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An Evaluation of the Leading Principles of the Treaty on Outer Space of 27th January 1967

Published online by Cambridge University Press:  21 May 2009

D. Goedhuis
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Extract

Only three years after the first milestone on the road towards the establishment of a legal regime of outer space was reached through the unanimous adoption by the XVIII General Assembly of the United Nations of a “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space” (13th December 1963, no. 1962), a second landmark was passed.

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Articles
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Netherlands International Law Review , Volume 15 , Issue 1 , March 1968 , pp. 17 - 41
Copyright
Copyright © T.M.C. Asser Press 1968

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References

** Art. XIV (3) provides that the Treaty shall enter into force upon the deposit of instruments of ratification by five Governments including the Governments designated as Depository Governments under the Treaty (viz. the U.S.A., the Soviet Union and Great Britain). This condition was fulfilled on the 10th October 1967 by the simultaneous ratification of these three Governments. On 1st May 1968 the Treaty was ratified by 23 States.

1 See on the volte-face of Grotius in De Jure Belli ac Pacis from his original thesis submitted in Mare Liberum, Telders “De Oorsprong van het Leerstuk der Territoriale Zee”, Verzamelde Geschriften, II, p. 121.

2 Quoted by Professor van Panhuys, in his article “Recht in de Ruimte”. (of ruimte in het recht?), De Gids Volume 134, 1961, p. 399 et seq.

3 See Netherlands International Law Review, 1966, Issue 2, p. 112 et seq.; In a recently published book “The Legal Significance of the Declarations of the General Assembly of the United Nations”, The Hague 1966, the writer, O.Y. Asamoah, submitted that the circumstances surrounding the adoption of the U.N. Declarations on outer space of 1961 and 1963, indicated a clear intention to accept them as law and that as such they represented the law for those who voted for them.

4 See “Hearing before the Committee on Foreign Relations U.S. Senate”, 90th Congress, First Session, March 7th, 13th and April 12th 1967, U.S. Government Printing Office, 1967, p. 56.Google Scholar

5 “Hearings”, p. 57Google Scholar

6 See “Hearings”, p. 63.Google Scholar

7 See “Hearings”, p. 31Google Scholar

8 See “Hearings”, p. 52Google Scholar

9 See “Hearings”, p. 85Google Scholar; General Wheeler added that, in view of the potential threat of weapons in orbit: “as technical, economic and military factors change to alter current assessments concerning strategic efficacy of orbital weapons, our national security will demand an increase in our military efforts in space not prohibited by the Treaty”.

10 See as regards the American position the two articles published by Crane, R. “Soviet Attitude towards International Space Law”, American Journal of International Law 1963, p. 685Google Scholar et seq., and “The Beginning of Marxist Jurisprudence” in the same journal, 1963, p. 615Google Scholar et seq., in which the writer stated that the United States felt that the Soviet Union was trying to create the impression that it was the United States which obstructed the acceptance of the principle that outer space could be used for peaceful purposes only.

11 See “Some Trends in the Political and Legal Thinking on the Conquest of Space”, Netherlands International Law Review 1962, Issue 2, p. 128 et seq.Google Scholar

12 See the references to U.N. Documents in “Der Weltraum in der Raumordnung des Völkerrechts” by Sontag, P. M., Cologne, 1966, p. 145.Google Scholar

13 In the same sense, Eschauzier, H. F., “Het Ruimteverdrag”, Internationale Spectator, XXII, Issue 3, p. 182.Google Scholar

14 See Christel, C. Q., “The International Law of Outer Space”, Naval War College, International Law Studies, Washington, 1966, p. 268 et seq.Google Scholar

15 See Hearings, , p. 59Google Scholar; The use of the word “beneficial” in this context, raises the question: “beneficial to whom?”. It appears difficult to contend f.i. that the use of a U.S. naval navigation satellite to position atomic submarines would be a use of outer space “beneficial to all countries”.

16 Ex-Premier Khrushchev, in an interview in May 1964, was reported to have told Mr. William Benton, U.S. delegate to UNESCO that photographs of American installations by Russian satellites were much better than American ones of Russian installations, see Cheng, B., “Current Problems in Space Law,” A Symposium, the British Institute of International and Comparative Law, London, 1966, p. 84.Google Scholar

17 See below, p. 999.

18 As regards the extent to which political considerations influenced the interpretation by the two Space Powers oftheterm “peaceful purposes of outer space”, see the articles by R. Crane, quoted above, p. oo.

19 See Article I. “Antarctica shall be used for peaceful purposes only. There shall be prohibited, i.a., any measures of a military nature (underscoring supplied) such as the establishment of military bases and fortifications, the carrying out of military manoeuvres, as well as the testing of any type of weapons”.

20 See U.N. Document A/C. 1/PV. 1493, p. 28

21 See U.N. Document A/C. 1/PV. 1493, p. 83.

22 See U.N. Document A/AC 105/C. 2/SR. 80, p. 3 et seq.

23 See U.N. Document A/AC 105/C. 2/SR. 83, p. 13

24 See U.N. Document A/AC. 105/C. 2/SR. 81, p. 3

25 See U.N. Document A/AC. 105/C. 2/SR. 82, p. 10

26 See the explanations given by Professors Cheng, Lissitzyn, and Mankiewicz, , “Report of the 52nd Conference of the International Law Association”, London 1967, p. 166 et seq.Google Scholar

27 See Report of the 52nd Conference of the International Law Association, Helsinki, , 1966, p. 199.Google Scholar

28 See McNair, Lord “The Law of the Air”, 1964, p. 17Google Scholar;Zadorozhnyin E.A. Korovin's collection of articles “Cosmos and International Law,” Moscow, 1962, p. 48.Google Scholar

29 The existence of such a consensus was confirmed by Mr. Goldberg by the following answers to questions put to him during the Hearings before the Foreign Relations Committee of the U.S. Senate:

“Senator Church: Is there any argument at all Mr. Ambassador, if an object is in orbit?

Mr. Goldberg: No.

Senator Church: That the object is in outer space?

Mr. Goldberg: Yes.

Senator Church: Is there any disagreement on that score?

Mr. Goldberg: No.”; see “Hearings,” p. 18.Google Scholar

30 See Netherlands International Law Review, 1966, Issue II, p. 112Google Scholar et seq.; on the subject of the creation of “instant” customary law, see Professor Cheng, “United Nations Resolutions on Outer Space: “Instant” International Customary Law?” The Indian Journal of International Law, 01 1965, p. 23 et seq.Google Scholar

31 During the Hearings before the Foreign Relations Committee of the U.S. Senate, Mr. Vance expressed the view that this term would include such other weapons systems as chemical and biological weapons or any weapons which might be developed in the future which would have the capability of mass destruction such as that which would be wreaked by nuclear weapons. See “Hearings”, p. 100.Google Scholar

32 The text of this Draft was accepted by a Study Group on Space Law set up by the David Davies Memorial Institute of International Studies in August 1966.

33 See Art. 2, U.S. Draft U.N. Document A/AC. 105/35, 16th September 1966 and Art. 2 Soviet Draft U.N. Document A/6352/Rev. I, 5th October 1966.

34 See U.N. Document A/C.1/PV. 1493, p. 11

35 See U.N. Document A/C.1/PV. 1493, p. 57

36 See U.N. Document A/C.1/PV. 1492, p. 48.

37 During the discussions at the Sand meeting of the U.N. Legal Sub-Committee on Outer Space, the Soviet delegate, Mr. Piradov, expressed the view that the meaning of the provisions of Art. III was that outer space must not be used for the promotion or conduct of wars of aggression, for war propaganda, for the instigation of racial hatred, or enmity between peoples or for any acts designed to encroach on the sovereign rights of States. See U.N. Document A/AC. 105/C.2/SR.82, p. 8. A consideration of the question of the use of outer space for propaganda purposes in general, lies outside the scope of this article. Attention may be drawn to Mr. Goldberg's statement before the Foreign Relations Committee of the U.S. Senate when the problem of communication satellites was being discussed. Referring to the discussions, which led up to the adoption of the Treaty, he said: “A question was put by one of the participating negotiating parties about controlling the type of propaganda that could be issued from a communication satellite, and I said that that raised constitutional problems for us and that we were not quite ready to agree that under our Constitution inhibitions could be put upon the type of materials that could be broadcast from a communication satellite subject to our control consistent with our Constitution”. See “Hearings”, p. 30.Google Scholar

38 See U-N. Document A/AC. 105/C.2/SR. 80.

39 Prof, van Panhuys, in his article “De Verenigde Naties en het Ontwapeningsvraagstuk”, Internationale Spectator, Volume XXII, no. I, p. 18, referring to McNamara's statement, considered that the use of such a device was difficult to reconcile with Article IV of the Treaty.

40 See McDougal, , Lasswell, and Miller, , “Interpretation of Agreements and World Public Order”, Yale University Press, 1967, p. 185.Google Scholar In this book an excellent exposition has been given of the principles of effectiveness and of restrictive interpretation as the two different sides of the same fundamental policy.

41 See f.i. the opinion expressed by the Chairman of the First Committee of the General Assembly of the U.N., Mr. Benites, at the 1493rd meeting of the Committee, on the completion of the Committee's work: “The cycle of our work that began with an agreement on one of the most immediate dangers of the present time, the proliferation of nuclear weapons, now concludes with the approval of a Treaty that renders impossible the most horrendous of perils, the danger that, as in Biblical days, fire and death may rain from the skies upon a terrified mankind”. U.N. Document A/C. 1/PV. 1493, 2nd February 1967.

42 The text of this Treaty is contained in the Report that the Commission presented on 15th March 1968 to the General Assembly of the United Nations.