against extmterritoriaXilqi.'l'herehre, unless there is ""the affjrmative interrtion of the Congress clearly expressed." Benz, supra, 353 ll,S., at 147,77 S.Ct.. at 704,eve must presume it "'is primaril y concerned cvi th domcstie conditions." Foie) Bros., supm, 336 U.S., at 285, Ci9 Sect.,at 577, Boureslan and the EECZC ccjntend that the language of "I'itle VIf etrinces a clearly expressed intent on behalf af Congress to lcgistate extraterritoriatty.l"hey reXj principdlly on two provisions of the slatute. First, ptitioners argue that the statute" definitions of the jrurjsdictiotlal terms ""emplc3jer""and ""commerce""are sufficiently broad to include U.S. firms that employ American citizens overseas. Second, they maintain that the satute" "alien exemption""eIause, 42 U.S.C. 9 200Qe-I, necessarily implies that ("ongress intended to protect American citizens from employment discrimination abrc>ad,Petitioners alsa contend that eve should defer to the EEOC's cec.tsistently held pc~sitionthat Title VIE applies abroad. We conclude that petitioners' evidence, w hile not total1y lacking in probative value, falls short of dcmonstmting the affirmative congressional intent required to extend the prcjteetions of the Xtle VIE beyond our territorial borders. I.rtle VII prohihits i arious discrirninaitorj empiojment practices based on an individual "s race, cot or, religion, sex, or naticsnaX origin, Sec $8 2006)s.-2, 2We-3. An employer is subject to 'X'itle VfI if it has employed 15 or more empiojees for a specified period and is ""engaged in an industr) affecting commerce." An industrj)affecting commerce is "'any activity, business, or industry in ccjmmerce or in which a Iahor dispute would hinder or obstruct ccjmmerce or the free flow of commerce and includes an) activity or industrj kffeccting commerce%within thc meaning of the Igabt?r-ManagementReporting and Disclosure. Act of 1959 I(X,MRI)A) 1 129 U.S.C. 4-01 et seg. l."" 2000e(l1). ""Commerce,"" in turn, is defined as ""trade, traffic, commerce, transportatictn. transmission, or comrnunieaticsln among thc scvcral States; or betcvccn a State and any glace outr

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side thereof; ar within the District of Columbia, ar a possession of the linitcd States; or between points in the srime State but through a point outside therccjf.'* 8 2WeCg). Petitioners arguc that bp its plain language, l"itle VII" '"mad jurisdictional latlguage" reveals Congress" intent to extend the statuteas prcjtections to employment discrimination anj~vberein the world b j a II,S. emplc3jer who affects trade "b:tcvc.cn a Smle and any place outside thercof."' More precisely, they assert that since Title VIE defines "%S"laesW to iincIude SQtes, the District of Columbia, and specified territories, the clause ""ht~veena State and any place outside thereof"' must be referring to areas beyond the territorial limit of thc United States, Repl y Brief for X3etitioner 3. Respondents offer set erat alternatice explanations for the statute" expansive language, 1"hey contend that the ""or between a Statc and any place autsidc thereaf""\clause ""povideisl the jurisdictiotlal nexus required to regulate ccjrnmerce that is nclt cvholtj within a single state, presumablj as it affects both interstate and foreign commcrce" but not to "'rcguiate conduct exelusively within a tizreign country.'Wrief for Respondents 21,11. 14. They also argue that since the definitions of the tems "emptojer," "'"commerce,""and "industq affecting commerce," make no mcntion of "'eommcrcc with forcign nations," "("ongrcss cannot be sriid to have intended that the shtute apply overseas, In support of this argument, petitioners p ~ i nto t '1-itle 11 of the Gib il Rights Act of 1964, governing puhlie accommodation, cvhich spccifically defines commerce as it applies to foreign nations, Finally, respndents argue that while language present in the first bill considered by the House o~fRepresentatives cc~ntainedthe tems "Cc~reigncommerce"' and "fcjrcign nations,"' those terms cvere deleted by thc Senate kfc~rethe Civil Rights Act of 1964 was passed, "They concIude that these deletions ""re] illconsistent with the ncjtion of a clear15 expressed congressional intent to apply Xtlc V11 extraterritorially," Brief for Rcsgondents 7, We need not choose between these competing interpretations as we would be rey uired tc~do in the absence of the presumption against extraterritorial apptication discussed above, Fach is plausible, but no mare pcrsuasjve than that. The language relied upon by ptitioners-and it is they who mrist make the affirmative shotving-is ambiguous, and does not speak directlj tc~the y uestion presented hcre. -l"hc intent of Congrcss as to the extraterritorial applicaticsln of this statute must be deduced by inference from boilerplate language which can be found in any numkr of congressional acts, none of which hate ever been held to apply overseas, [Citationsomitted,I Petitioners"reliance on "TitleVXIk jurisdictional provisions also fbds no support in our case law; cve have repeated14 held that et en statutes that contain brc3ad language in their definitions of "'eommcrce" "at expressly refer to "'fareign commerce," & ttlot apply abroad,

Thc EEOC places grcat cveight an ... [the] ""broad jurisdictional grant in the bnham Act""that this Court held applied extraterritorial@in Steele v. Rulot~a Watch C7cj,, 344 IJ,S. 280, 286,73 S.Ct, 252,256,9"1,,kX, 3 19 ( 19$2), Brief' for Petitioner in Ncx 89-1838, p. 12. In Stee'lc, we addresscd whether the idanham Act, dcsigned to prevent deceptive and misleading use of trademarks, applied to acts o f a t1.S. citi~enconsummated in Mexico. The Act defined commerce as "alf commerce cvhich may lacvftrjly be regulated by C'ongress," 1IS ri.S.C. g X X 27. The sated intent of the slatute was "to regulate commerce ivithin the control of Cl'ongress bj maki~lgactionable the deceptive and misleading irse of marks in such commerce."'Id. Whilc recogni~ingthat "the {legislationaf Congrcss wilt not extend beyond the boundaries of the United States unless a cotntraq legislative illtent appears," the Court concluded that in light of the fact that the at legedly imlawful conduct had some effcets within thc fJnited SQtes, coupled with thc Act's ""bt3ad jurisdictional grant""and its ""sveeping reach into "all cc.tmmerce which maj lacvfully be regulated by Cc~ngress,"'"the statute was properlj interpreted as at 255,256. applying abroad, Steclc. slapr~,3 4 U S . , at 285,287, 7MS.C"t, The EEOC" attempt to analogize this case to Steele is urrprsuasive. 'I'he X,atnham Act b j terms applies to "all commerce which maj laivfully br; regulated by C'ongress." "'Fhe C_"onstitutirangives (_"ongrcssthc porvcr "Wlo regulate C'ornmerce with foreign Nations, and among the several Sta;tes, and with the Indian 'X"ribes,"" IJ,S. Const.. Art. I, 8, cl, 3. Since the Act expressly stated that it applied to the extent af Congress" power aver commerce, the Ccjurt in Stecle concluded that Congress interrded that the statute apply abroad. By contrast, Title VIE'S mc.tre limited, boilerpiate "cclmmerce'" language does nut support such an expmsive construction af congrcssionai intent. Moreover, unlike the language in the Ianham Act, 'l'itle V113 detlnnition of "keommerce" was derived expressly from the LMKDA, a statute that this Court had held, prior tcl the enactment of "I'itle VIE. did not apply abroad. MeGulloch, scpra, 372 2J.S., at 15,83 S , f t, at 674.

Congress Ial so Failed to provide any mechanisms for oveneas ernfc3rcement of '1-itle VEI. For instance, the statute" venue provisions, 2 W e - 5 (f) (31, are illsuited for extraterritorial application as thcy provide for venuc on1y in a judicial district in the state where certain matters related to the employer occurred or were located. And the limited investigative authorit> provided for the EEOC, pcmmiuing the C_"ornmissiononly to issue subpoenas for cvitnesscs and dxumcnts from ""anyplace in the United States or any rFerritoq or pssession thereof," 9 2000e-9, suggests that Congress did nut illtend for the statute to applj abroad. It is also reasonable ta conclude that had Ccjngress intended 'f'itlte VEI ta apply overseas, it would have addressed the sub*jeetof cotnfiicts with tizreign laws and prmedures. In amending the Age I>iscriminationin Employment Act of 1967,81 Sear. 602, as amended, 29 tJ.S,C7.g 62 1 et seq. (AI)EA), tc? apply abrc~ad,C'on-

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gress specifical ty addressed potcntiai conflicts with foreign law bp providing that it is not unIawful for an empIc~yerto take any action prrjhibited by the ADEA "iwhere such practices inc cdvc an empIojee in a itrorkplace in a foreign country, and compliance with [ the ATIEA] ~vouldcause such employer ... to violate thc laws of the country in which such workplace is located," 29 29.S.C. 9 623 (0(1). '1-itle V11. b j contrast, fails to address conf icts with the labvs of other nations,

Our conclusion tcxhy is buttress4 by the fact that "'Ievlhcn it desires to do so, Congress kxctows how to place the high seas ~vithinthe jurisdictional reach of a stzltutc=."Argentine Republic i. Amemda Hess Shipping Corp., 4-88 1J.S. 4-29,W , 1 U9 S,Ct. 683,691, 102 Ia.Fd.2d 818 ($%g),C'ongrcss9s arvarencss af the need to make a clear staLc"mentthat a statute applies overseas is amply dernonstrdtd by the numerous occasions on which it has expressly legislated the extmterritorial appliAct of 19713, 50 U,S,C7. cation of a statute. See, e.g., the E x p r t Administrati~~n App, 9s 240 l-2420 (1 982, and Supp. IIX d.) (defhing "T1Xnited States person" to i~lclude""an>dcjmestic m e e m (ineluding an> pmanent dc3mestic eshbltishment af any foreign mncem) and any foreign subsidiary ar affitiatc (including any permatlent hreign establishment) of any domestic concern which is controlled in fact by such domestic cmeem"') 3 24-15(2); Ct:,ast Cimrd Act, I4 'II1.S.C. 3 89(a) (Cc?ast Guard searches and seizures upan the high seas): 18 U.S.C. 9 7 (Criminal mde extexlds to high sea); I9 29.S.C. $ I701 (Customs enfcjrcement on the high seas); 500 1-5 2 16 ( 1982 ed, Cl'cjmprehensive Anti-Apartheid Act o f 1986, 22 t1.S.t. Supp. V) (definition. af national af the linitcd Sates as ""a natural prson cvho is a citi~err,of the United S&tes ..."")9 SWl ( 5 ) (A); the 1agan Act, 18 I;X.S.C, 9 953 (applying act tt? ""jnj citian ... cvherever he maj be ..."") Indeed, after several coufi5 had hctd that the ATIEA did not appliy overseas, Ccjngrcss amended 1 X (f) to provide, ""f ihe term kemployeeYineludes any individual ~vhois a citizen of the llnited States empfojed by an employer in a cvc:,rkpliace in a foreign wuntrq.""29 Ii.S,C, 9 630 (0,C'ongrcss also arncndd 5 4 (g) (11, Fvt-tieh sktes. "Dif an employer eontrc~lsa corprdtion whose place of incorprdrtion is in a hreign countv, any practice by such cclwration prohibited under this section shalt Qr: presumed tc:, bc such practice by such cmploqer-"'29 IJ,S,C_".9 623 (h) ( 1 ), The express4 purpose of these changes was to '%"mak[e]provisions of the Act appIy to citizens of the lJnit& States employed in foreign wuntries b> IJnited States cclrpclmeions or their subsidiaries," S. Rep, No. 98-47, p. 2 (19W), U.S. C'ode Cong. &Admin. News 1984, pp. 29'74,2975. Congress, should it wish to do so, may sirnilarlq amend Title VXI and in doing so will be able tc:,caiibmee its provisions in a cvaj that we cannot, Petitioners have hiled to present sufficient affirmative ei~idencethat C_"ongrcss intended Title VIE to apply abroad. Accordingly, the *judgmentof the Court of Appeals is Affimed.

NOTES I , What implications do these decisions hatre far asse~ionof federal U.S. jurisdiction aver outer space activitiesWhat guidclincs and specific language \.c~~)uId yc)u suggest if called upon to advise Congress on the drafting of a bill to pro1 ibe for federal jurisdiction of er space activities? Consider at Least the Coltowing issues: ( I ) ctenuc; (2) en-forcernent procedures; (3) conflict with forcign legal systems; and ( 3 ) defjnitions of prsons and acts over which the bill will assert jurisdiction. 2. With respect to the Smitlz case, how similar is the physical and tegai environment of Anlarctica to outer spdce'"What spcifie clrdfting issues must Congress confrclnt in asserting jurisdiction of er space activities in light cjf Sz~zithand these simif ari tics? TORT LAW

At the outset, one should be careful to clisting~tishprivate tort law h n n the kind of internationally established liabillitj adcjpted in the 1972 I,iabilitj ('onvention (discussed in Chapter S). 'f'hc tatter type of f iability athchcs ta sliairgs by virtue of the language of the Convention; it was dcsignetl to provide a means of settling liability claims betiveen rival states. 'I'he claims of the Canadian government against the Soviet tinion for cleanup costs asswiatcd cvi th the crash af the Soviet Cosmos 954 SateIIite (described in cletaif in the excerpt h n n Cohen in Cl'hapter 51, far insknce, are the type o f claims dealt with in the Liabilils:, Conprovention, fn addition, thc Outer Space l"rc"aty and the 1,iabilit;)-C_"on~iention vide h r state-level liability for damage caused b j syace obhiectsof one state to another state or its natural or j uridical persons, Quter Space 'Treat), Article VII. lindcr tl~csetreaties, thc launching state is liable for damage causcd by any launches from its territory-from the government itself, corpordtions, or even individuals. 'I'he treaties establish that the launching state is absolutel) liable for damage an Farth or in the air between Earth and outer space, (Sec C'haptcr 1 for a discussion of the end of airspace and the beginning of 0ultc.r space.) But ivhen the damage is "caused elsewhere than on the surface of the Earth to a space object of onc launching state or to persons ar property on board such a space obcet by a space object of another launching State," "ability will result only if the damage is due tcl the fault of the "3efendant""launching State or persons for whom it is responsible, I,iabifity C_"onvcntjion,Article III, See getrerally G. Zukhov cYr: V. KoIoso~t,fntert~ationalSpace Law 106 (B, Belitzky trans. 1984) (Soviet view), In thc excerpt that follows, taken from the same 0-FA Report excerpted earlier in this chapter, the law governing private activities after launch is discussed:

Law of Privnte Commercial Actiziities

OBce of Technology Assessmen6 Space Startions and the Law: Legal Issues 445@f 29M)

A, Applicable Law As people begill tcl live and cvclrk in space, i~lcidentsof damage caused bj intentional actions ar negf igcnee are eerhin to wcur. Individuals seeking compensation for damage to pprperly or personal iqjury may look either to international spacl: law clr to the tort facvs of their own or other nations. tinfortunateitj*,none of these courses af action is cvithout difficulty. ('urrent international spacc {lawsart: little more than agreed fundarnenkl principles, and no efjcient mechat~ismsexist far applli~lgthese principles tcl specific cases. National tort laws, on the other hand, arc well developed but vary drastically f'rtx~country to country, In the United States, cerlain elements of tort law are not even consistentfq applied amclng the different Spates, Furthermclre, some Shtes have recently enacted legislation that limits thc recovery of certain types af damages in tort suits.

... Arliele V1 of the Outer S p c e Treaty pprovides that slates party to the treaty bear '"nternationd responsibility far national activities in outer space," and that the activities af ""nongavernmcntaf entities" (i.e., indicpiduats,corporations, cte,) "&ha require authori~ationand continuing supervision by the appropriate State Party tc~the 'Treaty," Article V 11 of the Outer Space 'Treat> declares that a launching shte is "'internationally liable for damage to another State h r t y to thc Treaty or to its natural or juridical persons. ...""'l'he 1973 1,iabiIity Convex~tionreslates and expands cm the principles established in article V 11 of the Outer Space 'Treaty and provides spcific prwedures far making and settling claims. Although the Outer Space 'l'reaty and the 1,iabiIity Convention establish several key principles-e.g., absolute liability for damage on Earth or in the air, and liability of the Xaunching state for cithcr government or private sector activities- both treaties leave a great many q~testionsunanscvered. "Three iwnprlant problems raised by the cunent international space f iability regime are: U~zcertainwplr'cabi!il=;to activities ahr~ardspace statiorzs, Thcre is eonsidcrable doubt as to whether the 1,iability Con~ientioncould ever be applied to iqjurqi or damage caiirsed bj persons participating in space station activities. Article VIE states that thc ("onvention dcws not apply ta eithcr the "'nationals af lthcl launching state" or "Toreign tlationals ... parlieipating in the opration of that syace ohject. ...""'l'his ICUA Study \ pre~riousityexamined four different cvays tc~own, opcratei.,and register a space station, No matter which af these cvas chosen, it is likely that the pafiicipants would either be "nationals of Ithe] launching sate""c.tr 'Toreign naticlns ... participating in the operation of that spacl: object, ..." "There-

fore, the I,iability ('onvention cvoufd not apply For examplc. under article Vfl of the 1,iabiIity Convention, if a U.S. astronaut \yere killed by the negligence of either another U.S. astronaut or a foreign astronaut, the family of the If.S. astronaut could not file a claim for damages under thc 1,iability C'onvcntion bccause the LJnited Sbtes was the "hunching skte." b c k ofatte~ltionto dczumge caused by, cznd the (i~ibiEi9 c$ inc^lit*idlrals.1See DeSaussure and Haanappeli, A linified Multinational Approach to the Appiictation of Tort and Contract Principes to Outer Space, 6 Symcuse Journal of Internation& Lacv and Commerce 1 ( 1978).f Both the Outer Space 'Treatj and the I,iability ('onventitrn focus on damage caused by space objects rather than on damage caused by individuais in space. "This is understandable because the primary concern of the drafters was probablj to offer sclme degree of protection from Fdlling ar colliding space objects, 'f'hc crash of the radioactive Sociict satellite, Cosmos 954. in Canada was an example of the kind of injury best suited to the prcjtecticlns of the internationd treaties. On a space shtian, hocvever, individuait personal injury actions resulting from A good example of the inQntiona1 actions or x~egligenceare Xikelq to predc~~minae. Liability Cont.entitm'S lack c$ attention to the role of indiv iduals in space can be seen in its appliicaticsln af the doctrines of "'strict" md "Pdult" fiaabitity. According to the terms of the treaty, a launching sl@c whose spxe objects cause clamage on the sudace of the Earth or to aircrafi in flight is strictlj liable for the damage caused, SQtes whose space abjmts cause damage to other abjmts in space are iiable only after Pault has been esmblished, Ho\vever, no such division betktreen strict liabiliitj and fault liability is made with respct to individual conduct. 1t is generally held, at least in common law countries, that strict liability applies to cemin abnormally ctangerous conditions and activities. [DeSaussureand Haanappef, s~dj?r~r, j Since, at present, mcjst space activities might be regarded as ""anormallq dangerous," onc might argue that 'Fdul t" "should play a diminished role in space. [It might be argued that eliminating the tlecessity to prove Fdult and thereby forcing all =tors in space tct cope with a strict liabilitj scheme cvoufd be social1y desirable for many af the same reasons that strict liability is uscd on Earlh; that is, to make those engaged in dangerous aetit.?itiiesliable far the consequences of such actic ities, I Howet. er, such a requirement could diminish the purf space opprtunities by placing a heavier liability burden an suit ~ 3 commerciai these activities. On the other hand, one could also argue that all persons on the spacl: station are to sclme degree engaged in an ""abnomaltj dangemus'" activity and that this is quite different from the situation on Farth ~vhcrethe injured party might t~otbe a pdrtieipant in the activity in question. [The tinllocving pardgraph cvas in a facltnote in the original. l Maritime taw offers somc interesting insights into the question of liability for injury to individuals on board a spacc statiox~,LXnder maritime law, the shipwvner must f~lrnisha t. essef that is seawvorthj in all respects. (see Nitcheff v, r T r a ~ ~Racer, I ~ r Ine,, 362 1J.S.539 [ 190f.)'The shipt?t.vnerkduty is nondefiegabfc

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and the fact that the shipowner used ""duc diligence"' to make the vessel scacvorthy is no defense if a member of the sbip"screw is injured bj some defect. What constitutes a defect has been broadly construed, and so has the question o f evho is a seaman for the purpose of bringing an unseacvarthiness action. The concept of ""sa\vorthinessW-CI~in this case, ""space\vorlhinessW- may evcntuall) br; a usefut addition to space laiv, as it cc~uldserve tc~prutect space workers and transfer the risk af liability to the spacecraft owner, cvho presurnably, is in a better position to assess the risks of a parlicular activity. With respect to Iialtilit> as he~~tieeu? spacefdrers, the concept o$ fault maj br; more useful. Horv fault ~voutrlbe detemincd and what dcknses cvvuld bc permitted (e.g. contrihutoty negligence, fello\v servant rule, assurnptioll of risk) are sclme of the most challenging questions that are like15 tc~accompany the development of a tort law for space. NO eflictl'e~ttmec'!zatzr'sm "fir resol~~r'ng disputes between individraafs. Serious questions exist as to cvhether current international laivs could be applied tcj assist individuals, T'hc 1967 Outer Space Treaty and thc IgiabilityConvention establish no cause of action, no courls, no rules of procedure, and no method of er~florcing even agreed resolutions, hcking such mechanisms, claimants are forced tcj rely an the dipIr7imatic procedures commonly used between nations. Article VXIX of the 1,iability Convention requires that the sate-tlot the injured person- present the claim to the ""Li~nchingstatew-not the person whc~ caused thc injury, Recause nations and not individuals arc: involved, under article 1X, cIaims for compnsation must be presented "Ythr~~ugh diplomatic chat~nels,"" If the tcvcl states in question dcz nclt have diplomatic relations then the claimant may present its claim through another state or through the Secretary Ciencral of the lXnited Nations. Assuming that a claim has been fikd and diplomatic negotiaticjns hatre failed for a jcar, then article XIV authorizes the parties to set up a. ""C'Xaims ('ommission"' compascd af thrcc members (the two parties and an agreed chairman).

Perhaps in anticipaticjn of the problems mentioned above, the dmfters of the I,iability Convention stated in article XX that: ""Nothing in this Convention shall prevent a State, or the naturpal or juridical prsons it might represent, from pursuing a claim in the courts ... oE a launching state,'" Indeed, gib en the c ague naure af thlc I ,iabil i ty ('onven tion as compared with the ~vc.1f -dcfi ned slate af dorncstic law, it ~vouIdbe unlikely that any individual would ever use it to obtain compcclnsation for iqjrxry. /See, e.g., March, '7 Hastings International Dispute Resolution in Space, and Comparative Iacv Revic\v 21 1 (1 983)-j Waving ackno\vlediged this, it is then tlecessary tc't inquire ~vhichdomestic laws cvould be applicable to a gicen case, Whenever individual relationships transcend thc bt~undaricsof onc jurisdiction, conflicts arise concerning the ap-

plicable substantive law, the jurisdiction of naticslnal courts. and enforcement of kreign judgments. For example, evev nation has its own methods for choosing the fact. applicable in a specific case. 'The most commcln of these are: loci delecti, that is, thc law of the place where thc offcnse wcurred, Thc I Z ~therefol"c2, S not sub.iect to national law, has Cluter space, being YGZSC O P ~ ~ ~ Mallcl, no clear "llaiwv of the place,'" Whether or not the !ex loci delecti rule can be applied to the space station rsiill depend on how nations agrcc to cxercist jurisdiction ancl cotltrot over the sinace slation. f the forum cvhere the case is brought. 'This apThe !exfin', that is, the law o p r w h could bc used on the space station, but again, cvoufd depend on how qucstions of jurisdiction and control are resolved, 'I'he law o ~ f 'the state having the greatest interest 'This rule- probably the prevailing li.S, standard-looks to which shte" contacts with the incident are the most subslat~tialand applies the relevant laws of that slate. Because of its fkexibility, this rule could hate the greatest appticabilitj tc~space station activities. An imporhnt alternative (at least in contract, if not in tort cases) cvould he for the p'aflies to stipulate both the applicable national law, and the applicable hrum. 'I'his prwtice is frequentlj foifowed in muttinational business contracts. '1-his app r w h has two major defects. First, such stipulations cvould constrain only those who signed them. As spice slations become larger, empIoying greater numbers of pople, it may be impossible to anticipate and draw up contracts to cover all the interpersonal relationships that could develop. Second, some courts l ocsllc with clishvc~ron cotltrdets that attempt to divest-them of jurisdiction. [See the introduction tcl this chapter. j Given thc current level of space activity, another solution to the problem of Itiability might be to negotiate interpaay ~vaiversof liability, 'l'he limitation of s~rch agreements is that the] c;ln14 ccx er signatclries. Interparty cvaivers of liability were used in the 1 W3 SpacelabAgreement ISpace I,aboratorj): Cooperative Program, 24 U.S.''lT.204.9; 'TXAS 77223, the 1985 Memorandurn of Understanding (MOll) regarding Phase B of the space station negotiations !See "Memclrandum of Understanding Bet\vecn the Naticslnal Aeronautics and Space Administmtion and the Eurc3pean Space Agency far the Conduct of R~rallelDetailed Definition and PreXiminaq Ilesign Studies (Phase B) l,eading rFoct.arb Further Coopration in 'The ile\~elapmcnt,Opration and Utili~ationof a Permanently Mantled Space Station," hfulle 3, 113851, and are regularly used in shuttle launch agreements. Article I {(A) of the Spacelab Agreement, for example, provides that the linited SQtes "shall halie full responsibility for damage to its nationals ... [resulting from1 ... this agreement." "'l'he ESA nations accept a similar ""esponsibility" udder this article, In other cvclrds, the linited Startes cvclufd not sue ESA for damage to {].S, nationals or property and vice versa. However, article 11 (C") acknowledges that in the event injlaty is caused to prsons not party to the agreement, " . such damage shall be the responsi bilitj of ... fthe llnited States or E M ] depending on where thc responsibility falls under applicable law." "'fihc " ,

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1 985 space sbtion MOU bctcvc.cn NASA and ESA extcnds the interpar5 wah~er of Iiability to the Phase B contracton and sukotltrdctors; however, third parties are still nclt covered under the agreement.

B. Future Developments C'urrent international space taw will continue to be an effcctit'e means for allocating respnsibitity and liability for incidents which occur between nations, For example, should a space object o f one nation fat1 on the territory of another nation or should one nation" space abject collide with a space abject of another nation, the principles found in the 1967 Outer Spice 'rreaty, the Registrdtioa Coni ention, and Liabilitj Convention cvill, cvhen ct>mbinedwith serious diplomatic efforts, be sufficticnt to resolve these probtcms. As space activities increase and technologies grow more complex, some refinement of these principles will probably br; necessary; nonetheless, the existing framecvork is cvorkabte whevr app l i d to national activities, Unfc3rtucrately, the legal regime for redressing individual grievances resulting from spacl: activities is not nearlj scl well established. As discussed above, internaticslnal space taw, with its heavy reliance an diplomacy, is too unwieldy for most tort actions betbveen individuals, and negotiated interparly ~vaivertoof liability do not address the prcjblem o f third-party plaintiffs, National tort laws. although well defined, differ considerabfy and no conscnsus exists on when to apply the law of one or another tlation. "The actions tlecessaq tc~resolve this problem trarj with time: 3lzort-term sohdntzs (.~hrntt/c? activities). Because the shuttle carries muf tiplc and often multinational pdyloads, NASA has had to develop policies regarding both Xiability between mission parliicipants (interparty liabilitj) and liability with respect to paaics unrelated to the mission (third-party liability), [See Rrorvn, Ccjmmerciaf Law and Xiability Xss~~es of the Spice 'l'ranspsrt. System, 23 Air Force iaiv Review 424 f 1982-83) discussed in the ncjtt=sat the end o f this excerpt, With resyx=ctto intcvaay liability*the standard shuttle launch agreement conbins a mutual covenant not to tosue similar to the one htind in the Spdcelab Agreement. 'hcover the pcfssibilitj of third-part> suits, NASA also requires shuttle pajtoad ocvncrs to purchase insurance to protect against damage to property and injury to persons unrelated to the space activities. 'rhi s third- party insurance cvcluld, for example, be irsed tcl compensate indic iduals on Edrth for damage theq sustained as a result of de-orbiting space debris. "The liability procedures currently used by NASA are sufficient while the U.S. Government operates the shuttle, the shuttle crews are small and cvelf-disciplined, and eomrnerciaf insurance is available. As space activ ities become more complex and numerrjus, existing procedures will have to be reexamined. Mediz~rm-tern2s ~ l u t i s n(goverrt~ne~t ~ &Yj2Lzcestutisvrs). l,iabilit_t issues on the first generation of government-owned space sbtions could be handled by using

thc mcthods similar to those NASA now employs on the shuule. 'f'hc space S&tion ocvner and operator, whether it h one nation or a cotlsortium of nations, coutd require at1 other naions to cvaive their right tc:, sue each other and require all participants to seli f-insure or purchasc cornrncrciaX insurance for third-party cIairns. As space stations grow in size and complexity and became staffed bq civilian employees, it will probably bc nccessary to develop more flexible rulcs for cornpensating individuals iqiured in spice. A logical next step might be to negotiate international agreements similar to the NATO Status of Forces Agreements that would designate cvhich nation" facvs cvvuld apply in ~vt-tichsituations. As mcntioned above, it is not cIear ~vhett-rer all: t~ationalcourts ivouicl kel eonstru;rined to respect these contmcts. b ~ z g - f e r i asalulrlurzs (private space staticllrrs artd beyond). Eventually, space travel will be quite common and individuals may visit neighboring space sbtions mlrch as cve now visit neighbol.ing countries. A rule could develop which places an thc space traveler the burden to know the taw of the place visited: that law kfirould govern all: civil and criminal actions resulting from the tr;lveierasvisit. Alternaticety, nations maj strive to achieve international uniformity in the application af ""enflicts rules." "The 1955 "'Hague (Jonventian on thc l a w Applicable to the Sale of Corpcjreal Mo7tiahie Clbjects" and the I973 ""ague Convention on the Lacv Applicable to Products L,iabiliiyWare examples (l'such attempts. fn the 1 W3 Products 1,iability Convention, nabions agreed to apply the law af the habituaI residellce of the victim, or subsidiarily, the law of the place where the darnage has occurred. Similar international agreements far applying Earth law tcl space activities may k necessarj). Finally, naticslns may attempt to create a unifarm subsantive totort law system for activities in 0ultc.rspice. [International aviation taw conientions such as Warsacv (49 Stat. 30W; '1:I.A-S. 8%; I,J.N.'F.S, 11) and Rome (3X 0 U,N.'f.S. 181) might serve as mc3dels. 1

NOTE ON LIABXLXTV: APPROACHES AND STANDARDS A tlumber of theories have been advanced regarding the open legal q~testions concerning private part] liability identified b> the 0'FA Report. 'The consensus sccms ta be that space activities should give rise to absolute liability (is., liability ivithout Fault) where they are the proximate cause of personal or prtjperty damage on earth or in earth airspce. See, e.g., A, Hale>, Space Law & Got ernrnent 2 3 7 4 0 (1963); Haanappc'l, Product I,iabifity in Space I,acv, 2 Houston Journal of international Law 55 (1979). What these proposals do, in effect, is to impart the pril~ciples o f international liabilitq developed in the major treaties intcl thc private law of torts. Thus thc samc principles that apply to accidents ktcvccn

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space objects af two nations would be rnade to apply tc? accidents bet~vecnindividuals or betbveen individuais and a single tlationai. Extending the analogy further cvcluld require one to advocate a fault-based tiabilitj regime for accidents occurring in space, in keeping with the treatment of space mishaps in the Outer S p c e 'I'reaty and I,iability Convention. f i r more on these nation-to-nation Xiability issues, see Chapter 5. The strict liability principle for space launches is based an the notion that these are ""utrdha~ardousactivities,""that is, activities \v hich "necessarily inF ofve a risk of serious harrn to the person, land or chattels of others cvhich cannclt be eliminated by the exercise of utmost care" and which are ""not a matter of common usr.tge." Restatement of Torts $ 520 (1977), Resatement (Secotld) of 'Iijrts 3s 5 19,520 ( 19'7'7).fn the balk cited above, nclted earl1 spacl: lacvjer Andrew Haley rnade the point that early in the historj) of aviation courts held that airfright, and even balloon tlighrs, were ultrahaz&rdous,but that a tlegtigellce standard for airflight conduct had since kcome the dcjminant rate. A, Hate), sEfpra, at 238-39, This rule cvas stated in the liniform Aerc3nautics Act, a codification of the tlegligel~cestandard adopted bq t~renty-fourstates. See Prentiss v. Nation& Air Lines, Inc., 112 F. Supp. 306, 308 (D.N.J. 1953). See c.zls.0 Soyd v, White, X 28 Cal. App. 2d 641, 65 1 , 2% R2d 92,99-1 00 ( X 954) (expressing the getleral view that an airplane is not an inherently dallgerous instrumellt when handfed by a comwtent pilot), But see Restatement (Second) of "Forts fj 520A X ( 977) (maintaining strict liabif ity standard despite authority to the contrarj)). that, From his review of the historical record, Haley collel~~dcd the operator of'a rmiier range or semice in the years to colne can expect that his activities wilt be viewed by the courts as being uItrahatardorrs and that, at Ieast until such operatioi~sbecome cornmonpiaee, he can expect to be held liable for damage caused by an errant rocket af though he is free from negligence. As technology advances and rc~cketsbecome less of a novelty, it is probable that the rule will be changed and that, as in thc casc of aircraft, liability will hc bascd solely on Pat-rutt.

Xci. at 23940 (footnotes omitted). But cf. Deem, 1,iabiIity of Private Space 'I'ransportation Companies tc~Their Customers, 5 1 fnstlrance Counsel Jcaurnsll 3.1-0, 350-5 5 (1 984) (collecting cases Fvherc: testing of high wrfomance aircraft and rocket motors gave rise to strict liability for propeay damage on the ground, e.g., from nclise and vibrations stemming from supersonic flight), Note that Hatey was cvriting in the era prior t~?the Outer Space l"rc"at4 of X 967 ldiscussed in Chapter 3) and the 1,iabifity Con~ientionof' 1972 (discussed in Chapter 5). Note also that the liability standard for the operation of aircraft has beeclme less important in light af the grcslwth of strict product liability for defective products, including airplanes and related equipment, See, e.g., Wer~ldonv. Seven Bar Flying Service, Inc.. 716 F,2d 1322 (10th rir, 1983); Nesselmde v, Executive Kecchcraft, he,, "707S.W.2d 3"1 (MO. 1986);El. Karry/,Choice of lliacv Probtcms

in Cieneral Aviation Accident Cases: I hbil ity and T>arnages, in General Aviation Accidcnt Litigation 65 (13racticing Law Insti tute 1986) (PL1 Litigation and Administmtive Practice Course H a n d b k Series Litigation No, 3 12). See generalZy. Priest, The Current Insurance C_"risisand Modcrn -Fort Iacv, 96 Ydlc Iacv Journal 1522 f 1987) (discussing drastic increases in insurance premiums t~ecessitatedby rapid11 escalatillg damage a~vardsin tort cases, incl~rdingthose based on strict liability); Rrady, WVVf? Products 'rum Enta I,iabilities, brtune, March 24, 1986, at 18; WiII Street Jourt~al,Januaxy 2 1, 1986, at 3 1, col. 5. C ' Dillingham & Oldham, Detrelopments and '1-rends in Aviation Insurance, 2 1 'Fort Insurance Law Journal 44 ( X 9115). Neveflheless, negligellce of one type or another is often assefied as an alternative basis of liabilitj in aircraft accident eases. See, e.g., Brcjcjks v, llnited S&tes, 695 F.2.d 984 (5th Cir, X %3); Itz re Air Crash Disaster Near (_"hicagaIf f ., 500 E Supp, I O U fN,D. 111. 1980), ~ 8in %part nrzd rev'd in 12avt, W F.2d 594 (7th Cl'ir, 1981), cert. derzr'ed, 454 IJ,S. 8% (1981). Cf; Prclrduct L,iability in Air and Space rrransporhtion (K. Kcxksticgel ed. 19%). In, fact, thc standard of care differs from state to state in the United S"Etes. See P. Foss cYr: R. AcJams, 13re-Trial Strategy in American Air 1I)isasterLitigation, 14"f"ranspomtianl,aw Journal 327 ( 1986) (describing different standards of care and attempts by counsel to bring cases in more ""dvordbie"" states). Although the amcjunt o f damages a private firm maj have to pay is unlimited, several bctors- somc in place, others only possibilities- have the ptential to limit crlamages. First among these is the regulations establishing the amount of insurance a firm must can] tc~legall) launch a private payload into space. Although many launch service cornpanics have subsbntial assets (e-g,, Martin Marietta, Mcl3onnell Ijouglas, or Gcneml Dynamics), some are small: "*a-~rps"' for whom the insumnce coverage is for all practical purposes a ceiling on liability. NcXe, however, that thcrc is some reason to klieve that a court ivould "'pierce the corporate veil" if it found that a launch company was too thinly capitalized given the risk inherent in its activities. "This is one reason why there is sc~much interest in limiting liability in the launch industrj). The second Factor that may limit damage awards is the possilbililt;y of legislation tcj place explicit limits on damages that maj be collected in the event of a. space launch disaster. This ~vouldbe analogous to the Price-Anderson Act of 1957, Pub. X,. No. 85-256, 9 4, 71 Stat. 576 (l957), m merfded by Act of September 29, 1%5, Pub. L,. No, 89-2 10, 3 1, 79 Stat. 855 f 1965) c.znd Act of December 3X, 1975, Pub, 1,. No, 94197, $8 2-14,89 Stat. 1 1 1 1 (19'75) (codified at 42 I;X.S.C, 22 10 f 1995)). 'l'he Price-Andersot1Act limits the liability cof tluclear energj companies in the ekent of a disaster. 'The Act has been criticized, hotvever, as an unfair subsidy of a dangerous industry-a criticism not like1y to bc as effective against the space indrtstry, See Brauer, The Price-Anderson Act: A Constitutional Meltdtjwn of "Iitrt tiabilitj, 8 Hastings Constitutional taw Quarter15 731 (1981).

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Some comnncnbtors have callied for a Price-Anderson Act for outer space activities. See A. DuXa, Management of Inter~artyand "Third-13arty1,iability for Routine Space Shuttle Operations, in Space Sh~tttIeand the Law 93 (U, Miss, L. ('enter, Monograph Series No, 3, X 980). See also Roseo, 'f'hc linitcd States Cioverllmerrt as Defendant-Cllze Example of the Need far a 1;Xnikrrn 1,iabiIity Regime tcl Gottern Quter Space and Space-Related Activities, 15 Pepperdine law Kevieiv 581 (X9881 (pointing out widely divergent damages that ~voutdbe paid to third party claimants h n n different states in suits against the government far a space-related disaster, and calling far unified tort claims regime for spacerelated accidents), In his papcr Duta also calls for ( l ) mardattlry cross-cvaivcrs of liability among all parties to commercial space cotltracts; (2) amendment of the NASA Authorization Act to permit NASA to indemnify users (E the space shuttle against the risk of toss of satellites and othcr payfoads; and (3) a budget far on-the-spt settlemellt of claims against NASA for property damage on earth due to launch oprations, 'I'he seeclnd of these proposals cvas adopted by NASA; Section 2458b of the NASA Act now reads as follows: 42 U,S,C, 3 2458b. Insurance and Indemnification

(a)Aulf?orization The Administmtion is authori~edon such tcrms and to thc extcnt it may deem appropriate to provide liability insurance for ally user of a space vehicle to compensate all or a portion of claims bq third parties for death. Wilj i~l,jug,or foss af or damage to property resulting from activities carried on in connection with the launch, oywclrdtions or recovery of the space vehicle. Appropriations available to the Administration may be used to acquire such insurance, but such appropriations shall be reimbursed to the maximum cxtcnt practicable bp the uscrs under reimbursement plicies established pursuant to section 2.37366) of this title,

lindcr such regulations in conformit;)-with this section as the Administrator shall prescribe &king into account the availability, cost and terms of liability insurance, any agreement betiveen the Administration and a user of a space trehicle may provide that thc linited States will indemnify thc user against eXaims (including reasotlable expenses of litigatioxl or settlement) by third parties for death, bcjdilj i~l,jury,or loss of or damage to prcjpertj resulting from activities carried on in eonncctian with the launch, operations ar recover>/of the space vehicle, but onlj to the exterrt that such claims are not compensated by Iiabilitb insurance of the user, prm ided that such indemnification maq be limited tcl claims resulting from other than the actual negligence or wilfful misconduct af the user,

Pub, 1,. 85-568, title 111 5 308, 93 Stat, 348; Pub, 1,. 1979.

. 8 6(b)C2), Aug. 8,

New legislation, discussed in the tlotes accompanying the 1984 Commercial Space I,aunch Act, iafra,has been passed to prox ide additionsll limits on liability, tJnfortunatcly, it was passed aftcr this book \vent to press, sa it is not cxcerpted here. 'l'he tlotes, itgra, praliicle a clear outline of the Xiabilitl limitskperation, however, and the polic:, issues anal>zed here remain just as relevant as bcfare. l"hc Office af Commercial Space 'f'ransporlation, which is the centrat federal agency respotlsible h r regulating the commercial syace launch industry, has expressed its intention to exercise flexibility in its re\ iecv of launching companies7nsurancc arrangements, \vhich review is authorized by Executive Clrdcr 12465, Feb. 24, 1984, allcl the Commercial Space X,aunch Act, codified at 49 IJ,i";.C.fj 7010Z ( 1995).'This is in keepillg with a number of' comments the Office received in response to an Advanced Notice of Proposed Rulemaking an the topic of minimum ins~rrilncerequirements for commercial space launches. See 50 Fed. Beg, 1928(M1,M a j 7, l %5, LIABXLXTV FOR DAMAGE TO CARGO

So Pdr, cve have k e n focusing an thc various theories that have been invoked to eslablish liabiIi9 for personal injury and property damage arising from aircraft accidents, But what Iegal standards apply in the ekent that cargo (m hoard an aircraft is damaged? In the ease of aircrdt, goods damaged on interwationaI *lightsare covered by the Warsatv Convention, which limits liabilit:, to $9.07 per pound or a maimum o.f $75,o()O. See Keukema, No New 1Zcal csln 1,iabiiity 1,irnits for fnlemational Mights, 18 Xntemdtional lawyer 983 ( 1984) (describing Supreme Court case ref~lsingto abrogate liability limits o.f Warsakv Ioadas specified in Exhibit A, l,aunch Services far IN'I'ELSA-F, 1.8 Lau~lchSlot-A period of a minimum of 30 calendar clays within the Launch 13erioddurillg cvhich a l,aimch may weur, 1.9 hlilnch Erne-'fhc insbnt that the ignition of thc Titan IIE sotid rackct motors is scheduled to take place within the f,aux~ch Windoiv dcflned in hours, minutes and seconds in Greencvich Mean 'Time (GMT). 1 , X 0 h ~ n c Wndsw h -?"he time pcricd(s) within the I,aunch Day csbbf ishcd h n n requirements defined in Exhibit B, Inte~aceControl Document when the Launch maj (~ecur, 1 , I X Party or Parfies-f N7'ETiSAPFor Martin Marietta or b t h according to the usage. 1.12Plzykoad- Aff prcjpertj to br; fltlwn abard the 'Titan l l1 which is proi ided bp fN7"ETiSAF9its contracts or subcontmctors. 1.13 Pqload Missr'o~z-"I"hemission of' the R~yloadafter sepamtion from the '1-itan Ill. 1 , X 4 Rtiflr.gJae-A priority Iaunch, without charge to IWEI .SAT subject to thc Best Efforts of Marlin Marietea, arising h m Failure of the "I"iVat1IXX Mission to achieve its mission objectives causi~lgthe 13ajft3ad nclt to achiet.e a geo-sq nchronous transfcr orbit, 1.15 Replmefnenl h u n c h - A priority bunch, paid by INrX'EX,SKT, subject to the Best Effor;t;sc$ Marlin Narieta, arising frorn failure of the "Etan f l1 c3r the Paylcslad to achieve its mission objectives for any reason. 1.16 Shaved Launcll-A I,auneh 0x1 one 'l'itan 111 of two BayIwads ~lneof which is the 13ayLoadsupplied by IN'FELSAI: 1 , X 7 Tl~irdPar@- Any person or entity, including the linited States Government or any agency, department, or instrumenblity thereof, which is not a Party to this Contract;, 1 , X 8 Efarz Ill--The ?"itanIaunch Vchicle, cxci uding the Pdyload, utili~cdto furnish Commercial bunch Services. 1.19 Etay? 111Mission-"rhe mission assigned to the 'Titan III as specified in Exhibit K, Interface Control Xlocuxnent.

Martin Marietb. in cotlsideration far payment made by 1M'X"ELltiP;i'under this Cl'ontraiet, shall in accordance with the terms and conditions contained herein.

make its Rest Efforts to furnish launch Scrttices for the puvose of delivering IPJ"I'EX.,SA'X'% Pay load into orhit from Cape Canaverdl Air Force Statiox~ (C(:AFS). Gape Canatreral, Florida, in accordance with the fclfloiving: 2. X launch Services in accordance with "Launch Scrviccs for INFEXASKF9', date 221 May 1987, atbched and incorporudted by reference into this Contrdct as Exhibit b'Ae'' 2.2 Physical, Functional, Mission and Oprational interface requirements in accordance \vi th the """liean 111 to f P;I"X'Ef,SAr VX Inteeace Contrrjl f>ocument (ECEl)"",ated 21 Nay 1987, attached and incorporated bq reference into this ('ontract as Exhi bit '-B". 2.3 X;?espotlsibilitiesof IN"X'E1,SA'I' in aeeordallce with ""XN'fLSA'l'"s Responsibilities"" date 21 Nay 1987, attached and incorporated b j reference intcj this ('ontmct as Exhi bi t '-C''.

Article 4-Schedlllefor De/l'l*epqf Pqload IN't'EI,SA'r shall furnish, at its expense, to Marlin Narieta at the location and

in accrslrdanee with the schedule set forth in Exhibit C, IN"FEXASA-F% R~espnsibilities, each Payload to be fiarrnehed, which shaII meet the requirements of Exhibit B, lntedace Control Document, for integration and assemblj intcj the 'Titan IlE. 1N7"F;;ldSAFshall dejivcr thc PdyEoad checked out and ready for integration onto the 'l'itar~111. Article 5- Co1'1113leti0~~ (Ifk~anclzServices Martin Marietta shalji be deemed to have completed the launch Services for each X,aurrcb under this Contract u p n the intentional igr~itionof the Titan ftX sdid rocket mcjtors, except for deiiveq of post-laimch data identified in Exhibit A, launch Services for EN"I'ET,SAT. Article 6- Best EJf:ort;~ Replncefnenl Lnurtch 6.1 IN't'EI,SA'r maj request a Replacement f,auneh in the event that fclfloiving any X,aunch under this Contract, themT"i&n IXX Mission or the Pdytoad Mission has not been accompIished for any reason. 6.2 'The request of IN'I'EI,SAf' for a Replacement l,aimch mirst be in cvriting and received by Martin MarietQ no tater than ninctj (90) days after launch, l"hc rey~testshaII indicate the X,aurrch Period desired for the Replacement 1,aunch. 6.3 Martin Marietta shall make its Best Efforts tcj provide a Replacement launch within ttvclve ( 12) months from thc receipt of INTEI,SA-F%request and shall infc3rm IM'X"E1,SP;I' after receipt of the request if a X,aunch Clpporturrity exists cvithin the requested Launch 13eriod,ff a l,aimch Opportunitj does not exist for the X,aunch Period requested by lN?"El,SKr%then the Pdfiies wilt negotiate in

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gcslod Paith for a mutually acceptabfc 1,aunch Period subject to then existing bunch Services commitments to others. 6,4 The replacement 13ayload shall be designed, built, tested and integrated with the Titan TXI in accordance with thc rcquirerncnts of Exhibit K, IntcrPdce Control I3ocurnent and Exhi kit C, IN"TE1,SAl"'s Respnsihili ties. 6.5 INTELSAI' shalt1 pay Mart;in Marieth the same price for the Reptaccsment launch as paid for the Iauneh bcing rcpfwcd sulbyicct to escalation in accordance with AITX"ECl,E I I , ECONOMIC PRICE ADJtllS'I'MEP;I"f.Additional charges shall be paid by tN'I"ELSA"E'Cow an> 'Etan llf or other equipment mojdifications that may k rquired, increasd charges that may impsed by thc Government and any charge for rearrdnging the hunch schedule which Martin Marietta may incur on account of prclviding IWI'ELSA'II a priority Replacement Launch, Pa) rnent for Replacement launch Serttias shall bc made by Tfii'FEIEdSA-rin a ~ a r h n c ewith the I'ayment Due Dite schedule for Erm Xaunehes set forth in ARTIC1,E 8, PAYMEN"1' FOR LAIINCW SERVICES. 'I'he first payment for Replaccsment himeh Services shall bc made by lWF;,I,SA-Fat the time af witten agreement of the Parties for Martin MarietQ to provide Replzernent 1,auneh Serviws. Such tkst pay-. ment shall include alit cumulative sums necessarj to make the pajments current, including escalation, depending on where the Rcpif acement l aunch schedule Fat l s within the pdy ment schedule set h f i h in AKX'ICLE 8. 13aymentsshall 1-K: made by IN'I'E1,SAI' in accordance cvith AKI'tC7Lit;;10, 'I'EKMS QI-' PAYMENI: 6.6 The Replacement l ~ u n c hshall be provided in accordance with the terms and conditions of this contract. 6.7 '1-he remedies set forth in this AKIIfC:L,E 6 shall be the sole and exclusive rcmcdies af the Ruler from Martin Marietta in the event the ?-'itanIll mission Fails for ally reason. Article 7-Pricesjor Laurzelz Services '7.1 Firm Launch Serf ices- t N'I'ELSKE' shall paj to Martin Marietta, for the firm l,aunch Services performed under this damage, claim or cost resulting from an infr'rngement or claim for infringement of the patcnt rights or any other intcflcctuaX prc2pcrty rights of a l"hird Party which may arise from the design or xnanuFdcture of XN'f fr;,L,SA'I"% X3ayloa:d. 17.7.3 "I'he rights to indemnification provided hereunder shall be subject.to the observance af the foIlorving conditions: a. 'l'he Party seeking indemnification shall prr>mptlq advise the other h r t y of the filing o f any suit, or o f any ~vrittenor oral claim alleging an infringement of the third par53 rights, upon receipt thereof; and shall pravlfdc the indemnitor at its request with copies of all relevant doeurnenktion. b. 'The Part> seekillg indemnification shall not make an> admission nor shall it reach a eornprcmkse ar settlement ivithaut the prior ivriiten approval of the other Party which approval shall not be unreasonably ivithheId or delayed, 172.4 "I'heParty required to hold the other hamless shall assist and shall have the right to assume, cvhen not contrary to the governing rules of prwedure, the defense of any claim or suit andior settlement thereof9and shall pay all reasonable litigation and administrative costs and exvnses incurred in connection cvith the defense of any such suit, shall satisfy and judgements rendered bp a coua of competent jlarisdIctic>n in such suits, and shall make 311 settlement payments.

Article 2 1 -Applicable Law This C'ontmct shalli be governed by, subject to and construed according ta the laws of the Sate of Maryland, United Sates of America. Fach h r t y agrees to

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cornpl y with alji appficabfc local, state, fcdcral and foreign laws and shall indemnify and hold the other harmless h r n ally damage a Party incurs from the other Party not being in compliance cvith such llzwvs. Article 22- Export Require~nekzts 22.1 "ThisContract is subject to all Unikd States laws and regulations reIating to exprts and to all administrative acts of the t1.S. Czovernment pursuant to such taws and reguiatians. 22.2 'l'he parties to this Contract agree that the obligations conbined in this Cl'ontract shall not aRect.the pedomance of an] obligations created bq prior contracts ar subcontracts which the partics may have individually or collccticiely with the I;X.S. Government. 22.3 The technical data subject tc~II,S. exptlrt regulations and labvs and furnished undcr this Contract to INI"E1,SKF shall not be rctransfcrrcd except in compliat~cewith applicable U.S. law. 22.4 IN'I-ELSKI' indernnif ies and holds Martin Narietta harm1ess for all claims. demands, damages, costs, fines [,l penalties, attarneysTces and all othcr expnses arising from Failure of INrI'EX,SAA'I"to comply with this ARTICLE 22.

29. X Each Party agrees to support the other in atraining any required pcrmiks, l icenses andior approvalS. 29.2 Martill Narietta shall undemke to register the "Etan If1 with the appropriate launching state or states as required bp the Convention an Registration of Clbjeets 1,aunehed into Outer Space of 1974 f28:Z U.S.'I'. 695 (1976-77)i. 1M'I'E-:L,SA"I-and Martin Marietta shalt cmperate with the apprclpriate launching state ar states in providing all informaticsln required by such state ar sutcs for state registration ancl registration in the register of s p c e ob-jeets mainQined by the Secreta~ -C;eneral of the Ilnited Nations pursuant to the Convention on Registraticsln af O@jcctsI~unchcdinto Outer Space,

Martin Marieaa Corporation v, International TeEeeornmtrxrications Satellite Orgarrimtioxl, 991 F.2d 94 (4th Cir. 1993) ERVIN. Chief fudge: Martin Marietla agreed to launch a satellite for the International l"ctlccomrnunicatiotls Satellite Clrganization (INrX'EX,SAT), but the satellite ended up in a useless orbit. Nartir~Narietta then sclught a declaratoq judgment that it owecl IN?"EI,SKF nothing undcr the agreement bctwecn thc parties, and INTF;,X,SA-F cc.turrterelairned for negligence, negtigellt misrepresentation, gross tlegtigenee,

and breach of contmct. Martin Marietb moved to dismiss INTEf,SA-F% countercIairns for Failure to state a claim upon which relief may be grilnted, under Federal Rule of CJvil Procedure 1 2 (b) (61, and the district court granted the motion as ta alli of IN?"F",X,SA'l'%celaims, Finding that EN?"ET,SAF has stated two claims upon which relief may be granted, breach of contract and gross negligence, we afflm in part, reverse in part, and remand,

L Mafiin Marietla and XN1"EI.SA-F reached an agreement under which Martin Market& ivould launch t \ ~ : ,sdkllites for INTEf,SAT. The relevant prc~ifisions of the parliies' contract li,llow. In Article 2, Mart;in Narietta mtracted to ""make its Best Effcjrts to furnish launch Sertticesfor the pumse af delivering l[WEX,SAT>payload into orbit." h Article 1.2, the pdrties defined "Best Efforts" as "McS)iligently cvcjrking in a g o d and cvorkmsm-like manner as a reasonable, prudent manufacturer of launch vehicles and provider of launch Ser~lices."Aaicle 6 cvas cntitted ""Best Effc>rt.sReplacement hunch.""Article 6. X sbted, "7NTEI.SAr mlly request a Replacement Iaunch in the event that follotvi~~g any Iaunch under this Contract, the -Fitan XXI Mission or the Pdyfoad Mission has not b n accc~mplishcdfor any reason." h Article 6.7, the parties sbted that a repllaernent Iaullch ""shall h the sole and exclusive remedly 1 cJC the Buyer from Martin Nfarietb in the et ent the "Rtan Ill mission fails for any rcasan," ArticIe 17 cvas entitled "'Allcxation of Cerbin Risks." h Article 17. X , the parties agreed that: The following risks, arising out of or incident to the launch Serviccss tc~be pro1ided by Martin Marietta and its subcontmctcJrs at every tier undcr this Ccjntmct arc: allocated kt"uziecnIWEI,SAX' and a114 other prcjviMafiln Marietk as set forth in this ARI"ICX,E 17, nc>t~,rwithsbnding sion o f this Contrzt. Article 17.5.1 provided: Martin Narieta and INTE1,SA"I' agree that, with r c s p t to injury to or dcath of persons involved in, or damage ta proprty used in connection with, bunch Services to "M: furnished under this Contract, neither Pdfi~cvill make an3 claim against the other ... ,and each Part:, shall bcar its orvn risk of loss with rcspect to injury to or dcath of its arm employees ar damage to its ocvn pr0pert.y hocvswver caused. Article 17.6,entitled ""XJmitaticjnof Liability," "ated: Martin Marieta's l iabilitj to IN"FET,SA'F ... whether c:,r not arising under contract, or in negligenm, strict liability or under any other theory of tort or liability, shall not include any loss of use or loss of prof"r or revenue or any other indirect, special, incidental or consequential damages. In no ekent shall Marlin Marietla? llinbiliw ta IWEI,SAr for any claim arising out of a particular X~unch Serviws exceed the price h r thtat Titan XXI Xaullch Services to be paid by INrTEI,SKI' ... . pro1ided hobvever that nc3thing in this paragraph shall affect an] right o:,f IWEI ,SAT to a Rcpf wement I aunch ... undcr Articf c 6, Final 11,Article 2 1 spcitkd tkat the contrdct \vm tc) "M: governed by Maqland law, 'I'he first launch was unsuccessful. 'I'he satellite failed to separate from the launch vehicle when it was supposed to, due tc? Martin Marictbk sviring mis-

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take. Eventually, INI"F;,I,SKr separated the satellite from thc launch vchiclc, but the process of doing so (cvhich involrfedsepamting the sr-ttellitefrom its booster rocket) made it impczssibfe for the satellite to atbin its proper orbit, 'I'he satellite is the anc that thc National Acronatics and Space Administration (funded by IN"TELSAI")recentlq rescued. The second laulleh the parties contracted for, which involved anclther satellite, was successful, After IN?"Ef,S&r threatcncd to sue aver the first launch, Martin Marietta fifed a declaratory judgment action in the District of Maryland, seeking a declaration that it tt~vedfNTE1,SA"I' nothing under their contract, ENVf'EI,SA"I' counterclaimed for breach af contract, ncgligcnce, grcslss negligence, and negligent misO million in damages h r the lost value of represenQtion, IM'X"ELSA'1'sought W the lairnch services, the lost use of the satellite, lost prufit, damage tcz the sateltile, and the cost of rescuing the satellite. Martin Marietta then made a X 2(h) (6) motion to dismiss the countercIairns. 'I'he district court granted the motioll to dismiss the tczrt claims in April 1991, in an opinion published in edited farm in Nay 1991, Martin Marietta Corp. v. IN?"F",X,SKS,763 F.Supp, 1327 (f>,Md.199i), and granted the motion to dismiss the breach of contract cIaim in November 1991, in an unpublished opinion. As to ENrT"EXdSKr% seegligence and negligent misreprcscn&tion claims, the district c o ~ ~held r t that IM'X"EX,SA'X'had not shorvn a tort duty of due care distinct from the duties the cmtrzt bet~veenthe parties created. As for gross negligence, the district court hcld that the Comrncrcial Space I,auneh Act Amcndrncnts of 1988 eslablished a federal policy that overrczde Maqland's common law rule that parties ordinarily cainnclt waive liabilit~for gross negligence. l,ater. in ruling an the breach of contract claim, the district court held that the parties" contract cIearly and unambiguously barred a breach of cotltract action, Citing Arlicle 6.7 of the contract, the court reascmed that fN'I'EI,SA"E"s so1e remedj for a '"mission Pdilure9\was a replacement launch and that the satclt ite" hilure to separate from the rocket at the proper time cox~stituteda ""mission t".dilrrre."The court also quclted Article 1'7.6 (the Limitation Liabilitj section) and stated that ""liere, again, the contract unambiguously bars any contract claim bcyond that pcmitted in Article 6."'.A. at 656.

We first consider the breach of contract claim, harming in milld that "a ccomplaint should not be dismissed for failure to state a claim unless it appcars beyond doubt that the pIaintit"t"can prove no set of' Facts in support of his claim cvbich cvclufd entitle him to relieE."Yf:onleyv, Gibson, 355 t1.S. 41, 45-46,78 S.C7t,99, 101-102, 2 I,,Ed,2d 80 (1957- En considering a rnoticsln tcsl dismiss, the cIaims must be construed in the light most FavorabIe to the non-moving party and its allegations taken as true. Jenkins v, McKeithen, 395 IJ,S. 4 1 1,421-22.89 S.C"t, 1 843, 184849, 23 I,,Ed,2d 404 ( 1969). Most importantly, dismissals far

Failure to state a claim arc reviecved de nova on appeal. Rcvene v. Charles County Comm?r, 882 F.2d 870. 872 (4th Cir. 1989). iNTEf,SAT's theory is that Martin Marietfa breached its obligaticjn to use its ""best efforts,'" a duty established in Articlc 2 of the contract and defined in Articfc X . 'i'he district crslurt hund that the calltract clearly and unambiguously barred that claim. As the distcict court nclted, the construction o f ambiguous cantract pruvisions is a factuaj detemination that precludes dismissat an a motion for faifure ta state a claim, Wolman v. "Tose,4 7 E2d 29,34 (4th Cir. 1972). After our rey uired de noc cl review, eve find that the cantract. is nclt free Cram ambiguity and that the district court erred in granting Martin Marietta" mrnotian to dismiss, While, as a matter of common sense, it seems reasonable to lakl cvhat happencd as a "'mission Pdilure," WTF;,X,SA'I"argues that its claim is not for mission hilure, but for Failure of separation of the Titan X IX payIw~cland booster. With the parties' contmct and Intedace Control I>cxument silent on this point, the district court erred in accepting Martin MarietQk ceonstruction of thc contract. "The district court four~dthat the ""Lirnivation of I,iabilityW"provision in Article l7 unambiguously barred any cantract claim other than the replacement launch remcdy in Article 6. IN'fE1,SA-F claims that the contract is ambiguous because Article 6.7 slates that a replacement launch i s INrX'EX,SAT"s""sole and exclusive"' remedy, cvhile the Article 17 ""limitation c$ Liability'" prt3vision puts a damages cap on claims ""arising under contract, ar in ncgligence, strict liahilitj, or under any other theory of tort or liability." WTEf,SAT argues that an Art.icle G replacement lairnch could nut be an exclusi\e remedy cvhen Article 1'7 recognized the possi biXity of other claims, especialf y cvhcn Article X 7 stated that it would govern the altocation of risks between the parties ""notwithslanding ally other provision of this Cl'ontract."" At the very least, IM7I'EL,SAI"contends, the ts;t,oarticles together create an ambiguity precluding dismissal. Martin Mariet& argltes that the statement in the Art.icle 17 ""lirnivation of Liability'"rc3i ision that it did nut aBect IM'f'EI .SKI3 right to an Article 6 replacemcnt launch shows that the two provisi~>nsare independent, and that thc cxclusive remedj language in Article G cotltrols, On the other hand, IPJ'I"Ef,SKX' argues based on the same p r c ~isions that a replacement launch and a breach o f contract claim arc: not mutually exclusive, and that Aaicle 1 "1eotrots. WC disagree with the district court."scollclusion that the inkrplay of the two provisions is unambiguous, Martin Marietta ceainf 5 cc~uldhat e included clearer Language, if it intended at the tirnc of contracting ta limit TN7'EIdSAFkremcdy in the cvap it nocv argues. Alternatively, Marlin Macieta cjffers an explanation of this apparent ambiguity. Martin Marieth argues that the Article 6 replacement launch remcdy is the exclusive remedy when there have been post-launch damages, because A ~ i c l e6 only applies "foiiowing an) launch," k e Art, 6-1.lJnder Martin Marietta's conof Iaiabifitj9'provision apptics to prc-launch struction, the Articlc l"i7""l,imi@tion

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damages such as ""eficient breach"' (a refusal by Martin Marietta to go forward). Wocvever, while Martin Marietta" interpretation plausibly harmoni~esthe two articles, the contrzt is far from c q stal clear and nec er refers tc:,""pe-launch" or "post-launch"'damages or otherwise mandtltcs Marlin Marietta" interprebtion. In light of these ambiguities, it does not appear be4 onci doubt that IMTEr',l,SAT can prove no set of facts constituting breach oE Martin Mariet&'s cc:,ntractual: duty to use its "'best efforts,"' and eve must therefore reverse thc district court's dismissal of INrfELSA'X""sbreach of contract claim. See Cox~ley,355 U.S. at 4546,78 S.(llt. at 101- 2 02,

As tc:, f N7FElASAI"snegf igence and negf igent misrepresentation claims, eve agrec with thc district court" analysis af Maryland law and reasons for dismissal: Fgually sophisticated parties who have the opporlunity to allocate risks to third party insurance or among one another should be held tc:, only those duties specified by the agreed upon contractual terns and not to general text duties imposed by slate law. ... Consisterrr with the Court" discussion of ivhether tort duties are applicable in contracttml relationships, NarjLand fact. holds that a claim for negligent misreprescnbtion is improper cvhen, as here, the an1y relationship betktreexz the parties is contractual, both ptlrties are eyuall y sophisticatctl, and the contract does not create an express dutj (.l"due care in making representations. The case kC;c,re the Court dws not present eircuxnsbnces in cvhich the law crcatcs a tort duty of due care independent frc>mthe parties"contractual relationship. Such tort duties of care with respect to representations are impjsed by courlis tc:, protect a peculiarly vufncrable par%].in prtrticular, such duties arc: imposed in the context of a patient's or cIientasdealings with a professional in whom one places a great degree o f personal trust and confidence-such as a phqsician, an attorney, an architect ar a pub1ic accouxlhnt. N o such relationship af special trust cxists here. Nor is IM"X'E1,SAT an unsophisticated consumer, unFamiliar with the subject matter of the contract, cvbo relied on the represenaticzns ol" sclmeone holding himself or hcrscif out as possessing special cxpertisc. 763 I;.Supp, at 1332-33 (ci&tiorrs ornitktl). We therefore affirm the dismissal of INrI'EX,SAr's negligence claim on the basis of the district court" seasoning. IN'fEE,SAF> negligent misrepresentation argument raises two points cvvrth further discussion. First, INrI'EX,SAT relies on Maryland-Nat91Capilaf Park and Planning Comm'n tr, Washington Nat'l Arena, 282 Md, 588. 386 A.2d 1216 (19%). There, in upholding a noncontestability clause in a lcase, the court held that ""unless clearly prohibited by slatute, contractual limirations on judicial remedies will be enforced, absent a positive shotving of fraud, misrepresentation, overreaching, or other unconscionable conduct on the part of the party

seeking enforcement." H.at 1231. 1N7"f";IdSA-F argucs that thc Arena court intended ""wrisrepresenbtionf'to incIude negligent misrepresentations, but we must disagree, becairse negligent misrepresentations do not rise to the lec el czf "fraird," "ove~caching,"\or"'unconscionable conduct." Second, f N"T1";LltiP;i'argues that the Article 6 "14epIacement 1,aunch""prot~ision should not appf y QecairseIM'f'EI.SAT only approved the fated lalmch, which triggered Article 6, in reliance an Martin Marietta's post-contract misreprcscnUtions. INrX'EX,SAT reasons that an exclusion of remedy provision is invalid when one part] 's misrepresentations induced the other tcl take an action that caused the provision to take effect. Horvcver, Marj)/landtaw will enforce exclusion af remhave induced the other edy prt~visionsunless one party" misrepresentatio~~s part> tc~enter into the contract in the first place. id. The two Maryland eases IN"I'F;;I,SAFcites do not support its theory that postcontract misrepresentatio~lsmay also invalidate cotltrdetuai limitations on rernedies. First, because Weisman v. Gonnclrs, 312 Md. 428, 540 A.2d "783, 792 ( 1988), only involved pre-contractual misreprcscnUtions,we do not klicve that case Fairly supporls fNTELSAl"3theory. Next, INrX'EX,SAT quotes from a footnote in Martens ('hevrcllet, Inc. c . Senej, 292 Mcl. 328, 439 A.2d 534, 539 n. '7 ( 1982): Appel fees have also argucd that cven if negligent misrcpresen&tian is a viable tort action in this Slate, it can never be applied to slaternents made in ccjtlnection cvith consummation o f an arm's length transaction, as was incdved in the present ease. We find nothing in Virginia Dare or its progeny to suppart such a siveeping assefiion and we rqject it. The slatemeat in Martens Chevrolet only refers to the "cconsummation'" of an am3 length transaction, Here, IN'I'ELSAE'is relying on ncgligent misrepesentations made after thc parties signed a contract. "The same footnote in Marterrs Chevrolet also q~toteda New York Court. of Appeals statement: A part> to a contract cannclt, Qjmisrepresentation of material Pdct, induce the ather party 10 the contract to enter into it to his damage, and thcn protect himself from the Icgal effect of such misrepresentatiol by inserting in the contract a clairse to the effect that he is not to be held liable for the misrepresentation ~vtzichinduced the ather party to enter into the contract. Id. (quoting Jackson v. State, 241 N.Y. 563, I50 N.E. 556 ( 1925)).That court also referred to " " e ~ terjingf into'" a contract, cvhill: IN'fEtSAr's thec~ryrests on statements made after thc parties reached their contract. Therefore, the eases IN7"f";IaSA-f relics an are inapposite, and we have not found any authority that is more helpful. Becairse 1NTEtSA'I''s negligent misrepresentation arguments are cvithout support, and in view of Mayland Iacv an tort duties arising out af contmctmlj relationships, we aCt"1rmthe district court" dismissal of this claim.

Finally, cve consider IN'I'E-:L,SA'r3grcjss negligence claim. Initially, Martin Marietta qucstians cvhelher Maqtand law invalidates contractual cvaivers af lia-

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bility in cases of gross negligence cvhcre the parties are of equal bargaining power. INrI'EX,SAT relies on two decisions by the MaqIand Gottrt of Swcial Appeals: Srate Hightvay Admin, v, 'S awn \viIXful, wanton, reckless, ar gross conduct."' Rouchcr, 514. A.2d at 488, Boucher is a further indication that, under Maryland Xaw, a party to a contract cannot waive 1iabilil-yfor grass negligence. Martin Marietta tries to distinguish Rouchcr in two ways, First, Martin Marietta argues that Boucher involved parties of unequal bargaining power. Botrcher signed a standard preprinted farm ccmlaining an exculpatarjr clause, while Martin Marietta and l[NTf;,XJSATnegotiated a compfex agrccmcnt. In response, WC note that the language in Botrcher is broad and tlot limited to pdrties o"c"trreqtra1 bargaini~lgpotver, and that the facts and the court's f anguage in Greiner at so imdercut M a ~ i nMaricth" argument. Second, Martin Marieua argues that Rouchcr eswblished a very high sandard for grc3ss negligence (\vanton or reckless disregard) that the plaintiff failed tc>satisf) on facts mcjre egregious than the facts in this ease. However, therc is no doubt that IN7"f;;TASAFsufficiently alleged grcslss negligence so as to s~rrvivea 12(b) (6) motion, See Transcript of Oral Argument at 98, J.A. at 524. Whether IMPf"EL,SA't'ccjnkinces a jury that Martin Marietta was grcslssty negligent, or even sur\lives sumxnarj)'judgment, is another qucstian. Although recogr.li~ingBoucher to he the law of MaqIand, the district court held that Congressiond intent, as reflected in the 1988 Amend~nentsto the Com449 U,S.C1.App, 260 1-2623, requircd mercial Space I,auneh Act CbCC7SIdA"") the court to interpret the partieskontract to preclude claims of gross negligence. 763 F,Strpp, at 1333-34. We find absofutelj no supprt for the cou&"sconclusion that the C'SIA 1988 Amendments ovenode Roucher, bccause the prtrtics9ccontract ivits signed in 1987, more than one year before Congress passed the Amendments. Even if the CI'SIA Amendments could apply retroacti~~elj, neither the language af thc Amendments nor their legislative history reflects a C'ongres-

sional intent to protect parties from liability for their own gross ncgligence, Accordingly, ive hc3ld tbat the district court erred in dismissing 1PJTELSA'T" grc3ss negligence claim, As we have upheld the dismissal of IN?"ETdSA-F%ncgligenee and ncgfigent misrepresex~btionclaims, but overlurtled the dismissal of iNVI'EX,SA'l"%breach of contract and grass negligence claims, the judgment of the district court is hereby AFFIRMEI) IN 13AX;?'X",REVERSED IN PARX: AND REMANI3ED.

From the District Court Opinion, 763 ESupp. 1327,1335-1334 (D. M d , 1991) ('onceding that it is precluded by thc contractual cvaivers in Article X 7 from pursuing cIairns bdsed on ordinaq negligence for p r o ~ r t ydamage, lost profits and incidentals, INTELSAl argues that public pof icq in\ alidates such waik ers as thcy appf y to gross ncgligcnce, 1t is true that courts nomally find public policy to prohibit enforcement of cotltractual waijren of iiabililt;yin cases of grcjss negliC1 986) gence. See Boucher \, Riner, 68 Md.App. 539, 543, 5 14 A,2d 4-85, (holding that contractual cvaivers cannot shift risk of a party's own \vilfful, wanton, reckless or gross cotlduct). Hoivever, the Cottrt finds that in the special cotltext of this case, public policj strong15 fat cjrs enf'r~rcementof ct,aivcrs of all tort claims. including those for grc~ssnegligence. "This case presents that rare instance in ~vhicbCongress has actually proncjunced public policy \ ia legislation, here by requiring the parties to agree tcj contractual cvaivers under which each party assumes its own risk af loss. As noted above. prior tc3 the 1988 Arnetldrnents to the 1984 CctmmerciaX Space Launch Act;, the uncvillingness of insurance companies to cover the huge liability risks incurred by private launch service prc3vidcrs seriously threatcncd the U.S. commercial sywe launch industry, in a s~rceessfuIeffc~rlto revive the industry, Cl'ongress passed legislation designed to eliminate the need for insurance, the primar>)roadblock to industv expansion, by requiring prtrtics to waive their rights of recove3 and assume the risk of their own loss, The Iegislatitre history of the Amendments indicates that Congress illtended the mandatorj) bvaivers to bar recover]) in all instances, including cascs wt-tcre parties were grossliy negligetlt. 'f he Senate Repofi accompanying the I988 Amendments states that Congress intended the mandatoq cvaivcr requirement ""f X) to limit thc total universe af claims that might arise as a result of a launch; and (2) to eliminate the necessity for all of these parties to obBin property and

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casualty insurance to protect against thesc claims." "Rep, No. 593, 100th Ccjng., 2nd Sess, 14 (19881, U.S. Code Cong. & Admin.P;iecvs 1988, pp. 5525,5538. lf this Court were to inrrafidate the subject tart claim waivers as the) apply tcl grcslss negligence, it ~vouldsubstantially undermine the protections C_"ongressintended for commercial syace launchers. PLaintiEs ~vouldbe able to sue for damages on eve9 imperfect spacl: Ialmch, simplq by claiming under a gross negligence thcorj) rather than an ordinar>/nncgfigcnce thcory. 'fhe resulting costs of litigation, as eve11 as the pcjferrtiaI exposure, ~vouIdrequire laullch prot~idersto obtain expensive insurance, if akaillable, or alternslli-tiel] to self insure and "bet the hrm" on every space launch, This is precisely the situation Congress sought to avoid. As mankind ventures forth from the hr~meplanet, great hazards, knotvn and as yet unknorvn, cvilt eonfrt~ntus, Nocv, and wrhaps for as long as the human race seeks to go where it has not gone before, there shall be missions cvhich earlnot be "safe"' as that term is used in the cantext of terrestrial activities. 'i'hrlse bvho seek to explcwrc, and tcsl exploit, outer space must do so ehargcd with aceepbnce of thc unkno\vrr, and perhaps unknowable, perils to h Piced in that vast and poterrtialIy hostile environment. The public policy of this country, as suted by Congress, requires that those using the service of a licensed space launch provider do so at their o\vrr risk. Aeilltent behind the 1988 Amendcardingf y, in order tcl carry out the Cangressic->nal ments, the C_"ourtinterprets the Fvaivers in Article l7 oaf thc contract to preetudc liability for gross, as well as ordinaq, negligence. For the faregoing reasons, this Court concludes that IMPf'EI,SA'rmay nut recover on its tort claims.

NOTES 1. fn light of the Fourlh Circuit opinioll reprinted albove, what additional Xanguage cvould you include in the inter-part] rrvai~erprovision of a f~rturclaunch contract? 1s there anything in the burth Circuit opinion that cvvuld indicate a potential problem with enforcing a ~vaiverof liability far grc?ss negligence? Xf so, does the District Court's policy argument-essentially, that C'ongress intended tcl reduce tort liability as a way of encourdging space cxpllaration-provide a good rationale for permitting contractual cvaivers of gross tlegligence in launch contracts? Note that a bvidely accepted historical accclunt t3f the derrefopment of tort taw in ninctecnth century Amcrica descriks a legal regime that indirectly fostered ecotlomic development bj reftusing to impose tort liability in many cases. See Mortc~nJ. Hortvitz, The 'Ivransformation of American I,acv 1788- 1860 ( 197'3, at 85-1 01. Does this histoe shed fight on what Ccjngress cvas tving to do in the Commercial Space 1,aunch Act? HOWmuch do ~ C I Uthink increased tort fiabiltit] rrvclud increase the casts and risks of space exploration?See Guy De-

Maertelaere, IN?"F",X,SAr X:! The Erratic Orbit of the Fourlh Circuit (drafi, an file M~zvieltaset a dangerous with authors), which argues that the court in lilrl~~rtin precedent kcause it failed to consider the parties7ntent and misintepreted Congressional intent on the issue af cvhcther gross negligence claims initalidatecontractual cvaivers of liability. 'l'he author coneIudes that, if hlfo\ved, this case will frustrate the iery purpcjse President Reagan on August 6, 19112, and was entitld "Space Assistance and C_"ooperatianPolicy." Et

provided: With respect to thc priority and scheduling for launching foreign payloads at I;X.S, launch sites, such Launchinys will kdealt with on the same basis as II,S. launchings. Fhch Launching will be treated in terrns (.l"its own requirements and as an individual ease. Once a payl(3ad is schedutcd for launch, the iaunching agency wi1I use its best effort to meet the scheduling cc.tmmitments. Should events arise cvhicb require reschedufing, the II,S, itfill consult with all affected users in an auempt to meet thc needs of users in an equitable manner. NASA compiled a list of aft scheduled payloads to be launched, including Hughes', into a "manikst." ""Te manikst listed commercial pajloads in order of their Pfanncd or Firm launch Datcs, and indicated ~vt-tichpayloads were to be launched on ivhich shuttle. Hughes" sinacecraft \yere assigned specific slobs on this manifest, Hocvever, on f anuarq 28, 1986, the Shuttle Chal lenger exploded at Cape C'anaveral, Florida. shortly after takeoff from the Kenncdy Sprace accepted financial responsibility for changes in cerhin OSHA regulations. "'While (thc contractor"~] compliance with subsequent chat~geswould not be excused, it could entail additional compensation." M.at 5 16,jj That some of these etrents maq br; triggered by sovereign government action dms not render the relevant crsntractuaI provisions ally less binding than those which contemplate third party acts, inclement weather and other force maje~~re, 'I'he policy approved by the President on August 6, 1982, remained controlling ""fw Iith respect to launch priority and scheduling""as provided in Artide iV, Our conclusiotl does not prevent the President or Congress from implementing space ptzficq, but does require NASA, absent the successful assertion af anothcr defensc in this casc, to bear the cost of changes in launch priorit) and scheduling resulting from the revised pczl icj .

Conclusion Accordingly, the judgment of the Court: of Federal Cl'laims is re\ ersed. and the case is remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED.

NOTES I. A key elernellt in the preceding opinion is the distinction bet~veenthe government's right to act (embdied in the ""svereign act'" defense) and its abili@ttl accept (via contract) liability for financial tosses caused by its actions. What if the costs of compensating an iqiured pa%y are so high thdt sovereign actions are effeetivelj limited?Are some sovereign actions- for example, responses to acts o f war-so fundamental that contractual obligations such as those dcseribd in the preceding ease should be deemed urrenhreeable? On the generdl prc~hlemsFaced by prilate companies cvishing tc~sign launch agreements with the government, see Kafph E, Kissick, Ccjmmcrcial Space launch all p~tentialusers, the parties agree to a no-fduf t, no-subragation intcr-partj ~vaiverof liability under which edch party agrees to be responsible far any IPamage which it susains as a ~ emplojees involced in [Space Shuttle] result of l3amage to its own p r o p e ~and Operatitslns during such aperations, cvhich Damage is caused by NASA, the User or other users involtred in S'TS Operations during such oprdtions, ivhether such Damage arises through negligence or r>therttise.' h i s , if NASA"s property, while involved in [Space Shuttle1 Oprations, is damaged by the tJscr ar another user. NASA agrees to be responsible for that Z3amage and agrees not to bring a cIaim against or sue an> user. Similarf~,if an) user's prope~y,while invoflr ed in these Operaiians, is damaged bp NASA or another uscr, the uscr whose proper15 is damaged agrees to be responsible for that Damage and agrees not to bring a claim against clr sue NASA or another user, It is the intent of the parties that this inter-party ~vaiveraf i,iability be construed broadly to achieve the intended objectives.

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b. NASA obligates itself to require alli users of the Space rrransprhtion system and third pdrties as deseribed in Subpar;rgrdphs3.1 ., 3.b., and 3.c. above to agree tcj an identical waiver of I,iabilit~as described therein.

I , Of critical impomnce in this Agreement is precisell cvhat NASA agrees to, In Article I, NASA, like the private carrier in the agrccmcnt cxcevted earlier, agrees to provide a launch, or a ""Shuttle Reflight""in the event that cemin contingencies CICCU~.'I'hese are, 1) """lrcjugk no defect of the h>had or Fault of the liser,"' the Payload is not ""i[ecpiloyed"kr docsn? twork, or (2) ""tc Deployment deviates from specifi"ieations." h any event, even if (1) or (2) occurs, NASA is not obligated to try again irnless the 1%)Load, or a replacement, is returned tcj the launch site prior to a reflight. In other ~vords,NASA bcars the risk of an improper deployment, so long as it is not the User's PauIt. But what if something goes wrcjng prior to deptajment, or after deplojment but prior to psitianing of the satclfit: in an operational orbit'? ('f'his lattcr possibility is quite imporlar~tsince sr-ttellites vpically require an additional boost Ito place them in irseful orbits, which are higher than the Space Shuttle" highest operational orbit.) In these cvents, the basic message of the Agreement to the user is: you're out of luck, In the first place, the Agreement gibes NASA the right to stlspend and postpone a launch for a varie& of rcasons; since ncither party is liable for the other's consequential clamages urrdcr Article V, the risk of loss clue to any cleIay Palls on the user (l'launch services. See Ft~oter,Legal Issues and Anstvers for Cl'ornmerciall tiscrs of the Space Shuttle, 13 ?"ransportation law Journal 87 (1 9133). Sccondly, NASA retains the right to ""jttison"9he useraspdyload if, in its sole discretion, it ccjnct udes that this must be done for reasons of safety or mission success. (However, if a NASA review later mncludcs that NASA's decision to jettison was unjvarranted, the user is etltitted to a new launch-but not, one should note, to compensation for the jettisoned item.) "I'hird,""dpitoyment" is so defined that NASA is required to provide a reftight on14 if it is responsi bfe for the hutty deployment, ivbieh includes the caveat that NASA is not Xiable if it conducted the deployment cvirhout knocvledge that it cvcjuld be faulty, such knocvledgc to be "'based solely on United SQtes Government instrumentation and data.'' Thus, NASA has to kr.rowilzgty bungle the deployment to be Xiable. Finall>, as nclted abve, NASA"s responsibility ends with the successf~ildeployment of thc satellite. Rut that is not equivalent to a working satellite; it has to be in a proper orbit normally much higher than the Shuttleas.Therefore, NASA also does not I-rear the risk of a Caulty ""upper stage""in the satellite's final boaster mechanism. As F~c3ternotes, ''h1 guarantee for thc highcr orbit would

require an additional cost to k sushined by the uscr [in the form of1 an additional fee for "optional" services or by an additional premium for insurance.""Id. 2, Andher critical element o f the Agreement concerns NASA's requirement that the uscr obain insurance, As we mcntioncd earlier in this chapter, CJ"ongrcss in 1W79 gatre NASA the right tc't limit the required insurance to reasonable amounts, and to indemniQ launch irsers cvho cc~uldnclt obtain the appropriate amounts af insurance, Nonetheless, in the Agrcerncnt execrpted above, NASA required launch users to provide $500 million worth of insurance far third-party fosses. See Aflicle V, Section 2(6). Interestinglj, this is precisely the figure that many in the insurance industrj) reprtedt y identified as the maximum amount of insurance that ivoutd be available in the world market per user, per shuttle mission. See Fr~uter,Legal Issues, supra. B~ltsee P. Blassel, Space Projects and the ('overage of Associated Risks, 1 0 'I'hc Geneva Paprs an Risk & Insurance 5 1, 78 ( 1 985) f reporting that one tX.S, insurax~cebroker, with NASKs assis&~~ce, had set up a sjndieate offering up to $1 billion of coverage for at1 irsers of a given shuttle flight), See gekzlaralty Margo, Some Aspects of Insuring Satcltites, 1979 Insurance i:a~v Journat 555 (1979). On space insumllce issues as of the time \vwa mdor customer tkmt will help keep NASA's shuttle and non-shuttle flights full) h k e d in the future, Some agreements actually invafve an expiticit "fly-noby-pay-later" arrangement.

INTELLECTUAL PROPERTY Clne of the most important problems fitting efforts to commercialixe outer space in the 1980s ivas uncertaintj regarding the patentabiltitj of inventions made, used, sold, or reduced to practice in outer space. Aftcr considerable effort, this problem has k e n largely addressed through iegislation adding a new section to the patent Iatv det oted to the protection cjf inventions in outer space. 'The path of this icgislaticsln cvas long and tortured; its histor]) is recounted at length in ilan L. Burk, Application of 1;Xnited Sates R~terrtLaw to C~ommerciaiActivities in Quter Space, 6 Santa Clara Computer & High 'Fechnologq l,atv Jcjurnsll 295 ( 1 9 1 ) . l'hc following excerpt provides some sense of the reasons cvhy the tegislation was p'assed.

EL, 101-580, Inventions in Outer Space, Senate Repart No, 101-266,1990 U,S,C,C,A,M. 4058, April 119,IWQ XIXI. Discussion Cammercialimtian of Space

Qn Jut1 24, 1984, the Reagan administration annclunced a naticlnal policy to encourage commercial usc of outer space, Suhscqucnt to this announcement, it has been pc~licyof the Government to promote private sector investment in outer space projects, 'l'he approach taken to accomplish this gc~alhas been to foster a regulatory atmosphere conducive to crsrmmcrciati~ationof space. Private research initiatives have bee12 encoumged aboard 1;X.S. spacecl-att, including the space shuttle and the planned multinational space station. It is believed

that such research, conducted in the mierogmvity of cluter space, will uncover man> innovative products and processes beneficial to high technof ogq industries. For example, recent experiments aboard the space shuttfc indicate that crq'stalIiziitiotl of biological moleeuies proceeds more effjciex~tlyin the mierograi ity (l'outer space, Such biological cr3stais atfocv enhanced X-ral diflraction studies of protein structure*and are expected to bcncfit the biotechnologp industr-y by Picilitati ng design of genetically engineered prrlteins. "The microgravitj crystafli~ationprocess may also become important in purification of pharmaceutical products. This crystaffi~ationis accomplished by a propriehry process that should be propcclr suqject rnatter for a 1;X.S. ptent cIaim. S. 459 is calculated to clarifj the law .t:vithrespect to such innovations, and t h ~ offer ~ s an incentive to their development and disclosure, As one commentator has observed, "just as on Farth, ptents can serve as an impomnt stimulus to industrial progress in outer space."

Extraterritorial Application. of the Patent Laws Article I, section 8, clause 8 of the U.S. Constitution emporvers C_"ongrcssto promote the development of science and the usehi arts by grdnting a limited monoply tcl ini entors. Such patents offer an ewnclmic incentive tc~foster creativit], and arc: granted in return for disclosurr: af thc invention. 'fo qualify for a patent undcr title 35 of the 1;X.S. Code, the invelltion mrist be novel, useful, and tlon-obi ious, In other cvords, the inventic~nmust be the first of its kind, it must be functional, and it must be a significant advancement over thc prior art. ~ c an einventor is grdnted a valid 1;X.S. pd&nt, he may exclude anyone from the manuPdeture, use, or safe uIdbe detrimental to inventors in at least thrw instances where U.S. patcnt law dws not recogni~ccxtmterritoriaI acti~rity.First, U.S, inventors may have dilttkuuity eslabiishing priority of in5 ention if the activities determining conception of the inventiczn, reduction tcl practice, and diligence tcmk place in outer space. Second, activities in outcr space relevant to the prior art of a pdterrt application could not be rdised in an intecf"erence pruceeding. Finallj, the holder (.C a valid lJ,S, patent cvcluld be unable to enjoin or mllcct damages for infringing xtivitics conducted in outer space. Uncertainty as to the application of the patent Xaw in these areas mlly chill prospets for commercial in5 estment in outer space research and mmufacturing.

THE EFFECT OF XNTERNATIQNAL TREATIES The linited States is signatory tc? international treaties governing the exploration of outer space. 'l'hese international obligations further obscure the appIicability o~fthe territorial principle to patent law in outer space. For example, article I of the 'i'reaty an Principles (ioverning the Activities af States in the Exploration

and lise of Space, Including the Moon and Other CelcstiaX Bodies (Outer Space .. I reaty) encoumges international cooperation in assuring scientific freedom in outer space. Article 11 prohibits an> nation from claiming sot ereigntj of er areas of outer space, Article XI of the treatj requires that states rcp3rrt the nature, conduct, and results of space exploratiotls to the Secretaq Cerrerdi of the United Nations, who cvill in turn disseminate the informatictn. One commentator has suggested that thcsc treaty provisions could bc read together to preclude patent prrjtection based on territoriality. Other analyses of these internatiotlal agreements reach a different conciusion. A&icle I (E the Outer Space "I'reatj pro1 ides that space is free for exploration and use by afl states, yet under article VIXI, states re.fipinjurisdiction and cotltrol over ob;jects Xaullched into outer spdce, and of er personnel abcjard such objects, A&icleV111 also specifies that otvnership of objects do not change mcrely because they are launched into outer space, Moreover, undcr article VII, states are liable for the damages caused by oqjeets or perscmnel under their j urisdietion and control. 'I'hese pro1 isions support.the propsition that outer space is available for usc by ail, but that property rights, both tangible and intangible may be protected, S. 459 should clearly demonstrate cotlgressiond illtent with respect to the patent law as applied to act;icities in outer space, S. 459 is intended to extend the protection of li.S. patent law to applicable actit?itiesconducted in outer space. ft is anticipated that this clarification of the intellecttml praprtj taw will signif icantty encoumge scientific disco1ery and innovation in outer space,

v

The above excerpt identifies the problems that the ""Ptents in Space"' tegistation was intetlded to solve (a much iengthier discussion appears in Cilenn H. Keq nolds, Legislatice Comment: 'I'he Patents in Space Act;, 3 Harvard Journal o f law and Tcchnofogy X 3 (1I990)).Thc new scction of the fcderal patent law created to deal with these problems apwars below. Does it solve all patent related problems regarding space inventions?

United Sales Code 35 U.S.C. 105, Inventions in Qurter Space (a) Any invention made, used or sold in outer spiice on a space okjeet or cornpcznent thereof under the jrarjsdiction or contrrtl of the tinited S&tes shall br; considered to be made, used or sold within the linited States for the purposes of this title, except with respect to any spice object or cornpnexlt thereof that is speciG icailly identified and othertvise pro5 ided for by an international agreement to which the United SQtes is a party, or cvi tl? rcspct to any space object or component thereof that is carried on the regist3 of a fczreign slate in accorctance with the Convcnticjn on Registration of Objects Launched into Outer Sy~ace.

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(b) Any invention made, used or sold in outcr space on a space object cslr component therer)f that is carried on the registry of a fc?reignslate in accorclance with f Qb-jects Launched into Outer Space, shall k the Convention on Registration o considcrcd to bc made, used or sold Fvithin thc United States for thc puFoses of this titte if specifically so agreed in an international agreement betweell the Ilnited States and the state of registry,

'I'he follotving excerpt, from heafings he1d on the Patents in Spaw f egislation in 1989, illustrates bath the p u p s e of the legislation. and some unsolved prc3blerns.

Patents in Space, Wednesda_~~ Octakr 4,1989 Hearings Before the House of Represenbti~? es, Sukommi ttee on Gourlis, Intellectual f)rc~pert_~, and the Administmtion of Justice, ('ommiuee on the Judiciary Mr. KAS'I'ENMEXER, In your view, either of your views, would this pro-. p~sedlaw cover activities that tvoufd take place on a celestial bcjdj, the moon, Mars, ct cetera, not on a space vehicle of any particular country or combination of countriesf! Mr. KEMPF. I hat e some thoughts on that. Mr. KAS1"ENMEIER. Yes. Mr. Kcmpf? Mr. KEMPF. I beIieve that it does, with one proviso, and that is the articles that are placed on this celestial bodj are Lairnched from the earth. Article VlIii of the Outer Spacerrreaty, which this is kcyed to, dms-if I can find it- yes, here it is. It does encompass an ob-jeet while in outer spdee or on a celestial bodj, but the article ttt which it refers is an article launched from the linited States. it should make no difference whether it continues in moticj.,tlin outer space or whether it lands on a celestial b d j . f think this fegislaticjn would cover it, Mr. KAS'fENMf;;XERRWell, let" say the year 2100, we art: @]king akslut really a space cc.tlony in ~vhichearth people have sort of colonized a place in space, not talking about trehicles an> longer, would it still apply? Mr. KEMPE My interprepation is if the materials h m which the colc.rny is assembled are based on materials and cjbjeets and the like that have k e n launched up thcrc: from outer space, it ~voutdapply.

Mr. HLJGHES.'f'hank you, Mr. ('hairman.

I appreciate, first of alli, the prtncl coming in to testify. I ~vonderif you can teiI me how you would interpret the term ""made in outer space on a space oMect,"' bvith respect: to cvhetfier they are imder the jurisdiction or control cslf the linited States. Docs that mean it cvvuld have to be made an the spice ohhieetto be covered by this la\crf? Let me give jou a h~pothetical.Suppose it was made outside a space ob'ject, say by somebody in space not an thc ob'ject. Would that be covered, in your *judgrnex~t'? Anybody'? Mr. KEMPI;, If the individual were outside the space object but nclt attached to any other equipment or hardcvare ar conveyance, I am not sure that i t does. I really don? tknor\; but assuming that the individuai whc) is outside a given space object also has some sort of support equipment that carries him autsidc, that is a conveyance, ar that he arrives on, that support equipment i s a spice object that would be under the jurisdictiort or control seems limited to patent law, cvhich is the only subject discussed. While the patent discussion is interesting and provocative, there are other aspects of inlc"Ilectual prowflj that present problems just as interesting, and at feast as thorn), as those discussed with regard to patents. For example, in most people's minds the commercial acltji?\tyto which the spice station has the most to cotltribute i s manuFacturing. While patents obi iouslj are involved in manufacturing prcxesses, it is unavoidably truc that most improvements to manufacturing prwesses-including those of great value-are incrernenbl in nature and hence often not patelltable. 'I'hose imprc)vements are instead prc~tectedunder trade secret laiv, and by precautions against diselosurc. But trade secret lac\. is statc law, not fcdcml law, and it is Par h m clear which (if any) shte" trade secret law \v~uIdapplq to a I;X.S. space station, 'The regime that wczutd govern a multinational space station in which different modules fall under the jurisdiction of different nations boggjes the mind, especially ivhen manuheturing processes might be carried out in more than one module, and when rights of access among mtdufes ivclutd be guaranteed to alli weupants of thc sution, Since the station wilt be small, and occupants will unavoictfablj have many opportunities to learn a b u t secret processes carried out on board, some sort of cr~ntractuailscheme seems necessary if those processes arc to bc protceted, Et ~vouldhave been helpful if the 0'F.A had addressed such issues. It ceminly ivclufd have helped me, anjkvaiy, si~lcef confess tc~k i n g stumped. I do have a suggestion as to what could k done with a U.S. station, or prhaps with regard to the parts of the sation govercled by the Unikd Sates. With regard to those circumstances, Congress could jkderali~eand extend the tinikrm Trade Secrets Act to govern manupaeturing prcxesscs in outer space, or provide that a particular state"s law (say, that of the state from which the station is launched) cvoutd got ern. "I'hiscvoutd provide some protection tcl secret mmsmufacturing processes employed or developed abroad a t1.S. station, but I'm not. sure that much can be done to protect such secrets in the context of a multinational station, 'I'bis may encourage companies ini ofved in manul'acturing prveesses tc~ make usc of free-flying packages whose secret components arc: sealed in black boxes, so that those servicing them from the shtion wit1 be unable to gain access to an) secret infornation, I don't know cvhether this will place a substantial burden on experiments in space mantxPdcturing or not; much cvill depend on the nature of the processes experimented with.

Burk, Protection af Trade SwreQ in Buter

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Space Activity: A Study in Federal Preemptiarr, 23 Seton Ha11 Law Review 560 (1993)

Enactment of the Patents in Space Act has constituted a majc~rstep tocvard resolving questions of intel lectual property protection for outer spacc activit ~ , Even though the pte~lt q~testionhas been clariljed, there still remains a large gap in the range of at ailable intelleetuaf propert] protection. Inventions and discovcries that are ineligible for patents art: aften protected through anothcr form of intellectual proprty: trade secrets. "The question of trade secret prt~tectionfar outer space activity has yet to be addressed bj C'ongress, but the need far such protection is clcar. Q.

Actaal v. T r d e Secrecy

M~rehof the incentive for investment in outer space deveIopment stcms from the possibility that micrograt it:, exvriments will yield knowledge that maj be applied to produce commercialfy vaf uabtc products. The new manufiacturing techniques developed in outer spice may be applied on F~rth,or eventually in orbital mainufr;lcturingfacilities. CIne commentator has pc~intedout that man] valuable industrial processes arc: incligihfe for patent protection and so are protected under the law of trade secrets; cotlseyuex~tly,the availabiliv of trade secret protection far outer space actic it:, maj be more impamnt than the avaitability of patent prc3tection. The tlecessity of trade secret protection far outer spice activity becomes all the more striking when the impjssibilitj of actual secrecy aboard the space station is considered. One possible way for investors to reap the benefits of valuable, but unpatentahle, outer space discoveries ivoutd be to keep the discoveries a secret. For such a scheme to work, absolute secrecy cvoutd be required; absolute secrecy, horvcver, is most likely not kasiblc in thc cramped quarters of the spice slation. Ptr more likely is the prospect that all those ivorking aboard the spacl: station, as well as their consulbnts and colleagues on Earth, will be aivare af any new data or techniques arising from research aboard thc station. A possible alternative to actual secrecy might 'he some pritfateagreement. Participants in outer space ventures might resort to a contmctual arrangement designed to preserve the secrecy af valuabtc diserslveries ar processes; this approach is used for mining plathrms in internatiox~alwaters. A contractual soltrtion is of Limited value, hocvevcr, becairse it will onll cot er the situations that the parties anticipate. in addition, a contractual solution cannot bind those who are not p'arties to it, *TheCluter Space Treaty pprt~idestkat rations shall have the right to inspect space objects, Some ccjmmentators hate suggested that this provision could prove troublesome for outer spacc investors hoping to maintain

confidentialit> af their discoveries. Additionalliy, such inspectors might not be covered under a private contractuai arrrzngement. Far preferable to actual secrecj or contrztual agreements would br; the existence af a bt~djof taw that could cover unanticipated situations and that cvould protect in~iestorswho c o ~ ~not l d maintain actual secrecy, 'X"r&desecrecy is a form of legal protection that cm/> requires the inientor to take reast~nabfesteps to maintain confidentiality; if that confidentiality is breached, the tradc secret holder may have the right to damages. "Tradesecrecy also exists as a well-develaped area of' law able to cover virtually an) fwtual circumstance.Thus, the operation of trade secret Iaw may be critical ta protect unpatentahte but valuable discoveries stemming from outer space research or similarly unpatenlable manufacturing prmesses emplojed in outer space. Trade secret law, however, is not federal law, but state law. Idealli]: C_"ongress would take the necessary actioxl to prrjvide for tnzcle secret protection aboard llnited States spacecraft. It has been suggested that this protection might be acfiicved by enacting a version af the tlniform 'Fradc Sccrcts Act as fcderat Iarv, or by simply desigr~atingthe trade secret law of some sate as contrrjlling far outer space actify it), Unfortunately, considering Cl'clngress 'S pprcrastination in passing the reliativel> minor:amendments needed to extend tlnitcd States patent law to outer space activity, the prospects for congressional cotlsiderntion of another farm of intellectuaj proprty protectictn seem dim.

In the absence af any federal taiv addressing trade secrets in space, participants in outer space vexltures might attempt to protect their discoveries under state trade secret laiv. 'The interaction of state and federal lawvs in outer spacl: has received Iittle attention, but tcgait mechanisms appear to exist for individual states to assert jurisdiction over outer space activity. lrnder the principles of jurisdiction outlined bj the Strpreme Court, states maj assert jurisdiction over out-cslf-stateentities if those entities have had cerbin minimum conacts with the forum slate, which has slatutorify authori~edthe exercise of such jurisdiction. frt. some instances, the dekndant" presence in the forum state may be sufficient for jurisdiction to tie; in other insbnces, a pattern af cornmercial or juridical conduct relating to the hrum wifl invoke jurisdiction, f n addition to the defendant's activities relatillg to the forum state, the availability of an alternative forum and the inconvenience to the defendant of litigating far from his usuai place of residence may also be considered in determining jurisdiction. 'I'hese principf es may extend state j urisdiction not on1y to lJnited States citizens and corporations, but also to fc2reign naticslnals and corprations. Certain sates, s~rchas "Texas,have satutorily authorized the very brodd exercise c$ their courts' extraterritorialjurisdiction. Commentators on the developing

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tacv af outcr space have suggested that the l"cxas "kmg arm" NrisdictionaX statute might wrmit "kxas courts to exercise jurisdiction over prsons committing acts in outer space, based upon such person's contact cvith "mission contro>l" at the Johnson Space Center in Houston. Prcsumabiy, Florida ar C'afifornia kfirould have even better claims tc) assert:jurisdietioll over persons or er~titiesregufar15 usi~lgNASA launch facilities at Cl'ape Canaveral or landing facilities at FAwards Air Force Base. Numerous othcr states might have the requisite "'minimum contacts" with t"oreigr.1corporations involved in outer spice research or manufwturing that also did business within the given state. Finall), it is ter5 tikcly that under thc doctrine of pendant jurisdiction, fcdemt courts empowered to hear patent infringement cases arising in outer spice c o ~ ~also l d hear related trade secret claims. Once a court concluded that it in fact had authority to hear a trade secret claim arising h m outer spice activity, a determin&ion would be required as to which jurisdictic3nb substantir-elaw should be applied, Some recent commentators hatre considered the problem of such choice af law decisions for outer space wtivity, but these al~dlyseshave assumed that a choice of law could be made betkveen rations. Where the Ilnited Sates is concerned, hotvever, no federal or mcmolithic k ) d j af trade secret law cxists. l"hus, choice af law determination rvoufd be greatly complicated by the need to choose betbveen the trade secret laws of' fiftq peculiar j urisdicticjns, Initially, the answver to the conundrum p~sedhere might seem tc~br; congressional action ta fill in those substantive legal areas, such as trade secrecy. that seem devoid of' rules h r outer sjxdce activity. I~gislativeaction may not be the best solution, hocvever, and cannclt be the whole solution, It is nut realistic to expect C'ongress to attend to all thc many areas of taw that might apply to outer spice activity. Congress is not likelj to lend that much attention to a single area unless sclme crisis demands such a fwus. Even were Cl'ongress to devc)tethe time nccessarj) to enacting a cornprehcnsive space code, it probably could not anticipate all the situations that may arise in such a developing area of human endeatror, 'Fhe question o f how and whether to fill those gaps with available state taw cvould remain. 'i'his result cvitl bc truc \vhcthcr C_"ongrcssenacts a comprehensive outer space code or simplj addresses a few selected areas: The preemption question cvcluld remain. fn fact, new federal legislation is just as likely tc~ generate preernptian questions as to resolve them. c.2.

E l ( f 9W); Elizabeth A, Pucciarelli, 'l"hc Chic for a Federal Common Law of Space, 33 New York i,aw School X,aw Review 509 (1988); Glenn H. Reynolds, Space Stations and the f f,atv, Science and "I'echndc->gq43 1 ( 1983. 'Fhe Latv. 2'7 Jurjmetrics: Jcaurnal o advanbge af such an approach is that it aifows law to develop flexibly, and in step with the development of an industry, 'l'he disacfvanwge is that it does not create the sort of ex ante eertaintq that is often necessary to promcjte investment. It might be best to pursuc a two-pronged approach, addressing a small number of especially impomnt issues through legislation, while simultaneouslj granting geneml jurisdiction at er spacl=-relatedacticiities to the kderat courts, analogous to admiralty jurisdiction,

Impact of Start Agreements and Other Industry Incentives On Cammerciat Space MarkeQ: Hearing Before the Surbeommittee on Space, Committee on. Scienee, Space and TeckinoIoe*t7.S. House of Representatives, I02d Cong. I st Sess,, July 31,1991. at. 6-9, Testimony of Professor Gfenn H, Reynolds One concrete action that Congress could bkc in this regard ~vould ta clarify the legal envircjcrment for spice activilt;Y. Some aspets of spice activity are covered bj federal law nclw, of course, under the 1984 fauneh act, as amended. the

1984 remote sensing act as amended, and so on, But much important law applicable to spzce activity is slate hi\;not fedeml taw: the laws govercling security interests, or torts, or trade secrets, for example, Yet often it is irnclear cvhat state taw -or even whiclz sbte's lat1.c.-cvould apply, And much space activity has, at least pcjterrrially, irnporlar~tpoliticat mmiflcations that argue against the appI ication of state law, or decisions by state courts, Creating a New k g a l Jurisdictio~

A recent Office af 'fcehnology Assessment study voiced two key legal concerns: f l ) the need for an evoituticjnaq system that ~vouIdaIIow spice law to toet elop as needed cvithout the rigidit:, of some sort of ali-encompassing a priclri Space reign policy interests of the United States.

"701W,Preemption of Scheduled Launches (a) General,-With the coapcratian af the Secrcbry af Defense and the Administrator of the N;ltional Aeronautics and S p c e Administration, the Seel-etaq of Transpomtion shall act to ensure that a taunch of a payload is not preempted from access to a [Jnitcd States Government launch site or launch property, cxcept for imperdtive national need, when a launch date commitment from the Government has been obtained for a launch licensed irnder this chapter. A licensee ar tmnsfcrcc precmped from access to a launch site or launch property does not have to piay the Cioverclmellt any amount for launch services attributable only to the scheduled launch prevented by the preemption.

3 70110, Administrative Hearings and Judicial Review (a) Adr?ziuzistrati\ie hearirrgs,-'f'hc Secretary of l"ransportation shall provide an opportuniv for a hearing on the record to(1) an applicant under this chapter, for a decision o f the Secretarq under section XC)liOS(a)of this title to issue or tmnsfer a license with terns or deny the issuance or transfer of a license; (2) an owner or operator of a paylmd under this chapter, for a decision of the Secretav under section cj"OlCM existing licellsee h m competition. (c) Requirement to provide uncnhaneed d a b (1) 'The Secreta~,in consuttation with other appropriate linited Shtes Govertlment agencies and purs~rantto toamgraph (I;?-), shatf designate in a license issued punuatlt to this subchapter any ullenhanced data required to be prcjt~icfeclby the ficensec under scetion 5622 (h) (3) of this titlc. (2) 'The Secretarq shall make a designaticln irnder paragraph f l ) after determining that(A) such data are generated by a system for which all or a subsbntial part of the dei efopment, fah~eation,Ilzlmch, or operaticlns costs hatre k e n or cvilil be directlq f~rndedb j the llnited States Gc~vernment;or (B) it is in the interest of the United Sates to require such clita to be provided bp the licensee consistent with section 5622 (b) (3) af this title, after considering the impact on the l icensee and the impczrtance of promotillg cvidespread access tc~ remote sensing data from United States and foreign systems. (3) A designation made by the Secretar_\/uundcr paragraph ( I ) shall not be inconsistent with any contract or othcr arrangerncnt cntercd into bctcvc.cn a linited Shtes C;ovcmment agencj and the licensee.

3 5622. Conditions far Operation

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(a) I,icense required for operation No person who is suqject to the jurisdiction or cotltrol of the 1;Xnited Sta;tes maj, directlj or through an] subsidiaq or affiliate, operate an> private remote sensing space system without a license pursuant to section 5621 of this title. (b) 1,icensing requirements Any License issued pursmnt tclr this sukhapter shall specifq that the licensee shall comply with all l'thc requirements of this chapter and shalli ( l ) operate the system in s~rchmanner as to preserve the national security of the lJnited States and to observe the internaticlrnal obligations of the lrnited States in accor&ance \vi th sectian 5656 of this title; (2) make available to the government of any country (including the United Shtes) irnenhanced data collected by the s] stem concerning the territory under the jurisdiction of such government as socsrn as such data arc: available and an reasonable terms and conditions; (3) make irnenhanced data designated by the Secrebq in the license pursuant to sectbn S62 1 (c) of this title available in a~ardancl:with swtion 565 X of this title; (4) up011termination of operdtions under the license, make dispsition of any satellites in space in a manner satisfactory to the President; (5) f urn! sh the Secretary with compl etc orbit and data col1ection characteristies of the system, and infc3rm the Secretaq irnmediateiy of any deiiiation; and (6) ncltify the Secretarj, of an> agreement the licensee intends to enter with a forei gn nation, entity, ar consartium involving foreign nations or entities. (c) Additional licensing requirements far 1,atldsat 6 contractor In addition to the requirements llocvingis an except from NOAA" regulations an remote sensing business licensing:

Civilian Remote Sensing Licensing Regulations f-from 15 C,ERe$3 960.9 et seq, f 1988)j 950.9 Review Procedures (a) 'l'he Administrdtor shall immediately tiznvard a copy of any application or a summar) thereof to the Department of Defense, the Ilepartment of State, and any other Federal agencies determined to have a substantial interest in the proposed activity, such as the Natiollal Aeronautics and Space Administration, and the Department of 'rranspclrtation, ... (e) Withill siutj days of receipt of a complete application, each Federal agencj consulted under prtragraph (a) af this section shalli recommend approval cslr disapproval of the application in writing. (1) IF the Secretarjr of Ileknse or the Secretarq of State determines that an application may not be approved cvithout modifications or conditions consistent with tlationai security concerlls or international obligdtions, the determination shat 1 clearly state whj the mtdifications or conditirjns are necessaig to aceclmplish thc intended purposc.

(2) i f any athcr agency recommends disapproval, it shalli sbte why it bclicves the application does not complq with ally law or regulation ~vithinits area of responsibility and how it beliekes the application may be amended or the license conditioned to comply with the law or regulaticsln in question,

8 960.18 Timely Approval or Denial of Application and Xssuanee of License

(b) 1f the Adminkstrdtor dcnies the application, he or she shall provide the app1icant with a concise statement in writing of the reasons therefor,

3 960.11 Criteria for Approval or Denial Before approl illg an application and issui~lga license or an amendment tcl a license, thc Administrator shall find in ~vritinf:that: (a) 'l'he iicensee will owmtc the system in a manner eonsisterrt with rational security and the international obligations of the ti.S,: (b) The licensee wilt make available unenhanced data to all potential users an a nondiscriminatory basis. ... In maki~lgthe findings required bq paragraph fa) of this section, the Administrator shall be entitled to rely upon thc cvrittcn recommcncSations af thc Departments of Defense and State described in $ "30.9(e).

CRITICISMS OF REMOTE SENSING REGULATIONS A tlumber of eornmenbtors have eriticited the breadth of NOAKs discretion under these regulations, and its ability tc~denq permission to latrnch a pri~ate system or use it if it threatens ""national security,""Thcse eommcntators have argued that this amounts to a prior restraint under established First Amendment principles. 'I'he following excerpt captures the flattor o f these criticisms:

Merges & Reynolds, News Media Satellites and the First Amendment: A Case Sttrdy in the Treatment of New Techxlalogies, 3 High Technology Law Journal 1 f 1988) Although militag plmners might \vet1 prefer tcl exclude news media satellites and repofiers from reporting many topics, and might have thcir jobs made apprc-

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ciabIy easier by that exclusion, they may do srz onIy when the interests involved are of sufficient immediacy and importance to pass muster irnder the first amendment, 'l'he Fdct that the information in question is being gathcrcd via a novel technologj is irrelevant: the first amendment was not drafted in contemplation of man) new technclfogies, from telephones to offset printing presses tc~ personal computers, Nor is it sufficient tcsl assert, as some have done, that we live in a prpetually clangerous \vorld and cannot affcjrd to limit the discretion of rraticznal security officials imposing first amendment restrictions on their actions. 'fhc ehoicc between taking every conceivahlc action to promote ""national security""ends, and balancing those ends against the innpomace of preserving essential freedcdms, has already been made. In a way, the advent of civilian irnaging technology brings the history of space surveillance full circIe. fn the earliest days of enthusiasm tizr spice, satellites cvere one of the benefits identified by earl] t isimaries-pri~ate citizens-cvhc:, encountered mare than a littlc dilTficultq in selling their ideas to governments. But now that the technology has matured to the point that private interests might be able to afford it, the IJ,S, got ernment has begun dracving a line arczund space and declafing it off limits, or at tcast subject tcsl a level of regulatitjn that cvould not be tolerated on earth. And there is irony here on another level as cvell, 'The II,S. has long championed an ""(_penSkies"happroachto space reconnaissance; this was in fact an important element shal>ingearXq U.S. syace policy. While this approach has h e n taken to mean that space ovefiight should fx open to spacecraft frczm all countries, satellite technology has now become routine enough to put space ~vithin the reach of entities other than countries-private firms, for example, including the media. As a consequence, far the first time the ti.S, is being forced to decide just how open it really cvants the skics tcsl b. In that sense, this is just another in a long line of problems psed by new infomaticln technologies from the time movable type cvas invented to the present. The instinct of gcslvernments confronted by new tcchnolagies is generally to bring them under control (or at least try to (50 so), especially when those technclfogies are closelq related tcl matters of power and pczlitics. 'I'hat instinct.is generally wrong, though, at least in nations, like ours, with a tradition of free expression, "Theprrjpr course is to remain Faithful to that trddition, even in the context of new technologies. Fafiunateill, the first amendment is flcxihtc enough tcsl aceornmc&at:e new situatiolls ~vithoutsacrificing important interests. In this inslance, an approach consistent with the first amendment cvoufd he tcl identif) subjects and occasions for which media satellite irnaging ~voufdbe inappropriate-troop ship departures and secret miliQry inslallations, for example-and to prohibit publication of such images, rather than threatening to place a blanket ban on media access tc~ sateilitc tcehnology.

NOTE "The debate over the "Mediasat" ~guIations.as they have been called, is only the first;of man> that will take place as the governmental monopafj of er space technologies eradcs. As erslsts drop and capabilities risc, prit~ateargani~ationssuch as news organizations, arrns eontrrjl grortps, and human rights and etlvimnmentaj advocates-will begin to make greater and greater use of space technologies, This trend is tikcly to cause eonsiderabtc constcmation within and among various world govertlments, but i t is unlikely that they will be able to do much about it. For more on remote sensing in an internaticlrnaf context see C'haptcr 5,

Some Issues of the Future Most af this btmk has addressed issucs af space law that arc: either of current applicatiotl or that are like11 to 1°K: applied in the near future- satellite broadcasting, or patents far space inventions, for example, 'This chapter, hotvever, deals with issues af space taw that are: iikely to have less immediate application, though in the case of at least one-the governance of syace societies-a surprising1j large amount of cvcjrk has alreadj been devc)ted to the problem, Not c~nlyis thc issuc extensively treated in the two seminal works of space law, Andrew Hale)" S p c e Law anal Gnvevnmerzt (1963) and Myres McDougaI, Warold Lasswell, and fvan Vfasic's ktw c.znd P~ihtl'cOrder Space (19631, birt it has also been the sub'ject af considerable attcntian in tater years. GOVERNANCE OF SPACE SOCIETIES

Space Settlemends and the Law: Address of Justice William j. Brennain, Jr., American Law Institute Annual Dinner, May 21,198'7 Aflvajs cvith us are changes and de~elopmentsin the fact., new terrain tcj br; explored, understood, grappled with, fought for and constantly reassessed and applied under fire. So I thought it would not be inappropriate totlight, in this year of the Bicentenniat ut?... Here are some: since F~rthis part of space and in space and is part of the Cosmos, spice societies car1"tsever their ties with Earth. Is Earth then tcl determine the shape or nature o f governance in space? lf so. isn't space then just a new continent, as was aur own when the Mayflower landed, to be explored as was our own by several nations-the Spanish, the French, the Portuguese, the English? Should an) Iawv then br; made for a space society in advance af actual sealement? ... What is the best historieal model the Mayflojver Cornydct, the Articles of incorporation of the British F ~ s India t ('ompany or cvhatever"? ...ff the linited States creates a societj populated by li.S, citi~cns,what federal law should govern that society. ... [dlocsthe eonstitution tizllo\v the flag sr:, that its protections are available to every resident of the spacl: settlement? Indeed, the American l,awv fnstitute itself co-sponsored in Not ember 1981 the International Ccjnference that debated issues an Doing Business in Outer Space: k g a l issues and 13rdcticalProblems, Moreover, Congress has extended fecferdl crimind labvs to punish criminal conduct on the Moon or other celestial bcjdies and in space craft outside the Farth's atmosphere, indeed, a fee-district court and state court decisions have extended American domestic Xawr to the solution of outer spacl: problems. And dcdubtless, too, man) lawyers here tclnight have already had occasion to counsel clients an space law. Rut 1 suggest that the actual eswblishment of spice settlements will confront the professiotl with enormous new responsibilities that we ought to prepare for as thorclughl) as eve can. For it is accepted bp all of us, i am surc, that the llnlled Statcs must be, and must k ccjme uneq~tivocallycommitted to space exploration and exploilation and the settlement c3f space bj Americans, Qur trerj surviwaI requires no less, We have to keep in mind that Russians, Japancsc, Europeans, and South Americans also have asserted interests in o~tterspace. "The Smithsoniall institution Press recently published a lel~gthyand erudite treatment eclaration%treatment of self-got ernment is imclear as cvclf: it docs not make clcar Fvhethcr thc transition to sclf-government means one of complete independence as a new sovereign nation, or simply the inclusion of the space society as a setfigc~i erning but not sovereign entitj such as Puerto Rico or (speaking practically, regardless of sutes' rights rhctarie) any one of the United S"Etes. Here a bit more specificit> cvoutd hatre been nice. ff space scxieties are tc~become fuilfy indepndent, then some measure such as Article "73af the tinited Na-

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tions pic.In order to eont ~ c intellige~lt t beings of less development than our own, we must go to them, which is likely to be difficult since there is no ekidence ojf any life in our solar system beyond the earth" biosphere (though the possibility of such life continues to exist, based on present knowledge), Beings of greater development that1 our otvn-or perhaps even those cvhose development is mughly equivalent to our own except for a degree of supcriority in space transprtation -may instead come to us. How we shall deal with them poses fewer moral dilemmas, but greater practical difficulties. Such beings may be friendly or hostile. Some cvriters on the topic fear that the latter is more like1y. As Gregg Easterbrc~oksays: The most disquieting aspect of nattrrat selectic>nas c>bsewedc111 Earth is that it channels intellect to prcdatcjrs, Most bright animals arc carnit ores: stajking rcquircs tactics, pattern recognition, and, for social animals, coordinated action, all incilbators ot' brainpower, ?"hough the martial heritage of mankind has been exaggerated in

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popular fiction (there's no proof, .For example, that: our Crct Magnon ancestors waged war against the vanished NeanderthaIs), it's reasmably cert;tin that the foreb a r s of modcrn Ho~zoSapieru wcrc hur-tters, clnd it's definite that man has been satrage during the histczrical era. This isn't much czf a testirnoi~ialto *'i~~teIiigence" Ins a civilizing influence/.

Fasterbrojok, sctpw, at 37. On thc other hand, even if such bcings were friendly (at least by their own rights) we might be well to be cotlcerned, as we might not appreciate an> favcjrs they chose to dct us, And it is entire19 pssible, if they are alien enough, that the terns friendly or hostile might mean littlc as applied to them. In this context, Haley proposes a principle of "Wcklaw" "that constitutes a rec ised Gc~fdenRule: "Do irntct others as they would hatre jou do irnto them,'" As Halcy says, ""l"o treat others as eve would desire to be treated might \veil mcan their destruction." AA,Haley, Space Law and Goverclrnent 395 ( 1963). Clbcriously there are limits to such a principle, cvhieh appear cvhen the interests o f the others begin to collide with our ocvn (science fiction hns might calli this the ""Kingan CorolIav"") Ancl there is, natumily, no guarantee that other civili~ations~vouId adopt the same triecv.. f & Vfasic arc: more ceoneerncd with matters of As al ivays, McX>ougal, I~sswcl power than Haley. "I%eqoutline a number of possible scenarios in which aliens qtiarantine the eafih (as too triolent), or in which grejups on earth conspire cvith aliens (or even with dissident groups ~vithinalicn societies) in various sorts of power-bloc games, or in which even an inferior earth attcmpts to use balance of power diplomacq (setting ri~aIalien groups agai~lstone anclther) to maintain its independence, Et is to be hovd that such ec~entualitiesremain as remate as they now seem; if they kcorne concrete, it might be ivorthwhilc to examine the ivays in cvhich earth societies hatre dealt with more pocverhl Ibreign rivals, either by absorbing conquerc3rs (as the Chinese and Indians have done) or by absorbing selective aspects of foreigr.1 culture (especial1y technology) c! hiIe retaining their own essential character (as the Japanese have done), Even ~vherc:supcrior alicn bcings art: dernonstrabty friendly bp our own standards of judgment, their impact on our swiety may be enorrnotts and not alcvays positive. The realizaticjn that other intelligent kings exist kvoutd imcfoirbtedly create considerable consternation ~vithinmany religions, for example, It cvoufd also have ma-jor secular effects: tlote horv impmnt an effect was created simply bq the Apollo photc3graphs o f earth from a distance, sho~vingour planet not as the vast expanse we cverc: uscd to imagining but as a smali l fragile ball in an enormous universe, its atmosphere so thin as to be barely visible. The result was a tremendous growth in envircjnmental consciousness that has nclt reached its end yet. See Hartmann, Space Explomtion and Environmental Issues, 6 EnvironmcntaI Ethics 227 (198LC)on this impdct of the space prcjgram. Although the impact of leaming that eve are not atone in the llniverse is difficult tcj estimate, it cvoufd likely be grcater still, As Fasterbrook says:

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A stock assumption is that the first question we would send to an extraterrestriai rad i o operator would be something like "How do you build a 10,000 megajoule

charged partielc beam?" t'or~siderthe ramifications if instead the question were ""Have you seen GocfYWany religions expound tiariatic>~~s on what Christians call the kingdon1 d God-the idea that human travails and celestial sufferancc of evil are a transitory sbte of affairs, to be replaced by prfect justice tvhen GlxJ manifests Wirnself and takes active control of events. .., So if any long-jived, alien race we might contact testifies that it has walked the cosmos for thousands czf millennia witbout encountering God or obtdining divine grace, a lot of air tvould. X " L I Sout ~ of the faiths WC Eat-Lhlings practice. Xf, on the other hand, thc aliens have met the aksolute and will tell us the specifies, human swiety will shake to its fortndations,

Easterbrook, supr~i,at 38, Cf. Cobb, 'I'heotczgy and Space, in Beland Spaceship Farth: En\iironmcnhl Ethics and the Solar System 29j (E. Hargrove ed, 1986). Clf course, religious believers on earth might repXj that Gcjd exists only for us, nczt far those un~vashedheathens from "Fau Ceti-and aliens cvho claim to have seen Gtxt may have cntircly difkrcnt ideas abut what that mcans, ar may be lying, either because they think that is what we want to hear or in order to totake adi antage of the opprtunity to make hirman societj "shake to its foundations." I f the beings cncountcrcd are: thcmscfves (by hurnanskwn reckoning) markedly superior, the problems created may be more drdmatic yet. 'rhough earth cultures varq in their assessment of their czcvn supriczrity or inferiority in relation to other cultures, there is gcncral crslnscnsus that humankind represents the top of the heap not only in terms of sophisticatiot~or techr~ologiealdevelopment, but from a sbndpczint of moral wczrth. Were cve to encounter creatures who scem~dta us (as accasionally appcars in science fiction films) aimost angelic, ~vouldwe be inspired to emulate them, or \vouId we despair of attaining their perfection and give up trj ing? And hotv cvould it: affect our assessment of our awn intercstsX~obertNokick has argued in Fdvor af a sliding scale af worth, beginning with inanimate matkr and continuing on~vardthrcjugh plants, animals, and ultirnatety humans, But he admits of the pt3ssihility of alien beings who arc (or at [cast scem to be) superior to humans, and suggests that this would pose unusual problems for moral philosophy, problems for ~vhiet?. it is unprepared: Some theologica) views hold that God is pcrmtttcd to sacrifice people ti>r his own purposes, We also might imagine people encountering beings fmm another plailet who trat erse in their childhood tvhatcver '"stages" oaf m ~ m development: l our develczpineiltal psychologists can identify. These beings claim that they all continue c311 through foufleen hfihcr sequential stages, each being necessary eo enter the next czne, "Howccier, they cannot explain to us (primititre as tve are) the content and modes of reasoiling of these later stages, These beings claim that we may be sacrificed for their tvell king, s>rat least in order to presercie their higher capacities. They say that they see the truth of this now that they are in their moral maurit y, though they didn't as children at what is our highest level of moral development.

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K. Nc>z/.,ick, Anarchy, State & titopia ( 1 9'74). rcbo~ickconcludes that currently ppular moral framecvorks offer no ar~swerin these ccjrcumshnces. See also K. Nozick, Philosophical Explanations 41'7( f 98 Z ) and 'Toolej, Would EZ'Is [Extm-Fcmestrial Intelligcncesl Re Personssin E"llilracr~stria1 Inteiligenee: The First Encounter (J. Christiar~ed. 196). It seems unlike11 that mar14 ~voutdbe persuadled by this argument, but if humans were to be m v i n c d that aliens were mcjdly superior (say, by aliens who dcmanstmtcd their goodness but who rehincd from spiling their image with arguments that t h e ~ q a ymordlly sdcrlfiee us to serve their otvn interests) the impact cc~uldbe enormous and det as~ting,much like (hut worse than) the dispiriting efkct af European conquest on many less advanced per)ples. (For an illustration of this impact see C, 'l'urnbut 1, The X~nelqAfrican (I%2).) On the other hand, human beillgs might be inspired bj the alienskc;amhave done historicalty. plc, as a sign that it is pssible to do bctter than By our discussion of the moral implieatiolls of conket with suprior kings we do nclt mean to suggest that there are no significant moral issues asscxiated with meeting beings cvho (again, by our own estimation, which may cvcll differ h n n that of the kings we meet) are inferior to or on a par with US, However, existing mcjral framecvorks governing our treatment of animals or our treatment of' athcr human beings address similar issues. With regard to relaticslns with suprior beings, the onIy fi.arnework that we have that even kgins to address the topic is religion. Various re1igions treat the matter different11, sometimes portraj ing humans as clever tricksters who can (and who are heroic when they do) deceive super11atur;nlerltities with powers greater than their own, and sometimes dcmanding strict okdience to the slightest cvhim of those entities, But religions, h j their nature, tend to be specific with regard to wlzich superior bcings they describe: they do not set out general mles h r dealing with such beings and they genemily involve kings who are nat meretj superior, bill supernsllurallj so. Although it may be that any sufficiently dvanced technology wilt sretn supernatural. it is unlikely to k so, ar~dfew are likely to believe that it is. indeed, given the number o f alien-mtact movies that have been made to date and their impact an thc pputar mnsciousncss, it is morc likely that angels visiting the earth uvoufd be greeted as eiitrakrrestrialstha11 tbat eextr;terrestrial s visiting the earth ~voutdbe greet& as angels, Nc>netheless,m t a c t cvith beings who appared trastly suprior to us wvutd have a dramatic. and prhaps crushing, impact on human socicty, and cushioning that impact, or channeiling it in productive ways, ~vouldbe a majtjor task for got emments and opinion leaders worit dcvide, On a narrower scale, the introduction of alien customs, technofogics, goods, and ideas \vould aIso be likely to have a dismptive impact on earth life. Authorities tvc~uldbe faced with difficult prt3hfems as to how they could smcjclth and e i e those disruptions while altorving thc necessary accammodations with individual and academic.f r ~ d o mand with the ge~lerillprinciples of an open world society. A iariety of legal problems, some pica] une and some interesting, would also arise. Far example, most murder laws forbid only the kilt ing of a human k i n g . l"hus,

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the killing of even an intefl igent and cultured cxtmtcrrestrial, however humanseeming in hhavior or (even) apwamnce, ~vouldprohahiy be legally indistinguishable from killing someone" dog-or prhaps subject to et.en less control, as many statcs spmifically forbid dog-killing by unauthorized prsons. On another front, existing regulatiotls requiring ywarantine of anyotle conkcling extraterrestrial matter (discussed at the end of Chapter 8) cvczuld came i~lttzplay, as dmmatiad in the movie E.7: Ciiven the exeitcmcnt attendant upon eonkct with alien beings, however, most s~rchlegai q~testionsare likely to be pushed to the side at feast at first, and cve do n d consider them worth addressing at an] length here. Finally, at the extrcmc cnd of the remoteness continuum lies a favo~teidea of science fiction ~vriters:the pssibifity of ineorprating the earth or parts of it into f sczme sort of of erarching organi~ation,cvbether called a "United Federation o Planets" or whatever, MeDougaif, i~sswclf& Vlasic discuss this issue at some length, but seem to treat it as a purely diplomatic issue when in Fact (although the diplomatic prcjbltems cvoutd be far more apparent) there cvouid be legal difficulties as ~vc.11.'Fhe tinitd Nations Chartcr makes no provision for 17N membership in other organimtions, meaning that ally treaty bringing the earth into a larger orf ganixatian cvczuld have to be negcttiated piecemeal to encczmpass the hundreds o different sovereign entities on the planet, a task sure to prove difficult and divisive. Alternatively, the Unikd N;ltions Charter could be amended (with the cotlsent of its rnernkr governments) to allow it to represent all nations and to enter intcsl appropriate agreements. (ietting agreement on such a task might be marginally easier, and somewhat less divisit.?e. From the standpczint of tinited States facv, et en a treaty making the lJnited States a member of such an organi~ation~vouldk open to later ahrc3gation bp legislative efforts, See X,. Tribe, American Constitutional L a ~ v225-26 (2d ed. 1988) and sources cited therein, As a result, on14 a constitutional amendment could place the [Jnited SQtes into an organic relatim with a greater body, In the current plitical climate s~rchan amendment could never be ohbined with regard tcz membership in a purely earth-centered organization, raising dcjubts as to how voters would view membership in any sort of interstellar organization-indced, U.S. membership in the tlnited Nations, which enQifs no loss of sovereigr.~ty, is cantrolxersial enough at times, Fortunately, this issue is irntikefy to arise in the near future, so any dctaijed spculation regarding eunent laws and political attitudes is likely to prove pointIess.

Reyxlalds, XnlernatiorraX Space Law: Into the Wenty-First Century, 25 Vamderbilt journal of TransnationaI Law 225 (1992) Although the likelihood of this sort of event is quite Xiterdlly ineale~rlable,the f preventive laiwvqcring potential consequences are significant enough that a bit o may bc in order. -The world community, in dmcving back from the nuclear brink

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(something that itself seem& cvildfy unlikely just a few years ago), has already taken one major step toward rendering itself better able to dcal with alien con&ct. A logical next step cvould be for lawyers, scientists, and other interested pafiies to? begin thinking abt~uthow such a contact ~vouldbc managd if it should occur, And, in %et, that very thing is beginning to happen. A recent publication, First Conttrct: The Searclz for Extraterrestrial Irztelligevrce, IBen Bova & Byrcln 13reiss cds. 1901 has brought together a numkr of such pafiies (including one lawyer) to address just this problem. The book is highly recommended to those interested in the subject. Furthermore, a numkr of scientists involked in searching for extraterrestrial intelligence have drafted a declaration of principles governing such detection. The text of that declaration tizlfo\vs:

DecIarsttion of Principles Concerning Activities Foilswing the Detection of Extraterrestrial Intefligenee WC, the institutions and individuals partieipting in thc search for cxtratcrrestrial inkIIigenee, Keeclgnizing that the search for extraterrestrial intelligence is an integral past of space exploration and is being undertaken for paceful purpjscs and for the common interest of mankind, Inspired by the profound significance far manki~ldof detecting ekidence o f cxtraterrcstriai intelligence, even though the probability of detection may br: low, Recalling the Treaty on Principles Governing the Actit-ities of States in the Exploration and Use of (2uter Space, Including the Nc~onand Qther ("elestiaf Bodies, which commits states as partics to that treaty ""linfom the Secrcbry Cerremi of the 1;Xnited Nations as well as the public and the intertlationai seientific commlmity, to the greatest extent feasible and practicable, of the nature, conduct, locations and results" of their space exploration activities (Article XI), Recognizing that any initial detection may be incomplete or ambiguous and thus require careful examination as \vet1 as cc~nfimation,and that it is essential to mainbin the highest standards of scientific responsibility and crcdi bilit], Agree to observe the foIIowing pri nci pXes for disseminating infc~rmationa h u t the detection of extraterrestrial inteltigenee: I . Any individual, public or private research institution, or guvernrnentaI agencj that beliekes it has detected a signal from or other evidence of extraterrestrial intclfigcnce (the discoverer) should seek to verify that the most plausible explanation fizr the evidence is the existence of extrdterrestrial intelligence rather than some other natural phenomencln or anthropogenic phenorncnon kk3re making any public announcement. If thc evidence cannot be confjrrmed as indicating the existerrce of extraterrestrial inteiligenee, the discoverer maj disseminate the information as appropriate tcl the discoveq of any unknown phenomenon.

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2, Prior to making a public announcemcnt that evidence of extratcnestrial intelligence has been detected, the discoverer should promptlq inhrm all other observers or research organizations that are parties to this declaration. so that those other parties may scek to confirm the diseoverj) by indcpndent observations at other sites and so that a rretbvork can be eshblished to enable cotltinuous monitc~ringof the signal or phenomenon, Parties tc~this declaration should not makc any pub1ic announcement of this infc3mation until it is determined ~vhetherthis infc~rmationis or is not credible evidence of the existence of extraterrestrial intel ligence. The discoverer should inform hislher or its relevant national authorities, 3. After concluding that the discovev apwars to be credible evidence of extraterrestrial intelligence, and after inft>rmingother parties to this declaration, the discoverer should inform observers throughout the Fvorld through the Central Bureau far Astr~j~lomicai 'Telegmms of the international Astronomical tinion, and should inform the Secrctarj General of the linited Nations in accordance with Aaicle XI of the 'f'reaty on Prineiplcs Cioverning the Activities of States in the Exploriltion and Use of Outer Space, including the Ncxln and Other C'elestial Bodies. Because c$ their demonstrated interest in and expertise concerning the question of thc existence of extraterrestriaf intelligence, the discoverer should s i r n u l t a t e u intizrm the following international institutions of the discovcq and should proi ide them with all p r t i nent data and recorded in-formation concerning the evidence: the f nternatiotlal 'X"eXecommunicationUnion, the Cornnnitke on Space Research o f the International Council of Scientific tinions, the International Astronautical kdcration, the International Academy of Astronautics, the International Institute of Spice L a ~ vand Cornnnissio1151 of the f nternatio~lalAstronomical tinion. 4. A eonfirmcd detection of extraterrestrial iniel t igcnce should be made available to the international seier~ti fie community through pub1ications, meetings, conferences and other appropriate means. 5, All data nccessaq for confirmation of detection should be made available to the international scientific community through publications, meetings, cotlferences and other appropriate means, 6. The discovery should bc eonfirmcd and monitored and any data baring on the evidence of extraterrestrial intelligence should be recorded and stored permanently to the greatest extent feasible and practicable, in a form that wilt make it available for further analysis and interprehtion, These recordings should be made available to the international institutions listed above and to members of the scientific community for further objective analjsis and interpretation. 7. ff the evidence of detection is in the form of electromagnetic sigr~als,the parties tcl this declaration should seek international agreement tcl protect the appropriate frequencies by exercising thc cxtmordinary prmedures cstabt i shcd

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Solne 1;i;stlc.sof the Future

Fvithin the World Administrative Radio C'ouncif of the InternatlonaX 'l'elecurnmunication Union. 8. No respclnse to a signal or other etridence of extraterrestrial intelligence should scnt until appopriate internaticsrnali consufl.lttions have takcn place, 'l'he procedures for such consut&tionswifI be the sub.iect c$ a separate agreement, declaration or arrangement. 9. l"hc SEFI Commiuce of the fntcrnational Academy of Astronautics, in coordination with Commission 5 1 of' the Intert~ationaiAstronomical Uniotl, will conduct a continuing ret iecv of procedures for the detection cjf extraterrestrial intelligence and the subsequent handf ing of the data, Should crediblc evidellee of extraterrestriaX intellige~leebe discovered, an intert~ationalcornmittee of scientists and other experts should hr;established to serve as a focal pint for continuing analysis of all ohserttational evidence collected in thc aftemath of the discovety, and also to provide advice on the release of information tcl the public, This committee should be constituted from representatives of each of the intcrnatisjnal institutions listed above and such othcr members as the committee may deem tlecessr-try.To PhciIitate the convocation of such a committee at some unknocvn time in the future, the SE17 Ccjmmittec of thc International Academy of Astronautics shoutd initiate and maintain a current list of willing representatives from each of the international instituticzns listed above, as cvellt as other individuals with reiet ant skills, and should make that list continuously available thrcslugh the Seeretariat of the International Academy of Astronautics. "The International Acadern) of Astronautics will act as the Uepsitarq for this declaration and will annually provide a current list of partics to all thc parlies to this declaration, Thc first pint to be made abt~utthe Declaration set out a b v e is that it is not a set of binding legal principles: it is an agreement among scientists, not among nations-though c$ cclurse it does nut necessarilb lose importance, or likelihocld of being folloived, because of that. Agreements among scientific r~scarcficrs have a strong histoty of being follc>wed,and this one is likely to be looked to should the etrent materialize. Another interesting pc~intis that the agreement, though it appcars to contemplate the receipt of extraterrestrial radio signals as the most likely mode of conQct, is not limited to such occasions. Paragraph I refers to detection of ""a signal from or- atlzer evidence cgextraterrestria1 intelfigence""(cmphasis added), a phrase that clearly reaches any situation in which cxtraterrestrial intelligence is discovered, from. radio signals to discolieq of artifacts, tc~outright t isits. Once discovery has "nccn made and confirmed, the ncxt question is what do we do? 'l'hat is, if we receive alien cornmurrications, do we anstver? Wunnalls have already attempted communicatian cvith alien species on a few occasions: through the gold plaques and recorded messages placed on board space probes

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whose trqjectories wilt ultimately take them into interstellar space, and through messages beamed frcjm mdio telescops to distant stan. 'l'his last efforl, originated by Frank Drake in 19'74, drew considerable criticism regarding the right of a small group of scientists to quite titemfly speak for all humanity cvhen the consequences might be incalculable. Qne might argire that such criticisms must be imfoundd: interstellar distances art: so vast, a k r all, that hostile efforts kttvecn stars must h prohibitively expensive, ancl besides, any alien spcies that might receive them would be so adt anced as tc~be knign and harmless. 'The trouble with such arguments is that there is no particular evidence to supprt them. As to technology, the het that we cannot currently cross inQrstellar disbnees is hardly a guamntee that others mlly not be able to--eve are, after all, only a fecv decades past k i n g unable tcj cross the distance bctwccn the Earth and its Moon. Anyone cvho has k e n at the game of space travel at all has prohdbly h e n at it longer that1 us. And even we could, with technology readily extrapolatahle firm the present, send small packages across interstellar dis&nms. If cvc Fverc: paranoid enough, those packages could conbin destructive nzinodevices, or viruses, or other kveapns tbat might be lethal even in that pamnoid, small quantities. I do not kliet e tbat humanitj is, or is li kel j to k, but it might not be wise to assume that other spcies ~vouldnot k, This kind of thinking, at any rate, will govern at least one kind of decision: thc decision ~vhett-rer to respond should we receive a message from extmtcrrestrials, especiallj if the distance is not sc~great that an) reply cvifl take thousands of years. As has bccn noted earlier, thc mere existence of extraterrestrials ~vouldh a Pact of prohundl social significance, even if we can't carry on anything resembling a conversation. But there is more to the y uesticjn of whether tcj reply or not than social or philosophical questions.

Reyxlalds, XnternationaX Space Law: Into the Wenty-First Century, 25 Vanderbilt journal of Transnational Law 225 (1992) [Tflrescientists in the fjeeld have considered this as well, developing a set of proposed rules to got ern contact cvith extraterrestrials once they hat e k e n discovered: Proposed Profw~Ifor the Sending of Communications to Extraterrestrial XxlteXligemcie 'I'he Sig n ~ r i e agree s that communicaticjns cvith extraterrestrial intell igence will k guided by thc following principles:

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1 , Ccjmmunications cvi th extraterrestriaX inteX t igence will be undertaken on behalf CA' at1 mankind, rather than specific nations, groups, or individuals. 2, Nations, organi~ations,and individuals will not unilaterallq send cclmmunications to extratenestrial inteliigence until appopriate intcmational consultations have taken place. 3, 'The Signwrjes cvill not: coclperate cvith attempts to comm~rnicatecvith extraterrestrial intelligence ~vt-tich do not confc~rnto the principles in this protocol. 4, An international group including representation from all interested naions wilt bc formed to deal with the question of \vt-tethcrsuch a communication should be sent and, if so, what its content should be. 5. fC a decision is made tcl develop a comm~micatictnto extraterrestrial intelligence on behalf of mankind, the fol towing principles will be observed: a. Respect h r the value of fife and intelligence. b. Respect far the value of diversitl); including respect for different customs, habits, languages, creeds and religions, appoaches to social organi~ation,and styles of life. c. Respect for the territorj and propert:, cjf c~thers. d. Rec~slgnilionof the will to live, e. Recognition of the need far living syice. f, Fair play, justice, mercy. g. Reciprocity and qujd pro quo. h. Nonvictlation of othen. i. 'Ikuthfulness and non-deception. j, Peaceful and friend1y \veXcorne. k, Coupcclrdtioa, I. Respect for knc~cvledge,curjosit:,, and learning. 6. l"hc drafters of a comrnunicaticsln to extraterrestrial intelligence cvi ll consider dctailed infc~rmatioaabout mankind to be a commodity of high value which will not be transmitted without due attention to hirman security and cvell-hing, and to reciprmity 7. fn the event that extraterrestrials appear to pose a threat to human health, well-king, or peace, no nation shall act without consulting the Sec~rrity Ccjuncil of thc United Nations.

'I'hough less ambitious than some of the schotarf~cvritings mentioned earlier, thc proposed rulcs do rceogni~csome irnprtant points. First, conbct with afien intelligences ~vouldrepresexlt an event so impmnt that a decent respect for the cveliibeing c$ humanit:, cvouid farbid an] individual or single nation from going ahead cvithout proper consuXtntion, Second, that deafings with extratenestriaf beings ~vouIdset s ~ ~ an e h impomnt precedent that they should be collducted in a manner that is straightfortvard, honest, and considerate. lqhird,that the stakes would be so high that we should be cautious in revealing tcw much until we are

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very sure abt~utthe consequences, And finally, tl.tat nations should make respotlses to any threats a global matter, not an individuai one, In the unlikely but horrific circumstances of an eneclunter with hostile aliens, we would want all humanity united from the beginning, Clne Fascinating aspect of the draft proposal-and, indeed, all thinking about contact bvi th extratenestrialS- is the cvay in w hieh our trisi~nof suck contact, taking place as it dcxs against a blank state, is in targc part a product of our arvn hopes, fears, and predispositions. Bctitreen the lines in both of the scientists"doeuments above is a sense that thej cvclufd most fikelj be curnmlrnicating with their apposite numbers-aliens, pcrhaps, but aiien scientist*^, On the athcr hand, a heal thy dose of' caution remains, perhaps because scientists thernseives know, from lung and sometimes bitter experience, that while dcbing their jobs they are often doing the bidding of cr>thcrsless scrupulous. Our visicsln of intelligent aliens has ivavered back and forth over the years-sometimes, reflecting Cold War paranoia, thej are triecved as matevofent invaders, either wielding kveapczns of fearsome destructiveness ar cvcaving deceptions of astonishing subtlety, or bath. Clther times they are pictured as noble teachen, far better that1 we poor humans, came to satreus from ourselk es and bril-ig us enlightenment. In realits, of course, neithcr is tikcl~to be true. The anc thing I fed Pd'lilir1-jconfident in predicting is that if ive ellcounter inkIIigent extraterrestrials, we ivill be surprised no matter how much we hat e thought a b u t the subject;, Surprise is fikelj, and panic is ceminlj not out of the question. One of the greatest challenges for tacvyers and poIieymakers in thc event of alien conuct will be to ensure that all concerned (at least on the human side of things) keep their heads. Whether it atlctivs the fomullztion o f policies tha proi e useful in the event or not, thinking about contact with extraterrestrials in advance cvifl at the very least probride a highly ~vorlhwhileinoculation against "keonec.t shock""at the time. 'That aalclne is prcjbablj enough to justif5 the entire i enture. For though the t ikeli hood of such conwt taking place is impossible to calculate, thc magni tude of its importance ivould be enormous, ancl the time far reflection might be short. Against this ekentuajitj, a small iniestment in farethttught seems cvise.

Conclusion The E ~ ~ . ri,tl zthe cradie ojthe ~ni~ul, but o~zecarzrzot rentai~lin the crcrdIejorever. .- Konstmtitl TsidkovsiiS,

In the intrc~dtlctionto his excellent histclrj of the space age, ... the Heavens artd the E~rflz:A Political Hisrtclry nftizc Space Age (X985), Walter McT>ougalf

compares humankind" emergence into outer space to the emergence of the first lungish from the oceans, cl'hough dramatic, this comparison is not of erdratvn, The emergence of humanity into spaces kyond the carth represents a real qualitative change in human existerrce. Over the nest centuries, if apdirs on earth are not too bad11 mismanaged, humanity will spread to a iarietq of locations outside thc earth. carrying with it parts of earth" biosphere as it gocs. Some writers, indeed, have suggested that this is humanity"~real role: if one believes, as adherents of the so-called Gai~zh) pothesis do, that life on earth can in man] respcts be viewed as one mcta-organism, then humanity" role may in targc part be that of me&-gamete, carrying the seeds of life to new en\iirc:,nmentswhere it could ncjt hatre evolved, and tvhich it could not have reached, in other cvays, Whcthcr onc accepts this description or regards it as so much scicnee fiction, there can be tlo question that the exrax~sionof humaniv into outer space will be a drama and a challenge far which there is no real counterpafi in recc~rdedhistory. The great age af earth exploraticsln is thc closest analog, but although European discoverers played a vital role in ulliting the globe into one tletwork of commerce and communication, they ""diseovcred"~mmostlq places that were already inhabited bp human kings, although in their rathcr ethnocentric view the discoverers did not al~vaysrecogr~izethat Facr. By contrast, in exploring space explorers really dc:, go ""clhere no man has gone before," use the stirring (if a trifle sexist) language of onc popular television program. Some of the consequences of this expansion will be beyond the purview of ' ourspacl: Iatv; thej will instead constitute basic changes in the waj we triecv selves and our cvorld, To a degree this has already @ken place: the Apof lo photogmphs of the earth as seen from the moon have had dramatic and lasting ef.t fects on earth-based trietvs of pjlitics and the environment. Writing prophetically (as usual) in X 959, Arthur C. C'larke described this cffcct:

We all know the namow, limited type of mind which is interested in nothing beyond its town or trillage, and bases its judgments or1 these parochial standards. We are siowly-pcrfiaps tau stowly-cvotving from that mentality totvard a wortd outlook. Few things mill do more to acceferate that evoltrtion than the conquest czf space. It is not easy to see how the morc extreme forms of nationatism can long survive tvhen me11 begin to see the Earth in its true perspective as a single s~naflgtobe among the stars,

[A, Cl'larke, 'The Challenge of the Spaceship 7-8 (19$9).1 fn addition, the adventure involi2edin mccting thc ehallcnges of expanding into space is likely to encrgite all of earth society. The following excerpt discusses how this might happen.

Reyxlalds, Structuring DeveXopmenC in Outer Space: Problems of Haw and Why, 19 Law & Policy in International Business 433 (l987) I think that ive should also louk at the more immediate effects of spiice clevelopment on those of us left behind. ... Eveq one shares in the excitement of a frontier's opening, and its dynamism filters back into cverydal)i lift?, Many historians believe that the dynamism and vigor of the East Coast business community during the mid- and late nineteenth centuq resulted from the psychological effect of thc cvcstern frontier. [For the most cvidely known of such arguments, see F.J. 'Turner, The Frontier in Amerieatl Histoty 1-38, 290-3 1 1 ( 1920).1 f n the same cvay, it may be that much of the dlnamism and vigor of [].S, sc~eietyin the 1960s was a product cslf the cxcitemcnt gcncrated bp the moon program, and that much of the malaise and pssimism of the 1970s grew out of the ti.S, retreat from outer spacl: in that decade. These examplcs are far from thc on1y ancs aciailablc, Perhaps the most striking example of the opening c.tf a new frontier energizing a ivhole society is that of l;;urctpe at the opening of the Age of Discoveg. In his classic biograph~,Samlref Eliot Morison describes the impact of CofurnbusVcSiscovery on a continent sunk in despair and sbgr~ation: Ar the end c>f the year l492 most men in Western Europe felt eticeedi~lglyglooiny a b u t the future, Christian civilization apparcd to bc shrinking in area and dil iding into hostile u11its as its sphere contracted. For over a century there had bee11 no irnin naturaj sctcnee, and rcgtstratlm in the untvcrsitjes dwindled as p ~ a n advance t the instruction they offered hecaine increasingly je-june and lifeless, lnstitutiorzs were decaying, \veil-meaning people were groivictg cynical or desperate, and many intelligent men, for \+ant c>fsomething better to do, were endeavczring to escap the present-through studying the pagm past. .,.

Yet, even as the chroniclers of Nuremberg were correcting their proofs frcm Kobergei's press, a Spanish caravct named Nifia sctrdded bcfczre a winter gale into

f i s b n , with news d a discovery that was to give d d E r ~ r o panother chance. In a few years we find the rnecltal picture colnpletely changed, Strong rnonarclts are

stamping out privy conspiracy and rebellion; the Church, prgcd and chastened by the l>roteslant Reformation, puts her h o ~ ~ in s eorder; new ideas flare up throughout Italy, France, C;ermanj and the northern nations; faith in God ret Ives and the human spirit is reneived. The change is complete and astourrding. ""A rreiv envisagernent czf the ivorld has begun, and men are no longer sighing after the imaginaq golden age that Iay in the dislallt past, but speci~latingas to the golden age that might possibly lie in the onco~ningfut~~re-" Christc~pherColurnbus beforrged to an age that tvas past, yet he became the sign and s y m b l of' this ncw age of h o p , glory and accomptishment, His medieval faith ilnpellcti him to a modern solution: expansion.

[S. Morisoxl, Admiral of the Oeeatl Sea: A Life of Christopher Colurnbus 3 ( f 979).1 Perhaps a major cvorldcvide commitment to outer space projects cvoufd

unleash the sarnc sort af energy on a glokdl scale, ushering in a nccv period of growth and optimism that ~vouldbenefit evevoxle, but especial1y the poorer countries that suffer mcjst from any cvwfdtvide economic dcjwnturn. And it might be that the ehallcnge and excitement af expanding into outer space would divert energj and attention abvay from ~varlilieaetjvilt;y by prcjviding a wacehl outlet for feelillgs of naional pride and the need tc:,overcome obstacles, Physicist Frccman D ~ s a nhas argued along thcsc lines in his btmk Weaporrs and Hope. In looking far ways to overcome the seemingly intraeabie prohiems posed by nuclear cveapons and superpclwer conflict, he notes that President Kcnncdy pursued the moon program with the specific intent of providing an autlet for the fmstrations created by the conflict with the So~~iet 1;Xnion: A p l l o was to b what Will iam f amcs had called for long ago, a moral equitiafent ot' war, The idea was to escape from the stuckness czf Sotiiet-American politicat yuarrels by bating the Russians in a blooctless tcchnczlogl'eai comfxtieion instcad of by beating them in battle, The idea was a good czne, and up to a point it ~+c>rked. It stclpped ivorking when the symbolic battie o f Apollo was displiiced from the focus czP public attention by the real battle czf Vietna~n.IlJnfc>rttrnatety,nobcxfq since 1961 Itas repeat-ed Kennedy" tactic of delikrately corn~nittit~g a corrntr) to a daring nonmilibry enteprisc as a substitrite for the exeitcments of war. Xt is n tactic which wc could profitably use again,

[E Dp"on, Weapclns and Hope 219 (1984). 1 it certainly seems worth trying. Quter space is not cheap, but compared to what the world spends on defentie it is pmctically free. l"hosc cvho are ~villingto swnd hundreds af billions af dollars on tat~ks,guns, and rnissiIes in the hope that they will deter a tluelear war ought to be bvilling to spend tens of hil1ic;lnson outer space in the hope that it evil1 pre-

vent the suprporvcrs from reaching the point where deterrence takes on immcdiate ssi gnificance. "Though the Cold VVar apwars to have receded, the cotleerns outlined in the preceding excerpt remain i afid. A humanitj that loclks outtvard is likely to be far more constructive in its behavior than one that perceives life as a zero-sum game. Of course, for expansion into sinace to have these sorts of eRects it must be carried out on a global scale. ff it remains the enterprise (.l"ont-?,a few nations, then it may not bc seen as a pra'ject of hitmanity as a wholc. During the pioncering shge this has not been true: the Outer Sptace "Treaty describes astronauts as "envo)js of mankind,'? and that is far the most part the cvay they hate k e n perceived, As Apollo X 1 astronaut Michacl C_"ollins rec~sluntsin his excellent history of the spice program, Tratielling aro~mdthe wc)rld several months after the flight, I was continually imprcsscd by the h e t that no matter wherc WC wcrc, the reaction was the same and, to me, unexpected. Never did 1 hear, "MUl,you Americans finally did it," AAfitays it was "WC," WC ht~manbeings drawn together h r one tlectixzg moment watching two czP us watk that alien surface,

M,C_"olfins,Idiftoff 161 ( X 988). Settlers arc: different from explorers, though, and they will Iw perceived ofiffc~ntlq,if the tlations of the evorId are to continue to see space as a domain for htrmanitl and not an enclave (l'a fat ored few, some cvaj of broadening pafiicipation will have to be found, Et may be that the spread of technology to the 'X"hirdWorld evil! be enough; cefiainly that spretrel has occurred Fir faster than anyone (especially 'I'hird World economists) thought possible, and atready Third World opinion leaders like China, India and Brazil have credi bfc spee programs. 1f s ~ ~ ics htlot enough. then some other way of promoting meal?i~lgfufparticiwtion (which means more than a sirnple rake-oR of an> profits that happen to cmcrge) must tw: found. For more an this see Reynolds & Merges, The Role of Commercial Development in Preventing U"ar in. Cluter Spdee, 25 f usinnetrics: Journal of hwv, Science & 'f'echnofogj 130 (lfd85), Whatever is done, space tawycrs will play a crucial rote, ~vhetheras advocates for clients ar as poficymakers, a role almost as common to those in the legal profession. In general, though, the kinds of considerations discussed aboie ivill not directly afkct space lacvyers, al though they may very well shape the cnvironrncnt in which they operate. 'They do, hc>?kcver,explain in part why considemtions of spacl: law wilt have greater importance than just that inherillg in the particular issues they involve at any given time. As they deal with particular issues involving, say, rights in space resources or regulation of commercial space launch companies, space lawvyers should bear in mind that bad faw in those areas can create

considerable obstacles to the overall goal of humanity"s expansion into space, while good law could do much to pprmote that goal. As Chapter 1 describes, for example, the British Explosives Act effectively blocked anq British wczrk on rmketry in the 1930s. a time when Americans, Germans and Russians cvcre making great strides: by contrast, new legal structures in the United States in the 1980s appear fat this cvriting, at feast) to be creating an explosion of innovation and entrcprencurial activity. In a different way, a aeofiseatory regime relating to the development of spice resources might drastieallq scale hack the scope of spacl: efforts for decades, cvhile an intelligent one mixing incentices far developers with meaningful ehanncis for less developed ersluntry participation might stimulate eeonsidernbIe efforl and simultaneously help lift mally of the ker~zrjd's poclrer nations out of p c ert:, . In short, good tacv can make a great difference. 'f'hc development of speciali ~ e dlaw relating to maritime afpdirs i s gel~erallyregarded as having encouraged a flourishing shippi~lgindustry and promtjted widespread globat commerce in a way that, more often than not, reduces global tensions rather than increasing them. This development was not accidental, but the result of dclihrate goverclment and industrj efforts, See Black, Admiralt:, Jurisdiction, Cl'ritiqire and Strggestions, 50 C'olumbia Iacv Kec~iecv260 (1950); C;. Gilmore &L C. Black, 'f'hc Larv of Admiralty 958 er seg. (215 ed. 1975). See also Landes, European Expansion: 'I'he Histoy of Innovation and 13erfomance,in 'I'he Global Ekcznomy: Divergent Perspectives on Fxonomic Change 25 (E. Gondolf, I. Marcus & J, Dougherly eds. 1986) (describing grorvth of global trading system). "The ehalfenge far policq rnakers and lawyers alike in the space arena cvilt br; to duplicate this task. Iarvyers who understand this challenge, and try to mect it, rvilf be 40ing a hvor not only to the rvorld at large, but also to their cliex~tsas they rvifl, for the most part, then be swvimming cvith the tide illstead c$ against it. It is our h o p that this alji too brief vofumc makcs some contribution to that cndeab~or.Space hi\;like space *light itself, is a relatively new thing, and ,just as todaj 's Yc~ungAstronaut Corps members are tomomcv's astronauts and en,'olneers, so are today 'S law students tornarrtjcv'S lacvyers and pof icymakcrs, It wilt be their task to deal with the challenges p s e d by the next century in ways that will make our cvclrfd, and the new cvclrlds jet unconquered, a better place for all humanity,

Credits The excerpts in this bcwk are kaken from the fcrllotving sources. Pennissic~i~s to reprint are gratefu'utl j acknowledged.

of the S p ~ c e Walitcr A. Mcl20ugal1, .. . The Efear:erts and the Eartlz: A Politicat Hi~top.?: Age 43, 185 ( N e w York: Basic Books, 1985). Copyright Q by Rasie Books, Inc. Reprinted by pmisston of the publisher, Radford Byerly, Jr., "The Cornmereiai/Trrdustria1 Uses of Space,"' in Beyond Spacwlzip Earth: Environmert&l Et/2icCf and tlte Solar Sysfcmt, edited hy Et~gencC. Hargrovc (San Francisco: Sierra CIub Books, 1986). Copyright (c" l986 by Eugene C. Hargrutie. Reprinted with pcrmtssion of Sierra Club ISot~ks, "hrver Slations in the Sky," in Tlze ft!ustr-ated Encyclopedia of S p ~ c eIlechrznlogy 226, Kenneth Gatland, ed, (Loi~don:Salarnandet-Books, IN),Copyright 'C I984 by Salamander Bcwks, Ltd.; reprinted mith prmission.

Chapter 2 Hamittcm DeSaussure, "Maritime and Space I,aw, Comparisons and Contrasts (An Oceanic View d Space 'I'ransprt),'" Jooumal of Space h w 93 ( 1981). Capjiright "c.) by Harniltm DeSarrrssrrre; reprinted with pennissiori~. for Space: Law arrd Politics in Air, Sea arrd Otkfe~")" Space 179 White, f)eci~I'0rz-~Wakiz2g (West IaFayette, I11d.: Purdue Research Fczundatiurr, 197L ). Copyright (c" 197 1 by Purduc Research Fot~ndation;ref-trintedwt th pcrmtssion, aand E~~ze~.ging ftzternntiannl h t v f 6 l (Montreal: InNichulas Matte, ed., S p c e Acdi~itie~s stitute and Centre of Air and Space LAW, MeGIII tiniversity, Montreal, Canada, 1%!M), Copyright c,i 1984 by Nicholas Matte; reprinted by permission. Myres McDougd and I,em I,ipson, "'Perspective for a Law of Outer Space," 52 Atrzeric~rzJourrtal ofZ~.~~c.r~zutionat L r ~ w4.07 ( t 958). Copyright b 1985 by American Saiety md c9f the authors, of Internationat Law; reprinted with permission ofthe Stxier_?!

Chaptc3r 3 !>hilip Jessup and Howard 'I'auhcnf;"eld,""'i'he liniicd Nations A d Hot Commlttce on the clfl~zfemationnlLnw 87"11959}. kaceful IJses d Outer Space," 53 531tzericaraJo~~rnnl Copjright t 959 by American Society of Xntcmational I,aw; reprinted with pcrmtssion.

Nicholas Mattc, ""?"heTreaty Banning Nuclear Weapons 'I'ests in the Atmosphere, in Outer Space and Under Water It O Octokr 1963) and the Peaceful Uses of Cltiter Space," 9 Anrzals of Ar'u aizd Space Ogw 391 ( 19234).Cowright 9 1984 by Instltt~teand Gcrjtre of ; with permission, Air and Space f ~ wreprinted X3aul C;. Dcmbling and I>aniel M. Arons, ""The E\roludon of the Outer Spacc l"reatg,"33 fourtml o/Air LIZ~wrzdGor~u~w~.ce -3 19 it 967). Copyright 9 1967 by Paul G. Dembling, Daniel M. A r o ~ ~and s , JournciI ufAir l z j u i f Cot~~~rzerce; reprinted with permission. Car1 Q, Christol, ""Article 2 of I967 EincipIes Treaty Revisited," Mr~nrzal.~ o j Air ajad Spcce Law 2 17 ( (f 984). Copyright r'; 1984 by the Institute m d Centre t ~ Air f and Space f a w ; reprinted with pcrmissian. d of the Arms Control tl~rovisisns," 7 John On; "The Treaty 011 Outer Space: A11 E r ~ utton C o l t t i ~ b JfarrtaE i~ of TransfzationalLaw 259 ( 1968). Copjright t 968, Colrrmbia Journaf of l'raizsnatioi~al1,ai.t. Assxiation, Inc.; reprinted with permission, Stephen Gorcrvc, "Arms C:ontrol 13rcltisions in the Outer Spaec Treat): A Scrutinizing Law f 14 1973). Reappraisal," Wewrgics Jactrrlal of Irztertmtiorzal arzd Coftzp~ratit~c. Copyright Q 1973 by Georgia Juurrzczl c$ ltrterrzczfiunal arzd Csrrtparafive Lczw; reprinted E+ it11 pemissio~1.

Chapter 4 Maric>nNash, ""6ontempc)rary Practice of the Ilnited Sbtes Relating to International Law lSection on Moon 7'reaty ],'Y4American f arimal ojfntevtrational Liatv 42 1 ( t 9N). Copyright (c" l980 by American Scxiety d irzternational law; reprinted with permissic>il. Stephen A. Spitz, "Spacc liaw-AgrecmenI Governing the Actiklties of States on thc Mocm and Other Ceiestial Bcdies,'" 21 t-larvard I~?terrtatiorAnalLRw Jo~rtmI$79 C 1980). Copyright 1980 by Narts~zrdfi~ter?uatiuaczl Ltzw hurn~zl; reprinted with permission, Eitei-ie C;atio\vay, ""lsues in Iinpleinenting the Agreement Governing the Activities of States or1 the Mcmn and flther Celestial Bodies," "mceedirtzg~ofthe Twen5-irhird Cc>/laquiiif~nzon the Law of Otlfe~")" Spnce 19 (Washi ngton, 13.C.: American Institute of Aeronautics and Astronautics, 1"3130).Copy right 225 Federal Employees Claim Act (FECA), 308 Federal "FortClaims Act JRCA),34, B 6 2 9 1,353, 354 Feldman, George J., C; Fiber optic cable systems, 220,224,233 Finch, P2ivard R., fr., 134 First amendment rights, 395-396

First Conf'nct:TIze Seavcjt;for Extrlzterre~triczIf~ztell$'@~zce (Bova & IBreiss),414 First possession rule, 173-1 76 ""Moating Itsland'2heory, 282-283 Foreign-co~li~try exceptioil, 289-290 hrcign policy coi~troiS, 26 1 -26% Forward conta~nii~ation, 205-206 Fr;inee, 60 Frequency bands, 158-1 65 FFCA. See Fedeml Tort Claims Act

Gaia hypotllesis, 420 Gallowaj. Eilene, 94 Garnma rays, 13 C;airthof^f',Raymond L,., W GAII'T. See Generat Agreement cm Tariff's and Trade General Agreement on 'l'ariffs and 'l'radc (GATT), 163,249,253,275 Gcostationary arc, 18-1 9 Geosldtionary satellite orbits, 23 1-232 Gcosynchronous orbits, 15 Glaser, Peter E,, 20 C;lenn, John, 2% Glohdl 130sitioningSystem, 19,266 C;lushko, Valentin, 2 Goddard. Kohcrt, 2 C;oidberg, Arthur J., 70,7 1 ,135 Gotdman, Nathan, 204 Gorove, Stephen, I30 Governments jurisdiclio~ratactivities for, 28@2X2 liability waivers pertainitlg &lC,, 3 16 regulation and deregufaliorr of space actt iiities by, 363-397 far spacc societies, 39 unreliabilityiunpredic&l;lbility of cmtracts with, 336337 Grab i ty manufacturing pmess and, 14 tveiglldessness and, f 4-1 S C;ross negf igeclee clai m, 326326 Grotius, Hugo, 5 C;uif wir, 269 Wale, M~vardE v e ~ t t2,

Haley, Andrcw, 7,303,398,410 Haskins, C;eorge, 174 ( . . . t/zeJ ifea~~ens and the Ear&: A Political History oJtJzr Space Age (McX2ougall), 420 Hcim, Barbara ELten, 166 High seas access and passage rights cm, 3 6 3 8 jurisdiction on, 278 laws got crning air spacc abut c, 404l High Seas Cont ention (1958), 28,3I, 35, 28 1,283 Hill, Peterf., 172 Hi story of aeronautical latv, 39-42 czP rocket teclrrzdogy, 2 4 of space travel, 1-9 Hohmann, Mlter, 3 HosenbII, Neil, I38 Howard, A.E. IDick, 399 Hubble Space Telescope, 21 Huffc?rd, 13. Rrian, t 32 Hughes Cornmu~~icatioi~s Galaxy, Inc. v, The tinited States, 33(1)--.335 ICAO. See International Civil Aviation Organization ICBMs. See Intercc9ntil1enbI ballistic missiles IFRB, See Interilativrral Frey uency Rcgi stration Board IGV. See International ('ieophysicat Year IMCO. See IntcnlationaI Maritime C'onsuf tatic e Organitation Indernnificatioi~fc9r liability, 305-3M Individual validated license (IVL), 270-27 1.273-274 Industrial technology. See S p c c industries INF 7'reaty See Intermediate Nuclear Fo~rces(IN);) Treaty Inherently public propefiy cr~ilcept,156 INMARSKF system, 121-1 22, I 2 4 Innovation patent protection and, 343-345 tcehnotogieal, 154-1 55

Insurance, liability, 304,305-306, 34 1-342,367-369 Intcllcctual property federal coInrnor1 law and, 359-362 international trcattcs and, 345-355 inventions in czuler space as, 343-345 patellt protection for. 154-4 55, 343-355 trade secret proteetioi~and, 355-360, 36 1 Intelflgellce satellites, 8-9,23,&, 47,72, 13546.93, l 56, l 89, l 95-1 96 Intelligent life in space. See kxtratenestrial beings INTEL,SA'f, See Interilatioilal 'Tclecommt_rnicatic)nsSateitire Organizatic>n INTELSAn" Agreement, 229-230,235, 236-241 Intercontit~entalballistic missiles (ICBMs), 83,X"I 96,264266 Intergotrernmenldl organizations need far judicial arm in, 124-1 25 troting rights in, 123-1 24 Intermediate Ntrclear Forces CINE.') Treaty, 1 00 InternattollaI Academy of' Astrc~nautics, 41 6 Internatto~laICivil Aviation Organizatioi~ (ICAO), 40,42,49,24 1 Interilatic>~rat Frequency Registration Board (XPRB), 21 5 2 1 8 Interilatiunat Geophysical Vear (IGV f , 6, 45,50 Interilatic>~rat Geospt?ere/Biosphe~ Progra~n,19 Intcrnational law basic pritlciples of, 25-27 liability claims and, 29-302 outer space law and, 27-47 Intcrnational Maritime Cmsultati\c Organizatic>n(IMCO), 24 f InternattollaI Radio Consultative Comi~ni ttee (CCIR), 2 l8 Internatto~lalReguf att 011s for Pretrentitlg Collisions at Sca (19"12),29, 32

International Satellite, Inc. (ISI), 223, 235-24 1 International Sca-Wed Authority (ISA), 133, 145 International space statlms, 280 Interilatiortal Spatial 7'ri bunat, 125 International pFeleeommunicatio~ls Convention, 2 f 6-2 17 International pFelecommunicatioi~s Satellite Organization ( X (V'X'EXASA'L') fmeign policy considerations and, 23%233 fornation of, 10, 14%- l49 IN1'EXdSAIX"Agreement, 229-230,235, 236-24 1 international memkrship in, 1X launch services contract E+ ith, 3 10-3 l9 lawsuit against Martin Marietta Cbrporation, 3 f 9-329 as lunar regime model, 145-146 public telecommunications scrviecs and, 237-240 satellite systems apart from, 223-233, 235-24 1 space co~nmunieationsbusiness and, 2 15,22&222 space segrnent authorization and, 236237 specialized telecommt_rnicatioi~s services and, 2 4 - B l structure and operation d, 126, 2 1G220 l1.S. role in, 232-233,235 voting prmedures of, 1 23-1 24 lnterilatiural Telecommunicatior~sl Jnion (KU), 49, 122, 124, 164215, 216218,231 Internatioilal trade communications systems and, 226 dual-use techrrdogies and, 2(i,3-2% dumping practiecs and, 25&255 economics of space industries and, 247-26 1 export controls and, 26 1-274 ""ruts of the rwad""negclliatioi~sand, 255-259

space-related issues in, 2 6 2 7 4 Internatict~laITrztffic in Arms Regulations (IlXR), 2 6 2 ( i 7 , 2 a , 269 Interilatic>~rat treaties. See Treaties Interparty waivers of liability, 3(&30X, 305,306307,309 IN7'ERSPlfTNlK system, 122,230 lntientions in outer space international treaties and, 345-355 ptent law and, 343-345 Investment, space, 13'7 Ion drive engines, I 6 ISA, See Intemationaf Sea-Bed Authority ISI. See International Satellite, Xnc. ITAR. See Intemationaf 7'raPfic in Arrns Regulations Il't J. See Inter~~allonal 'Telecom11-tt_rnic;i-1tioi1s tinion IVL. See Individual validated liccnse f ames, Witf iam, if22 Japartese dumping practices, 254 f avits, Jacoh K,, t 09 JEA. See Joint Encteatior Agree~nent Johnsocr, lyndoil B., '70,71.83 Joint cornpt.nsalio11, f 89 Joil~tE~~deavor Agreement CJEA), 342 f oi nt registration, 28 1 Jt~cliciaqAct ( 1'780), 279 f urisdictim cr~ilceptof, 276277 ht-et-gnemgloj ment practices and, 29 1-295 governmental alternatives fc9r. B 0 - B 2 national limits on, 277-2813 over space station activities, 2 7 6 B 6 sot ereignlcss tort ctal'ms and, %G291 of trade secret jaw, 357,35%363 Kr-lrp,Aarc>n,274 Kenncdq, John X;., 56,266, if22 Kepier, Johannes, 14 Kesster, I>onaId, 206 Kesster effect, 2% Koroletr, Sergei, 2 Krist, Ronald I),, 308

fJ Society. See National Spacc Society tagrange, Pierre, 15 f ,agrangian points, 15-22, 169 Land grabs, f 56- t 57 f,and remote sensing. See Remote sensing Land Remote Sensir~gGczmmercialitatior.1 Act ( t 984, 3W394 LANDSAT system, 190,194, 196-1 97, 1 99,38 1-393 f ,anham Act, 294 laser lar~nchsystems, 17 f,asswcll, Harold, 398 Launch serc ices con tracts for, 3W-3 f 9 defined, 364 dual-use dilemma and, 2W266 dumping practices and, 254-255 fedem1 regulations pertaining to, 372-3550 international trade in, 246,247,

255 latinsuits pefiainirrg to, 319-3253, 330---335 liability indicated for; 3 15-3 18, 339-342 "rules czf the road" negotiatioi~sczn, 255-259 sample agreement for, 33&342 See ~ 1 Commercial ~ ~ 0 Space L ~ t ~ n Act ch f,aunch Services Agreement (I,,SA), 330, 332-333,33&342 f ,aunch Services Purchase Act ( l 990),338 Lnw arzd Ptthlic Order in Space (Mel2ougal, Idasswell,& Vlasic), 398 l a w and Kegulatioi~of Internatioi~alSpaee Ciommunication,2 1 5-2 1 6 lasc.iess regime, 1'72-1 '73 f,aw of the commons, t 69 Latl: SA' the Sea Go~~ference, See llaited Nations Conference on the Latl: SA' the Sea l a w of the Sea Treaty, B,12 1-1 22,126, 130, 132-134, 140, 142 l d K s .See I,ess deveioped countries ""lamed Hand" "~Wbencfitfomula, 328

f,eff, Arthur A., 172 l X 0 . See l AIW Earth Orbits Less cfevelopd countries (I,DCs), 166, 2 19-220 Lex toci drlecti rut e, 300 Ley, Wiliy, 3 liability for cargo dainages, 306-306;: in Chtzlle~tgerdisaster, 308-3629 conflicting concef-tlionsof,t XI -l M for &amage caused by spaceerdfts, 37-38,74-75,187-189 defining rules for, 160-162, 163 far .Fallen satellites, t 79-1 X9 futtrre sol trtions for dealing \l: ith, 30 1 -302 insurance and indemnification for, 3W306,367-37 1 international spacc law and, 297-2W interparty ivaivers of, 300,305, 30630";r 309 Iegal apprwaches and sldrrdards, 302-306 national tort Iaws and, 299-30L for orbiQl debriS damage, 2 1 2-2 14 stated in launch services corrtracts, 31 5-3 18,339-342 See catso 7brt t aws ldabilifj Convention ( 1 W2), 30, 1723-179,

185,187-1139,209-210,212-213, 296,297-299 f ,icensiing for launch sercices, 365;-3%, 377-379 proposed system for, 147 for remote sensing syste~ns,3R-389, 39&395 f ,ife in space. See Extraterrestrial beings ldrnited Test Ban Treaty (1963) analysts and assessment d,59-61 events leading up to, 54-57 origins of, 48 primary gual of, 54 prineipt es of, 16,4 provisions of, 57-39 text of*55-54 f,in Huahao, 260 lx~g;nlAct, 295

fang contract periods, 159-1 M1 LXIW F~r?hOrbits (LEO), 15, 17 IdSA. See I ~ u n c hScrvrecs Agreement Lr~nikmcmn prohes, 264

Mi1it;try celestial arms coi~t-rc~i provisions and, 5 14 2 , 7 1 -73,82-93 intelligence satettiles of, 8-9, 23,44,

Marzagement of natrrml resource claims. 1 56- 157 czP space resources, 158-I 65 Manrrfaeturing in space, 14 See also Commercial actiwitl'es in space Maritime law access and passage rights in, 3 6 3 8 federal cuInmon latl: and, 361-362 liability claims and, 29%2W roots czf space law in, 27-36 Markebble user rights, l59 Martin, (2orrtalo Ortiz, 37 Martin Marietta Ccxpration IN'lEI,SAIX"'s lawsuit agatrist, 319-329 larrnch semices contract with XNl'Ht,f KX, 3 f 0-3 f 9 Martin Marietta Corporation v, InLematir>nall"clccommunications Satett i te Qrgani ~ a t i o i3~1,9-329 Master International F~equencyRegister, 218 Masuda, Rruo, 254 McCutlwfi \. Socledad Nacional de Naritlerc~sde Honduras, 277-278 Mcl2onncll IDouglas, 261 McBc>ugal,Nyres, 7,348 Mcl2ougall, Watter. 1 I , 405,420 Mediasat, f 97,396 Meeker, Leonard C., 2% Message l'elephczne Sewice (MI'S), 235 Mefalaw, 410 Meteorites, 9 1 Mefeorc~ids,13 Meteorotogieal satellites. See Weather satellites Meteors. 13 Mel/?od of Reaching E-rtrenwAltinlde.5, A (Godbard), 2 Metsats, f 9 Microgravity experime~its,13-1 4 , 2 l , 247, 343,352,356 Micrometeoroicls, 13

use of outer space by, 22-23,72-73, 82-93 Mining rights, f 20 Missile nr Fxonomic Cooperation and Devetop~nenl Of'liiiee of Commercial Space 'Fransprtatl'on ( O C S ' ) , l 137,306, 372-380 Of'liiiee of Technology Assessrne~lt(0TA), 17,20'7,276,29"7,36) Of'liiiee of the t1.S. Trade Represenbtive (USII'R), 252.25C-259 Qlsorr, Mancur, f 65 O~nnibusExgort Arnelldinents Act ( 1991 ), 260 O~nnibusSpace CommerciaiizattnnAct (1993), 338 QWNll, Gerard K., 2 1 Open skies po/Icy, 195,396

OPEC. See Overseas Private Investment Corporation Orbibl debris accumufation c$, 207-2053 damage caused by, 188-1 89,2053-2W definition of, 209-2 10 detection and identification of, 21 1-212 as environmenbl problem, 2 K ~ 2 0 7 jurisdiction and control over, 2 10-2 1 1 legal imgIications of*209 liahil ity for damage caused by, 2 12-2 14 Orbital 'franswrt und Raketen, A.(;. (OI'RAG), 265 Orbits explanatic)~of, 14-1 S managing as space resource, 158-1 65 prohibition of weapons in, 84,237 i for fjt.onomic:Cooperation Organi~ a ton and Devetopment (OECD), 179 OR10N propuf sioi~s j sterns, t 6-1 "7 661 Orion Satellite Corpordtion, 223, 23524 1 Ostrom, Elinor, 168 011'A. See Office of 1"cchnology Asscssrnent 011"RAG.See Orbital ?"ransportund Rakcten, A.G. Outer space coi~tactwith beings from, 41)7--319 coiltarnirtatioilof and from, 7 6 7 7 , 205-206, 397 defining, 5-41, 1 t -1 2 , 8 6 0 environmental description of, 1 1-1 5 inventions in, 343-355 militav use of, 22-23,Z-73 rocket launch teehndugy and, t 6-1 8 sot ereignty claims in, 6-7,69-70, 77-82 trade secrets protection in, 355-360, 36 1 uses for, 18-23 Outer space law access and passage rights in, 36-38 administrati\ e law and, 363-397 air and sea law compared to, 27-36 arms coi~t-rotprovisions in, 5 1-62, 7 1 -73,82-93

common heritage d mankind princt plc and,9&95,10,$, 1W-120,121, 126127, 129-132, 135, 137, 142, 149-152, 153 cr~i~tracts relating to outer space and, 309-342 evolution of, 4 S 5 l extratemestriai intelligence and, 41 3-41 9 kderal colnmon law and, 359-362 importancc of, 4234% intellectual propcrr;y protection and, 343-363 international law and, 25-27,744 j uri sdictic)~~ and, 276296 liability crJI1cerns and, 37-38, 74-75, 179- 189,296309 no-sovereignty provisions in, 69-70, 7742 orbit;al debris and, 209 origins of, 43-47 Outer Space Treaty ( 1967) arms control pro! isions, 7l-73,82-93 control and ownership prot isions, 75-76 et ents leading up to, %9,4849 evolution of, 6&70 harmful conlamination protiisioi~s, 7677 international responsibility provisions, 74 Jt~risdtetioiland, 277, 281, 283 liability for barnages provisions, 7 4 7 5 , 178, 187,297-299 nonaggression principle, 409 no-sovcreignty provistctns, 77-82 rescue and return of astronauts prot isions, 73-74,203-204 text of, 6 2 4 8 trade secrecy and, 357 Qv erclaimirrg problem, 175 Overseas I%i~~ate lntiestment Corporation (OIflC), 144 Pan Arnericall Sate1li te Coyc~ration (Pa~~ArnSat), 223 Pardo Dmtrit~e,13 1

X3aris Cont ention (I919j, 40 X3afiial Test Wan 'I'reatq (Xrl'M'),M1 Passive Personality Rinciple, 277 Patent Cooperation 'Yreaty, 354 Patents in Space Act, 354,355,356 Patent system foisreign inventors and, 354-355 inventions in outer space and, 154-1 55,

343-355

space Inw and, 7742 Ropertj darnage l iabiitity. See Liabif ity r)rotectitie Principle, 276 ETBT. See Pafiial Test Ban 'Yreaty WKs. See kstal 'f'elephone and Telegraph authorities Public goods, 155 Public telecommt_rnicatioi1ssemices, 236,

237-240

Patents in Space legislation and,

36352,354,355 trade secret protection and, 355 X3auiing, idinus.48 X3axson, Edwirn W., 166, 176 Payload services, 2-46 "Peaceful p u p s e s " pincipIe, 90,91, 128, 131 Peoples Republic d China, CiC) Percy, Charles M,, 230 Personal illjury liability, See liability Pet-ree,Richard W,, 1 1U, 1 1 t Phillips, Ctonald, 259 Photograpltj, space d the earth, 41 0,420 national sccrrrity and, 92 X3igou, Arthur, 1 6 1 X3igot ian apprmch, t fit Pirates, space, 284 Hanets. See Cetestial k3dies Henipotentiary Coi~ferences,217 h t a r czrlaits, IS Poilutioi~ orbital, 206-2 14 prcltrectitlg outer space frct~n,76-77 Population expIosioi~,39&3S>C3 X30sitivtst school, "7 X30sta1 ?'cleflone and 'l'clegraph authorities (171Wl"s), 242 X3recmption dodrinc, 360 Rescriplive easemeill laws, f 20 &esewed areas, 176-1 77 Rice-Anderson Act j 1957),3 W 3 0 5 Rimttry data, 200 Ric ate carriers, 307 Prt>cesseddata. 2C)O Prt>pertyclaims in space rights allocattnil md, 165-1 7'7

Quaddnf i ,M uammar, 265 Quarantine, 206,3!27 Radiation from Fallen satettites, 180-1 81 from nuclear \+capons,4,$5-56, CiC) in outer space, 12-1 3 Ram canrrorrs, 17 RAND ("orpratioil, 4 RCA America11 Comrnt-rnicatioi~s, 223 Reagail, Konald, W-98, 1 32,406 Recoi~naissancesatellites, 24-52, 23,44,47, 72-85-86,93.156,189,195--196 Rcgi stration of radio frequencies, 21 5,218 of spacecrafts, 2W20-Li,379 Registration Cont ention ( I 9%j, 21 1-21 2,

280,28 1,283 Regutatic>i~s, government cm extraterrestrial containination, 397 cm launch ser\ ices, 363-380 oil remote sensing xtivities, 380-3947 Religions. 41 f -412 Remotc sensing activities assmiated with, 201-202 civilian regulations on, 197, 39&395 Commercial i ration Act, 380--394 criticisms d regulations on, 395-397 defined, 2f10,380,383 export controt regulations and, 196 international policy issues a i ~ d , 1%0-4 national security issues and, 194-1 96 news rnedia sateiiiks and, 395-397 origins of, 189- 1 90 U,N, pritleiples on, 197-203 Research and development, &?l, 194,390

Right d passage, 3 1 Roberts, 1,atvrence D., 169 Rockct technology histczrical otierkiiew of, 2-4 larrnch systems and, 16-1 X Rostokv, Wait, 153 Rousseau, Jean-Jacyues, f 25 "Rules of the roarl"' negotiatt nns, 255-259 Rutledge, Justice, 33 Safety, spacecraft, 37-38 SALT I. See Strategic A m s 1,imi&tio11 ?Palks Salt age ctatms, 34-33 Satellite Act. See Cornlnunieattnns Sateitite Act Satellite dishes, 244 Satellites access to geostationarq orbit: for, 23 1,432 communications, 10, 18-19,23,215, 2 16-220,227-230 direct- brwddcasting with, X2-245 early debates on usc of,6-43 environmenlal risks czf, 32, 34 international regulatory agencies for, 2 16-2 18 liability for darnages caused by? 178-1 89 mililary, &9,23,4,4"7,72,85-86,93, 189,195-1 96 navigation, 19 remote sensing via, 189-203,380 wcather, 19 See nlso Space co~nmunications Satellite solar power stations, 20 Schachter, Oscar, 6 Scienttflc Committee on the Effects of Atomic Radiation, 56 Scientific intiestigations in space, defining, 141-142, 150-151 SCFID missiles, 262,263,269 SDI, See Strategic Defense Initiative Sca law, See Maritime taw Sea\+ofihirzess, 299 Sedov, I,, I,, f 80

Scnior Interagency Group on International Communication and Information Policy (SIG), 223 Separate Systems Policy, 22 1,222 SET1 Committee of the Interilatioilal Academy d Astronautics, 416 Slrult~,George R, 230 Sky lab, &?08 Smith, John Emmett, 287 Smith, Salldra Jean, 237 Smithsonian Xnstitt~tionPress, 399 Smith \. ljrlited States, %&D1 Sofaer, A braham 1). ,983 Solar flarc radiation, t 3 Solar pobver, 19-2 l Solar Sail, f 7 Solar wind, f 2 Sovereignty claims in Antarctica, 5237 in outer spdce, 6-7,652-70,77-X2 Soviet tinion L,irnited 'Test Ran Treaty and, 55-56 satet t ite accident of, 179-1 89 S p c e colonies creation of, 21-22 environxxlenl-al issues for, M 1 4 1 govcmancc d,39 poputatic)~~ explosion and, 398-399 Space corninunications cr311teinporary marketplace for, 224227 direct satellite brc~ddeastingand, 242-245 evolution of, 2 15 extratemestriaiI coi~t-zlet and, 45 7 4 5 9 foreign policy consideratio~lsand, 230-233 XN't'ElSAI1"agreement and, 229-230, 235,236-241 international regut arory agencies far, 2 16-220 limits czn competition in, 227-230 1J.S. regulatioil czf, 220-242 Space Courl, 125 Spacecmfts access and passage rights for, 3 6 3 8 crew status on, 33-34 defining and classifying, 30

launching rights, 3 1 liability fc9r damages caused by? 37-38% 74-'75,187- 1 89 nav i gation of, 3 1-33,43 regi stradon of,2CK2IJ5 salvage claims cm, 3 4 3 5 Space debI-is,See Orbit;tl debris Space detrelotpinent establishing a regime for, 146-14'7 incentives for, l 34-1 35 Moon Treaty and, 135- 149 proposal for structuring, 42 f 4 2 3 Space industries dual-use technologies in, 263-266 dumpirlg practices and, 254-255 economies of, 247-26 t export control s in, 26 1-274 ""ruts of the mad"" creg&iatioi~sin, 255-259 See ~ 1 Commercial ~ ~ 0 activities in spacc SpacefabAgreeinent, 300 Spacc law. See Outer space law Space Lnw arzd Governr~rejar(Haley), 348 Space objects, 209-2 10,285,349-35 '1. 379 Space pirates, 284 Spaccprts, 3 1 Space Regional Conferences, 2 17 Spacc resourccs allocating, 165-167 characteristics of, t 55 collective action problem and, 165- 166 rnailagement regime for, 162- 165 preserved areas and, 176- 177 prcltperties of effieicnt rnakets for, 15S162 See ~ 1 Natural ~ ~ 0resources in space Spacc segment authorixatim, 236237 Space smieties declaration d principics for, if0 I 4 0 6 gosernartce of, 348407 Space stations jurisdictiot~over activities on, 276296 tort laws pet-taining to, 297-302 trade secret protection on, 355-356 types of legd stattrs for, B0

S p c e Survcillancc Netivork (SSN), 207-208 S p c e travel histczrical overt iew of, 1-9 prfneiplcs of orbits and, t 4-1 5 roots czf laivs governing, 27-36 Space World Administrative Radio Conferences (Space WARC), 217, 23 1,236235 Spceworthincss, 299 Spciaiized teieco~nmunieationsservices, SKIT system, 196-497, 199,246 Sputnik, 4,8,55,207,264 Squattersy-rights regime, 162-1 63 SSN. See Space Slsmeilla~leeNetkvork ""Star Wars'"raogram, 97-W Stale law in outer space, 359,361,363 trade secret taw as, 35% 35%359,361 Stone, Kiehard, 112 Strategic A m s limiation Talks (SALT I), 9,93,9G Strategic Defense Initiative (SDI), 97-99 Strict liability, 298,303 Subatomic paaicles, f 2 Submiarine cables, 224 Substdization policies, 256 Sun synehroi~ousorbits, 15 Symphonic communications satellite, 246 Syncom satellite, 2 15 TASS news agency, 180 Fdxation systern, f 47-f 4 TCt, See Transpace Carriers, Inc. 'l'cchnica) data controls, 27&27 1 ?tchnological innovation dual-use dilemma and, 263-2GG export co11troIs and, 27&27 t ptent system and, t 54-1 55 TeEeco~nmunications,24'7 ?tievisioi~,Direct Broadcast Satellite, 243 Territoriality Prirleiplc, 276 Test Bail Treaty. See 1,irnited Test Ban 'I'reaty Theory of the second best, 172

'I'hird-party liability, 30 1 Third World common hcri tage pri nclple and, 142- 143 New International Economic Order and, 152-155 vie\^' of space deveiopme~ltby, 134 Tonga, 16'7 Tort jaws approaches and standards far, 302-3M cargo damage and, 306308 C/zal!ertger disaster and, 30%309 futtrre development of, 301-302 international ,297-299 launch services contracts and, 327-329 national, 299-30 1 czverciew of, 2% sovereignless regio~lsand, 286291 See czis'sa I,iabllity Toshiba-Kongsberg scmdai, 262 Trade policies and practices. See International trade Trade secret protectic>i~, 355-360,36 f Tragedy of the colnmons. 157 Transbc>rderPolicy, 22 1 -222 Trdnspaee Carriers, Inc. ("I'CI),248, %%252.253,25nabilitylaw, 329 tJNESCO, See tiniced Natioi~s PZueatl'onal, Scientific, and Cu1tur;ll Organizatioil

tintform Aeronautics Ad, 303 tiniftjrm Commercial Cctde, 328 tintform "I'radc Secrets Act, 356,357 I Jnispace Co~i~ference, 190 tJnttcd Nations (1 IN) cc~inmonheribge of mankind principle and, 94-95, 105, lm-120, 121, 126-127, 129-132, 135, 137, 153 development of space law by? 145, 1 48 evolution of space law and, 49-5 t New Xntemational bkonomlc Order and, 152-155 origins of space law and, 43-47 See also Committee czn the Peaceful Uses of Outer Space I Jnited Nations Co~i~ference c>i~the L a w SIP the Sea (lJNC"L,OS), 132-133, 140, 282 tJnited Nations FAucattnllaI, Scientific, and CtllturaI Organization (IJNESCO),-353,243 tJnttcd States cc~inmercialspace-related law suit agaitlst, 330*335 international comrnunicatioi~spolicy goats of, 224225 launch scrviees legi sintim d,363-3130 patellt law in, 1 54-1 55, 343-355 regulation of space communteations by, 220-242 role in XN't*EIASAII" for, 232-233 sample laurrch services agreemeill with, 33S3.1.2 trade secret law in, 347,34&360 unreliabitityiunpredicta17i1ity of cmtracts with, 33&337 tJ,S, Space Com11-tand(ITSS13AC"kTOM), 208 I J.S.S.R. See Soviet I Jnion tJnttcd States v, Corcfoja, 278 I Jniversality hincigle, 276277 ""lnmistakal.sle:eterms" "standard, 334-335 I JSTR. See Office czf the 1I.S. Trade Representattve Vacuum of space, 1 3- 14

Van Allcn Radiation Belts, 12-1 3 Vance, Cqrus R,, 109 Van Kccth, Geoec, 258 Vidic, Dobt-ikoje, 37 Vlasie, Ivan, 398 V011 Bmun, Werisher, 3 4 , f O,55 V011 K a m a n line, 5, l l V011 lr)ufersdorf,Samuel, 5 Vileilsg rights. intergovernmental-.

123-124,148 Walidheim, Kurt, 70 WARC. See Wc3rlid Administrative Radio Conference Warsaw Co~isventiois,306 We~zport~ c s l d N o j ~ e(Dyson), 422 WeapnmoP mass destructio~s definition of, 89 dual-use technologies and, 263-2G6

export controls on, 270--274 Otrter Space Treaty and, 8%93 Weather satclf ites, 19-23 Webber; Alan Duane, 535, f 26 Weightlessness, 14-1 S WireEe,ls Wrld, 2 L S WMO. See World MeteorcliogicaI 0rganizatic)n Wc~rldAdministrative Radio Conference (WARC1,163 Wc~rld Meteorcl1ogical Orgdnization (WMO), 49 Wu, Wiffiarn, 407

X-Ray lasers, S8 Vo~rngAstronatrt Corps, 423