Space law, subjects and jurisdictions: pre-1963 period

In this regard, the authors of the first UN GA Resolution 1148 recognized that no State on Earth has the right of sovereignty and, accordingly, jurisdiction in outer space [5, p. 12].

However, attention should be given to the fact that States do not have jurisdiction in outer space and on celestial bodies (outside the Earth), and it does not require recognition by the States and the UN. It simply needs to be accepted as truth. Everything is quite simple. The state can act freely only within the boundaries of its territorial jurisdiction.

However, despite this, there is a concept of public international law, according to which a state can also act where it is not directly prohibited and restricted by international law, and sometimes may even go beyond international law [2, p. 146].

That is, the essence of this concept of "narcissus” is that states can decide for themselves whether or not to limit activities to their territory. Moreover, within the framework of this concept, three theories about jurisdictions in neutral territories have emerged, namely, "Res Communis”, "Res Nullius”, "the Common Heritage of Mankind” or "Res Communis Hu- manitatus” [2, p. 147].

According to the first theory "Res Communis” or "Res Communis Omnium”, outer space and celestial bodies are considered a common territory. Therefore, all States, their citizens, and international legal entities are free to explore, use, and develop a common territory (the "commons” area). Naturally, most technologically advanced states adhere to this theory, since it allows them to act as if on equal terms, but to enrich much faster than underdeveloped states [2, p. 147].

According to the second theory, "Res Nullius”, outer space and celestial bodies are a territory that does not belong to anyone. Therefore, certain States have the right to own and control the "commons” for their exclusively sovereign purposes by right of first discovery or use [20, p. 38]. This imperialist and colonial theory is attractive to states claiming world hegemony.

According to the third theory, "Res Communis Humanitatus”, outer space and celestial bodies are common territory for all mankind. Therefore, all States, their citizens, and international legal entities are free to explore, use, and develop a common territory in the interests of humanity and provided that they share the benefits with other participants (that is, there is an aspect of sharing) [2, p. 147].

However, all these theories are only theories, and the concept itself is not perfect and cannot extend to outer space and celestial bodies.

Although, according to Ogunsola O. Ogunban- wo, agreeing with the UN GA Resolution 1721, the States chose the theory that outer space and celestial bodies are not "Res Nullius”, but "Res Communis Omnium” [5, p. 12].

However, in this regard, we would like to note that the wishes of representatives of certain States, even if they are stated by the majority of States, cannot violate the principles of the "home room” and the "alien room” based on the territorial jurisdiction of States.

Outer space and celestial bodies cannot belong to States, and the issue of their use can only be decided by individuals (in this case, people who are ready to act for the benefit of all mankind, that is, Animal Rationale).

In this regard, it would be more correct to present this concept of the use of outer space with a different formulation, namely, "Res Nullius Status et Res Communis Animal Rationale”, or in a simpler version, namely, "Res Communis Animal Rationale”.

In any case, taking into account the above-mentioned theories and contradictions, the situation with the regulation of space activities required the creation of new rules of relations for subjects of space activities, beyond the classical norms of international and national law.

In this regard, already in the UN GA Resolution 1721, the UN General Assembly adopted a provision according to which "International law, including the Charter of the United Nations, applies to outer space and celestial bodies" [12].

Further, the Declaration of Legal Principles stated that "The activities of States in the exploration and use of outer space shall be carried on in accordance with international law, including the Charter of the United Nations ... ” [10].

That is, the UN General Assembly proposed that States as subjects of space activities regulate their relations in outer space and on celestial bodies based on existing norms of international law.

Thus, the UN General Assembly proposed to change the existing jurisdiction of international law in relations among States (as subjects of space activities) and extend it beyond the limits of planet Earth to outer space and celestial bodies (as objects of space activities and separate spatial-territorial units) [1, p. 130].

However, as mentioned earlier, the real jurisdiction of the UN is limited by the jurisdiction of the Member States of the Organization, which in turn are limited by their territorial jurisdiction. That is, in fact, within the territory of the Member States of the Organization, this document applies to all subjects, but outside their territories (in outer space and on celestial bodies) only to relations among these States as subjects of international law. The Netherlands delegate expressed the same opinion when discussing the Declaration of Legal Principles at the plenary session of the UN General Assembly [1, p. 146].

That is, we can say that the rules of relations established by these documents extended to "outer space” and "celestial bodies”, but were limited only to relations among States, which should be regulated according to international law.

In addition, the Declaration of Legal Principles stated that "The State on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and any personnel thereon, while in outer space. Ownership of objects launched into outer space, and of their component parts, is not affected by their passage through outer space or by their return to the earth” [10].

That is, based on this provision, the national jurisdiction of States was extended to objects belonging to them in outer space beyond their classical territories on planet Earth.

Thus, the UN GA Resolution 1721 and the Declaration of Legal Principles established rules that can be conditionally called "Rules of Space Relations and Space Jurisdictions”, and which could be stated as follows (as of the end of 1963):

«The activities of States in the exploration and use of outer space and celestial bodies shall be carried on in accordance with international law, including the Charter of the United Nations.

The jurisdiction of States extends to all objects registered by them located in outer space and to astronauts located inside such objects”.

According to these Rules, relations among States in outer space and on celestial bodies were regulated by international law, and relations among astronauts inside a state object (which is located in outer space) were governed by the law of the State to which this object belongs.

At the same time, despite the simplicity, these Rules still left more questions than they gave answers.

First of all, it is necessary to pay attention to the fact that these Rules did not regulate relations among astronauts outside of objects launched into outer space (in outer space and on celestial bodies) and did not regulate relations among private and non-governmental subjects of space activities at all.

Also, these Rules did not apply to objects launched into outer space, which could later land on celestial bodies (including in their airspace and on a solid surface).

However, the most important drawback of these Rules was that the issue of the delimitation of outer space and the spatial-territorial (air) borders of States remained unresolved. That is the issue of the spatial-territorial jurisdiction of States.

Thus, according to Article 1(1) of the Chicago Convention on International Civil Aviation, which was adopted on December 7, 1944, "The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory”.

In other words, taking into account this Convention, we can state that the spatial-territorial jurisdiction of states extends upwards into space and down to the center of the Earth, resembling something like the shape of an inverted cone, with uneven sides that coincide in shape with the borders of states on the surface of the Earth [18, p. 4]. At the same time, the jurisdiction of states is absent outside their territory, that is, in the airspace over terra nullius or the open sea [18, p. 4].

Initially, everything seemed quite clear. However, then the question arose about where the airspace of States ends and outer space begins. In this regard, many versions of such a distinction have arisen.

For example, there were versions about the limitation of the airspace of states by the upper boundary on which the force of gravity acts. However, it would be difficult to turn this version into a rule, since it is very difficult to determine an object with an ideal shape, weight, and density on which an experiment with the force of gravity could be carried out.

Also, there is a theory that Bin Cheng expressed which suggests considering this issue from the point of view of the geophysical meaning of the term "airspace”, that is, the airspace ends where the air ends [18, p. 5]. However, in this case, it is necessary to remember that 'air is a mixture of gases and is not a chemical compound'. In this regard, some scientists have proposed to consider the height of 5.8 kilometers as the upper limit of airspace, below which half of the air in the Earth's atmosphere is located [18, p. 5]. According to another version, it was proposed to consider the height of 60 miles (approximately 100 kilometers) as the upper limit of the airspace, above which a vacuum can already begin [18, p. 5]. There were also versions that the vacuum begins only above 400 miles (about 644 kilometers) [18, p. 5].

In addition, a version was put forward according to which it was proposed to consider the maximum upper limit of the airspace as the maximum height at which there is enough air to 'lift' from the air for flights of airplanes and balloons [18, p. 6]. At the same time, according to Bin Cheng, airspace exists where there is an atmosphere (including all its various layers, the troposphere, the ozonosphere, the ionosphere, and, to some extent, the exosphere), that is, at an altitude of 450 to 1000 kilometers above sea level [18, p. 7-8]. However, the upper limit of the atmosphere is also a controversial issue today.

Also, there are several other theories on this topic, classified by McDougal, Lasswell, and Vlasic as follows: 1) proposals based upon prescriptions of the Air Conventions, 2) proposals based upon varying physical characteristics of space, 3) proposals based upon varying natures of flight instrumentalities, 4) proposals based upon the factors of effective control, e) proposals based upon the earth's gravitational effects, and 5) proposals based upon arbitrarily chosen altitudes.

However, as of the end of 1963, most of these theories were only the subject of backstage negotiations and none of them were taken into account. Even today, it is believed that none of these theories is considered acceptable from a scientific point of view [1, p. 138]. However, it should be noted that perhaps the theories turned out to be untenable because none of them contains an economic component and stratification of airspace (for example, an air economic layer, an air military layer, an air orbital layer, etc.). In any case, the States have not been able to agree on such a delimitation of spaces. It is still unclear how far the jurisdiction of States extends in the airspace over their territory [1, p. 137].

The absence of such a distinction practically nullified all efforts to regulate space activities, since it was unclear where aeronautics ends and cosmonautics begins.

Conclusions

It is necessary to say that as of the end of 1963, the UN General Assembly had made several efforts in the field of regulating space activities. Although not all ideas were implemented and not all proposals had a positive context for the development and welfare of mankind, all these actions can be considered an important step towards the settlement of relations in space activities.

Summarizing the study of legal documents on space activities for the period 1958-1963, we can state that already in this period the first principles, concepts, and rules of space activities were formed, which led to the emergence and development of a completely new area of law - the so-called Space Law.

At the same time, as a result of the study, a definition was formed, according to which Space Law can be considered as a set of legal systems regulating space activities, having different legal ideologies and different subject composition as well as the environment of the application, which extends to outer space and celestial bodies beyond the Earth.

Considering that Space Law may consist of multiple legal systems, three possible legal systems of this law were identified, namely, Animal rationale jus (or Law of Space Principles), Space Private Law, and Space Public Law.

Also, it was established that at the end of 1963 there already existed Space Public Law, which mainly consisted of Conventionalis stipulatio, formalized in the form of Resolutions and Declarations of the UN General Assembly.

Certainly, it shall be acknowledged that at the early stage of its development, Space Law had many gaps, shortcomings, and unresolved issues. However, it is these nuances that today make it possible to understand how this area of law should be further developed.

References

1. Asamoah O.Y. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. The Legal Significance of the Declarations of the General Assembly of the United Nations. Dordrecht: Springer Netherlands, 1966. P. 129160. DOI:10.1007/978-94-011-9495-2_12.

2. Christol C. Q. Outer space exploitability. Space Policy. Vol. 6, № 2. P. 146-160. DOI:10.1016/0265-9646(90)90050-8.

3. Csabafi I.A. The Concept of State Jurisdiction in International Space Law: a Study in the Progressive Development of Space law in the United Nations. Dordrecht: Springer Netherlands, 1971. 197 p. ISBN 978-94-015-09213.

4. Justinian, Velyvis S., Miseviciute R.A. IUSTIN- IANI AUGUSTI DIGESTA, SEU PANDECTAE: IMPERATORIAUS JUSTINIANO DIGESTAI, arba PANDEKTOS. Vilnius: V] Registry cen- tras, 2010. 319 p. ISBN 978-9955-30-085-4.

5. Ogunbanwo O.O. International Law and Outer Space Activities. Dordrecht: Springer Netherlands, 1975. 272 p. ISBN 978-94011-9212-5.

6. The United Nations General Assembly (12th. Sess. 716th plenary meeting). Regulation, limitation and balanced reduction of all armed forces and all armaments; conclusion of an international convention (treaty) on the reduction of armaments and the prohibition of atomic, hydrogen and other weapons of mass destruction. Resolution. № 1148. URL: https://digitallibrary.un.org/record/207243.

7. The United Nations General Assembly (13th. Sess. 792nd plenary meeting). Question of the peaceful use of outer space. Resolution. № 1348. URL: https://digitallibrary.un.org/ record/206866.

8. The United Nations General Assembly (14th. Sess. 856th plenary meeting). International co-operation in the peaceful uses of outer space. Resolution. № 1472. URL: https:// digitallibrary.un.org/record/206356.

9. The United Nations General Assembly (18th. Sess. 1244th plenary meeting). Question of general and complete disarmament. Resolution. № 1884. URL: https://digitallibrary.un- .org/record/203960.

10. The United Nations General Assembly (18th. Sess. 1280th plenary meeting). Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. № 1962. URL: https://digitallibrary. un.org/record/203965.

11. The United Nations General Assembly (18th. Sess. 1280th plenary meeting). International Co-operation in the peaceful uses of outer space. Resolution. № 1963. URL: https:// digitallibrary.un.org/record/203966.

12. The United Nations General Assembly (16th. Sess.). International co-operation in the peaceful uses of outer space. Resolution. № 1721. URL: https://digitallibrary.un.org/ record/665195.

13. The United Nations General Assembly (17th. Sess. 1192nd plenary meeting). International co-operation in the peaceful uses of outer space. Resolution. № 1802. URL: https:// digitallibrary.un.org/record/204272.

14. Smith M. S. The first quarter-century of spaceflight. Futures. Vol. 14, № 5. P. 353373. DOI:10.1016/0016-3287(82)90056-8.

15. Beard J. M. Soft Law's Failure on the Horizon: The International Code of Conduct for Outer Space Activities. Vol. 38, Issue 2. P. 335-424.

16. Cheng B. Studies in International Space Law. Oxford University Press, 1997. DOI:10.1093/ acprof:oso/9780198257301.001.0001.

17. Diederiks-Verschoor I.H.P., Kopal V. An introduction to space law. 3rd rev. ed. Alphen aan den Rijn, The Netherlands : Frederick, MD: Kluwer Law International ; Sold and distributed in North, Central and South America by Aspen Publishers, 2008. 249 p. ISBN 97890-411-2647-4.

18. Cheng B. In the Beginning: the International Geophysical Year. Studies in International Space Law. Oxford University Press, 1997. 13 p. DOI:10.1093/acprof:o- so/9780198257301.001.0001.

19. Rawson C.J. Introduction. Gulliver's travels. Oxford ; New York: Oxford University Press, 2005. ISBN 978-0-19-280534-8.

20. 20. Lai A. K. The cold war, the space race, and the law of outer space: space for peace. Milton Park, Abingdon, Oxon ; New York, NY: Routledge, 2021. ("Routledge studies in modern history” Series). ISBN 978-0-36775384-9.

21. Treaty banning nuclear weapon tests in the Atmosphere, in outer space and under water. Signed at Moscow, on 5 August 1963. No. 6964. UNTC. URL: https://trea- ties.un.org/pages/showDetails.aspx?ob- jid=08000002801313d9.

22. Shaw M.N. International law. 5th ed. Cambridge, U.K.; New York: Cambridge University Press, 2003. 1288 p. ISBN 978-0-52182473-6.

23. Skakun O.F. Theory of Law and State: Textbook. 2d ed. Kyiv: Alerta, 2010. 520 p. ISBN 978-617-566-012-6.

24. Stelmakh-Drescher O. International Legal Regime of Security for Exploration and Use of Outer Space for Peaceful Purposes. 2016. DOI:10.13140/RG.2.1.3882.9683.

25. Tronchetti F. Fundamentals of space law and policy. New York: Springer, 2013. 107 p. ("Springer briefs in space development” Series). ISBN 978-1-4614-7869-0.

26. Vitz B.B. Democritus. Moscow: Mysl', 1979. 212 p. ("Mysliteli proshlogo” Series).

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