Quite the opposite of the private, civilian efforts of the Wright Brothers, for Santos-Dumont, and other aviation pioneers, space flight and exploration was a state enterprise from its inception. It was the United States and the Soviet Union, through their national space programs that launched the first unmanned and manned missions into space.154 Moreover, it was not just states
(specifically the Soviet Union and the United States) but mili- tary missions by states—though for peaceful purposes—with military members at the helm.155 One amalgamation of astro-
naut data found that “[u]ntil 2004, astronauts were sponsored and trained exclusively by governments, either by military agen- cies or by civilian space agencies.”156 At the dawn of space explo-
ration, U.S. President Dwight Eisenhower intended the U.S. space program to be civilian-run and for scientific purposes; but after Sputnik, reaching space became perceived as a matter of exigency for the United States to preserve both prestige and se- curity.157 Unlike the Paris Convention for aircraft, however, the
distinction between military and other state operation has no legal bearing on the status of spacecraft.158 In fact, not even the
civil versus state distinction from the Chicago Convention was included.
154 See DEMPSEY, PUBLIC INTERNATIONAL AIR LAW, supra note 71, at 753 (noting
that because the space launches were state craft, ICAO had no basis for jurisdic- tion over them).
155 StarChild Team, Yuri Gagarin, NASA, http://starchild.gsfc.nasa.gov/docs/
StarChild/whos_who_level2/gagarin.html [https://perma.cc/WB8H-SPQY] (noting that Gagarin, the first human in space, was drawn from the Soviet Air Force (where he was a fighter pilot) for cosmonaut training); Information Summa-
ries: Astronaut Fact Book, NASA 1-2 (April 2013), https://www.nasa.gov/pdf/
740566main_current.pdf (noting that the entire first cadre of U.S. astronauts were military members); id. at 10-1. (providing basic service data for all U.S. mili- tary astronauts).
156 List of Astronauts by Name, WIKIPEDIA, http://en.wikipedia.org/w/index.php
?title=List_of_astronauts_by_name&oldid=663957240 [https://perma.cc/L932- SCDU].
157 See HOUCHIN, supra note 3, at 81 (“Indeed, the president would not com-
promise his position on launching a civilian satellite with a civilian (not a mili- tary) booster until after Sputnik and the failure of the Vanguard in December 1957. Following these events, he openly conceded the need for studies of military space programs.”). See also Section IV.D.4 infra.
158 Of course, as a matter of fact and perception the line between military and
non-military activities in outer space can make a great deal of difference in the context of the debate over the meaning of “peaceful” uses of outer space. See Section IV.D.5.a infra.
The international law of outer space makes no distinction be- tween civil and state vehicles. They are grouped together under Article VI of the Outer Space Treaty:
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.
Thus, a state is responsible for all activities of its nationals in outer space (state or civil) and for assuring its nationals adhere to the Outer Space Treaty.159 Such “international responsibility”
suggests that states would desire to assert control over national activities, and Article VI goes on to make this obligation explicit: “The activities of non-governmental entities in outer space, in- cluding the Moon and other celestial bodies, shall require au- thorization and continuing supervision by the appropriate State Party to the Treaty.”160 Thus, the Outer Space Treaty assigns re-
sponsibility to and requires states to provide significant and ac- tive oversight (“authorization and continuing supervision”) of civil activities in outer space.161 This obligatorily close relation-
159 Article VI also assigns states responsibility for the activities of international
organizations of which they are part. Outer Space Treaty, supra note 60, art. VI (“When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.”).
160 Id. art. VI. The requirement to create controlling domestic legislation was
accentuated in the U.N. General Assembly in 2013 with Resolution 68/74, which accentuates the Outer Space Treaty requirements and stresses the importance of state involvement “in view of the increasing participation of non-governmental entities in space activities” and other modern developments and problems with the expanded use of outer space. Recommendations on National Legislation Rel- evant to the Peaceful Exploration and Use of Outer Space, Dec. 11, 2013, G.A. Res. 68/74, U.N. Doc. A/RES/68/74, http://stage.tksc.jaxa.jp/spacelaw/world/ 1_02/02.E-10.pdf [https://perma.cc/3758-PRAS].
161 Additionally, Article VIII of the Outer Space Treaty ensures that jurisdic-
tion and control remains with a state throughout the duration of space activities, through the registration process:
A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Outer Space Treaty, supra note 60, art. VIII.
ship can largely blur the distinction between state and civil activities.162
This is “radically different”163 than general norms of interna-
tional law, and certainly a departure from the airspace regime. For instance, the commentary to the U.N. International Law Commission (ILC) Articles on State Responsibility notes the re- quirement of attribution to a state before responsibility can be assigned:
Thus, the general rule is that the only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the State. . . . As a corol- lary, the conduct of private persons is not as such attributable to the State.164
Under air law, every aircraft must have a nationality and a flag.165 Through the Convention on Offenses and Certain Other
Acts Committed on Board Aircraft of 1963166 (Tokyo Conven-
tion) and other agreements, a degree of jurisdiction and control flies along with that flag. From this stems a general ability to control (or regulate) one’s citizens and activities. But short of properly demonstrated attribution to a state actor or activities, there is no requirement that a state be responsible for its aircraft such as in the outer space legal regime.167
This unique relationship between space-faring states and their national actors is particularly significant for non-governmental activities in that Article VI of the Outer Space Treaty mandates that all activities be carried out in conformity with the Treaty. And Article III mandates that states “shall carry on activities in the exploration and use of outer space, including the Moon and
162 This blur is the case, at least, in the view of parties external to the state.
Internally, a state may create whatever regime it finds appropriate to manage civil space activities; the requirements can be the same as those for state activities, or more onerous. See generally CHENG, STUDIES, supra note 62, at 429.
163 Cheng, Article VI of the 1967 Space Treaty Revisited, supra note 126, at 13 (dis-
cussing the unique Article VI requirement that states “assure” compliance, saying it “assumes an air of guarantee by the State of such compliance.”).
164 Int’l Law Comm’n, supra note 38, at 39 (commentary); see also Convention
on International Civil Aviation, supra note 49, arts. 4–11.
165 Convention on International Civil Aviation, supra note 49, art. 17.
166 Convention on Offenses and Certain Other Acts Committed on Board Air-
craft, Sept. 14, 1963, 704 U.N.T.S. 220 [hereinafter Tokyo Convention] (entered into force on Dec. 4, 1969) (addressing jurisdiction for crimes and other acts on board aircraft that prejudice the good order and discipline of aviation).
other celestial bodies, in accordance with international law, in- cluding the Charter of the United Nations, in the interest of maintaining international peace and security and promoting in- ternational cooperation and understanding.”168 Reading these
two requirements together, they dictate the acceptable limits and legitimate interests of civil (non-governmental) activity, that is “maintaining international peace and security and promoting international cooperation and understanding.”169 This is a fairly
early case of public international law potentially reaching be- yond states to govern the actions of individuals (assuming states adhere to their Outer Space Treaty obligations and actually en- act rules to adequately authorize and supervise their national actors in space). If states are required to meet this standard and their national activities are expected to adhere to state stan- dards, then the private and civil activities must therefore meet these international standards.170