Introduction

As humanity is today well into the 21 st century, we witness the appearance of new prospects for the utilization and exploitation of outer space, making it increasingly "contested, congested and competitive" 1 . Many aspects of our daily lives have already come to depend on our occupation of Low Earth Orbits (LEO) and Geostationary Earth Orbits (GEO). As the number of space-related activities increases exponentially though, most notably in its commercial facet, so does the need for new spaceports and adequate regulations for the increased space traffic that will follow. The "big sky" theory which protected airborne travelers for almost two decades before becoming obsolete will soon suffer the same fate in regard to space travel.

The future of space activities partially depends on the answer from the international community to this problem. Up until now, international involvement in the regulation-making process regarding space traffic management and spaceports regulations has been sparse, save for a few non-binding documents. But as the number of spaceports aimed at commercial activities grows (private satellite launching, suborbital flights/space tourism, deep space mining), the adoption of a legally binding treaty seems unavoidable. Such a document would not only need to increase the level of cooperation between spaceports, but with airports as well. This paper will aim at proving that the establishment of space traffic rules would need to clearly define some of the terms used in the earlier space treaties, regulate launch activities and suborbital spaceflight, institutionalize information and data sharing, and offer an adequate delimitation of outer space as well as a solution to the increasingly problematic space debris issue. Finally, it is conceivable that such a treaty could establish an international organization charged with centralizing informations concerning space traffic, coordinate its actions with the International Civil Aviation Organization (ICAO) and settle disputes between members according to the 1972 Liability convention 2 and the new rules of space traffic.

But is the international community willing to take such a step?

The unregulated increase in space activities and its consequences

The Cold war Space Race, which arguably began in 1957 with the launch of the first artificial satellite Sputnik 1, was more of an ideological race and involved only two real actors (the ex-USSR and the United States of America). At the time, the idea was for the USA and the USSR to assert its technical and scientific superiority over the other, which led to great advances from a technological as well as a legal point of view. The present situation is notably different.

First, the objectives have changed and the conceded goal of contemporary space exploration is mostly of a commercial nature. The preeminence of telecommunications in our modern society, and the increasing development of private activities in the space sector have highlighted the intrinsic value of the "spectrum-orbit resource" and saw the development of a real commercialization of outer space by States. Whether the manufacture and operation of satellites and launchers, the use of satellite navigation in a civilian setting and its marketing by operators of GNSS systems, projects of orbital spaceflight and space tourism or the recent appearance of deep space mining companies, the sector is growing increasingly and promises not to stop there. The exploitation of outer space for both scientific and economic purposes in the future is therefore likely to rely more on the private sector.

Second, new players have emerged alongside the traditional space powers: China, India and Japan, for example, have considerably developed their space capabilities in recent years, especially in the context of scientific missions (eg manned spaceflight program for China, sending a scientific satellite on Mars successfully on the first try for India, and the deployment of a solar sail prototype for Japan ) but also for more "mundane" applications (these countries will or already have their own satellite navigation systems). They join the USA, Russia and the Member States of the European Space Agency in the fairly closed circle of spacefaring nations. Taking Europe as one "launching State", for calculation purposes, the number of states that actually engage in/license private companies to perform launches from their territory amounts to a total of 12 launching states3 .

But as the number of actors involved in space exploration as well as the scope of their activities continue to increase, so does the number of spaceports. As a consequence, space traffic is increasing in a comparable way to that of air traffic during the 20 th century. While aviation collision between two aircraft were extremely rare at first, as demonstrated by the "big sky" theory 4 , commercial aviation forced airways and air traffic control facilities to develop in order to keep pace with the increased activity. Accidents such as the 1956 mid-air collision between United Airlines and Trans World Airlines passenger airliners in uncontrolled airspace (resulting in 128 fatalities) 5 made evident the potential danger to the public and to aviation as a whole. Incidents such as the January 2007 Chinese ASAT test 6 or the February 2009 collision between the commercial Iridium and Russian Cosmos communications satellites7 had a similar impact on spacefaring nations, highlighting the need to consider how best to conduct safe and responsible operations in space and to promote those practices internationally. Unregulated space activities could however have dire consequences on humanity's ability to travel through space. An absence of regulatory framework could allow an exponential increase in the number of collisions between (potentially manned) space objects, resulting not only in the loss of materials and human lives, but cut the access to the space domain as well. Furthermore, the number of dangerous space debris present in Earth's orbit has drastically increased since the beginnings of space exploration, reaching the hundreds of thousands. It may not only cause malfunctions, sometimes beyond repair, on our satellite constellations, but also pose the threat of a potential implementation of the Kessler syndrome. Its resultant effects on world economies, information systems, and national security systems, are now fully acknowledged by spacefaring nations.

This problem has already been addressed by the Inter-Agency Space Debris Coordination

Committee that was established in 1993 by the major space agencies of the world, but without Launch safety and space traffic management are not dealt with in the present body of space law and are thus left to either separate international agreements or to national laws and policies. This lack of international rules concerning space traffic management can be somewhat explained by two factors. First, there is neither a dedicated international organization, nor a trade association responsible for the creation, and perhaps implementation, of an international space code of conduct.

Second, as national space launches mostly do not involve entry into foreign airspace, spacefaring nations usually apply their own national safety regulations, including navigation standards, to their governmental and/or private launch activities. The need for the coordination of these activities, as well as the harmonization of national rules and policies, has recently been emphasized by the aforementioned incidents as well as several scientific studies10 . It seems today that the adoption of an international agreement is the only viable option to ensure safety for future space activities. Such an agreement would need to address varied issues, both during the launch phase and in-orbit operations, in order to form a comprehensive and coherent legal regime for space traffic management.

Regulation of space activities in the Launch Phase

It is indeed necessary to first distinguish between the transportation of satellites, and other payloads into space and the possible return of the space vehicle concerned, and the operations of these satellites in orbit and beyond. The former poses different challenges from a traffic management point of view. While in-orbit operations may harmfully interfere with one another, the launch and return phases of such activities imply the use of airspace (national or international). This means potential interference with aircraft in flight, whose operations are regulated under international and national air law, and/or possible involvement of national air traffic management agencies, the International Civil Aviation Organization or, in Europe, the European Aviation Safety Agency (EASA for aviation safety) and Eurocontrol (for air navigation). In the past sixteen years, all twelve launching states needed only a total of 1,146 launches to create, in the launch phase, an annual average of -in theory-seventy-two potential interferences with aircrafts (including the thirtythree launches performed by Sea Launch from its floating launch platform in the Pacific Ocean, at a comfortable distance from the nearest airports or aircraft movements)11 . A Space Traffic Management Treaty would therefore also have to deal with several issues in order to guarantee the safety of launch activities during interactions between air traffic and space traffic.

In order to do so, an STM regime would first need to offer a precise delimitation of outer space. This issue has been discussed by the Committee on the Peaceful Uses of Outer Space of the United Nations (UNCOPUOS) for more than half a century (and is still on its agenda to this day) and most of the space-faring nations have set forth to give priority neither to the functionalist 12 nor the spatialist 13 approach. The advantage of the spatialist approach is that defining the applicable law based on the area would be easier, despite the activity's nature. Moreover, this approach would allow to specify the applicable regime based only on the occupied area, whatever the nature of the object or activity may be. It is the easier way to address the issue. On the other hand, the functionalist approach would require close observation of the activity's nature in order to determine whether it should be regulated by air law or space law. The functionalist approach seems more reasonable however, since space objects will be functionally identified by their telemetry, tracking, and control (TT&C) or operational capabilities. It may also have the flexibility of allowing any category of spacecraft or space activities within space regulations. This would greatly simplify the issue of space tourism (both orbital and suborbital spaceflight), as the vehicles used (seemingly capable of traveling in both air space and outer space) would not have to be regulated under two different regimes depending on the phase of the activity. Furthermore, Japanese Aerospace Exploration Agency (JAXA) has been developing a Super Low Altitude Test Satellite (SLATS), with high-resolution Earth observation sensor technology, which flies at a relatively low altitude of 200-300km. This altitude is comparatively lower than the orbiting altitude of a normal satellite (600 to 800km), while the International Space Station orbits at approximately 400km of Earth14 . But instead, a wait-and-see approach has been adopted by the international community up until now, as this ambiguity has not brought practical problems as of yet. However, the issue of regulating space activities remains, especially regarding to what extent the UN space treaties govern space activities.

The development of space activities is approaching a crucial point and the need for a delimitation of outer space is going to be essential in the near future.

Second, it seems important to resolve the matter of the absence of clear definition of "space object". The only definition in current international states that "[t]he term of 'space object' includes component parts of a space object as well as its launch vehicle and parts thereof" [START_REF]Convention on International Liability for Damage Caused by Space Objects[END_REF] . Space objects are the only subject to the Liability Convention and Registration Convention, as well as Article VII (State liability of damage) and VIII (registration of space objects) of the Outer Space Treaty, while Article VI of the Outer Space Treaty only regulates the "activities in outer space" [START_REF]Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies[END_REF] . Therefore, it is reasonable to assume that the subject matter designated as "space object" is a dedicated description for the Liability and Registration Conventions, that is to say only a part of the body of international space law [START_REF] Takeuchi | Concept of Suborbital Flights: Information from the International Civil Aviation Organization (ICAO), UNCOPUOSLSCOR, 49th Sess[END_REF] . While the satellite, launch vehicle, and trans-orbital vehicle (including rovers), obviously fall into the definition of "space object", space debris and suborbital spacecraft are more ambiguous. Space debris pose a problem only to in-orbit operations, and the question will be discussed hereafter, but a suborbital spacecraft can be a direct threat to air traffic as it is designed to travel through both air space and outer space, and retain a high potential to pass through air space more frequently than launch vehicles 18 . In the context of the ICAO, a "suborbital flight" has been loosely defined as "a flight up to a very high altitude which does not involve sending the vehicle into orbit" [START_REF] Van Fenema | Suborbital Flights and ICAO[END_REF] , traveling "just beyond the threshold of space" 20 , and can ultimately be used for point-to-point transportation. Moreover, suborbital spacecrafts indeed meet the definitions of aircraft 21 and aeroplane 22 , as defined by the Chicago Convention 23 . As a consequence, ICAO has warned the international community that suborbital spacecrafts should be regulated under international air law, at least when they share the same international air space of other aircrafts conducting international operations 24 . This was the inevitable conclusion from the safety point of view of aviation operation, and it illustrates the need to clearly define the notion of space objects as well as the applicable regime. Since the suborbital spacecraft used for space tourism is a hybrid type, there are two options: regulating it by applying all of the existing applicable regulations, or establishing a new category for regulation. While it would be simpler to establish a new category rather than to forcibly regulate through a set of existing regulations, the current political circumstances do not allow for the establishment of a new legal regime. Therefore, the only solution is to apply both air space and outer space regulations to the suborbital spacecraft. The idea would be to regulate it as an aircraft or aeroplane while it is being operated as such, and as a space object when it does not fall under either of these categories. The international regime for outer space, including a potential STM regime, should also be applicable to the suborbital spacecraft in order to reduce the area of lacunae of law [START_REF] Takeuchi | [END_REF] .

Finally, in regard to regulations during the launch phase, it seems imperative to implement a set of rules of coordination in order to allow the safe coexistence of launch activities and the usual air traffic. There are two ways to address this issue. First, a practical approach that focuses on coordination between the two authorities concerned and an exchange of informations between airports and spaceports. This is probably the best solution for years to come considering the still limited number of space-faring nations and launching states. Second, a legal approach that would work towards amendment of the definition of aircraft to include the launch vehicle or expand the responsibilities of aviation authorities to include launch vehicle operations. This approach will be more profitable when the growth of air and space traffic has made the coordination model less effective and/or when problems of governance in the coordination process threaten the safety of air space for national and foreign users 26 . It would theoretically be much easier to expand the competence of the national civil aviation authorities to include launch vehicle operations. For example, the German Aviation Code provides that "Space vehicles, rockets and similar flight objects are treated as aircraft as long as they are in air space." 27 . On the international level however, the legal approach might not be as easy to implement. The creation of "no fly zones" in international air space above a launch area (such as with the Sea Launch operation) would come into conflict with the principle of "freedom of overflight" over the high seas 28 , which would have to be dealt with by ICAO 29 . A launching state could also accept responsibility for providing the necessary air traffic services in portions of international airspace used for launch activities, but the Council of ICAO would have to approve the appropriate "regional air navigation agreement" 30 .

However, these solutions would imply many modifications of the ICAO, and the very few potential beneficiaries of such endeavor lack the political will to bring about these changes. The ICAO Council issued a working paper in 2005 31 regarding the potential involvement of the organization in the regulation of sub-orbital flights, however no actions were taken to further its role in the coordination of launch operations with air traffic. During the Legal Subcommittee of UNCOPUOS 2010 session on the definition and delimitation of outer space, the ICAO Secretariat was asked to make a 'comprehensive presentation on current and foreseeable civil aviation operations, with particular emphasis on the upper limit of those operations'. However the Secretariat limited itself to referring to the aforementioned working paper.

In conclusion, it seems as though the making of international regulations for launch activities is bound to be delayed for some time. While there is a need for a clarification of the definition of "space object" as well as the delimitation of outer space, the redaction of official rules concerning suborbital flights as well as the coordination of air and space traffic implemented by the ICAO, or at least a more active role in cooperation between states, is still pending. Political momentum as well as the small number of directly concerned states seems to prevent any international legal action. In the meantime, domestic coordination between the authorities respectively responsible for air traffic and space activities might be an ideal short-term solution.

However, a Space Traffic Management Treaty could still be of use for several issues, mostly involving operations taking place in orbit and beyond.

Regulation of space activities in orbit

While the question of the interaction between air space and outer space during the launch phase pose a certain number of questions about delimitation, the nature of vehicles traveling through them and the coordination of traffic in both these domains, most contemporary issue on Space Traffic Management concern in-orbit operations. These issues mainly focus on the establishment of sustainable space activities into a precious environment. A few key items have already been the subject of several attempts to formulate rules of different shapes, including a variety of recommendations, charters, guidelines, and codes of conduct but might benefit from being integrated into a more compelling international STM regime.

The first issue to address is the need for a comprehensive Space Situational Awareness Information and Data Sharing legal framework, in order to settle political challenges and assure the effective and transparent provision of unified SSA information and data to spacecraft or space object operators on a global scale. To accomplish that, it seems crucial to consider the establishment of an international clearinghouse for data and information sharing, based on article X of the Outer would not be realistic, especially since the concept implies the mutual recognition of every State having "complete and exclusive sovereignty over the airspace above its territory" 32 , which does not exist in international space law 33 . Therefore, it seems more efficient to designate a clearinghouse as the central data provider for STM, instead of requiring each State to directly provide information for their own space operations 34 . This Data Sharing Center 35 would be charged with gathering observation and operation data from SSA entities and operators in order to then provide the information necessary for space activities to the operators concerned with space traffic. This clearinghouse could also delete, or anonymize sensitive information and data (for example relative to matters of national security) upon request from data providers as well. For now, only the respective militaries of the US and Russia can provide comprehensive information and data for SSA, but the limited ability of other states (such as Australia, China, France, Germany or Japan) could still be used to increase their accuracy. The data provision from concerned States could be on a voluntary basis at first but it would have to become a legal obligation eventually in order to achieve constant data gathering with equal basis among all spacefaring nations. A new international treaty would be needed to impose such obligations to States.

The second question an international STM regime would have to answer is that of the space debris mitigation problem. These "man-made objects, including fragments and elements thereof, in Earth orbit or re-entering the atmosphere, that are non-functional" 36 constitute a problem because of their high velocity (7,500 m/s or much higher). They can represent a threat to functional space objects and, although it is relatively rare, even to structures or people on the ground when they deorbit if they are large enough or contain hazardous materials 37 , such as radioactive substances. This phenomenon can be assimilated to the "tragedy of the commons" theory, as benefits of individual space missions accrue primarily to the entities conducting these activities while the detrimental impact of space exploitation can have negative consequences for all those involved in the sector and even others 38 . As a consequence, regulations adopted by a single or multiple states to fight off the harmful environmental effects of space activities would be ineffective. Space-faring nations adhering to debris mitigation requirements may find themselves at a competitive disadvantage against those who do not observe similar measures. On the international scale, the U.N. space treaties do not address the issue of space debris, mostly because there was no issue at the time the treaties were adopted. Actual international dialogue concerning the regulation of space debris started in the early 1980s, and the Inter-Agency Space Debris Coordination Committee (IADC) was established in 1993 upon the initiative of the world's major space agencies. After several years, the IADC developed space debris mitigation guidelines in 2002, which served as the basis for the space debris mitigation guidelines developed and adopted by UNCOPUOS in 2009 [START_REF]Space Debris Mitigation Guidelines[END_REF] . These guidelines are not legally binding under international law and work only on a voluntary basis. Still, most national space agencies have been implementing the guidelines for years. Moreover, several states have included provisions on space debris mitigation and prevention in their national space legislation, September 2010, is an instrument meant to be applicable to the space activities of the subscribing states and nongovernmental entities under their jurisdiction. It also addresses the issue of space debris and contains several measures aiming to prevent, reduce and mitigate the creation of space debris. While these various national regulations have helped to improve the mitigation of space debris, they might not constitute an optimal solution in the long run. The moment might be for space-faring nations to agree on a set of harmonized binding measures of both technical and legal nature to prevent and manage the multiplication of space debris during space activities. This might represent the only viable solution to ensure that all actors of the space sector, governments and private entities alike, act in such a way so as to ensure the protection of the space environment as well as the safety of space objects.

Finally, the last issue a dedicated international treaty would need to address is that of State responsibility and liability in STM. The current liability system of international space law establishes fault-based liability for in-orbit damages and absolute liability for ground damages [START_REF]Convention on International Liability for Damage Caused by Space Objects[END_REF] .

But doesn't address the case of sub-orbital spaceflights. As mentioned before, the ICAO suggested that these spacecrafts should be regulated under international air law, at least while they share international air space with aircrafts, but does that also apply to liability in case of damages to third parties? The Rome Convention of 1952 46 designates strict liability to the operator of the aircraft against third-party damage, and States eventually accepted the de facto unlimited liability of the airlines for the damage inflicted on passengers. However, the lack of major accidents with a third party's casualties on ground have kept this issue from being resolved by the international community. An STM treaty could be able to clarify the situation as well as the responsibility and liability regime that weighs on sub-orbital spacecrafts. As for in-orbit damages, as the case of Cosmos-Iridium pointed out, identifying the liable state is relatively difficult because of the laboriousness of collecting objective data on the circumstances of the collision. The implementation of a SSA data sharing regime, part of an STM treaty, could help determine liability more easily.

Furthermore, the potential risk of damaging daily activities on the ground gradually rises assometimes critical-systems malfunction due to in-orbit collision. Should ground damages be considered fault liability, or should in-orbit damages considered absolute liability? The question calls for an answer, preferably from the international community as a whole.

It seems that most issues contemporary space activities suffer from could be resolved by the adoption of an international STM regime. Not only would it help to develop international cooperation regarding the exchange of information and data on Space Situational Awareness, but concerning space debris mitigation as well, allowing for safer orbits for all space activities and actors. Moreover, developing the liability system of the UN space treaties to incorporate Space compensated for potential damages. An STM Treaty would make outer space safe enough to allow further development of space activities.

Conclusion

To conclude this paper, it should be reminded that the body of international space law established by the UN space treaties holds some lacunae of law. While various new issues did not exist at the time of negotiation of these treaties, the recent development of telecommunications and the promise of new prospects for the exploration and exploitation of outer space (space tourism, deep space mining, etc.) reveal the gaps left by States during the first Space Race and the need for an update of international space law. The subsequent increase in space traffic therefore has to be dealt with in an efficient manner, preferably with the participation of all space-faring nations. The development of national regulations hold out until now and will probably still hold for at least a few years on specific issues, but a STM treaty would be ideal to deal with other issues that can't be settled by individual States such as the need to ensure the sustainability of Earth's orbits and to make outer space in general a safer environment to conduct operations.

But, is an STM Treaty sufficient to ensure that these requirements are met with? Could a dedicated international organization be created with the purpose of implementing the principles of an STM Treaty? Should it be? The idea of World Space Organization was proposed for the first time in 1968 in Vienna at the UNISPACE-I, then finally postponed in 1982 (UNISPACE-II). The subject appeared again in 1999 during UNISPACE-III, when the representative of the Greek delegation, M.

Vasily Cassapoglou, raised the fact that space activities and space exploration was escaping more and more to the effective control of international institutions and that one could almost called this "new global neo-colonialism" 47 . Ms. Simone COURTEIX was partisan of the creation of a WSO in the creation of which States would participate and under which they would continue to work together to establish long-term goals. The CERDE has already identified several areas and themes that might require the creation of such an organization, including the coordination and control of the growing and sometimes alarming number of objects launched into space, as well as the implementation of programs of launch services that could benefit developing countries (transfer of technology, creation of spatial data bank or specialized staff training) 48 .

The idea here would be to establish an organization competent with all aspects of space traffic management. Such an organization could not only act as a clearinghouse charged with collecting and redistributing SSA information and data, but could actively coordinate the launches of spaceports around the world, as well as cooperate with the ICAO, in order to avoid collisions with space debris or other spacecrafts (or aircrafts resources in outer space, project OASIS [START_REF] Clegg | Operations and Service Infrastructure for Space[END_REF] has developed the idea of a spaceport network infrastructure allowing, in the long term, for the exploitation of resources on planet Mars. The first step of the project would be to build a "node" in LEO, otherwise capable of offering in-orbit services (refueling, reparation, etc.), that would work under the authority of an International Spaceport Authority (ISPA) and offer services via a Spaceport Company (SCP). The ISPA would be created through a public-private partnership (PPP), taking example on Arianespace, and the SCP would have member States as shareholders [START_REF] Mueller | Effective Utilization of Resources and Infrastructure for a Spaceport Network Architecture[END_REF] . Such an Authority could be able to fulfill the role of the aforementioned WSO. However, the idea of creating this ISPA through a PPP could be detrimental: while the example of Arianespace offers some hope, it should be reminded that the European Union failed to finance the GALILEO GNSS program through private-public partnership, and was even slowed down by the subsequent disagreements that sprung from the discussions [START_REF] Caudron | Galileo : Le Partenariat Public-Privé à l'Épreuve du Juste Retour[END_REF] .

The creation of such an organization would encounter some difficulties of course as the fact that such programs are generally fulfilled by individual States, or that such activities can concern important economic and industrial interest, but also national security, etc. All these considerations explain the reluctance so far of States to participate in a large-scale cooperation in this area and the preference for international agreements of limited scope. For all these reasons, it now seems important to focus on contemporary and future forms of cooperation in space and their influence on Space Law, both domestic and international.

  leading to a solution, apart from Space Debris Mitigation Guidelines in 2002. A few other nonbinding documents concerning such matters have been issued, including the International Academy of Astronautics (IAA) Cosmic Study on Space Traffic Management of 2006 8 or the Hague Code of Conduct against Ballistic Missile Proliferation of 2002 9 , but a more radical approach seems today necessary.

  Treaty of 1967 which promotes international cooperation by asking States Parties to consider requests to observe space objects launched by other States Parties. The Space Data Association Limited (SDA), founded by the three major worldwide satellite operators (Inmarsat, Intelsat and SES) could be used as a model for such a clearinghouse, insomuch as the necessity of this type of structure is widely recognized by both commercial and civil governmental operators. While in Air Traffic Management the provision of services from States is achieved by dividing airspace into multiple flight information regions (FIR), the nature of space activities does not allow for the same system. Indeed, satellites in LEO can go around the Earth in about ninety minutes, passing over a country merely in a few seconds. Using a similar technique as flight information regions for STM

  such as the US Debris Mitigation Standard Practices 40 , based on the NASA Safety Standard, developed by NASA and the Department of Defense. These standard practices have four objectives: control of debris release during normal operations; minimization of debris generated by accidental explosions; choice of safe flight profile and operational configuration; postmission disposal of space objects, either by re-or de-orbiting. The European Union Draft Code of Conduct for Outer Space Activities 41 , which was published by the EU in 2008 with a revised draft released in

  26 PeterVAN FENEMA, op. cit., note 3, p. 411. 27 I.e. 'Raumfahrzeuge, Raketen und ähnliche Flugkörper gelten als Luftfahrzeuge, solange sie sich im Luftraum befinden': German Aviation Code (Luftverkehrsgesetz), Chapter 1, Subch. VI, Arten von Luftfahrzeugen ('types of aircraft'), www.gesetze-im-internet.de/luftvg/index.html, last accessed 15 October 2016. 28 Cf. Art. 87(1), United Nations Convention on the Law of the Sea, Montego Bay, done 10 December 1982, entered

	into force 16 November 1994; 1833 UNTS 3 and 1835 UNTS 261; UKTS 1999 No. 81; Cmnd. 8941; ATS 1994 No.
	31; 21 ILM 1261 (1982); S. Treaty Doc. No. 103-39: 'Freedom of the high seas … comprises, inter alia … (b)
	freedom of overflight'.
	29 Peter VAN FENEMA, op. cit., note 3, p. 416-417.
	30 IAA, Cosmic Study on Space Traffic Management, chs 2.2.5 (provisions of air law) and 2.3.1 (air traffic), 2006.
	URL: https://iaaweb.org/iaa/Studies/spacetraffic.pdf
	31 The ICAO

Secretariat study, prepared for the Council's 175th session, entitled 'Concept of sub-orbital flights', concluded i.a.: '6.3 The Chicago Convention applies to international air navigation but current commercial activities envisage sub-orbital flights departing from and landing at the same place, which may not entail the crossing of foreign air spaces. Should however foreign air space(s) be traversed, and should it be eventually determined that sub-orbital flights would be subject to international air law, pertinent Annexes to the Chicago Convention would in principle be amenable to their regulation'; ICAO Working Paper C-WP/12436 of 30/05/05. URL: http://www.unoosa.org/pdf/limited/c2/AC105_C2_2010_CRP09E.pdf

33

  Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 610 UNTS 205, 18 UST 2410, TIAS No 6347, 6 ILM 386 (entered into force on 10 October 1967), art. 2, URL: http://www.unoosa.org/pdf/gares/ARES_21_2222E.pdf 34 Yu Takeuchi, op. cit., note 9, p. 52-53. 35 Ibidem. 36 Technical Report on space debris, United Nations General Assembly. Technical report of the Scientific and Technical Subcommittee on space debris. UN Doc. A/AC.105/720, 1999. 37 https://en.wikipedia.org/wiki/Space_debris#To_Earth 38 Lotta VIIKARI, "Environmental aspects of space activities", Handbook of Space Law, Frans Von Der DUNK (dir.)

with Fabio TRONCHETTI, Edward Elgar Publishing, 2015, 1100 p., p. 717.

  both proposition present gaps in regard to contemporary space activities. First of all, the gap between the State exercising jurisdiction and control over a space activity (or State of registry), as per article VIII of the Outer Space Treaty, and the State authorizing and supervising the activity, as per article VI of said Treaty. For example, if a private company in State A were to contract with a launch operator from State B to launch a space object, State A would normally consult with State B regarding the object's registration in accordance with Article II.2 of the Registration Convention 43 . However, a problem could occur if State B were to transfer the satellite's operation to a third State (State C) after having operated it for a certain amount of time. Since the State of registry is assumed to be the launching State 44 , how can State C exercise its jurisdiction and control over the satellite?The problem with the concept of "launching State" is that the liability regime of the UN space treaties does not seem to consider that the operation of a spacecraft could be conducted by a different State. Its discrepancy with the role of "operating State", as well as generally insufficient coordination among launching States, highlight the need to entrust certain responsibilities to the appropriate States 45 . Furthermore, concerning ground damages, the Liability Convention of 1971

  Traffic Management would enable States to conduct their space operations without fear of not being Ibid., art. I. 45 Yu Takeuchi, op. cit., note 9, p. 68. 46 Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, 7 October 1952, ICAO Doc.

43 Convention on Registration of Objects Launched into Outer Space, 6 June 1975, 28 UST 695, 1023 UNTS 15 (entry into force 15 September 1976). URL: http://www.unoosa.org/pdf/gares/ARES_29_3235E.pdf 44 7364; 310 UNTS 182 (entered into force 4 February 1958) [Rome Convention].

  ). If appropriate, it could also settle disputes between States according to new rules of responsibility and liability in STM and, ultimately, enact regulations relevant to its domain of competence. As part of the development of the exploitation of

47 Juan Manuel de FARIMIÑAN GILBERT et Claudio ZANGHI, « L'organisation mondial de l'Espace, un défi oublié ? », in Armel KERREST, L'adaptation du droit de l'espace à ses nouveaux défis, A. PEDONE, 2007, 318 p.. 48 Ibidem.

Peter VAN FENEMA, "Legal aspects of launch services and space transportation", Handbook of Space Law, Frans VON DER DUNK (dir.) with Fabio TRONCHETTI, Edward Elgar Publishing, 2015, 1100 p., p.

4 In aviation, the idea is that two randomly flying bodies are very unlikely to collide, as the three-dimensional space is so large relative to the bodies. 5 Lt. Col. S. HUNTER, op. cit., note 1, p. 5.

T. S. KELSO, "Analysis of the 2007 Chinese ASAT Test and the Impact of its Debris on the Space Environment", AMOS Conference, 2007, 10 p. URL: https://www.celestrak.com/publications/AMOS/2007/AMOS-2007.pdf

Lt. Col. S. HUNTER, op. cit., note 1, p. 5.

IAA, Cosmic Study on Space Traffic Management, 2006,

p. URL: https://iaaweb.org/iaa/Studies/spacetraffic.pdf 9 UN, Hague Code of Conduct against Ballistic Missile Proliferation, General Assembly, 2002, URL: http://www.hcoc.at/documents/Hague-Code-of-Conduct-A_57_724-English.pdf

National Research Council. Orbital Debris : A Technical Assessment, 1995, 224 p. ; Scientific and Technical subcommittee of the UNCOPUOS. Technical Report on Space Debris. United Nations, New York, 1999; National Research Council. Limiting Future Collision Risk to Spacecraft: An Assessment of NASA's Meteoroid and Orbital Debris Programs. Washington, DC: The National Academies Press, 2011.

Peter VAN FENEMA, op. cit., note 3, p. 409.

The functionalist approach maintains that the nature of the activity, rather than the location of the activity, should be the determinant.

The spatialist approach proposes setting a measurable physical boundary between airspace and outer space.

Yu Takeuchi, Legal aspects of international regime for space traffic management, Institute of Air and Space Law, Faculty of Law, McGill University, 2014, 100p., p. 58.

Convention on International Civil Aviation, 7 December 1944, 15 UNTS 295, ICAO Doc 7300/6 (entered into force 4 April 1947), art. 1, URL: http://www.icao.int/publications/Documents/7300_orig.pdf


Foreword

Shall we for ever make new books, as apothecaries make new mixtures, by pouring only out of one vessel into another? Are we for ever to be twisting, and untwisting the same rope? For ever in the same track -for ever at the same pace? Laurence Sterne 1 Jonathan Swift has been the object of considerable scholarly attention over the centuries and continues to be so, especially this year in France with Gulliver's Travels as one of the set texts on the English Agrégation syllabus. However, this volume differs from classical academic criticism. Along with fellow members of the LERMA research centre at Aix-Marseille University (more specifically from the "Programme C" on modernity), and other Swift scholars, we wished to edit a collective work on Jonathan Swift but decided from the outset to depart from the critical essay format, as there are already many such books to choose from.

We offer here a collection of fictional letters written to the author of Gulliver's Travels.

The letters are addressed to Jonathan Swift, either by one of his contemporaries (Daniel Defoe, Henry Fielding, "Stella", the Dean's presumed lover and "truest friend," and Gabriel de Foigny, one of his French sources), or by later writers such as Jane Austen, or by imaginary characters (a physicist, a member of the French Academy, or a contemporary scholar). The idea was to give a free rein to our contributors' imagination and literary bentwhich needn't preclude meticulous research -, our purpose being to present varied perspectives on Swift's works, life and legacy in an original form, combining imagination, creative writing and erudition 2 . Three genuine letters are also included, from Alexander Pope and John Gay, from "Vanessa" (Esther Vanhomrigh) and from Mrs Howard, all early readers of Gulliver's Travels, 1 The Life and Opinions of Tristram Shandy, Gentleman, edited by Ian Campbell Ross, Oxford: World's Classics, Oxford UP, 1983, V, 1, p. 275. 2 We are not aware of any examples of similar collections in English. One source of the idea is a French series published by Editions Thierry Marchaisse, « Lettres à… ». While the series includes Lettres à Sade and Lettres à Flaubert, the only British author included thus far is Shakespeare (Lettres à Shakespeare. Edited by Dominique Goy Blanquet, 2014), and the authors of those volumes are all writers and critics signing in their own names.

"Vanessa as a Reader of Gulliver's Travels", Swift's Angers, CambridgeUP, 2014, pp. 163-169.

See facsimiles of Mrs Howard's letters and of Swift's hand signing 'Lemuel Gulliver." https://blogs.bl.uk/untoldlives/2018/06/jonathan-swift-and-henrietta-howard.html

Gulliver's Travels (1726). Edited with an introduction by Claude Rawson, notes by Ian Higgins, Oxford World'sClassics, 2008. I, 5, p. 46.

sometimes even before the book was printed, as Claude Rawson has shown 3 . A further annexe to the volume includes a seminal article by Rawson, republished here with kind permission of both the author and Routledge, the publishers of Gulliver and the Gentle Reader, in which this analysis first appeared.

Jonathan Swift was a master of disguise and deception. The blurring of truth and fiction is prominent in his works, as shown for example in the complex paratextual material of Gulliver's Travels, published anonymously in 1726. The interweaving of reality and fiction is also striking in Swift's correspondence, combining motives of wary caution and unrestrained play. He, and his friends too, regularly used Gulliverian names ("Lemuel Gulliver") in their letters. A letter from Mrs Howard (included here) was signed "Sieve Yahoo" ("sieve" being a Lilliputian term for a lady of the court) 4 . Swift invented pseudonyms for himself, such as Isaac Bickerstaff in 1708, as part of a famous hoax to predict, and then to prove, the death of then famous astrologer John Partridge. His first major work, A Tale of a Tub (1704) evinces a multiplicity of voices leading to its own unreliability as text. Disguise and polyphony are at the heart of Swift's work, and our collection pays tribute to this salient aspect of his aesthetics. Some of the eleven letters collected here are much shorter than others, sometimes very short.

Their style and spelling are also deliberately heterogeneous, as would be found in a scholarly edition of a great writer's correspondence.

The contributors are academics from the field and also include young researchers and PhD students engaged in research on Swift's life and works. The collection opens with a letter transcribed by its author from a BBC Radio 3 programme, "Letters to Writers" (8 November 2016) which, among five fascinating imaginary letters, included Ian Sansom's letter "Dear Jonathan Swift," questioning him about his work.

We hope that these epistolary modest proposals will be of interest to "gentle readers" of Swift's works, whether they be first-time readers or return readers. Unlike "The Blefuscudians -who had not the least Imagination of what I intended, [and] were at first


Fate has decidedly not treated us equally

Monsieur, You may be surprised at my writing to you, as no mention of my name is made in any of your works. Perhaps you will also be a little discomfited, for I am certain that it is nevertheless not unknown to you.

Fate has decidedly not treated us equally.

My name and one published work of literature were known to some, in France and in Switzerland, during my lifetime, before gradually fading into oblivion. I now garner attention here and there from a mere handful of scholars interested in imaginary voyages, Utopias, ideal languages, early fictions about Terra Australis and other such esoteric topics.

As for you, over the centuries, your name and works have met with extraordinary and enviable success. Although you would undoubtedly balk at the way he is depicted, Lemuel Gulliver has appeared in several Hollywood films; he features in endless children's books, caricatures and cartoons, as well as advertisements for products ranging from washing powder to sexual lubricant and down-filled jackets. Have you any idea how many toy shops bear the name of your imaginary traveller? Your preening, petty Lilliputians are a byword for all things tiny. Your Modest Proposal, with its bitterly satirical suggestion that the economic problems wrought in Ireland by English policies might be resolved if the impoverished populace simply sold their infants to the wealthy ("a young healthy child well nursed, is, at a year old, a most delicious nourishing and wholesome food, whether Stewed, Roasted, Baked, or Boiled; and I make no doubt that it will equally serve in a Fricasee or a Ragout"), continues to be cited as a shining example of both reductio ad absurdum and anticolonialism.

Your imprint extends farther than the merely terrestrial, reaching not only to the moonwhere a crater bears your name -but beyond. In Gulliver's Travels, you made a fleeting allusion to Mars having two moons, a notion that was only confirmed in 1877, when Asaph Hall observed both Martian satellites and named them Phobos and Deimos. Given your penchant for borrowing other people's ideas (some call it "intertextuality" these days, I believe), it seems likely that you filched that detail from Johannes Kepler, based on his misreading of a riddle by Galileo. Whatever its source, your reference in the Voyage to Laputa to "two lesser stars, or satellites, which revolve around Mars" led twentieth-century astronomers to give your name to a crater on Deimos. On Phobos, several craters have been called after Lilliputians, including Flimnap, Clustril and Dumno.

Craters, you might argue, are not terribly glorious items to have named after you; but these are not merely terrestrial craters and toponyms and I therefore beg to differ. No one has ever considered giving my name to a crater, on Earth or anywhere else.

Your decision to pen your own pre-emptive elegy, the Verses on the Death of Dr Swift, reflects a certain narcissistic anxiety over your posterity and legacy, perhaps exacerbated by a growing awareness of your diminishing mental faculties. You surely never imagined though, even in your wildest dreams, that such enduring and even extra-terrestrial fame would be yours.

My name, on the other hand, is rarely mentioned. No one has heard of my two reference books on Latin and French. For many years, authorship of my one work of fiction, La Terre Australe connue, an imaginary account of a journey to the then unknown Australian continent, was ascribed to its fictional narrator, Jacques Sadeur. Admittedly, I did write it anonymously, as the ideas it contained were likely to arouse the censor's ire. However, most of your works are also both controversial and anonymous -and yet your name reverberates as far off as the moons of Mars.

What do you know of me?

Like you, I was a man of the cloth: a monk of the Cordelier order, in the Lorraine region of France, where I had a fair reputation as a preacher. Some sources will tell you merely that I renounced Catholicism and sought refuge in Geneva in 1667 (the year of your birth), leaving that town after my imaginary travels were published in 1676 and my printer and I were in danger of being gaoled.

Others might pruriently recount more scurrilous details, noting that I was defrocked before leaving both the Catholic faith and France and moving to Switzerland. That, after settling in Morges, I was renowned for my irregular conduct (drunkenness, the odd scandal here and there involving servant girls and indecent acts committed in the church…) and forced to move to Geneva, where I gave grammar and geography lessons. That I married a widow of poor reputation. That I was often called to account by the authorities. And that, after a servant girl was found to be with child, I left my wife and retired to a Catholic monastery in the French Alps, there to live out the rest of my days.

You may consider, Monsieur, that I am bitter.

I am.

Not because posterity has treated us unjustly -I am only too aware that there is little justice in this world. No, if I am bitter, it is because I am certain that, amongst your other literary borrowings, you helped yourself without so much as a by-your-leave to several details from my imaginary travel tale and used them in yours, increasing your success and fame while denying me so much as authorship. I am aware that you acted similarly towards Rabelais and others -but Rabelais can scarcely be said to have suffered from the same literary obscurity as I have done. After all, the French dubbed you (and Sterne…) le Rabelais de l'Angleterre, not le Foigny de l'Angleterre.

You know to what I am referring -of that I am certain.

Yes.

Your fourth volume of Gulliver's Travels, with its anti-Utopian description of a Houyhnhnmland peopled by rational horses and savage Yahoos. It is a clever construct, leaving Gulliver caught in the middle, neither one thing nor the other, so eager to deny any connection with the Yahoos and be accepted by the rational creatures that he is prepared to walk on all fours and whinny.

Scholars have noted that your use of horses may be a reference to the logic manuals still in use when you were a student, such as Porphyry's Isagoge, in which two contrasting definitions are opposed: homo est animal rationale equus est animal hinnibile You turned that on its head, did you not? Your horses are not only whinnying creatures, as their unpronounceable onomatopoeic name suggests, but also rational ones, their whinnies a mode of speech rather than the gibberish ascribed them by classical logicians.

Your Yahoos it is who are the babbling, irrational brutes. Your character's strenuous efforts to conceal his own nature beneath his increasingly raggedy clothing and to avert his gaze from his own reflection, while he dreams of attaining equine "perfection," are but futile. When Gulliver undresses to bathe, a passing female Yahoo catches sight of him and is immediately attracted to him, thus demonstrating that they belong to one and the same species.

His admiration of the Houyhnhnms blinds him to the inconsistencies behind some of their "rational" thinking. They refuse, for instance, to believe that Gulliver sailed to their land, because they have never seen such a thing as a sailing vessel. Although they claim not to lie, nor to know how even to express such an idea, they do, in fact, have a term for it: "saying the thing which is not." They suspect Gulliver of fomenting rebellion amongst the Yahoos, an idea obviously belied by his desperate efforts to deny that he any way resembles them. In a society based on the simple division between Houyhnhnms and Yahoos, Gulliver's presence threatens the established order, highlighting its very precariousness. In the end, such disruption cannot be tolerated, and so he is expelled. On returning home and being reunited with his wife and two children, he cannot but admit that he once copulated with a Yahoo, no matter how much time he spends in his stables amongst those he deems more congenial and fragrant company than Mary Gulliver.

Why am I telling you your own story? Ah, I think you may know the answer to that, Monsieur Swift. However, as I have your attention, allow me to spell it out clearly.

In my travel account, the basic premise is the same as in Houyhnhnmland: the narrator finds himself in an unknown land, inhabited by a people whose lives are governed solely by reason. They know no passion, for I chose to make them hermaphrodites, capable of reproducing alone; it is a crime for them to mention this subject, conveniently sparing me the need to explain how such a feat might be achieved. They live in perfect harmony, necessarily acting of one accord in a purely rational manner, and face death with perfect stoicism, just as your horses do. However, although Sadeur, my traveller, presents Australian society as ideal, it is no more so than Houyhnhnmland.

Its inhabitants are engaged in a constant battle against their neighbours, the Fondins, who are not hermaphrodites but "half-men" and are therefore driven by passion rather than reason.

The violence the Australians exert against them contradicts the rational, harmonious perfection suggested elsewhere and resembles your Houyhnhnms' equally irrational and vicious urge to exterminate the Yahoos. And, like your horses' lies that merely go by another name, the idea that it is a crime to explain how the hermaphrodite Australians might reproduce reveals that, despite the much-vaunted peace and harmony of their existence, they have nonetheless seen fit to codify crimes.

My narrator, like yours, endangers the fundamental yet untenable oppositions on which this society has been constructed, as he does not belong to either of the two dichotomous categories (rational Australian or brutish Fondin). His presence highlights the deep fault lines running through it. And it is sexual passion, as in your narrative, that reveals the traveller's true nature, for after caressing several Fondins, he finally yields to his attraction for a female Fondine and must therefore be expelled.

Oh, the scholars laud your clever anti-Utopia with its critique of deism and rationalism. Yet only a very few have noted that these characteristics are also those of my book and that the pessimism underlying your fourth volume clearly echoes the gloom of my imaginary voyage. My Australians are not, in fact, as stoical as they may appear; the realisation that an unjust divinity (whose nature it is also criminal to describe) has created them both perfect and yet mortal fills them with such sorrow that they long only for death. Not unlike the Struldbruggs in that rather piecemeal third volume of your Travels, who "lament and repine that others are gone to an Harbour of Rest." What unites us, I believe, is our shared conviction that humankind is profoundly marked by sin. The Australians admit that Sadeur has some "little sparks of reason," but he is merely the more culpable for it, putting them to ill use as an "inventor of crimes" -just as Gulliver's "rudiments of reason" serve only to "aggravate his natural corruption." Utopian dreams of perfect societies are futile, we both know, because they are the fruit of the human imagination and are therefore tainted by the imperfection of human nature -by Original Sin, if you will.

The overweening pride that leads men to believe that, rather than remedying existing flaws, including their own, they might simply leave their fellow men behind and construct a perfect society elsewhere, with -why not? -a perfect language all its own, is the best possible indication of the vanity of such schemes.

The entire architecture of your fourth volume resembles my narrative so closely that it cannot be coincidence, though I am aware that my book seemingly did not grace your library shelves. But, like the bee in your Battle of the Books who "by a universal range, with long search, much study, true judgment, and distinction of things, brings home honey and wax," you gleaned inspiration from just such a variety of sources and then scattered it hither and thither throughout your work. The pigs which plough the soil in Lagado, for instance, were my invention, like so much in the fourth volume of your Travels.

You will undoubtedly argue that you were merely following a great Humanist tradition by seeking inspiration in, or even imitating, existing texts. Quoting Cicero, Horace or Pliny is, however, one thing; purloining ideas from little-known authors such as myself is quite Following your own entomological illustration, as far as literary posterity and influence are concerned, you are, cher Monsieur, a smaller flea than those such as I who came before you and whose works you looted. And while my name will doubtless never adorn any craters, I shall content myself with the knowledge that Gulliver's Travels owes much not only to my Terre Australe connue, but also to imaginary voyages by the likes of my countrymen Rabelais and Cyrano de Bergerac, as well as to Thomas More's Utopia, placing me in illustrious company. For a defrocked monk who led a rather irregular life, that is quite a feat.

Yours truly,

Gabriel de Foigny

  another. Your attitude to this issue was always a little ambiguous, was it not? After all, in those Verses on the Death of Dr. Swift of yours, you claimed that: "To steal a hint was never known, But what he writ was all his own." Fine sentiments, indeed -but utter nonsense, of course. Those very lines are clearly and ironically borrowed from John Denham's poem, On Mr. Abraham Crowley: "To him no author was unknown, Yet what he wrote was all his own."An unknown author I may well be to most, but not to you. It is too late now to redress the balance in our fortunes, between your extraordinary fame and my very paltry recognition. Yet I like to think that, as you penned that ironic couplet, you thought -even only for one fleeting moment -of the defrocked French monk whose carefully constructed anti-Utopian travel tale you so egregiously pillaged. The honey and wax are all for you, Monsieur Swift, while I stand unnoticed in the literary hinterland. Were I to take a leaf out of your book (or rather from your Verses Occasioned by Whitshed's Motto on his Coach, to be more accurate), and twist it to my own ends as you did with my narrative, I might exclaim "Fine ideas! I wonder where you stole 'em."But I find that in writing to you I have vented my spleen. And, as you wrote so evocatively in your verse On Poetry, A Rhapsody: "So, naturalists observe, a flea Hath smaller fleas that on him prey; And these have smaller fleas to bite 'em, And so proceed ad infinitum."