165 purposes. For example, space-craft using nuclear fuels might be prohibited from operating below certain altitudes; launchers might be prohibited from discharging waste in certain layers of the atmosphere; space craft returning to earth or moving away from it might be required to control their flight in such a manner as may be directed by the super-adjacent State.438
There is a strong feeling by the author of this work that one of the major reasons for the exercise of sovereignty by States especially as it touches the air territory is for security and protection of the territory from undue exposure to the damaging consequences of the activities in the air by other States. On this note therefore, it is suggested here that in addition to the theories postulated by some international figures, another criterion upon which demarcation of airspace from outer space should be based is the direct impact/consequence of the space activity on the State above whose territory the activity is carried out. Following this reasoning therefore, theheight or point in the space from where the activities in the space must have lost any direct consequence or impact on the State concerned should be marked as the dividing line between the airspace and outer space.
166 1957, even before Sputnik was launched, Ambassador John Lodge expressed on behalf of the United States the hope that „future developments in outer space would be devoted exclusively to peaceful and scientific purposes‟.439 In his address to the United Nations General Assembly, he even went as far as suggesting that the testing of satellites and missiles be placed under international supervision (much as was the case with nuclear technology earlier).440
Further other moves to ensure that „outer space be used exclusively for peaceful and scientific purposes and for the benefit of mankind‟, included the joint submission by four Western powers – Canada, France, the United Kingdom and the United States to the United Nations Disarmament Commission (UNDC), calling for a study on an inspection system that would assure that objects launched into outer space would be used exclusively for peaceful and scientific purposes. The submission was adopted by the General Assembly and became the first United Nations Resolution on outer space and the first time the phrase – „exclusively for peaceful purposes‟ would be used in an authoritative United Nations text.441
Also, during the thirteenth session of the General Assembly held in 1958, a forum for the debate on „Questions of the Peaceful Use of Outer Space‟ was provided. During this session, the term „peaceful‟ was used as an antonym to „military‟. Sweden appealed to fellow Member States to „safeguard outer space against any military use whatsoever‟,442 and the Soviet Union put forward a proposal to ban the use of outer-space for military purposes. All these culminated in General Assembly adoption of Resolution
439P. Jessup and H. Taubenfeld, Controls for Outer Space and the Antarctic Analogy(New York: Columbia University Press, 1959) p. 252.
440J. M. Wolff, op cit, p.6.
441United Nations General Assembly Resolution 1148 (XII) of 14 November, 1957.
442M. S. McDougalet al,Law and Public Order in Space (New Haven: Yale University Press, 1963) p.395.
167 1348 (XIII), which recognized the „common aim‟ of humankind that outer space „should be used for peaceful purposes only‟.443 Resolution 1348 established the Ad hoc Committee on the Peaceful Uses of Outer Space (COPUOS)of which its legal subcommittee issued a report in 1959 asserting that the United Nations Charter and the Statute of the International Court of Justice were not limited to the confines of the Earth, and that the countries of the world have established a practice, in principle, that Outer Space is, on conditions of equality, freely available for exploration and use by all, but in accordance with existing or future international law or agreements.444 The implication of the development therefore is that, coastal States would exercise jurisdiction only on their territorial waters and airspace above these territorial waters and not the outer space above them.
The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, (The Outer Space Treaty or OST) was concluded in the first years of space exploration, after Yuri Gagarin‟s historic flight and before Neil Armstrong‟s walk on the Moon. The OST which entered into force in 1967 prohibits the testing of weapons, the stationing of weapons of mass destruction (including nuclear weapons), the holding of military manoeuvres, or the establishment of military bases in space. The Partial Test-Ban Treaty entered into force in 1963 also prohibits nuclear tests and explosions in the atmosphere or in outer space.
Research however reveals that the OST does not cover some aspects such as the transit of nuclear weapons through space or nuclear weapons launched from Earth into space in order to destroy incoming missiles (such as some of the American or Soviet
443<http://www.oosa.unvienna.org/spaceLaw/spacelaw.htm> accessed on March, 2013.
444Report of the Ad hoc Committee on the Peaceful Uses of Outer Space, General Assembly document A/4141 of 14 July, 1959.
168 Missile defence systems originally permitted under the 1972 Anti-ballistic Missile Treaty). Nor does the OST address other weapons (such as Anti-Satellite Weapons (ASAT) or the placement of conventional weapons in space.
It is now trite that since the early days of the space era, the international community has strongly endorsed the use of outer space for „peaceful‟ purposes.
However, although the term itself appears in many United Nations documents and space law treaties, still, more than 47 years after the launching of sputnik I, the term „peaceful‟
still lacks an authoritative definition. It is observed that the initial and widespread interpretation accorded to the term „peaceful‟ in relation to outer space was „non-military‟
and it seemed that that interpretation was accepted to both the United States and USSR.
However, soon after the launching of the early artificial satellites, the United States began to change its original position in relation to the meaning of the term „peaceful uses‟, claiming that the term means „non-aggressive‟ rather than „non-military‟ as earlier supposed.445The United States began to argue in accordance with this new view that all military uses of outer space were to be permitted and considered lawful provided they remain „non-aggressive‟, according to Article 2(4) of the UN Charter, which prohibits
“threat or use of force”.
On the other hand, Soviet Union after several years of space era maintained its original position that „peaceful‟ meant „non-military‟ and that all military activities in outer space were non-peaceful and possibly unlawful. However, contrary to these claims, even during that period, the Soviets continued to place into orbit a growing number of
445McGill, Peaceful and Military Uses of Outer Space: Law and Policy(Canada: Montreal, 2005) p.3; I Vlasic, „The Legal Aspects of Peaceful and Non-peaceful Uses of Outer Space‟ in B. Jasani (ed),Peacefuland Non-peaceful uses of Space: Problems of Definition for the Prevention of an Arms Race(New York: Taylor and Francis, 1991).
169 military payloads and grew increasingly dependent on space technology in their military planning.446 Eventually however, the Soviet Union and other States sharing the original interpretation of the term „peaceful‟ appeared to have accepted that outer space may be used for military purposes. 447 This change in position was summarized by a representative of a Western delegation in the Ad hoc Committee on the Prevention of an Arms Race in Outer Space (PAROS) of the Conference on Disarmament according to whom: “even though in some contexts „peaceful‟ means „non-military‟, any ambiguity has been clarified by State practice which had not been contradicted in any forceful manner by any State formally protesting military utilization of space.448
It is important here to draw a clear distinction between “militarization” and
“weaponization” of outer space. If the position has been accepted that the outer space may be used for military purposes which indeed began with the launching of the earliest communications satellites serving military objectives, weaponization is generally understood to refer to the placement in orbit of weapon systems that could attack targets in space or on the Earth.449 Although to this day there is no authoritative definition of the term „space weapon‟ there exist some space-based devices that have indirectly a destructive capacity (for example, satellites serving GPS navigation of military aircraft and precision guided missiles).450Space-weapon has however been considered to mean a device stationed in outer space (including the moon and other celestial bodies) or in the earth or sea environment designed to destroy, damage or otherwise interfere with the
446McGill, op. cit.
447I. Vlasic, „Space Law and the Military Applications of Space Technology‟ in N.Jasentulyiana (ed), Perspectives on International Law (Boston :Klwer Law International, 1995) p.385.
448UN Doc. CD/1165 of 12 August, 1992.
449McGill, op cit.
450Ibid.
170 normal functioning of an object or being in outer space, or a device stationed in outer space designed to destroy, damage or otherwise interfere with the normal functioning of an object or being in the earth environment. Satellites on their own do not have destructive capacity and their support of military missions is not considered weaponization of space.451In this context, a distinction is made between two categories of military assets: “force application”, i.e., strike weapons, and “force support”
(Communications, Command and Control, Sensor and Surveillance).452
It has been argued that the launching on 4 October 1957 by the Soviet Union of Sputnik, the first artificial satellite marked the beginning of an intensive/intense space rivalry between the USSR and the United States, which lasted throughout the Cold War.
The launch of Sputnik was seen not only as scientific achievement but also as the trigger of a military revolution with extraordinary strategic consequences. Sputnik transformed the dream of space exploration into reality.453 Four years later, Yuri Gagarin became the first human to see Earth from space and with this, human beings became space travelers.
Less than ten years of Gagarin‟s flight, Neil Armstrong came up as first human being to walk on the Moon. Indeed, the launch of Sputnik marked the beginning of space exploration and with it the start of the debate surrounding the militarization of outer space.454 However, every treaty enacted for the purpose of ensuring and enforcing peaceful use of outer space is binding on every State alike whether coastal or landlocked
451S.Estabrooke, „Opposing Weapons in Space‟, Ploughshares Monitor (2002). Online Project
Ploughshares website http://www.ploughshares.ca/CONTENT/ MONITOR/MonsOza.htm/; www.e- parl/.../space.../Backgroundpaper%20Mc Gill%outer%20sp…> accessed on 23 February 2014.
452R. Johnson, „Space Security: Options and Approaches‟ Paper Presented at „Outer Space and Global Security‟ Conference, Geneva, 26–27 November 2002, online: Ploughshares Organization Website
<http://www.ploughshare.ca/content/ ABOLISH%20 UNCS/outer space Conf02;
books.google.com,ng/books?isbn=113701655> accessed on 23 February 2014.
453J. M. Wolff, op cit, p.6.
454Ibid; see also McGill, op citpp. 4 –13 for Historical Evolution of Military Uses of Outer Space.
171 as no special rights are reserved for coastal States in the outer space above their territorial waters.
Despite lofty commitments, the world failed to maintain outer space for peaceful purposes only as originally intended. Militarization of outer space has been a fait
Accomplisince the beginning of the space exploration age. Until now, space objects have only served as force multipliers. Worse still, we are approaching the threshold of space weaponization. We have managed to transcend the heavens, a task long seen as impossible, yet we have done little to prevent the militarization of space. We have the opportunity and responsibility to prevent its weaponization for the common good of the entire human race.
This chapter has been devoted to the brief examination of the jurisdiction of States in relation to the space above their water territories, an area where both international law treaties and State practice have adopted analogous provisions and procedure to what obtains in the Law of the Sea. Thus, the space has been divided into segments as is the case with the sea for the purpose of determining national jurisdictional sphere and States claim of sovereignty. In the airspace for instance, the State can exercise sovereignty over its airspace so that no aerial operation or activity can be carried out in the air space of a State by another without prior consent and authorization of that State, except as otherwise agreed between the States concerned. The outer space, just like the high seas has been designated as a „common heritage of mankind‟ and is therefore beyond State appropriation. However, unlike the high sea, the dividing line between the airspace and outer space has for a long time now proved elusive although different theories exist to that effect. Thus, the claim of sovereignty by eight Equatorial States over
172 the geostationary orbit of about 22,300 miles above their territories tends to alter the legal position of outer space which has almost crystallized into customary international law.
This is quite disturbing. Yet, their claim is not altogether unfounded, hence the need for further demarcation of space into more segments, as in the case of the seas, where Equatorial States may exercise some limited jurisdiction over the geostationary orbit instead of complete sovereignty which they are now claiming.
173 CHAPTER SIX
STATE INTERESTS IN THE EXPLOITATION OF ECONOMIC RESOURCES BEYOND NATIONAL JURISDICTION
TheConvention455establishes an international legal regime for the world‟s seas. This comprehensive legal regime formed the basis of an international programme of action on the sustainable development of the resources and uses of the seas as laid out in the Convention. The United Nations Division for Ocean Affairs and the Law of the Sea (UNDOALS) of the Office of Legal Affairs has developed a programme of activities for the realization by States of benefits under the legal regime and the programme of action established by the Convention. One area where potential benefits assumed a critical role in the formulation of the legal regime in the Convention and its elaboration is that of marine mineral resources. The potential for the realization of benefits from these resources has expanded considerably both in areas within national jurisdiction and in the international area as a result of scientific discoveries.
It is trite now that exploitation of economic resources in the seas is basically the duty and activity carried out by States456 as individuals are precluded from such undertaking. The author has already, in chapter one, considered those factors which attract States interests in the sea, we would therefore, list the classes of States as it relates to this work, before proceeding to claims and exploitation of these resources by States.
455The United Nations Convention on the Law of the Sea, (UNCLOS) 1982.
456The International Seabed Authority, being the organization saddled, by the Convention, with the responsibility of managing, controlling and administering the mineral resources of the international seabed area beyond national jurisdiction.
174 6.1 Classification of States
In this work, States are classified into different groups in relation to their positions in the uses of the sea and exploitation of economic resources in the sea. It is not however intended that an exhaustive discussion on the features of these States will be undertaken here. It would serve our present purpose here to present brief information about these classes of States. However, further effort will be made to explain the features and position of the landlocked developing States and geographically disadvantaged States in relation to their maritime neighbours in the next chapter.
6.1.1 Coastal States
Coastal States in its most precise definition can be said to mean those States which possess sea-coast. In other words, they are those States that have maritime belt with the Sea, Bay or Lake as the case may be. Examples of coastal States are Nigeria, United States, Cameroon, China, Thailand, Japan etc.
The rights and duties of coastal States as it relates to sea uses are adequately provided for in the 1982 Convention on the Law of the Sea. For instance, under the exclusive economic zone (EEZ) coastal States have the following rights and duties:
Rights:
Sovereign rights to explore and exploit, conserve and manage the natural resource of the sea whether living or non-living.457
Exclusive right to construct and establish artificial islands and installations.458
457UNCLOS, Art. 56 (1) (a).
458Ibid, Art. 56 (1) (b); Art.60 (1).
175
Right to undertake scientific research
Right to pass and enforce its laws for the purpose of conserving and managing living resources e.g. to inspect, arrest and institute proceedings against transgressors.459
Right to protect their legitimate interests.460
Duties
Conserve and manage natural resource of the sea.
Protection and conservation of the marine environment.461
Observe the rights and duties of other States.462
Duty to comply with the provisions of the Convention.463
Duty to give due notice to other States of the construction of an artificial islands and other installations.464
To remove abandoned installation structures
To give access to land-locked States to the surplus to allowable catch of living resources of the exclusive economic zones of coastal States of the same sub-region or sub-region.465
Duty not to discriminate against landlocked States in maritime ports.466
Duty to ensure that living resources in the EEZ are not endangered by over exploitation
459Ibid, Art. 73.
460Ibid, Art. 125.
461Ibid Art. 56 (1) (a).
462Ibid Art 56 (2).
463Ibid.
464Ibid, Art. 60 (3).
465Ibid,Art. 69 (1).
466Ibid, Art. 131.
176 6.1.2 Land-locked States
In juxtaposing the two classes of States, it is found that they are directly opposed to each other. Land-locked State therefore means a State which has no sea- coast. Land-locked States are those States which are geographically cut off from the seas and its enormous resources. They are non-coastal States in the sense that they lack coastline. The United Nations Office of the High Representative for the Least Developed Countries, Land-locked Developing Countries (LLDCs) and Small Island Developing States has asserted that there are thirty-one land-locked developing Countries on the planet.467 Some examples of land-locked States are Kazakhstan, Mongolia, Chad, Mali, Ethiopia, Afghanistan, Austria, and Czech.
6.1.3 Transit State
This means a State, with or without a sea-coast, situated between a land-locked State and the sea, through whose territory traffic in transit passes.468
Land-locked States and transit States may, by agreement between them include as means of transport pipelines and gas lines and other means of transport specifically mentioned in paragraph 1 of this Article 124 of the Convention. Examples of transit States are: United States, Canada, Eritrea, India, turkey, Chile etc.
Rights of landlocked States:
Rights of access to and from the sea.469
Right to participate, on equal basis, in the exploitation of the surplus of the living
467List of Land-locked Developing Countries, UN.ORG (2002).<http://www.un.org/special rep/oh.lls/lldc/list.htm> accessed on 1 may 2013.
468Ibid, Art. 124 (1) (a) & (b).
469Ibid, Art. 125 (1).
177 resources of the exclusive economic zones of coastal States of the same sub-region or sub-region.470
Right to exploit both living and non-living resources in the high seas
Right not to be subjected to customs duties and other taxes not related to the transit.471
Duties of landlocked States:
Mutual duty to cooperate in resolving difficulties that may occur by designating competent Authorities.472
Duty to observe laws of coastal States passed in accordance with the Convention.473
6.1.4 Archipelagic State
Archipelagic State is defined as a State constituted wholly by one or more archipelagos474 which may include other islands. The Convention provides that an archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.475
470Ibid, Art.69.
471Ibid, Art. 127.
472Ibid, Art. 130 (3).
473Ibid, Art. 58 (3).
474Archipelago means a group of islands including parts of islands, interconnecting waters and other natural features closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity or which historically have been regarded as such.
475The rights and duties of archipelagic States are as provided in the Convention, Art. 47 (1)-(9).