plj volume 44 number 5 -03- gregorio san agustin, jr - the philippines and the development of space...

8/12/2019 PLJ Volume 44 Number 5 -03- Gregorio San Agustin, Jr - The Philippines and the Development of Space Law

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THE PHILIPPINES AND THE DEVELOPMENTO F SPACE LAW*Gregorio San Agustin, Jr.**

I. INTRODUCTION

Preliminary Statement.Space law is by no means settled. But certain principles in interna-tional law t ha t affect th e development of spa ce law are now being evolvedby international bodies, th e writings of legal scholars, a n d th e co nd uc t ofstates. Thus, space law evolution bears watching since it does, in a verydirect way, affect our nation as well as all other developing nations.Statement o the Problem.

Space la w is by its very na tur e th e most ad va nc ed of legal studiesan d if th e Philippines has n ot c on tribu ted to its development i t may be at-


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738 PHILIPPINE LAW JOURNAL [VOL. 43ticipation, not only for prestige purposes, but principally because the de-fense of the country is at stake.*Scope of the Study.

This is a study on some aspects of space law which are believed to berelevant to our national security, particularly the sovereignty question; thebenefits that may be derived from some space activities as well as pros-pective advantages of present space consciousness in relation to the eco-nomic, political, military, and psycho-social fields.Assumptions.

The Philippines does not have the capability to conduct its own spaceprogram. This field of activity appears to be exclusively available to theworlds super powers or to those coiintries enjoying economic prosperityl ike France, England, Canada, etc. But the fact that the Philippines is eco-nomically poor does not mean that the Philippines cannot contribute towhat now appears to be a united world effort.


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740 PHILIPPINE LAW JOURNAL [VOL. 44Therefore, by the principles of exclusion, what is not internal is ex-

ternal; and what is external is dependent upon what is the subject ofcommon consent of states.

In other words, international law (and therefore the law that restrictssovereignty) exists to the extent of what has been recognized by, or com-monly assented to, by other states.

This principle finds support in the decision in the Island of PdmasCase g pertinent portion of which states:Sovereignty in the relation between states signifies independence.

Independence in regard t a portion of the globe is the right to exercisetherein, to the exclusion of any other state, the functions of a State. Thedevelopment of the national organization of States during the last fewcenturies and, as a corollary, the development of international law haveestablished the principles of the exclusioe competence of the State in regardto its own territory in such a way as to make it a point of departurein settling most questions that concern international relations. . . .

Philippine Territory.


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19691 PHILIPPINES AND THE DEVELOPMENT OF SPACE LAW 741considered as maritime territorial waters of the Philippines for purposes ofprotection of its fishing rights, conservation of its fishery resources, en-forcement of its revenue and anti-smuggling laws, defense and security,and protection of such other interests as the Philippines may deem vitalto its national welfare and security, without prejudice to the exerciseby friendly foreign vessels of the right of innocent passage over thesewaters. . . .It is noteworthy from the foregoing official position of the Philippine

Government that with respect to the seas that are national or inland wa-ters, they are considered as necessary appurtenances of the land terri-tory, but all other water areas although with in the limits of the Treaty ofParis may be used for innocent passage by friendly foreign vessels and areconsidered as maritime territorial waters for purposes of protection offishing rights, conservation of fishery resources, enforcement of revenueand anti-smuggling laws, defense and security, and protection of suchother Philippine interests.11

With respect to air space, or the third dimension of a states territory,the rule, as established by the Convention Relating to the Regulation of


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742 PHILIPPINE LAW JOURNAL [VOL. 44has a right to protect itself by preventing a condition of affairs in whichit will be too late to protect itseK.16

a justification is presented for the establishment of an air identificationzone whose limits far exceed the maritime territorial waters.

111. SPACEW h e r e s Space?

It is the general consensus amongst space law scholars that, as a rulespace must begin where air-space- ends.I7

We again resort to the principle of exclusion. But, this method seemsnot suitable because of a lack of an official definition for airspace. Inan article published in the American Journal of International Law (1957)entitled Legal Terminology for the Upper Regions of the Atmosphere. . . the question was asked, what is Airspace, but after a lengthy discus-sion, the same was not completely answered. A dictionary of the U.S. AirForce was cited, but the definition des not actually define the term.lg


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19691 PHILIPPINES AND THE DEVELOPMENT OF SPACE L W 743clude any space where air may be found. And since traces of air may befound up to an extent of 10,000 miles above the earth, then sovereigntyextends to that height. This groups argument seems to find support inthe French and Italian equivalents of the term airspace as espace atmo-spherique and spazio atmosferico, respectively.

2 . The Limited Theory. -This theory is premised on the assumptionthat sovereignty of a subjacent state cannot extend up to infinity. Con-sidering that the Chicago Convention was intended to cover InternationalCivil Aviation, then airspace could only mean that layer in the atmo-sphere where gaseous air is sufficiently dense to support instrumentalitieswhich can derive support in the atmosphere from reactions of the air.

3. Theory of E ffe ct iv e Co ntro l . -Th is theory explains that the up-per limits of sovereignty extend to whatever height which the subjacentstate may control at any given time.

This theory is one of the most controversial on the subject.4. The Zone Th eories . -


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744 P H I L I P P I N E LAW JOURNAL [VOL. 4 3to an unrestricted height. Should this be the official position of theRussians, then all their satellite orbital flights have violated the sovereign-ties of countries over which -their satellites passed.The UN Role in the Definition of S p a c e . -

On December 13, 1958,23the UN General Assembly established anAd Hoc Committee on the Peaceful Uses of Outer Space composed ofmembers from 18 nations. This A d Hoc Committee was made a permanentcommittee on December 12, 1959 24

As a result of the deliberations of the permanent committee, a draftresolution on International cooperation in the peaceful uses of outerspace, sponsored by all the members thereof, was unanimously adoptedby the General Assembly on December 20, 1961, as Resolution No. 1721( X V I ) *25

following principles:Resolution No. 1721 ( X V I ) of the General Assembly established the


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19691 PHILIPPINES AND THE DEVELOPMENT OF SPACE LAW 74sc. Outer space and celestial bodies are not subject to national ap-

propriation by claim of sovereignty, by means of use or occupation, or byany other means.

These two resolutions of the U N General Assembly provide somemeasure of significant and meaningful determinations of the legal statusof outer space.

But to go back to the original question where does airspace end?The UN resolutions, aforestated, beckon additional questions. Since theUN resolutions deal with outer space is there a layer called inner space?

The UN documents make mention of States launching objects intoorbit,27 to advance the state of atmosphere science and technology soas to provide greater knowledge of basic physical forces affecting climateand the possibility of large-scale weather modification,z8 or for allocationsof radio frequency bands for outer space activities and the establishmentof effective operational satellite communication,29 all of which, it is sub-mitted, refer to space or satellite activities or facilities which orbit theearth at any distance from 100 miles to thousands of miles.


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746 PHILIPPINE LAW JOURNAL [VOL. 44of national appropriation by claim of sovereignty, and space as well ascelestial bodies are free for exploration and use by all states, then thenecessity for order among states in this new realm becomes even morepronounced. On the other hand, there will always be a nagging fear amongstates, specially the developing nations, that the rules of international lawnow emerging in the realm of space may not be complied with by thosestates engaging in satellite or space vehicle launchings, in spite of therules, because of the lack of established precedents, unlike the law of thesea.

In a well written note in the Harvard Law Review,32 entitled Na-tional Sovereignty of Outer Space, the following assuring comments werestated:

The system of international law has been variously characterized asdecentralized, horizontal, and primitive. These terms point to the criticalfact that the enforcement of international law rules is largely vested inthe individual states that are conceived to be bound by them. This precludesa legal order built on force, the essence of which is a community monopoly


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19691 PHILIPPINES A N D THE DEVELOPMENT O F SPACE LAW 747a rule may exacerbate international tensions, encourage a general dis-respect for the remaining rules, and undermine related O r denvea rules.Thus, while international law rules may originate entirely volitionally asgeneralizations of national policy and may frequently be preserved bythe continuing mutuality of interests among nations, they may also acquireprescriptive force and be obeyed as positive laws-not adhered to aspolicies. This is not to say that a given rule is allocable to one of twomutually exclusive categories; the diversity and uncertainty of modesof enforcement-varying as they do from slight quavers of public opinionto the prospect of thermonuclear retaliatiun-entail a range of rulesthat differ in the degree to which they obligate nations. Also, it is clearthat rules, however backed by the threat of sanctions, will not always beobeyed; where national survival is a t stake, no rule is likely to detera nation from acting. Nevertheless the remedial and deterrent effective-ness of the rule remains, insofar as any such violation will be punishedby the variety of enforcement features behind the rule.It is the authors belief that states will not attempt to abrogate any

rule in space agreed upon precisely because the rules are new rules cover-ing a new realm, and because an abrogation would produce a generallydeleterious effect on international order. On the contrary, it is believed


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19691 PHILIPPINES AND THE DEVELOPMENT O F SPACE LAW 749or to test any type of weapons and conduct military maneuvers on cel-estial bodies (this is similar in phraseology to the Treaty on Antartica ofDecember 1 1%9), there are some matters which need clarification.Examples: Is the storage (not testing) of weapons allowed in celestiaIbodies? I s the establishment of military bases, installations and fortifica-tions, or the testing and storage of any type of weapons and conductingof military maneuvers in the moon (not celestial bodies) permissible?And, a host of others.

2. There is no proviso in the Treaty for the return of space vehiclesto a launching state. This may be incorporated in ArticIe V I I I of theTreaty.

3. The general liability for damages of a state that launches an ob-ject into space and the state from whose territory the object is launchedunder Article VII of the Treaty is not comprehensive enough and re-quires further clarification. Moreover, the procedure for the recovery ofdamages should also be spelled out because under present state practice,states regard the sponsoring of claims by nationals as entirely within their


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750 / PHILIPPINE LAW JOURNAL [VOL. 44Iege, one of the ~eminar-group~n the 2nd Regular Course defined Na-tional Security as the ability of a nation for all time to secure and main-tain the highest level of social and economic life for the people: to ensurepolitical independence, domestic tranquility and national dignity.

Every Filipino should be national-security-conscious7 for every activitythat redounds to the benefit of our Republic or its people will enhance thenational security of the Philippines. The path of least resistance in thedeliberations in international bodies appears to have been established b ysubmitting to the leadership of nations with established spheres of in-fluence. While it might very well be that some nations lead because to doso would protect the interests of the nations that are led, yet the morerealistic view should be that nations should lead because their own na-tional interests dictate such a course of action. If the USA does this, itshould not be blamed. I t is of common knowledge that the USSR practicesthe same thing. The point is that Filipinos must act because such actionis good for the Philippines. If the act of the Filipino is also good for an-other country, this is merely incidental.

In the family of nations, the Philippines needs the prestige of act-


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19691 PHILIPPINES AND TH E DEVELOPMENT OF SPACE LAW 751should occupy f irst priority by securing the signatures of all states. I t bearsemphasis that the Treaty contains a liability for damage clause, and allnations, specially those who do not engage in space activities, stand tobenefit by any assurance of liability by any State that launches an ob-ject into space. If it is the position of France that it feels not obligatedunder the terms of the UN Resolution because a UN resolution is notlegally binding (b ut an international agreement is), then it would be tothe interest of all nations who stand to benefit from any such claim fordamages that all persons who may become liable shall be legally obligated.And since France is not yet a signatory to the Treaty although it alreadyhas the capability to launch space vehicles, then it would be to our inter-est that she signs the Treaty.

Under these circumstances, the support of all developing nations tocause the unanimous signing of the Treaty is practically assured.

2. Philippine membership in the COPUOS will help a great deal.3. An attempt to organize a convention outside of the UN forum or

to amend the Treaty through the UN may also be resorted to.


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752 P H I L I P P I N E L A W J O U R N A L [VOL. 44have an even more flat re-entry flight path at distances as great as 7,000to 10,OOO miles, at a height of 25 to 60 miles.4oWith a re-entry flight dis-tance of 10,000 miles which is nearly one-half the circumference of theearth, one can imagine the number of airspaces over states the spacevehicle passes through. And certainly a height of 25 to 60 miles is not outerspace, considering that an aircraft with a ram-jet engine can operate at aheight of 25 miles,41 or that the X-15 can operate up to a height of 47miles.42

It is hoped that no precedent was established by the effect of thelaunchings of orbital satellites on the perpendicular limitation of sover-eignty of states, so that it may not be expected that launching paths andre-entry paths of spacecraft will constitute another limitation (this timeState sovereignty over airspace will become even lower) .

I t may be recalled that one of -the basic premises of any space scholarsto the proposition that space is free from any claim of sovereignty andwhich later led to the adoption of the 3 U N Resolutions whereby theuse and exploration of outer space shall be for all states and is not subjectto national appropriation was the fact that not one State ever protested


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19691 PHILIPPINES AND THE DEVELOPMENT OF SPACE LAW 755decided only on the basis of the national law c ~ n c e r n e d . ~ ~herefore,it is Philippine law which determines whether the UN resolution^^^ orthe Revised Penal Code, Republic Act No. 3931, or any other local law,that should apply.

Secondly, the first phrase of Article 2 of the Revised Penal Codesupra, which states that except as provided in the treaties and laws ofpreferential application, is meaningful in the sense that the reservationas to non-enforceability of the provisions of the Revised Penal Code is onlyin favor of the provisions of treaties or laws of preferential applicationwhich provide otherwise. It will be recalled that the Treaty has not yetbeen ratified.

Finally, this writer believes that since the two UN Resolutions do notconstitute international law, which view is similar to the views sharedby the delegations of France, Australia, and the Socialist blocs in theLegal Sub-committee of the COPUOS, i.e., until an international agree-ment is entered into, then there is no occasion for conflict yet between


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756 PHILIPPINE LAW JOURNAL [ V O L . 44informtion to be obtained is to be used to the injury of the Philippines. . .or to the advantage of any foreign nation, goes upon, enters, f l ies over orotherwise obtains information concerning any vessel, aircraft, work ofdefense. . or other place connected with defense. . which, in relationto Article 10 of the Revised Penal Code which provides that the Codeshall be supplementary to special laws unless said special laws speciallyprovide the contrary, may serve as a basis to oppose and/or protest thelaunching of reconnaisance satellites on the ground that it is violative ofPhilippine laws on national defense and is therefore a non-peacefulpurpose.

3. J. F, McMahonG0 uggests three measures which might be takenagainst reconnaisance satellites, to wit:

a. Retorsion which consists of an unfriendly act or acts whereby onestate answers objectionable conduct of another state in a retalia-tory manner, although the retorsion itself must be a legitimateact and must not be contrary to international law.


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19691 PHILIPPINES AND THE DEVELOPMENT O F SPACE LAW 757The author proposes another alternative where accepted rules over

existing reals, like the law of the sea,61 may be applied as a basis for aPhilippine position.Basically, we must accept that even if the Treaty is not ratified, stateswill not claim sovereignty over outer space. This receipt is tenable notsimply because no state can now actually control outer space but becauseeven those states who are most likely to possess the means to actuallycontrol outer space also agree to inhibit themselves from asserting sov-ereignty over the same by the fact of their being signatories to the Treaty.This proposition is somewhat analogous to the principle of freedom of theseas.

On the other hand, the political independence of the Philippinesmust be protected. Likewise, security ncluding security against espion-age s well as Philippine customs, fiscal, immigration and sanitationlaws must be enforced, and infringements thereof must be prevented. Bythe principles in the laws of the sea, the establishment of a contiguous zoneprovides for a device responsive to such requirements. While the establish-ment of a contiguous zone in outer space identical to a continguous zone


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758 PHILIPPINE LAW JOURNAL [VOL. 44ippine ComSat station in Teresa, Rizal, the Philippines now enjoys mo-dern satellite communication facilities. Our ground facilities are not yetcomplete, however, and full capability is awaited in the near future.Other Fields.

U N Resolution No. 1721 ( X V I ) envisions space activities for the ad-vancement of ( a ) weather modification; ( b meterology; and (c) commu-nications, through the World Meteorological Organization (WMO) andInternational Telecommunication Union ITU ) both UN specializedagencies. The Committee on Space Research (COSPAR) of the Interna-tional Council of Scientific Unions, another U N agency, is primarilycharged with providing the world scientific community with the meansfor cooperation and collaboration in space research.

It has been suggestedG3 hat space science is not restricted to thosenations who have the capabilities for the launching of satellites and spaceprobes, but the other countries should engage in otherwise potentially


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19691 PHILIPPINES AND THE DEVELOPMENT OF SPACE LAW 759As of April 30, 1967,G7he United States had working partnerships

with about 70 countries in various space programs. Over 60 stationsthroughout the world read-out pictures from US. weather satellites aidinglocal forecasts, and a special communication link has been establishedbetween Moscow and Washington for the exchange of conventional andsatellite weather data. On July 8, 1964, a Memorandum of Understandingwas entered into between NASA and the European Space Research Or-ganization (ESRO), which affirms a mutual desire to undertake a co-operative program of space research by means of satellites, by virtueof which NASA and ESRO will exchange all scientific information result-ing from the cooperative program and will make the results freely avail-able to the world scientific community. All these demonstrate the wealthof possibilities for any country desirous of participating in space activitiesunder a trans-national arrangement.

It is essential that the Philippines participate actively in space activ-ities. For the benefits of such participation, no matter how meagre, willreturn a hundredfold. The benefits of a space program to a cooperatingparticipant in such a program are stated by Dr. Wernher von Braun,

760 PHILIPPINE LAW JOURNAL [VOL. 44


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survey program. These data can be used for prospecting for oil and otherminerals, detection of areas afflicted with tree diseases, flood prediction,ice movement, wildlife migration, map up-dating, beach erosions, lake andriver pollution by cities and factories, fish habits, and a host of otheruseful purposes.

But, as Dr. von Braun to be meaningful, a worldwide re-sources management system requires support on a world-wide basis. Allnations that wish to benefit from its enormous potential must participatein its operation. x x x The Earth resources system I have described here is,of course, not yet a reality. Many tasks remain to be done before we shallbe ready to orbit an operational system.

With the certainty of overpopulation in the next six decades, it wouldindeed be reckless not to participate in any program that will assure thesurvival of the next few generations.

In the report submitted by President Johnson to the U.S. Congresslast January 30, 1968, covering the calendar year 1967, it states that dur-ing the 10 years of space launchings, the 1J.S. launched 524 payloads


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19691 PHILIPPINES AND THE DEVELOPMENT OF SPACE LAW 761The requirements of national security, security from espionage, and

of the enforcement of the laws on customs, fiscal, immigration and sani-tation (hereafter referred to as the right to self-protection) necessitate aPhilippine position that will preserve the said right to self-protection. Thisproposition is not expected to be debatable p to this point.

It is, however, suggested that the rights of a state may extend evenin outer space, but only for specific or limited purposes, i.e., for the as-sertion of the right to self-protection, similar to the purposes for whicha contiguous zone is established in the seas.

Such an attempt to assert the right to self-protection up to an altitudehigher than the height of orbital flight may be exercised within specificlateral boundaries, say, the limits of a states ADIZ boundaries, and incase of land-locked countries, their natural boundaries. This propositionis necessary to counter an anticipated justification by the superpowersthat all their space activities, including those activities conducted withinthe air spaces of other states, are for the preservation of their own na-ional interests.


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762 PHILIPPINE LAW JOURNAL [VOL. 44for peaceful purposes, then the launching state should be willing to sub-

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