Geoscience Reference
In-Depth Information
11.3.1 The res communis omnium: the high seas and the OST
The freedom to exercise space activities, intended as exploration and use, granted in space
law, presumes the establishment of a common area. This approach has received support
among governments, including both neutral and non-aligned, in debates within the United
the law of the high seas is more appropriate than air law because of the customary freedoms
of navigation and exploration characterizing these areas beyond the limits of national juris-
diction. Both the high seas and space indeed concern areas not subject to national jurisdic-
tion, but the respective legal regimes have evolved in different contexts.
The law of the high seas was shaped over a long period dating back to the 17th century,
when Grotius, in his treatise
Mare Liberum
, theorized that the high seas were a free area
to all states for traditional activities, for passage, and use without preventive notification or
authorization. These freedoms played a fundamental role in the development of internation-
al trade and were essential in the governance of these maritime zones, according to the
res
communis omnium
principle.
The Geneva Convention codified the law of the sea only relatively recently, in 1958
(Convention on the High Seas of 29 April 1958, entered into force on 23 June 1961(450
UNTS 11)). The enjoyment of the customary freedoms provided for by the Geneva Conven-
tion on the High Seas establishes the availability of this part of the sea to all states for navig-
ation, fishing, laying submarine cables and pipelines, and flying over (Geneva Convention,
Art. 87). The United Nations Conventions on the Law of the Sea (UNCLOS), concluded
on 10 December 1982 and entered into force on 16 November 1994 (1833 UNTS 396), ex-
pressly added the freedoms to construct artificial islands and other installations (UNCLOS,
Arts. 58 and 60).
Conversely, space law was from the beginning the object of conventional regulation.
Its fundamentals were negotiated, principally by the superpowers, over a short period, given
the urgency of the situation; at the time, outer space was, from the legal standpoint, a
tab-
ula rasa
. The general consensus of the states within the United Nations Ad Hoc Committee
