• The Korean Journal of Air & Space Law and Policy
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• v.35 no.2
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• pp.375-402
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• 2020

The adoption and entering into force of the Registration Convention was another achievement in expanding and strengthening the corpus iuris spatialis. It was the fourth treaty negotiated by the member states of the UNCOPUOS and it elaborates further Articles 5 and 8 of the Outer Space Treaty(OST). The Registration Convention also complements and strengthens the Article 11 of the OST, which stipulates an obligation of state parties to inform the UN Secretary-General of the nature, conduct, locations, and results of their space activities in order to promote international cooperation. The prevailing purposes of the Registration Convention is the clarification of "jurisdiction and control" as a comprehensive concept mentioned in Article 5 8 of the OST. In addition to its overriding objective, the Registration Convention also contributes to the promotion and the exploration and use of outer space for peaceful purposes. Establishing and maintaining a public register reduces the possibility of the existence of unidentified space objects and thereby lowers the risk such as, for example, putting the weapons of mass destruction secretly into orbit. And furthermore it could serve for a better space traffic management. The Registration Convention is a treaty established to implement Article 5 of OST for the rescue and return of astronaut in more detail. In this respect, if OST is a general law, the Registration Convention would be said to be in a special law. If two laws conflict the principle of lex specialis will be applied. Countries that have not joined the Registration Convention will have to follow the rules concerning the registration of paragraph 7 of the Declaration by the United Nations General Assembly resolution 1721 (X V I) in 1961. UN Resolution 1721 (XVI) is essentially non-binding, but appears to have evolved into the norm of customary international law requiring all States launching space objects into orbit or beyond to promptly provide information about their launchings for registration to the United Nations. However, the nature and scope of the information to be supplied is left to the discretion of the notifying State. The Registration Convention is a treaty created for compulsory registration of space objects by nations, but in reality it is a treaty that does not deviate from existing practice because it is based on voluntary registration. With the situation of dealing with new problems due to the commercialization and privatization of the space market, issues related to the definition of a 'space object', including matter of the registry state of new state that purchased space objects and space debris matter caused by the suspension of space objects launched by the registry state should be considered as matters when amendments, additional protocols or new Registration Convention are established. Also the question of registration of a flight vehicle in the commercial space market using a space vehicle traveling in a sub-orbital in a short time should be considered.

• The Korean Journal of Air & Space Law and Policy
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• v.28 no.2
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• pp.223-258
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• 2013

1967 Outer Space Treaty(Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; OST) is a treaty that forms the basis of international space law. OST is based on the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space announced by UNGA resolution. As of May 2013, 102 countries are states parties to OST, while another 27 have signed the treaty but have not completed ratification. OST explicitly claimed that the Moon and Other Celestial Bodies are the province of all mankind. Art. II of OST states that "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", thereby establishing res extra commercium in outer space like high seas. However 1979 Moon Agreement stipulates that "the moon and its natural resources are the Common Heritage of Mankind(CHM)." Because of the number of the parties to the Moon Agreement(13 parties) it does not affect OST. OST also established its specific treaties as a complementary means such as 1968 Rescue Agreement, 1972 Liability Convention, 1975 Registration Convention. OST bars states party to the treaty from placing nuclear weapons or any other weapons of mass destruction in orbit of Earth, installing them on the Moon or any other celestial body, or to otherwise station them in outer space. It exclusively limits the use of the Moon and other celestial bodies to peaceful purposes and expressly prohibits their use for testing weapons of any kind, conducting military maneuvers, or establishing military bases, installations, and fortifications. However OST does not prohibit the placement of conventional weapons in orbit. China and Russia submitted Draft Treaty on the Prevention of the Placement of Weapon in Outer Space and of the Threat or Use of Force against Outer Space Objects(PPWT) on the Conference on Disarmament in 2008. USA disregarded PPWT on the ground that there are no arms race in outer space. OST does not have some articles in relation to current problems such as space debris, mechanisms of the settlement of dispute arising from state activities in outer space in specific way. COPUOS established "UN Space Debris Mitigation Guidelines" based on "IADC Space Debris Mitigation Guidelines" and ILA proposed "International Instrument on the Protection of the Environment from Damage Caused by Space Debris" for space debris problems and Permanent Court of Arbitration(PCA) established "Optional Rules for Arbitration of Disputes Relating to Outer Space Activities" and ILA proposed "1998 Taipei Draft Convention on the Settlement of Space Law Dispute" for the settlement of dispute problems. Although OST has shortcomings in some articles, it is very meaningful in international law in considering the establishment of basic principles governing the activities of States in the exploration and use of outer space, including the Moon and Other Celestial Bodies. OST established the principles governing the activities of states in the exploration and use of outer space as customary law and jus cogens in international law as follows; the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind; outer space shall be free for exploration and use by all States; outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. The principles of global public interest in outer space imposes international obligations erga omnes applicable to all States. This principles find significant support in legal norms dealing with following points: space activities as the "province of all mankind"; obligation to cooperate; astronauts as envoys of mankind; avoidance of harmful contamination; space activities by States, private entities and intergovernmental organisations; absolute liability for damage cauesd by certain space objects; prohibition of weapons in space and militarization of the celestial bodies; duty of openness and transparency; universal application of the international space regime.

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.2
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• pp.419-442
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• 2018

Space Treaty Article 2 stipuates non-appropriation by sovereignty, and in any other means. Interpretative controversies has continued as regards the meaning of any other means. It is not clear whether appropriation by private entity is also prohibited or not. Furthermore, the controverse around the binding force of Article 1 has made worse the controversy regarding such appropriation. U.S. Congress has enacted the law regarding the space resouce mining in 2015. Its main purpose is to alleviate legal unstability which U.S, private companies have faced, and it provides some provisions regarding private rights about space resources. Original bill, H.R. 1508 included the property right. Amendment to the bill is to ensure that an "asteroid resource utilization activity" is inter-preted as on a single asteroid and not on any asteroid. The use of the word "in situ" in defining space resources simply means resources in place in outer space; but any such resource within or on an asteroid would need to be "obtained" in order to confer a property right. The use of the word "in situ" in merely defining a space resource in the bill is not equivalent to claiming sovereignty or control over celestial bodies or portions of space. Further, there is clear Congressional direction in the bill that the President is only to encourage space resources exploration and utilization, including lowering barriers to such activity, "consistent with" and "in accordance with" US international obligations. Federal courts are granted original jurisdiction over entities defined in ${\S}$ 51301(4) and in-situ asteroid resources that have been removed from an asteroid by such entities. Federal courts are not granted jurisdiction over outer space, the Moon, other celestial bodies, or the asteroid from which the in-situ natural resource was removed. It is said that the Space Resource Utilization Exploration Act of 2015, talked about the rights of private players to own-kind of a "finders keepers" law.

• The Korean Journal of Air & Space Law and Policy
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• v.23 no.2
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• pp.207-223
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• 2008

The launching of the Taepo-dong 1 on 31 August 1998 by the North Korea was the first case where the diplomatic protests was made against the flight, the purpose of which, the launching State claimed, consisted in space exploration and use. It is the principle regarding the freedom of space exploration and use, as included in the international treaty, that is relevant in applying the various rules and in defining the legal status of the flight. Its legal status, however, was not actually taken into account, as political negotiations leading to the test moratorium has been successful until present day in freezing the political crisis. This implies that the rules of the law lack the validity and logic sufficient in dictating the conduct of the States. This case shows that, in effect, it is not the rule but the politics that is to govern the status of the flight.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.1
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• pp.181-202
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• 2020

The Non-Appropriation Principle was stipulated in the OST and the MA. However the MA, creating CHM in international law for the first time, attempted to further limit the prohibitions to include ownership of resources extracted from celestial bodies, its rejection by the U.S. and most of the international spacefaring community prevented it from serving as a binding international treaty. Individuals or private enterprises intending to perform space exploitation must receive approval from the nation and may not appropriate outer space or celestial bodies. In the course of this space activity, each party will be liable. Articles 6 and 7 of the OST and the Liability Convention of 1972 deal with matters concerning those problems. The CSLCA of 2015 and Luxembourg Space Resources Law of 2017 allows States to provide commercial exploration and use of space resources to their own nationals and to companies operated by other countries within their territory. These laws do not violate Article 2 of the OST. In the case of the CSLCA of 2015, the law clearly states that it cannot claim ownership, sovereignty or jurisdiction over certain celestial bodies. Even if scholars claim that the U.S. CSLCA and Luxembourg Space Resources Law violate the non-appropriation principle of the OST, they cannot prevent these two countries from extracting the space resources on "the first come, first served" basis. The legal status of outer space including the moon and other celestial bodies is res extra commercium, like the high seas, where the fishing vessels from each country catch and sell fish without occupying the sea. Major space-faring nations must push for the adoption of an international regulatory committee which will oversee applications and issue permits based on a set of robust, modern, and forward-thinking ideals that are best equipped to govern and protect outer space as individuals, businesses, and nations compete to commercialize space through mining and the extraction of space-based resources. The new Corpus Juris Spatialis on the development of space resources, whether it is a treaty or a soft law such as recommendation and declaration, in the case of the Moon and Mars, will cover a certain amount of area to develop, and the development period by the states should be specified.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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• pp.469-497
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• 2015

In 2009 Iridium 33, a satellite owned by the American Iridium Communications Inc. and Kosmos-2251, a satellite owned by the Russian Space Forces, collided at a speed of 42,120 km/h and an altitude of 789 kilometers above the Taymyr Peninsula in Siberia. NASA estimated that the satellite collision had created approximately 1,000 pieces of debris larger than 10 centimeters, in addition to many smaller ones. By July 2011, the U.S. Space Surveillance Network(SSN) had catalogued over 2,000 large debris fragments. On January 11, 2007 China conducted a test on its anti-satellite missile. A Chinese weather satellite, the FY-1C polar orbit satellite, was destroyed by the missile that was launched using a multistage solid-fuel. The test was unprecedented for having created a record amount of debris. At least 2,317 pieces of trackable size (i.e. of golf ball size or larger) and an estimated 150,000 particles were generated as a result. As far as the Space Treaties such as 1967 Outer Space Treaty, 1968 Rescue Agreement, 1972 Liability Convention, 1975 Registration Convention and 1979 Moon Agreement are concerned, few provisions addressing the space environment and debris in space can be found. In the early years of space exploration dating back to the late 1950s, the focus of international law was on the establishment of a basic set of rules on the activities undertaken by various states in outer space.. Consequently environmental issues, including those of space debris, did not receive the priority they deserve when international space law was originally drafted. As shown in the case of the 1978 "Cosmos 954 Incident" between Canada and USSR, the two parties settled it by the memorandum between two nations not by the Space Treaties to which they are parties. In 1994 the 66th conference of International Law Association(ILA) adopted "International Instrument on the Protection of the Environment from Damage Caused by Space Debris". The Inter-Agency Space Debris Coordination Committee(IADC) issued some guidelines for the space debris which were the basis of "the UN Space Debris Mitigation Guidelines" which had been approved by the Committee on the Peaceful Uses of Outer Space(COPUOS) in its 527th meeting. On December 21 2007 this guideline was approved by UNGA Resolution 62/217. The EU has proposed an "International Code of Conduct for Outer Space Activities" as a transparency and confidence-building measure. It was only in 2010 that the Scientific and Technical Subcommittee began considering as an agenda item the long-term sustainability of outer space. A Working Group on the Long-term Sustainability of Outer Space Activities was established, the objectives of which include identifying areas of concern for the long-term sustainability of outer space activities, proposing measures that could enhance sustainability, and producing voluntary guidelines to reduce risks to long-term sustainability. By this effort "Guidelines on the Long-term Sustainability of Outer Space Activities" are being under consideration. In the case of "Declaration of Legal Principles Governing the Activities of States in the Exp1oration and Use of Outer Space" adopted by UNGA Resolution 1962(XVIII), December 13 1963, the 9 principles proclaimed in that Declaration, although all of them incorporated in the Space Treaties, could be regarded as customary international law binding all states considering the time and opinio juris by the responses of the world. Although the soft law such as resolutions, guidelines are not binding law, there are some provisions which have a fundamentally norm-creating character and customary international law. In November 12 1974 UN General Assembly recalled through a Resolution 3232(XXIX) "Review of the role of International Court of Justice" that the development of international law may be reflected, inter alia, by the declarations and resolutions of the General Assembly which may to that extend be taken into consideration by the judgements of the International Court of Justice. We are expecting COPUOS which gave birth 5 Space Treaties that it could give us binding space debris mitigation measures to be implemented based on space debris mitigation soft law in the near future.

• The Korean Journal of Air & Space Law and Policy
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• v.20 no.2
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• pp.293-306
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• 2005

In order to bridge the digital divide issues in the Asia Pacific region, Japan initiated the Asia Broadband Program, during implementing E-Japan and U-Japan Plans with collaboration among Asia Pacific Counties. This paper describes first joint experiments that were undertaken in Japan, Singapore and China. Then this paper also describes Japanese efforts to build space infrastructure for development of ICT Society in the Asia Pacific region for further international cooperation to bridge the digital divide Article 1, para. 1, of the Outer Space Treaty of 1967, calls for exploration and use of outer space to be carried out for the benefit and in the interests of all countries irrespective of their degree of economic or scientific development. The augmentation of common benefit from space communication could contribute to bridge the digital divide issues in developing countries in Asia Pacific region. Accordingly, space- infrastructure building would be very important to implement common benefit among countries concerned through international cooperation and collaboration

• The Korean Journal of Air & Space Law and Policy
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• v.24 no.2
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• pp.211-234
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• 2009

North Korea conducted the launcher test, which, as North Korea claimed, belonged to the sovereign rights for the purpose of peaceful utilization and exploration of the outer space. The launching was allegedly done for the sole purpose of putting the satellite into earth orbit, while international community stressed the fact that the orbiting of satellite was not confirmed and that the technology used was not distinct from the purpose of building intercontinental ballistic missile. UN Security Council adopted the resolutions which took the effect that the launching was deemed as the missile launching, not the mere launcher test. North Korea declared the moratorium of suspending its test activity. Controversial issues have been raised regarding whether the launcher itself has the legal status of enjoying the freedom of space flight based upon the 1967 Outer Space Treaty. The resolutions, however, has put forward a binding instrument forbidding the launching. UN Security Council resolutions, however, should be read not as defining the missile test illegal, in that the language of resolutions, such as 'demand', should be considered as not formulating a sort of obligatory act or inact. On the other hand, the resolutions should be read as having binding force with respect to any activity relating to the weapons of mass destruction. The resolution 1718 is written in more specific language such as 'decides that the DPRK shall suspend all activities related to its ballistic missile programme and in this context re-establish its pre-existing commitments to a moratorium on missile launching'. Therefore, the lauching activity of the North Korea is banned by the UN Security Council resolution. It should be noted that the resolution does not include any specific provisions defining the space of activity of the North Korea as illegal. But, the legal effect of the moratorium is not denied as to its launching itself, which is corresponding to the missile test clearisibanned in accordance with the resolutions.

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.2
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• pp.35-59
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• 2018

Professor Bin Cheng said that outer space was res extra commercium, while the moon and the other celestial bodies were res nullius before the 1967 Outer Space Treaty(OST). However, Article 2 of the OST made the moon and other celestial bodies have the legal status as res extra commmercium, not appropriated by any country or private enterprises or individual person, but the resources there can be freely available, as those on the high seas. The non-appropriation principle was introduced to corpus juris spatialis internationalis. Whether or not the non-appropriation principle is binding for the non-parties of the OST, many scholars see this principle as an international customary law, even developing into jus cogens. Article 11(2) of the Moon Agreement(MA) reconfirms the nonappropriation principle of Article 2 of the OST, but it has much less effect than the OST because the MA binds only the 18 parties involved. The MA applies only to the moon and celestial bodies other than the Earth in the Solar System, the OST's application scope extends to the Galaxy because the OST has no such substantive enactment. As referred to in the 2015 CSLCA of USA or Luxembourg's Law of Space Resources, allowing individuals and enterprises run by other countries to commercially explore and utilize the space resources, the question may arise whether this violates the non-appropriation principle under Article 2 of the OST and Article 11 of the MA. In the case of the CSLCA, the law explicitly specifies that sovereignty, possessory rights, and judiciary rights to a specific celestial body cannot be claimed, let alone ownership. This author believes that this law respects the legal status of outer space and the celestial bodies as res extra commmercium. As long as any countries or private enterprises or individuals respect the non-appropriation principle of outer space and the celestial bodies, they could use, exploit it. Another question might be raised in the difference between res extra commercium on the high seas and res extra commercium in outer space and the celestial bodies. Collecting resources on the high seas and exploiting space resources should be interpreted differently. On the high seas, resources can be collected without any obstacles like fishing, whereas, in the case of the deep sea-bed area, the Common Heritage of Mankind principles under the UNCLOS should be operated by the International Seabed Authority as an international regime. The nature or form of the sea resources found on the high seas are thus different from that of space resources, which are fixed on the moon and the celestial bodies without water. Thus, if individuals or private enterprises collect these resources from outer space and the celestial bodies, they might secure a certain section and continue collecting or mining works without any limitation. If an American enterprise receives an approval from the U.S. government, secures the best location and collects resources on the moon, can other countries' enterprises access to this area? How large the exploiting place can be allotted on the moon? How long should such a exploiting activity be lasted? Under the current international space law, these matters might be handled according to the principle of "first come, first served." As a consequence, the international community should provide a guideline or a proposal for the settlement of any foreseeable disputes during the space activity to solve plausible space legal questions in the near future.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.2
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• pp.313-374
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• 2020

The idea of creating a new International Space Agency (ISA) is only my academic and practical opinion. It is necessary for us to establish ISA as an international organization for the efficient and rapid exploitation of natural resources in the moon, Mars and other celestial bodies. The establishment of ISA as a new international regime is based on the Article 11, 5 and Article 18 of the 1979 Moon Agreement. In order to establish as a preliminary procedure, it needs to make a "Draft for the Convention on the Establishment of an International Space Agency" among the space-faring countries. In this paper, I was examined the domestic space legislation in the United States, Luxembourg, European Space Agency, China, Japan, the Republic of Korea as well as space exploration and planning of the moons, Mars, Asteroids, Venus, Jupiter, Saturn, Titan and Other Celestial Bodies. The creation of an ISA would lead to a strengthening of the cooperation needed essentially by the developed countries towards joint and cooperative undertakings in space and would act as a catalyst for the space exploration and exploitation of the moon, Mars and other celestial bodies. It will be managed effectively and centrally the exploitation and exploitation of space the natural resources, technology, manpower and finances as an independent organization in order to get the benefit of the space developed countries by ISA. It is desirable and necessary for us to establish ISA in order to promote cooperation in space policy, law, science technology and industry among the space developed countries in the near future. The establishment of the ISA will be promoted the international cooperation among the space-faring countries in exploration and exploitations of the natural resources in the moon and other celestial bodies. I would propose the "Draft for the Convention for the Establishment of an International Space Agency." in refering the "Convention for the Establishment of a European Space Agency." This "Draft for the Convention Convention for the Establishment of an ISA" must pass the abovementioned "Draft for the Convention" by two-third majority of Diplomatic Conference in the UNCOPUOS. Finally, a very important point is need that a political drive at the highest level and a solemn statement by heads of state of the space devloped countries including the United Nations for the space exploitation of the medium and long term. It should be noted that this political drive will be necessary not only to set up the organization, but also during a subsequent period. It is desirable and necessary for us to establish the ISA in order to develop the space industry, to strengthen friendly relations and to promote research cooperation among the space-faring countries based on the new ideology and creative ideas. If the heads of the superpowers including the United Nations will be agreed to establish ISA at a summit conference, 1 am sure that it is possible to establish an ISA in the near future.