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2001

Sovereignty Versus Space - Public Law and Private Launch in the

Asian Context
Frans G. von der Dunk
University of Nebraska - Lincoln, fvonderdunk2@unl.edu

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von der Dunk, Frans G., "Sovereignty Versus Space - Public Law and Private Launch in the Asian Context"
(2001). Space, Cyber, and Telecommunications Law Program Faculty Publications. 1.
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Singapore Journal of lnternational & Comparative Law
(2001) 5 pp 22 - 47

Sovereignty Versus Space - Public Law and Private Launch

in the Asian Context*

D r Frans G von der Dunk**

IN the more than forty years which have gone by since the birth of
space law, there has not been a more revolutionary development than
the rapidly increasing involvement of private entities in space activi-
ties. International space law in the narrow sense-essentially five space
treaties and five United Nations Resolutions on space' constituting
t h e core of the corpus juris spatialis internationalis - developed

The present paper is for a large part based on the author's contribution t o a
'Project 2001'- workshop held at UNISPACE 111 in Vienna, July 1999, as well a s
his Private Enterprise i d Public Interest in the European ' ~ ~ a c e s c a(1998),
~e'
particularly Chapter I1thereof on thestructural frameworkaspects of international
space law.
** Co-Director, lnternational Institute of Air and Space Law
Leiden, The Netherlands.
1 This concerns the following treaties and resolutions:
Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, including the Moon and Other Celestial Bodies
(hereafter Outer SpaceTreaty), London/Moscow/Washington,adopted 19
December 1966, opened for signature 27 January 1967, entered into force
10 October 1967; 6 ILM 386 (1967); 18 UST 2410; TIAS 6347; 610 UNTS 205;
Agreement on the Rescue of Astronauts, the Return of Astronauts and
the Return of Objects Launched into Outer Space, London/Moscow/
Washington, adopted 19 December 1967, opened for signature 22 April
1968, entered into force 3 December 1968; 19 UST 7570; TlAS 6599; 672
UNTS 119;
Convention on International Liability for Damage Caused by Space Objects
(hereafter Liability Convention), London/Moscow/Washington,
adopted 29 November 1971, opened for signature 29 March 1972, entered
into force 1 September 1972; 10 ILM 965 (1971); 24 UST 2389; TlAS
7762; 961 UNTS 187;
W Convention on Registration of Objects Launched into Outer Space (hereafter
Registration Convention), New York, adopted 12 November 1974, opened
for signature 14 January 1975, entered into force 15 September 1976; 14
ILM 43 (1975); 28 UST 695; TlAS 8480; 1023 UNTS 15;
Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies, New York, adopted 5 December 1979, opened for signature
18 December 1979, entered into force 11 July 1984; 18 ILM 1434 (1979);
1363 UNTS 3;
5 SJlCL Public Law and Private Launch 23

for its most fundamental part when only states (and a few international
organisations) were undertaking space activities in any meaningful
sense of the word. Its exclusively public character, for example in terms
of rights and obligations provided for, was a direct consequence of
this.
This poses the fundamental question whether international space
law is adequate to deal with private space activities, and notably t o
balance valid private interests with the general public one in outer
space and space activities. In other words: are private enterprise's
interests sufficiently heeded by the body of international space law,
and are, at the same time, the interests of the public at large sufficiently
protected against the undesirable (side-) effects of private enterprise's
entry into outer space?
This question is perhaps of special importance for Asian countries.
Traditionally, Asian societies and states have been inclined more than
eg, European ones to focus upon the general collective, ie, public,
benefits of any economic activities, including those in outer space.
In this context, private economic initiatives have often been frowned
upon, alternatively kept on a short leash. In legal terms, this notion
of 'the collective' translates largely into the concept of 'sovereignty',
as a legal tool t o defend a state's interests both on the international
and on the national plane.
At the same time, the advance of private enterprise into the space
arena over the last decade or two has probably been nowhere as marked
as in Asia. Economic tigers such as Singapore, Taiwan, Malaysia and
Thailand, having already considerable experience with the role of
private enterprise in a general economic sense, a r e increasingly

Declaration of Legal Principles Governing t h e Activities of States

in t h e Exploration a n d Use of Outer Space, UNGA Res 1962 (XVIII),
of 13 December 1963; UN Doc A/AC 105/572/Rev 1, at 37;
Principles Governing the Use by States of Artificial Earth Satellites for
International Direct Television Broadcasting, UNCA Res 37/92, of 10
December 1982; UN Doc A/AC 105/572/Rev 1, at 39;
Principles Relating t o Remote Sensing of the Earth from Outer Space,
UNGA Res 41/65, of 3 December 1986; UN Doc A/AC 105/572/Rev 1, at 43;
Principles Relevant t o the Use of Nuclear Power Sources in Outer Space,
UNGA Res 47/68, of 14 December 1992; UN Doc A/AC 105/572/Rev 1, at
47;
Declaration on International Cooperation in the Exploration and Use of
Outer Space for the Benefit and in the Interest of all States, Taking into
Particular Account the Needs of Developing Countries, UNGA Res 51/122,
of 13 December 1996; (1997) XXII-I Annals of Air and Space Law, a t 556;
46 Zeitschrift fiir Luft- und Weltraumrecht (1997), at 236.
24 Singapore Journal of International & Comparative Law (200 1 )

becoming present also in outer space through private and commercial

participation. Major powers such as India and Indonesia are moving
away from their traditional distrust of private enterprise and private
intentions, and structured efforts are under way to facilitate private
entities' participation in various fields of space activity. Even the
People's Republic of China is taking fundamental steps to take part
in an international, read global space economy being increasingly
liberalised - not in the least in the field of launching.
Yet, there is an almost complete silence of the aforementioned
treaties and resolutions of international space law on private entities
and private activities. For Asian countries, the question of the fitness
of international space law and its major instruments in dealing with
the private character of a considerable and growing measure of space
activities is of crucial importance. As launching in a sense represents
the key to most other relevant space activities - without launch,
satellite communications, satellite remote sensing, satellite navi-
gation or space station operations are not possible - such a general
analysis applies to this field in particular.

OF INTERNATIONAL
11. THESTRUCTURE SPACELAW
AND PRIVATE
SPACEACTMTIES
This issue of 'fitness' in general has to be approached at two levels.
On the one hand, the question arises whether current international
space law, by way of the rules, rights and obligations it defines, takes
into due account both the valid and justified interests of the private
sector itself, and the specific consequences of private involvement
in space activities upon the whole human endeavour in space. In other
words, whether the valid and justified interests of other players as
well as society and humanity at large are duly considered.
This could be labelled the 'substantive' approach, since it focuses
on the substance of contemporary international space law. Whether
in terms of launching only or more generally for all space activities,
the special impact of substantive space law rules upon private activities
would be the subject here. Such an analysis, whilst certainly crucial
for a beneficial development of further private involvement in outer
space and launch activities, would overstep the boundaries of this
paper. By way of illustration, within the context of 'Project 2001', a
research project undertaken at the University of Cologne in Germany
together with the German space agency, more than 130 experts from
around t h e world a r e involved in discussing and analysing these
issues.
On the other hand, prior to such analysis the particular structure
of international space law as a public legal regime also calls for a
5 SJlCL Public Low and Private h u n c h 25

'structural' approach, preceding analysis of the substance. Whatever

rules, rights and obligations international space law may be seen to
provide, whether adequate in substance for dealing with private launch
and other space activities or not, they are addressed primarily to states,
and only in somesecondary manner to international- public organisations.
Thus, the question remains: how, in the abstract, are private entities
tied or to be tied in to this international legal framework for space
activities?
The present paper will focus on this 'structural' question of
binding private enterprise t o public space law, and how private
enterprise must be factored into a consideration of any areas of
'substance'. This essentially also confines the scope of the present
paper to the two treaties that elaborate the key concepts structuring
international space law - the Outer Space Treaty and the Liability
Convention.
It is here where launching as one space activity amongst others
stands out in particular. Not only does it represent the most basic
spaceactivity in thesense that without launch, few other space activities
of interest here would be possible; it is through t h e launch that t h e
most directly quantifiable issue of space activities, the liability
for damage caused by such activities, is r e g ~ l a t e dObviously,
.~ from
a legal perspective this is even more important.
By way of point of departure, the normative system of international
space law (the 'substance'), though addressed to states, obviously
is also applicable to private space activities, which are allowed under
space law albeit subject to authorisation (and continuing supervision)
by a state.3 These private activities should conform to the same rights
and obligations which public space activities are obliged to comply
with even if, private enterprise is currently not directly bound by those
rights and obligation^.^ Consequently, the task of authorisation and
continuous supervision rests squarely upon the shoulders of states
to realise this.

2 See Art VII, Outer Space Treaty; Art I(c), Liability Convention. These provisions
define the entitylies liable for damage as a consequence of space activities as
those states involved in the launch of the space object causing the damage in
either of the four ways mentioned. See further infra, para 9.
3 See Art VI, Outer Space Treaty.
4 See also eg, PL Meredith & CS Robinson. Space Low: A Case Study for the
Practitioner (1992), 58, 67.
26 Singapore Journal of International & Comparative Law (2001)

At least in theory a state will be inclined to exercise any jurisdiction

available to it primarily ois4-uis those particular categories of private
activities for which it can be held accountable under international
(space) law.5 Such accountability under international space law has
a twofold character, as it does under general international law. It
comprises both a general accountability in the form of state respon-
sibility, and the specific accountability for damage that is provided
by the phenomenon of state l i a b i l i t ~ . ~
The two concepts of responsibility and liability as defined under
space law have a structural component in that they effectively carry
their own respective definitions regarding the entities for which a
particular state might be held accountable. For state responsibility,
this component is essentially dealt with by Article VI of the Outer Space
Treaty, whereas liability for damage is largely given shape by Article
VII of the Outer Space Treaty, as repeated in or supported by provisions
in the Liability Convention.
Finally, especially in view of state responsibility, Article V1lI of the
Outer Space Treaty plays a fundamental role. This touches upon the
relationship between jurisdiction and the exercise thereof on the one
hand and the international responsibilities and liabilities on the other
hand, which provides the basis for any regulation of private space
activities by individual states for the purpose of international space
law.

SPACETREATY
111. ARTICLESVI AND VIII OF THE OUTER
AND STATERESPONSIBILITY
Article VI of the Outer Space Treaty provides that states are inter-
nationally responsible for 'national activities in outer space', including
cases where these activities are 'carried on (...) by non-governmental
entities'. This responsibility pertains to 'assuring that national activi-

5 Cf eg, B Cheng, The Legal Regime o f Airspace and Outer Space: The Boundary
Roblem. Functionalism versus Spatialism: The Major Premises, (1980) 5 Annals
o fAir and Space Law, 340; B Cheng, The Commercial Development o f Space: the
Need for New Treaties, (1991) 19 Journal o f Space Law, 37.
6 See also extensively NUT Horbach, Liability Versus Responsibility Under
International Law (1996), 20-34, for a fundamental discussion of the two
concepts as they arise out of national legal orders where they are differently
interpreted, applied and inter-related, with the consequence that at the
international level a large measure o f confusion has arisen as to the scope,
meaning and consequences in law o f the respective principles. Thus, experts
differ for instance fundamentally in their qualification of responsibility and
liability as primary or secondary obligations under international law.
5 SJICL Public Low and Private Launch 27

ties are carried out in conformity with the provisions set forth in the
present Treaty'. With the Outer Space Treaty providing the legal
framework for all space activities and laying the foundation also for
further regulation, violation of its terms would amount to violation
of the outer space legal regime in general.
Similarly, the general doctrine on state responsibility provides, that
states are responsible for 'internationally wrongful acts': acts violating
obligations under international law.' International law in general is held
to apply also to outer space.s Therefore, under Article VI,the concept
of state responsibility for activities undertaken in outer space generally
becomes operative whenever these activities violate obligations under
international space law.
In deviation from the general doctrine of state responsibility, under
the terms of Article VI states are responsible to the same extent for
private activities as they are for public activities. No exemption from
international responsibility for private activities can be claimed by
arguing that a state acted with 'due care'.g Private space activities are
without further qualification equated, for the purpose of international
responsibility, to the activities of states. Here, the major impetus arises
for states to actually take legislative action, for they would have to
answer internationally for private space activities violating interna-
tional space law.
This central presumption underlies the attribution of private space
activities to states. Article VI then begs the question: for which cat-
egories of private space activities is which particular state to be held
responsible on the international plane? The answer to this question

7 See Arts 1, 3, 4, ILC Draft articles on State responsibility, ILC Y b 1980 Vol 11,
30-4; further eg, Horbach, 23; 1. Brownlie, The System o f the Law o f
Nations (1983), 22-31; K Zemanek, Responsibility o f States: General
Principles, 10 Encyclopedia ofPubliclnternationalLaw (1987),362 f f ; R Wolfrum,
Internationally WrongfulActs, 10 Encyclopedia o fPublic International Law (1987),
271 f f .
8 See Art Ill, Outer Space Treaty. General public international law functions as
a lex generalis where the lex specialis of space law itself is moot, unclear or
open to conflicting interpretation; see M Lachs, The Law o f Outer Space (1972),
145, including at note 3; HA Wassenbergh, Principles o f Outer Space Law in
Hindsight (1991), 15-6;G Zhukov & Y Kolosov, International Space Law (1984).
48-9; S Hobe, Die rechtlichen Rahmenbedingungen der wirtschaflichen Nutzung
des Weltraum (1992), 75-6.
9 As t o the doctrine o f due care responsibility, cf eg, FV Garcia Amador. State
Responsibility - Some New Problems, (195811) 94 Recueil des Cours, 403-5;
Zernanek. 368.
28 Singapore Journal of International & Comparative Law (2001)

lies in the interpretation of the two key-terms 'national activities' and

'appropriate State', and it is here where the first problems arise as
far as private space activities are concerned.

IV. THEROLES OF 'JURISDICTION' IN SPACE

AND 'SOVEREIGNTY'

As referred to, from a logical perspective the most effective interpreta-

tion of private 'national activities' would make s t a t e s interna-
tionally responsible precisely for those activities over which they can
exercise legal control. The opportunity to exercise legal control is
encompassed in the concept of 'jurisdiction', which is of course a well-
known fundamental concept of general public (international) law. In
that context it is in many intricate ways linked to the sovereignty of
states.
This brings the analysis to the question of the specific impact on
s p a c e activities of the concept of sovereignty in general, and
t h e fundamental clause of Article I1 of the Outer Space Treaty in
particular.1° As t o the former, sovereignty indeed is in effect
very much linked directly to territory. The effects of (exclusive!)
sovereignty are most comprehensively felt on the territory of the
particular s t a t e a t issue, t o such an extent that t h e concepts
of (territorial) sovereignty and exclusive (territorial) jurisdiction are
considered to be two sides of the same coin, often used interchange-
ably.
What Article I1 for its part therefore really establishes or confirms"
is that 'national appropriation' of the area of outer space (or any part
thereof) is not possible, and that such traditional international law-
concepts as 'occupation' do not apply. Outer space is no terra nullius,
which can be occupied and incorporated into a certain state's territory.
Neil Armstrong's planting of the US flag on the moon (not a real flag
anyway) did not and could never signify that the moon or any part
thereof had or would become US territory.
Therefore, the exclusion of sovereignty and legal control by means
of Article I1 of t h e Outer Space Treaty refers t o t h e exclusion

10 Art 11, Outer Space Treaty, provides: 'Outer space, including the Moon and other
celestial bodies, is not subject to national appropriation by claim of sovereignty;
by means of use or occupation, or by any other means.'
11 The choice between 'establishes' or 'confirms' depends upon one's view as to
whether, in the absence of any explicit provisions in international treaties or
customary law allowing for (the exercise of) sovereignty, such sovereignty could
be presumed or not.
5 SJlCL Public Law and Private Launch 29

of sovereignty and legal control on a territorial basis. It did not mean

that the drafters of the Outer Space Treaty intended to allow a lawless
void to exist, or even that they allowed for (new) law only to the extent
the whole community of states could agree thereupon. In legal terms
it only meant that, for any particular part of outer space, no single
state could call the tune to which (private) space entrepreneurs would
have to dance, especially once private enterprises become involved
in space activities. However, the freedom of outer space and activities
undertaken therein could and should not be regulated solely on the
global international level, in view of the difficulties inherent in all the
world's states agreeing to any elaborate and effective legal regime on
the private level.
Article VI of the Outer Space Treaty thus provided for international
state responsibility for space activities that could be considered 'national
activities in outer space' of that particular state. Consequently, it was
the crucial provision of Article VI on 'authorisation and continuing
supervision', which leads to the question whether sovereignty,
in one form or another as a background to or basis for any exercise
of jurisdiction, still has effect in space in spite of its formal absence.

V. TERRITORIAL
JURISDICTIONAND SPACEACTIVITIES
The most direct consequence of a state's sovereignty in general
international law-terms is the exclusive jurisdiction of any state over
its territory. 'Territory' here includes the land territory, the internal
waters, the territorial waters (where the exclusivity of sover-
eignty oiz, territorial jurisdiction is fundamentally limited only by
the concept of 'innocent passage') and the airspace above these three
terrestrial areas. However, outer space itself, as mentioned, is not
included, and this triggers the question of the relevance of territorial
jurisdiction.
Here, one becomes aware of the special character of (most) space
activities. Manned space flight, ie, with human (and hence also legal)
persons as actors being themselves in outer space, albeit perhaps the
most visible category of space activities, concerns only a minor
part of human activities related to space. Such activities indeed
could not be subjected to territorial sovereignty and jurisdiction, in
view of the non-applicability of these concepts to the area of outer
space.
The overwhelming part of space activities, however, is actually
conducted by persons in ground control stations. They push the buttons
and pull the handles that make a rocket shed its first stage or a
telecommunications satellite change frequencies out in space.
In other words: most space activities are 'remote controlled activities'
30 Singapore Journal of International & Comparative Law (2001)

in the sense that the actors undertaking those activities are present
somewhere on earth whereas the results of their physical actions occur
far away in outer space. The result is that territorial sovereignty, in
respect of such 'remote controlled activities', still allows states to
control activities in outer space in a legal fashion.
Moreover, from this perspective the category of launch activities
presents yet another picture. While by definition aimed at outer space,
s o far all launches in any meaningful sense of the word for their first
and crucial part do not, geographically speaking, take place in outer
space. Most of them are even undertaken from 'territory' as such. For
launch activities, consequently, territorially based jurisdiction
continues to represent a very effective legal tool for states t o control
private involvement. Even better, of course, such legal control over
launch activities in turn provides such states with an effective legal
tool of control over any space activities consecutive to the launch
proper.
In view of the responsibility of states under Article VI of the Outer
Space Treaty for national activities in space, uiz, their responsibility
t o authorise and continuously supervise such activities, s t a t e s
a r e thus capable t o control in law t h e overwhelming majority
of s p a c e activities already by using their territorial jurisdiction in spite
of the absence of territorial sovereignty in outer space proper.

VI. PERSONAL AND SPACE

JURISD~CTION ACTMTIES
In addition to the concept of territorial jurisdiction, in general public
international law a concept of personal jurisdiction exists.'* The power
to control by law persons and entities because of a nationality is
certainly an asset of states only: only states can bequeath nationality,
and only states have the comprehensive right to act on their behalf

12 When the concept of 'personal jurisdiction' is discussed, one has t o be aware

of the further distinction between'activepersonal jurisdictionl(ie, over activities
undertaken by nationals) and 'passive personal jurisdiction' (ie, over activities
of which nationals are 'victims'). However, the latter form of personal jurisdiction
is a s such much more disputed and less developed. Since moreover it does not
touch upon the legal - realm of outer space unless one deals with the quite
exceptional area of manned space flight (where usually special agreements
between states concerned are concluded t o deal with such jurisdictional issues),
it is generally left out of the analysis here. Therefore, references t o personal
jurisdiction in this paper should henceforth be read as referring t o active
personal jurisdiction.
5 SJlCL Public Law and Private Launch 31

at the international level.13 Thus, next to the more visible and more
physical attribute of territorial jurisdiction it, forms a central attribute
of a state's sovereignty.
In general international law, limits to this principle of personal
jurisdiction are only provided in the sense that under'certain circum-
stances, the opposability of nationality of certain persons or entities
t o third states may b e subject to discussion, if international conflicts
on jurisdictional issues are at ~take.'~Also, the monitoring and enforce-
ment of laws and regulations basing themselves upon this principle
of personal jurisdiction depend upon the actual presence of the person
or entity on the territory of the state concerned, uiz, upon treaties
o r arrangements with states where such persons or entities are actually
present.Is
There is nothing in international space law however that further
limits or even contradicts the application of the concepts of nationality
and personal jurisdiction to outer space. Astronauts d o not loose their
nationality because of their presence outside of any state's territory
any more than a sailor looses his nationality on the high seas. Con-
sequently, national laws - in subservience t o the 'authorisation and
continuing supervision' required by Article VI of the Outer Space Treaty
- can continue to b e used for exercising legal control over space
activities.
Naturally, the same applies also, firstly, to human actors not them-
selves in outer space. An American engineer controlling spacecraft
from Russian territory does not loose his nationality merely for that
reason, and consequently remains in principle subjected to US juris-
diction on a personal basis. In view of the concurrent jurisdiction of
the Russian Federation on the basis of the territorial criterion, the

13 To a limited extent general international law has accepted the notion of certain
intergovernmental organisations t o act on behalf of certain individuals, namely
to the extent that these are t o be considered officials of that organisation; cf
Reparation for Injuries Suffered in the Service of the United Nations, Advisory
Opinion, International Court of Justice, 11 April 1949, ICJ Rep 1949, 174. This,
obviously, is still a long way from granting anything like an 'international
nationality' or derogating from the nationality of the persons concerned.
14 Cfthe Nottebohm Case (Second Phase)(Liechtenstein v Guatemala), International
Court of Justice, 6 April 1955, ICJ Rep 1955, 4.
15 An obvious example would consist of the manifold bilateral extradition treaties
that exist in today's world, a s well a s some multilateral treaties providing for
aut dedere aut judicare-provisions.
32 Singapore Journal of International & Comparative Law (2001)

obvious possibility of a conflict on competence arises. However, this

is of course not uncommon in general international law. It is usually
solved along the lines of priority of territorial jurisdiction over personal
jurisdiction at least when it comes to adjudication or enforcement,
alternatively by means of special agreements between t h e states
concerned.16 The same tableau of solutions presents itself to any
jurisdictional conflict pertaining to space activities and space law.
The continuing legal validity of nationality in outer space applies
also, secondly, to legal persons undertaking space activities. The
nationality of companies active in the space arena is not differently
determined from that of those active in other fields."
States as a consequence can exercise their personal jurisdiction
to control by law any company incorporated and headquartered in
their respective territories,18 even if that company's activities proper
are taking place in outer space and/or are conducted from outside
the state's territory. Of course, dealing with adjudication and/or
enforcement remains another matter.

VII. REGISTRATION-BASEDJURISDICTION
AND SPACEACTMTIES
In addition to territorial jurisdiction and persona1 jurisdiction, a third,
space law-specific approach to law-making in space has been elabo-
rated which takes the concept of nationality one step further. Article
VlII of the Outer Space Treaty provides for the duty for certain states
to register space objects. Whilst the term 'nationality' is carefully
avoided in this context, the effect of registration of a space object
for all practical purposes can be compared to that of registration and
the consequent nationality of ships and aircraft.Ig For a start, the

16 Examples would concern multilateral or bilateral treaties regarding personal

immunities.
17 Art 111, Outer Space Treaty, confirms that rules of general public international
law continue t o apply t o outer space and space activities unless clear lex
specialis can be discerned as overriding such lex generalis.
18 Cf the Barcelona Traction Case (Case Concerning the Barcelona Traction Light
and Power Company, Limited) (Second Phase)(Belgium v Spain), International
Court of Justice, 5 February 1970, ICJ Rep 1970, 4, as the authoritative ICJ
judgment defining the nationality of a company for international law purposes.
19 Cf resp Art 91, United Nations Convention on the Law of the Sea (hereafter
UNCLOSIII), Montego Bay, adopted 30 April 1982, opened for signature 10
December 1982, entered into force 16 November 1994; 21 ILM 1261 (1982); Art
17, Convention on International Civil Aviation (hereafter Chicago Convention),
Chicago, done 7 December 1944, entered into force 4 April 1947; 15 UNTS 296;
TlAS 1591.
5 SJlCL Public Low and Privare Launch 33

Registration Convention of 1975 (which essentially elaborates Article

VlII of the Outer Space Treaty) excludes the possibility of multiple
registrationsz0- just as double nationality for ships and aircraft is not
acceptable under the respective regimes, too.z1
Most importantly, as ArticleVIII of the Outer Space Treaty and Article
I1 of the Registration Convention jointly make clear, the registration
of a space object leads to the retention of jurisdiction of the registration
state over the space object. Registration of space objects therefore
is a matter for states; in every other case the retention of jurisdiction-
provision immediately causes difficultie~.~~
In other words: the effect of Article VIII amounts to quasi-nationality.
States are entitled to extend any national legislation based on the
personality principle and operating in rem to space objects registered
with them. The sovereign right t o register space objects is linked
here t o the sovereign right t o exercise jurisdiction on a personal
basis.
The effect of Article VIII of the Outer Space Treaty on jurisdictional
issues, however, does not stop there. The quasi-nationality provided
to a space object by registration in effect results in a quasi-territorial
status of the space object in question. The retention of jurisdiction
under Article VIII of the Outer Space Treaty, namely, also extends to
'personnel thereof', just as if the space object was a floating piece
of (quasi-) territory of the registration state. This is, of course, similar
to the legal status of ships or aircraft.
The exact scope of the phrase 'personnel' has only recently become
an issue, in the sense that certain human beings in outer space can
hardly be called 'personnel' since this concerns such unqualified and
untrained passengers a s journalists or millionaires. The ten-
dency however is clearly to stretch the scope of 'personnel' s o as
to include also non-astronaut passengers, ie, s o as to read 'all humans'.

20 See Art II(2), Registration Convention.

21 Cf resp Art 92(2), UNCLOSIII; Art 18, Chicago Convention.
22 Art VII, Registration Convention, does allow intergovernmental organisations
to act as de facto registration-state for the purposes of the Convention. However,
this still requires the majority of the member states t o be a party t o both the
Outer Space Treaty and the Registration Convention itself; whereas para 2 calls
for states to trytoensure that in appropriatecases intergovernmental organisations
do take steps t o accept rights and obligations under the convention. In practice
it will be hard to imagine any intergovernmental organisation t o take such a
step a s envisaged underArtVI1 against the will of at least a majority of its member
states, which in turn means that likely the core issue of jurisdiction will also
be dealt with.
34 Singapore Journal of International & Comparative LAW (2001)

The exact scope of the phrase 'thereof' meanwhile is beyond doubt

larger than only 'on board thereof'. In other words, as long as the
presence of a person in outer space - during a moon walk or an extra-
vehicular activity for example - can be unequivocally traced back t o
a particular space object, the state of registration of that space object
continues to be allowed t o 'retain jurisdiction and control' over such
person.
The result is that this instrument for states to exercise a certain
measure of legal control over activities in outer space shows consid-
erable similarity to the concept of territoriality, in spite of the clear
exclusion of that concept from the area of outer space as such. It even
stretches such a concept of quasi-territoriality s o as to include those
temporarily outside the 'quasi-territory' under consideration. Sover-
eignty, even territorial sovereignty, thus creeps into outer space through
the backdoor, albeit s o far limited to space objects and 'personnel'
therefrom. This might lead to problems once specific space objects
are established as more or less fixed and permanent bases on eg, the
moon, vis-ri-ois the principled unlawfulness of exercising sovereignty
over any part of the moon a s such.

VIII. WITH INTERNATIONAL SPACELAW RESPONSIBILITY

THEPROBLEMS
In sum, private 'national activities' should essentially comprise 'ac-
tivities undertaken by nationals of that state', as subject t o that state's
personal jurisdiction, 'activities undertaken from the territory of that
state', as subject to that state's territorial jurisdiction, and 'activities
undertaken with the involvement of space objects registered in that
state', as subject t o that state's quasi-personal viz, quasi-territorial
jurisdiction." Such an interpretation would allow states to effectuate
their international responsibilities for private space activities best. It
should be pointed out that the 'space activities' considered here do
not only encompass launch activities, but for instance satellite com-
munications and remote sensing a s well.24This interpretation could
be summarised by the following schematic representation.

23 Cf also Wassenbergh, Principles, 23, at note 5.

24 This represents one major reason for not concurring with an interpretation of
'national activities' of a state as the activities for which that state can be
considered a 'launching state', as the last interpretation would -at best - make
sense only for national launching activities.
5 SJlCL Public Law and Private Launch 35

Table A. Space law responsibility and the control of private space activities

Basis for Relevant International rapon- Subjects of possible

exercise of categories of sibility for those exercise of jurisdiction
jurisdiction Private categories of private -
by that state ie,
space activities space activities? national space legislation

Territorial Activities If 'national activities' Private entities

jurisdiction undertaken from include 'activities undertaking space
territory of a undertaken from activities from territory
state territory' of that state

Personal Activities If 'national activities' Private entities having

jurisdiction undertaken by include 'activities nationality of that state
nationals of a undertaken by undertaking space
state nationals' activities

Registration- Activities If 'national Private entities

based involving space activities' include undertaking space
jurisdiction objects 'activities undertaken activities involving
registered with with nationally- space objects registered
a state registered space with that state
objects'

Absence of All other Not necessary No one, in principle

jurisdiction activities

However ... no definition (of the non-governmental 'national activities'

of a state, for which it is t o be held responsible) has actually been
put forward by the Outer Space Treaty, or for that matter by any other
space law document. Consequently, there is no agreement a s to the
interpretation of this term.25 This absence of a generally accepted
interpretation de facto allows individual states, where applicable, t o
interpret the term at their own discretion. And indeed, divergingnational
interpretations and resulting different implementations in national
space legislation have emerged in actual fact.26

25 Cf for various common interpretations eg, Wassenbergh, Principles, 23; Cheng,

The Commercial Development, 36-40; H Qizhi, Certain Legal Aspects of
Commercialization of Space Activities, (1990) 15 Annals o f Air and Space Law,
337; H L van Traa-Engelman, Commercial Utilization of OuterSpace (1993),
281-2.
26 See for more details eg, the author's Future Developments Relating to OuterSpace
Treaties, in Proceedings of the Fortieth Colloquium on the Law of Outer Space
(1998), 449-53, discussing national United States, Swedish, British, Russian and
South African space laws from this perspective.
36 Singapore Journal of International & Comparative Law (2001)

Similarly, and in close connection with the issue of 'national ac-

tivities', there is the issue of 'the appropriate State' as dealt with by
Article VI of the Outer Space Treaty. This state has t o authorise and
continuously supervise activities undertaken by non-governmental
entities, authorisation and continuing supervision unequivocally
being forms of t h e exercise of jurisdiction. Thus, whichever s t a t e
would be 'the appropriate State', it would be required to actually
exercise jurisdiction. However, whichever state would be the 'appre
priate state' is precisely the question, since this key phrase of Article
Vl is not defined authoritatively, either in the Outer Space Treaty or
anywhere else. Hence, uncertainty at the theoretical level might lead
to national discretion at the level of implementati~n.~'
As argued, the most logical interpretation of 'national activities'
should imply that states are internationally responsible for those private
activities falling under their respective (territorial, personal and
registration-based) jurisdictions. Since the 'appropriate state' would
actually be obliged to exercise such jurisdiction, it follows that this
would concern the responsible state in case there is only one state
t o be held responsible in respect of a particular private activity. The
term 'appropriate state', on the other hand, is explicitly used in its
singular form. Therefore, in cases where two (or more) states can be
held responsible for the same private activity - for example one on
the basis of territorial jurisdiction, another on the basis of personal
jurisdiction - only one of the responsible states actually would be
obliged t o exercise its jurisdiction.
The resulting differentiation between having jurisdiction and being
obliged t o exercise it would not effect international responsibility. Both
states under whose jurisdictions a certain private activity has occurred
would remain internationally responsible if that activity violates
international space law. This holds true also for the state not being

27 See for differing interpretations eg, HA Wassenbergh, The Law Governing

International Private Commercial Activities o f Space Transportation, (1991) 21
Journal o f Space Law, 1089; V Kayser, An Achievement o f Domestic Space Law:
US Regulation o f Ph'vate Commercial Launch Providers, (1991) 16 Annals o f Air
andspace Law, 343; KH Bcickstiegel, The Term 'AppropriateState' in International
Space Law, in Proceedings o f the Thirty-SeventhColloquium on the Law ofOuter
Space (1995), 77-9; Hobe, 157-9; Cheng, The Commercial Development, 36-8; S
Gorove, Liability in Space Law: an Overview, (1983) 8 Annals o f Air and Space
Law, 377-8; MG Bourtly, RulesoflnternationalLawGoverningtheCommercialization
of Space Activities, in Proceedings of the Twenty-Ninth Colloquium on the Law
of Outer Space (1989, 159-60.
5 SJICL Public Law and Private Launch 37

t h e 'appropriate state', for it still could have exercised juris-

diction and issue relevant controlling legislation. It even holds true
in cases where responsible states would have decided, in deviation
from the principle provided by Article VI, to have a third state acting
as the appropriate state actually exercising authorisation and continu-
ing s u p e r v i s i ~ n . ~ ~
In conclusion, Article VI does indeed provide an important part of
the framework for binding private entities t o international s p a c e
law. It defines the categories of non-governmental, that is, private
activities for which a particular state will be held responsible - at least
in the abstract. That is at the same time where problems begin. To
the extent that the state under consideration should be deemed the
appropriate state, Article V1 effectively obliges that s t a t e t o make
private e n t i t i e s in law a d h e r e t o t h e corpus juris spatialis
internationalis. However, t h e key terms defining the scope of s u c h
domestic implementation lack precision or even consensus as t o a
general interpretation. It remains t o be s e e n , t o what extent this
remains a merely theoretical problem or has, at least potentially,
profound consequences for private involvement in space activities.

IX. ARTICLE
VII OF THE OUTERSPACETREATY, THE LIABILITY
CONVENTIONAND STATELIABILITY

Apart from the general issue of international responsibility, states will

also want to deal with the potential international liability, which arises
from private space activities. Liability, to the extent it has been dealt
with by international space law, operates on the public level also, with
no private liability whatsoever being involved - but in a manner distinct
from that of (general) international responsibility. Therefore, space
law liability apart from its substantive contents presents a particular
form of accountability in addition t o r e s p ~ n s i b i l i t y . ~ ~

28 Cf HA Wassenbergh, Public Law Aspects o f Private Space Activities and Space

Transportation in the Future, in Proceedings of the Thirty-Eighth Colloquium on
the Law of Outer Space (1996), 246: a launching state could be qualified as an
'appropriate state' because of its quality as a launching state, and in spite of
it not being the state whose 'national activities' are under consideration under
appropriate definitions.
29 Alternatively, it may be seen as presenting a form of responsibility which deals
with material damage inflicted by space objects, separated from other, more
general forms of responsibility by the terms of space law.
38 Singapore Journal of International & Comparative Law (2001)

Article VII of the Outer Space Treaty provides that states are 'in-
ternationally liable for damage to another State (...) or its natural and
juridical persons', if such damage is caused by relevant space objects.30
This clause is elaborated by the Liability Convention, affirming that
states are the only entities3' which can possibly incur international
liability as 'launching state^'.^^
Which particular state or states are t o be held liable in respect of
a specific s p a c e object causing damage is determined by a well-
known and quite precise fourfold criterion provided by ArticleVII itself.
These relate t o the state which 'launches' the space object, the state
which 'procures the launching' of that space object, the state 'from
whose territory' the launching of that space object occurs, and the
state from whose 'facility' that space object is launched.

The problems with a view to dealing with private space activities by

law d o not lie in lack of precision in defining the liable states: they
lie in the implementation of this fourfold definition in cases where
private entities are fundamentally involved in the launch of the space
object causing damage at a particular juncture. How far does a particular
state have t o go in exercising legal control over (in other words:
establish some sort of national space legislation with regard to) private
space enterprise in order to cover its potential liabilities at the in-
ternational level?
For the purpose of analysis every activity should be envisaged as
being either a state activity or a private activity. With respect t o the
first criterion for becoming liable under international space law, either
a state or a non-state entity would be seen t o launch the space object
under consideration. In the former case, the state concerned is liable
itself. In the latter case, it is questionable whether any entity is liable

30 Cf also CQ Christol, The Modern International Law of Outer Space (1982).

90-1; Horbach, eg, 28.
31 With the exception, of course, under circumstances, of international
intergovernmental organisations; see Art XXII, Liability Convention. Since this
still concerns public entities, not legally authorised or supervised moreover
through a single sovereign jurisdiction, this does not detract from the public
character of international space law, and therefore is of little consequence for
the issue of private space activities here.
32 See Art I(c), Liability Convention.
5 SJlCL Public Law and Private Launch 39

at all under this criterion of Article VII." In consequence, no state might

feel obliged for example to provide for any recourse of financial
consequences by means of national space legislation in this respect.
The impact on private participation in launches will be obvious. The
second criterion, of procuring the launch,34leads to a similar result.
To the extent that states fall under this heading themselves, they are
held liable. To the extent that non-state entities procure or co-procure
the launch at issue, no recourse might be necessary, if international
liability would be seen to apply t o no particular state under this
criterion. No state would then be held liable internationally in the case
of private entities procuring a launch, unless it is liable itself under
any of the other criteria.35
The same holds true finally for the fourth criterion presented by
Article VII. Launch facilities may be privately owned, which might result
in no entity being liable under this criterion for any damage -caused
by space objects launched from such facilities. No state would incur
international liability for t h e a c t s of private entities with launch
facilities. If the launch facilities are on the other hand government

33 Unless one takes 'a state which launches' t o mean t o include 'a state whose
private entities launch'; cf amongst many also V Kayser, Private Inooloement in
Commercial Space Activities, Legal Issues and Recent Trends, in Proceedings of
the Thirty-Seventh Colloquium on the Law of Outer Space (1995), 317-8. Contra
for example is HA Wassenbergh, see eg, Principles, 91. A wide interpretation
of 'a s t a t e which launches' would come u p against t h e arguments that,
contrary to Art VI, Outer Space Treaty, Art VII does not refer explicitly or even
implicitly to private entities, and on the other hand does refer to activities not
completely or predominantly taking place in outer space, which might include
private activities much more readily. Also, the question would arise as t o which
categories of private entities the word 'whose' would refer: entities with the
nationality of, or operating from the territory of, or both, or yet another
category?
34 'Procurement' should be defined as 'bringing about', by paying for it or making
it happen by other means; cf, also eg, Christol, 105; Qizhi, 337; KH BBckstiegel,
The Term 'Launching State' in International Space Law, in Proceedings of the
Thirty-Seventh Colloquium on the Law of Outer Space (1995), 81-2.
35 This holds true of course, unless one interprets 'procurement' even wider, s o
a s t o include 'effectively allowing its private entities t o bring about'; cf eg,
BBckstiegel, The Term 'Launching State', 81-2; WB Wirin, Practical Implications
of Launching State-Appropriate State Definitions, in Proceedings of the Thirty-
Seventh Colloquium on the Law of Outer Space (1995), 111. Here, the same
arguments a s put forward supra, in note 33, would be valid. In any case, another
issue offering itself for discussion of more exact and authoritative interpretation
arises here.
40 Singapore Journal of Inrernational & Comparative Low (2001)

property, the state concerned obviously will be held liable. Thus, the
three aforementioned criteria operate along the same lines: they apply
either to a state itself - but then such a state is actively involved,
'in the know' and hence able to take any desired measures. Or, arguably,
no state is liable under these criteria - and would see no need for
further legislative measures uis-ci-uisthese private activities. Of course,
these criteria d o not work in isolation: it is obvious therefore that
in respect of all of these three criteria, recourse in principle would
be desirable for a state to the extent it could be held liable itself under
any of the remaining criteria. For example, launch activities which are
both privately conducted and privately procured, may use governmen-
tal launch facilities. The state owning such a launch facility will be
held liable for damage caused by any space object launched from this
facility, and thus will have a clear interest in the legal regulation of
such private launches. On the other hand, the launch facility cannot
be used without a conscious approval of the government in question,
at least de facto. Therefore, such regulation could also be established
by means of a launch agreement for each individual case; the con-
tractual approach might suffice here. This situation is radically different
with respect t o the remaining criterion for becoming a liable entity
as presented by Article VII, which applies exclusively to states: only
states can possess 'territory' in the international public legal sense
of the word. As long as all launches are conducted from some state's
territory, t h e r e will always be a state liable under this criterion,
even in case of (otherwise) completely private launches. This led
Professor Kerrest de Rozavel to characterise the territorial criterion
for becoming a 'launching state' as the 'safety device'36 or even the
' l o ~ k ' ~ ~the
o nsystem from the perspective of victims: they would always
be able to find at least one state qualifying as launching state and
therefore liable to pay compensation. As will be seen, however, this
need no longer be automatically the case. The above analysis leads
to the following schematic illustration of the structural aspects of
liability.

36 See A Kerrest de Rozavel, The Launch of Spacecraft from the Sea, in Outlook
on Space Law over the Next 30 Years (Eds G Lafferranderie&D Crowther)(l997),
230.
37 See A Kerrest de Rozavel, Launching Spacecraft from the Sea and the Outer Space
Treaty: the Sea Launch Project, in Proceedings of the Fortieth Colloquium on
the Law of Outer Space (1998), 269.
5 SJICL Public Law and Private Launch 41

Table B. Space law liability and the control of private space activities

Basis for Relevant International Subjects of possible

exercise of categories of liability for those exercise of jurisdiction
jurisdiction Private space categories of private -
by that state ie,
activities space activities? of national legislation

Territorial Activities +
Launching: yes + Private entities
jurisdiction undertaken from +
All other space undertaking launching
territory of a activities: only, if activities from territory
state that state qualifies of that state
as launching state + Private entities
undertaking any other
space activities from
territory of that state only
to the extent it qualifies
as launching state

Personal Activities Only, if that state Private entities having

jurisdiction undertaken by qualifies as nationality of that state
nationals of a launching state undertaking launching
state activities only to the
extent it qualifies as
launching state

Registration- Activities By definition Private entities

based involving space undertaking space
jurisdiction objects activities involving
registered with space objects registered
a state with that state (ie,
registration should
include licensing
obligation)

Absence of All other If that state Possible as far as

jurisdiction activities qualifies as allowed by relevant
launching arrangements; reauired
state ...! to the extent it
qualifies as launching
state

In conclusion, Article VII thus may present us with a much more

clearly defined part of the framework for binding private entities to
international space law than Article VI does - albeit only for the special
cases of damage caused by space objects. At the same time, it is much
more complicated, when it comes to private participation in launches
- let alone a fully-privately conducted launch.
42 Singapore Journal of International & Comparative Law (2001)

Such problems might seem academic and rather theoretical but will
b e of practical concern especially in parts of the world where sovereign
states are rapidly coming to terms with private partners in outer space
activities, including launching. To see how the implicit structure of
international space law vis-ii-uis private enterprise as resulting from
t h e twin concepts of responsibility and liability would further operate
in practice, and might lead to difficulties of a serious nature, two recent
specific developments will be dealt with.

XI. PROBLEMS
IN PRACTICE:THE CASEOF SEALAUNCH

Firstly, it turns out that the 'safety device' or 'lock' provided by the
territorial criterion as regards the establishment of liability is no longer
fool-proof: it can be circumvented by moving a fully private launch
out to t h e high seas, as the case of Sea Launch shows. 'Territory' in
a legal sense is not involved; at best, it could b e argued that the
moveable launching platform of Sea Launch constitutes 'quasi-terri-
tory' of t h e state of registration -which is Liberia. Even if this would
b e accepted, what remains of the often-praised victim-orientation of
t h e Liability Convention if one considers Liberia is neither party nor
signatory t o any of the space law treaties?
T h e Sea Launch consortium itself, by c o n t r a s t , b e c a u s e of
i t s registration in the Cayman Islands, has a British nationality. Would
t h e United Kingdom perhaps be liable if Sea Launch's launches cause
damage, in view of the nationality of Sea Launch and the United Kingdom
for that reason qualifying a s the 'State which launches'? Apparently,
at the outset, the United Kingdom did not consider this to be the case,
as Sea Launch was left to go ahead without being required to operate
under a license under the UK Outer Space Act of 1986.38
However, once the British authorities got wind that they should
perhaps (have) require(d) Sea Launch to operate under a UK license,
since they might be held accountable for its operations under inter-
national space law, the result was a considerable delay for the private
consortium. SeaLaunch was, after its test flight had gone unobstructed,
stopped in midcourse towards its first commercial launch by the
obligation imposed by the UK government t o obtain a UK license after
all, and could proceed only after that had been arranged.

38 Outer Space Act, 1986 (UK), 1986, c 38; Space Law - Basic Legal Documents,
El; 36 Zeitschrift fiir Luft- und Weltraumrecht (1987), at 12. See esp ss 2(1), 3(1)
& (3).
5 SJICL Public Law and Private Launch 43

Certainly with respect t o the test flight, we may therefore consider

it fortuitous from a legal point of view that the United States had itself
- for reasons largely of an economic and political nature - taken the
initiative earlier, and obliged Boeing CSC, as the largest shareholder
in Sea Launch, to apply for a license under the US Commercial Space
Launch Act.39After all, strictly legally speaking the 40% share of Boeing
does not make the United States a launching state in regard of Sea
Launch even under an extensive interpretation of 'the State which
launches', as it does not detract from Sea Launch's British nationality:
it does not provide Sea Launch with the US nationality or make it a
'US entity'. Since moreover neither US territory nor US facilities are
used for the launch, and procurement by the United States or even
a private US company would be merely accidental, the United States
would not automatically qualify as a 'launching State' in respect of
any or all of Sea Launch's activities.
Would, on the other hand, Article VI of the Outer Space Treaty and
the concept of international responsibility change this evaluation?
Could the activities of Sea Launch, by virtue of the British nationality
of Sea Launch, by virtue of the registration of the launching platform
in Liberia, or by virtue of the 40% share of Boeing in Sea Launch, be
seen as 'national activities in outer space' of, respectively, the United
Kingdom, Liberia and the United States? Furthermore, could that re-
sponsibility ever entail an obligation t o pay for damages on the part
of these states even if they would not fall within the scope of application
of Article VII and the Liability Convention?
What, finally, if the 40% share of Boeing would lead to United States
responsibility for Sea Launch activities: would that be a 100% respon-
sibility, or would not Norway, the Ukraine and Russia each also bear
some responsibility, in view of the shares held by Kvaerner Moss, NPO
Yuzhnoye and RSC Energia, respectively?
This brings to the fore the problems hiding behind the system of
Article VII, which causes a particular state to be internationally liable
for damage as long as the launches of the space object causing the
damage are conducted by it, or are procured by it, or are undertaken
from either its territory or its facility (whether under a restrictive or
wide interpretation). The private entities involved in this way in such
launches are, therefore, the ones with respect to which a state needs

39 Commercial Space Launch Act, Public Law 98575,98th Congress, HR 3942,30

October 1984; 98 Stat 3055; Space Law - Basic Legal Documents. E 111 3. See esp
s 6(a).
44 Singapore Journal of International & Comparative Law (2001)

to establish national space legislation in order to deal with their liability.

Yet it is far from clear, t o what extent and for which categories of
private activities respectively private entities of any particular state
would need t o take such measures.
These problems and uncertainties are further compounded by the
fact that it is the responsibility system provided by Article VI, not
the liability system of Article VII and the Liability Convention, which
obliges states t o authorise and continuously supervise non-govern-
mental entities. Establishment of national space laws, including licens-
ing regimes a s the most efficient and comprehensive means for a state
to take care of international liability on the domestic level, is referred
to in thecontext of international responsibility. The relationship between
state responsibility and state liability under space law, however, has
never been authoritatively defined.40

XII. PROBLEMSI N PRACTISE:

SATELLITELEASINGAND SALESON-ORBIT
Secondly, another recent phenomenon, arising within the satellite
communications sector but with considerable impact on the launching
sector might b e illustrative of the problems which could arise from
t h e complexity of t h e twin concepts of international responsi-
bility a n d liability. T h e fourfold definition of t h e liable s t a t e
is established, in a fashion, through the notion of launching. This
makes sense perhaps where the launching phase is the most prominent
phase of any s p a c e activity, and the states involved in t h e launching
in a substantial way (as defined by t h e four criteria) a r e t h e
only relevant entities concerned.
The liability regime provided by the Liability Convention, however,
effectively amounts t o 'once a launchingstate (and hence liable), always
a launching state (and hence liable)'.41 With the increasing life span
of satellites, a growing practice of leasing or even selling satellites

40 Reference may be had to the author's Liability Versus Responsibility in Space

Law: Misconception or Misconstruction?, in Proceedings o f the Thirty-Fourth
Colloquium on the Law o f Outer Space (1992), 363-71, which represented a first
effort to map the complexity and problems regarding this issue.
41 Cf also eg, the author's The Illogical Link: Launching, Liability and Leasing, in
Proceedings o f the Thirty-Sixth Colloquium on the Law o f Outer Space (1994).
354; and Loopholes in Liability? Aspects o f Liability for Damage Sustained in the
Course ofSatellite Telecommunications Activities, 2 Telecommunications &Space
Journal (1995), 163, and note 30.
5 SJICL Public Law and Private Launch 45

while in orbit may be discerned. Thus, a conceptual separation for

legal purposes between the launching phase and the operational phase
of a satellite, after launch, is increasingly feasible and logical. A state
may for example be involved only in the launching of a telecommu-
nication satellite to the extent of allowing its territory to be used. Would
it still be valid to hold that state liable if the operators of that satellite
(whether another state or its private entities) by their operations cause
damage to third states (or their entities) some years after that launch
has occurred? This question becomes even more salient, if the o p
erators have only started operating the satellite after leasing or buying
it in orbit from the original operators, and therefore need not have
any (direct) legal relationship with the launching state! On the other
hand, under most interpretations of Article VI, such operations would
entail the state responsibility of the operator state, even if the operator
was a private entity, as being a 'national activity in outer space'.
Of course, problems of derogation of liability or other legal con-
sequences can be taken care of by contractual relations between the
various launching states, and provisions taking care of in-orbit lease
or sale. Yet, the complicated legal chains which would thus arise would
threaten the consistency and uniformity of dealing with damage caused
by space activities. In addition, they would perhaps unnecessarily
obstruct the solution in practice of any dispute in this respect, since
every element in the chain would tend to give rise to its own delays
and disputes. The question would have to be asked what then would
remain of the professed victim-orientation of the space law-liability
regime.
In conclusion, while national space legislation crucially involving
licensing regimes and/or, under circumstances, relevant contractual
arrangements would clearly provide an efficient means of dealing with
private involvement in space activities, the problems arise at the
international level where t h e exact contours and scope of such
fundamental concepts of 'responsibility', 'liability', 'national activities'
and 'launching state' are far from clear. As discussed, this situation
has led to considerable divergence in those few national space law
regimes which have been established, and probably also to the absence
of national space legislation where one would be desirable.

XIII. CONCLUDING
REMARKS
Though the foregoing analysis is far from comprehensive and final,
it can be concluded in the Asian context that international law does
not principally obstruct private space activities, and actually in some
ways is quite conducive thereto. The fundamental freedom to undertake
space activities applies, in principle, to private space activities also;
46 Singapore Journal of International & Comparative Law (2001)

t h e related obligations posed by Article VI of authorisation and

continuing supervision as such are principally a concern for states.
Once s t a t e s have taken up the baton and s t a r t t o exercise some
substantial measure of authorisation and supervision-in other words,
jurisdiction- the question becomes acute for private enterprise, whether
this freedom has also been translated on the national and private level.
The twin concepts of state responsibility for activities not in con-
formity with any rule pronounced - including private activities -
and state liability for damage caused by space objects - including space
objects run by private operators - is perhaps the most fundamental
issue of international space law from the perspective of privatisation
of space activities. This twin concept forces (or at least induces) the
relevant states to take domestic action to monitor and control those
activities for which they could be held accountable at the international
level. Yet, it has been shown to suffer from considerable uncertainties
and inconsistencies. This also threatens private enterprise's interests,
in stable, coherent, transparent and uniform legal regulation of their
activities and an (ultimately perhaps worldwide) level playing field.
The almost comprehensive absence of substantive provisions
specifically circumscribing private space activities at the level of the
core instruments of international space law means that a large margin
of discretion remains for individual states on a national level. They
are free t o legislate domestically in a liberal fashion, t o accord with
international principles, or in a restrictive fashion, since these prin-
ciples can hardly be seen to prohibit restrictive national implemen-
tation. Launching as a space activity certainly is included in this
analysis.
The major legal tools to achieve legal control are territorial juris-
diction (to the extent space activities are still largely conducted by
humans in earth-bound launch centres, tracking-andcontrol stations
and uplink facilities), personal jurisdiction over entities with
t h e nationality of the particular state and registration-based juris-
diction over relevant space objects. The best way to achieve such
legal control in turn is through establishment of a licensing system
as part of a national space law, providing for the necessary controls
and safeguards. So far, only eight states have done s o in a more or
less comprehensive fashion: the United States, Norway, Sweden, the
United Kingdom, the Russian Federation, South Africa, the Ukraine
and Australia. In addition, France has established a 'quasi-national'
and (because of substantial involvement of t h e European Space
Agency and its other member states) rather complicated arrangement
uis4-uis Arianespace, dealing at least with liability.
5 SJICL Public Law and Private Launch 47

France is also, along with Germany, Italy, Brazil, India and Japan,
currently seriously considering the establishment of some focused
body of national space legislation. This still leaves a number of states
where private participation in space activities has become substantial
-a number which is moreover growing- but not yet taking any domestic
legislative activities oisd-uis those private activities for which they
might be held responsible and/or liable at the international level. It
is submitted, that this is a t least partly t h e consequence o f t h e
uncertainties and inconsistencies detected a t t h e international
level.
Finally, the interaction between international and national legislation
on issues of outer space and space activities is crucial if the entry
of private enterprise in the space arena is to be dealt with t o the benefit
both of private enterprise itself and of the public at large. A somewhat
self-evident division of tasks suggests itself here. States are the
obvious controllers of private enterprise in any meaningful sense of
the word: they have the legislative machinery to establish compre-
hensive licensing regimes and make them work - monitoring, adju-
dicatingand if necessaryenforcing them. In terms of substance, moreover,
there would be many areas sensibly left to the discretion of individual
states, to give substance to specific national political, social, economic,
philosophical or cultural ideas.
It should be left t o the international level, however, t o define the
parameters and scope within which such a control of private space
activities should take place. This applies to issues of substance where
a number of topics have been touched upon, which call for substantial
uniformity at the international level or for some international regulation
in the first place. It applies even more to issues of structure, where
states should have minimal discretion in deciding implicitly or explic-
itly, which categories of private activities they feel they could be held
accountable for at the international level.