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DEPARTMENT OF TIE ARMY PAMPHLET
LAW OF PEACE
Volume I
HEAD(1UARTERS, DEPARTMENT OF THE ARMY
SEPTEMBER 1979
| "36. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 18 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.S. 205. Pam 27-161-1 interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies. There shall be freedom of scientific investigation in outer space, in- cluding the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation. Art. 2. 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. Art. 3. States Parties to the Treaty shall carry on activities in the ex- ploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understand- &. Art. 4. States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear wapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations, and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited. Art. 5. States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle. In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties. States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the moon and other celestial bodies, which could constitute a danger to the lie or health of astronauts. Art. 6. States Parties to the Treaty shall bear international respon- sibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by govern- mental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall re- quire authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, includ- ing the moon and other celestial bodies, by an international organiza- tion, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organhtion. Art. 7. Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally Liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, includ- ing the moon and other celestial bodies. Art. 8. A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return. Art. 12. AU stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such repre- sentatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited. Art. 13. The provisions of this Treaty shall apply to the activities of States Parties to the Treaty in the exploration and use of outer space, in- cluding the moon and other celestial bodies, whether such activities are carried on by a single State Party to the Treaty or jointly with other States, including cases where they are carried on within the framework of internationalintergovernmental organizations. Any practical questions arising in connection with activities carried on by international intergovernmental organizations in the exploration and use of outer space, including the moon and other celestial bodies, shall be resolved by the States Parties to the Treaty either with the appropri- ate international organization or with one or more States members of that international organization, which are Parties to this Treaty. The Treaty incorporates the principles enunciated in the Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space. 37 The major difference between the Treaty and the Declara- tion is the inclusion in the Treaty of articles concerning the military uses of space and providing for mutual inspection of facilities on the moon and other celestial bodies. 38 (1) There is no generally accepted boundary be- tween air space and outer space. Although the U.N. Com- mittee on the Peaceful Uses of Outer Space placed the problem of such a boundary on its agenda, it has done lit- tle work on it. Scholars and commentators have discussed a wide variety of possible boundaries. The physical charac- teristics of space and the atmosphere offer no sure guid- ance, but there is a tendency to agree that the boundary, if one is necessary, should be somewhere between the highest altitude at which aircraft dependent on the reac- tions of the air for lift and control can operate and the lowest altitude (perigee) at which artificial earth satellites can remain in orbit without being destroyed by friction with the air, roughly between 40 and 90 miles above the surface of the earth. 39 (2) A more recent treaty, of considerable impor- tance to the United States, is The Agreement on the 37. G.A. Res. 1962, 18 U.N. GAOR Supp. 15, at 15, U.N. Doc. A/5515 (1963). 38. See general!^, Demblig and Arons, The Evolution of the Outer Space Treaty, 33 J. Air L. & Corn. 419 (1967). 39. See M. McDougal, H. Laswell & I. Vlasio, Law and Public Order in Space 323-59 (1963) (hereinafter cited as M. McDougal, Space Law), and J. Fawcett, International Law and the Uses of Outer Space 20-24 (1968). For a Soviet view, see Zhukov, Space Flights and the Problem of the Altitude Frontier of Sovereign&, [I9661 Y.B. of Air and Space L. 485. Pam 27-161-1 Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space. 40 4-4. Extent of Territory. a. Having examined the various means by which states may acquire territory over which to exercise jurisdiction, attention must next be directed toward the extent of this territory. Such an analysis generally entails an examination of land, river, and lake boundaries. In this regard, spedic provisions of Restatement, Second, serve as pronouncements of the relevant international legal norms. RESTATEMENT, SECOND, FOREIGN RELATIONS LAW OF THE UNITED STATES (1965) 4 12. Land, River, and Lake Boundaries (1) The boundary separating the land areas of two states is deter- mined by acts of the states expressing their consent to its location. (2) Unless consent to a different rule has been expressed, (a) when the boundary between two states is a navigable river, its location is the middle of the channel of navigation; (b) when the boundary between two states is a nonnavigable river or a lake, its location is the middle of the river or lake. Comment a. Land boundaries. . . . Many boundary disputes have been settled by peaceful means including, in particular, boundary conventions and arbitration, as in the case of the continental land boundaries of the United States. Because, in a dority of cases,the location of land bound- aries between states is defmed by agreement (frequently as interpreted by arbitration) almost no smc principles of international law have developed in this field. b. Thalweg doctrine. The rule locating the boundary in the middle of the channel of navigation rather than the middle of the stream is called the "thalweg" doctrine. See Louisiana v. Miissippi, 202 U.S. 1, 26 S.Ct. 408,50 L.Ed.913 (1906); New Jersey v. Delaware, 291 U.S. 361, 54 S.Ct. 407, 78 L.Ed.847 (1934). c. Effect of nanrral shifr. In disputes between the states of the United States, the Supreme Court has applied the distinction between accretion and avulsion, under which the boundary between two states shifts with the gradual shifting of the channel caused by erosion and deposit of alluvium (accretion) but does not shift when the river is suddenly diverted from the previous channel (avulsion). See Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396,36 L.Ed.186; Arkansasv. Tennessee, 246 U.S. 158, 38 S.Ct. 301, 62 L.Ed.638 (1918); 12 Am.J. Int'l L. 648 (1918). . . . Although, as noted in the Comment to Q 12, the majority of land boundaries are defined by srnic agreement be- tween the states concerned, disputes still arise concerning the proper interpretation or application of such agree- ments. 41 One such boundary dispute of long standing in- volved the U.S. and Mexico. Inasmuch as this dispute in- volves several of the concepts spoken to in § 12 of the Restatement, it is of particular interest. b. In the Treaty of Guadalupe Hidalgo of 1848 and the Gadsden Treaty of 1953, the United States and Mex- ico attempted to fix the boundary line between their respective territories. Because the Colorado and Rio Grande Rivers constantly shifted their channels, the two countries agreed in 1884 that the dividingline should con- tinue to "follow the center of the normal channel" of 40. 19 U.S.T. 7570; T.I.A.S. 6599; 672 U.N.T.S. 119. 41. Seecase Concerning the Temple of Preah Vihear, (19621 I.C.J. 6. each river, "notwithstanding any alterations in the banks or in the course of those rivers, provided that such altera- tions be effected by natural causes through the slow and gradual erosion and deposit of alluvium. .. ." Other changes brought about by the force of the current, such as the sudden abandonment of an existing river bed and the opening of a new one ("avulsion"), were to produce no change in the dividmg line, which would continue to follow the middle of the original channel bed, even though this should become wholly dry or obstructed by deposits. 42 In 1889, an International Boundary Commis- sion was created by agreements between the United States and Mexico and charged with the task of deciding whether changes in the course of the Colorado River and the Rio Grande had occurred "through avulsion or erosion" for the purposes of the 1884 treaty. 43 In 1895 a dispute arose over a tract of land in El Paso, Texas, known as "El Charnixal." Each country claimed the entire tract. The Boundary Commission was unable to agree on the bound- ary line, and a convention was signed by the two govern- ments on June 24, 1910, establishing a commission to "decide solely and exclusively as to whether the interna- tional title to the Chamizal tract is in the United States of America or Mexico." 44 In rendering the award, the Presiding Commissioner of the arbitral tribunal, with the Mexican Commissioner concurring in part, said: . .. [Tlhe Presiding Commissioner and the Mexican Commissioner are of the opinion that the accretions which occurred in the Chamizal tract up to the time of the great flood in 1864 should be awarded to the United States of America, and that inasmuch as the changes which occurred in that year did not constitute slow and gradual erosion within the meaning of the Convention of 1884, the balance of the tract should be awarded to Mexico. 45 The American Commissioner dissented. At the session of the Commission in which the award was read, the agent for the United States protested against the decision and award, inter alia, on the following grounds: 1. Because it departs from the terms of submission in the following particulars: a. Because in dividing the Chamizal tract is assumes to decide a question not submitted to the commission by the convention of 1910 and a question the commission was not asked to decide by either party at any stage of the proceedings; b. Because it fails to apply the standard prescribed by the Treaty of 1884; c. Because it applied to the determination of the issue of erosion or avulsion a ruling or principle not authorized by the terms of the submis- sion or by the principles of international law or embraced in any of the treaties or conventions existing between the United States and Mexico; d. Because it departs from the jurisdictional provision of the Treaty of 1889 creating the International Boundary Commission. 46 Shortly after the Commission had adjourned, the United States notified Mexico ". . . [fJor the reasons set forth by 42. 24 Stat. 101 1, 1 Malloy 1159. 43. 26 Stat. 1512, 1 Malloy 1167. 44. 36 Stat. 2481, 2483. 45. Charnizal Arbitration (tTnited States v. Mexico), [I91 1) For Re1 U.S. 572, 586 (Int'l Boundary Commission 191 1). 46. Id. at 597-98" | |
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