Space Law is a Legal Fiction

Space Law
is a Legal
Fiction
Humans in Space
Utopia
RIA TANDON

Space Law is a Legal Fiction 2014
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UNIVERSITY OF PETROLEUM & ENERGY STUDIES
COLLEGE OF LEGAL STUDIES
BA.,LLB.(HONS). ENERGY LAWS
SEMESTER
ACADEMIC YEAR: 2014-15 SESSION: JULY-DECEMBER
PROJECT SUBMISSION: SPACE LAW IS A LEGAL FICTION
AIR AND SPACE LAW
(LLBL 433)
Under the S’vision of: Ms. Anuradha Nayak
(TO BE FILLED BY THE STUDENT)
NAME: _____RIA TANDON_________________
SAP NO: ____500017689___________________
ROLL NO: ---------R-450211080----------------------------

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Acknowledgement
I would like to extend my gratitude to my Air and Space Law teacher Ma’am Anuradha Nayak
for giving such an appropriate topic for research. This project helped me in understanding what
all loopholes and presumptions which are present with respect to space law. It also helped me
coming up with logical backing reasons with respect to as to why space law is a legal fiction .

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Index
Serial Number Subject
Abstract
1.
Chapter- 1
1.1 Introduction to Legal Fiction
1.2 Origin of the Space Law
2. Chapter-2 Treaties governing the Fictional Space Law
2.1 The Antartic Treaty
2.2 The Outer Space Treaty
3. Chapter-3 Utopian Concepts or Reality ?
3.1 Dominance Factor
3.2 Military in the Outer Space
3.3 Sovereignty Aspect
4. Chapter -4
4.1 Conclusion

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“ Humans in Space Utopia”
ABSTRACT
Space Law is a legal fiction is to be dealt in this research paper as what exactly space is and how
the law was needed to protect the outer space activities. Legal Fiction, here denotes something
which is more of a Utopia and has no physical existence.
Space Law should be dealt as anthropocentric law where man is the only reality. Dominance and
Sovereignty are the best principles to understand Legal fiction. Paris, Havana and the Chicago
convention which gives right with respect to sovereignty in space flight was a science fiction.
USSR and Usa had their own ideas with respect to the limits of space .Some kept the limit as 55
miles while scientist stated it to be 600 miles and the other example is Bogota declaration under
which sovereignty over the Orbit was stated but this went against the point of limit of air and
space distinction concept. Ad Coleum principle which talks about the rotation of the earth which
removes it from the dominion of the celestial bodies shows that Sovereignty aspect really doesn’t
lie in space and is just a human made fiction
The Dominance part : military aspect in Outer space – Res Communis was based on Savigny’s
principle of (UNCLOS) . To understand dominance idea with respect to Common Heritage of
Mankind in which even though it is regarded as res communis has not been spared by the aspect
of Militarization of Outer Space by USA and China. The recent concept is that of a space police
which still cannot be considered as reality since the countries are not allowed to establish the
stand in space but can only do so with respect to research work and not for waging war .
The scheme of this research will be based on self analysis of argumentative facts and muse for
the scheme of research will be concepts like Star Wars and other Sci- Fic dealing with Alien
concept.
Keywords- Space Police, Res Communis, Ad Coleum, Utopia , Militarization

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Chapter- 1
1.1 Introduction to Legal Fiction
According to Black’s Law dictionary Legal Fiction is
“ An assumption that something is true even though it may be untrue made esp. in
judicial reasoning to alter how a legal rule operates. The constructive trust is an
example of a legal fiction. Also termed fiction of law; fictio juris1”
The other way to understand the legal fiction is to understand is that to understand the scope of
the legal fiction it is important to analyze the facts on which basis the fiction is operating2.
Mostly the word deem is generally used so as to create law of fiction and there is an artificial
perception with respect to it. When the legislature 3things that a particular is true but in reality it
is not true in nature but is rather a Utopia. Hence in the same way there has been a clash with
respect to ideas related to the space law or the law of fiction. The aim of this report is to justify
how the space law is just a man made aspect which has no true applicable basis as such. The
anthropocentric law4 which is related to the natural law is based in the idea that man is the only
reality with respect to the interrelated space objects. The philosophy which needs to be resorted
to with respect to such law is unconfining as the man is the only reality here . The question
which crops up is as to what is outer space and air space and where do they begin from?.
According to the Paris Convention that of 1919 , the Havana Convention that of 19285 and the
1 Bryan A. Garner (Editor-in-Chief), “Black’s Law Dictionary” (seventh edition – 1999, USA) p-804 .
2 M/S Tank Steel and Re-Rolling Mills (PVT) Ltd V. Dera Ismail Khan & other, “PLD 1996 Supreme Court 77 at p.
85 .
3 Siraj Din & others V. Sardar Khan & others, “1993 SCMR 745 at p/ 749 .
4 http://en.wikipedia.org/wiki/Anthropocentrism.
5 Convention on Commercial Aviation, 47 Stat. 1901, T.S. No. 840 (1928) .

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Chicago Covention6 which refers to the aspect of the jurisdiction wherein the exclusive
sovereignty is provided over the air space above that of the territory7. Space flights at time was
considered to be a pure fiction . The question of whether the air space , really wanted the to
include the entire area which was above the nation’s land ? When we look out for evidence then
we do not find any intention8 as such with respect to it and also the fact at that time the space
craft was never taken into consideration means that there was no intention as such.
When we try to understand the national sovereignty aspect , then the anthropocentric law
revolves around. If the concept that the near space or the orbit level is to be considered within the
ambit of the subjacent nation, then the spacefaring are considered to have committed a sin by
causing injury to the international law. The air space is really not possible to be measured 9 .
There are variations with respect to the measurement like for say some state it to be 60,00010
miles which is the recommendation of the scientists while some state the limit to be 55 miles and
the Karman line is considered to be 100 km ( 62 mi) 11from the sea level. Then the question of as
to which measurement to consider makes the whole idea to be believed, is to be dicey in nature.
Hence this is the ambiguous contentions with respect to space as a fiction and especially the laws
which is made by man to be under the ambit of something which is not conclusive in itself.
1.2 Origin of the Space Law
Humans have always been a curious being , that is why in the seixteenth century a Chinese
official named Wan Hu dried horribly to achieve the goal .Wherein he became the first astronaut
to have strapped a firework rocket to his chair12. It was Issac Newton who explained about the
aspect of Philosophiæ Naturalis Principia Mathematica13, which explained the concept of
gravity and the understanding of the starts. Then in the year 1903 the first theoretical work on the
6 Convention On International Civil Aviation, 61 Stat. 1180, T.I.A.S. No. 1591 (1944).
7 International Convention for Regulation of Aerial Navigation, op. cit. supra n. 4 at 173 .
8 Latchford, Bearing of International Air Conventions On the Use of Outer Space, 53 Am. J. Intl. Law, 405 (1959) .
9 National Aeronautics And Space Act of 1958, 72 Stat. 749. The term "atmosphere"is used in place of "air space."
10 Roy, Legal Problems of Space Exploration, Senate Document No. 87, 74 (1961 ).
11 http://en.wikipedia.org/wiki/K%C3%A1rm%C3%A1n_line.
12 See Brief History of Rockets, NASA.GOV, http://www.grc.nasa.gov/www/k-.
13 http://en.wikipedia.org/wiki/Philosophi%C3%A6_Naturalis_Principia_Mathematica.

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space travel possibility was published14. Then came the American discovery of the liquid fueled
rocket15 in the year of 1926 by American Scientist Robert Goddard.
When the Cold Wall ended its effect was seen in the discovery of new technology in the form of
Sputnik 1 which was a Soviet Union16 discover. USA was not far behind, soon NASA was
created and it made USA to have taken a lead in the space race17. The utilization18 of that of
space has developed from that time but the exploration aspect is still backlogged.
Development of Space Law
At the time of the advent with respect to Sputnik had no laws governing it which saw the silence
from the side of the governments around the world. Then there was need felt with respect to
having a legal mandate. The United Nations , private organizations and other few individuals
felt the need of having some laws which would effect the world interest. When it was seen that
there was continuous development of the space potential then the need for establishment of the
Outer Space treaty19 was thought upon then it came into force soon after it received the
government bodies affirm nod.
The main base for the space law was set up when the United Nations Committee on the Peaceful
Uses of Outer Space (hereinafter COPUOS) in 195820 was established. It was seen that the space
law had lead to the invocation with respect to the issues under the international scope, that is why
the creation was felt with respect to COPUOS so that the issues related to the space law could be
discussed21. COPUOS has the member states of around 45 , it has also brought under its ambit all
14 KONSTANTIN TSIOLKOVSKY, THE EXPLORATION OF COSMIC SPACE BY MEANS OF REACTION
DRIVES (1903).
15 See Robert Goddard: A Man and HisRocket,NASA.GOV,http://www.nasa.gov/missions/research/f_goddard.html.
16 See supra note 1.
17 Id.
18 See Benjamin Perlman, Note, Grounding U.S. Commercial Space Regulations In the Constitution, 100 GEO. L.J.
929 (2012).
19 United Nations Treaties and Principles on Outer Space, related General Assembly resolutions and other
documents .
20 nternational Co-operation in the Peaceful Uses of Outer Space, G.A. Res. 1472, U.N. GAOR., 14th Sess., 856th
plen. mtg., at 5, U.N. Doc. A/4354, http://www.unoosa.org/oosa/spacelaw/gares/html/gares_14_1472.htm l.
21 See Id.

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the major space agreements which take place22. These are the man made laws but when the
aspect of the anthropocentric aspect is considered where the man is the only reality has not gone
down to well with some critics. Some say that space is not something which is not –man related
then how can the laws made by them be applied. Even if we accept the human is the only reality
in space , then aspect of law does not play any role since the space is nothing about other bodies
as such.
CHAPTER-2 Treaties governing the Fictional Space Law
2.1 The Antartic Treaty
The main emphasis with respect to the this treaty is that the Antartic will be used for the
peaceful purpose only. The military bases and the weapon testing aspect is not allowed but there
is encouragement is given for the scientific and exploration scenario. Analogies with respect to
Antarctic is drawn with that to the outer space: since both are considered to cold and a place
which cannot support the human 23existence. It is asserted by many that Space should be exactly
the same way as that to Antarctic. This point is though countered by the point that Antarctic is
possible to be controlled whereas the space is considered to be beyond the control of anyone.
This is an important point since many countries claim sovereignty with respect since it is free
(Article IV)24.
2.2 The Outer Space Treaty
This treaty was the compressed information of all the previous treaties, UN resolutions as well
the scientific resolution as well some treaties like Use of Outer Space, Including the Mood and
Other Celestial Bodies25.
22 United Nations Committee on the Peaceful Uses of Outer Space: Overview, OOSA.UNVIENNA.ORG,
http://www.oosa.unvienna.org/oosa/en/COPUOS/cop_overview.html.
23 Christol, op. cit. supra n. 23 at 257 .
24 Matte, op. cit. supra n. 1 at 253.
25 18 U.S. T. 2410, T.I.A.S. No. 6347 (1967 ).

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The treaty in the article I states about the aspect of the use of the space for the peaceful purpose
and as well for the benefit of everyone. The latter was added so that non space regimes could
also be included.
Article 2 states very expressly with respect to the outer space, that the celestial bodies , is not
under the aspect of the appropriation. The important point which can be noted in this that no
distinction is made between the space which cannot be controlled and the celestial which though
are found to be technical appropriation . The Space can be treated an indivisible aspect26.
26 Vallado, The Law of Interplanetary Space (1959).

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CHAPTER-3 Utopian Concepts or Reality ?
3.1 Dominance Factor
a)Common Heritage of Mankind
The main idea of the common heritage of mankind is considered to have been outside the
national jurisdiction. This concept was only with respect to the high seas earlier but soon this
idea was propounded in the outer space as well . Article 227 of the outer space treaty talks
with respect to the Outer Space treaty which talks about the concept of res communis that is
something which can be used by anyone. There is a legal vaccum when it comes onto to
believing to the concept that space activity28 is being governed but in reality there is no such
development economically supporting the above statement.
It was earlier stated in a declaration that the legal status with respect to the use of outer space
is free but in reality there is nothing functionally related when it comes to space activities
related to earth. The best example to understand this point is the For example, all the states
are allowed with respect to the operation of the satellite but when it comes to the use of the
satellites with respect to the earth surfaces29 for the work of broadcasting 30then there are
restrictions present. The idea of the Moon Treaty with respect to the aspect that the moon and
other bodies are common heritage of mankind has not been accepted a worldwide31
acceptance with respect to it.
When it comes to the Moon Treaty then it is seen that it does not receive much support from
that of the developing countries32. Especially the acceptance nod from major countries like
Soviet and USA is a problem33. It seem that some parts of the Moon Treaty is not accepted
by the both the countries.
27 Refer to Article 2 of the Outer Space Treaty.
28 Ambassador Peter Jankowitsch, chairman of the united nations committee on the peaceful uses of outer space,
speech in the 1979 session.
29 See infra § III.A.2 for a discussion of remote sensing satellites.
30 See infra § III.A.1 for a discussion of direct broadcasts by satellite.
31 Stt infra § III.B.2.
32 See Note. supra note 180. at 583.
33 Id.

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The Soviet belief with respect to the principle was that the celestial cannot be subjected to the
aspect of national appropriation34. They though distinguished the non appropriation with that
to exploitation35. As Soviet draw an analogy with respect to compatibility aspect of the high
seas to that of the use of its resources36 freedom. Soviet were of the view that the valuable
resources persisting on the moon is good for the betterment of the society37 but they were not
in favor of its protection by the western38 monopolists. If this was the view then how come
Moon is regarded to be a common heritage of mankind under the space law.
The position of USA with respect to seem to be ambiguous than the stand of the Soviet .
Though the government in US supported the Moon treaty during the earlier drafting process39
but soon some interest groups made the US to falter40. Some are of the view that the Moon
treaty would delay the commercial exploitation41 of extraterritorial resources.
3.2 Military in the Outer Space
a)Legal Fiction and the Military Reality if any
The best way to to understand the aspect of legal fiction is to understand the provision of the
outer space by way of military provisions. The legal regimes which are present right now are like
for say Outer Space Treaty and the other agreements like Rescue agreement, moon treaty and
others. There are also a number of the provisions like Nuclear Test Ban Treaty of 1963: this
treaty prohibits the nuclear weapon test explosions or the one in outer space as well as the testing
34 Jaksetic. The Peaceful Uses of Outer Space: Soviet Views. 28 AM. U. L. REv. 483. 503 (1978) .
35 Id at 503.
36 Id.
37 quoting Vassilevskaia. NoliDns of "Exploration" and "Use" of Natural Resources of Celestial Bodies,
in PROCEEDINGS OF THE 20TH COLLOQUIUM ON THE LAW OF OUTER SPACE 473 (M. Schwartz ed.
1978»
38 Jaksetic.supra note 190. at 504 (quoting Vassilevskaia. The Development of the Moon, Some Prospects
for Regulation by Law, 10 SoVIET L.St GoV'T 362. 365-66 (1972».
39 Griffin, supra note 168, at 731.
40 Id. at 731, ld. at n.167 .
41 Id. at 750 .

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of the nuclear weapon into space. This was considered to be first of the binding international
lawful regulation that deals with outer space. Then the Outer Space treaty in its article 4
expressly provides that
“ States Parties to the Treaty undertake not to place in orbit around the Earth any objects
carrying nuclear weapons or other kinds of weapons of mass destruction install such weapons on
celestial bodies or station such weapons in outer space in any other manner.
The moon and the other bodies which are celestial in nature was used by all the State Parties only
for the peaceful purposes. It was bared to have any military base, installation and the fortification
as well as the testing of any kind of the weapons or conduction any military related activity was
prohibited from taking place in on the celestial bodies . The use with respect to scientific
research was allowed The use of the any instruments which was used for the exploration on the
celestial bodies was allowed.
The provision with respect to Article 3 42under which the activities relates to the exploration and
the use of the outer space was considered to be carried on so as to maintain the international
peace and the security activities. Then in the Preamble there is a vague recognition with respect
to the common interest of mankind in the exploration process. The appalling aspect for the
interpreters of the treaty . It should be noted that the the Treaty is criticized with respect to the
element of ambiguity and obsceneness’ present in it and this leads to the confusion with respect
to the legal rules which are administering or governing the space activities which are happening.
The UN Committee on the Peaceful Uses of the Outer Space , were supposed to follow the
development.
There was no follow up with respect to the demilitarization and the disarmament aspect with
respect to the Outer Space Treaty. Thus, although the 1967 Outer Space Treaty might means that
there is demilitarization of the moon and of the other bodies which are celestial in nature, the
outer space has been partially demilitarized by the treaty . It cannot be understand precisely as to
whether the Outer Space Treaty wanted to play role in disarmament. Usa and Soviet regard the
main aim of the Space treaty is basically so as to provide for the peaceful way out that is non-
aggressive rather for non-military aspect. This shift towards the military aspect seen to be
commencing from 1967 .

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Legal Fiction aspect analysis
It is analyzed that USA which first came up with the plan with respect to the militarization
application in the outer space43. It was the US only which , in the year of 1957 had the come up
with the contrary view of the fact that outer space should be used only for the peaceful purpose
44reasons and for the scientific reasons. It called for a study along with that of Canada, UK and
France on the aspect of such design system which would help in keeping a track of the objects
which were being sent into the space is for the peaceful and the scientific45 purpose only.
The idea found its place in the UN General Assembly Resolution of 1148 (XII), which
was adopted, even though it was being vehemently opposed by States like Soviet Union and the
East European countries. Then in 14 November of 1957, there was an introduction of the two
Soviet satellites Sputnik I and Sputnik II. Then two years after , January 13 of 1958 the then
President US President Eisenhower revived the earlier proposal of that of the US wherein it was
in a letter to Soviet President Bulganin propose that we agree that outer space should be used
only for peaceful purposes. We face a decisive moment in history in relation to this matter. Both
the Soviet Union and the United States are now using outer space for the testing of missiles
designed for military purposes. The time to stop is now’46.
Even though , when the first launching of the US satellite Explorer which was made in the year
1958 that then the reply of the Soviet Union came in the year of 1958 in which the aspect of the
demilitarization was found to be dependent upon the closure of the foreign basis47.
It was seen that a comment which was made by a Moscow based Y Korovin of the International
Affairs that the stated that the American intention with aspect of the prohibition of the military
43 Schauer, W., The Politics o f Space: A Comparison of the Soviet and American Space Programs (New York,
1978).
44 President Dwight Eisenhower and UN Ambassador Henry Cabot Lodge, Department of State Bulletin (1957), 36,
pp. 124, 227. US Secretary of State, John Foster Dulles 37 Department of State Bulletin (1957), 37, p. 271.
45 Department of State Bulletin (1957), 37, p. 453.
46 Department of State Bulletin (1958), 38, p .
126.
47 The Banning of the Use of Cosmic Space for Military Purposes, the Elimination of Foreign Military Bases on the
Territories of Other Countries, and International Cooperation in the Study of Cosmic Space, UN document A/3818
and Corr. I .

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use but at the same time, they continued with the nuclear bases and the setting up of the their
military bases in the foreign territories. So it can be gagged that the intention was not with
respect to the disarmament but there was a need for distribution of the armament at large.
The main aim of the demilitarization was so as to stop the Soviet’s intercontinental ballistic
missiles and there was a threat to the security to that of the Soviet Union and the other countries
which were Socialist in nature to that with the military aircraft and the shorthand missiles from
the military basis which were located near to that of the USSR and the other Socialist Countries.
Then the Soviet Union’s opposition with respect to the adoption of the Resolution 1348 (XIII) on
December 13 of 1958, which established an Ad Hoc Committee on the Peaceful Uses of Outer
Space whose aim was with respect to the peaceful use of the outer space only . The adhoc
committee was replaced with that from the permanent committee. Then it was seen that the
resolution of 1472 was supported by the Soviet Union on the idea of the common interest of the
countries for the peaceful use of the outer space this seem to have limited scenario and nothing
was stated on the aspect of for its use of the outer space.
Then in the year of 1963 it was found out by the Legal subcommittee of the Space that was
starting for the discussion of the drafts on the framework of the international regime of that of
the outer space. It was seen that neither UK, USA or the Soviet’s draft showed that there should
be a peaceful use of the outer space.
The drafts of the US and that of the Soviet talked about the aspect of the exploration of the outer
space for the betterment purpose of the mankind and they also recognized the common interest
of the mankind with respect to the peaceful exploration of the outer space48. The Soviet used the
term for the common interest of the mankind so that they can resort to the exploration49 purpose
but for the benefit of the mankind which is interpreted to be the non-military purpose.
The Soviet draft also had the provision with respect to the limitation of the use of the direct
broadcasting aspect of the satellite. The use of the outer space with the idea of waging a war, or
with that of a racial hatred was prohibited50.
48 United States of America: Draft Declaration of Principles Relating to the Exploration and Use of Outer Space, UN
document A/C. 1/881.
49 Union of Soviet Socialist Republics: Draft Declaration of the Basic Principles Governing the Activities of States
in the Exploration and Use of Outer Space, UN document A/AC. 105/L.2.
50 Id.

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The Soviet Union was opposed to the idea of reconnaissance satellites, this was made clear in the
speech of Mr. Fedorenko at the 17 th meeting of that of the legal subcommittee and his views
were that the artificial satellite usage with the aim of collection of the intelligence information in
the territory of the other country was against the idea of the mankind with respect to its conquest
over the outer space51. In the International Cooperation Draft Code which was submitted by the
UAR had provided in the provision that the main goal of the preamble was so to support the
aspect that the main aim of the mankind was that to have peaceful52 activity in the outer space.
The opinion of the UAR delegate Mr. Fahmy was that the aspect of the peaceful use of the outer
space was protected under the the Belgrade Conference of 1961. The belief of the delegate of
UAR Mr. Fahmy was that exploration of the outer space is linked to that with its peaceful uses
and the peaceful activities . He was also of the view that the there should be no weapons of mass
destruction which should be attached to it or the missiles near the moon or around the celestial
bodies53. His views were supported by that of the delegates of India54, Lebanon55, Japan,
Mongolia56, Argentina57, Brazil58 and Hungary. Many stated their stand that the prohibition of
the military use is same as the peaceful uses.
Mr. Chakravarty , who was the Indian delegate was of the view that the use of the outer space
with respect to the military purpose was a threat to the mankind and he regretted the fact that
both the nations Soviet nor the US in their draft had the aspect of the limitation of the use of the
outer space for the peaceful use59 .
The other delegates present there were of the view that the principle aspect with respect to the
peaceful uses should be regarded as the basis for the freedom of outer space and the satisfactory
or any legal order
51 UN document A/AC. 105.C.2/SR.17.
52 UN document A/AC. 105/L.6.
53 UN document A/AC. 105.C.2/SR.18.
54 UN document A/AC. 105/C.2/SR.22.

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Cannot be made if the most important principles which does not deal with the aspect of the
problems of the peace and the nations have a duty towards the space to be used only in a
peaceful manner only60. The delegates did not define the term peaceful notion. This notion to be
defined was stressed by the delegate of UK and Mongolia.
The delegate of the Soviet Union had no problem with the definition aspect for him the peaceful
meant to be non-military in nature61 and he agreed to the fact that disarmament forum should be
competent with respect to the peaceful use of the outer space. The Soviet had a realistic approach
by looking at it. They were of the view that the problem of the military can be solved by the
disarmament62 process only. This forum was the one which became successful in solving the
problem of the prohibition of the nuclear by the inclusion into the NTBT.
Then in the year of 1963, the General Assembly had adopted the principle with respect to legal
principles governing the activities of the states. This declaration did not contain any provison
with respect to the peaceful use of the outer space nor there was prohibition which was imposed
with respect to use of outer space. The legal subcommittee of the space committee hence they
came up with the legal principles that would have governed the activities in the outer space63.
The legal interpreter , Fariborz Nozari with respect to the OST was of the view that it provided
that outer space and the celestial bodies were to be used exclusively for the peaceful purposes
only this is stated under Article 464 . He considered every military action to be a non peaceful
one. No clear answer 65has been provided with respect to what extent the outer space can be used
with respect to the military purpose and besides the placing of the nuclear weapons and other
weapons of mass destruction, what else can be considered.
62 Id.
63 UN General Assembly Resolution 1962 (XVIII), 13 December 1963.

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While according to the Soviet lawyer named Kolosov t he aspect of the non-use resorting to
forceful activity in outer space and for him the non-aggressive means a peaceful process. Thus
the non-aggressive weapons are forbidden in outer space even though not formally66.
While it is seen that interpreters are in consensus to the opinion regarding OST for the provision
of the demilitarization of the space and the celestial bodies, but it seems that no actual agreement
has been reached be it complete or either partial in nature.
It has been seen that the ICBM as well as the Soviet FOBS67 are considered to be prohibited
under the under Article 4 but this is with respect to the assumption that the full orbit of the earth
is being taken consideration. It seems that the use of ICBMs are not being ignored with respect
to the nuclear warheads68. The explanation to this is that object to be prohibited needs to be put
in the full orbit. The only difference which can be detected is that to make any object fractional it
is needed to remove the object from the orbit which was originally positioned there. Since the
legal notion as well as the ordinary meaning with respect to “placing in the orbit” is different.
Hence it is difficult to understand why this aspect gained popularity.
When it comes to article 9 69of OST then it is seen that this could be interpreted in favor of that
of the space interceptors or the hunterkiller satellites70 . This article allows the state with respect
to the experiment process but before that they take a appropriate consultation. It was held very
early that the enemy satellite gives a state the right to self-defense . Though the intention of the
negotiators of that of the OST is quite contrary to this .
It seems that all the laws which were brought in was just to break the rules or were just the play
of words. What is the benefit of having treaties which are ambiguous and allow the contradictory
provisions with respect to it . The treaties are so vague in nature that the countries use the
66 Kolosov, Y., ’Space and International Law’, International Affairs (Moscow, 1977), 8, p.
59.
67 Markoff, M.G., ’Disarmament and ’Peaceful Purposes’ Provisions in the 1967 Outer Space.
68 Arms Control: A Survey and Appraisal of Multilateral Agreements (Taylor & Francis, London, 1978, Stockholm
International Peace Research Institute), p. 9.
70 Outer Space - Battlefield of the Future? (Taylor & Francis, London, 1978, Stockholm International Peace
Research Institute) . ’Military Use of Outer Space’, World Armaments and Disarmament, SIPRI Yearbook 1979
(Taylor & Francis, London, 1979, Stockholm International Peace Research Institute), pp. 256-295.

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interpretations as the innuendo to hid the true nature of it. All the contradiction and the loopholes
which have been left is more of a legal fiction and a political bluff in nature.
3.3 Sovereignty Aspect
a) Spatial Theory
The Karman line is considered to have divided the space or it sets the boundary between the
air and space71. This line lies at an altitude around that of 100 kilometers. This definition of
the Karman line has been seem to accepted Federation Aeronautique Internationale (FAI).
Though there is no principle which universally accepts or agrees either technically , legally
with aspect of the separation of the airspace72 and outer space.
It is a lost observation with respect to the important difference with respect to the legal status
of that of the airspace or that of the outer space. When it is understood with respect to the
former then it is seen that the former , has the exclusive jurisdiction while on the other hand
the latter has no jurisdiction as such. The scholars agree in union with respect to the fact that
airspace is to be that part of the space object which has the sovereignty of the countries or the
state73.
It seems that the sovereignty is till the ambit of the earth only. Hence there is no sense to
refer to the sovereignty in the outer space. It is considered to be ab ignition with respect to
the international legislation which seems to govern the outer space. The principles under
which the space is governed are Moon Treaty, States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Borders74 (1967).
Even though the aspect of jurisdiction (ratione instrumenti and ratione personnae) on the
other recognizes the jurisdiction in the space75 but when it comes to space treaty then no
71 Based on the work of Dr. Theodore von Karrnan and presented in a paper at the University of California in 1957:
Aerodynamic Heating-The Temperature Barrier in Aeronautics.
72 The Minister of State, FCO, Hansard, H.C., Vol. 546 W.A .
73 Seara Vazquez, Cosmic International Law (1985) 27 .
74 Also known as the Space Treaty. 18 UST 2410, 610, U.N.T.S. 205.
75 Examples of such provisions include, Article 8 of the Space Treaty (1967), which states that a state party on
whose

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where the distinction has been mentioned then on what basis has the jurisdiction been thought
upon.
The main problem lies in the fact that even though air space is a older law as compared to the
space law but still no where there is mention of the word airspace and as for outer space is
concerned is as to where the boundary demarcating the outer space actually76 lies. The
concept of delimination77 was existing even before 1957.
b) No Present Need Theory
Mostly the theories assume that there is some kind of demarcation which is present in the
space but determine it is the biggest problem. Some authors have different views with respect
to it. Like for say Jessup states that there is a limit with respect to the extension of the
territorial aspect. It is thought upon that international practices will develop one definition
78related to it. While some authors of this school like that of Morennoff have the view that
registry an object launched into outer space is carried shall retain jurisdiction and control over it. Article 12 (1) of
the Moon Agreement confers jurisdiction and control over astronauts who are nationals of the sending state and
Article VIII of the Space Treaty (1967) also confers jurisdiction on the state of registry irrespective of the
nationality of all persons aboard the space vehicle. Further pertinent provisions on this issue are found in the
Agreement on the Return o fObjects launched in to Outer Space (1968) (Also known as the Astronaut Agreement or
Rescue Agreement. U.K.T.S. 56 (1969), Cmnd. 3997; (1969) 63 A.J.I.L. 382. In force 1968. 86 parties, including
the five permanent members of the Security Council); Convention on International Liability for Damage caused by
space Objects (1972) (Also known as the Liability Convention. U.K.T.S. 16 (1974), Cmnd. 5551; 961 U.N.T.S. 187;
10 I.L.M. 965. In force 1973 76 parties, including the five permanent members of the Security Council); (g)
Convention on Registration of Objects Launched into Outer Space (1975) (Also known as the Registration
Convention. UNTS 187; 14 ILM 43; UKTS 70 (1978); In force 1976 39 parties including the five permanent
members of the Security Council).
76 Diedericks-Verschoor, An Introduction To Space Law, (1999) 17.
77 The views of Dr. Bess C.M. Reijnen in the preface to Robert F.A. Goedhart, Forum For Air and Space Law: The
Never Ending Dispute: Delimitation of Air Space And Outer Space Vol. 4 Marietta Benko, Willem de Graaff (eds.)
(1996). Other notable writers have stressed, that international lawyers have an interest in assisting towards the
development of clearly defined boundaries and frontiers. Prescott wrote: ‘Boundaries attract the interest of
international lawyers because they mark the position ...where international rights are determined and obligations
assumed’. Nicholas Grief more recently expressed similar views when he stated: ‘To the international lawyer, in
particular, the delimitation of national and international areas has vertical and horizontal aspects which require the
application of legal principles and rules’. International Organisations that have consistently considered this problem
to no avail include both scientific and Legal or Political Organisations. These include the International Law
Association; the International Institute of Space Law and The International Astronautical Federation (IISL of IAF);
the Committee of Space Research (COSPAR) of the International Council of Scientific Unions (ICSU);
International Civil Aviation Organisation (ICAO). See J.R.V. Presscott, Boundaries and Frontiers (1978) 20;
Nicholas Grief, Public International Law in the Airspace of the High Seas (1994) 7 .
78 Jessup and Taubenfeld, Controls for Outer Space and The Antarctic Analogy (1959) 207.

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this demarcation will interfere with the regime which is existing with respect to the
international aviation79.
Summary of the theory in a nut shell
 The explicit agreement absence has made is to stop any kind of argument from
happening80.
 It would become difficult as the Pandora of box of trouble will take place if the claim
is allowed as like same as that on high seas.
 Once an agreement with respect to a limit is reached it would become difficult to alter
it or reduce it81.
The fault with respect to the aspect of the demarcation regime lies not on the industrialized
power solely. Before 1976 there was no problem with the idea of that of the satellite passing
from that of the territories82.Before the year of the 1970’s the demarcation idea was not very
popular83 amongst the people. That is why this aspect was not raised in the General Assembly
resolution nor in the 1967 treaty. The countries were divided in their opinion with respect to
demarcation idea. Countries like that of Italy, France and USSR were in favor of the spatial
delimination . There are no physically visible landmarks and also the fact that many countries do
not have the capability with respect to determining the space object and they cannot affirm to an
agreed altitude boundary84.
c) Functional Theory
The main aim of this theory is not stressed on the aspect of the demarcation boundary idea but
there is rather stress onto to have a regulation with respect to the activities85 which take place in
the space.
79 Jerome Morenoff, World Peace Through Space Law (1967) 1.
80 History of the debate as to the deilimination of airspace and outer space ppt. By Catherine Dolirina, Institute of
Air and Space Law, Mc Gill University, Canada.
81 For these and other submissions see Houston Lay, and H Taubenfeld, The Law Relating to Activities of Man in
Space, (1970) 46 .
82 D.J. Harris, Cases and Materials on International Law (1998) 253 .
83 Diederiks- Verschoor, supra note 4, at 17.
84 See A/AC.105/C2/SR.316, ¶. 1-7; see also A/AC.105/C.2/7/Add.1,¶.42, p.15
85 The possibility of such an approach was referred to as early as 1959. See Ad hoc Committee On The Peaceful
Uses . of Outer Space, U.N. Dec. A/AC, 198/2 General Assembly, p. 8. See also McNair, supra note 3, at 16.

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So it can be stated that the outer space definition is given based on the concept of the space
activities . It can stated that the outer space begins from where the space activities seem to start.
This school of thought is of the view that the air flights and the space flight should be resorted to
the same rules of law which really makes no rational differentiation between the two and also
there is no use of having air law and space law separately .The fact that the space has not been
defined so there is really no legal basis to have law for something which has not even been
defined.
Theory in a nut shell
1.The functional theory in a nut shell states that the space law should covers all the means of
transport from earth to that of the space.
2. The definition which has been stated under the annex 7 of that of the Chicago Convention86 ,
are to be considered as a spacecraft.
3. The airspace limit is till where the aircraft can attain altitude and this aspect varies from
spacecraft from country to country while spacecraft is found to orbit the earth. There is also the
as the aspect of innocent passage being used.
4. These activities are allowed as long as the security aspect of the countries is respected.
86 Refer to Annexure 7 of the Chicago Convention.

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CHAPTER -4
4.1 Conclusion
It can be noted that the use of Treaty which has been mentioned above has a number of loopholes
and a number of provisions are such that are contradictory in nature . Nothing is reality is a
contradiction but is of precision in nature. It seems to prohibit such type of activities wherein
they leave a mark of vagueness shows the political as well as the legal fictional side of it.
It is analyzed that USA which first came up with the plan with respect to the militarization
application in the outer space. It was the US only which , in the year of 1957 had the come up
with the contrary view of the fact that outer space should be used only for the peaceful purpose
87reasons and for the scientific reasons. It called for a study along with that of Canada, UK and
France on the aspect of such design system which would help in keeping a track of the objects
which were being sent into the space is for the peaceful and the scientific purpose only. This is
just one example how the mockery of the space law was made which was not supposed to even
exist since there is no distinction which could be made between the outer space and the air.
It is a lost observation with respect to the important difference with respect to the legal status of
that of the airspace or that of the outer space. When it is understood with respect to the former
then it is seen that the former , has the exclusive jurisdiction while on the other hand the latter
has no jurisdiction as such. Hence it can be seen that there is no such as space law. If there is not
any distinction then on what basis these claims are made. These claims even differ in the
opinion.
The main idea of the common heritage of mankind is considered to have been outside the
national jurisdiction. This concept was only with respect to the high seas earlier but soon this
idea was propounded in the outer space as well . Article 2 of the outer space treaty talks with
respect to the Outer Space treaty which talks about the concept of res communis that is
something which can be used by anyone. There is a legal vaccum when it comes onto to
believing to the concept that space activity is being governed but in reality there is no such
87 President Dwight Eisenhower and UN Ambassador Henry Cabot Lodge, Department of State Bulletin (1957), 36,
pp. 124, 227. US Secretary of State, John Foster Dulles 37 Department of State Bulletin (1957), 37, p. 271.

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development economically supporting the above statement. All the shreds of the reality have
sublimed with the ideas which were existing related to space law but none of them seem to be
really existing as manmade laws are such which even man is not sure how to put into
perspective.

Space Law is a Legal Fiction

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