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SOVEREIGNTY AND OWNERSHIP IN RELATION TO OUTER SPACE …
is based on the
registration of space objects
. This jurisdiction should be distinguished
from
personal jurisdiction,
which is based on the nationality of a given person.
The state of registration exercises its jurisdiction not only over the objects but
also over the persons (if it is not a case of strictly personal jurisdiction) and things
on board. It is therefore
a extension of jurisdiction of the state of the flag or registration
on persons
which are found in these objects. Some authorities call this transfer of
jurisdiction of the state of the flag or registration from the object on persons
quasi-
territorial jurisdiction.
31
This concept should not be accepted, because it could
lead to a perception of so called “fictive state territory”. Malenovský
32
calls the
registration in the national register which refers to some floating and flying means
of transport (ships, planes, space objects, floating platforms) matriculation.
Whatever term is used, it can be said that jurisdiction based on
registration
of space objects
is the most suitable means for exercising authority in outer space
from the perspective of regulation of important aspects of
private activities,
such
as
intellectual property.
33
The USA, for example, supplemented their legislation
pertaining to patent rights, which is generally based on territorial principle with
the addition that inventions made in outer space
require registration
of the USA.
Dunk,
34
however, claims that such an extension of jurisdiction can only be applied
to space objects and possibly to activities connected directly with particular space
objects. As soon as a permanent settlement on the Moon is possible, the restrictive
nature of the jurisdiction will be apparent.
Jurisdiction of the state on whose registry the object is listed can apply both
to the nationals of that state and
foreign organizations and nationals
who are under
the jurisdiction
35
of that state. Jurisdiction of the state of registration can apply
to various persons without consideration as their nationality. Article VI of the
Space Treaty should be interpreted this way. A state party to the Treaty authorizes
and continually supervises activities of
non-governmental entities
whose objects are
listed in the registry of that state without respect to their nationality.
31
See for example Schwarzenberger, G.
Manual of International Law
, 4th edition, Stevens and Sons,
London, 1960, p. 87, or Cheby, B. in: A. Csabafi,
The Concept of State Jurisdiction in International Space
Law
, Hague, 1971, p. 57, or Jennings, R.Y.
General Course of International Law
, Recueil des Cours
1967-II, p. 460.
32
See Malenovský, J.
Mezinárodní právo veřejné, obecná část
, 2. vydání, Masarykova Univerzita, nakl.
Doplněk, 1997, p. 93.
33
See Dunk, F.G. The Dark Side of the Moon. The Status of the Moon: Public Concepts and Private
Enterprise. 40th Colloquium on the Law of Outer Space. Turín, 1997, p. 122A.
34
ibid.
35
See for example Article 9, para. 2 of the Law of the Russian Federation about Space Activity. Decree
No. 5663-1.