THE LAW OF THE SPACE ELEVATOR

 

The relationship to the Law of the Space, the Sea and the Sky

 

KAI, Sunao

Professor, College of Law, Nihon University

 

 

Preamble

 The space elevator is a construction from the earth reaching into outer space. We, human beings, have developed the law of the sea, of the sky, and finally of the outer space in our history. As a result, for the space elevator, it is not enough to discuss only with the relationship to the law of the outer space. In order to discuss the total legal issues of the space elevator, it is necessary to clarify the relationship to the three-dimensional laws already exist; the Law of the Outer Space, the Law of the Sea and the Law of the sky. This Essay is aimed to discuss about those three-dimensional Laws comprehensively.

 

    

I. The Relationship of Space Elevator to the Law of the Space

 

 1. Legal Form of the Space Elevator Organization

(1)  Introduction

  The space elevator is the largest construction in the history of us mankind. It is to be expected, therefore, the establishment and operation of a space elevator will entail the settlement of numerous legal issues. In order to resolve such legal problems, as space elevator is a means of survival method of all mankind, we should make laws as a form of International Treaty (if possible, as a form of United Nations Treaty). Such treaties require, under normal circumstances, more than a few decades from proposal to effectuation[1].
  After the technological breakthrough, if we cannot start the space elevator construction for a few decades, because of the delay of effectuation of international space elevator treaty, it would be a great tragedy. While the delay, I am afraid that we mankind loose the resources to reach the star world und doomed to remain here on the earth until its demolition. That is the reason why we lawyers must consider the legal issues surrounding a space elevator now.
  There are a lot of legal problems surrounding the construction of a space elevator. I believe, however, that the most fundamental und largest problem is who can establish a space elevator. In this essay, I would like to consider this theme. Nowadays, this issue has a close connection with the UN Outer Space Treaties.
  On 4th October, 1957, the Soviet Union launched the world's first artificial satellite “Sputnik 1.”  The United Nations response to this was immediate. Barely two months later, on 12th December, the UN General Assembly passed a resolution “International cooperation in peaceful uses of outer space.” Based on this resolution, the “United Nations Committee on the Peaceful Uses of Outer Space(COPUOS)”was established in 1958, and became a standing subsidiary organ of the UN General Assembly in 1959.  "The Legal Subcommittee" is a part of the infrastructure of COPUOS. The first task undertaken by this subcommittee was to draft the Outer Space Treaty[2], which was adopted by the UN General Assembly on 19th December 1966.
  Now, we must consider whether the Outer Space Treaty is only a treaty or an established law of nations. The difference between the two is that treaty is a law that binds only ratifying states, while an established law of nations is an international customary law that binds all states.
  It is hard to imagine that the basic purpose of this Treaty was to form a new established law of nations[3] as the Outer Space Treaty was designed to take effect with ratification from as few as five countries (Article 14, paragraph 3). This resulted in its easy enforcement on October 1967.
  However, the treaty as the "Charter of outer Space", it established the principles governing the activities of States in the Exploration and Use of Outer Space. And as the treaty has been ratified by 100 countries to date[4] and can, therefore, be said to have attained the status of an established law of nations (international customary law).
  Under these circumstances, I would like to consider who can establish the Space Elevator.

 

(2)  Constructor of the Space Elevator at the beginning

(i)  The possibility of a national institution of a particular state
  First we must consider the principle of no occupation of outer space (Article 2 of Outer Space Treaty[5]). If a particular state considers the establishment of a Space Elevator, this principle is bound to become a big problem. Because the Space Elevator, as a semi-permanent fixed construction, will necessarily be guilty of just that the “occupation of the outer space.”[6]  So we must say it is impossible under the current Outer Space Treaty for a particular state to insist on national sovereignty inside the Space Elevator.
  Thus, when a particular state wants to establish a Space Elevator, it will become necessary to change or at least to allow an exception in relation to Article II of the Outer Space Treaty.  I, however, believe that it is impossible to do that due to both political and legal reasons.
  With respect to the political aspect of the problem, we must consider the Military Balance between strong states. Up to now, the only means of a cross-border attack through outer space is using a missile. However, when the Space Elevator becomes a reality, a state that has control over the Space Elevator will have absolute military power. Such a state simply drops large masses of any substance (for example sea water) from this absolute altitude, and could wreak great damage on earth equivalent to a nuclear weapons or the Tunguska Explosion[7]. There are no effective defense methods against such an attack. This suggests the serious confrontation among strong states, if Space Elevator technology becomes reality. They shall compete with each other to establish Space Elevator of other states. Hence, we need to explore other possibilities before the technology development enables the establishment of a Space Elevator.
  On the legal side, the legal character of Space Elevator project is a transportation business for people and materials. Public transport services usually have certain exclusivity. A Space Elevator project will essentially have strong exclusivity arising from its location. Its location must be satisfy conditions such as (a) essentially on the equator, (b) in a region where the Earth’s gravitational field is stable, (c) in an area where risk from lightning or severe tropical storms is small, etc. Therefore, areas that fulfill the geographical conditions of Space Elevator's long-term stability on earth are quite limited. It has to be said that construction points of the Space Elevator must not be under the improper control of a particular country, because it is a Common Heritage of Mankind.

 

(ii)  Possibility of a private enterprise
  With respect to the feasibility of this alternative, we must consider Article VI of the Outer Space Treaty. The Treaty says “States Parties to the Treaty shall bear international responsibility for national activities in outer space…whether such activities are carried on….. by non-governmental entities. The activities of non-governmental entities in outer space…..shall require authorization and continuing supervision by the appropriate State Party to the Treaty” (the principle of responsibility to focus on state)[8].  Even a so called an international company adopts the form of a coalition of domestic companies from many countries, unless it is established on the basis of international treaty of some kind. Under this principle, a domestic company can do nothing that the state cannot do. Therefore, private companies cannot establish a Space Elevator, because a state cannot establish a Space Elevator.
  Thus, here again, it is necessary to change or at least to allow an exception to Article 6 of Outer Space Treaty. I believe, however, that this is impossible to do so.
  Freedom of private sector activities is based on the constitutional freedom of business. This freedom shall be allowed if the best results for public good can be expected on the basis of market principles. However, as mentioned in the preceding paragraph, due to extremely high levels of monopoly with regard to its geographical location, the establishment of a Space Elevator by a particular private company cannot be approved from the principle of market conditions. Therefore, from the domestic viewpoint, the company that owns the Space Elevator would be in violation of the antitrust laws.
  From a global viewpoint, a Space Elevator is the Star Gate for all mankind. A Space Elevator is an important project of the near future directly linked to the survival of all humankind. So we cannot endure the commercialism.
  Here we shall consider the possibility of private company establishing a Space Elevator on the high seas independent of sovereign control by any country. As the high seas are a Common Heritage of Mankind, the attempt of a particular company to occupy them permanently must be evaluated as an action similar to piracy or at least as an illegal activity such as pirate radio. If it is not treated as piracy or a similar act, the activity will at least seen as a violation of space-related treaties, as it cannot establish the necessary facilities for safe and effective operation. Hence, it is impossible.

 

(iii)  Possibility of International organization
  I believe that the only possibility with respect to the establishment of a space elevator is by an International Organization, if possible, as a UN special agency. Fortunately Article 6 of the Outer Space Treaty has clearly made an exception for international organizations. The second sentence of Article 6 states, “When activities are carried on in outer space… by an international organization, 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 organization.”
  Of course, this provision was not made in expectation of the emergence of a space elevator. The earliest practical use of space in the field of satellite communications were the “International Telecommunications Satellite Organization (INTELSAT)” and the “International Maritime Satellite Organization (INMARSAT).” Both have been established under the treaty for international organizations. This provision is intended to correspond to it.
  Let us hypothetically call the international organization for the space elevator as the “International Space Elevator Organization: ISEO”. The best form for ISEO to take would be as an organization similar to the International Bank for Reconstruction and Development (IBRD). If it were to take the form of IBRD, we could solve the problem of how to raise funds for the construction of a space elevator.
  We need only background contributions from the each state Party to the Treaty instead of real money[9]. The ISEO will be able to finance space elevator construction by procuring funds from the market, and repay the loan from the income earned by providing transportation after the date of maturity. This means that there would be no need to rely on taxes from the people of each country. If the ISEO could attain the status of a UN Special Agency, it would not need to pay any tax for transportation activities.

 

(3)  Legal Form of International Space Elevator Organization in the future

The International Space Elevator Organization shall be an ordinary international organization at the beginning. The future legal form of the organization shall be a supranational institution like the EU or the USA in some aspects. I will explain the reason as follows.
The space elevator will be of a scale that far surpasses ordinary countries. If we build a space elevator in the form of a cylindrical tower of 100,000 kilometers in height and a 32 meter radius, then the total floor space shall be larger than the total continental surface area of the Earth[10].
In order to manage such a massive construction, we will need at least several ten thousand staff. And because of the large scale of the space elevator, it will be impossible for the staff to travel from Earth to their workplace every day. Therefore, sooner or later, not only the staff but also families of the staff shall live in the space elevator and residential quarters will be created in each station.
In order to support everyday life in such residential quarters, there must be tertiary industries such as retail stores etc. It is too expensive to bring all the retail commodities up several hundred thousand kilometers away from the Earth. Therefore, secondary industries will be created in order to enable the residents in the space elevator access to various kinds of goods. Facilities for primary industries such as agriculture and aquaculture will also be created in the space elevator.
All such industries also need workers and such workers and their families need more residential quarters.
In the residential quarters, there shall be kindergartens, primary schools and secondary schools for the children of residents. And Technical Colleges to train management staff for the space elevator will be established at an early stage. The peculiarities of space elevator control technology make the training technique so special that it shall be carried out in a special environment which exists only in the space elevator.
As a result, the population of the space elevator will develop to the level of a small European country in its early stages. If room in the space elevator is used to support the increasing number of humans on Earth, then the increasing speed of the population in the space elevator will be further accelerated.
To manage such a large population, it is inevitable that the space elevator will have its own administrative structure, independent from the management system of the space elevator itself.
A large society always causes crimes to occur whether such crimes originate from intent or negligence. No police agency on Earth can respond in a timely manner to such crimes that occur at a distance of several ten thousand kilometers away from the Earth. It is also necessary to protect against all types of terrorist activities against the space elevator itself. Thus, it is essential for the space elevator to have its own police agency for the residents.
Courts will be required to respond to the needs of such criminal suits. There will also be needs for civil suits between the residents of the space elevator, or administrative suits against the space elevator authority. If there is no court in the space elevator, people must travel several ten thousand kilometers from their home every time a trial shall be held. In effect, it will mean the abandonment of trials.
As a premise of their own administrative and judicial conduct, residents of the space elevator will require their own legislative body. The very special environment, both external and internal, of the space elevator will require special legislative action for administrative and judicial decisions that are not obvious from the viewpoint of the people living on Earth. And, to execute the rule of law, such legislations should be the basis for administrative action and judicial activities. Thus, the space elevator must make up its own governments, namely its own legislature, executive, and court independent from any authority on Earth.
As these activities shall necessitate the three powers of government, the space elevator structure must be a supranational institution, like the EU or the USA.
Of course, activities using the space elevator such as transportation, the Space Solar Power System, the recovery of satellites and space debris, the reuse or production of satellites and other spacecraft, and the manufacturing of goods which require zero or micro gravity, shall be privatized in order to pursue efficiency. However, due to the nature of these private companies, they will become almost a monopoly. Thus, there should be a strong supranational institution superior to those companies in order to protect the countries, companies and human individuals on Earth, and of course the residents of the space elevator.

 

(4)  Conclusion

I suppose, it shall be very hard to establish an UN international Space Elevator treaty. Because COUPOS cannot play an active role nowadays in establishing space treaties. The last international Space Treaty proposed by COUPOS was the Moon-treaty[11] in 1979, and since then, there has been no new international space treaty.
Let us take a look at COUPOS deliberations in order to know the possibility of space debris treaty's establishment, as an example.
COUPOS has two subcommittees; the Scientific and Technical Subcommittee and the Legal Subcommittee.
On the Scientific and Technical Subcommittee, the problem of mitigating of space debris was introduced as an agenda item by Australia, Belgium, Canada, Germany and the Netherlands for the first time in 1989.  It was, however, only in 1994 that this problem came up for discussion for the first time in the subcommittee. Despite debate lasting over a few years, the subcommittee could not establish its own guidelines, and finally in 1999, the subcommittee asked the Inter-Agency Space Debris Coordination Committee (IADC)[12], to draft the United Nations guidelines. In 2007, the United Nations General Assembly adopted the UN guidelines drafted by the IADC.
Meanwhile, the Legal Subcommittee has achieved nothing toward space debris mitigation. It was in 2009 that space debris became an agenda item of the Legal Subcommittee for the first time in the shape of a “General exchange of information on national mechanisms relating to space debris mitigation measures.”[13] In 2011, the agenda item was still titled “General exchange of information on national mechanisms relating to space debris mitigation measures.”[14]
In addition, the last international Space Treaty proposed by COUPOS was the Moon-treaty[15] in 1979, and since then, there has been no new international space treaty.
It is hard to imagine, therefore, how many years the Legal Subcommittee will require for formulating a final draft for the International Space Debris Treaty, even if it'll be possible.
Judging from the above, we must perhaps start space elevator organization treaty between a few countries like the Space Station Intergovernmental Agreement (IGA) or IADC at first. And then we need to take measures to increase the countries to join the treaty gradually until de fact worldwide treaty.

 

    
2. Legal issues related to space debris

(1) Introduction 

There are a lot of artificial objects called space debris in the satellite orbit around the earth. According to the information of the NASA Orbital Debris Program Office, approximately 19,000 objects larger than 10 cm are known to exist. The estimated population of particles between 1 and 10 cm in diameter is approximately 500,000. The number of particles smaller than 1 cm probably exceeds tens of millions.[16]

And the total number of such debris is bound to increase rapidly in the future because of space development and the military use of outer space, such as from the Chinese satellite destruction test done in 2007, if we do not adopt suitable reduction methods.

Until recently, there were no proper reduction methods except the reentry of useless artificial objects. But now, we have the technology to destroy space debris from the ground using laser beams[17] or to gather space debris using tether satellites[18].

Even satellites and launch vehicles run the risk of pinpoint crush with debris, so collision with debris is inevitable for the Space Elevator, a fixed line on the equator. We must, therefore, research the legal issues surrounding the space elevator and space debris.

It is hard to imagine, as I mentioned already in the conclusion of Part 1, how many years the Legal Subcommittee will require for formulating a final draft for the International Space Debris Treaty, even if it'll be possible.

As a result, we must consider the legal issues surrounding space debris, in the framework of the United Nations Outer Space Treaties which already exist at this moment.

 

(2) Space debris legal issues under the present Outer space treaties  
 

  We must first consider the exact concept of space debris. An artificial satellite which has been launched to the earth’s orbit or other outer space can easily become space debris when it goes out of control because its thruster’s fuel or its batteries have run out, or even simply because of some small mechanical problem has happened. We will call this type of artificial satellite an “uncontrollable satellite”.
  By contrast, an artificial satellite under the control of the country that has launched it is not space debris in the normal sense. We will call this type of satellite a “controllable satellite”.

However, this classification is not based on a legal viewpoint. From the legal viewpoint, debris (garbage) is what the owner has abandoned original ownership of. And abandonment of ownership must be presented objectively.

For example, following the great earthquake in eastern Japan March the 11th of 2011, a tsunami reduced the town to rubble. The local governments, however, are not free to clean up such debris without the permission of the owners of the rubble, as what may seem like mere debris to others could often be a valuable keepsake from the owner’s perspective.

In the same way, uncontrollable satellites are normally still under the right of their owners. Although the owner may have lost possession of them, other people cannot clean them up without the permission of the owners, just as if it were a controllable satellite.

From the viewpoint of the safety of the space elevator, there is also no difference between a controllable satellite and uncontrollable satellite. They would both be equally dangerous if they came into collision with the space elevator, and under the current Space Liability Convention[19], the launching country must pay damages, when a space object has collides, be it controllable or uncontrollable.[20]

If a space object crashed into the Eiffel Tower in Paris or the Sky Tree in Tokyo, this is a case of damage caused by a space object on the surface of the earth, and as per Article 2 of the Space Liability Convention, “the launching State shall be absolutely liable.” The Space Elevator (orbital tower, according to the word of Dr. Pearson), just like the Eiffel Tower, is a tower rising up from the ground. Therefore, it follows that “the launching State shall be absolutely liable for damage caused by its space object.”

The problem is that there is no article in the Space Liability Convention about the right to destroy a space object for self-defense purposes when a collision is seen as imminent. However, if there is a clear and present danger of collision, the victim has the right to self-defense without any particular legal basis. Therefore, the space elevator can be equipped with laser beam guns and can destroy the space object on collision course with it whether it is a controllable or uncontrollable satellite (space debris).

However, cleaning up space debris from outer space that poses no clear or imminent danger, with a view to preventing future danger for the space elevator is another problem. No one can infringe upon another’s ownership without his permission.

Space debris, however, can hurtle toward the space elevator at speeds too high for a human being to be able to perceive the danger of collision. Therefore, any defense mechanism against space debris will be automated. For this reason, it is important to study conditions necessary for authorizing the destruction of an artificial object approaching to space elevator.

 

(3)  Effective use of space debris

Here, I would like to consider another aspect of uncontrollable satellites. The reason they are uncontrollable could be either technical or economic difficulty in recovering the object under present conditions. However, such situations may change drastically if the space elevator project comes true.

All the objects in the earth’s orbit cross the equatorial plane. The crossing point changes gradually every time. So, all objects will come close to the space elevator sooner or later. Therefore, we will have a chance to recover such uncontrollable satellites with little difficulty near the space elevator, and then explore the possibility of replacing batteries, refueling or making other improvements at a relatively low-cost. If we can develop such a technology, then an uncontrollable satellite could easily be reborn as a controllable satellite.

You may remember the 2010 international space elevator conference in Redmond. Dr. Jerome Pearson has reported that he could recover all the space debris more than 2kg within 7 years, using tether satellites.

This is possible for all uncontrollable satellites, including those that pose a clear and imminent danger of collision with the space elevator. So, destroying a satellite, whether controllable or not, it must be the last resort. Rather, to provide maintenance services for uncontrollable satellites is the better alternative not only for the owner of the satellite but also from the viewpoint of resource availability. It will also be a good business for the space elevator itself.

Another type of debris is the kind that is no longer useful to the owner. These include not just satellites with equipment that is past its working life and has no more room for improvement, but also rocket body and parts used to launch the satellites and separated fragments of multi-stage rockets and so on. Below, I shall call this kind of debris “pure debris.”

The legal character of pure debris is not the withdrawal of occupation, but abandonment of property rights. So there is no legal problem in cleaning it up. But we must consider their importance as resources.

Nowadays, there is a word “urban mine,” which refers to the fact that we can recover valuable metals including rare earth metals from the waste discarded in the city. Similarly, we could refer to call space debris as “space mines.” All space debris is made of materials good enough to withstand the harsh environment of outer space. And it has been lifted to the orbit using an enormous amount of energy. In that sense, it is highly valuable. The construction of the space elevator would drastically cut down the cost of lifting materials from the earth into space. However, this is based on a comparison with the cost of a chemical rocket. The cost for bringing up the goods to the outer space would still be very high even after the realization of the space elevator. It is, therefore, not the best strategy to allow such useful resources already present in outer space to burn in the atmosphere, or to bring them down to the surface of the earth.

For pure debris, the choice is either to destroy it or to reuse or recycle. This would be an administrative problem left to the discretion of the space elevator. In terms of effective utilization of human controllable resources, it is preferable to collect as much of them as possible; basically the problem would be considered from the point of cost-effectiveness.

We must remember that, the difference between pure debris and an uncontrollable satellite is only relative. The final determination would depend on the will of the original owner. If we recover space debris thinking of it as pure debris when it is still an uncontrollable satellite in the mind of its owner, an enormous legal problem will result.

In order to avoid such legal troubles, we need a register system of space debris, to record whether it belongs to the pure debris category or not.

At present, there already exists the Registration Convention[21]. Perhaps we can use it with small change.

 

II.  The Relationship of Space Elevator to the Law of the Sea            

 

1. Introduction

In the past, the installation point for the ground base of the space elevator was deemed to the summit of a tall mountain in the equatorial zone[22]. However, recently, an installation point on the ocean has come to be considered a more suitable[23].　

From a technical viewpoint, the ground base of the space elevator should have mobility in order to control the vibration of space elevator cable. If there are any reefs or islands around the ground base, the free movement of the ground base would be seriously hindered. Therefore, it should be located in deep ocean waters instead of shallow coastal waters.

  From the viewpoint of legal issues, deep ocean waters are also a good location for the ground base. If the space elevator is established in the territory of a certain sovereign state, it would be very difficult to shut out the influence of that state, at least by the power of law. The experience of the cases of the Suez Canal[24] and the Panama Canal[25] clearly show that.

We must also consider the problem of the Bogota Declaration[26]. It is another reason, why we should avoid the territory of a certain sovereign state.

 Therefore, in order to maintain the neutrality of the space elevator, the location of ground base is better suited to a location that does not to belong to any sovereign state. The United Nations Convention on the Law of the Sea (hereinafter called “the Convention of the Sea”) is an international agreement that resulted from the third United Nations Conference on the Law of the Sea, which took place from 1973 through 1982, in which over 150 States participated. The Convention of the Sea was opened for signature on December 10, 1982 and came into force in 1994[27].

The Convention of the Sea defines the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. Nowadays, the Convention of the Sea is often referred to as the “Constitution for the Oceans”.

It is almost impossible to change the Convention of the Sea for the needs or interests of the space elevator, because the Convention of the Sea is the last-minute compromise of many countries. Even if it were possible to make any changes to the Convention, a few decades would be necessary. So, if we intend to establish a ground base for the space elevator in the ocean, we must search for such a possibility within the framework of the Convention of the Sea.

 

2.    Territorial sea 
The history of the law of the sea is equal to the history of international law. Hugo Grotius (1583-1645), a jurist of the Netherlands, laid the foundation of international law. Today, he is called as the "father of international law". In his book “Mare Liberum” (Free Sea), published in the spring of 1609, Grotius formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade.
Cornelius van Bynkershoek (1673 - 1743), also a jurist of the Netherlands argued in his book “De Dominio Maris” (on the rule of the seas), published in 1702, about the theory of sovereignty over the ocean. His theory is well known as the “cannon-shot rule”. The rule said that a state has territorial sovereignty of that coastal sea within three nautical miles of land. Its name derives from the fact that in the 17th century this limit roughly corresponded to the outer range of coastal artillery weapons and therefore reflected the cannon-shot. This is the beginning of the concept “territorial sea”.
Of course, under the “cannon-shot rule”, due to the progress of cannon technology, the breadth of territorial sea came to be claimed more widely, at first four nautical miles, and then six nautical miles, finally 12 nautical miles. Now, under the Convention of the Sea, the breadth of the territorial sea is decided as 12 nautical miles[28].

 

3.    The exclusive economic zone 

In the past, the contrary concept of the territorial sea is high sea. Under the “Convention on the High Seas” done at Geneva on 29 April 1958, the term “high seas” means “all parts of the sea that are not included in the territorial sea or in the internal waters of a State”  (Article 1).

But the concept under the Convention of the Sea is very different from this. Under the Convention of the Sea, the term “high seas” is defined as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State” (Article 86).

Therefore, nowadays, the high sea means not only outside the territorial sea but also outside the exclusive economic zone (EEZ).

The concept of territorial seas and high seas arises from the long history of international customary law. In contrast, the EEZ is a concept which was formulated in the third United Nations Conference on the Law of the Sea, and as a result, it was created by the Convention of the Sea. This is the concept of a middle stage between territorial seas and high seas. This brings a structural change of the law of the sea.

The springboard of the EEZ was the President Truman’s Proclamation of 1945 on the continental shelf and coastal fisheries[29]. This Proclamation was the direct beginning of the continental shelf system. But this Proclamation set apart some Latin American countries which have almost no continental shelf. They searched for another way to protect their coastal fisheries.

The first international instrument to proclaim a 200 nautical mile limit came into being on 18 August 1952 as the Santiago Declaration, which was signed by three Latin American countries that border the South Pacific: Chile, Ecuador and Peru. The Declaration reflects the desire of those states to develop the resources of their coastal waters. The Declaration asserts that “owing to the geological and biological factors affecting the existence, conservation and development of the marine fauna and flora of the waters adjacent to the coasts of the declarant countries, the former extent of the territorial sea and contiguous zone is insufficient to permit of the conservation, development and use of those resources, to which the coastal countries are entitled”. Therefore, the three governments “proclaim as a principle of their international maritime policy that each of them possesses sole sovereignty and jurisdiction over the area of sea adjacent to the coast of its own country and extending not less than 200 nautical miles from the said coast”.

The motivation for the establishment of the 200 miles territorial sea was economic. The reason for the current 200 nautical mile breadth of the EEZ derives from this Declaration.

The concept of the EEZ itself was the idea of the late Professor Frank X Njenga of Kenya, who brought up the idea in 1971 during the Asian-African Legal Consultative Committee (AALCC) in Colombo. It was ideally set up to protect the rights of coastal states, particularly developing countries with limited resources, to fully exploit the living resources the oceans off their coast and for their conservation and management, without interfering with other traditional international rights of the sea, such as the freedom of navigation and flight.

The concept of the EEZ in the Convention of the Sea is an essential element of the package of compromises or trade-offs. This concept has received rapid and widespread acceptance in state practice and is thus now considered by some to be part of customary international law.

In the Convention of the Sea, the important article in relation to the space elevator is Article 56 (Rights, jurisdiction and duties of the coastal State in the exclusive economic zone).

The first section states:

“In the exclusive economic zone, the coastal State has:
              ……
 (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;”

It is not sure at this point of time, which form the ground base of space elevator shall have. But it must have the form of any one, artificial island, installation or structure.

 And, under the provisions of this article, first section of Article 60 (Artificial islands, installations and structures in the exclusive economic zone) states:

“In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of:
(a) artificial islands;
(b) installations and structures for the purposes provided for in article 56 and other economic purposes;
(c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.”

And the second section of Article 60 states:

“The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.”

In this provision of Article 60, artificial islands are designated to be handled differently to installations and structures. But the Convention of the Sea does not provide any clear definition of these three concepts. So it is very difficult to distinguish between the three concepts theoretically. And, in the state practice of each country, many countries have not made any distinction between these three concepts[30].

Therefore, from the viewpoint of the space elevator, we must consider that there is no difference between territorial sea and the EEZ. As a result, we cannot establish the space elevator in the EEZ of a certain sovereign state.

 

4.  The continental shelf   
 

  Here we must consider the concept of the continental shelf. Some scholars think that the concept of continental shelf was absorbed into the EEZ concept. However, it is common belief that both exist still in parallel.

Under the Convention of the Sea, the definition of the continental shelf is very complicated. However, it is defined basically in the first section of Article 87 as:

“The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.”

Therefore, to a distance of 200 nautical miles from the baselines, the EEZ and the continental shelf overlap. But if the continental shelf continues further, we must consider the problem of continental shelf itself.

With regard to the continental shelf, the first section of Article 77 states that “the coastal State exercises sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources”. Suitable points for the construction of the space elevator are very limited on the Earth. In that sense, the installation point itself has the character of national resources. Therefore, we must admit that if the space elevator were on the continental shelf, it would be under the sovereign rights of the coastal state.

Article 80 of the Convention of the Sea is defined as “Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf”. Consequently, we cannot establish the space elevator on the continental shelf either, just the same as with the EEZ.

 

5.   The high seas  

  As a result, in order to avoid the above described problem, we need to establish the ground base of the space elevator on the high seas, not only outside of EEZ, but also off the continental shelf.

  Here, we must consider about the freedom of the high seas. Article 87 section 1 of the Convention of the Sea declares:

“The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
(snip)
(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI[31];”

  Of course, these freedoms to construct an artificial island, etc., are allowed to the extent of not infringing upon the freedom of the high seas of other countries. More exactly,

“These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.” (Article 87 section 2)

Ultimately, it shall be a matter of, what the word "due regard" means concretely. The legislative intent of this is that a particular country shall not unduly interfere with the lawful exercise by other countries.

  With regard to this point, the technical element of ground base mobility will be the decisive factor. Supposing that the ground base needs to move freely in a wide range in order to control the vibration of the cable or the upper part of the space elevator, and the movements are so sudden or rapid that there is very little time to give any warning to avoid the ground base for the ships passing through the area or fishing vessels in operation, this would constitute an infringement of freedom of the high seas.

　On the other hand, if the mobility of the ground base has enough predictability, that there are wide margins for the evacuation of any passing ships and fishing vessels in operation, it should not cause any particular problems for installation on the high seas.

 

III.  The space elevator and the law of the sky        

 

1.      Introduction
Similarly to the Law of the sea, we must consider the problem of space elevator in relation to the Law of the sky, under the framework of the Convention on International Civil Aviation (Chicago Convention).
  In the past, if people speak about the law of the sky, it meant only the Convention on International Civil Aviation. Nowadays, the word “Law of the sky” means also the outer space treaties.
 

2.      The history of the Law of the sky
The history of civil aviation law began with the Paris Convention of 1919. It was created for the purpose of freedom of flight. This convention has defined the concept “airspace” above the territory and the territorial waters. The airspace is the area under the “complete and exclusive sovereignty” of each state.
Subsequently, the Madrid Convention of 1926, then the Havana Convention of 1928, and finally the Chicago Convention in 1945 were signed. In these conventions, the existence of "airspace" above the territory and territorial waters was recognized. However, the boundary between airspace and outer space is still unsure. This is a serious problem in relation with the Bogota Declaration.
But, as far as we establish the space elevator straight stretching upward from the high seas on the equator, the boundary between airspace and outer space is not a major problem.

 

3.      Relation to the Law of the sky
As a result, in relation to the civil aviation convention, legal issues which need to be considered seriously constitute only one. That is, every tower-shaped construction needs aircraft warning paint for the daytime and aircraft warning lights during the night[32]. In the novels in which the space elevator appears, the cable of the space elevator was often drawn as a thin, almost invisible line extending towards the sky.[33] But it constitutes a breach of the Chicago Convention.
As the space elevator is the gate to the stars for us all the mankind on the Earth, the amount of air traffic around the ground base will be quite a lot after the completion of construction. Therefore, in order to ensure the safety of aviation, aircraft warning lights during the night and aircraft warning paint for the daytime is a prerequisite condition.


 

 

IV.   Conclusion       
 

Legal answers often induce technical challenges.

According to the Outer Space Treaty, the space elevator must be established by the international organization. Particular state or private company cannot establish without the change of Outer Space Treaties.

According to the Convention of the Sea, the ground base of the space elevator must be located more than 200 nautical miles far away from the nearest coast. Therefore, on the ground base, there must be at least an airport and seaport. As a consequence; ground base must be a large artificial island with a city.

 According to the Chicago Convention, we need the tower in order to attach the illumination and paint around the cable of the space elevator. Normally, the upper limit of the flight path of airplanes is perhaps about 10 km. As a consequence; we need to build up the 10 km high shield tower around the space elevator. The shield tower works at the same time to protect the space elevator against lightning or typhoons. Of course, we can locate the ground base on the top of the 10 km high tower. It is not a matter of legal, but a matter of technology.

 In order to develop the technology for the space elevator, we must set down these conditions as prerequisite.


[1] For example, the United Nations Convention on the Law of the Sea was proposed in 1967, adopted in 1982 and enforced in 1994 requiring a total 27 years from proposal to effectuation.

[2] The formal name of the Outer Space Treaty is the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”

[3] There is the problem of whether a customary law can be established in a short period or not. The20th February 1969 verdict of the International Court of Justice (on the North Sea Continental Shelf Cases) was positive. Cf. Bin Cheng, “United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law?” in ‘Studies in International Space Law’ (Clarendon Press, 1997), pp.125-149.

[4]  To date, the Outer Space Treaty had been ratified by 100 countries and signed by 26 countries.

Source = http://www.oosa.unvienna.org/oosatdb/showTreatySignatures.do

[5] Full text of Article 2 of Outer Space Treaty is as follows:

“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.”

[6] Benjamin H. Jarrell has insisted that “geosynchronous radio satellites permanently occupy an orbital slot” (“International and Domestic Legal Issues Facing Space elevator Deployment and Operation” in ‘Loyola Law and Technology Annual Vol. 7:1 spring 2007’ of Loyola University New Orleans College of law p.91).

However, lifespan of geosynchronous radio satellites is only few years. The lifespan of a Space Elevator is limitless, or at least we hope so. A Space Elevator would be the first semi-permanent construction in the universe.

[7] Tunguska Explosion: On June 30th, 1908, an immense explosion occurred in the region of Tunguska, Siberia. The explosion is believed to have been caused by the air burst of a large meteoroid or comet fragment at an altitude of 5 to 10 kilometers above the Earth’s surface.

[8] Full text of Article 4 of the Outer Space Treaty is as follows: “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental 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 require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, 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 organization.”

[9] IBRD borrows at attractive rates on the capital markets thanks to its triple-A status that it has had with credit rating agencies since 1959. This has enabled it to borrow in U.S. dollars, for example, at an overall funding cost that comes close to that of the U.S. Treasury. IBRD enjoys its high credit rating because it is backed by the capital commitments of its 186 shareholder governments.

Source: http://web.worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/EXTIBRD/0,,contentMDK:21116492~menuPK:3126966~pagePK:64168445~piPK:64168309~theSitePK:3046012,00.html

[10] The total land area of all continents on the earth is 148,647,000 square kilometers (57,393,000 square miles), or 29.1% of earth's surface (510,065,600 square kilometers / 196,937,400 square miles).

[11] The exact name of Moon-treaty is “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.”

[12]  The Inter-Agency Space Debris Coordination Committee (IADC) is an international governmental forum for the worldwide coordination of activities related to the issues of man-made and natural debris in space.

　The IADC member agencies include the following:ASI (Agenzia Spaziale Italiana) , CNES (Centre National d'Etudes Spatiales) , CNSA (China National Space Administration) , CSA (Canadian Space Agency) , DLR (German Aerospace Center) , ESA (European Space Agency) , ISRO (Indian Space Research Organization) , JAXA (Japan Aerospace Exploration Agency) , NASA (National Aeronautics and Space Administration) , NSAU (National Space Agency of Ukraine) , ROSCOSMOS (Russian Federal Space Agency) , UKSpace (UK Space Agency)

[13]  The Subcommittee heard the following presentations:

(a) “Space debris mitigation mechanisms in Japan: the case in JAXA”, bythe representative of Japan;

(b) “Implementation mechanisms for space debris mitigation guidelines byDLR”, by the representative of Germany;

(c) “The Russian Federation’s activities on space debris mitigation in near-Earth space: examples of implementation of the COPUOS Space Debris Mitigation

Guidelines”, by the representative of the Russian Federation;

(d) “Requirements on space debris mitigation for ESA projects”, by theobserver for ESA.

Cf= http://www.oosa.unvienna.org/pdf/reports/ac105/AC105_935E.pdf

[14] Cf=http://www.oosa.unvienna.org/pdf/reports/ac105/AC105_990E.pdf

[15] The exact name of Moon-treaty is “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.”

[16]　These Data comes from the FAQ（Last updated July 2009）of the NASA Orbital Debris Program Office.

http://orbitaldebris.jsc.nasa.gov/faqs.html#top

[17]  M. Endo, "Demonstration of AGIL, an Instantaneously Operating Chemical Laser," J. Jpn. Laser Proc. Soc. 17 (4) (2010), pp. 62-64

[18]  Jerome Pearson: Enhancing Space Elevator Safety by Active Debris Removal

[19]  The exact name of Space Liability Convention is“Convention on International Liability for Damage Caused by Space Objects”

[20]  Article 2 of Space Liability Convention said

“A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight.”

And Article 3 said

“In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.”

[21]  The exact name of Registration Convention is “Convention on the Registration of Objects Launched into Outer Space.”

[22] Cf. Arthur C. Clarke, “The Fountain of Paradise”.

     Charles Sheffield, “The Web between the Worlds”.

[23] Cf. Bradley C. Edwards & Eric A. Westling,“The Space Elevator”, BC Edwards, p113.

[24] Suez Canal case: the Suez Canal had been owned by the Universal Suez Ship Canal Company, the Egyptian private company whose stock holder was France, UK and USA. But Egyptian President Nasser nationalized the canal unilaterally in 1956.

[25] Panama Canal case: USA has owned the canal itself and shore district of it under the Hay-Bunau-Varilla Treaty which was signed on 1903, by the United States and Panama. But under the strong demand of Panama, the Torrijos-Carter Treaties were signed on 1977, which abrogated the Hay-Bunau- Varilla Treaty. The treaties guaranteed that Panama would gain control of the Panama Canal after 1999.

[26] Bogota Declaration: From 29 November to 3 December 1976, the equatorial states of Ecuador, Colombia, Brazil, Congo, Zaire, Uganda, Kenya, and Indonesia met in Bogota, Colombia “with the purpose of studying the geostationary orbit that corresponds to their national terrestrial, sea, and insular territory and considered as a natural resource.” The Declaration claimed the right of equatorial states to exercise national sovereignty over the arcs of the geostationary orbit (GSO) that are directly over their territories. This claim is in apparent contravention to the Outer Space Treaty of 1967, which states that “outer space... is not subject to national appropriation by claim of sovereignty.” However, the Bogota Declaration asserts that “there is no valid or satisfactory definition of outer space,” and that the GSO “must not be considered part of the outer space.”

[27] The effectuation of the Convention of the Sea needs more than 60 countries’ ratification or accession (Article 308). Guyana became the 60th state to sign the Convention of the Sea.To date, 162 countries and the European Community have joined in the Convention of the Sea.

[28] Article 3 of the Convention declares:

“Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”

[29] Exact name of the proclamation is “Proclamation on U.S. policy concerning natural resources of sea bed and fisheries on high seas”. About the detail of this proclamation, please see next address.

http://www.ibiblio.org/pha/policy/post-war/1945-09-28a.html

[30] Cf. U.N. Law of the Sea Bulletins, Nos. 1- 70: National legislation on the exclusive economic zone.

http://www.un.org/Depts/los/doalos_publications/LOSBulletins/Bulletin_repertory.pdf

[31] The word, “Part VI” means the Part VI of the Convention of the sea, in which the articles of continental shelf are described.

[32] The Annex 14 (Aerodromes) Chapter 4.3 (Objects outside the obstacle limitation surfaces) of Chicago Convention recommends as follows:

4.3.1 Recommendation? Arrangements should be made to enable the appropriate authority to be consulted concerning proposed construction beyond the limits of the obstacle limitation surfaces that extend above a height established by that authority, in order to permit an aeronautical study of the effect of such construction on the operation of aeroplanes.

4.3.2 Recommendation? In areas beyond the limits of the obstacle limitation surfaces, at least those objects which extend to a height of 150 m or more above ground elevation should be regarded as obstacles, unless a special aeronautical study indicates that they do not constitute a hazard to aeroplanes.

Note? This study may have regard to the nature of operations concerned and may distinguish between day and night operations.

[33] For example, Arthur C. Clarke and Frederik Pohl “The Last Theorem” 2008,

 Frank Schatzing “Limit” 2009 etc.