Soft Law in Outer Space: The Function of Non-binding Norms in International Space Law 9783205791850, 9783205787976

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Studien zu Politik und Verwaltung Herausgegeben von Christian Brünner · Wolfgang Mantl · Manfried Welan Band 102

Irmgard Marboe (Ed.)

Soft Law in Outer Space The Function of Non-binding Norms in International Space Law

Böhl au Verl ag Wien · Köln · Graz

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Bundesministerium für Wissenschaft und Forschung in Wien

Bundesministerium für Verkehr, Innovation und Technologie

Österreichische Forschungsförderungsgesellschaft

Bibliografische Information der Deutschen Nationalbibliothek : Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie ; detaillierte bibliografische Daten sind im Internet über http ://dnb.d-nb.de abrufbar. ISBN 978-3-205-78797-6 Das Werk ist urheberrechtlich geschützt. Die dadurch begründeten Rechte, insbesondere die der Übersetzung, des Nachdruckes, der Entnahme von Abbildungen, der Funksendung, der Wiedergabe auf fotomechanischem oder ähnlichem Wege, der Wiedergabe im Internet und der Speicherung in Datenverarbeitungsanlagen, bleiben, auch bei nur auszugsweiser Verwertung, vorbehalten. © 2012 by Böhlau Verlag Ges.m.b.H. und Co.KG, Wien · Köln · Weimar http ://www.boehlau-verlag.com Umschlaggestaltung: Michael Haderer Umschlagabbildung: © Heribert Corn Gedruckt auf umweltfreundlichem, chlor- und säurefrei gebleichtem Papier. Druck : Generaldruckerei Szeged

Editor’s Preface

Non-binding norms have become popular in many areas of international law. The difficulty of formulating and enacting binding multilateral treaties, the diversity of States’ interests and the increasing importance of private actors at the international level have contributed to this phenomenon. The term “soft law” is sometimes criticised as contradictive and inappropriate, but it is nevertheless still widely used. In the present book, it shall serve as a term of reference to denote various texts and documents, such as “declarations”, “principles”, “guidelines”, “codes of conduct”, or “frameworks”, which have no legally binding force but which are nonetheless meant to influence the behaviour of States and private actors. As regards outer space, non-binding norms have played an important role from the very beginning of space activities onwards. The Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space of 1963 is a textbook example of how a non-binding instrument, such as a UN General Assembly resolution, may develop into a binding instrument, namely into the Outer Space Treaty of 1967. Furthermore, after the conclusion of the five UN treaties on outer space, UN General Assembly resolutions have been widely used to interpret these treaties and to further develop guiding principles for States carrying out space activities. With the emergence of new space faring nations and the privatisation and commercialisation of space activities, other instruments followed. The present book consists of two main parts: Part I deals with general aspects of the role of soft law in international law and in international space law. It shall analyse the function of soft law in the international legal system in general and for the development of international space law in particular. It addresses issues such as the role of soft law in the formation of customary international law and with respect to international treaty law as well as compliance, verification and monitoring. The role of non-state actors in the creation and application of soft law is also analysed. A further focus lies on the interaction of soft law and national law. Furthermore, the role of soft law for standard-setting and its consequences for liability are discussed. Part II is dedicated to specific non-binding international instruments concerning space activities. Several instruments are analysed in view of their regulatory effect with respect to the conduct of States and private actors. These instru-

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Editor’s Preface

ments include the UN General Assembly resolutions on direct broadcasting, remote sensing, space benefits, the concept of the launching State, and on registration practice, guidelines (Space Debris Mitigation Guidelines), codes of conduct (e.g., the European Code of Conduct and the Hague Code of Conduct against Ballistic Missile Proliferation) and frameworks (e.g., the Safety Framework for Nuclear Power Sources). The general aspects addressed in Part I are taken up and reflected in the analysis of the specific instruments in Part II. I am very grateful to the authors who have dedicated a lot of time and effort to make this book possible. Most of them have also participated in the conference on “Soft Law in Outer Space — The Function of Non-binding Norms in International Space Law” at the Faculty of Law of the University of Vienna on 2 April 2011. The conference was organised at the margins of the UNCOPUOS Legal Subcommittee celebrating its 50th session at that time at the premises of the United Nations in Vienna. Many delegates to the Legal Subcommittee attended the conference so that the discussion between experts and practitioners was lively both at the conference and at the Legal Subcommittee’s meetings thereafter. Most of the authors have a legal background but some of them also work in the scientific field and complement the book with useful and necessary technical aspects of space activities. Some authors are academics, some are practitioners, working for national administrations or international organisations. I hope that this interdisciplinary approach and the combination of theory and practice will be appreciated by our readers and will be helpful for a better understanding of the contemporary norms regulating outer space activities. I am deeply indebted to the publisher, Böhlau Verlag, in particular, Eva Reinhold-Weisz, who has also succeeded in receiving a grant of the Austrian Ministry of Science and Research (BMWuF) which contributes to financing the present book, together with the generous support of the Austrian Research Promotion Agency (FFG) and the Austrian Ministry for Transport, Innovation and Technology (BMVIT). I would also like to thank the series editors Christian Brünner, Wolfgang Mantl and Manfried Welan, for accepting this book as part of the series “Studien zu Politik und Verwaltung”, as well as my assistants Karin Traunmüller, Markus Beham and Marianne Höhl for their great help in putting together all the contributions and finalising the editing process. Irmgard Marboe

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PA RT I Steven Fr eel and: The Role of ‘Soft Law’ in Public International Law and its Relevance to the International Legal Regulation of Outer Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Fr ans von der Dunk: Contradictio in terminis or Realpolitik ? A Qualified Plea for a Role of ‘Soft Law’ in the Context of Space Activities

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Setsuko Aoki: The Function of ‘Soft Law’ in the Development of International Space Law . . . . . . . . . . . . . . . . . . . . . . . . .

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Christian Brünner ∙ Georg Königsberger: ‘Regulatory Impact Assessment’ — A Tool to Strengthen Soft Law Regulations . . . . . . . .

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Marco Ferr azzani: Soft Law in Space Activities — An Updated View

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Ir mgard Marboe: The Importance of Guidelines and Codes of Conduct for Liability of States and Private Actors . . . . . . . . . . . . 119

PA RT I I K arin Tr aunmüller: The ‘Declaration of Legal Principles Governing the Activities of States in the Exploration of Outer Space’ : The Starting Point for the United Nations’ Law of Outer Space . . . . . . 145 Fr anz Koppensteiner: The 1982 UN Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting . . . . . . . . . . . . . . . . . . . . . . 161 Joanne Ir ene Gabrynowicz: The UN Principles Relating to Remote Sensing of the Earth from Outer Space and Soft Law . . . . . . . . . . . 183

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K ai-Uwe Schrogl: The Launching State and the Registration Practice Resolutions as ‘Kick Off’ for a New Phase in Space (Soft) Law Development . . . . . . . . . . . . . . . . . . . . . 195 Daniel A. Porr as: The United Nations Principles Relevant to the Use of Nuclear Power Sources in Outer Space : the Significance of a Soft Law Instrument after nearly 20 Years in Force . . 205 Leopold Summer er ∙ Ulrike M. Bohlmann: The STSC/IAEA Safety Framework for Space Nuclear Power Source Applications —Influence of Non-binding Recommendations . . . . . . . 233 Gerhard Hafner: The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States . . . . . . . . . . . . . . 267 Brian D. Lepard: The Legal Status of the 1996 Declaration on Space Benefits : Are Its Norms Now Part of Customary International Law ? . . . 289 Carsten Wiedemann: Space Debris Mitigation . . . . . . . . . . . 315 Werner Balogh: The role of binding and non-binding norms in the implementation of small satellite programmes . . . . . . . . . . . . . . 325 Jean-Fr ançois Mayence: The European Union’s Initiative for a Code of Conduct on Space Activities : A Model of Soft Law for Outer Space ? . . 343 Fabio Tronchetti: A Soft Law Approach to Prevent the Weaponisation of Outer Space . . . . . . . . . . . . . . . . . . . . . . 361 Ben Baseley-Walker: Analysing International Reactions to Soft Law Initiatives on Space Security . . . . . . . . . . . . . . . . . . . . . . . . 387

Selected Bibliography on Soft Law in Outer Space . . . . . . . . . . . . 395 List of Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405

Steven Freeland

The Role of ‘Soft Law’ in Public International Law and its Relevance to the International Legal Regulation of Outer Space I. Introduction — a traditional reliance on (and need for) hard ‘sources’ of international law, including in the international legal regulation of outer space In its simplest form, public international law can be described as the corpus of legal rules that bind States in their international relationships with each other, giving rise to both rights and obligations.1 It has derived in its current form from the ‘law of nations’ as espoused by scholars such as Grotius,2 and is based on the notions of the territorial integrity and sovereignty of the State . Over the centuries, public international law has continued to evolve from its rather modest beginnings as (what has been described as) a pseudo Western Christian concept,3 to a truly universal set of rules that regulates all types of (international) activities taking place across the entire breadth of the Earth. Indeed, the scope of public international law has now moved beyond the Earth — hence, we now also have well established rules of international law regulating the exploration and use of outer space. These rules are set out in the United Nations treaties on outer space and form an increasingly important part of the broader corpus of ‘hard’ (public international) law. Of course, like other hard law provisions, those contained in the United Nations treaties on outer space are open to interpretation, using the customary international law principles of treaty interpretation as codified in the Vienna Convention on the Law of

1 Malcolm N. Shaw, International Law (6th ed., Cambridge University Press, Cambridge 2008) 1. 2 See, for example, Hugo Grotius, Mare Liberum (The Free Sea) (1609) and De Jure Belli ac Pacis (On the Law of War and Peace) (1625). 3 See, for example, J.L. Brierly, The Law of Nations : An Introduction to the International Law of Peace, edited by Humphrey Waldock (6th ed., Oxford University Press, New York and Oxford 1963) 41–42.

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Treaties.4 Even if there may have been (or still may be) some divergence of view as to the precise meaning of some of the provisions — the debate as to the meaning of ‘peaceful purposes’ being one example5 — the point remains that they represent legally binding obligations, by virtue of the fact that they are contained in treaty instruments (and may also represent customary international law). Of course, as international law has developed, and as the world has become more globalised and accessible with the rapid advances made in technology, the ambit of public international law has itself expanded. Not only does it apply to States, but it now also extends to other types of legal entities that have the requisite ‘international legal personality’6 to be regarded as ‘subjects’ of international law and to operate within the framework of the international legal system. Thus, for example, international intergovernmental organisations such as the United Nations now also play an important role in the international legal framework. Depending upon the terms of its constituent instrument and the functions of a particular organisation, it may have the legal capacity to enter into treaties, and even to enforce its rights against States.7 In the realm of space law, of course, international intergovernmental organisations, such as the European 4 1155 UNTS 331 (VCLT). The VCLT sets out clear principles for the interpretation of a treaty. The general rule of interpretation is contained in Art. 31 (1) of that instrument, which provides inter alia that : ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. The International Court of Justice has on several occasions confirmed that both Art. 31 and Art. 32 of the VCLT (which expands on the rules of interpretation provided in Art. 31) reflect customary international law : see, for example, Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment of 3 February 1994, ICJ Reports 1994, 6, para. 41 ; Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), Judgment of 15 February 1995, ICJ Reports 1995, 6, para. 33 ; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136, para. 94. 5 For a discussion on the alternate views relating to the peaceful purposes principle set out in the United Nations Space Law Treaties, see Steven Freeland, The Applicability of the Jus in Bello Rules of International Humanitarian Law to the Use of Outer Space, Proceedings of the 49th Colloquium on the Law of Outer Space (2006) 338. 6 For a discussion of the concept of ‘personality’ under international law, see David Harris, Cases and Materials on International Law (7th ed., Sweet and Maxwell, London 2010) 91–162. 7 See the Advisory Opinion of the International Court of Justice in Reparations for Injuries Suffered in the Service of the United Nations Case, Advisory Opinion of 11 April 1949, ICJ Reports 1949, 174. Note, however, that the United Nations does not have the ‘legal personality’ to enforce those rights before the International Court of Justice, since only States may be parties in cases before that Court : see Statute of the International Court of Justice, Art. 34 (1).

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Space Agency (ESA), the International Telecommunications Union (ITU), and, more recently, the European Union, play an important regulatory, administrative and legal role at the international level.8 Indeed, the involvement of international intergovernmental organisations in the exploration and use of outer space was contemplated even in the formative days of traditional space law-making.9 This development of international law has also extended to private non-governmental entities and even to individuals, who were originally regarded only as ‘objects’ of international law, but have gradually also become ‘subjects’ under international law. On the one hand, they have acquired rights pursuant to the various international human rights treaties and the mechanisms that allow them, for example, to institute proceedings (or bring ‘communications’) directly against States for alleged breaches of these instruments.10 On the other, they were also bound by obligations not to commit certain ‘international crimes’. The nature of these crimes has evolved from the early days, when it related primarily to the crime of piracy,11 to the crimes ‘that shock the conscience of humanity’ — genocide, crimes against humanity, war crimes and aggression — that are defined in the Rome Statute of the International Criminal Court.12 8 For some time, international organisations have even been directly involved as satellite service providers. However, in the last 12 years, INMARSAT, INTELSAT and EUTELSAT have been privatised. The remaining intergovernmental structures, such as ITSO and EUTELSAT-IGO, merely perform supervisory functions to ensure that some basic principles, such as non-discrimination and fair competition, are complied with. See, for instance, Francis Lyall and Paul B. Larsen, Space Law : A Treatise (Ashgate, Surrey 2009) 361 ; Ingo Baumann, Diversification of Space Law, in : Marietta Benkö and Kai-Uwe Schrogl (eds.), Space law : Current Problems and Perspectives for Future Regulation (Eleven International Publishing, Utrecht 2005) 47, 57. 9 See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies 610 UNTS 205, Art. XIII. For a detailed discussion of the involvement of international intergovernmental organisations in outer space activities pursuant to this provision, see Ulrike M. Bohlmann and Gisela Suess, Article XIII, in : Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.), Cologne Commentary on Space Law, Volume I — Outer Space Treaty (Carl Heymanns Verlag, Köln 2009) 215. 10 In this regard see, for example, First Optional Protocol to the International Covenant on Civil and Political Rights 999 UNTS 302, Art. 2 of which provides as follows : ‘Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration’. 11 In fact, it is widely agreed that the international crime of piracy jure gentium had been recognised by the maritime States of the world ‘since time immemorial’ : Attorney-General of the Government of Israel v Eichmann (1961) 36 I.L.R. 5, para. 13. 12 See the Rome Statute of the International Criminal Court, 2187 UNTS 3 (Rome Statute).

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In terms of non-governmental entities, even though it was contemplated by the drafters of the United Nations treaties on outer space that national space activities might also be undertaken by such participants, the responsibility for such activities was imposed, from an international law perspective, on States. Art. VI of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies imposes ‘international responsibility’ on States for ‘national activities in outer space’, undertaken either by ‘governmental agencies or by non-governmental entities’.13 This provision then goes on to specify that the ‘activities of non-governmental entities in outer space’ require ‘authorisation and continuing supervision by the appropriate State Party’.14 Despite the fact that the range of space activities and the number and type of participants in these activities has grown exponentially, this remains the position today. The provision itself provides no mechanism for such authorisation and supervision, but simply imposes the obligation on States to do so. It is in this context of the ongoing expansion of the reach and scope of international law, including the legal regulation of outer space, that the elements of the ‘law-making’ process involved in the development of the legally binding rules required clear(er) definition and specificity. As with most legal systems, it was seen as important to prescribe exactly where these international legal rules derived from, as a necessary prerequisite to establishing what they were and thus how they would be applicable (or not) to a particular situation.

The definition of the crime of aggression in the Rome Statute was only agreed in 2010 at the first Review Conference of the Rome Statute, held in Kampala, Uganda from 31 May to 11 June 2010 (Review Conference) ; see Resolution RC/Res.6, adopted at the Review Conference on 11 June 2010 (05/02/2011). 13 610 UNTS 205 (emphasis added). 14 The full text of Art. VI of the 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 nongovernmental 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 authorisation 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 organisation, responsibility for compliance with this Treaty shall be borne both by the international organisation and by the States Parties to the Treaty participating in such organisation.’

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This was particularly the case once the international community had recognised the utility of establishing international fora and institutions to discuss and resolve issues of concern. As an important part of this process, it was determined that international courts were to be established with a broad mandate of applying the rules of international law towards the resolution of disputes between States, or to answer legal questions of concern to the broader international community. This would also, in theory at least, contribute to an element of certainty as to precisely what were the international law rules relating to a particular issue. This need for certainty is a hallmark of any legal system, so that those that are subject to that system can operate with knowledge both of the relevant ‘rules of the road’ and the applicable enforcement mechanisms. Of course, this is of vital importance in the international legal system, given the diversity of political, economic, social, cultural and religious characteristics of each State. A process for the affirmation of a standardised set of binding rules, and clarity as to where to find those rules, were therefore important in establishing the structure of this international legal system, as well as the institutions that were to enforce the relevant principles. For these reasons, the Advisory Committee of Jurists that was given the task in 1919 by the League of Nations of preparing an appropriate instrument for the establishment of the Permanent Court of International Justice, the world’s first international court mandated to apply international law, sought to clarify the practical functioning of that Court.15 This required a determination as to where the relevant international law principles could be found. After considerable debate, the Committee agreed on the terms of Art. 38 of the Statute of the Permanent Court of Justice as follows :16

15 The work of the Committee can be found at Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, 16 June to 24 July 1920, L.N. Publication (1920), available at (31/01/ 2011). 16 Statute of the Permanent Court of Justice established pursuant to the Protocol of Signature relating to the Statute of the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations 6 LNTS 379 (PCIJ Statute), Art. 38. Art. 59 of the PCIJ Statute, which is referred to in Art. 38 (4), provides as follows : ‘The decision of the Court has no binding force except between the parties and in respect of that particular case.’ This mirrors Art. 59 of the Statute of the International Court of Justice.

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‘The Court shall apply : 1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting States ; 2. International custom, as evidence of a general practice accepted as law ; 3. The general principles of law recognized by civilized nations ; 4. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto’.

Although it was not expressed in the PCIJ Statute, nor was it necessarily the principal intention of the Advisory Committee of Jurists, it is generally asserted by international law scholars that Art. 38, and its successor provision in the Statute of the International Court of Justice (see below),17 set out the so-called ‘sources’ of international law.18 It is not surprising, therefore, that article 38 of the ICJ Statute follows the wording of Art. 38 of the PCIJ Statute, apart from the fact that the chapeau of the ICJ Statute provision includes additional wording as follows :19 ‘The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply : […]’

If anything, this additional wording further highlights the correlation between the list of ‘sources’ specified in the provision and the determination of the international law principles relevant to the dispute before the Court. The obligation on the Court to apply these elements is mandatory (‘shall’), also reiterating their significance in this regard. Over time, therefore, whereas these provisions in their original context may have been drafted for the specific purpose of giving direction to the respective Court in the way that it would approach a matter before it, they have subse17 1 UNTS 16 (ICJ Statute). 18 See, for example, Georg Schwarzenberger, International Law, Vol. 1 (3rd ed., Stevens and Sons Ltd., London 1957) 21–22 ; Antonio Cassese, International Law (2nded., Oxford University Press, Oxford-New York 2005) 156. 19 Another minor difference is that the wording of the last sentence of Art. 38 of the PCIJ Statute is drafted as a separate sub-paragraph, 38 (2), of the ICJ Statute.

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quently been interpreted as representing the exclusive list of ‘law-creating processes’ that determine the ‘hard’ rules of public international law. Much has been written by international law scholars in relation to the these sources of international law, and the sources themselves have, from time to time, been classified in terms of ‘formal’ and ‘material’ sources.20 Each of the respective sources has been the subject of detailed consideration by both Courts. Whilst it is beyond the scope of this article to discuss this in greater detail, it should be noted that, in more recent academic analysis, the elements of these traditional sources, particularly that of customary international law, have themselves been the subject of some discussion and conjecture. For example, a growing body of contemporary literature has more recently emerged that questions the traditional understanding of what constitutes a rule of customary international law.21 Nonetheless, a general observation could be made that these sources, particularly treaties and customary international law, play a very important and fundamental role in the international legal regulation of the exploration and use of outer space. They establish the framework according to which activities in outer space are to be conducted. In terms of international conventions, as is well known, five important United Nations treaties on outer space have been finalised under the auspices of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS). These are : 1. 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies ;22 2. 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space ;23 20 See, for example, Schwarzenberger, supra fn 18, 26–27. More generally as to the distinction between formal and material sources of law, see J.W. Salmond, Jurisprudence (7th ed., Sweet and Maxwell, London 1924) 310–311. 21 See, for example, Iain Scobbie, The approach to customary international law in the Study, in : Elizabeth Wilmshurst and Susan Breau (eds.), Perspectives on the ICRC Study on Customary International Humanitarian Law (Cambridge University Press, Cambridge et al. 2007) 15. That author (at page 24) describes various ‘revisionist accounts of custom formation’ ; Christiana Ochoa, The Individual and Customary International Law Formation, 48 Virginia Journal of International Law (2007) 119 ; Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law : A Reconciliation, 95 American Journal of International Law (2001) 757. 22 610 UNTS 205 (Outer Space Treaty). 23 672 UNTS 119 (Rescue Agreement).

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3. 1972 Convention on International Liability for Damage Caused by Space Objects ;24 4. 1975 Convention on Registration of Objects Launched into Outer Space ;25 5. 1979 Agreement Governing the Activities of States on the Moon and other Celestial Bodies.26 In addition to these treaties, it has also long been accepted that customary international law represents one of the ‘sources’ of space law.27 Describing the early emergence of customary international law in the context of outer space, Judge Manfred Lachs of the International Court of Justice observed, shortly after the first of the United Nations treaties on outer space had been finalised, that :28 ‘[t]he first instruments that men sent into outer space traversed the air space of States and circled above them in outer space, yet the launching States sought no permission, nor did the other States protest. This is how the freedom of movement into outer space, and in it, came to be established and recognised as law within a remarkably short period of time’.

Moreover, many of the provisions contained in (particularly) the Outer Space Treaty also reflect customary international law and thus bind State parties and non-parties to the Treaty alike. In any event, the major space-faring nations are States Parties to each of the United Nations treaties on outer space, with the exception of the Moon Agreement, which to date has not been supported by those States. All of this clearly points to the fact that there is a significant body of ‘hard law’, emanating from the traditional and widely accepted sources of international law, which regulates the exploration and use of outer space. This evolved from the necessity to establish the fundamental principles that underpin the legal regulation of outer space in a form that was clearly binding upon, and acknowledged as such by, the space-faring nations. 24 25 26 27

961 UNTS 187 (Liability Convention). 1023 UNTS 15 (Registration Agreement). 1363 UNTS 3 (Moon Agreement). See, for example, Vladlen S. Vereshchetin and Gennady M. Danilenko, Custom as a Source of International Law of Outer Space, 13 Journal of Space Law (1985) 22. 28 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark and Federal Republic of Germany v. The Netherlands) Judgment of 20 February 1969, Dissenting Opinion of Judge Lachs, ICJ Reports 1969, 230.

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Yet, as can be noted from the date of adoption of the United Nations treaties on outer space listed above, the most recent of these, the Moon Agreement, was finalised in 1979 and came into force in July 1984. As is well known, this instrument has so far received only 13 ratifications and four signatures during the more than 30 years since its formal adoption.29 Compared to the other United Nations space law treaties, this number is very low.30 Of greater significance is the fact that none of the major space-faring States has ratified it. If the goal of the Moon Agreement was to finalise legally binding terms, agreed and accepted by (in particular) those States most likely to be involved in the future ‘exploitation’ of the natural resources of the moon and other celestial bodies, then there are certainly reasons to regard the treaty as a ‘failure’. Whilst there are many reasons for the low level of ratification,31 it was clear that an ideological divide between those States that had the technological capacity and ambition to eventually seek to exploit the natural resources of the moon and other celestial bodies and those that did not, had once again manifested itself at the conclusion of the Moon Agreement. This was similar to the disagreements that followed the adoption of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).32 The consequence of this was that, from a real29 See United Nations Office of Outer Space Affairs, United Nations Treaties and Principles on Outer Space and Related General Assembly resolutions, Addendum ‘Status of international agreements relating to activities in outer space as at 1 January 2010’. The 13 States Parties to the Moon Agreement are Australia (1986), Austria (1984), Belgium (2004), Chile (1981), Kazakhstan (2001), Lebanon (2006), Mexico (1991), Morocco (1993), The Netherlands (1983), Pakistan (1986), Peru (2005), Philippines (1981), and Uruguay (1991). The four States that have signed the Agreement are France, Guatemala, India, and Romania. 30 By way of comparison, as at 1 January 2010, the Outer Space Treaty had 100 ratifications (and 26 signatures), the Rescue Agreement 91 (24), the Liability Convention 88 (23) and the Registration Convention 53 (4) : see United Nations Office of Outer Space Affairs, United Nations Treaties and Principles on Outer Space and Related General Assembly resolutions, Addendum ‘Status of international agreements relating to activities in outer space as at 1 January 2010’. 31 See also Ram Jakhu, Stephan Hobe and Steven Freeland, The Appropriateness of the Moon Agreement for Lunar Exploration and Use, presentation at the United Nations Global Lunar Conference, Beijing 31 May–3 June 2010, Proceedings of the International Institute of Space Law (2010) 562. 32 1833 UNTS 3. When the terms of UNCLOS were finalised, there was considerable controversy regarding the structure and operation of the regime for the deep sea bed to be established under that treaty, so much so that the industrialised countries declined to sign/ratify it in its original form. As a result, it became necessary to ‘supplement’ the regime through the finalisation of an additional agreement in 1994 — the New York Agreement Relating to the Implementation of Part XI (New York Agreement) 33 ILM 1309, which came into force in

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politik perspective, it was thenceforth not possible for a further binding hard law instrument to be negotiated and agreed through the consensus decision-making processes of UNCOPUOS, at least for the foreseeable future at that time. Yet, as became clear over the subsequent years, the continuous and rapid development of space-related technology meant that an even greater array of activities in outer space were possible and, indeed, were being undertaken, not only by States themselves, but also increasingly by the private sector. The need for, and reliance upon space technology came to become a standard feature of the development of virtually all industrialised (as well as many non-industrialised) countries. With this demand also came the development of massive commercial ‘industries’ in space, which itself gave rise to the ongoing development of additional technology and thus further potential for the use of outer space. While the fundamental principles contained in the United Nations Space Law treaties, as well as ‘international law, including the Charter of the United Nations’,33 of course remain relevant and applicable, they do not necessarily provide the specific standards or direction to provide clarity as to every aspect of the conduct of many such activities. This did not necessarily represent an impediment to the evolution of activities in outer space — rather it was the case that the law ‘lagged’ quite significantly behind the technology, leaving a number of ‘grey areas’ relating to the exploration and use of outer space. Addressing this paucity of specific principles for certain space-related activities was given added urgency by the fact that, historically, there were only a relatively small number of States (and their non-governmental entities) that were able to engage in such activities, although of course this number has increased over recent years. Nonetheless, there was, and still remains, a clear distinction between the space ‘haves’ and ‘have nots’, although the United Nations space law treaties do attempt to address this in generalised terms, affirming the ‘principle of cooperation and mutual assistance’ and stressing that activities in outer space should be conducted ‘with due regard to the corresponding interests of all other States Parties to the [Outer Space] Treaty’.34 In practice, these obligations were not sufficiently comprehensive to adequately clarify the principles and procedures that should apply to such emerging 1996 — following which most of the industrialised countries (apart from the United States) have subsequently become States Parties to UNCLOS. 33 See Outer Space Treaty, Art. III. 34 See Outer Space Treaty, Art. IX.

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(commercial) activities as direct television broadcasting via satellite and remote sensing of the earth from outer space, as well as space technology that involved the use of nuclear power sources. However, as noted above, the ideological divide that had emerged regarding the management of the legal regime for the use of outer space, particularly following the conclusion of the Moon Agreement, meant that ‘hard law’ instruments were simply not an option at the time as the way forward to address these and other concerns. It was thus that, over time, there has emerged an increasing tendency for the international community to resort to and rely upon what have typically been referred to as ‘soft law’ instruments — primarily United Nations General Assembly resolutions — to set out various additional principles relating to the exploration and use of outer space. With this background in mind, this chapter now turns to discuss the notion of soft law both in general terms and also as regards its relevance to the regulation of outer space activities.

II. The emergence of ‘soft law’ in the international legal regulation of outer space For the purposes of this discussion, ‘soft law’ instruments are intended to refer to written instruments that might purport to specify standards of conduct, but do not emanate from the traditional ‘sources’ of public international law. This qualification is itself not unanimously supported ; however, it is beyond the scope of this article to discuss what might be encapsulated in the various alternate theories of soft law. Suffice to say that some commentators, for example, include within the rubric of soft law those (legally binding) treaties that contain only soft obligations, sometimes referred to as ‘legal soft law’.35 Given the assumptions made in structuring this book, and particularly the specific space-related instruments on which it does (and does not) focus, this approach is not adopted for the purposes of the more general and necessarily brief discussion in this chapter. However, it could be noted in passing that certain provisions contained in the United Nations space law treaties might have charac35 See, for example, Christine M. Chinkin, The Challenge of Soft Law : Development and Change in International Law, 38 The International and Comparative Law Quarterly (1989) 850, 851 and the corresponding footnotes.

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teristics that approach this notion of ‘legal soft law’. For example, could it be asserted arguendo that the requirement that ‘the exploration and use of outer space […] shall be carried out for the benefit and in the interests of all countries […]’36 is a ‘soft’ obligation, or at least constitutes a ‘grey area’, in the sense that, in many circumstances, it would simply be impossible to comply with, or to verify compliance ? This is a somewhat controversial suggestion, particularly among space lawyers, and not one with which this author necessarily concurs, but perhaps it might need to be the subject of further discussion and debate in the future. Moreover, other hard law space principles appear to give rise to soft requirements — for example, where a mandatory obligation is to be complied with ‘to the greatest extent feasible and as soon as practicable’.37 While this book focuses on more traditional notions of soft law (see below), it would do well to keep these more conceptually difficult questions in mind should States Parties to the United Nations treaties on outer space seek to enforce some of these obligations before an international court. Rather, what is discussed in this chapter is something that might also, to follow on from the logic of the commentators referred to above, be described as ‘non-legal soft law’ — provisions contained in instruments, and the instruments themselves, that are not intended to be legally binding, but which purport to set out what might appear on their face to be international principles. By definition, one of the significant features of this form of soft law, which includes in particular (but is not limited to) United Nations General Assembly resolutions, is that there is no direct reference to them within the traditional sources of public international law. Of course, the terms of both ‘articles 38’ (of the PCIJ Statute and the ICJ Statute) were carefully crafted, and this omission in the ICJ Statute (which closely followed the general approach in the PCIJ Statute) therefore cannot be considered as an oversight, but rather as deliberate. In essence, therefore, if one thinks about public international law in (admittedly overly) simple terms as the law created ‘by States for States’, then it is clear that States did not want to be bound by such soft law instruments per se.38 Given the traditional view about the role and meaning of the two articles 38, it is sim36 See Outer Space Treaty, Art. I. 37 See Registration Convention, Art. IV (3). 38 It is apparent from a reading of the United Nations Charter that United Nations General Assembly resolutions are not intended to be binding : cf Art. 25 of the United Nations Charter, which confirms that ‘decisions’ of the United Nations Security Council are binding ; see in general Shaw, supra fn 1, 114, 1212.

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ply not possible to ignore this conclusion and instead claim that at least some of these other instruments also now constitute hard law. Indeed, such instruments have often been used precisely because it is accepted that they are not intended to be legally binding. Perhaps the most notable example of this is the Universal Declaration of Human Rights (UDHR), adopted by the United Nations General Assembly by 48 votes to none, with eight abstentions.39 The adoption of this Resolution was met with tumultuous applause. Yet, virtually in the next breath, States declared one after the other, in their interventions and statements of support of the Resolution, that the terms of the UDHR do not constitute binding obligations, but rather were aspirational in nature and represented standards that States should strive to achieve. Even the Chair of the United Nations Human Rights Commission tasked with drafting the UDHR, Eleanor Roosevelt, publicly declared that it ‘is not, and does not purport to be a statement of law or of legal obligation […] [but rather is] a common standard of achievement for all peoples of all nations’.40 This represents the traditional viewpoint of such instruments : that they may specify certain aspirations or recommendations, sometimes in respect of important issues, but that these are not, and are not intended to be binding, but rather may give guidance and/or maintain some momentum in relation to those issues. This is particularly the case in the area of the protection of environment, where there has been frequent resort to soft law instruments. The Stockholm Declaration41 and the Rio Declaration42 are important examples of the broad non-binding ‘soft law’ environmental instruments that have laid the general groundwork for the subsequent development of hard law principles. These soft law instruments provide guidelines or standards of conduct that may often influence the actions of States in relation to environmental protection, but they do not in and of themselves have the legal ‘force’ of binding treaties. Rather it is only the subsequent reflection in treaties and customary law of 39 United Nations General Assembly Resolution 217A (III) on the Universal Declaration of Human Rights (1948). The abstaining States were the Byelorussian SSR, Czechoslovakia, Poland, Saudi Arabia, South Africa, the Ukrainian SSR, the Soviet Union and Yugoslavia. 40 19 US Dept. of State Bull. (1948) 751, as quoted in Harris, supra fn 6, 552 ; see also UDHR, preambular para. 8. 41 1972 Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) UN Doc A/CONF.48/14/Rev.1. 42 1992 Declaration of the United Nations Conference on Environment and Development 31 ILM 874 (Rio Declaration).

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the relevant concepts contained in these instruments that gives rise to international legal obligations.43 In other contexts, and of particular relevance to their emergence in relation to the regulation of the exploration and use of outer space, soft law instruments may serve to ‘overcome a deadlock in relations between states pursuing ideological and/or economic aims’.44 With these considerations in mind, it is perhaps somewhat perplexing that such instruments are referred to as soft law, given the clear intention that they are not of a legally binding nature and thus are not ‘law’ in the sense that the concept is generally understood. Surely, one might argue, something either is or is not law (one cannot be ‘half-pregnant’). Yet, in the case of the UDHR, for example, there is no doubt that it had a very significant impact on the form and substance of subsequent human rights treaties45 — indeed, the UDHR, ICCPR and ICESCR are often collectively referred to as the ‘International Bill of Rights’. Moreover, in the landmark United States case of Filartiga v Pena-Irala, there was the recognition by the United States Appeals Court that the UDHR ‘no longer fits into the dichotomy of “binding treaty” against “non-binding pronouncement”, but is rather an authoritative statement of the international community’.46 Adding further to the complexity of assessing the legal status of instruments that develop outside of the traditional hard sources of public international law is the possibility that, without any additional evidence of opinio juris, the principles in soft law instruments per se represent hard law, in the form of customary international law. In the Nicaragua Case,47 the International Court of Justice, in concluding that there existed a customary international law rule prohibiting the use of force, appeared to rely solely on the relevant United Nations General

43 Pierre-Marie Dupuy, Soft Law and the International Law of the Environment, 12 Michigan Journal of International Law (1991) 420, 428. 44 Ignaz Seidl-Hohenveldern, International Economic Soft Law, 163 Recueil de Cours (1979-II) 164, as quoted in Harris, supra fn 6, 57. 45 See International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (ICESCR) ; International Covenant on Civil and Political Rights 999 UNTS 171 (ICCPR). 46 630 F. 2d 876 (1980) ; 19 ILM 966 (US Circuit Court of Appeals, 2nd Circuit), quoting E. Schwelb, Human Rights and the International Community (Quadrangle Books, Chicago 1964) 70. 47 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) Judgment of 27 June 1986, ICJ Reports 1986, 14 (Nicaragua Case).

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Assembly resolutions to support this finding.48 In essence, the Court considered these ‘non-hard’ instruments to constitute both the requisite opinio juris and State practice necessary to constitute ‘hard law’.49 It might be argued that such an approach challenges the traditional notions of the sources of public international law noted above, even more so given that such a principle (prohibiting the use of force) also constitutes a jus cogens norm, and thus (in theory) is hierarchically superior to traditional sources of law.50 Once again, this suggestion is beyond the scope of this article, but does represent another interesting discussion point for further consideration. When UNCOPUOS began deliberations on the legal principles applicable to space activities shortly after the ‘space race’ had begun in earnest with the launch of Sputnik I by the Soviet Union in October 1957, it was evident that a comprehensive legal code governing space activities would not be appropriate, or possible, at that stage.51 Instead, the UNCOPUOS Legal Subcommittee opted to undertake a progressive approach so as to remain in step with the development of space technology and applications.52 It was considered that, in relation to specific satellite applications, for example, it was more appropriate to adopt an instrument containing legal principles in the form of a United Nations General Assembly resolution before completing the negotiations on multilateral treaties.53 48 ICJ Reports 1986, 14, paras. 188–194, 202–209. See also Chinkin, supra fn 35, 858. 49 The classic description of what constitutes a rule of customary international law was given by the International Court of Justice in the North Sea Continental Shelf Cases ; see North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark and Federal Republic of Germany v. The Netherlands) Judgment of 20 February 1969, ICJ Reports 1969, 3, para. 77. The Court confirmed that customary international law evolves over time and is derived from sufficient (in the circumstances) evidence of both the ‘settled practice’ of States, as well as opinio juris (‘recognition as law’). 50 See VLCT, Art. 53, which defines a jus cogens norm as a ‘peremptory norm of international law’, provides : ‘A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’ 51 Vladimir Kopal, The Role of United Nations Declarations of Principles in the Progressive Development of Space Law, 16 Journal of Space Law (1988) 5, 6. 52 Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space to the United Nations General Assembly (1959) U.N.Doc. A/4141, Part III. 53 See Manfred Lachs, The Law of Outer Space : An Experience in Contemporary Law Making (Sijt-

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This gave rise to a number of resolutions prior to the finalisation of the Outer Space Treaty, the most significant of which was : • 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space ;54 As noted above, in the context of the regulation of the exploration and use of outer space, a series of soft law instruments have also been developed subsequent to the formulation of the Moon Agreement to address certain specific activities. In particular, the United Nations General Assembly adopted a number of spacerelated principles, the first of which was in 1982.55 These include : • 1982 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting ;56 • 1986 Principles Relating to Remote Sensing of the Earth from Outer Space ;57 • 1992 Principles Relevant to the Use of Nuclear Power Sources in Outer Space ;58 • 1996 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries.59

hoff, Leiden 1972) 27–41. 54 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res 1962 (XVIII) of 13 December 1963 (Space Principles Declaration). 55 One commentator, referring primarily to soft law instruments in the area of international economic law, has suggested that the increasing trend towards soft law instruments might possibly also be linked to the finalisation of the VCLT, which entered into force on 27 January 1980 and which ‘hardened’ the rules relating to treaties : Chinkin, supra fn 35, 860. There is no evidence, however, that this was a factor in relation to the development of the various spacerelated soft law instruments that emerged from the early 1980s. 56 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, GA Res 37/92 of 10 December 1982 (Direct Broadcasting Principles). 57 Principles Relating to Remote Sensing of the Earth from Outer Space, GA Res 41/65 of 3 December 1986. 58 Principles Relevant to the Use of Nuclear Power Sources in Outer Space, GA Res 47/68 of 14 December 1992 (Nuclear Power Principles). 59 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, GA Res 51/122 of 13 December 1996.

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These sets of principles provide inter alia for the application of international law and promotion of international cooperation and understanding in relation to space activities, the dissemination and exchange of information through transnational direct television broadcasting via satellite and remote satellite observations of earth, and general standards regulating the safe use of nuclear power sources necessary for the exploration and use of outer space. The five sets of principles referred to above have always been considered as constituting soft law. However, a number of the principles set out in these instruments have later been incorporated into hard law instruments. The terms of the Space Principles Declaration, which was the first codification of the fundamental principles that were ultimately to govern the exploration and use of outer space, are a case in point. This Resolution sets out a series of nine general principles that were, with only relatively minor amendment, included in the Outer Space Treaty some four years later. Yet, even though it was undoubtedly a very important instrument in the evolution of the formal rules governing the exploration and use of outer space, it was clear that the Space Principles Declaration was regarded as a non-binding set of principles that should ‘guide’ States in their space activities. 60 The nonbinding nature of the Space Principles Declaration is further emphasised by the very next Resolution passed on the same day by the United Nations General Assembly. That Resolution, dealing with ‘International co-operation in the peaceful uses of outer space’ recommended to member States that :61 ‘consideration should be given to incorporating in international agreement form, in the future as appropriate, legal principles governing the activities of States in the exploration and use of outer space’.

More recently, voluntary ‘guidelines’ have also been agreed that are intended to address the problematic issue of space debris.62 As is discussed further in this book, there are a number of other soft law space-related instruments as well. There is a 60 See Space Principles Declaration, preambular para. 8. 61 International Co-operation in the Peaceful Uses of Outer Space, GA Res 1802 (XVII) of 14 December 1962, para. I (1). 62 See UNCOPUOS, Report of the Scientific and Technical Subcommittee on its forty-fourth session, 2007, A/AC.105/890, Annex 4, 42 (05/02/2011).

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clear trend towards the use of such instruments, continuing the long-established understanding that soft law is a well-accepted methodology for furthering an understanding of how humankind should continue its endeavours in outer space. As well as their incorporation into hard law treaties, commentators have argued that a number of specific provisions contained in these soft law instruments may have subsequently crystallised into rules that represent customary international law.63 There is no doubt that soft law can eventually become customary international law.64 Indeed, a soft law provision (in a soft law instrument) may even be declaratory of customary international law in certain circumstances. To give just one possible example, once again from the Space Principles Declaration, one of the provisions of that instrument specifies that :65 ‘[o]uter space and celestial bodies shall not be subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means’.

This provision was subsequently incorporated (with only minor amendment) to form Art. II of the Outer Space Treaty, the so-called ‘non-appropriation’ principle.66 Yet, as indicated by the quote of Judge Manfred Lachs referred to earlier, this principle may have already constituted customary international law even before the date of the Space Principles Declaration, and certainly well before the date of the Outer Space Treaty. Indeed, by the time that the Outer Space Treaty was finalised, both the major space superpowers, the United States and the Soviet Union, had already been engaged in an extensive range of space activities ; yet neither had made a claim

63 See, for example, Ricky J. Lee and Steven Freeland, The Crystallisation of General Assembly Space Declarations into Customary International Law, Proceedings of the 46th Colloquium on the Law of Outer Space (2004) 122. 64 Chinkin, supra fn 35, 857. 65 Space Principles Declaration, para. 3. This principle had earlier been referred to in para. 1 (b) of United Nations General Assembly Resolution 1721 (A) (XVI) on International Cooperation in the Peaceful Uses of Outer Space (1961), which provided that : ‘[o]uter space and celestial bodies are free for exploration and use by all States in conformity with international law and are not subject to national appropriation’. 66 For a detailed analysis of Art. II of the Outer Space Treaty, see Steven Freeland and Ram Jakhu, Article II, in : Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.), Cologne Commentary on Space Law, Volume I — Outer Space Treaty (Carl Heymanns Verlag, Köln 2009) 44.

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to sovereignty over any part of outer space, including celestial bodies.67 This was not subsequently altered by the planting by the Apollo 11 astronauts of an American flag on the surface of the moon in 1969. As a result, although it was of great importance to formalise into a hard law instrument the principle of non-appropriation of outer space, the drafting process leading to the finalisation of Art. II of the Outer Space Treaty was relatively uncontroversial, particularly given its early acceptance as a fundamental concept by these two space-faring States. In terms of the subsequent transformation of a soft space law principle into a hard law rule of customary international law, this would not necessarily always be the case. Any such assertions must be based on the assumption that subsequent State practice may have altered the nature of that specific principle, and that, in addition, the requisite opinio juris had developed, despite the fact that it was not present at the time that the principle itself was incorporated into a soft law instrument. This is, of course, complicated by the fact that space activities have increasingly been undertaken by non-governmental (private) entities, and that the behaviour of these entities does not constitute State practice.68 The regulation of their conduct therefore seems urgent and should be done under national space legislation, which is demonstrative of State practice.69 The intention of those involved in the finalisation of the soft law provisions, and the support for those provisions, is also of relevance. The Direct Broadcasting Principles is an example of a soft law instrument whose principal provisions of a substantive nature, incorporating a ‘prior consent’ requirement for any proposed relevant activity,70 were never accepted as binding, and never intended (at least by the major space-faring States) to be legally binding in the future.71 67 By contrast, one could refer to the situation in Antarctica, which had seen a series of sovereign claims by several States in the period leading up to the finalisation in 1959 of the Antarctic Treaty, 402 UNTS 71. Art. IV of the Antarctic Treaty has the effect of suspending all claims to territorial sovereignty in Antarctica for the duration of that instrument, as well as prohibiting any ‘new claim, or enlargement of an existing claim’. The Protocol on Environmental Protection to the Antarctic Treaty, 30 ILM 1455, which came into force in 1998, augments the Antarctic Treaty by protecting Antarctica from commercial mining for a period of 50 years. 68 Chinkin, supra fn 35, 858. 69 See Steven Freeland, Matching Detail with Practice : The Essential Elements of National Space Legislation, Proceedings of the International Institute of Space Law (2010) 540. 70 See Direct Broadcasting Principles, principles 13 and 14. 71 The Direct Broadcasting Principles were exceptional in the evolution of both hard law and soft law instruments through the UNCOPUOS process, since it was not agreed by consensus.

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Whilst some have argued that the conclusion of soft law instruments allows States to reach ‘agreement’ in circumstances where a treaty is simply not (politically) possible,72 this is not always so and certainly was not the case with respect to the Direct Broadcasting Principles, where the usual ‘consensus’ approach towards concluding such instruments was by-passed. On the other hand, it has quite often been the case that the task of negotiating and finalising the terms of a soft law space-related instrument has been a complex and time consuming endeavour — for example, it took almost 10 years to negotiate the Nuclear Power Principles,73 which contain some complex technical recommendations relating to the use of nuclear power sources in outer space. In such circumstances, it may be more difficult to categorically argue that the final result — even if in the form of a soft law instrument — is not intended to have any legal consequence whatsoever. Perhaps the last word in this regard should be reserved to Sir Robert Jennings who, in 1980, when discussing United Nations General Assembly resolutions, wrote that ‘recommendations may not make law, but you would hesitate to advise a government that it may, therefore, ignore them, even in a legal argument’.74

III. Concluding comments So where do these various mixed messages leave us ? How are we to react to those soft law principles that purport to address aspects of the exploration and use of outer space ? Indeed, should we stop altogether from referring to them as soft law, since this might prejudice our view of their legal (or other) status ? Instead, it was adopted by a vote at the United Nations General Assembly — 103 in favour, 13 against and 13 abstentions. It was not supported by the major space-faring States, which included virtually all of those that, at the time were, or were likely to become involved in direct television broadcasting via satellite. 72 For a criticism of this argument, see Jan Klabbers, The Undesirability of Soft Law, 67 Nordic Journal of International Law (1998) 381. 73 For a description of the various stages of the negotiation process that eventually lead to the finalisation of the Nuclear Power Principles, see I.H. Ph. Diederiks-Verschoor and Vladimir Kopal, An Introduction to Space Law (3rd ed., Kluwer Law International, Aalphen aan den Rijn 2008) 101–106. 74 Robert Y. Jennings, What is international law and how do we tell it when we see it ?, The Cambridge-Tilburg law lectures, (3rd series, 1980) 14, as quoted in Harris, supra fn 6, 57.

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Irrespective of the answers to these difficult questions, there is no doubt that the continuing evolution of public international law, including the legal regulation of outer space, has increasingly included soft law instruments as part of the process. This is a tendency that is likely to continue. These soft law instruments take many forms, and (by definition) stray outside the boundaries of what we have traditionally held dear as the ‘sources’ of international law. This happens for a multitude of reasons, and, as has been briefly discussed in this article, opens the way for complex considerations as to precisely what the (legal) consequences of such instruments/principles are. Certainly, soft law instruments have their advantages in many situations — they allow for the prescription of standards and guidelines, whilst allowing States (and international intergovernmental organisations) some room to manoeuvre in the context of their relationships with each other. In the case of the legal regulation of outer space, this is almost an inevitable consequence of the fact that advances in space-related technology have continued to outweigh the capacity, and perhaps also the willingness, of the international community to come to a formalised agreement on the relevant legal rules that might be appropriate in response to such advances. This is, of course, even more so given the highly sensitive political, economic and military/strategic interests at play when it comes to the exploration and use of outer space, not to mention the very significant commercial considerations that are underpinning much of the technological progress that drives the emergence of many new space activities. On the other hand, as public international lawyers, we need to be careful not to read too much into such instruments when it is not appropriate. Just like, under the law of treaties, it is not permissible, in the absence of ambiguity in the terms of a particular treaty provision, to ‘read into’ that provision rules to reflect what should be,75 it is not appropriate to convert in our mind something that is not, and not intended to be such, into a binding rule or obligation. This need for caution sometimes goes against our instincts as academic international lawyers, given that we operate in a field of law where normative rules are distilled from descriptive behaviour, such as in the formulation of customary international law.76 75 See, for example, Interpretation of Peace Treaties Case with Bulgaria, Hungary and Romania (Second Phase), Advisory Opinion of 18 July 1950, ICJ Reports 1950, 221, 229. 76 Jan Klabbers, The Undesirability of Soft Law, 67 Nordic Journal of International Law (1998) 381, 385–389.

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Yet cautious we must remain. While there is no doubt that there is room for the use of soft law processes in the development of the ‘rules of the road’ for the continued evolution of space-related activities, in the end it is necessary for discussion, cooperation and agreement among all States with an interest in such activities in relation to the finalisation of binding obligations that will drive those activities in the future. The continuation of this cooperative approach to space law-making will ultimately lead to the codification of new and emerging principles into hard law treaties, with the acceptance of all relevant States, so as to complement and expand upon those fundamental rules that already exist in the various United Nations treaties on outer space. This is not to ignore the fact that there are many issues that represent considerable challenges as to how international law, incorporating the international legal regulation of outer space, will be able to cope with future activities in space. The way in which the rules are developed and adapted to meet these challenges will be important not only for outer space itself, but also for future generations living on Earth. The desire for agreement and certainty will serve to create an atmosphere of even greater trust and respect among all States, both towards each other and in relation to the way they explore and use outer space. This is absolutely necessary for the continued peaceful use of outer space in the future for the benefit of all humankind. Our use of outer space should reflect underlying notions of cooperation and shared benefit, which must remain as the cornerstones in this next phase of human achievement. International law has a crucial part to play in this regard.

Frans von der Dunk

Contradictio in terminis or Realpolitik ? A Qualified Plea for a Role of ‘Soft Law’ in the Context of Space Activities I. The issue of ‘soft law’ in the context of space activities The ongoing globalisation of law and legal developments and the increasing diversity of actors, stake-holders and interest-holders in the international community over roughly the last seven decades has — amongst many other things — put considerable pressure on the traditional perception of ‘law’ and its role in the international community. As will be argued, the more targeted discussions on ‘soft law’, whether it exists and if so what it means, form a specific component thereof. ‘Soft law’ instruments in this context could for instance ‘purport to specify rules of conduct, but do not emanate from the traditional “sources” of public international law’1 — a definition illustrating in a very clear manner the internal contradiction in the concept which will be shown to be at the core of the discussions about its existence and viability. Moreover, the issue, is not a merely academic one anymore, and for a variety of reasons the above is probably even more true in the area of space activities. It is also from this perspective that many analyses have addressed the Werdegang of space law from the dawn of the space age onwards.2 1 Steven Freeland, The Role of ‘Soft Law’ in Public International Law and its Relevance to the International Legal Regulation of Outer Space, supra, 19 (emphasis added). 2 Cf. e.g. Vladlen Vereshchetin, The Law of Outer Space in the General Legal Field (Commonality and Particularities), Proceedings of the 52nd Colloquium on the Law of Outer Space 2009 (2010) 3 ; Stephan Hobe, The Relevance of Current International Space Treaties in the 21st Century, XXVII Annals of Air and Space Law (2002) 335 ; Glenn Harlan Reynolds, Space Law in its Second Half-Century, 31 Journal of Space Law (2005) 413 ; Peter Jankowitsch, The Role of the United Nations in Outer Space Law Development : Past Achievements and New Challenges, 26 Journal of Space Law (1998) 101 ; Gabriel Lafferranderie, Basic principles Governing the Use of Outer Space in Future Perspective, in : Marietta Benkö and Kai-Uwe Schrogl (eds.), Space law : current problems and perspectives for future regulation (2005) 7 et seq.; also already the present author’s The Undeniably Necessary Cradle — Out of Principle and Ultimately Out of Sense, in : Gabriel Lafferranderie (ed.), Outlook on Space Law over the

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In terms of space law, so the story goes, it all started with a handful of internal administrative and/or non-legally binding United Nations General Assembly resolutions between 1958 and 1963, such as Resolutions 1348 (XIII)3 and 1472 (XIV)4 establishing the Committee on the Peaceful Use of Outer Space (UNCOPUOS) firstly as an ad hoc, then as a permanent committee, and Resolutions 1721 (XVI)B,5 1962 (XVIII)6 and 1963 (XVIII) setting out some principles to be adhered to in the conduct of space activities. A next phase, roughly encompassing the second half of the sixties and the first half of the seventies, saw the establishment of a handful of binding instruments : multilateral treaties, developed in the bosom of UNCOPUOS. The first four of those treaties — the 1967 Outer Space Treaty,7 the 1968 Rescue Agreement,8

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5 6

7

8

Next 30 Years, Essays published for the 30th Anniversary of the Outer Space Treaty (Kluwer Law International, The Hague 1997) 401 ; Jean-Louis van de Wouwer and François Lambert, European trajectories in space law (European Commission, Luxembourg et al. 2007) 19–72. Question of the peaceful use of outer space, GA Res 1348 (XIII) of 13 December 1958 ; Resolutions adopted on the reports of the First Committee, General Assembly — Thirteenth Session, at 5. International co-operation in the peaceful uses of outer space, GA Res 1472 (XIV) A of 12 December 1959 ; Resolutions adopted on the reports of the First Committee, General Assembly — Fourteenth Session, at 5. GA Res 1721 (XVI) B of 20 December 1961 ; General Assembly — Sixteenth Session, Resolutions adopted on reports of the First Committee, at 6. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res 1962 (XVIII) of 13 December 1963 ; United Nations Doc. A/ AC.105/572/Rev.1, at 37. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967 ; 610 UNTS 205 ; TIAS 6347 ; 18 UST 2410 ; UKTS 1968 No. 10 ; Cmnd. 3198 ; ATS 1967 No. 24 ; 6 ILM 386 (1967). As of the moment of writing, the Outer Space Treaty has 100 States Parties in addition to 26 Signatory States. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (hereafter Rescue Agreement), London/Moscow/Washington, done 22 April 1968, entered into force 3 December 1968 ; 672 UNTS 119 ; TIAS 6599 ; 19 UST 7570 ; UKTS 1969 No. 56 ; Cmnd. 3786 ; ATS 1986 No. 8 ; 7 ILM 151 (1968). As of the moment of writing, the Rescue Agreement has 92 States Parties in addition to 24 Signatory States.

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the 1972 Liability Convention9 and the 1975 Registration Convention10 — were to enjoy widespread, almost universal adherence, especially (in particular with reference to the Registration Convention with its considerably lower overall number of States Parties) where it concerned those States active in or with regard to outer space. A number of authors also considered the 1963 Partial Test Ban Treaty11 to be part of this core corpus juris spatialis, even though the treaty did not only concern the area of outer space but also the Earth’s atmosphere and the oceans. Moreover, though enjoying ratification by a large group of nations, soon key States becoming threshold or near-nuclear powers turned out to not be amongst those nations raising major concerns regarding relevance and status of the legal regime as such. Meanwhile the development of a new, Comprehensive Test Ban Treaty12 has caused the legal situation to become even more complicated in this context, so these treaties will not be further taken into consideration. In any event, the last truly multilateral treaty to arise out of United Nationslevel negotiations and UNCOPUOS, the 1979 Moon Agreement13, turned 9 Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972 ; 961 UNTS 187 ; TIAS 7762 ; 24 UST 2389 ; UKTS 1974 No. 16 ; Cmnd. 5068 ; ATS 1975 No. 5 ; 10 ILM 965 (1971). As of the moment of writing, the Liability Convention has 90 States Parties in addition to 23 Signatory States. 10 Convention on Registration of Objects Launched into Outer Space (hereafter Registration Convention), New York, done 14 January 1975, entered into force 15 September 1976 ; 1023 UNTS 15 ; TIAS 8480 ; 28 UST 695 ; UKTS 1978 No. 70 ; Cmnd. 6256 ; ATS 1986 No. 5 ; 14 ILM 43 (1975). As of the moment of writing, the Registration Convention has 55 States Parties in addition to 4 Signatory States. 11 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (hereafter Partial Test Ban Treaty), Moscow, done 5 August 1963, entered into force 10 October 1963 ; 480 UNTS 43 ; TIAS 5433 ; 14 UST 1313 ; UKTS 1964 No. 3 ; ATS 1963 No. 26. As of the moment of writing, according to the US State Department’s website (http :// www.state.gov/t/isn/4797.htm ; pages 7–9) the Partial Test Ban Treaty has 117 States Parties (94 having ratified, 23 having acceded to the treaty) in addition to 11 Signatory States. For completeness’ sake, it should be added that the United Kingdom and Russia are the two other depositary States ; their respective lists should, but may not exactly, match the list provided by the United States as depositary. 12 Comprehensive Test Ban Treaty, New York, done 24 September 1996, not yet entered into force ; 35 ILM 1439 (1996) ; S. Treaty Doc. No. 105–28 (1997). As of the moment of writing, 154 States have ratified the treaty whereas 28 States have signed but not (yet) ratified it. 13 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereafter Moon Agreement), New York, done 18 December 1979, entered into force 11 July 1984 ; 1363 UNTS 3 ; ATS 1986 No. 14 ; 18 ILM 1434 (1979).

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out to fail precisely to achieve any measure of ratification by major space-faring States, causing most of the non-space-faring States at the time to also not bother with ratification. Whilst the number of ratifications over the last years has gone up slightly, it still remains at only 13 thirteen to this day — and none of the ratifying States could be called a major space power.14 As a consequence of the lack of further probabilities, presumed apparent from the failure of the Moon Agreement, that the international community would ever be able to arrive at another treaty on outer space enjoying widespread acceptance, a third era was seen to come about, where resort was once more taken to such non-binding legal instruments as United Nations resolutions — major examples thereof being Resolutions 37/92,15 41/65,16 47/6817 and 51/122.18 This development has been lamented in particular by a number of authors,19 and criticised for its non-binding character which threatened to create more confusion as to what the legal rights and obligations of relevant players were and/or should be, instead of hoped-for clarity regarding the direction the legal regime 14 Cf. e.g. Freeland, supra, 16 ; Ram Jakhu, Stephan Hobe and Steven Freeland, The Appropriateness of the Moon Agreement for Lunar Exploration and Use, Proceedings of the International Institute of Space Law (2011) 562–8 ; Fabio Tronchetti, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies. A Proposal for a Legal Regime (Martinus Nijhoff Publishers, Leiden-Boston 2009) esp. 38 et seq.; the author’s The Moon Agreement and the Prospect of Commercial Exploitation of Lunar Resources, XXXII Annals of Air and Space Law (2007) 91. 15 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, GA Res. 37/92 of 10 December 1982 ; United Nations Doc. A/ AC.105/572/Rev.1, at 39. 16 Principles Relating to Remote Sensing of the Earth from Outer Space, GA Res. 41/65 of 3 December 1986 ; United Nations Doc. A/AC.105/572/Rev.1, at 43 ; 25 ILM 1334 (1986). 17 Principles Relevant to the Use of Nuclear Power Sources in Outer Space, GA Res. 47/68 of 14 December 1992 ; United Nations Doc. A/AC.105/572/Rev.1, at 47. 18 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of all States, Taking into Particular Account the Needs of Developing Countries, GA Res. 51/122 of 13 December 1996 ; United Nations Doc. A/RES/51/122. 19 See Vereshchetin, supra fn 2, 8–9 ; Stephan Hobe, Historical Background, in : Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.), Cologne Commentary on Space Law, Volume I — Outer Space Treaty (Carl Heymanns Verlag, Köln 2009) 15–6 ; José Monserrat Filho and Alvaro Fabricio dos Santos, Is there a Future for Space Law beyond “Soft Law” ?, Proceedings of the International Institute of Space Law 2010 (2011) 234 et seq., summarising part of the discussion inter alia by reference to such authors ; further e.g. Vereshchetin, esp. 5, 8 et seq.; Hobe supra fn. 2, 339–40 ; Lafferranderie, supra fn 2, esp. 19–20. Making a case for United Nations resolutions as effectively a form of soft law with its own advantages as compared to ‘hard’ treaty law by contrast is Nandasiri Jasntuliyana, Treaty Law and Outer Space : Can the United Nations Play an Effective Role ?, XI Annals of Air and Space Law (1986) 219.

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of outer space was developing. Though perhaps understandable, even unavoidable in view of the growing number and diversity of actors and stake-holders in outer space and space activities, it was considered a major step backwards. After a ‘golden era’ of achieving near-global agreement on clear and binding legal regimes by means of the space treaties, apparently the best the international community could now come up with were non-binding sets of guidelines — some of them of a rather limited purport, too. A main example of the latter of course was Resolution 47/68, providing as it did rather technical guidelines for the safe handling of nuclear power sources in space adventures. It is in this context in particular, that concepts such as ‘customary international law’ (as a means for interpreting per se non-binding documents in such a manner that they would after all contain some legally binding rules) and ‘soft law’ (as a status perceived to be in between legal rules which need to be obeyed and non-legal rules which legally speaking can be disregarded) became heavily discussed, almost as an effort to fill the gaps left by the inability to agree on a world-wide scale on further treaty regimes. Also the present book contains several contributions undertaking analyses of these phenomena,20 which is why the present contribution has chosen another angle of approach. This chapter namely takes a step back, almost outside of the realm of law itself, in order to take a fresh look at those debates on whether ‘soft law’ exists and, if so what it is — and then of course come back to the main question posed here as to whether it would be a useful or on the contrary counterproductive notion from the perspective of furthering the cause of space law.

II. The characteristics of ‘law’ and ‘(international) space law’ Whenever the role of ‘soft law’ is discussed in the context of space activities, it is usually the public international body of space law which is addressed, at heart still part of the larger body of public international law. True, with the extending 20 See e.g. Steven Freeland, The Role of ‘Soft Law’ in Public International Law and its Relevance to the International Legal Regulation of Outer Space, supra 19–28 ; Brian Lepard, The Legal Status of the 1996 Declaration on Space Benefits : Are Its Norms Now Part of Customary International Law?, infra, 291–294 ; Setsuo Aoki, The Function of ‘Soft Law’ in the Development of International Law, infra, 57–85, especially 61 ff. For a more general analysis of the concept of customary law, see also Brian Lepard, Customary International Law : A New Theory with Practical Applications (Cambridge University Press, Cambridge 2010).

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role of intergovernmental cooperation in outer space and the increasing privatisation of space activities, ‘internal’ institutional arrangements respectively domestic private law may continuously gain in importance. Yet, those more novel legal ‘systems’ are still fundamentally contingent upon the public corpus juris spatialis internationalis, most notably through such concepts as State responsibility,21 State liability for damage caused by space objects,22 and jurisdiction over space objects specifically through their registration by one State or another.23 In other words : States are still, certainly in legal terms, the key factors in space law. This also continues to justify addressing the issue of soft law in such a public international law-context in particular. Public international law in its turn is of course part of the comprehensive body of all law, and here it should be noted that ‘law’ usually is considered a social construct, one social tool among others for helping to hold a society of humans together in a meaningful manner. It distinguishes itself from other such social constructs — ranging from religion to currency, from social and political norms to a common (sense of ) history — by its formality and consequent relative precision and objectivity, incorporating its own system for adaptation and change of itself, and working through concepts that in principle everyone within such a society is subjected to, that normally most within that society subscribe to for the major part and that can, in one way or another, be enforced against those that may not wish to be subjected or subscribe to it at a certain point in time — in short : ‘hard’ law. This is probably also why lawyers, including space lawyers, with a view to confident argumentation in first instance tend to attach greatest value to clearly phrased and written rules of law, and might often not be very sympathetic to the possibility of the existence of ‘grey’ areas where it would be rather uncertain whether such rules are binding or not, where the legal value would not simply be ‘0’ or ‘1’ but might well be vacillating somewhere in between. 21 Cf. Art. VI Outer Space Treaty, providing for international responsibility inter alia for space activities ‘carried on […] by non-governmental entities’ and consequently requiring ‘the appropriate State’ to exercise ‘authorization and continuing supervision’. 22 Cf. Art. VII Outer Space Treaty, jointly with Arts. I(c), II–V Liability Convention, providing for liability for damage caused by space objects exclusively through the concept of ‘the launching State’. 23 See Art. VIII Outer Space Treaty, jointly with Art. II, Registration Convention. By means of those provisions, a fundamental right for a State to exercise jurisdiction over registered spacecraft and their personnel is added to the ‘traditional’ accepted bases for exercising State jurisdiction, notably of territoriality of events at issue and of nationality of those entities or persons responsible for them.

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Within this general conception of ‘law’ as a social construct public international law, including space law, concerns a body of law which distinguishes itself from other bodies of law through a number of features elsewhere discussed in much more precision and legal detail, but essentially amounting to the following. Firstly, in line with the public character already noted briefly, public international law is a body of law dealing with issues involving various States. Traditionally, States even were the only subjects of public international law, but especially since World War II in many cases international intergovernmental organisations, companies and individual persons also acquired a measure of legal personality in the international field. Still, and in spite of the fact that this may not always be representative of political or economic reality, this concerns generally limited manifestations of international legal personality ; States remain the only international law subjects across the whole spectrum of public international law. As a result, in many respects, the rights (and duties) of other actors in the international arena are still taken care of in legal terms through one State or another. In space law specifically this is even more true due to the military and strategic considerations almost always prominently present in the context of space activities, the benefits from outer space ventures which were for a long time considered to be either in that realm or in the scientific one, as well as the size of costs and risks involved in going into outer space. Those factors, at least for the first few decades, caused space activities essentially to be beyond the reach of private enterprise — and even beyond the reach of many individual nations, causing them in some cases to cooperate together through international, more or less institutional (but certainly still public) constructs such as the international satellite operators INTELSAT24 and INMARSAT,25 and the European 24 Following the realisation of an interim-organisation, INTELSAT properly was established as an international public consortium in 1971 by means of the Agreement Relating to the International Telecommunications Satellite Organisation (INTELSAT), Washington, done 20 August 1971, entered into force 12 February 1973 ; 1220 UNTS 21 ; TIAS 7532 ; 23 UST 3813 ; UKTS 1973 No. 80 ; Cmnd. 4799 ; ATS 1973 No. 6 ; 10 ILM 909 (1971) ; and the Operating Agreement Relating to the International Telecommunications Satellite Organisation (INTELSAT), Washington, done 20 August 1971, entered into force 12 February 1973 ; 1220 UNTS 149 ; TIAS 7532 ; 23 UST 4091 ; UKTS 1973 No. 80 ; Cmnd. 4799 ; ATS 1973 No. 6 ; 10 ILM 946 (1971). Of course, more recently INTELSAT was privatised, causing a rump-IGO INTELSAT to co-exist side by side with a private operator Intelsat. 25 INMARSAT was established as another international public satellite operating consortium in 1976 by means of the Convention on the International Maritime Satellite Organisation (IN-

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Space Agency (ESA).26 The resulting and — in spite of the developments mentioned — still persisting key role of States in space activities was of course also reflected fundamentally in the corpus juris spatialis. The Outer Space Treaty refers to ‘non-governmental entities’ just once,27 and to intergovernmental organisations only as vehicles for international cooperation of sovereign States.28 None of the space treaties following the Outer Space Treaty refers in any more detail to ‘non-governmental entities’, and though intergovernmental organisations have been granted a certain legal possibility to become ‘quasi-parties’ to those treaties,29 these possibilities (a) are limited to the material clauses of the treaty at issue and do not encompass for example the right to propose amendments ; (b) are subject to the requirement that the individual member States of such an organisation can always be held responsible in conformity with Art. VI of the Outer Space Treaty if the organisation itself fails to appropriately answer to such responsibility ; and in the case of the Liability Convention (c) exclude the possibility for direct claims by an intergovernmental organisation whilst allowing claimants against such an organisation to address the individual member States in case the organisation itself fails to rapidly solve the claim.30

26

27 28

29 30

MARSAT), London, done 3 September 1976, entered into force 16 July 1979 ; 1143 UNTS 105 ; TIAS 9605 ; 31 UST 1 ; UKTS 1979 No. 94 ; Cmnd. 6822 ; ATS 1979 No. 10 ; 15 ILM 1052 (1976) ; and the Operating Agreement on the International Maritime Satellite Organisation (INMARSAT), London, done 3 September 1976, entered into force 16 July 1979 ; 1143 UNTS 213 ; TIAS 9605 ; 31 UST 1 ; UKTS 1979 No. 94 ; Cmnd. 6822 ; ATS 1979 No. 10 ; 15 ILM 233, 1075 (1976). Like INTELSAT, INMARSAT was privatised later on, resulting in a rump-IGO INMARSAT and a private operator Inmarsat. ESA was created by the Convention for the Establishment of a European Space Agency (hereafter ESA Convention), Paris, done 30 May 1975, entered into force 30 October 1980 ; 14 ILM 864 (1975) ; Space Law — Basic Legal Documents, C.I.1. In Art. VI Outer Space Treaty ; see also supra, fn 21. Cf. Art. VI Outer Space Treaty, making member States of an intergovernmental organisation active in outer space responsible for those activities rather than the organisation itself, and Art. XIII, Outer Space Treaty, which refers to such organisations as a ‘framework’ within which the States concerned carry out space activities. Cf. Art. 6 Rescue Agreement ; Art. XXII Liability Convention ; Art. VII Registration Convention ; and Art. 16 Moon Agreement. See Art. XXII (3) Liability Convention, which provides : ‘If an international intergovernmental organization is liable for damage by virtue of the provisions of this Convention, that organization and those of its members which are States Parties to this Convention shall be jointly and severally liable ; provided, however, that : (a) Any claim for compensation in respect of such damage shall be first presented to the organization ; (b) Only where the organization has not paid, within a period of six months, any sum agreed or determined to be due as compensation

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Secondly, in many respects, general public international law has often been considered a rather rudimentary and ‘immature’ or embryonic legal system, causing some even to question it is truly law in the first place. The arguments supporting such statements usually focus on the general absence of a global adjudicative system (even the World Court essentially depending upon individual parties to a dispute for being entitled to exercise jurisdiction31) and, even more, an effective enforcement regime (the United Nations Security Council, the closest thing to an international policeman, being entitled to act with force against unwilling member States only in rather restricted circumstances, as further compromised by the political reality of superpower vetoes32). Since the general rules of public international law, including the United Nations Charter, are considered to be applicable also to outer space (unless under the lex specialis derogat lex generalis principle specific and different space law provisions would be pertinent) these considerations would also automatically apply to the corpus juris spatialis internationalis.33 for such damage, may the claimant State invoke the liability of the members which are States Parties to this Convention for the payment of that sum.’ 31 Cf. the famous jurisdictional clause of Art. 36 Statute of the International Court of Justice (hereafter ICJ Statute), San Francisco, done 26 June 1945, entered into force 24 October 1945 ; 156 UNTS 77 ; USTS 993 ; 59 Stat. 1031 ; UKTS 1946 No. 67 ; ATS 1945 No. 1 : ‘1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning : a. the interpretation of a treaty ; b. any question of international law ; c. the existence of any fact which, if established, would constitute a breach of an international obligation ; d. the nature or extent of the reparation to be made for the breach of an international obligation. 3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.’ In addition, the so-called forum prorogatum concept allows the ICJ to entertain jurisdiction once parties are seen to have silently accepted such jurisdiction through asserting arguments on the merits of a dispute before the court. 32 See esp. Arts. 39–42 Charter of the United Nations (hereafter United Nations Charter), San Francisco, done 26 June 1945, entered into force 24 October 1945 ; USTS 993 ; 24 UST 2225 ; 59 Stat. 1031 ; 145 UKTS 805 ; UKTS 1946 No. 67 ; Cmd. 6666 & 6711 ; CTS 1945 No. 7 ; ATS 1945 No. 1. 33 See of course especially Art. III Outer Space Treaty, which transfers this assumption into an explicit and official part of space law. Thus, whenever specific space law provides for insufficiently clear or disputed legal rules, or whenever it does not provide for any legal guidance at all, reference should be had to general public international law to solve a particular issue or dispute.

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More to the point, the embryonic nature of public international law means that its main subjects — the States — can still largely determine individually which part of that legal order to accept and live by. In their sovereignty, they can choose to sign and ratify a particular treaty — or refuse to do so ; treaty law of course being one of the two major recognised and accepted sources of international law.34 In terms of space law specifically, the discussions regarding the terms of the Moon Agreement are quite illuminating in this regard. The major novelty of the Moon Agreement as compared to the previous space treaties developed in UNCOPUOS was its insistence on the Moon and its natural resources being ‘the common heritage of mankind’,35 as presumably different from the concept of the ‘province of all mankind’ which the Outer Space Treaty’s Article I makes reference to. Whilst the precise terms of what the ‘common heritage of mankind’ in the context of lunar exploration and exploitation was to mean had yet to be worked out, with an eye to roughly parallel developments in the context of the law of the sea and the ocean floor States and legal experts alike commonly understood the concept to refer to some form of obligatory revenue-sharing and technology transfers,36 which caused most States, including all major space powers, to abstain from ratifying.37 In the light of the widespread failure to ratify the Moon Agreement, staunch supporters of the ‘common heritage of mankind’ idea would then come up with arguments that, independently from the treaty text, the concept would be bind34 See Art. 38 (1) lit a ICJ Statute ; with Art. 38 as such, as Freeland, supra, at 13–15, correctly observed, widely being understood as reflecting the sources of public international law in general terms (as opposed to just for the purpose of solving a case before the ICJ). 35 Art. 11 (1) Moon Agreement. 36 The United Nations Convention on the Law of the Sea, Montego Bay, done 10 December 1982, entered into force 16 November 1994 ; 1833 UNTS 3 & 1835 UNTS 261 ; UKTS 1999 No. 81 ; Cmnd. 8941 ; ATS 1994 No. 31 ; 21 ILM 1261 (1982) ; S. Treaty Doc. No. 103–39 ; in its Part XI contained a rather elaborate scheme for revenue-sharing and technology transfers in the context of exploiting the ocean floor, involving international entities to be created such as The Authority and The Enterprise. 37 For a more extended analysis of these issues, cf. especially Tronchetti, supra fn 14, 38–61 ; also Henry Hertzfeld and Frans von der Dunk, Bringing Space Law into the Commercial World : Property Rights without Sovereignty, 6 Chicago Journal of International Law (2005) 81 ; the author’s The Moon Agreement and the Prospect of Commercial Exploitation of Lunar Resources, XXXII Annals of Air and Space Law (2007) 91.

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ing upon all as customary law or even as jus cogens (a special concept to be further addressed below). As far as the treaty itself was concerned, however, legal analysis clearly could and did come to only one conclusion. As much as in the context of the preceding UNCOPUOS discussions the States refusing adherence had not indicated any strong antagonism (otherwise UNCOPUOS would never have been able to arrive at an agreed draft text in the first place !), the primordial sovereign right of States to change their minds prevailed. This sovereignty, entitling them to determine for themselves which treaties to adhere to and which not, could only mean that refusing States could not in any measure consider to be bound by whatever the Moon Agreement provided above and beyond what was already in the other space treaties, general international law and had obtained the status of ‘customary international law’ as applicable to those States. That brings discussion to the other major source of international law,38 where things are somewhat more complicated. From an outside perspective ‘customary international law’ is not so much a source or body of law arising through a clear and formal process as characterises treaty law, but a label stuck by relevant States and at least a majority of international law experts on developments happening in political, economic, social and other non-legal terms. 39 Such labels are accorded on the basis of an analysis of these developments as recast in terms of ‘State practice’ and ‘opinio juris’, and thus almost inevitably involve a far greater measure of insecurity — read subjectivity — than treaty law as to whether a certain legal rule exists or not.40 Still, similarly to treaty law, States can through their own ‘practice’ and opinio juris essentially determine which purported rules of customary international law they choose to abide by, respecively refuse to abide by, for example by becoming ‘persistent objectors’. With regard to the discussion on customary law specifically in the context of space law the developments concerning United Nations Resolution 41/65, containing the principles on remote sensing, are particularly illustrative. The 38 Cf. Art. 38(1.b) ICJ Statute ; see also supra, fn 34. 39 See also the extended analysis of customary international law in general in Brian D. Lepard, The Legal Status of the 1996 Declaration on Space Benefits : Are Its Norms Now Part of Customary International Law?, infra, 289–313. 40 Cf. further Ian Brownlie, Principles of Public International Law (7th ed., Oxford University Press, Oxford 2008) 6 et seq.; Rudolf Bernhardt, Customary International Law, in : Rudolf Bernhardt (ed.), Max Planck Encyclopedia of Public International Law, Vol. 1 (North Holland Publishing Company, Amsterdam et al. 1992) 898–903.

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Resolution, as a United Nations General Assembly resolution per se being nonbinding, had been accepted by ‘consensus’ — a concept meaning no United Nations member State felt sufficiently ‘threatened’ by its principles to express serious doubts about or objections to its text.41 Moreover, at least in the eyes of many beholders, the de facto adherence of most relevant States to the key concepts of the resolution — ‘access [by the sensed State] to (…)[primary data and processed data concerning the territory under its jurisdiction] on a non-discriminatory basis and on reasonable cost terms’ and ‘access to the available analysed information concerning the territory under its jurisdiction in the possession of any State participating in remote sensing activities on the same basis and terms’42 — transformed the relevant, as such non-binding, principles into customary international law.43 The present analysis will address this particular example further below. Reverting to general public international law for the moment, only by way of the interrelated concepts of jus cogens44 and obligations erga omnes45 has international law been able to nibble away at the fundamental self-regulatory character of public international law as viewed from a narrowly legalistic perspective. The essential element of these concepts for the present purpose is that States which have persistently refused to ratify relevant treaties and whose State practice and opinio juris clearly go against relevant perceived rules of customary international law are also still bound to a rule once it has achieved the elevated status of a rule of jus cogens and an obligation erga omnes. The classroom example is of course the 41 See on the concept of ‘consensus’ e.g. Erik Suy, Consensus, in : Bernhardt, ibid., 759–60. 42 Principle XII Principles Relating to Remote Sensing of the Earth from Outer Space. 43 Interestingly, by way of a side note, this then also lead to a discussion as to whether to transform the Principles into a proper treaty — as its main contents had already become binding by now anyway, and the original resistance against a treaty should consequently have disappeared — or simply leave them as is — since they were already binding anyway. 44 See Arts. 53, 64, Vienna Convention on the Law of Treaties, Vienna, done 23 May 1969, entered into force 27 January 1980 ; 1155 UNTS 331 ; UKTS 1980 No. 58 ; Cmnd. 4818 ; ATS 1974 No. 2 ; 8 ILM 679 (1969) ; Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgment of 27 June 1986, ICJ Reports 1986, 14, 90–91 ; also Freeland, supra, at 23, fn 50 ; Jochen Frowein, Jus Cogens, in : Rudolf Bernhardt, Max Planck Encyclopedia of Public International Law, Vol. 3 (North Holland Publishing Company, Amsterdam et al. 1997) 65. 45 See Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Judgment of 5 February 1970, ICJ Reports 1970, 3, 32 ; see further Ram Jakhu, Legal Issues Relating to the Global Public Interest in Outer Space, 32 Journal of Space Law (2006) 31, 39 ; Frowein, supra fn 44, 66–67.

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apartheid-era South Africa46 — but the threshold for a rule to reach the necessary status is very high.47 In terms of space law, though efforts have from time to time surfaced to establish such an elevated normative status for example with respect to the ‘common heritage of mankind’ concept or the right of remotely sensed States to control the generation and distribution of data regarding their respective territories, the absence of a large consenting majority across various groups of nations — usually seen as necessary for fulfilling the requirement of acceptance and recognition by ‘the international community of States as a whole’48 — has caused such efforts to fail throughout. Other than generally acknowledged prohibitions of such international crimes as aggression against sovereign States, genocide and racism, which also apply to outer space and space activities, space law does not know of any specific instances of jus cogens respectively obligations erga omnes — meaning, essentially, that unless a specific State’s ratification of a relevant treaty can be shown or its relevant State practice and accompanying opinio juris can be discerned, that State maintains its fundamental sovereign discretion in choosing whether to adhere or not to a specific presumed rule of space law. Of course, the above has so far steered clear of the discussion on the specific concept of ‘soft law’ ; it is submitted, however, that it serves as a necessary or at least helpful preliminary analysis to that particular discussion as it highlights the general tendency of space lawyers to prefer clear legal guidance by way of ‘hard’ law over the various legal complexities and uncertainties inherent in applying a concept such as ‘soft law’. This brings us back to the general character and perceived role of law in general in the first place, before finally addressing the issue of soft law in the context of space law and space activities.

46 See e.g. Jost Delbrück, Apartheid, in : Bernhardt, supra fn 40, 193–194, and literature quoted there. 47 Cf. Art. 53 Vienna Convention on the Law of Treaties, which requires such a norm to be ‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’ ; also Art. 19 ILC Draft Articles on State Responsibility, Yearbook of the ILC (1980 II, 2), 32, on ‘international crimes’. 48 Art. 53 Vienna Convention on the Law of Treaties ; supra, fn 47.

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III. The role of ‘law’ per se in the context of space activities Law has been referred to above as a social construct for helping a society of humans to hold together. This, it is submitted, in very general terms also constitutes the cause of space law to be furthered inter alia by the present analysis. Of course, in the context of public international law, the ‘society’ at issue is the international community, and as this has historically developed, the legal construct of the (sovereign) ‘State’ essentially worked by grouping the humans concerned together in a manner considered necessary for a feasible international legal order. Also in this context, however, the general aim and role of ‘the law’ is generally given shape along two alternative, sometimes even conflicting lines. The first line is what one might call ‘legal morality’. Whether such a goal is actually achieved at any given point in time may be largely a matter of perception, but the law is usually expected to mirror (at least essentially and largely) some form of ‘justice’ in the moral and ethical sense of the word, and perceptions of what is right respectively wrong in the society at hand. A piece of law that is considered fundamentally unjust by a majority of members of the relevant society is not destined for longevity. This holds true even more for international space law as a branch of public international law in view of its self-regulatory character. In the absence of legitimacy in the eyes of most States, in particular space-faring ones, any effort to establish a new rule of space law will of necessity be stillborn, as these States will simply refuse to adhere to any treaties giving expression to such a rule and/or to behave in any manner allowing for the label of ‘customary international legal obligation’ to be stuck on it. The Moon Agreement’s fate is the obvious space law-example thereof. From the same perspective therefore, the whole discussion on the ‘common heritage of mankind’, referenced above, abounds with moral and ethical claims that the developing nations should not be deprived of any possibility to enjoy the benefits of outer space activities — notably, in this case, mineral and other resources of the Moon and other celestial bodies — merely because their technological and financial development is lagging behind that of ‘more fortunate’ States.49 Application of the ‘common heritage of mankind’ principle was aimed 49 The same ‘morality’ and ethical considerations were behind the broad concept of the ‘New International Economic Order’ which gained prominence in the years immediately before the Moon Agreement started to be drafted and was most explicitly given expression by means of

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at redressing those inequalities by mandatory revenue-sharing and technology transfers. Also the ultimate denial of world-wide acceptability of the concept was often dressed in moral terms. Apart from stifling any interest in trying to harvest those celestial resources (a more practical argument), it was simply considered immoral by many to force those willing to take the risks and pay the price to try and harvest celestial resources to share any possible — but certainly not guaranteed — revenues or other benefits with those who had not undertaken any effort in that direction whatsoever. International law, including space law, has always tried to properly incorporate such considerations in more formally-legal discussions through concepts like ‘equity’50 and ‘ex aequo et bono’.51 Similarly, in the debate on the applicability of Resolution 41/65’s principles on remote sensing as legal obligations, essentially moral claims regarding the inherent right of a State to receive any information regarding its own territory acquired by other States or entities had to be balanced with the essentially moral claims that States which spent huge efforts and took large risks in developing, launching and operating remote sensing satellites could not be forced to simply share any resulting data with others who did not employ such efforts or take such risks.52 The above also brings us to the second line along which to achieve law’s aims in terms of organising society, of what one might call ‘legal practicality’. Whatever law results from the law-generating processes at issue, it should be practical at least to a certain level — meaning that it should be understandable to the subjects at issue and be not overly complicated. Even more importantly and fundamentally, however, practicality requires that the law provides for a maximum of predictability of the behaviour of the other subjects of the law — in the case of international (space) law : States, as the predominant legal actors and personalithe Charter of Economic Rights and Duties of States, GA Res. 3281 (XXIX) of 12 December 1974 ; United Nations Doc. A/19631. The ‘common heritage of mankind’ concept as elaborated in the United Nations Convention on the Law of the Sea (see supra, fn 36) constituted one of the most explicit manifestations of that thinking. 50 Cf. e.g. Art. XII Liability Convention, on how to determine the appropriate compensation for damage caused by a space object. 51 As already referenced in Art. 38 (2) ICJ Statute. 52 Cf. the phrasing of Principles II–VI, XII, XIII Principles Relating to Remote Sensing of the Earth from Outer Space.

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ties grouping together actual humans — in the society at issue. Law thus has an innate tendency towards stability — in positive terms — alternatively immobility and inflexibility — in more negative terms. Part of such predictability furthermore lies in the simple fact that ‘law’ embraces its own relative immobility by including specific, by nature somewhat laborious, even occasionally bureaucratic processes which ensure that law cannot be changed at a whim or otherwise instantly — otherwise, we call it ‘revolution’. Thus, most treaties, including the space law treaties, explicitly provide for their own mechanisms for changing the substance of their legal regimes.53 The practical element in the discussions regarding the ‘common heritage of mankind’ and ‘non-discriminatory access’ to remote sensing data has already been referred to, but in those cases the practical element is at least very much intertwined with the moral one (certainly on one side of the argument). Many more legal rules, of course, are practical without further ado — there is no inherent ‘justice’ in driving on the right side of the road as opposed to driving on the left side (as British, Indians and some others are no doubt keen to assert), but one way or another a choice has to be made in order for traffic not to result in immediate chaos and destruction. Also in space law a number of rules are predominantly or exclusively driven by such practicality concerns, especially as ‘outer space’ is becoming ever less a realm where only States can really be active. From the details of the registration parameters to be provided for purposes of the international register of space objects launched into outer space key to the involvement of the United Nations therein,54 the applicable provisions of the Registration Convention do not have much to do with ‘justice’ or an inherent moral superiority of the United Nations but everything with practical considerations. To quote another example, also the current regime for handling international liability resulting from space activities, focused on the concept of the ‘launching State’ of a space object as the State(s) fundamentally involved in the launch of a space object causing damage, was to a large extent driven by practical considerations. Notably the State whose territory and/or facility was used for the launch of the space object at issue55 would always be easy to identify, and hence allowed for 53 See e.g. on amendments Art. XV Outer Space Treaty ; Art. 8 Rescue Agreement ; Art. XXV Liability Convention ; Art. IX Registration Convention ; and Art. 17 Moon Agreement. 54 Cf. Arts. III, IV Registration Convention. 55 Cf. Art. I (c) sub (ii) Liability Convention ; also Art. VII Liability Convention.

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easy addressing of relevant claims of liability. Now that these considerations, in particular with a view to private operators actually in control of satellite operations, seem to lose much of their practicality, many experts start expressing doubts about the continuing viability and workability of this system for allocating liability. These two rationales which are basically behind all law result already in inherent tensions and, certainly in space law, the self-regulatory character allows States by and large to strive for their own individual balance in terms of the legal regime they would feel comfortable adhering to. Whereas changed perceptions of justice, morality and ethics regularly call for adaptation of law, the law itself has in-built resistances to change as part of its practical usability : the more it takes to change existing law, the more predictable the behaviour of its subjects continues to be. At the same time, this may, in turbulent times in particular, cause the law to considerably lag behind moral and ethical developments (not to mention political, economic and social developments), sometimes even fundamentally calling into question the raison d’être of law. Those times often are also those when efforts to bring ‘soft law’ to the fore are most prominent, trying to circumvent ‘hard’ law’s innate immobility in presenting essentially non-legal constructs as ‘soft law’ and thus endowing them with some legal meaning one way or another. This brings the meta-legal analysis to a final important aspect, which in the context of space law is even more dominant than it is in general public international law in view of the omnipresent military and dual-use aspects of space activities. This relates to the character of the international community as often turning into an international arena, where States are always dedicated most to their very own survival or at least general well-being in that area. In terms of adhering to international law, whether by ratifying treaties or by being seen to accept customary international law — more often perhaps for the sake of predictability than that of justice — this leads to another major inherent tension. States are often — certainly on the key issues playing in the international community — somehow looking to limit the freedom of action of those other States considered particularly threatening to their own survival and wellbeing, whilst keeping maximum freedom for themselves and States considered friends or allies. Finding the optimum balance here is the basic driver for foreign ministries and departments, when entering any relevant treaty negotiations, in pushing for specific treaty obligations to be drafted.56 56 An interesting example concerns Art. IV Outer Space Treaty, which precludes the stationing of

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This may also cause States in general to be rather careful in adhering to specific treaties, as these are more precise and leave less room for bona fide discretion in undertaking certain activities. In particular in such a rapidly developing area as space activities — in political, economic, but certainly also technological terms — States would prefer not to bind themselves at the outset to such precise systems of legal rules, being weary of the chance that unexpected consequences of such adherence might arise. The consequently larger role of customary international law in this context — or, perhaps more accurately, the larger tendency for States confronted with a legal issue and legal experts to look for customary law in the absence of applicable treaty law — certainly contributes to the aforementioned perception of immaturity of international (space) law, but also causes the discussion on the role of ‘soft law’ (past, present and future) to be more prominent and less theoretical in this context.

IV. ‘Soft law’ and space activities : a qualified plea Against the backdrop of the foregoing, finally, it is indeed possible to address the issue of ‘soft law’ in the context of space activities from a rather different angle. It may now be asserted, for example, that much of this discussion on ‘soft law’ concentrates on the seeming internal contradiction between ‘law’, which presupposes binding (‘hard’) rules of behaviour not subject to the own discretion of the law’s subject, and ‘soft’, which seems to refer to political, social or moral requirements not expressed in legal terms and hence allowing for precisely such discretion in applying relevant ‘rules’. Those who do not accept the concept of ‘soft law’ usually argue along the lines of ‘one cannot be just a little pregnant ; either one is pregnant, or one is not pregnant’ — meaning that either something is ‘law’, in which case it is binding (‘hard’), or it is ‘soft’, in which case it may be a number of different things but certainly not ‘law’. weapons of mass destruction in outer space — but a contrario allows for using outer space as a trajectory for weapons of mass destruction as well as stationing weapons not of mass destruction, simply because neither the United States nor the USSR at the time (a) wanted to limit their own options with respect to the latter two military uses of outer space ; (b) were themselves planning using outer space as a ‘station’ for weapons of mass destruction ; or (c) would like to provide the other party with the legal freedom to start doing so.

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Firstly, here, the distinction between a formal and a substantive analysis of the issue of ‘soft law’ needs to be taken into account — and sometimes seems lost in the argumentation. Under the former analysis, ‘law’ is everything encompassed in documents considered to bind a certain group of subjects (read : treaties), whereas ‘non-law’ is by contrast everything contained in documents considered not to be formally — legally — binding (read, for example, United Nations General Assembly resolutions). Under the latter analysis, the measure of legally binding force of a provision is determined by the substance of that provision. In expert discussions, this is often summarised with reference to the dichotomy between ‘shall’ — which clearly points to a legally binding obligation — and ‘should’ or ‘may’ — where the issue becomes considerably more complicated. And unfortunately, the use of ‘shall’ is not exclusive to formally legally binding documents, or the use of ‘should’ and ‘may’ to formally non-binding documents. If a treaty, clearly per se a binding legal document under a formal analysis, uses the wording ‘should’ or ‘may’ instead of ‘shall’,57 the result is still a legal obligation, yet in substance it contains more of an exhortation than a legal obligation — it seems rather convoluted to ‘oblige’ someone ‘to be allowed’ to undertake certain activities. This is, however, what repeatedly is at issue in the case of the space law treaties. Consider, for example Article 1(b) of the Rescue Agreement providing that ‘the Secretary-General of the United Nations […] should disseminate […] [relevant] information’ concerning spacecraft accidents’,58 or Article 4 of the Moon Agreement providing ‘[i]nternational cooperation in pursuance of this Agreement should be as wide as possible and may take place on a multilateral basis, on a bilateral basis or through international intergovernmental organizations’.59 In legal discussions such (apparent ?) inherent contradictions are usually referred to as ‘obligations of effort’ (as opposed to ‘obligations of result’), at least if they appear in documents legally binding per se (following the formal analysis). However, ultimately there is no escaping from the question : is this, then, law or not ? Under the formal approach it is, but since it is rather difficult to determine objectively for example the real level and sincerity of any ‘effort’ in this 57 Cf. e.g. Art. IV (2) Registration Convention : ‘Each State of registry may, from time to time, provide the Secretary-General of the United Nations with additional information concerning a space object carried on its registry.’ (emphasis added.) 58 Art. 1 (b) Rescue Agreement (emphasis added). 59 Art. 4 Moon Agreement (emphasis added).

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context, is it in substance not a rather ‘soft’ rule ? Should it, then, be labelled ‘soft law’ or ‘hard law’ ? Is it possible after all that there is something in between ‘law’ and ‘non-law’, where ‘hard’ treaty law sometimes contains elements of what at least feels like ‘soft law’, as it allows States a lot of discretion in actually interpreting substance and extent of the ‘obligation’ at issue ? Similar arguments could be advanced when the terms of a treaty are, on purpose or not, so vague as not to provide much guidance as to what the ‘hard’ obligation actually means. Treaties properly ratified and having entered into force are of course binding upon the States concerned as ‘hard law’, but what if they provide for obligations too general or too vague to be useful in any particular dispute ? Consider for example the Outer Space Treaty’s provision that ‘[i]n the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance’.60 Or, following a very fundamental tenet of space law, ‘[t]he Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes’61 — yet it is common knowledge that this provision has for a long time been interpreted rather differently by the two major space powers.62 And what does ‘to the greatest extent feasible and practicable’ mean, when juxtaposed to a formal and formally phrased obligation in the context of the provision of information on potentially hazardous space activities ?63 Another key clause of the 1967 Outer Space Treaty formally requires that States ‘shall carry on activities in the exploration and use of outer space […] in 60 Art. IX Outer Space Treaty (emphasis added). 61 Art. IV, 2nd sentence Outer Space Treaty (emphasis added). 62 Whilst the USSR insisted throughout its existence that ‘exclusively peaceful purposes’ would exclude any military activity in outer space unless specifically allowed by another provision of space law, the United States has consistently advocated that military uses of outer space were allowed as long as of a defensive nature. See e.g. Gennady Zhukov and Yuri Kolosov, International Space Law (Praeger Publishers, New York 1984) 53–61 ; Carl Christol, The Modern International Law of Outer Space (Pergamon Press, New York 1982) 22–37 ; Carl Christol, The Common Interest in the Exploration, Use and Exploitation of Outer Space for Peaceful Purposes : The Soviet-American Dilemma, Proceedings of the 27th Colloquium on the Law of Outer Space (1985) 282–284 ; Bin Cheng, Studies in International Space Law (Oxford University Press, Oxford 1997) 513–522 ; Paul Dembling and Daniel Arons, The Evolution of the Outer Space Treaty, 33 Journal of Air Law and Commerce (1967) 434–435. 63 E.g. Art. XI, Outer Space Treaty. Cf. also e.g. Art. IV(3) Registration Convention, which provides for almost identical language in respect of a certain obligation to provide information on space objects launched into outer space.

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the interest of maintaining international peace and security and promoting international cooperation and understanding’,64 and this has been claimed ever since its inception by many States and experts to actually provide for a clear-cut obligation to cooperate internationally.65 Yet, the nature of international cooperation, whether one looks at the non-legal realities of the international community or at the realities of how general international law has dealt with international cooperation would not allow any State to force another State to ‘cooperate’ by pointing at such a presumed legal obligation. In the end, it took the 1996 Resolution 51/122 to provide some clarity and guidance regarding the actual contents, scope and extent of this ‘obligation of effort’. Also examples the other way around can be found in space law. Resolution 41/65 on remote sensing for example provides that ‘[r]emote sensing activities shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic, social or scientific and technological development, and taking into particular consideration the needs of the developing countries’, ‘shall be conducted in accordance with international law’ and ‘shall be conducted in accordance with the principles contained in article I’ of the Outer Space Treaty.66 The phrase ‘shall’ normally being considered to refer to a ‘hard’, legal obligation, of course the United Nations General Assembly does not have any such competence per se to have a resolution provide for such binding, ‘hard’ law. In many such circumstances, then, reference needs to be made to State practice and opinio juris to try and discern a more or less coherent customary rule of international law, ‘filling in’ as it were the lack of precision of the treaty terms or, alternatively, the lack of innate binding force of guidelines and principles such as contained in United Nations General Assembly resolutions. Not that this always results in clarity regarding the extent of the legal obligation at issue : certainly with regard to the aforementioned obligations regarding 64 Art. III Outer Space Treaty (emphasis added). 65 Cf. e.g. Zhukov and Kolosov, supra fn 62, 75 et seq.; Sandeepa Bhat, Law and Space research, in : Sandeepa Bhat (ed.), Space Law in the Era of Commercialisation (Eastern Book Company, Lucknow 2010) 7, calling it a ‘grundnorm‘ ; to some extent Jose Monserrat Filho, The Importance of International Cooperation in Building National Space data Infrastructure in All Countries, Proceedings of the 49th Colloquium on the Law of Outer Space (2007) esp. 228– 229 ; also Vladlen Vereshchetin, fn 2, 6, linking it to the 1996 Resolution. 66 Principles II, III, IV Principles Relating to Remote Sensing of the Earth from Outer Space, respectively (emphasis added).

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the provision of information under the Registration Convention,67 State practice shows a wide disparity in the extent States have considered it ‘feasible and practicable’ to register satellites in accordance with these provisions — or even apparently considered it not to be ‘feasible and practicable’ at all to register them.68 Another notorious example concerns Resolution 41/65, where the key provision on ‘non-discriminatory access’ of a sensed State concerning data regarding its territory69 has been argued rather widely to have evolved into a rule of customary law — the reference in many leading national space laws and policies concerning the handling of remote sensing data being used as decisive evidence of State practice and opinio juris.70 However, upon closer view it appears that, whilst indeed referencing in most cases Principle XII of the resolution which is at issue here, the individual legislators and policy makers proceeded with giving that Principle their own, peculiar interpretation. In many cases, such interpretations still allow for ‘discrimination’ (a) between those who contributed to the satellite system generating the remote sensing data and those who did not, and (b) between non-commercial and commercial users (however defined) ; and/or (c) between those using the data for specific purposes (again, however defined).71 What, then, is the meaning or even value of customary legal status of the phrase ‘non-discriminatory access’ if one level down it turns out to be interpreted in widely different fashion ? Moreover, it should be reiterated that customary international law itself is not a clear-cut phenomenon either. Whereas a treaty becomes binding from one moment to the other — by its entry into force in general, or for a particular State upon its ratification or adherence — a customary rule of international law usually arises gradually, moving on a ‘gliding’ scale from ‘no State practice and/ or opinio juris’ to ‘sufficient State practice and opinio juris’ to be accepted as customary law by (a majority of ) relevant States and legal experts. As a conse67 As per Art. IV Registration Convention, in particular. 68 See e.g. Yoon Lee, Registration of space objects ; ESA member states’ practice, 22 Space Policy (2006) 42, 44. 69 As per Principle XII Principles Relating to Remote Sensing of the Earth from Outer Space. 70 See e.g. Joanne Gabrynowicz, Defining Data Availability for Commercial Remote Sensing Systems, XXIII Annals of Air and Space Law (1998) 95–96 ; for a more comprehensive analysis of the legal status see Atsuyo Ito, Legal Aspects of Satellite Remote Sensing (Brill Academic Publishers, Leiden et al. 2011) 45–66. 71 Cf. for a more extensive comparative analysis the author’s Non-discriminatory data dissemination in practice, in : Ray Harris (ed.), Earth Observation Data Policy and Europe (Swets & Zeitlinger B.V., Lisse 2002) 41–50.

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quence, contrary to treaty law, it is almost never possible to pinpoint an exact moment when the rubycon between ‘no customary law’ and ‘customary law’ is crossed — rather, there is a ‘soft’ marsh of some width in between two ‘hard’ shores. Therefore, in the discussion on ‘soft law’, too often it seems to be overlooked that ‘law’ not only represents a given status, a snapshot at a given moment of what is allowed and what is not, but also (certainly at the international level, which is also where space law largely originates) refers to a process of arriving at such a snapshot at any given time. In other words, there are different gradations of ‘pregnancy’, which after all starts from an infinitesimally small element to wind up with a full-blown living being — which then continues to grow old and transform itself throughout its life. It is in the context of such processes that any concept of ‘soft law’ should best be analysed and discussed as to its value, in particular also in the area of space law where international treaties — the instruments most clearly transforming ‘non-law’ into ‘hard law’ from one moment to the other — are relatively rare. Customary international law, by contrast and by definition, is very much a gradual process, where ‘non-law’ only over time, subject to analysis, interpretation and in particular the accumulation of State practice and opinio juris, evolves into ‘hard law’. If that means that somewhere along the road, read when the resolution as a non-legally binding document starts to give rise to some consistent and relevant State practice and opinio juris but has not yet been labelled customary international law so as to be accepted as binding law in substance, States start to feel comfortable and trusting, there would indeed be considerable benefit from ‘soft law’, whether in the context of customary international law or (interpretation of ) treaty law — and indeed, thereby it plays an indispensable function in the development of a proper international space law framework. This is where Realpolitik should come into play with a view to furthering as best as possible the cause of space law in the context of the international community of space-faring and non-space-faring States. Here, ‘the best’ — aiming straight for a treaty, the most clear and coherent source of international space law — would often turn out to be the enemy of ‘the good’ — realising a process rather than an immediate result. That process would allow States, hesitant at the outset to commit to such clear-cut treaty obligations, to start out accepting merely political ‘obligations’ which are not yet fully elaborated and/or not legally binding, such as by way of an United Nations General Assembly resolution, to

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gradually lose their cold feet in getting acquainted with the way such obligations turn out to affect their interests (especially in the context of rapid new technical or political developments), to adjust as necessary domestic institutions, procedures and practices, to guide further international developments concerning those obligations following increased insight, and to start trusting that other States are doing the same. Ultimately, then, this should (hopefully) reach a level of maturity of understanding of the issues and of other States’ interests which would allow for a really binding legal regime, coherent and feasible — probably more so than if a treaty had been forthwith concluded. As a matter of fact, present-day space law has provided us with a very interesting example of this process — in the field of space debris and efforts to mitigate its generation and deleterious consequences. The process started on a completely non-legal level, with major space agencies in the context of the Inter-Agency Space Debris Coordination Committee (IADC) agreeing in 2002 on a political/ practical level to essentially start conducting their respective space operations in a manner less conducive to the generation of harmful space debris.72 As a next step, the United Nations, almost as the official representative of the international community of States but of course still without binding legal effect, by officially recognising the validity and value of the IADC document in a United Nations General Assembly resolution of 2007 elevated these practical guidelines to what should probably be called — certainly at that time — a ‘soft law’ status.73 Currently, however, by way of a third phase, a number of States involved have in addition chosen to start applying relevant aspects of those guidelines as license requirements for private space operators74 — in other words, albeit on a domestic level so far, without question as legally binding obligations. This, if nothing 72 This ultimately resulted in the IADC Space Debris Mitigation Guidelines, IADC-02-01, Revision 1, September 2007. 73 As per Space Debris Mitigation Guidelines of the United Nations Committee on the Peaceful Uses of Outer Space (A/62/20) endorsed by General Assembly Resolution 62/217 of 21 December 2007 ; A/RES/62/217. 74 Notably, in France, Italy, Japan, the United Kingdom and the United States ; Lotta Viikari, The Environmental Element in Space Law (Martinus Nijhoff Publishers, Leiden et al. 2008) 96 ; Toshio Kosuge and Yu Takeuchi, From Guideline to International Treaty for Rule of Law Concerning Mitigation of Space Debris ?, Proceedings of the International Institute of Space Law 2010 (2011) 291–298, discuss from this perspective also Russia, China and India, as well as the European Space Agency as far as their own (inter)governmental launches are concerned ; further e.g. Kelly Gable, Rules Regarding Space Debris : Preventing a Tragedy of the Commons, Proceedings of the 50th Colloquium on the Law of Outer Space (2008) 262.

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else, reflects a willingness on the side of those States to impose extra burdens and costs on their own entities competing in the international arena, without any international law guaranteeing a level playing field — by requiring that all other States in the same position are doing the same. If, some years along the road, not only the space debris problem will have gained enough urgency in the perception of the key space-faring States but also the appropriate legal and other regulatory techniques will have been discovered or developed for States to feel certain about the sustainability and appropriateness of the balance between the various concerns at stake, it may well be that an international treaty on the issue ceases to be beyond reach. A next candidate for a similar development might be the use of remote sensing data for disaster mitigation and management. Since 1999, a number of major space agencies agreed on a Charter on Space and Major Disasters75 which essentially developed a loose institutional arrangement for States threatened or victimised by natural or man-made disasters to gain rapid access to free satellite data which might help them in averting or mitigating such disasters. Whilst the Charter does not provide any ‘normal’ legal obligations, and for example clearly disclaims any liability of the data provider in case of damage caused in the context of use of such data, it is clear that several issues, such as intellectual property rights regarding the data and national security issues, will repeatedly turn up and ultimately require legal solutions. Since at the same time the Charter has turned out to be hugely successful (with more than 300 invocations till the present day, from all over the world76) a considerable interest might be developing within the international community to gradually transform this ‘soft law’ regime into a more clear-cut and legally binding regime — once the providers in particular have gained enough experience with the Charter’s realities to feel confident regarding the obligations they would be willing to accept. In order to allow them to do that, however, the current Charter operations should not now be disregarded or put aside as merely constituting ‘soft law’ — whilst, of course, acting as if they were already providing for ‘hard’ law obligations would be counterproductive as well. 75 See Charter On Cooperation To Achieve The Coordinated Use Of Space Facilities In The Event Of Natural Or Technological Disasters ; http ://www.disasterscharter.org/main_e.html (23/08/2011) ; also Atsuyo Ito, Legal Aspects of the International Charter on Space and Major Disasters, Proceedings of the 47th Colloquium on the Law of Outer Space (2005) 233–241. 76 See http ://www.esa.int/esaEO/SEML7PYOBFG_index_0.html (23/08/2011).

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Thus, it is finally submitted that, while never losing sight of the benefits of a clear and coherent legal framework probably still best reflected through a treaty regime, in the arena of space activities there is considerable benefit from such mechanisms usually labelled ‘soft law’, whether in the context of customary international law or of treaty law. Indeed, they may in a number of occasions have an indispensable function in the development of a proper international space law framework for such activities. Whether one should continue to call them ‘soft law’, ultimately is of less relevance.

Setsuko Aoki

The Function of ‘Soft Law’ in the Development of International Space Law I. Introduction This article considers various functions of soft law in space activities so as to evaluate if soft law rules are sufficient for promoting the peaceful uses of outer space. Certainly, it is not only international space law where rules outside the realm of formal sources of international law have been playing an increasingly important role. However, space law has been particularly characterised by the insufficiency of legally binding rules. Not a single treaty has been negotiated, let alone adopted, for more than three decades in the Legal Subcommittee (LSC) of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS). Nor has a single proposal on arms control and disarmament been seriously discussed at the Conference on Disarmament (CD) since the early 1980ies.1 It is instead the resolutions, declarations, guidelines and other forms of non-binding instruments, so called ‘soft law’ rules, adopted by the United Nations General Assembly, United Nations Educational, Scientific and Cultural Organization (UNESCO), International Telecommunication Union (ITU) and other fora that have been added to regulate space activities during these years. This situation immediately raises at least two mutually interrelated questions : first, why have no new treaties been adopted ; and second, why have soft law rules been able to maintain the order in outer space ? Without a new treaty, space has not become a battlefield. On the contrary, the peaceful use of space has flourished to the extent that it is difficult to find a country or an area that does not benefit from space applications today. No legally-binding instruments have been even negotiated since the adoption of the Moon Agreement2 in 1979. Why ? Certainly, the consensus-based 1 See, e.g., Setsuko Aoki, Space Arms Control : The Challenges and Alternatives, 52 Japanese Yearbook of International Law (2009) 191. 2 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature on 18 December 1979, entry into force on 11 July 1984.1363 UNTS 3.

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decision-making in UNCOPUOS is one reason. In 1959, when UNCOPUOS became a permanent body, the number of member States was only 24. It was 47 when the Moon Agreement was adopted, and it was 70 as of April 2011.3 Naturally, it is more difficult to reach a consensus today. Nevertheless, this cannot be an essential reason. If it were really needed, irrespective of the difficulty of consensus building, a treaty would have been adopted. The reasons must lie in the characteristics of space activities that make it possible for international society to have dispensed with a new treaty for more than thirty years. Thus, in the next section, this article discusses the characteristics of space activities that might seem suitable to be regulated by soft law. Yet, since a variety of activities are covered by the comprehensive term ‘space activities’, and each of the wide range of space activities has a different goal, infrastructure and societal implications, it can be expected that the effectiveness and the function of soft law rules is different depending on the category of the space activity. Accordingly, the different functions of soft law will be analysed in section III to see whether present space law is likely to face up to the challenge of maintaining peace and order in space if only soft law rules continue to be made. Based on that judgment, a conclusion will be given if soft law rules are truly appropriate in the development of international space law, currently and in the near future. For the purposes of this article, ‘soft law’ means any form of international rules that are not a formal source of international law in the sense of Art. 38, para. 1 of the Statute of the International Court of Justice. 4 No additional condition is applied in defining ‘soft law’ in this article. Thus, a General Assembly resolution is treated as a rule of equal importance as a mere technical guideline regulating a certain space activity elaborated in a non-governmental forum. No hierarchy of non-binding rules is used, because the importance of the ‘soft law’ concept lies not in the authority of a document, but in its actual domestic implementation and international adherence to it.5 The term ‘space activity’ is defined in this article as the activity (i) to launch a space object in outer space ; (ii) to operate a space object in outer space including 3 http//www.unoosa.org/oosa/COPUOS/copuos.html (03/07/2011). 4 Opened for signature on 26 June 1945, entry into force on 24 October 1945. 33 UNTS 993. 5 On the concept of ‘soft law’, see, e.g., Hartmut Hillgenberg, A Fresh Look at Soft Law, 10 European Journal of International Law (1999) 499 ; László Blutman, In the Trap of a Legal Metaphor : International Soft Law, 59 The International and Comparative Law Quarterly (2010) 605 ; Tamitomo Saito, Soft Law ron no keifu [The Historical Contexts of Soft Law Discourse], 77 Höritsujihö (2005) 106.

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the Moon and other celestial bodies ; (iii) to support the launching and operation of a space object on the ground ; and (iv) to sell, transfer, purchase, and receive in any other manner the results of the operation of space objects. While national laws often define the first three categories of activities as ‘space activity’,6 the fourth category is deliberately added in this article so as to include activities performed on the surface of the Earth such as disseminating satellite-based data and information and the exploitation of natural resources of the Moon and asteroids.

II. Characteristics of space activities suitable for soft law Four points specified below can be highlighted as unique characteristics of space activities. Although the benefits of the development and use of space have been widely disseminated, it is a fact that only eight States have autonomous space capabilities, such as launching sites and launch vehicles.7 Thus, inevitably, an operator of a satellite often does not share its nationality with an owner of a launching site or a launcher. Likewise, it is noted that images from a relatively small number of commercial remote sensing satellites and US GPS signals have been extensively used world-wide. The first characteristic is, therefore, that each activity tends to be multinational or even universal, but the number of the suppliers is limited. Secondly, space activities inherently involve military implications. Different from the case of the use of nuclear energy, where it is much easier to draw a line between military and non-military activities, most space technology is dual-use ; only the purpose of the use allows a distinction between military and non-military uses. Commercial satellites are extensively used by armed forces8 and excess ballistic missiles have been converted into rockets.9 6 See, e.g., Sec.1 Swedish Act on Space Activities (1982) ; Sec.1 UK Outer Space Act (1986), Arts. 2.1 & 3.5 Belgium Law on the Activities of Launching, Flight Operations or Guidance of Space Objects (2005) ; Sec. 1 (b) Dutch Space Activities Act (2006) ; Art. 1.3 French Space Operations Act (2008). Other laws either have wider definitions (e.g. Korea, Russia, South Africa, Ukraine), or define only a specific activity such as to ‘launch’ a space object (e.g. Australia). 7 The USSR (now Russia), USA, France, Japan, China, India, Israel and Iran (based on the order of their first launch) belong to that category. 8 See, e.g., Loring Wirbel, Star Wars : US Tools for Space Supremacy (Pluto Press, Virginia 2004) 114–115. 9 See, e.g., US National Space Transportation Policy, NSTC–4 of 5 August 1994, VII Use of US Excess Ballistic Missile Assets.

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Thirdly, space applications have the potential of bringing more benefits to developing countries. For instance, telecommunication network infrastructure as well as education and medical facilities are often not duly established in developing countries, and the use of telecommunication satellite services may be less expensive than establishing terrestrial infrastructure, and can drastically improve the well-being of nationals of developing countries. Taking note of this, spacefaring nations have been rather active in sharing the results of space applications and transferring space technology. That tendency started in the midst of the Cold War era, when space technology was widely used by both of the then superpowers to induce States, especially newly independent States, to become allies or friends of their respective sides.10 And fourthly, it has to be pointed out that the concept of the ‘province of all mankind’ is strongly embedded in the exploration and use of space in comparison with other activities. While Art. I of the Outer Space Treaty11 refers to this concept, the precise meaning of the concept as well as detailed substantial and procedural rules remain to be clarified. Nevertheless, it is often claimed that the benefits of space activities shall be equally granted to all humanity without a solid legal foundation.12 All those characteristics of space activities seem to constitute an obstacle for treaty-making. At first glance, the multinational nature of space activities is likely to be suitable for various international agreements in both public and private law fields. However, in reality, the different national interests reflecting the big difference in the technological capability between a small number of spacefaring nations and the others, and the essentially military nature of space technology have prevented UNCOPUOS members from reaching a legally-binding agreement over the decades.13 Soft law rules seem to be convenient for harmonis10 See, e.g., Joanne Irene Gabrynowicz, One Half Century and Counting : The Evolution of U.S. National Space Law and Three Long-Term Emerging Issues, 4 Harvard Law and Policy Review (2010) 405, 409. 11 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, opened for signature on 27 January 1967, entry into force on 10 October 1967. 610 UNTS 205. 12 See, e.g., Kai-Uwe Schrogl, Legal Aspects related to the Application of the Principle that the Exploration and Utilization of Outer Space should be Carried Out for the Benefits and in the Interest of All States Taking into Particular Account the Needs of Developing Countries, in : Marietta Benkö and Kai-Uwe Schrogl (eds.), International Space Law in the Making (Editions Frontieres, Gif-sur-Yvette Cedex 1993) 195. 13 Yet in the fields of private law, treaty-making seems to have a better chance. For instance, UNI-

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ing main characteristics of space activities in that spacefaring States can demonstrate their good will to international society and in that they are not under strict international responsibility. Furthermore, since the 1990ies, worsening global environmental problems such as climate change and the increasing number of natural disasters as a consequence of global warming have united global society to tackle common challenge through Earth observation from outer space as a major tool. International space cooperation, strengthened in the name of the protection and preservation of the Earth environment, has brought about the shared recognition that agreements providing for cooperative measures do not have to be legally-binding, for cooperative measures in this context seem to be inherently outside the rights, duties and responsibility of States. In sum, it may be concluded that the four main characteristics of space activities seemed to best be accommodated by the utilisation of soft law even before serious environmental problems emerged. Now, soft law appears to be more effective to collectively tackle global non-traditional challenges. As already briefly mentioned above, each soft law instrument was developed to best address one specific space activity. Thus, the effectiveness of soft law may differ depending on the activity. Therefore, the different functions of soft law are studied in the next section in some detail in order to identify if soft law is truly effective and sufficient in promoting peaceful uses of space, currently and in the future.

III. Functions of soft law in the various types of space activities Three categories of functions of soft law can be identified on the basis of an examination of the existing soft law rules concerning space activities. The first function is the substitution for a treaty and that can be grouped into two more sub-functions : soft law for the harmonisation of national laws and soft law for the development of an international regime. The second function is soft law as a choice and preference and finally, the third function, as lex ferenda to avoid North-South confrontation. Traits of soft law rules of each category are considered below. DROIT started to prepare a preliminary draft Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Space Assets in the late 1990ies.

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1. Function 1 : soft law as a substitute for a treaty 1.1 General remarks The first function of soft law rules is the substitution for a treaty. It has to be emphasised that, as in other fields of international law, historically, treaty-making was thought to be the most desirable way of rule-making. General Assembly resolutions on space activities were only chosen as a first step towards the elaboration of a full-fledged treaty in the future. The most successful example is the famous Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, adopted as a General Assembly resolution in 1963,14 which paved the way for the Outer Space Treaty four years later. Instruments adopted as a substitute for a treaty in the UNCOPUOS include (i) the Principles Relating to Remote Sensing of the Earth from Outer Space of 1986,15 (ii) Application of the Concept of the ‘Launching State’ of 2004,16 and (iii) Recommendations on Enhancing the Practice of States and International Intergovernmental Organizations in Registering Space Objects of 2007.17 The latest example in this category, but elaborated outside the UNCOPUOS, is (iv) the revised draft Code of Conduct for Outer Space Activities adopted in 2010 at the Council of the European Union.18 Around the end of the 1960ies, when the necessity of rule making for remote sensing was voiced in the LSC of the UNCOPUOS, an international rule basically meant a treaty. It was because of the difficulty in reaching a consensus among UNCOPUOS members that a United Nations General Assembly resolution was chosen as a goal.19 The expectation still existed that a General Assembly resolution could be developed into a treaty or a rule of customary international law in the future.20 14 15 16 17 18

GA Res 1962 (XVIII) of 13 December 1963. GA Res 41/65 of 3 December 1986. GA Res 59/115 of 10 December 2004. GA Res 62/101 of 17 December 2007. Council of the European Union, Council Conclusions concerning the Revised Draft Code of Conduct for Outer Space Activities, 14455/10, PESC1234, CODUN34, ESPACE2 COMPET284 (11 October 2010). 19 In fact, the USSR and Eastern European countries adopted a treaty on remote sensing, which was similar in content to that of the draft principles elaborated in the LSC at that time. Convention on the Transfer and Use of Data of the Remote Sensing of the Earth from Outer Space, opened for signature on 19 May 1978. A/33/162 of 29 June 1978. 20 See, e.g., Bin Cheng, Legal and Commercial Aspects of Data Gathering by Remote Sensing,

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In contrast, in the first decade of the 21st century when UNCOPUOS members tried to reconsider the concept of a ‘launching State’ and tried to build up measures to ameliorate the registration practice, the form of an instrument was no longer a subject of great importance. If possible, a treaty would perhaps have been pursued, but the extra efforts were never made. It appeared that there was a common understanding among members that concrete and coherent rules for the peaceful use of space mattered as a priority over the form of an agreement. It may also have occurred that drafting a new treaty or amending an existing one would place an established rule into question.21 Balancing the merits and shortcomings of treaty-making, UNCOPUOS members seemed to prefer the present treaty provisions somehow as, while despite being outdated, they could be supplemented by soft law instruments. A close look at this function leads to the conclusion that two subcategories of function 1 may be distinguished. The first subcategory would be ‘soft law for the harmonisation of national laws’. In this subcategory, the traditional goal of making a legally-binding rule in the future has been implicitly abandoned, and the tacit understanding is that soft law should remain as a standard for the elaboration of national law. The other is soft law to unexpectedly develop into an international regime. 1.2 Subcategory I : soft law for the harmonisation of national laws 1.2.1 Application of the concept of the ‘launching State’ Increasing commercial use of outer space as well as new launch systems and ventures had long blurred the concept of ‘launching State’ provided for in Art. I (c) of the Liability Convention,22 Art. I (a) of the Registration Convention23 and implied in Art. VII of the Outer Space Treaty. Since the late 1980ies, it has often been questioned if a State whose national owned and/or operated a satellite should be regarded as ‘procuring’ a launch and thus regarded as a launching in : idem, Studies in International Space Law (Clarendon Press, Oxford 1997) 572, 590 ; Francis Lyall and Paul B. Larsen, Space Law : A Treatise (Ashgate, Surrey 2009) 419–420. 21 Steven A. Mirmina, Reducing the Proliferation of Orbital Debris : Alternatives to a Legally Binding Instrument, 99 American Journal of International Law (2005) 649, 652. 22 Convention on International Liability for Damage Caused by Space Objects, opened for signature on 29 March 1972, entry into force on 1 September 1972. 961 UNTS 187. 23 Convention on Registration of Objects Launched into Outer Space, opened for signature on 14 January 1975, entry into force on 15 September 1976. 1023 UNTS 15.

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State. A survey of the records of registered space objects24 demonstrates that the answer should in general be in the affirmative.25 However, in the doctrine this view is not necessarily supported.26. As an outcome of a three-year discussion in the LSC, a General Assembly resolution, the Application on the Concept of the ‘Launching State’ was adopted in 2004.27 It is noteworthy that the ‘launching State’ resolution does not even implicitly reply to the question if a State whose national operates a satellite launched outside its territory has ‘procured the launching’. Instead, it recommends that States should ‘consider enacting and implementing national laws’ (para. 1) and ‘consider the conclusion of agreements in accordance with the Liability Convention with respect to joint launches or cooperation programmes’ (para. 2). If the national licensing conditions for a non-governmental entity provide for third party liability in the amount of the maximum probable loss, the victim will be well compensated without identifying a launching State. Likewise, participants of the ‘cooperation programmes’ (para. 2) can include States whose 24 Registering a space object in accordance with the Registration Convention is one proof that such country is a launching State. Arts. I (c) & II 1, 2 of the Registration Convention. 25 See, e.g., ST/SG/SER.E/587 of 3 March 2010, 2 (USA). France furnished information about the US-registered satellite without registering it. ST/SG/SER.E/588 of 30 June 2010, 3 (France) ; ST/SG/SER.E/595 of 24 June 2010, 4 (USA). Russia furnished information on the same satellite. ST/SG/SER.E/596 of 19 October 2010, 2 (Russia) ; ST/SG/SER.E/574 of 23 November 2010, 2 (Japan) ; ST/SG/SER.E/527 of 19 December 2007, 2 (Australia) ; ST/SG/SER.E/540 of 11 April 2008, 2–3 (Canada) ; ST/SG/SER.E/581 of 10 November 2009, 2–3 (Germany) ; ST/SG/SER.E/359 of 24 August 1999, 2 (China). Furthermore, the variety of company modalities yet bring somewhat inconsistent State practice. See, e.g., ST/ SG/SER.E/593 of 6 July 2010, 8 (Russia furnished information of a satellite belonging to a US-national, and not registered in the UN registry.). 26 See, e.g., Karl-Heinz Böckstiegel, The Term ‘launching State’ in International Space Law, Proceedings of the 37th Colloquium on the Law of Outer Space (1995) 80, 81–82 ; Edward A. Frankle and E. Jason Steptoe, Legal Considerations Affecting Commercial Space Launches from International Territory, Proceedings of the 42nd Colloquium on the Law of Outer Space (2000) 297, 305–306. 27 GA Res 59/115, supra fn 16. Led by some academic projects including especially ‘project 2001’ started in 1997, and based on a proposal by certain European countries, this agenda item was discussed from 2000 to 2002. see, e.g., Karl-Heinz Böckstiegel (ed.), ‘Project 2001’-Legal Framework for the Commercial Use of Outer Space (Carl Heymanns Verlag, Köln 2002) ; A/ AC.105/C.2/L.211/Rev.1 of 30 March 1998 ; A/AC.105/721 of 30 March 1999, paras. 61–63 & 65 ; A/AC.105/L.217 of 22 October 1998 ; A/AC.105/738 of 20 April 2000, paras. 77–90 & Annex II ; A/AC.105/763 of 24 April 2001, paras. 97–106 & Annex II ; A/AC.105/787 of 19 April 2002, paras. 119–130 & Appendix.

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private persons are substantially involved with a launching activity in addition to the ‘participants in the joint launching’ (Art. V (2) of the Liability Convention). Para. 2 could include States with a substantial connection to a launch in the joint and several liability system of the Liability Convention without redefining the ‘launching State’. No new treaties to adapt to the era of commercialisation of outer space are necessary by legislating national space laws in line with the ‘launching State’ resolution. In this sense, this resolution can be called a soft law rule for the harmonisation of national laws. 1.2.2 Recommendations on enhancing registration practice The registration of space objects has drastically deteriorated in the post Cold War globalisation era28 partly because a relatively small number of States are contracting parties to the Registration Convention although an increasing number of States and companies own satellites.29 From the 2004 to 2007 work period, a practical solution was sought in the LSC with a view to identifying common elements and to make a set of recommendations for enhancing adherence to the Registration Convention, and, as planned, the recommendations were adopted in 2007.30 The primary significance of the recommendations on enhancing registration practice31 is that they provide a reference on which national laws could be promulgated. Following the enumeration of certain information and data to reach uniformity on registration (para. 2 (a) (b)), it is recommended that States that 28 Until the end of the 1980ies, the percentage of space objects not registered remained less than ten percent, but it increased to about 20–30 percent by the end of the 20th century. A/ AC.105/C.2/2005/CRP.10 of 14 April 2005 ; A/AC.105/C.2/L.255 of 25 January 2005, Annex II. 29 As of April 2011, 55 States were contracting parties. A/AC.105/C.2/L.284 of 31 March 2011, para. 29 (d). 30 See, e.g., A/AC.105/C.2/L.241 of 26 March 2003 ; A/AC.105/C.2/L.241/Add.1 of 1 April 2003 ; A/AC.105/805 of 10 April 2003, para. 136 ; A/AC.105/C.2/L.255, supra fn 28 ; A/ AC.105/C.2/L.262 of 9 February 2006 ; A/AC.105/891 of 2 May 2007, paras. 130–131 & Annex III ; see also, Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.) Current Issues in the Registration of Space Objects, Proceedings of the Workshop of Project 2001 Plus (2005) ; Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.), ‘Project 2001 Plus’-Global and European Challenges for Air and Space Law at the Edge of the 21st Century (Carl Heymanns Verlag, Köln 2006). 31 GA Res 62/101, supra fn 17.

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could qualify as launching States should jointly determine a State of registry (para. 3 (b)) and that each State should register a space object with which it has jurisdiction under Art. VI of the Outer Space Treaty (para. 3(c)). As a variation of that recommendation, especially in case of a commercial launch, it is urged that launch service providers should advise the satellite operator to address the appropriate States to register the space object (para. 3(d)). These provisions recommend the joint undertaking to identify a State having a genuine link with a space object. The respect of a genuine link even permits mere information furnishing, not registration, in case of the change in supervision of a space object in-orbit as reflected in para. 4 (a) (b). In order to implement all the recommendations, harmonising national legislation to authorise and supervise national activities is essential. Thus, it seems to be concluded that the 2007 recommendations demonstrate the function of soft law as a tool of harmonisation of national laws by presenting a clear standard. Currently, general exchange of information on national legislation has been discussed in the LSC.32 Provided that a resolution on that item is endorsed at the General Assembly in 2012,33 that will be the latest addition to soft law rules as a reference for the harmonisation of national laws. 1.3 Subcategory II : soft law to develop into an international regime 1.3.1 The 1986 Principles relating to remote sensing It took more than fifteen years including preparatory periods before the Principles relating to remote sensing were finally adopted by consensus in 1986. During that time, a longstanding confrontation had to be addressed between States who claimed permanent sovereignty of information on natural resources and those who advocated the freedom of the exploration and use of outer space.34 It is partly because of the inherent nature of land remote sensing where privacy, security and economic interests are strongly concerned.35 Partly also the character of the 1970ies, when the New International Economic Order (NIEO) was enthusiastically pursued, was reflected in the debate.36 32 A/AC.105/891, supra fn 30, para. 136. Chairperson of the working group of this agenda item is the editor of this book, Prof. Irmgard Marboe of Austria. 33 A/AC.105/C.2/2011/LEG/L.1 of 7 April 2011 ; A/AC.105/C.2/2011/CRP.9 of 29 March 2011. 34 See, e.g., E.R.C. van Bogaert, Aspects of Space Law (Kluwer, Deventer 1986) 239–248. 35 Gabrynowicz, supra fn 10, 413. 36 See, section III 3 of this article.

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After the adoption of the Principles, remote sensing activities truly took off as an established area of space activities for military, civilian and commercial purposes. Under the circumstances, legal discussions have been focused on the evaluation of whether or not at least a part of the 1986 Principles have become a rule of customary international law, or a departure from the Principles has been confirmed concerning State practice.37 In terms of the function as soft law, however, it seems that the true significance of the Principles lies in that they offer a prototype of international cooperation of space applications, especially in that they provide standards in sharing, exchanging and disseminating data and information from remote sensing activity. In other words, the 1986 Remote Sensing Principles may have developed or are developing into an international regime. In this article, ‘international regime’ is defined as ‘a set of implicit or explicit principles, norms, rules and decisionmaking procedures around which actors’ expectations converge in a given area of international relations’,38 as a typical definition in the realm of international relations. That definition may give the impression that the hurdle to be recognised as an international regime is lower than as a rule of customary international law. But it is not so. The requirements are different in the two notions. An international regime requires the accumulation of active actions based on various instruments of soft law characteristics by many actors, both by States and by non-State actors. Customary international law is, in contrast, made precisely on a certain rule and State practice and opinio juris are surveyed strictly with regard to that rule. The 1986 Remote Sensing Principles put a special emphasis on international cooperation in environmental monitoring and disaster mitigation. It is, first of all, categorically declared that remote sensing shall promote the protection of the Earth’s natural environment (Principle X) and also shall promote the protection of mankind from natural disasters (Principle XI). The former Principle provides that sensing States shall disclose information when they have identified information ‘that is capable of averting any phenomenon harmful to the Earth’s natural environment’ and the latter provides that sensing States shall transmit data and information to States affected or likely to be affected by impending natural disas37 See, e.g., Joanne Irene Gabrynowicz, Defining Data Availability for Commercial Remote Sensing Systems : under United States Federal Law, XXIII Annales of Air and Space Law (1998) 93, 95 ; Frans von der Dunk, Non-Discriminatory Data Dissemination Practice, in : Ray Harris (ed.), Earth Observation Data Policy and Europe (Taylor & Francis, London 2002) 41–50 ; Carl Christol, Remote Sensing and International Space Law, 16 Journal of Space Law (1998) 21, 39–43. 38 Stephen D. Krasner, International Regime (Cornell University Press, Ithaca 1983) 2.

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ters as promptly as possible in case they have ‘identified processed data and analysed information’.39 Principle XII provides that the sensed State shall have access to the primary data40 and the processed data41 concerning the territory under its jurisdiction ‘on a non-discriminatory basis and on reasonable cost terms’ as soon as they are produced.42 Principles X and XI, supplemented by Principle XII seem to have been implemented with some modifications in governmental and nongovernmental organisations and fora. Some examples will be given very briefly. ‘The Global Earth Observation System of Systems (GEOSS) 10-Year Implementation Plan’, endorsed in 2005 within the intergovernmental Group on Earth Observation (GEO), is to provide Earth observation data including those from space to facilitate a decision-making to enhance nine societal benefit areas.43 GEOSS Data Sharing Principles highlighted by the Plan in 2005 read : ‘There will be full and open exchange of data, metadata and products shared within GEOSS, recognising relevant international instruments and national policies and legislation ; all shared data, metadata and products will be made available with minimum time delay and at minimum cost ; and, all shared data, metadata and products being free of charge or no more than cost of reproduction will be encouraged for research and education.’44

The International Charter, Space and Major Disasters (Disaster Charter)45 was set up in 2000 as a non-governmental organisation of space agencies and space 39 While both Principles X and XI use ‘shall’, it is not a legal obligation because it is used in a non-binding instrument. 40 Definition is found in Principle 1 (b). 41 Definition is found in Principle 1 (c). 42 With respect to the ‘analysed information’ made by processed data plus inputs of data and knowledge from other sources, the right of access of the sensed State is further limited as found in Principle XII. 43 http ://www.earthobservations.org/geoss.shtml (03/07/2011). 44 GEO, Global Earth Observation System of Systems GEOSS 10-Year Implementation Plan Reference Documents (2005) 197–209. Detailed Implementation Guidelines for the GEOSS Data Sharing Principles were finalised in 2009. http ://www.earthobservations.org/documents/ geo_vi/07_Implementation%20Guidelines%20for%20the%20GEOSS%20Data%20Sharing %20Principles%20Rev2.pdf (03/07/2011). 45 http ://www.disasterscharter.org/home (03/07/2011). Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disasters [Rev.3] of 25 April 2000, http ://www.disasterscharter.org/web/charter/charter ;jsessionid=31DE765C 3B69C9EE2C592C028020902C (03/07/2011).

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system operators. The Disaster Charter supplies data and information46 to the States or communities in case of natural or technological disasters (Art. II) on a voluntary basis (Art. III 1). Notably, the Charter specifies that the data and information donation, are not a legal obligation of the parties ; instead, it is provided that the ‘parties shall use their best endeavours in the conduct of this cooperation’ (Art. IV). The Committee on Earth Observation Satellites (CEOS)47 established in 1984 has two data exchange principles ; the ‘CEOS Satellite Data Exchange principles for Global Change Data’ (CEOS 1) adopted in 1991,48 and ‘CEOS Data Principles for Operational Environmental Data’ (CEOS 2) of 1994.49 Both principles provide for data dissemination to the international community, not restricted among member agencies, on a non-discriminatory basis as long as the data will be used for the public benefit.50 They lay down that the goal of the release of data should be within three months after the start of routine data acquisition (Principle 6 of CEOS 1 & CEOS 2).51 As CEOS has an inherent restriction in nature, as an expert group for the exchange of information on harmonising data, the Integrated Global Observing Strategy Partnership (IGOS-P) was set up in 1987 in cooperation with CEOS and twelve United Nations families as a forum to conduct various thematic projects using CEOS data based on the best endeavour methodology.52 The ‘Principles on Data and Information Systems and Services’ (DISS)53 of IGOS-P are similar in definitions, contents, and methodology, to those of GEOSS 10-Year Implementation Plan and naturally to those of CEOS. 46 ‘[S]pace data’ and ‘information’ are defined in Art. I. 47 http ://www.ceos.org/ (03/07/2011). 48 http ://www.spacelaw.olemiss.edu/library/space/IntOrg/CEOS/data_exchange_principles.pdf (15/07/2011). 49 http ://www.spacelaw.olemiss.edu/library/space/IntOrg/CEOS/data_principles_environmen tal_data.pdf (15/07/2011). 50 CEOS 1, Principle 5. ‘Non-discriminatory’ is defined in CEOS 2, but the term itself is not used in the operative principles. 51 Originally, EUMETSAT voted against CEOS 2 Principles due to its strong obligation to disseminate data, but later, EUMETSAT decided to exchange data on free and unrestricted basis provided that such data were included in the list of the essential category of data/product specified in Resolution 40 of the World Meteorological Organization (WMO). EUM/C/98/ Res. IV of July 1998. About EUMETSAT data policy, see, Dunk, supra fn 37, 45–46. 52 http ://www.eohandbook.com/igosp/docsIGOS.htm (03/07/2011). 53 IGOS, IGOS Partnership Process, updated 19 March 2003. Annex C, 23–24. See, also, http :// gems.ecmwf.int/documents/IGOS/igos_process-paper-rev-march2003.pdf (07/08/2011).

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The significance of the data policies of GEOSS, the Disaster Charter, CEOS and IGOS-P lies in the following. First, such data policies are more progressive than the 1986 Principles, as a result of collective efforts of space agencies and other Earth observation communities to develop and concretise Principle XII of the 1986 Principles and to better adapt to the new global environment. Second, such data policies have influenced even those of long established organisations with commercial purposes to disseminate certain basic data free of charge to the public. One example is the European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT), which releases minimum lifeline data on a free and unrestricted basis.54 Finally, for future consideration, attention has to be paid to the establishment of the United Nations Platform for Space-based Information for Disaster Management and Emergency Response (UN-SPIDER) in 2006 as a project by the United Nations Office for Outer Space Affairs (UNOOSA) implementing one of the recommendations of UNISPACE III.55 The aim of UN-SPIDER is to ensure the access to and develop the capacity to use all types of space-based information to deal with the disaster management cycle as a bridge to connect disaster management and space communities and a facilitator of capacity building, in particular for developing countries.56 UN-SPIDER is to conduct its mission in cooperation with related international organisations, fora and projects such as GEOSS, the Disaster Charter, IGOS-P and other regional initiatives. UN-SPIDER appears to have the possibility of becoming a future regime of space applications, not restricted to the regime of remote sensing. Furthermore, in the distant future, the implementation of the UNISPACE III recommendations may develop into an international regime of space applications. In that case, the Vienna Declaration of 1999,57 as its fundamental soft law instrument, would have been supplemented by successive UNCOPUOS documents endorsed by the United Nations General Assembly.58 54 See, supra fn 51. 55 A/59/174 of 23 July 2004, VI B, 2(a) paras. 256–263 ; A/AC.105/890 of 6 March 2007, paras. 128 & 140–141 ; A/RES/59/2 of 3 December 2004, para.9 ; A/AC.105/873 of 4 August 2006 ; E/Conf. 97/6/IP.24 of September 2006 ; A/RES/61/110 of 15 January 2007, paras. 6 & 15. 56 http ://www.oosa.unvienna.org/oosa/en/unspider/index.html (13/07/2011). 57 UNISPACE III/SPACE/V/9 of 30 July 1999. 58 A/AC.105/804 of 5 March 2003, para. 63 & Annex II B., paras. 6–20 ; A/AC.105/823 of 8 March 2004, paras. 58–61 & Annex II B., paras. 6–11 ; A/AC.105/848 of 25 February 2005 ; A/AC.105/826 of 16 April 2004, paras. 102–108 ; A/59/174 supra fn 55; A/59/20 of 2004, paras. 37–61 ; A/RES/59/2, supra fn 55, paras. 3–4.

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1.3.2 Revised draft Code of Conduct for Outer Space Activities The revised draft Code of Conduct for Outer Space Activities adopted in October 2010 at the Council of the European Union (EU)59 seems to be another candidate which may be developed into an international regime. In September 2007, Portugal, on behalf of the EU, submitted a proposal to the first Committee of the General Assembly on the elaboration of a comprehensive code of conduct on space objects and space activities.60 The goal of the EU member States was to adopt a non-binding code of conduct aiming at bridging space security and space safety which reflects the recent developments of space safety measures including space debris mitigation, emerging space traffic management (STM) practices and other transparency and confidence-building measures (TCBM) for space activities.61 Encouraged by the positive reactions within and outside the EU, the idea was developed into the agreement on the draft Code of Conduct at the General Affairs and External Relations Council on 8 December 2008.62 Almost two years later, the revised draft Code of Conduct was agreed as mentioned above. The revised draft Code of Conduct is dedicated to enhance the security, safety and sustainability of all outer space activities (1.1) and, as a set of non-binding best practices, that is complementary to the existing space law framework (1.3). Measures to be taken include the prevention of collisions between space objects and other accidents (4.1–4.3), the mitigation of space debris (5), the notification to all potentially affected Subscribing States on specific space operations, accidents or emergencies (6.1) and the exchange and provision of information (8.1 & 8.2). As regards regime setting-up, it is worth mentioning that the States ‘have decided on the creation of the following consultation mechanism’ (9.1) when signing the Code and ‘to seek mutually acceptable solutions in accordance with international law’ (9.1) in case of doubts about the compliance with the Code (9.1). It is also laid down that ‘a mechanism to investigate proven incidents affecting space objects’ might be established (9.2), which ‘should utilize information provided on a voluntary basis by the Subscribing States’ (9.2) including that ‘collected through their space situational awareness capabilities’ (8.2). Most notably, 59 60 61 62

See, supra fn 18. A/62/114/Add.1 of 18 September 2007, 5–8. Ibid., 7. Council of the European Union, 17175/08, PESC1697, CODUN61 of 17 December 2008.

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it is provided that ‘[t]he Subscribing States resolve to promote the development of guidelines for space operations within the appropriate fora for the purpose of protecting the safety of space operations and the long-term sustainability of outer space activities’ (4.4). That provision implies that the future Code of Conduct shall be followed up by concrete and coherent guidelines being considered in the Scientific and Technical Subcommittee (STSC) of UNCOPUOS under the agenda item on ‘long-term sustainability of outer space activities’ since 2010.63 If the Code of Conduct will be successfully adopted universally, and followed by State practice, it may evolve to become customary international law. However, it seems more likely that it will become an international regime of the secure and safe use of space, together with the Hague Code of Conduct against Ballistic Missile Proliferation (HCOC) of 200264 and future General Assembly resolutions or guidelines on the long-term sustainability of space activities. That is yet all speculative, and too early to evaluate, but one thing may be stated safely, namely that this document constitutes a soft law instrument from which a future development can be expected. 2. Function 2 : soft law as a choice and preference 2.1 General remarks Not normative rules, but purely technically-based guidelines are suitable for certain kinds of space activities such as the safe use of nuclear power sources (NPS) and the mitigation of ever increasing space debris. Addressing highly technical issues, it is preferable that guidelines regulating such activities should exclude political compromise as much as possible and should be expeditiously updated and amended according to the latest scientific developments and technological progress. This is not guaranteed when a treaty is negotiated, for it is a product of a political compromise. In addition, its adoption, entering-into force, and a future amendment are time-consuming, and the possibility of failure always 63 France launched an informal working group of spacefaring nations and space industry to make a set of ‘best practices guidelines’ to implement the future Code of Conduct. See, e.g., Gérard Brachet, Long-Term Sustainability of Space Activities, in : UNIDIR (ed.), Security in Space : The Next Generation (Conference Report 31 March–1 April 2008) 124–126 ; A/AC.105 /C.1/2009/CRP.14 of 17 February 2009 ;A/AC.105/L.274 of 21 May 2009 ; A/AC.105/2009/ CRP.15 of 10 June 2009 ; A/64/20 of 2009, paras. 160–162 ; A/AC.105/958 of 11 March 2010, paras. 174–203 ; A/AC.105/987 of 7 March 2011, paras. 178–201& Annex IV. 64 http ://www.bmeia.gv.at/index.php ?id=64664&L=1 (13/07/2011).

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exists.65 Thus, at UNCOPUOS, treaty-making has been carefully avoided almost as an anathema for regulating the use of NPS and space debris mitigation, and instead, soft law rules have been supported. 2.2 Regulations of nuclear power sources (NPS) Principles and voluntary guidance on the use of NPS, adopted in 1992 by the LSC and in 2009 at the STSC, are typical soft law rules made as choice and preference over a legally-binding treaty. Triggered by the Cosmos 954 accident in 1978,66 the discussion started on the use of the NPS, at first in a working group of the STSC of UNCOPUOS, and then since 1981, in the LSC as well.67 From the very early stage of the lengthy process of agreeing on the NPS Principles, it was clear that expert views had to be extensively considered including the recommendations by the International Commission on Radiological Protection (ICRP).68 It was in 1983 when LSC substantially started considering several proposals on this subject,69 which eventually resulted in the Principles Relevant to the Use of Nuclear Power Sources in Outer Space, adopted unanimously at UNCOPUOS and the General Assembly in 1992.70 All of the following elements determined from the very beginning the form of the future instrument as non-binding principles : (i) the highly technical nature of NPS operation ; (ii) both the then USSR and the US did not have the slightest intention to cease to use of NPS ; (iii) its usefulness for military and interplanetary missions ; (iv) the political difficulty to convince States which claimed their right to be devoid of any nuclear risk from NPS if they received no benefits from NPS ; and (iv) the necessity to elaborate additional principles to adapt to the new development of NPS being in progress at that time.71 65 See, e.g., Mirmina, supra fn 21, 652–653. 66 18 ILM (1979) 899–930. 67 Michael S. Straubel, Space Borne Nuclear Power Sources — The Status of Their Regulation, 20 Valparaiso University Law Review (1986) 187, 211–214. 68 A/AC.105/305 of 24 February 1982. Principle 3.1 (b)(c) of the 1992 NPS Principles contains ICRP Recommendations. 69 See, e.g., A/AC.105/C.2/L.137 of 28 March1983 ; A/AC.105/C.2/L.138 of 28 March 1983 ; A/AC.105/C.2/L.142 of 6 April 1983. He Qizhi, Towards a New Legal Regime for the Use of Nuclear Power Sources in Outer Space, 14 Journal of Space Law (1986) 95, 101–105. 70 GA Res 47/68 of 14 December 1992 ; see, e.g., Marietta Benkö and Jürgen Gephard, The Use of Nuclear Power Sources in Outer Space, in : Benkö and Schrogl, supra fn 12, 19, 36. 71 See, e.g., Straubel, supra fn 67, 215.

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These NPS Principles restrict the permissible use of NPS to missions not possible by non-nuclear energy sources in a reasonable way to minimise the quantity of radioactive material in space (Principle 3). Different restrictions are laid down for more dangerous nuclear reactors and safer radioisotope generators (Principle 3.2 & 3.3). Because the US nuclear propulsion system, then being developed and to be tested were not included in the scope of application (Preamble, para. 6), Principle 11 provided that principles should be reopened for revision no later than two years after their adoption. However, the principles have not yet been reopened until today. The shared opinion of the LSC is that the revision should wait until the scientific analysis being conducted at the STSC has been completed.72 At the beginning of the 21st century, when a series of manned and unmanned interplanetary programmes were announced, also by newly emerging space powers, it was clear that NPS in space were indispensable at least in some of the programmes. Under these circumstances, the STSC started drafting a high-level guidance in the form of a model safety framework in 2007, together with the International Atomic Energy Agency (IAEA) for the purpose of providing an accurate technical safety standard based on which national and international intergovernmental mission safety frameworks could be constructed.73 The Safety Framework for Nuclear Power Sources Applications in Outer Space was adopted in 2009, a year earlier than its work plan.74 This Framework provides for safety measures on launch, operation and end-of-service phases of NPS applications.75 Upon the adoption of the Safety Framework, the view was expressed at the STSC that ‘detailed and technical guidelines that might help to alleviate the concerns of many developing countries’76 should be the next step. The Safety Framework is, however, intended to provide ‘voluntary guidance’77 for national implementation and no plan was announced for the further elaboration of this rule. Instead, the agreed working schedule of the STSC until 2015 shows the 72 See, e.g., Tadao Kuribayashi (ed.), Kaisetsu uchühö shiryöshü [Space Law Materials : Commentary], (Keiotsüshin, Tokyo 1994) 100–101 ; A/AC.105/C.2/L.284/Add.3 of 7 April 2011, paras. 1–16 ; A/AC.105/990 of 20 April 2011, para. 88. 73 See, e.g., A/AC.105/869 of 16 March 2006, paras.115–129 & Annex III ; A/AC.105/911 of 11 March 2008, paras. 134–153 & Annex II. 74 A/AC.105/890, supra fn 55, paras. 102–114 & Annex II, para.7 ; A/AC.105/933 of 6 March 2009, paras. 119 –135 & Annex II ; A/AC.105/C.1/L.292/Rev.4 of 18 February 2009. 75 A/AC.105/C.1/L.292/Rev.4, supra fn 74. 76 A/AC.105/933, supra fn 74, para. 132. 77 A/AC.105/C.1/L.292/Rev.4, supra fn 74, Preface.

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planned efforts to facilitate the implementation of this Safety Framework.78 It is noteworthy that even non-binding detailed technical guidelines are not included in the action plans. In the case of NPS in space, the safety framework as a voluntary guidance for national implementation is sufficient in the foreseeable future, mostly because basic norms for action are contained in the Outer Space Treaty, especially Art. I, III, IX, and XI of it, supplemented by some core rules on international nuclear energy adopted in the realm of the IAEA and of international environmental law.79 2.3 Space debris mitigation It was in the late 1980ies when the threat of space debris started to concern the space community. Bilateral agency-to-agency working level cooperation led by NASA80 gradually developed into the establishment of the Inter-Agency Space Debris Coordination Committee (IADC) in 1993 as an international nongovernmental forum to exchange information and to facilitate cooperation in space debris mitigation research and operations.81 IADC completed its first Space Debris Mitigation Guidelines in 2002,82 which were supplemented in 200483 and revised in 2007.84 As purely technically-based guidelines made at an agency-level informal body, the revision was initiated as soon as new technical measures were developed.85 The IADC Guidelines cover the design and 78 A/AC.105/958, supra fn 63, Annex II, para. 8. 79 See, e.g., Steven A. Mirmina, Use of Nuclear Power Sources in the Exploration of Outer Space, Proceedings of the 48th Colloquium on the Law of Outer Space (2006) 131, 139–144 ; Lotta Viikari, The Environmental Element in Space Law (Nijhoff, Leiden 2008) 119–206. 80 Working level bilateral cooperation with NASA started in 1987 with European Space Agency (ESA), and in 1989, it also started with the respective space agencies of the USSR and Japan. See, also, U.S. National Space Policy (1988), Point 9 of the Inter-Sector Policies ; U.S. National Space Policy (1989), Point 9 of the Inter-Sector Policies. 81 Currently, the Space Agencies of Canada, China, France, Germany, India, Italy, Japan, Russia, Ukraine, UK and the US as well as ESA are members. http ://www.iadc-online.org/index.cgi (14/04/2011). 82 IADC, IADC 02-01 (15 October 2002). 83 IADC, IADC WG4, Support Documents to Space Debris Mitigation Guidelines (AI. 20.3) Issue1 (5 October 2004). 84 Amendment to IADC 02-01, reflected in IADC-08-01 (8 February 2008). This amendment was decided in September 2007. 85 In 2007, revision was made, e.g., on measures on the re-orbit from the geostationary orbit

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manufacturing phase,86 the on-orbit operation phase87 and the end-of-use disposal phase,88 and address both the release of debris during normal operations89 and intentional destructions as for the on-orbit operation phase.90 The basis of the 2007 UNCOPUOS Space Debris Mitigation Guidelines was no other than the IADC Guidelines. In 2001, the STSC of UNCOPUOS requested IADC to present a proposal on debris mitigation in order to review the possibility of endorsing it as ‘guidelines to be implemented on a voluntary basis through national mechanisms’.91 Following the modifications and inputs based on the original IADC proposal submitted to the STSC in 2002,92 it was in 2007 that the STSC adopted the guidelines, and later, the United Nations General Assembly endorsed the UNCOPUOS Space Debris Mitigation Guidelines as a part of its annual Resolution on international cooperation in the peaceful uses of outer space.93 The actual operation of the UNCOPUOS Mitigation Guidelines seems to best demonstrate the functions of soft law as choice and preference because of the following points. First, it was made at the STSC with the cooperation of IADC, not in the LSC. Since debris mitigation precisely belongs to the field where technically accurate best practice guidelines are needed, the STSC was chosen as a desirable forum. The fact that IADC experts often attended the STSC as a delegation greatly helped to guarantee the highly accurate technical standards of the UNCOPUOS Guidelines. Second, the IADC, a non-governmental experts’ forum, is a linchpin for the day-to-day operation of the UNCOPUOS Guidelines. Because the contents of the UNCOPUOS Guidelines, consisting of seven guidelines, are almost identical to their IADC counterparts but more succinct and abstract, the application

86 87 88 89 90 91 92 93

(GEO). Ibid., 17–21. ‘Re-orbit’ means ‘intentional changing of a space system’s orbit,’ supra fn 82, 3.4.3. Supra fn 82., e.g., 5.1, 5.2, 5.2.1, 5.2.2, & 5.4. Ibid., e.g., 5.1, 5.2, 5.2.2, & 5.2.3. Ibid., e.g., 5.2.1, 5.3.1, 5.3.2, & 5.3.3. Ibid., e.g., 5.1, 5.2.2 & 5.4. Ibid., e.g., 5.2.3. A/AC.105/761 of 2 March 2001, para. 130. A/AC.105/C.1/L.260 of 29 November 2002 ; A/AC.105/804, supra fn 58, para. 121 ; A/ AC.105/823, supra fn 58, para. 94. A/AC.105/890, supra fn 55, para. 99 & Annex IV ; A/62/20 of 2007, II.C.3, paras. 116–128 & Annex, 4.

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of the UNCOPUOS Guidelines requires referring to the IADC Guidelines and its supplementary rules and procedures.94 Note has also to be taken of the fact that a non-governmental International Organisation for Standardization (ISO) is involved with space debris mitigation in terms of the standardisation of materials, components, and equipment for construction and operation of space vehicles in order to satisfy the standards set by the IADC Guidelines.95 When the UNCOPUOS Guidelines are implemented, therefore, IADC Guidelines and ISO standards are at the same time implemented through national mechanisms either by legislative, administrative, or agency-level regulations.96 Although the IADC was the linchpin, still, the UNCOPUOS Guidelines were important, for the addressee of these Guidelines is universal while the number of the IADC members is currently 12.97 Third, in addition to the STSC members’ voluntary report on their national implementation of UNCOPUOS Space Debris Mitigation Guidelines, since 2009, the ‘General exchange of information on national mechanisms relating to space debris mitigation measures’ 98 is an agenda item in the LSC, where legal and administrative aspects of the national implementation have been reported. It can be said that the purely technical nature of the UNCOPUOS Guidelines restricts the role of the LSC as a forum to review and report on national implementation.99

94 At the end of the UNCOPUOS Guidelines, special reference is added : ‘[f ]or more in-depth descriptions and recommendations pertaining to space debris mitigation measures, Member States and international organisations may refer to the latest version of the IADC space debris mitigation guidelines and other supporting documents, which can be found on the IADC website (www.iadc-online.org).’ A/62/20, supra fn 93, 50. 95 TC20/SC14 of ISO deals with space systems and operation. 96 When the UNCOPUOS Guidelines were adopted, several countries had already provided for the debris mitigation in their national laws. See, e.g., Sec. 70105 (b) (2) (B) U.S. Commercial Space Launch Act (Public Law 108–492) and 14 CFR 415.39 ; Sec. 5622 (b)(4) U.S. Land Remote Sensing Policy Act (Public Law 102–555) and 15 CFR 960.9 & 960.11 (12). It has to be noted that Public Law 111–314 enacted into law on 18 December 2010 made Title 51, US Code, ‘National and Commercial Space Programs.’ Thus, section numbers are changed ; Sec. 5 (2)(e) & (g) UK Outer Space Act ; Art. 21 Ukrainian Space Activity Law ; Secs. 18(d), 26 (3)(e), 35 (2) (b) & 44 (1) (a) Australian Space Activities Act ; Sec. 9 (1) Canadian Remote Sensing Space Systems Act ; and Art. 3, 3 (b) Dutch Space Activities Act. 97 Supra fn 81. 98 A/AC.105/C.2/L.273/Add.3 of 10 April 2008, para. 21. 99 Mirmina, supra fn 21, 658.

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3. Function 3 : soft law as lex ferenda to avoid North-South confrontation 3.1 Rules in the 1970ies and early 1980ies : Characteristics of function 3 The third function is to declare the desirable norm in international relations to mitigate a possible North-South confrontation, which was a typical function when much attention was paid to soft law in the 1970ies.100 The famous Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States of 1970101 and the Charter of Economic Rights and Duties of States of 1974102 are examples of this function. In space law, the UNESCO Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange of 1972 (UNESCO Guiding Principles)103 and the 1982 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (DBS Principles)104 are typical examples of this category. Both resolutions are mainly a compromise of the rights and duties of the broadcasting States that claim free flow of information, and the receiving States that maintain the information sovereignty and the prior consent from the broadcasting State when a programme via satellites is to be transmitted. It was at the ITU in 1963, when the agenda of the free flow of satellite-based radio and TV programmes was discussed for the first time.105 Then, in 1966, while the then United Arab Republic proposed in the LSC that the prohibition of the use of the direct broadcasting satellites (DBS) should be stipulated in the Outer Space Treaty, it did not get sufficient support.106 In 1972, General 100 See, e.g., W. M. Reisman, The Concept and Functions of Soft Law in International Politics, in : E.G. Bello and B. A. Ajibola (eds.), Essays in Honour of Judge Taslim Olawale Elias : Contemporary International Law and Human Rights (Martinus Nijhoff, Den Haag 1992) 135– 144. 101 GA Res 2625 (XXV)) of 24 October 1970. 102 GA Res 3281 (XXIX) of 12 December 1974. 103 Adopted at the 17th General Assembly of UNESCO of 15 November 1972 ; http ://unesdoc. unesco.org/images/0000/000021/002136eb.pdf (07/06/2011). 104 GA Res 37/92 of 10 December 1982. 105 A country even claimed that satellite-based broadcasting shall be altogether forbidden. Soji Yamamoto, Hösö eisei wo meguru jiyü to kisei [Freedom v. Regulations : Discussions on the Broadcasting Satellites] (Tamagawadaigakushuppankai, Tokyo 1979) 100. 106 The USSR, Mexico, Brazil and India supported the proposal. The UK and US strongly opposed it. Ibid., 101. See, also, GA Res 2222 (XXI) of 19 December 1966, 4 (b). See, also, GA Res 2453 B (XXIII) of 20 December 1968, para. 5.

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Assembly Resolution 2916 required the UNCOPUOS to elaborate principles governing DBS ‘with a view to concluding an international agreement or agreements’107 on the basis of the UNESCO Guiding Principles just about to be formally adopted, noting a proposal submitted the same year to the General Assembly by the USSR to make a convention governing the use of DBS.108 The UNESCO Guiding Principles of 1972 provide that broadcasting States need to ‘reach or promote prior agreements’109 concerning the use of DBS, taking into account the principle of freedom of information.110 This can be largely evaluated as the triumph of the receiving States, because the duty to obtain prior consent or at least the efforts to obtain it was imposed on to the broadcasting States. That was exactly the much-needed political declaration and also a lex ferenda on the part of States claiming ‘information sovereignty’ and wishing to change the existing balance of power by international law. As mentioned, United Nations General Assembly Resolution 2916 reopened the consideration of the use of DBS in a working group of the LSC, but it was not until 1974 when it was decided that DBS Principles would be considered irrespective of the reluctance of some States which thought the subject-matter too premature to make any kind of instrument.111 Almost a decade later, circumventing the traditional consensus-based adoption in the LSC and UNCOPUOS, the draft DBS Principles were directly submitted to the United Nations Special Political Committee, and adopted by the United Nations General Assembly in December 1982. 107 developing and Eastern States voted for the Principles, while 13 States, mostly Western countries that stressed the importance of the freedom of information, voted against it. Another 13 States abstained.112 The 1982 DBS Principles watered down the 1972 UNESCO Guiding Principles. Instead of the ‘prior consent’, the notification and consultation obligations of the broadcasting States were provided for to and with the receiving States.113 Yet, the compromise between the two values, ‘freedom of information’ 107 UN GA Res 2916 (XXVII) of 9 November 1972, cited in 12 ILM (1972) 229–231. 108 A/8771 of 9 August 1972, cited in 11 ILM (1972) 1375–1381. The UNESCO Guiding Principles are similar in content to this Soviet draft convention. 109 Supra fn 103, Art. IX 1. 110 Art. VI of the 1972 UNESCO DBS Guiding Principles also provides for the rights of receiving States to decide on the contents of the educational programs by DBS. Ibid. 111 See, e.g., Manfred A. Dauses, Direct Television Broadcasting by Satellites and Freedom of Information, 3 Journal of Space Law (1975) 59 ; Kuribayashi, supra fn 72, 72. 112 Supra fn 104. 113 Ibid., para. 13.

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and ‘information sovereignty’ was apparently not adequate ; the DBS Principles were destined to be less suitable for the actual implementation than as a political statement to bring attention and sympathy from international society. In that sense, it may be said that those principles served their purpose. 3.2 1990’s and onwards The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries (Space Benefits Declaration) adopted in 1996114 and the paper adopted by the LSC on ‘Some aspects concerning the use of the geostationary orbit’ in 2000115 can be basically classified as soft law rules to avoid North-South confrontation. However, despite of the original intention to elaborate lex ferenda, the final products do not necessarily aim at changing currently established international law rules to ‘more equitable’ ones that will result in a better distributive justice of wealth. Rather, those two sets of recommendations aim more clearly at coordinating the interests of all countries taking into account the special needs of the developing countries by guaranteeing the equality of the opportunity rather than the equality of the result. The clear difference from the previous instruments seems the respect for the free market principles and the inherent nature of international cooperation which is not to be ordered but should be conducted voluntarily for the mutual benefit to address the common challenge. 3.2.1 Space Benefits Declaration When the Remote Sensing Principles were adopted, as a next subject, the LSC decided in 1988 ‘to assess and define the benefits and interests that developing countries can expect to obtain through the exploration and utilisation of outer space.’116 In other words, the LSC started defining the meaning of ‘the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development’ and of ‘all States without discrimination of any kind, 114 GA Res 51/122 of 13 December 1996. 115 A/AC.105/738, supra fn 27, Annex III. 116 A/AC.105/411 of 8 April 1988, paras. 37–72 ; Nandasiri Jasentuliyana, The Legal Sub-Committee of COPUOS Achieves Progress in the Legal Dimension in Outer Space Activities, 18 Journal of Space Law (1990) 35, 37.

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on a basis of equality and in accordance with international law’ provided for in Art. I of the Outer Space Treaty. Since identifying the concrete measures to coordinate the philosophy of ‘free for explanation and use’ and the ‘province of all mankind’ notion is difficult, it was rather natural that the first draft of a set of principles, submitted in 1991117 could not offer constructive food for thought based on which member States with conflicting views could narrow their differences. The first draft was full of references to a series of General Assembly resolutions with a NIEO concept118 and categorically declares ‘special responsibility’ of spacefaring nations to internationalise their space programmes and requires the transfer of technology under most favoured-nation conditions.119 A revised version of the draft principles submitted two years later120 was more conciliatory. One example is that the wording of ‘special responsibility in promoting and fostering international cooperation’ (I 2 of the 1991 draft) of spacefaring States was changed to ‘contribute to promoting and fostering international cooperation’.121 As a whole, reflecting the change of international political ramification from NIEO to globalisation, the draft principles also had to pursue the practical way of cooperation to be mutually beneficial. Based on the FrancoGerman proposal of 1995,122 the Space Benefits Declaration was adopted as a General Assembly resolution in 1996.123 The more important points of this Declaration in light of this article include the respect of the commercialisation of space124 and the intellectual property rights125 in international cooperation, which should be facilitated ‘on an equi117 A/AC.105/C.2/L.182 of 9 April 1991. See, also, Schrogl, supra fn 12, 204–210. 118 GA Resolutions 1803, 2625, 3281 and 3362 were referred to in the first draft. A/AC.105/ C.2/L.182, supra, fn 117, 1. 119 Ibid., I 1, 2 and II 3,4 of the 1991 draft Principles. 120 A/AC.105/C.2/L.182/Rev.1 of 31 March 1993. 121 Ibid., I 2 of the 1993 draft Principles. 122 A/AC.105/C.2/L.197 of 27 March 1995. 123 For the detailed process, see, e.g., Marietta Benkö and Kai-Uwe Schrogl, The 1996 UNDeclaration on ‘Space Benefits’ Ending the North-South Debate on Space Cooperation, Proceedings of the 39th Colloquium on the Law of Outer Space (1997) 183, 184–185. 124 GA Res 51/122, supra fn 114. Principle 4 provides that ‘[i]nternational cooperation should be conducted in the modes that are considered most effective and appropriate by the countries concerned, including, inter alia, governmental and non-governmental ; commercial and non-commercial ; global, multilateral, regional or bilateral ; and international cooperation among countries in all levels of development’. 125 Ibid. The second sentence of Principle 2 provides that ‘[c]ontractual terms in such cooperative ventures should be fair and reasonable and they should be in full compliance with the

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table and mutually acceptable basis’.126 Reflecting the rapid progress of globalisation, the Space Benefits Declaration is beneficial to both developed and developing countries. For developed countries, it guarantees the free exploration and use of outer space including the commercial use of space based on market mechanisms, and for developing countries which had already embarked on or were about to embark on the space activities on their own using various kinds of cooperative measures, the door was opened to be an equal partner in a space venture carried out with a spacefaring nation within the framework of capitalism while pursuing international cooperation. The adoption of the Space Benefits Declaration led to the successful organisation of UNISPACE III, which was by far more successful than the preceding two conferences held in 1968 and 1982. 3.2.2 The use of geostationary orbit More than a decade after the Bogotá Declaration of 1976, Colombia continued to claim ‘preferential right’ for equatorial States and developing countries to the geostationary orbits (GEO). Not being satisfied with the status quo under the regime of the ITU where the ‘first-come, first-served’ principle was basically applied as regards the access to frequencies and orbital positions in GEO, in 1993, Colombia submitted a working paper to the LSC. It provided that countries which did not yet have access to the orbital position should be given a ‘preferential right’ to access an orbital position in relation to a country that already had access, when identical or neighbouring positions were filed by the two categories of nations simultaneously.127 However, because the ITU had already taken special efforts to alleviate the ‘first-come, first-served’ filing system in the late 1980ies,128 and because the introduction of the concept of ‘preferential right’ was not welcomed, the working paper did not get serious consideration in the LSC. Thus, in 1996, Colombia again submitted a working paper to the LSC.129 While the phrase ‘preference would be given to the developing country,’ found in para. 9 (a) of the 1993 working paper was cautiously deleted to avoid a negative response from the UNlegitimate rights and interests of the parties concerned as, for example, with intellectual property rights’. 126 Ibid., Principles 2 & 3. 127 A/AC.105/C.2/L.192 of 30 March 1993, para. 9 (a). 128 WARC BS–79 ; WARC ORB–85/88, and WARC/92 were relevant at that time. See, e.g., Francis Lyall, Law and Space Telecommunications (Dartmouth, Vermont 1989) 372–412. 129 A/AC.105/C.2/L.200 and Corr.1 of 15 March 1996.

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COPUOS members, the contents of the recommendations were not substantially changed from those of the previous text. Therefore, again, sufficient support was not gained.130 The LSC continued to deal with that subject matter, and in 2000, adopted recommendations on the ways and means to ensure the rational and equitable use of GEO, to which Colombia did not object, duly taking note of the development of the ITU Charter, Radio Regulations and its resolutions.131 This agreement ended the long standing confrontation concerning the rational and equitable use of GEO by explicitly declaring that ‘no working group shall be convened on the issue of equitable access to the geostationary orbit’ from that time on.132 Looking at the final product of the 2000 paper, one can acknowledge that this element of the North-South confrontation, at times bitter, was harmoniously addressed, especially in two points. The first point concerns the specific case when the same or neighbouring orbital positions are pursued by the two categories of countries. In the 2000 paper, it is recommended that the country already having access to orbital positions is to ‘take all practical steps to enable the developing country or other country to have equitable access to the requested orbit/spectrum resource’ (para. 8 (a)). Equitable access would therefore be guaranteed not based on ‘preferential right’, but in accordance with the ITU Charter, Radio Regulations and other rules and procedures as well as the spirit of international cooperation. Here again, as in the case of Space Benefits Declaration, the spirit of voluntary cooperation, and not a legal responsibility, prevails. The second point is the agreement laid down in para. 8 (b), which refers to resolution 18 of the ITU Plenipotentiary Conference in 1994 addressing the issue of ‘paper satellites’ and resolution 49 of the ITU World Radiocommunications Conference (WRC) in 1997 requiring due diligence of the applicants for orbit/spectrum resources.133 It is interesting to note that the two ITU resolutions are essential for promoting commercial space activities. This shows that, in the field of space use where commercial use is the most successful, public interests can also be attained in the pursuit of the promotion of the commercial use of outer space. 130 A/AC.105/639 of 11 April 1996, paras. 23–47 & Annex III A. 131 A/AC.105/738, supra fn 27, paras. 36–49 & Annex III. 132 Ibid., Annex III, para. 8 (c). 133 ITU Resolution 49 was adopted at ITU WRC-97 and revised at WRC-07. See, e.g., Henry Wong, The Paper ‘Satellite’ Chase : The ITU Prepares for its Final Exam in Resolution 18, 63 Journal of Air Law and Commerce (1998) 849, 866–870.

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IV. Conclusion Based on the analysis above, this section now tries to answer if soft law rules are truly appropriate in the development of international space law currently and in the near future. Firstly, for space activities which need purely technical and not normative rules (function 2), soft law instruments are and will be most appropriate in the foreseeable future, because such technically-based guidelines are employed only within the legal and philosophical bounds of the Outer Space Treaty. Secondly, it may be expected that rules in function 3 will have been absorbed in subcategory II of function 1 in the future, for North-South confrontation had been largely addressed in view of the considerable progress accomplished in international cooperation in space activities. The role of soft law to declare lex ferenda seems to have finished, and it seems that international society has entered into an era to proceed to construct an international regime of space applications based on the various action plans, initiatives and projects generated by UNISPACE III in 1999. Thirdly, the future possibility of soft law for the harmonisation of national laws (subcategory I of function 1) has to be answered. Rules in this category seem different from the other categories of soft law in that, normative rules outside or not necessarily in line with the United Nations treaties on outer space are included and that such rules are needed to promote commercialisation and privatisation of outer space. Rules under this subcategory will continue to be welcomed as a tool to fill the gap in international space law, unless they are involved in military and security concerns. In that respect, it can be said that the European Code of Conduct for Outer Space Activities was wisely and cautiously drafted in order not to regulate the core of security matters.134 Analysis of various soft law documents therefore leads to the following conclusion : soft law will continue to be the most appropriate type of rules in the fields where (i) only technical rules are needed ; (ii) commercialisation and privatisation are concerned ; (iii) the subject is not directly concerned with national security and (iv) other national interests (e.g., economic interests) are not of significant importance. In sum, when public interests (‘mankind’ concept) and private economic interests are compatible, soft law will be adequate to govern space activities. In other words, soft law rules seem to constitute a coordinating 134 See, e.g., supra fn 18, 2 (General Principles).

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principle between public interests and commercial and private interests in space activities. However, it means that soft law rules are effective only because the following conditions exist in international society today : (i) commercialisation and privatisation have been progressing for the last three decades ; (ii) no big confrontation has occurred between spacefaring nations ; and (iii) since 1979 only three countries135 have acquired autonomous launching capability. As a limited number of nations are active players, soft law rules can suffice in some aspects, especially in purely technical fields, as long as members are convinced to commit themselves to implement them. Therefore, when such conditions are lost, it is uncertain what will happen. It is not guaranteed that international society will be able to adopt treaties to maintain space safety, security and commercialisation. Without normative rules, there may occur an arms race in outer space, being driven by the disregard for the public interest in the name of the legal void. No treaty is needed for the time being. However, once critical national security or interest is concerned, then, only legally-binding rules can govern the activities of individual nations. Examples would be the exploitation of natural resources on the Moon and the possible operation of a new type of space object with significant military potential. This cannot be addressed in soft law rules. Therefore, finally, based on the previous analysis, it has to be said that formal sources of international law will always be critical as far as the international society continues as the Westphalian system.136 The public order made by soft law may bring a legal void in the critical security concerns, which has to be avoided to accomplish exploration and use of space for the benefits of all mankind. At the end of the day, a treaty still matters.

135 These are India, Israel and Iran. 136 Sources of international law change as time goes by. For instance, the source of international law as ‘Vereinbarung’ (treaty in German) in the latter half of the 19th century is substantially narrower than today’s formal sources. Thus, a certain international regime which is nearly equal to a rule of customary international law may be deemed as legally-binding in the future. Heinlich Triepel, Völkerrecht und Landesrecht (C.L. Hirschfeld, Leipzig 1899) 49–62.

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‘Regulatory Impact Assessment’ — A Tool to Strengthen Soft Law Regulations I. What is ‘soft law’ and why is it necessary ? The term ‘soft law’ occurs frequently. It is used as an antonym to ‘hard law’. Both terms cannot be found in the legal order. They are ‘creations’ of legal scientists, which describe specific phenomena in the international as well as in the national legal system. On the national level ‘hard law’ comprises regulations in legislative acts which are based upon a constitution and — in a democracy — released with consent of the parliament, furthermore regulations like decrees which are based upon a statutory power. Within the European Union ‘hard law’ consists of the primary law, this includes above all the Treaty of Lisbon and the Treaties of Accession of the European Union member States. Furthermore it consists of the secondary law in particular in form of ‘regulations’ and ‘directives’ as well as the judgments of the European Court of Justice. On the international level, one could refer to Art 38 of the Statute of the International Court of Justice (ICJ) to identify ‘hard law’. According to this provision, the Court shall apply international conventions establishing rules expressly recognised by the States, international custom as evidence of a general practice accepted as law, and the general principles of law recognised by civilised nations. ‘Hard law’ is binding and enforceable. The development and adoption of law follows specific (formal) rules. It cannot be changed easily and it is binding as long as it is not (formally) repealed. Violations can be filed at court and therefore can result in legally defined sanctions. ‘Soft law’ are regulations too ; similiar to ‘hard law’ they intend to steer (human) behaviour and conduct. Their (other) characteristics are contrary to ‘hard law’ : they can be changed more easily ; they cannot be filed at court and therefore do not result in specific legally defined sanctions ;1 they are not binding ; its 1 It has to be noticed that sanctioning mechanisms in the field of international law are weak in

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content is dependent on compliance rather than enforcement ; they are usually not adopted under strict procedural and formal rules etc. ‘Hard law’ and ‘soft law’ could theoretically be seen as an antithesis of one another. Nevertheless, in real life, they are more complementary than competitive. The definition of the notion ‘soft law’ has caused controversies. Opinions on this issue have often diverged. D. J. Harris,2 for instance, explains ‘soft law’ as follows : ‘Soft law consists of written instruments that spell out rules of conduct that are not intended to be legally binding, so they are not subject to the law of treaties and do not generate the opinio juris required for them to be state practice contributing to custom. […] While it may be paradoxical and confusing to call something “law” when it is not law, the concept is nonetheless useful to describe instruments that clearly have an impact on international relations and that may later harden into custom or become the basis of a treaty.’

In contrast, Robert Walter’s3 considerations on the issue of ‘soft law’ are rather oriented towards normativity, sanctioning mechanisms as well as effectiveness. Walter’s approach concerning normativity derives from the term ‘law’ itself, which indicates the existence of a certain obligation. As far as the sanctioning mechanisms are concerned, these mechanisms must not contain structured sanctions, since this would turn them into a legal norm, unable to distinguish them from ‘positive’ law.4 Furthermore, Walter is of the opinion that in order to regard ‘soft law’ as a normative system it would require a certain degree of effectiveness, either by ongoing abidance or by constant social sanctions. In comparison to the previous opinions, the definition of ‘soft law’ by Matthias Knauff5 is rather restrictive. He describes ‘soft law’ as behaviour-related

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general or even missing. — Whereas reprisals cannot be taken against violations of ‘soft law’, measures of retorsion are possible. Cf. Stephan Hobe, Einführung in das Völkerrecht (9th ed., Francke, Tübingen 2008) 207 ; Albert Bleckmann, Grundprobleme und Methoden des Völkerrechts (Karl Alber, Freiburg-München 1982) 339. D. J. Harris, Cases and Materials on International Law (7th ed., Sweet and Maxwell, London 2010) 57. Robert Walter, Soft Law aus rechtstheoretischer und verfassungsrechtlicher Sicht, in : Michael Lang, Josef Schuch and Claus Staringer (eds.), Soft Law in der Praxis (Linde, Wien 2005) 23, 27 et seq. In the law theory called ‘Wiener Schule der Rechtstheorie’ ‘positive’ law means regulations that are based on a ‘Grundnorm’ (basic norm). The ‘Grundnorm’ is a presumption and has the function to describe the regulations as (binding) law. Matthias Knauff, Der Regelungsverbund : Recht und Soft Law im Mehrebenensystem (Mohr Sie-

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regulations created by sovereigns and (public) authorities authorised to exercise sovereign power, which do not have any legal force (or have a legal force which is related to the inner sphere of the regulating entity) and which achieve its steering effect in a non-legal way. The element of Knauffs definition that ‘soft law’ is issued by public authority, may result in a more precise definition of ‘soft law’, but in fact the definition appears to be too narrow. As a result regulations of (societal) institutions and entities, which do not have public authority, are not included in the definition of ‘soft law’ by Knauff. In the present article, ‘soft law’ is understood in a broader sense.6 The term shall refer to regulations which were established by either public authorities or societal institutions meant to determine or steer behaviour and conduct, and reaching compliance either through acceptance of the regulations necessity, as a result of market mechanisms7 or by other means that are not sanctions in a formal way.8 In contrast to ‘hard law’, ‘soft law’ does not have a legally binding force. However, its value is not just a political or moral one. Despite the non-mandatory character, ‘soft law’ can nevertheless influence behaviour and conduct. It contains rules which serve the purpose to influence and function as measuring rods for human behaviour and conduct. Notwithstanding its lack of legally binding force, it may have factual effects. The decisive factor is not the form of a regulation, but the ‘substance’ and the intention to regulate and influence behaviour and conduct.9

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beck, Tübingen 2010) 228. The definition in German reads as follows : ‘Soft Law sind verhaltensbezogene Regelungen, die von Hoheitsträgern bzw. mit der Ausübung von Hoheitsgewalt befassten Stellen geschaffen werden, die über keine oder nur eine auf die Innensphäre des Regelungsgebers bezogene Rechtsverbindlichkeit verfügen und ihre Steuerungswirkungen auf außerrechtlichen Wegen erzielen.’ Also see J. J. Kirton and M. J. Trebilcock, Hard Choices and Soft Law in Sustainable Global Governance, in : J. J. Kirton and M. J. Trebilcock (eds.), Hard Choices, Soft Law. Voluntary Standards in Global Trade, Environment and Social Governance (Ashgate, Aldershot 2004) 9 ; also for a wider understanding of the notion Walter, supra fn 3, 23 et seq. Consumers for instance orientate themselves voluntarily towards proclaimed standards which thereby reach a certain indirect steering effect. Sanctions in a formal way are based on ‘hard law’ and enforced by state authorities. Similar also Fabio Tronchetti, Soft Law, in : Christian Brünner and Alexander Soucek (eds.), Outer Space in Society, Politics and Law (Springer, Vienna-New York 2011) 624 et seq.

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It has to be noticed that in certain cases, ‘soft law’ may have a kind of an indirect normative power. It can be supportive for the elaboration, consolidation and development of ‘hard law’. It may provide evidence of existing law and be formative of the opinio juris or State practice which generates new customary law. Furthermore, it can become indirectly binding by reference in ‘hard law’ regulations. The question arises for which reasons ‘soft law’ instruments are chosen. The development and adoption of ‘hard law’ requires a high degree of formalism ; furthermore ‘hard law’ cannot easily be changed. ‘Soft law’ regulations, in contrast, are able to be more easily amended or replaced. ‘Soft law’ is sometimes used to sample regulations before they are transferred into a binding instrument. Last but not least, the parties concerned often hesitate to be bound by mandatory rules but are more willing to comply with ‘soft law’ regulations. All these arguments substantiate that ‘soft law’ instruments are valuable and necessary in several ways. The authors of this article therefore refrain from just looking at the enforceability of regulations but rather stress that, in the end, what matters is compliance and effectiveness in practice. This is, as may be added, also true for ‘hard law’ in cases of overregulation and lack of state control. In the field of environmental law, for instance, there is sometimes an enforcement deficit of ‘hard law’ regulations ; in this case the steering effect depends upon compliance.

II. The diversity of ‘soft law’ ‘Soft law’ is not confined to the area of international law, it can be found on all levels of law, such as the European Union level and the national level. Furthermore ‘soft law’ regulations can be found in societal entities like associations and companies. Therefore, there exists a variety of norms issued by different authorities, which are not empowered or willing to enact ‘hard law’ regulations, yet which have major factual importance. In the following, this variety shall be illustrated by several examples. The various technical standards serve as a first example. These standards have become inevitable in a free market and exist on the national level such as the Austrian Standards defined by the Austrian Standards Institute (ASI),10 the Ger10 The institute edits the so-called ‘Ö-Normen” ; available at http ://www.austrian-standards.at (10/10/2011).

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man Standards edited by the German Institute for Standardization (DIN)11 or — on an international level — the Standards of the International Organization for Standardization (ISO).12 In the field of business and commerce, the international rules of the International Accounting Standards (IAS) and the International Financial Reporting Standards (IFRS) have to be mentioned.13 The latter count as ‘soft law’ regulations as long as they have not lost their ‘soft law’ character trough national provisions.14 Similar to technical standards, product certificates of private institutions may develop steering effects through market mechanisms and therefore might even act as valuable substitutes for international agreements. This non-state governance can be an alternative in cases where traditional forms of multilateral governance could not be achieved. An example is the preservation and protection of forests, where frequent attempts to forge a binding international convention have repeatedly failed due to persistent objections by several relevant States. To fill this governance gap, voluntary forest certification and eco-labelling schemes, like the Forest Stewardship Council (FSC)15 or the Programme for the Endorsement of Forest Certification Schemes (PEFC),16 sponsored by NGOs, forest companies and landowner associations, have emerged. Also corporate governance codes are of importance. These are targeted to influence the behaviour of companies and its employees and are enacted by either private or public institutions. Examples are the UN Global Compact17 which was initiated by Kofi Annan, the former Secretary-General of the United Nations, as well as the OECD Principles on Corporate Governance18 or even the Austrian Code of Corporate Governance.19 It must however be noted that corporate governance codes are only included in the definition of ‘soft law’ as far as they do not have binding legal force and do not contain any legal obligations. Following

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http ://www.din.de (10/10/2011). http ://www.iso.org (10/10/2011). For further information about IAS and IFRS see http ://www.ifrs.org (10/10/2011). Otto Altenburger, Soft Law am Beispiel von (internationalen) Rechnungslegungsregeln, in : Michael Lang, Josef Schuch and Claus Staringer (eds.), Soft Law in der Praxis (Linde, Wien 2005) 51. http ://www.fsc.org (10/10/2011). http ://www.pefc.org (10/10/2011). http ://www.unglobalcompact.org (10/10/2011). http ://www.oecd.org/dataoecd/32/18/31557724.pdf (10/10/2011). http ://www.corporate-governance.at (10/10/2011).

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Heinz Krejci20 they cannot be regarded as ‘soft law’ if they are restricted to the description of already existing laws, if the addressees openly express their willingness to be bound to the respective regulations resulting in certain liabilities or if the regulation describes already accepted standards and therefore aims at the interpretation of a treaty or its amendments. No less important are so-called codes of conduct. Examples are the European Code of Good Administrative Behavior21 as well as the Code of Behavior for Employees of the Austrian Federal Ministry of Defence and Sports (BMLVS).22 Furthermore we would like to mention various ‘soft law’ regulations in respect to anti-corruption, such as the Code of Conduct for Public Officials by the Council of Europe23 or the Recommendations on Combating Bribery in International Business Transactions by the Council of the OECD24. Another type of ‘soft law’ regulations are ethical standards for different professions and spheres of life. Examples are the Code of Ethics of the Austrian Press25, the Medical Ethics26 or the Code of Conduct of the International Union of Medical Advisers Association.27, 28 Some of these codes have become indirectly binding via the disciplinary law of the respective professional association.29 Even ethical standards for missionary activities have been elaborated. Recently a coalition of the Vatican and major Protestant and Evangelical churches announced new ethical standards for Christian missionary activities in Geneva. The document ‘Christian Witness in a Multi-Religious World : Recommendations for Conduct’30 is the latest in a series of missionary codes of conduct pro20 Cf. Heinz Krejci, Sind Corporate Governance Codes Soft Law ? in : Michael Lang, Josef Schuch and Claus Staringer (eds.), Soft Law in der Praxis (Linde, Wien 2005) 67 et seq. 21 http ://ec.europa.eu/civil_society/code/index_en.htm (10/10/2011). 22 http ://www.bmlv.gv.at/info_werbematerial/verhaltenskodex/pdf/folder_verhaltenskodex.pdf (10/10/2011). 23 https ://wcd.coe.int/wcd/ViewDoc.jsp ?id=353945&Site=CM (10/10/2011). 24 http ://www.oecd.org/dataoecd/11/40/44176910.pdf (10/10/2011). 25 http ://www.presserat.at ; For an English version see http ://ethicnet.uta.fi/austria/code_of_eth ics_for_the_austrian_press (10/10/2011). 26 For further information see http ://www.wma.net/en/30publications/30ethicsmanual ; https :// apps.who.int/medicnedocs/documents/s17220de/s17220de.pdf (10/10/2011). 27 http ://www.bvpoe.at/UIADM/UIADM.htm (10/10/2011). 28 See the online library ‘Globeethics’ which contains over 700.000 documents dealing with the topic ‘ethics’. https ://www.globehtics.net (10/10/2011). 29 See e.g. the disciplinary regulations in the Austrian Medical Profession Act. 30 http ://www.worldevangelicals.org/pdf/1106Christian_Witness_in_a_Multi-Religious_ World.pdf (10/10/2011).

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duced by interfaith groups and human rights organisations to try to minimise conflicts.31 We would also like to mention codes of good practice for politics. Examples are respective documents of the European Commission for Democracy through Law (Venice Commission32), such as the Code of Good Practice in Electoral Matters (190/2002)33 or the Code of Good Practice in the Field of Political Parties (414/2006).34 The self-commitments of enterprises are another type of ‘soft law’ regulations. For instance, the Code of Conduct on the legal logging of Wood35 agreed on by the paper-industry serves as a good example. In the area of European Union law, ‘soft law’ has also developed into a regulatory instrument of significant as well as practical importance. It can be encountered in the context of primary and secondary law and is sometimes mentioned as a tertiary source of regulations.36 The Treaty on the Functioning of the European Union makes reference to two instruments, namely ‘recommendations’ and ‘opinions’ which might not in general but from case to case be qualified as ‘soft law’.37 A special procedure, namely the ‘open method of coordination’ is provided for the creation and implementation of non-binding regulations.38 ‘Soft law’, in this context, sometimes occurs as a temporary phenomenon before it either is dropped or replaced by ‘hard law’. Examples are the ‘Luxembourg Compromise’39 dealing with the voting procedure in the Council which was 31 See also Matthew K. Richards, Are L. Svendsen and Rainer O. Bless, Voluntary Codes of Conduct for Religious Persuasion : Effective Tools for Balancing Human Rights and Resolving Conflicts ? 6 Religion and Human Rights (2011) 151. 32 http ://www.venice.coe.int (10/10/2011). 33 http ://www.venice.coe.int/docs/2002/CDL-AD%282002%29023-e.pdf (10/10/2011). 34 http ://www.venice.coe.int/docs/2009/CDL-AD(2009)002-e.pdf (10/10/2011). 35 http ://illegal-logging.info/uploads/CEPI_Code_of_Conduct.pdf (10/10/2011). 36 Linda Senden, Soft Law in the European Community Law (Hart, Oxford 2004) 55. Sometimes the notion ‘tertiary law’ is also used to describe laws that are issued by the Commission respectively by the Council on the basis of secondary law (see Art 290, 291 (2) Treaty on the Functioning of the European Union). See e.g. Hans-Wolfgang Arndt, Kristian Fischer and Thomas Fetzer, Europarecht (10th ed., C. F. Müller, Heidelberg 2010) marginal note 154. 37 See Art 288 Treaty on the Functioning of the European Union. 38 See Art 148 Treaty on the Functioning of the European Union for the field of employment policy. In several other fields of policy it is being applied in a similar way. For further reading see Knauff, supra fn 5, 305 et seq. 39 ‘The Luxembourg Compromise’ of January 1966 applies where qualified majority voting is used in the Council of the European Union. A loose arrangement which was never recognised

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dropped after some time, or the Charter of Fundamental Rights of the European Union, which was already proclaimed in 2000 but reached its legal binding effect together with the entry into force of the Treaty of Lisbon in 2009. On the level of European Union secondary law, ‘soft law’, such as ‘recommendations’ or ‘communications’,40 is mostly enacted by the Commission and serves the purpose to steer the action of the addressees and make the acting predictable. This becomes especially important in the field of competition and subsidy law.41 This section aimed to provide a short overview of the variety of fields in which ‘soft law’ exists in order to steer behaviour and conduct. The examples demonstrate that ‘soft law’ is not a more or less inefficient alternative to ‘hard law’ but that is has developed towards an inevitable instrument to bring about desired social conditions and to avoid undesired ones.

III. Conditions to ensure the effectiveness of ‘soft law’ regulations In order to ensure compliance with ‘soft law’, several conditions have to be met. The following conditions are instrumental for the effectiveness of ‘soft law’ regulations : by the European Commission or the European Court of Justice, the ‘Luxembourg Compromise’ effectively extended the life of the national veto beyond the transitional period allowed in the Treaties of Rome. Its genesis was the impasse known as the ‘empty chair crisis’ when France boycotted Council meetings […] Under the Luxembourg Compromise, any decision which affected a “very important national interest” would be deferred until a unanimously acceptable solution could be found, regardless of whether the Treaty prescribed majority voting.’ http :// www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/luxembourgcom promise.htm (10/10/2011). 40 See for instance the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Public-Private Partnerships and Community Law on Public Procurement and Concessions (COM (2005) 569 final). http ://eur-lex.europa.eu/LexUriServ/LexUriServ.do ?uri=COM :20 05 :0569 :FIN :EN :PDF (10/10/2011). Commission interpretative Communication on the application of Community law on Public Procurement and Concessions to Institutionalised Public-Private Partnerships (IPPP) (C (2007) 6661). http ://ec.europa.eu/internal_market/ publicprocurement/docs/ppp/comm_2007_6661_en.pdf (10/10/2011). 41 See D.K. Walzel, Bindungswirkungen ungeregelter Vollzugsinstrumente der EU-Kommission (Heymanns, Köln 2007) 249 et seq ; Mona Aldestam, Soft Law in the State Aid Policy Area, in : Ulrika Mörth (ed.), Soft Law in Governance and Regulation (Edward Elgar, Cheltenham 2004) 11 ; Ernst-Joachim Mestmäcker and Heike Schweitzer, Europäisches Wettbewerbsrecht (2nd ed., Beck, München 2004) § 44 marginal note 19.

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First of all, transparency is crucial. ‘Soft law’ regulations must be recognisable as such and thus manifest their difference from other regulations. They must not disguise their ‘soft law’ character and need to highlight the voluntary element. Publicity stands out as another requirement. The addressees must be given the opportunity to receive information on the content of the ‘soft law’ regulations so that they can adjust their behaviour accordingly. Two further essential conditions appear to be clarity and precision. The phrasing needs to be clear, comprehensible and unambiguous so that the addressees can precisely understand the content and the intended objective of the respective regulation. ‘Soft law’ regulations do not dispose of strict enforcement mechanisms by which the provision can be specified. Therefore, clarity and precision are indispensable. Another requirement is reliability. The addressees have to be able to rely on the fact that if they act in conformity with the regulations they will not face the danger of negative (societal) consequences. ‘Soft law’ regulations should therefore act as reliable and trustable benchmark for behaviour. Furthermore, the involvement of the potential addressees in the development and formulation as well as the awareness for the necessity of the regulation are conditions to ensure the effectiveness of ‘soft law’ regulations. The more addressees are involved and the more they realise that the regulation is necessary the more they will be willing to comply with the regulation. Last but not least, the demand for the establishment of a compliance-system arises. A compliance-system could provide for a specific unit with the task to monitor and evaluate the success of the ‘soft law’ regulation without making use of sanctioning mechanisms.42 Finally it has to be mentioned that ‘soft law’ regulations should not aim at a behaviour, which infringes ‘hard law’. Respect for the rule of law must be upheld.

IV. The Regulatory Impact Assessment (RIA) In the previous section, conditions for the effectiveness of ‘soft law’ regulations have been discussed. In the following, we would like to turn to an ‘overarching’ condition for effectiveness, the assessment of compliance. The respective tool could be Regulatory Impact Assessment (RIA). 42 Cf. Paul Prebil and Alexandra Zani, Compliance in der Praxis, Raiffeisenblatt 7–8 (2011) 9.

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Originally, RIA was developed in the US43 in order to evaluate the impact of ‘hard law’ regulations. Meanwhile it has acquired importance also throughout Europe.44 It appears suitable to use RIA also to assess the effectiveness of ‘soft law’ regulations. Carl Böhret and Götz Konzendorf45 describe RIA as ‘[…] a procedure for recognising and carrying out a comparative evaluation of the impact of regulations that are either planned, or that have already entered into force. It is designed to promote expert-aided development of alternative regulations and a comparative assessment to their impact, examine drafted legislation in accordance with defined criteria such as effectiveness or transparency and allow an ongoing or a restricted point-in-time evaluation of the tangible impacts of regulations that have entered into force […]’.

RIA typically distinguishes between three modules, which can either be applied as a continuous procedure or separately. The three units are : prospective RIA, concurrent RIA, and retrospective RIA. In the case of ‘soft law’, special emphasis should be put on the ex post examination focusing on the achievement of objectives, overall acceptance and the identification of possible demands for amendment. The primary aim would be to assess compliance with ‘soft law’ regulations and hence to evaluate its effectiveness. Crucial questions for retrospective RIA could be :46 – Have the objectives behind the current regulation been achieved ? – Have there been any unintended consequences and were they significant ? – To what extent have related burdens and benefits emerged ? 43 The ‘Inflation Impact Assessment’ required by the Carter Administration from 1978 is generally considered to be the first RIA. For further information about the history of the RIA and the RIA in the OECD States generally see OECD, Regulatory Impact Analysis : Best practice in OECD countries (1997). http ://www.oecd.org/dataoecd/21/59/35258828.pdf (10/10/2011). 44 Concerning the situation in Austria as well as in its neighboring countries see Heinz Schäffer (ed.), Evaluierung der Gesetze/Gesetzesfolgenabschätzung I & II, (Manz, Wien 2005 & 2007) ; as for an analysis of effectiveness on the regional level see Christian Brünner, Zukunftsorientierte Landesverfassung, in : Harald Eitner (ed.), Res Publica. FS Schachner (Leykam, Graz 2002) 32 et seq. 45 Cf. Carl Böhret and Götz Konzendorf, Guidelines on Regulatory Impact Assessment (Forschungsinstitut f. öffentl. Verw. bei d. Hochsch. f. Verw.-Wiss., Speyer 2005) 5. 46 Ibid. 18.

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– Has the regulation proven to be practical and straightforward ? – Is there any need for amendment or revocation ?

Criteria such as the achievement of objectives, the acceptance and the practicability of the regulation could demonstrate its effectiveness and reveal possible starting points for improvement. Such an evaluation would be able to strengthen the awareness of a regulation as well as its power to steer behaviour. In addition, such an assessment could identify consequences and unintended side effects of the regulation and analyse how to further promote compliance. RIA might therefore represent a possibility to strengthen the addressees’ confidence in ‘soft law’ regulations as well as to reveal possible deficits. The primary aim of RIA in the case of ‘soft law’ regulations could be to assess compliance and hence to evaluate their effectiveness. However, the question remains who could undertake such an assessment and whether the addressees of the ‘soft law’ regulation would agree on such an assessment. As a matter of principle, RIA could be carried out by different entities, such as consulting firms or institutions especially established for this purpose.47

47 Concerning the involvement of consulting firms at the evaluation process see Daniela Jetzinger, Ex-post-Evaluierung von Rechtsnormen und die Mitwirkung von Consulting-Unternehmen im Prozess der retrospektiven Gesetzesfolgenabschätzung, in : Heinz Schäffer (ed.), Evaluierung der Gesetze/Gesetzesfolgenabschätzung II (Manz, Wien 2007) 21 et seq.

Marco Ferrazzani*

Soft Law in Space Activities — An Updated View I. Introduction In international law, which governs large parts of the area of space activities, the relevance and validity of custom (or customary international law), as evidence of a general practice accepted as law, have been acknowledged for a long time. Custom remains an important source of applicable international law1 and continues to produce new principles and norms of the international corpus iuris.2 ‘Practice’ in the context of international relations and cooperation can generally be understood as including various legally non-binding and formal or informal actions by States or international organisations, different types of institutions, processes or instruments seeking to regulate cross-border or international activities. In addition to contributing to the formation and development of custom, such practices may also play a role in the interpretative development of international law, e.g. as elements of ‘subsequent practice’ recognised in Art. 31 (3) (b) of the Vienna Convention on the Law of Treaties.3 In the evolution of laws applicable to space activities, custom and therefore also practice have been essential. In fact, beside the United Nations treaties and principles on outer space and a diverse blend of binding treaty provisions,4 * Chief Legal Counsel, European Space Agency (ESA). The views expressed in this article do not necessarily reflect the official position of the ESA. 1 According to Art. 38 (1) of the Statute of the ICJ, international custom is recognised as a source of international law. In addition, a number of national constitutions recognise the domestic validity of customary international law, e.g. the Italian Constitution in Art. 10 (available at : , accessed in October 2011). 2 According to Art. 38 (1) of the Statute of the ICJ, international custom is recognised as a source of international law. 3 Art. 31(3) lit b of the Vienna Convention on the Law of Treaties provides that ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ is relevant as part of the ‘general rule of interpretation’. 4 Limited in this context to agreements covered by the Vienna Convention on the Law of Treaties (concluded 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.

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much of the law governing space activities consists of several well-established rules and principles of customary international law which significantly help actors of the space community to qualify and address a wide range of issues not covered by treaty law. Due to the reduced pace of codification, the law-making process in the domain of space activities continues to be limited.5 As a consequence, a tendency to produce relevant international instruments containing non-binding principles, norms, standards or other statements of expected behaviour in the form of recommendations, charters, terms of reference, guidelines, codes of conduct, etc. has appeared. They are created in an innovative and informal manner on the initiative of those actors that feel a need for some guidance in their relations.6 Therefore, space activities also tend to be governed by a whole range of formally non-binding practices and instruments. This phenomenon has been qualified as ‘soft law’, a term that can be defined as ‘all those social rules generated by State[s] or other subjects of international law which are not legally binding but which are nevertheless of special legal relevance.’7 It covers an extremely wide range of international instruments.8 However, several common features can be identified : It expresses common expectations of the conduct of international relations ; it is created by subjects of international law ; soft law rules have not gone through a formal law-making process ; and fourthly, although it has legally ‘non-committal’ quality, it can pro-

5 Gennady M Danilenko, Outer Space and the Multilateral Treaty-Making Process 4, Berkeley Technology Law Journal (1989), available at http ://www.law.berkeley.edu/journals/btlj/artic les/vol4/Danilenko.pdf (28/10/2011). 6 ‘Soft law requires less domestic process than do treaties, is more flexible than treaty law, is more easily amended, and can be concluded and implemented quickly.’ Nicolas D. Welly, Enlightened State-Interest — A Legal Framework for Protecting the ‘Common Interest of All Mankind’ from Hardinian Tragedy, 36 Journal of Space Law (2010) 273, 306. 7 Daniel Thürer, Soft Law, in : Max Planck Encyclopedia of Public International Law, last updated in March 2009, www.mpepil.com (23/10/2011). 8 Gerhard Hafner, The Effect of Soft Law on International Economic Relations, in : Stefan Griller (ed.), International Economic Governance and Non-Economic Concerns : New Challenges for the International legal Order (Springer-Verlag, Wien et al. 2003) 150 : ‘In the category of soft law instruments among others belong resolutions of international organizations, resolutions or declarations of international conferences, declarations of summit meetings of high political personalities, conclusions in the framework of the OSCE, conclusions of the presidency of the EU, results of meetings of bilateral nature, unilateral statements or recommendations in the framework of the WTO Dispute Settlement procedure.’

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duce certain legal effects.9 Because of its origin, nature and above all its effects, soft law is being recognised as a subject of increasing interest as well as increasing influence in the frame of space activities. Thus, it must be noted that the new instruments governing space activities are largely based on the experience of practice, yet not the one constituting already existing rules of customary law, but practice significantly relevant in space activities that has not yet assumed the nature of custom or been formally codified, e.g. in a treaty. This method may be regarded as favourable to the development of new concepts and behaviours that are the first prerequisites for the development of new rules in international law. Also, inherent in the effectiveness of law are its interpretation and application, which essentially depend on practice and even on non-legally binding principles of law. From this perspective (and taking into account the relativity which such a method implies in present times), it is worth enquiring as to the present status of law making in outer space activities under new schemes, which also enables us to take a general look at international practice in a new light. Soft law agreements and instruments are often concluded by representatives of different national or international agencies, institutions and other entities. In most cases, the respective governments do not make a formal decision to accede to such an agreement or instrument. Nevertheless, the fact that those representatives want to avoid the binding effect of such acts cannot serve as an argument to deny the precedent and practice established thereby and perceived in good faith by the other parties. The agreements, especially those establishing collaboration on scientific projects or for the purpose of general exchange of information, generate more and more practice and through this gain relevant political and economic importance. The legal relevance follows in perfect harmony. However, soft law instruments are not granted an executing function or a sanctioning system because they lack binding force and therefore are not justiciable. A breach of soft law norms (described mainly as social or political norms10) cannot give rise to legal consequences.11 Yet, by creating of soft law instruments, 9 See, for example, Thürer, supra fn 7 ; Hafner, supra fn 8, 150 ; Dinah L. Shelton, Soft Law, Handbook of International Law (Routledge Press 2008), GWU Legal Studies Research Paper No. 322 ; GWU Law School Public Law Research Paper No. 322, available at SSRN, http :// ssrn.com/abstract=1003387 (23/10/2011). 10 Shelton, ibid, 6. 11 See Fabio Tronchetti, Soft Law, in : Christian Brünner and Alexander Soucek (eds.), Outer Space in Society, Policy and Law (Springer-Verlag, Wien 2011).

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the world space community has already demonstrated that the traditional ‘closed loop’ legal system is not sufficient. In fact, the relations have been shaped to be neither legalistic nor contentious, the relevant actors not being interested in addressing cases of infringement, but rather in preserving the spirit of cooperative coexistence between them. Even the space treaties concluded in the last 40 years under the regime of public international law, never saw the climax of conflict, despite the detailed provisions concerning dispute settlement some of them contain. This is also true with regard to soft law instruments, where the scientific and space community are far more sensitive to and compliant with quasi ethical values which they contain : ‘A failure to comply with the provisions of soft law can, just as is the case for treaties, lead to reputational harm, reciprocal noncompliance, and retaliation. The incentive may be weaker for soft law, but the basic mechanism encouraging compliance is the same.’12 Thus, the most effective sanction for not having followed the common intent and behaviour agreed by the parties is to be eventually excluded from being considered as a reliable partner. This practice cannot be recognised as perfectly legally authoritative, but that is where the common ground of soft law and hard law lies. In order to shed some light on the recent developments of the soft law concept and contribute to its refinement, this article makes an attempt at elaborating some consolidated practices relating to international space activities. It is necessary to highlight that the practice resulting in soft law arrangements has had a beneficial impact on the conduct of numerous new space activities, it has helped to facilitate the relations between the space actors at the international level and may ultimately help to give birth to some new norms governing outer space activities.

II. International environment for space activities 1. The institutional element In the history of international relations, the environment for space activities, in comparison to other ‘more classical’ areas, has been of an extraordinary nature. Due to the pressure from space-faring nations and quick progress in technology 12 Andrew T. Guzman, How International Law Works : A Rational Choice Theory (Oxford University Press, 2008) 40, 144.

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development, its legal component was created during a very concentrated period of time when the fundamental principles were formulated and imminently incorporated into a treaty.13 Regarding the institutional component, the United Nations Committee on the Peaceful Uses of the Outer Space (UNCOPUOS) has played a major role in the process of codification of space law. However, it is possible to identify two more elements supporting the institutional environment for outer space activities. First, the multilateral treaties creating specialised institutions for the realisation of various space activities14 and, second, instruments establishing institutions with a mandate not related to space activities but which, through their activities, have significantly contributed to the application and interpretation of the law of outer space.15 Whith accession to these instruments, States confer legal personality and capacity to the established institutions to act autonomously and agree to observe rights and obligations that the treaties provided for. Such a scheme has allowed the new entities, well separated from their member States, to become active sub13 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies, 610 UNTS 205 ; 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 672 UNTS 119 ; 1972 Convention on International Liability for Damage Caused by Space Objects, UNTS 187 ; 1975 Convention on Registration of Objects Launched into Outer Space, 1023 UNTS 15 ; 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1363 UNTS 3. 14 Among treaties creating International Organisations involved in space activities belong e.g. 1971 Agreement on the Establishment of the INTERSPUTNIK International System and Organization of Space Communications (entry into force : 12 July 1972) ; 1975 Convention for the Establishment of a European Space Agency (ESA) with annexes (entry into force : 30 October 1980) ; 1976 Agreement of the Arab Corporation for Space Communications (ARABSAT) (entry into force : 16 July 1976) ; other international organisations founded in order to provide satellite services (INMARSAT, EUTELSAT, EUMETSAT and INTELSAT) have been eventually privatised ; INTERCOSMOS (Agreement on Cooperation in the Exploration and Use of Outer Space for Peaceful Purposes) is no longer active. 15 The category of treaties creating institutions relevant to the development of the law of outer space contains the 1982 Convention on the Law of the Sea (entry into force : 16 November 1994) ; 1992 International Telecommunication Constitution and Convention ; 1992 Final Acts of the World Administrative Radio Conference for Dealing with Frequency Allocations in Certain Parts of the Spectrum (WARC-92) ; among other Organisations : International Civil Aviation Organization (ICAO), World Meteorological Organization (WMO). For more reference, see, Karl-Heinz Böckstiegel, Marietta Benkö and Stephan Hobe, Space Law : Basic Legal Documents (Eleven International Publishing, The Hague 2002).

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jects of international law. Consequently, if they are mandated to conclude binding agreements with other subjects of international law, they may become creators of international law as well. In essence, the institutional framework for space activities under international law contains in itself vital and sufficient elements to foster the law-making processes. However, with regard to the subsequent and recent developments together with progress in outer space activities, it can be noted that only very little has been reflected in new treaty law. 2. The element of international cooperation Another element of great importance is the increased exent of international cooperation in space activities. The unceasing progress in technology, the increasing globalisation of human activities, the changing geopolitical situation together with the internal funding constraints of space-faring nations and other nations eager to participate, have shaped the environment for space activities where international cooperation has become essential.16 Although no single State undertakes and carries out a significant space programme without some involvement of others any longer, the degree of international cooperation, bilateral or multilateral, still remains a matter of political evaluation and circumstances.17 Naturally, States and other entities forming the institutional framework for space activities are looking for the best and most viable options to cooperate. Finally, the combination of a lack of codification and the need to find a flexible form of international cooperation gave birth to soft law in space activities. In other words, soft law instruments enable to recognise the existence of relevant 16 See, for example, Kenneth S. Pedersen, Thoughts on International Space Cooperation and Interests in the Post-Cold War World 8, Space Policy (1992) 205 ; J.F. Delpech, J.M. Longsdon and B. Meslin, A new cooperative strategy for space in the twenty-first century, 8 Space Policy (1993) 265 ; Simone Courteix, Is it necessary to establish a World Space Organization ? Proceedings 36th Colloquium of the IISL (1993) 20 ; José de Monserrat Filho, About the legal definition of international cooperation in the exploration and use of outer space, Proceedings 36th Colloquium of the IISL (1992) 355. 17 The documents, statements and articles on the definition, content and political evolution of international cooperation in space activities are abundant. The most recent international act is the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of All States, Taking into Particular Account the Needs of Developing Countries, GA Res 51/122 of 13 December 1996, UN Doc. A/RES/51/122.

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practice in space activities which is capable but not yet ripe to create binding rules. At the same time, soft law agreements foster international cooperation by offering simpler, faster and more flexible terms.

III. Cases of soft law Due to the vast and continuous growth of space activities involving elements of international cooperation, various institutional forms establishing such relations have flourished. The following passage aims at illustrating the range of international cooperation in space activities based on soft law instruments by pointing out some relevant cases. The scope of competence and practice of the respective institutions has remained within the traditional domain of peaceful uses of outer space, as it relates mostly to astronomy, space exploration, telecommunications, use of the frequency spectrum, remote sensing and environmental research, meteorology and microgravity. Also, a tendency to formulate the overall institutional mandate in a more general manner with an imminent impact on political objectives can be observed.18 1. SFCG : Space Frequency Coordination Group The Space Frequency Coordination Group (SFCG) was created in 1980 on the initiative of the European Space Agenca (ESA) in order to coordinate official government positions on frequency matters to be discussed at the International Telecommunication Union (ITU) and its respective conferences.19 The terms of reference for the group have been accepted by all participating agencies. 20 18 The intention declared in 1992 to create a new regional space cooperation institution in Asia (later on realised as APSCO, see infra note 33) clearly stipulated that its purposes would be exclusively peaceful. This general but ultimate idea of space law cooperation was later incorporated into the Convention of APSCO (available at : http ://www.apsco.int/UploadFile/200 9924/F1TKF8A2009924.pdf (27/10/2011)) and serves as an excellent example of creation of new space institutions while fulfilling the international obligations contained in space law. 19 The major conference of interest was the World Administrative Radio Conference (WARC, technical conference of ITU) held in 1979, 1983, 1984, 1987, 1988 and 1992. 20 As for today, the SFCG has 25 Members and 10 Observers among which is the Radiocommunication Bureau of ITU. Almost all members are space agencies or government space offices which have an interest in using space frequencies.

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As stated in the objectives of SFCG, in a ‘less formal and more flexible environment as compared to the official organs of the ITU’, representatives of the SFCG members define common positions for frequency allocations. The group conducts its activities through annual meetings chaired on the basis of a yearly rotation and with the help of a permanent secretariat provided by the ESA. The outcomes of the SFCG work are classified as decisions, resolutions, recommendations, reports, action items or liaison statements and cover the objectives as well as the functioning of the Group.21 The work of SFCG and the resolutions brought forth are coherently followed by all members, and the SFCG is thus considered to have a positive effect on smooth and effective international coordination towards frequency allocation and use. 2. IACG : Inter-Agency Consultative Group for Space Science The Inter-Agency Consultative Group (IACG) for Space Science was established in 1981 by ESA, NASA, INTERCOSMOS of the USSR (later replaced by the Russian Aviation and Space Agency — RASA) and ISAS of Japan.22 IACG is an international forum where member agencies report about space science activities and elaborate proposals for possible future collaborations at different levels. Its purpose is to maximise opportunities for the coordination of multilateral space science missions that are of common interest. Since its founding, IACG has managed to coordinate and plan several space missions to study outer space. It is regarded as a role-model worth following also for other disciplines. 3. CEOS : Committee on Earth Observation Satellites The Committee on Earth Observation Satellites (CEOS) was created in 198423 following a recommendation expressed at the G–7 Economic Summit. The 21 A list of the relevant acts is contained in the 2011 SFCG Handbook, https ://www.sfcgonline. org/Public%20Documents/SFCG_Handbook_2011.pdf (22/10/2011). 22 See IACG Terms of Reference of 2000 (available at : http ://www.iacg.org/iacg/Terms_of_Refer ence_2000.html, (21/10/2011). 23 CEOS Terms of Reference were first adopted on 25 September 1984 in Washington D.C., USA and amended by consensus of the members several times — last amendment was accepted on 15th November 2005 in London, UK (available at : http ://www.ceos.org/images/ce osgovdocs/CEOS_Terms_of_Reference.pdf (22/10/2011).

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Committee24 has become a reference forum for the exchange of information and development of recommendations on current and future remote sensing programmes. The CEOS, through its bodies and joint cooperation with other Earth observation related initiatives, has approved principles25 widely recognised within the space community and has created several Working Groups on specific topics. The accepted standard procedures and practices for access to Earth observation data are progressively followed in the large majority of the Earth observing missions, even if the terms of reference indicate that ‘participation in the activities of CEOS will not be construed as being binding upon space-borne Earth Observation system operators’.26 Upon its creation, the scope of CEOS activities was enlarged to include the International Polar Orbiting Meteorological Satellites Group (IPOMS). IPOMS, whose mandate was thus terminated, served as an exchange forum of governments and space agencies to foster new initiatives for polar orbiting meteorological satellites to be built and operated by others besides the US Government. 4. ESCAP : UN Economic and Social Commission for Asia and the Pacific Region In order to enhance regional coordination and effective promotion of space technology applications for sustainable development in the Asia-Pacific region, the regional members of the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) established the Intergovernmental Consultative Committee on the Regional Remote Sensing Programme.27 In 1995, this Committee was reconstituted as the Intergovernmental Consultative Committee on Regional Space Applications programme for sustainable Development mandated to provide ESCAP with policy and technical advice in the respective area and to 24 CEOS has currently 29 Members and 21 Associates, see : http ://www.ceos.org/index.php ?op tion=com_content&view=category&layout=blog&id=30&Itemid=76 (22/10/2011). 25 See CEOS Data Exchange Principles, CEOS consolidated report (September 1996) 63 ; GEOSS Data Sharing Principles, Implementation Guidelines for the GEOSS Data Sharing Principles (Document 7, Rev2, Geo-VI) 2009. 26 See the CEOS Terms of Reference, supra fn 23, preambular part. 27 Initially, the government of China, Indonesia, Malaysia, Nepal, the Philippines, Singapore, Sri Lanka and Thailand adopted the Terms of Reference of the Intergovernmental Consultative Committee on the Regional Remote Sensing Programme in Jakarta on 26 May 1984. For further reference as to its activities, see Jeff Kingwell, Report on ESCAP Space Technology Applications Programme 11 Space Policy (1995) 143.

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help implementing the Regional Space Application Programme for Sustainable Development in Asia and the Pacific (RESAP) stipulated in the Beijing Declaration.28 5. CGMS : Coordination Group on Geosynchronous Meteorological Satellites The Coordination Group on Geosynchronous Meteorological Satellites was established by the governments and international organisations interested in geostationary satellites for meteorological applications.29 For almost 40 years, the group has served as a focal point and has continued to reflect the evolution, setting and updating of international standards for meteorological data, which are uniform and consistently used by virtually all governments. 6. IADC : Inter-Agency Space Debris Coordination Committee The terms of reference of the Inter-Agency Space Debris Coordination Committee were approved in October 1993 and have been updated several times since then (last amendment on 4 October 2006) by countries or national and international space organisations that carry out space activities through either manufacturing, launching and operating spacecraft or manufacturing and launching rockets.30 The purpose of this unique forum is to provide an opportunity for the exchange of information, to support cooperation on space debris issues and to identify space debris mitigation actions. Moreover, the work of IADC has had an important impact on the drafting of the United Nations Space Debris Mitigation Guidelines.

28 The Beijing Declaration adopted at the first Ministerial Conference on Space Applications for development in Asia and the Pacific (23–24 September 1994) is reproduced in Kingwell, supra 147. 29 See the CGMS Charter, part ‘Objectives’, http ://www.cgms-info.org/docs/publications-andreference-documents/2011/05/24/cgms-charter.pdf (22/10/2011). 30 The present members of IADC are : ASI (Italy), UK Space (UK), CNES (France), CNSA (China), CSA (Canada), DLR (Germany), ESA (Europe), ISRO (India), JAXA (Japan), NASA (USA), NSAU (Ukraine), ROSCOSMOS (Russian Federation). Each is represented in the Steering Committee and in the Working Groups.

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7. International Space Life Science Strategic Planning Working Group The International Space Life Science Strategic Planning Working Group was established in 199031 by space agencies implementing significant programmes in life science. Similarly to IACG, the group has served as an international forum for the planning of scientific experiments. Its participants consider it a success as working results of the group de facto guide the future activities of each member agency. 8. APC-MCSTA : Asia-Pacific Conference on Multilateral Cooperation in Space — APSCO : Asia-Pacific Space Cooperation Organisation The Asian region represents a successful and living example of developing countries entering into the space business and constitutes the future growth potential of space cooperation.32 The APC Workshop held in Beijing in 1992 adopted by consensus recommendations creating a Liaison Committee explicitly mandated to play an institutional role between the parties.33 Among the scope of its activities was the promotion of multilateral cooperation projects. The ultimate goal was to establish the proposed Asia-Pacific regional space cooperation organisation, also drawing from the experience of ESA. The Asia-Pacific Space Cooperation Organisation (APSCO) has formally started its work on 16th December 2008, together with the first formal meeting of the APSCO Council.34 Thus, the original group based on common interest and a soft law agreement has 31 See International Space Life Sciences Working Group Charter, http ://www.nasa.gov/explorat ion/about/islswgcharter.html (22/10/2011). 32 The suggestion that the ASEAN group could serve as a guide/example for organising space cooperation among developing countries has been made by Andrew J. Young, Law and Policy in the space stations’ era (Martinus Nijhoff, Dordrecht et al. 1989) 298 ; also reinforcing this view and reflecting the interest of developing countries : M. N. Shah, Role/Structure of a Multilateral Cooperative Organization in Space Technology Applications among Developing Countries in Proceedings (AP-MCSTA 1992) 62. 33 See Proceedings of the AP-MCTSA 92, recommendations of the Workshop (November/December, 1992, Beijing, China) ; for a legal analysis see He Qizhi, Organising space cooperation in the Asia-Pacific region, 9 Space Policy (1993) 209. 34 In accordance with the recommendations of the 7th Conference on AP-MCSTA, the Secretariat of AP-MCSTA with the mandate to promote the institutionalisation of the Conference was established in 2001. The draft of the future APSCO Convention was finalised in November 2003 and opened to signature in October 2005.

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been transformed into one comprehensive and organic initiative established by a binding agreement. 9. International Charter on Space and Major Disasters On 20 June 2000, the ‘Charter on cooperation to achieve the coordinated use of space facilities in the event of natural or technological disasters’ (the ‘International Charter on Space and Major Disasters’)35 was signed by its three founding members, ESA, CNES and the Canadian Space Agency (CSA). The purpose is to promote cooperation between space agencies and space system operators in the use of space facilities, and to contribute to the management of crises arising from natural or technological disasters. It brings together space agencies conducting significant remote sensing activities that may be readily deployed in the event of a crisis. A common mechanism has been set up to supply all available space data and other facilities to States or communities whose population, activities or property are at risk during such a period of crisis. Currently, the Charter has 20 members.36 However, other non-member entities may be invited to function as cooperating or associated bodies to contribute to the coordination mechanism, or else to receive data, associated information and services as beneficiaries. Apart from the above-mentioned institutions, other bodies such as the Working Group on Inter-Satellite Optical Communications Systems (ISOCS)37, the Earth Observation — International Coordination Working Group (EO-ICWG)38 35 See the full text of the Charter, Rev.3 (25/4/2000).2, at http ://www.disasterscharter.org/web/ charter/charter (26/10/2011). 36 The present subscribers are ESA, CNES, Spotimage, Taiwan Space National Organization (NSPO), Canadian Space Agency (CSA), Indian Space Research Organization (ISRO), National Oceanic and Atmospheric Administration (NOAA), Argentina’s Comision Nacional de Actividades Espaciales (CONAE), Japan Aerospace Exploration Agency (JAXA), United States Geological Survey (USGS), Digital Globe, GeoEye, DMC International Imaging (DMCii), Algerian Centre National des techniques Spatiales, Nigerian National Space Research and Development, Tübitak-BILTEN, UK Space Agency, China National Space Administration (CNSA), German Aerospace Center (DLR) and Korea Aerospace Research Institute (KARI). 37 The Working Group on ISOCS was created in 1990 by representatives of the Canadian Space Agency (CSA), ESA, NASA and NASDA for the purpose of exchanging information and identifying areas of mutual interest for cooperative experimental programmes. 38 The charter of the EO-ICWG was initially adopted in June 1988 by the Earth Observation representatives of the four cooperating Partners of the Space Station Intergovernmental Agree-

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or the Space Agency Forum (SAF)39 significantly contributed to the development of the soft law phenomenon in space activities. However, since there is currently no evidence as to their activity, they may serve merely as historical examples. The cases of soft law in space activities shown above relate to the field of scientific research and are implemented by the respective scientific communities. The fact that such institutions strongly share a common interest has forged a ‘professional solidarity’ as common language and a method of work. In this area, soft law may be considered as having evolved smoothly and in a more transparent way as it is based on the objectivity of scientific methods and on the need to stabilise professional relationships in accordance with the ethics of the group. 10. Soft law as a basis for new customary law Clearly, the various soft law instruments mentioned above cannot be regarded as subject to the law of treaties and its most fundamental principle of pacta sunt servanda. Yet, although a soft law instrument cannot be considered as a direct source of international law40 and its non-binding nature excludes the application of the pacta sunt servanda principle,41 it may produce some legal effects. For example, it may ‘codify pre-existing customary international law, helping to ment (IGA). The participating agencies approved common strategies, possible coordination and mutual exchanges of payload instruments. 39 The SAF Terms of Reference were approved at its 1st session in Rome in April 1993 with the view of creating a forum for exchange of views and support of international cooperation, following the positive experience of its precedent SAFISY held during the International Space Year 1992. Interestingly, it is explicitly noted under its procedural arrangements that conclusions of SAF Plenary are non-binding and that ‘participation in SAF activities shall not be construed as being binding upon governments […]’. Among the many documents examined, the presence of such an explicit statement only in the founding charters of CEOS and SAF gives occasion to consider how flexible the government representatives believe to be in this kind of international space fora. 40 Hartmut Hillgenberg, A Fresh Look at Soft Law, 10 European Journal of International Law (1999) 499. 41 Hillgenberg, supra fn 40, 507 : ‘Clearly, an agreement will not have any binding force if those involved have obviously proceeded from the assumption that their statements in no way represent a commitment, but are rather solely intended to express shared values, interests or desires and uncertain hopes. For this means that the parties exclude not only the pacta sunt servanda principle, but also the validity of any other supplementary rules, and that they assume that their freedom of action will in no way be restricted.’ Wolfgang Heusel, Weiches Völkerrecht : Eine vergleichende Untersuchung typischer Erscheinungsformen (Nomos Verl.Ges., Baden-Baden 1991) 280.

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provide greater precision through the written text, or precede and help form new customary international law’.42 This brings us to the question whether the customary international law principle of consuetudo est servanda43 might be applicable in the case of soft law instruments concerning outer space. As stated above, the law of space activities has benefited from this second ‘consuetudo’ principle and will naturally continue to draw strength from it, especially in the present era with its lacking production of codified space law while 42 Shelton, supra fn 9, 8 : ‘A non-binding normative instrument may do one or more of the following : 1) codify pre-existing customary international law, helping to provide greater precision through the written text ; 2) crystallise a trend towards a particular norm, overriding the views of dissenters and persuading those who have little or no relevant state practice to acquiesce in the development of the norm ; 3) precede and help form new customary international law ; 4) consolidate political opinion around the need for action on a new problem, fostering consensus that may lead to treaty negotiations or further soft law ; 5) fill in gaps in existing treaties in force ; 6) form part of the subsequent state practice that can be utilised to interpret treaties ; 7) provide guidance or a model for domestic laws, without international obligation, and 8) substitute for legal obligation when on-going relations make formal treaties too costly and time-consuming or otherwise unnecessary or politically unacceptable.’ 43 For the origin of the term, consult : Tullio Treves, Customary International Law, in : Max Planck Encyclopedia of Public International Law, last updated in November 2006, www.mpepil.com (31/10/2011) para 5 : ‘A central question is whether there is a rule that makes customary rules binding, and, if it exists, what its content is. The views of scholars on the subject may be grouped in two, depending on whether such rule is deemed to exist. The position that considers that such a rule exists, which may be indicated as positivist, includes one group — to which Soviet doctrine used to belong — which deems that custom is not essentially different from agreements : it is a kind of tacit, and sometimes presumptive, agreement. Consequently, the rule on which the binding character of customary rules depends is pacta sunt servanda, the very rule on which the binding character of agreements depends. As underlined by D Anzilotti, who, together with H Triepel, is one of the main proponents of this view, this rule cannot be demonstrated. It must be taken as “an absolute objective value”, as the “primary hypothesis”. Other positivist authors criticize the assimilation of customary rules with treaty rules as being a fiction. They state that customary rules are different from treaty rules and seek a rule of a level higher than customary rules as a basis for the binding character of these rules. This is the idea of the basic norm (Grundnorm) of H Kelsen, followed among others by G Morelli : a rule whose contents would be consuetudo est servanda, custom is to be complied with, or, in Kelsen’s words “States ought to behave as they have customarily behaved”. These authors, similarly to the supporters of pacta sunt servanda as the basic rule, concede that this rule has a peculiar nature, as it is a “hypothetical” rule, the hypothesis upon which the system is based.’

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at the same time the evolution of international space relations increases. It is a historical fact that outer space activities were governed only through customary principles for at least a decade (between 1957 and 1967 when the Outer Space Treaty appeared), and even nowadays customary law is essential to interpret and apply most parts of space law. The current institutional environment for space activities is comprised of a range of somewhat informal institutions, able to represent views, to act and to take decisions on behalf of their members. On the basis of a soft law agreement, members work in close collaboration based on common preferences but are not pressured by any formal obligations. These agreements are concluded in order to coordinate work for the maximum benefit of all members without exchanging funds or transferring technology. Generally, these agreements require simpler procedures, facilitate more rapid finalisation of the declared objectives, provide greater confidentiality, stimulate developments that are still in progress etc.44 and thus correspond more to the needs of current actors of space activities. In order to ascertain whether such soft law agreements may qualify for the creation of customary international law or if they contain some of its elements, the basic criteria should be applied.45 According to these criteria, confirmed by several cases of the International Court of Justice46 and authors47, two funda44 Hillgenberg, supra fn 40, 501 : ‘The reasons for avoiding treaties proper are many and various. To name a few : a general need for mutual confidence-building ; the need to stimulate developments still in progress ; the creation of a preliminary, flexible regime possibly providing for its development in stages ; impetus for coordinated national legislation ; concern that international relations will be overburdened by a “hard” treaty, with the risk of failure and deterioration in relations ; simpler procedures, thereby facilitating more rapid finalization (e.g. consensus rather than a treaty conference) ; avoidance of cumbersome treaty domestic approval procedures in case of amendments ; greater confidentiality […] ; agreements can be made with parties which do not have the power to conclude treaties under international law, […] ; agreements can be made with parties that other parties to the agreement are not willing to recognize.’ 45 For a historical perspective of the principles and theory of customary international law, see Hans Kelsen, Théorie du droit international coutumier, 10 Revue internationale de la théorie du droit (1939) 253. 46 A landmark decision defining criteria for customary practice to be considered as a source of general international law, was rendered in 1969 by the International Court of Justice while evaluating international law applicable to the delimitation issues of the North Sea continental shelf, North Sea Continental Shelf (Federal Republic of Germany / Netherlands and Denmark), Judgment of 20 February 1969, ICJ Reports 1969, 3. 47 Treves, supra fn 43, para. 24 ; Michael Akehurst, Custom as a source of International Law, 47 British Yearbook of International Law (1974–1975) 1.

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mental elements need to be present to establish customary practice a source of law : diuturnitas and opinio iuris sive necessitatis. More specifically, in the field of space law, the special nature of the respective activities is considered to be a factor accelerating the formation of custom.48 Therefore an activity, relatively concentrated in time, may qualify as meeting the requirement of diuturnitas, provided it is uniform, extensive and consistent enough to prove its legal validity. The institutions based on soft law instruments as in the above examples are very often brought into existence by government representatives. The declared objectives are then implemented through a continuous, settled and uniform behaviour. This is proven by the practice of their members : delegations representing public institutions meet regularly, they convene with the declared intention to formulate and subsequently to follow the ground rules established between themselves, to exchange internal information and consult on the results of their activities. Reports of all these activities are published and made openly available also to non-participants, precisely to bolster the seriousness and reliability of the group, its results and its intention to develop and strengthen ties between members. All this display of will is carried out by the representatives consistently, in good faith49 and without subsequent reservations expressed by States. For instance, none of the documents of the bodies given as examples above contain anything that might guarantee or cover some of the legal effects sought by the so long celebrated ‘cross waiver of liabilities’ provisions50 which seem to be essential when concluding international agreements to arrange space missions in cooperation. Because of the expected benefits of this cooperation, the actors wish to play along, even without a safety net, such as a cross waiver.

48 See Bin Cheng, United Nations Resolutions on Outer Space : ‘Instant’ International Customary Law ?, 5 Indian Journal of International Law (1965) 23 ; Andrew T. Guzman, Saving Customary International Law, 27 Michigan Journal of International Law (2005) 115 ; Brian D. Lepard, Customary International Law : A New Theory With Practical Applications (Cambridge University Press, Cambridge 2010) 98. 49 Hillgenberg, supra fn 40. 50 See in general Geraldine Meishan Goh, Dispute Settlement in International Space Law : a MultiDoor Courthouse for Outer Space (Martinus Nijhoff Publishers, Leiden et al. 2007) ; Valérie Kaiser, Launching Space Objects : Issues of Liability and Future Prospects (Kluwer Academic Publishers, Dordrecht et al. 2001) ; Said Mosteshar, Research and Invention in Outer Space : Liability and Intellectual Property Rights (Martinus Nijhoff Publishers, Dordrecht et al. 1995).

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Thus, it can be noted that the consistent behaviour reflects the opinio iuris51 of the involved entities. Interestingly, it is the continuous practice of these entities that leads to the creation of soft law rules. Consequently, the same entities, convinced that they are accomplishing an international duty, perform their activities in conformity with the rules they jointly formulated and recommended at the beginning.52 Maybe the most relevant example can be found in the coordination process for the production of remote sensing data and their distribution by CEOS partners. The representatives of members and their technical officers, having agreed on a set of standards, apply them to as many space missions as possible. General recognition of these standards is perceived as a major achievement in the interest and for the benefit of the whole world community. This last circumstance confirms the existence of opinio necessitatis, as it shows the need to behave in conformity, because it is considered indispensable and serves the general interest. Beside that, the UNCOPUOS Guidelines on Space Debris Mitigation may also be regarded as reflecting the opinio iuris of the leading space States since they were adopted by consensus of the United Nations General Assembly, and reflect the uniform opinion of the twenty-six leading space nations with regard to debris mitigation practices.53 At the time of the adoption, the respective States were expressing their individual perception that the Guidelines were lawful and in accordance with international law. The soft law agreements resulting from international cooperation in the area of space activities may thus form a basis for the development of new customary law.54

51 See, for example, Hillgenberg, supra fn 40, 514. 52 An interesting parallel analysis could be made with the international Standards and Recommended Practices and Procedures (SARPs) established in the framework of ICAO for aviation. 53 See John O’Brien (2001) International Law 71 ; Welly, supra fn 6, 311. 54 See, for example, Christine M. Chinkin, The challenge of Soft Law : Development and Change in International Law, 38 International and Comparative Law Quarterly (1989) 850. Ricky J. Lee and Steven Freeland, The Crystallization of General Assembly Space Declarations into Customary International Law, Proceedings of the 46th Colloquium on the Law of Outer Space (2004) 122.

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V. Conclusions When defining the general political framework and the motivations that lead to the establishment of institutional relationships on the basis of soft law instruments, we have to acknowledge a great interest in producing complex arrangements under legally relevant circumstances, resulting in the drafting of charters, terms of reference, recommendations etc. None of these instruments has received formal recognition under treaty law. Nevertheless, the objectives pursued, the meanings expressed, the method used and the consistent behaviour of actors and creators of international law all point in the same direction : a quite typical case of established, relevant and continuous practice delivering soft law.55 I may not yet claim that the existence of soft law will eventually result in new rules of international law of space activities. But the existence of soft law practice and its increasing relevance should be accepted. This status may in turn lead to customary international law with a widespread recognition by space actors. When studying space activities from the perspective of soft law, it can be ascertained that all practice in this area is not yet governed by hard law. Therefore, applying soft law is an interim positive step helping to fill flaws to a certain extent. Its application surely produces some legal effects,56 although this is not always explicitly declared. Today’s principles of soft law, as evident in the examined practice, may help to accomplish a wide range of processes in the domain of space activities, in particular : 1. the development of easier and more meaningful international relations ; 2. the interpretation and application of the space law treaties and other obligations ; 3. the establishment of some light norms of a substantive nature (as in the case of CEOS) ; 4. the creation of obligations of a procedural nature (as in the case of SFCG and of the UNCOPUOS Space Debris Mitigation Guidelines) ;

55 For some early reference to international custom qualified as soft law, see René-Jean Dupuy, Coutume sage et coutume sauvage, in : Suzanne Bastide and Charles E. Rousseaz (eds.), Melanges offerts a Charles Rousseau (Pedone, Paris 1974) 86. 56 Shelton, supra fn 9.

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5. the process of early elaboration of detailed obligations to be subsequently formalised under the law of international agreements ;57 6. the incentive to create coordinated national space legislations. These functions prove that the practice of soft law in space activities is a generally recognised system resulting from common interests and goals. A virtuous system that is flexible, corresponding to the needs of the space community and limited to the international relations coordinating and preparing space activities. All this raises legitimate questions on the future role of the UNCOPUOS in the development of space law. In my view, there is no doubt that the success of the institutions based on soft law has diverted a lot of momentum away from the United Nations’ codification efforts. Soft law making in space activities will soon face the somewhat delicate dilemma of whether to co-exist parallel to UNCOPUOS (and possibly come to rescue its future role) or whether to develop separately in lieu of it. Whatever the history of space law may tell, soft law is already there, nonlegally binding but vital, helping significantly in the establishment and development of international space relations. As explained above, the increasing volume of space relations currently needs to have a basis in an authoritative but flexible legal framework for international cooperation. In this respect, the phenomenon of soft law in space activities should be regarded as an essential tool for current times, both as a practical method as well as an interim step in the development of space law in the future. Its destiny depends on how we will plan and direct outer space activities and shape relevant practices in space relations.

57 For instance this has been the case of the historical process that led to the Space Station Agreements. become again a useful framework for attracting informal early to a world concerted effort for a mission to Mars. Interesting views of how to organise an international cooperative venture for Mars are given by Nandasiri Jasentuliyana, Getting it right for Mars, 9 Space Policy (1993) 5.

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The Importance of Guidelines and Codes of Conduct for Liability of States and Private Actors I. Introduction The most important distinction between ‘hard law’ and ‘soft law’ under international law is that the violation of the former entails State responsibility while a violation of the latter does not. However, this does not mean that the violation of soft law norms can not have any consequences at all. Some soft law norms contain guidelines and standards which have been developed to prevent harm from third persons and property. If those norms are not complied with and damage is caused, the issue of liability may arise because the argument could be made that the author of the damage has behaved negligently. The violation of soft law norms could be an indicator for the existence of ‘fault’ which may entail liability. This article will explore how the term ‘fault’ should be interpreted in the context of Art. III of the Liability Convention of 1972 which provides that the launching State shall be liable for damage caused by a space object, ‘if the damage is due to its fault or the fault of persons for whom it is responsible’. This will be done on the basis of Art. 31 of the Vienna Convention on the Law of Treaties and a brief comparative legal analysis of the term ‘fault’ in various jurisdictions. In addition, the concept of due diligence and the ILC Articles on Prevention of Transboundary Harm from Hazardous Activities of 2001 as well as the significance of the UNCOPUOS Space Debris Mitigation Guidelines of 2007 will be discussed. It is characteristic for non-binding international instruments that they create no obligation to States under international law. This means that, even if States have subscribed to such instruments, they are not legally bound by them. Compliance or non-compliance is then rather a political than a legal issue. However, the existing non-binding international instruments dealing with outer space provide guidelines and codes of conduct which describe rather precisely what is to be considered desirable, reasonable and responsible behaviour in the conduct of activities in outer space. It can be safely said that the provisions and principles contained in those instruments reflect the concerns of the stakeholders to pre-

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serve outer space — and the Earth — for future activities and human life. Such non-binding instruments may therefore be relevant with regard to the liability of States and private actors carrying out space activities to the extent that — even though not being legally binding — they represent the ‘state of art’1 and establish a standard of care or of due diligence. A violation could then be regarded as negligence and thus ‘fault’ which, under international space law as well as under national law, may trigger the duty to compensate for the damage caused as a result of such violation.

II. Difference between ‘hard law’ and ‘soft law’ and liability for damage Under international law, the violation of a ‘hard law’ obligation represents an ‘internationally wrongful act’ which entails States responsibility, while the violation of ‘soft law’ does not.2 According to the Articles of the International Law Commission on the Responsibility of States for Internationally Wrongful Acts of 2001 (hereinafter : ILC Articles), the State’s responsibility becomes engaged only under the condition that an act which is attributable to that State violates an international legally binding obligation of that State (Art. 2).3 The ILC Articles have deliberately left out the criterion of ‘fault’ in the establishment a State’s duty of reparation. However, the ILC, in its commentary on the Articles, made clear that the criterion of ‘fault’ still would play a role if it is part of the ‘primary’ norm of international law which has been violated.4 Art. III of the Liability Convention of 1972 contains such a ‘primary’ norm of international law, namely that the launching State shall be liable for damage 1 Ulrike M. Bohlmann, Connecting the Principles of International Environmental Law to Space Activities, forthcoming in Proceedings of the 54th Colloquium of Outer Space (2011) 1, 9. 2 As to the distinction of ‘hard law’ and ‘soft law’ and the ambiguity of these terms see the contribution by Frans von der Dunk, Contradictio in terminis or Realpolitik, supra 31–56. 3 Art. 2 reads : ‘Elements of an internationally wrongful act of a State : There is an internationally wrongful act of a State when conduct consisting of an action or omission : (a) is attributable to the State under international law ; and (b) constitutes a breach of an international obligation of the State.’ Responsibility of States for Internationally Wrongful Acts, GA Res 56/83 of 12 December 2001, Annex. See also the commentary by James Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries (Cambridge University Press, Cambridge 2002) 81 et seq. 4 Crawford, ibid., 82.

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caused by a space object, ‘if the damage is due to its fault or the fault of persons for whom it is responsible.’ It establishes that ‘[i]n 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.’5

Even before the Liability Convention entered into force, the liability of the launching State for damage caused by its space objects had been established under the Outer Space Treaty — and one may argue also under customary international law.6 According to Art. VII of the Outer Space Treaty, the launching State ‘is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons’.7 The international liability of the launching State here is overarching and not depending on the place where the damage occurred. It is in particular not requiring the existence of ‘fault’ in case of damages caused elsewhere than on the surface of the Earth. Commentators have therefore criticised the Liability Convention of being less efficient and unsatisfactory.8 However, if fault of the State or fault of persons for whom it is responsible can be established, liability for the damage caused is the consequence, wherever the damage has occurred. A closer look to the meaning and the concept of ‘fault’ in the conduct of space activities is therefore useful both for the clarification of liability under the Liability Convention and under the Outer Space Treaty.

5 Art. III 1972 Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187 (Liability Convention). 6 See Principle 8 of the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, which is generally regarded as representing customary international law. See Karin Traunmüller, infra 145–160. 7 Art. VII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. 610 UNTS 205 (Outer Space Treaty). 8 Armel Kerrest, Liability of Damages Caused by Space Activities, in : Marietta Benkö and KaiUwe Schrogl, Current Problems and Perspectives for Future Regulation (Eleven International Publishing, Utrecht, 2005) 91, 103 ; see also Armel Kerrest and Lesley Jane Smith, Art. VII, in : Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.), Cologne Commentary on Space Law, Volume I — Outer Space Treaty (Carl Heymanns Verlag, Köln 2009) 126, 142.

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III. How should the term ‘fault’ be interpreted in the Liability Convention ? The term ‘fault’ is not defined in the Liability Convention.9 It is therefore necessary to interpret it as a treaty term by use of the rules of treaty interpretation as laid down in Art. 31 of the Vienna Convention on the Law of Treaties which are generally accepted as reflecting customary international law.10 The general rule of interpretation is that ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.11 The ‘good faith’-principle, according to the International Court of Justice, is one of the ‘basic principles governing the creation and performance of legal obligations’.12 However, good faith as such has no normative quality.13 Yet, it can be said that ‘[w]hen interpreting a treaty, good faith raises at the outset the presumption that the treaty terms were intended to mean something, rather than nothing’.14 In the present context this implies that ‘fault’ is not limited to a violation of an international legal obligation, because then it would have no meaning. The violation of an international obligation entails responsibility and thus anyway the duty to pay compensation for damage caused by that act. So fault must be something different than the violation of an international obligation. But what is 9 Commentators have seen this as a serious defect of the Convention. See Hamilton DeSaussure and P.P.C. Haanappel, A Unified, Multinational Approach to the Application of Tort and Contract Principles to Outer Space, Proceedings of the 21st Colloquium on the Law of Outer Space (1978) 138 ; Carl Q. Christol, International Liability for Damage Caused by Space Objects, 74 American Journal of International Law (1980) 346, 368. 10 See, for many Malcolm N. Shaw, International Law (6th ed., Cambridge University Press, Cambridge 2008) 933. 11 Art. 31 para. 1 Vienna Convention on the Law of Treaties. 12 Nuclear Test Cases (Australia/ New Zealand v France), Judgment of 20 December 1974, ICJ Reports 1974, 268, para. 46 and 473, para. 49. 13 Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff, Leiden et al. 2009) 425. 14 Ibid., with reference to the Dissenting Opinion of M.M.Kashani, S.Shafeiei and S.H. Enayat in Interpretation of the Algerian Declarations of 19 January 1981, Iran-US Claims Tribunal, Decision of 21 December 1981, ILR 62 (1982) 603 ; and Francis G. Jacobs, Varieties of Approach to Treaty Interpretation : With Special Reference to the Draft Convention on the Law of Treaties Before the Vienna Diplomatic Conference 18 The International and Comparative Law Quarterly (1969) 318, 333.

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it ? The general rule of interpretation mentioned above explains that a treaty term must be interpreted in accordance with its ordinary meaning and in its context. In addition, other means of interpretation can be applied. 1. Ordinary meaning ‘Fault’ is a term which is used in everyday language. However, it appears in many different contexts and can have a variety of meanings, such as ‘a mistake, especially something for which you are to blame’, ‘a weakness in a person’s character’, ‘a broken part or weakness in a machine or system’, or even ‘a mistake made when hitting the ball over the net, in tennis or a similar game, to begin a game’.15 The ‘ordinary meaning’ in everyday language is thus equivocal and appears not to be particularly helpful for the interpretation of the term in the Liability Convention. As a legal term, Black’s Law Dictionary defines ‘fault’ as ‘negligence ; an error or defect of judgment ; any deviation from prudence, duty, or rectitude ; any shortcoming, or neglect of care or performance resulting from inattention, incapacity of perversity ; a wrong tendency to act ; bad faith or mismanagement ; neglect of duty’.16 This definition provides already more insights into the concept which could be used in the context of liability. However, it is based on American and English jurisprudence and is not necessarily representative for other jurisdictions or for liability under public international law. The Max Planck Encyclopedia of Public International Law expounds that the notion of ‘fault’ is used to describe ‘a set of blameworthy psychological attitudes of the author of an act or an omission’.17 Such attitudes consist ‘either in the fact that the author of the act, or omission, albeit without intention or wish to cause an unlawful event, consciously conducts himself differently from the way which could avoid the event — culpa in its various degrees — or in the fact that the author foresees the unlawful events and acts — or omits an act — in order to cause it (dolus).’18 This points already into a certain direction but represents a 15 Cambridge Dictionaries Online, http ://dictionary.cambridge.org/dictionary/british/fault_1 ?q =fault (31/10/2011). 16 Black’s Law Dictionary. Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern (6th ed., West Publishing, St. Paul Minnesota 1990) 608. 17 Giuseppe Palmisano, Fault, in : Max Planck Encyclopedia of Public International Law, last updated in September 2007, www.mpepil.com (31/10/2011). 18 Ibid.

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rather general statement. It is therefore necessary to have a closer look what the term ‘fault’ in particular in Art. III Liability Convention is supposed to mean. Art. 31 Vienna Convention on the Law of Treaties tells us that we must analyse the ‘context’ of the term. 2. The context The ‘context’ of the term might be of particular help in our case.19 Treaty terms are not drafted in isolation so that their meaning can only be determined by considering the entire treaty text, in particular, the remaining terms of the sentence and of the paragraph, the entire article at issue and the remainder of the treaty.20 In our case, the context of Art. III is in particular the preceding Art. II which says that, ‘[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.’ What we can conclude therefrom is that ‘fault’ liability should be opposed to ‘absolute’ liability. The latter encompasses liability under any circumstances, even in case of force majeure.21 This reflects the generally accepted rule that ultrahazardous activities necessarily involve risks of serious harm of which uninvolved third parties should be adequately protected.22 On the other hand, as regards collisions between spacecrafts, parties are more in a position of equality so that basing liability on fault in such cases seems to be the more reasonable solution.23 The dichotomy — opposing fault liability to absolute liability — exists in many legal systems. We may look into studies and publications on international comparative law, such as the International Encyclopedia of Comparative Law24 or the Research Unit for European Tort Law (of the European Centre of Tort and Insurance Law).25 These studies already show that there are different con19 Shaw, supra fn 10, 933 et seq. 20 Villiger, supra fn 13, 427. 21 I. H. Ph. Diederiks-Verschoor and Vladimir Kopal, An Introduction to Space Law (3rd ed., Kluwer Law International, Alphen aan den Rijn, 2008) 37. 22 Ibid.; see also von Wulf von Kries, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl, Grundzüge des Raumfahrtrechts. Rahmenbestimmungen und Anwendungsgebiete (C.H. Beck, München 2002) 28. 23 Diederiks-Verschoor and Kopal, supra fn 21, 38. 24 André Tunc (ed.), International Encyclopedia of Comparative Law, Vol XI, Part 1 and 2 (C.B. Mohr and Martinus Nijhoff Publishers, Tübingen/Dordrecht/Boston et al. 1983 and 1986). 25 Bernhard A. Koch and Helmut Koziol (eds.), Unification of Tort Law : Strict Liability (Kluwer

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cepts of liability distinguishing between ‘fault’ as opposed to ‘without fault’. The context of the treaty term thus evidences that the criterion of fault is an autonomous and additional criteria for liability for damage under the space treaties. However, this insight still does not provide sufficient clarity as to how the term ‘fault’ should be interpreted in the context of space activities. It is therefore necessary, in addition to the ordinary meaning and the context, to apply other means of treaty interpretation. It has been suggested that reference to general principles of law might be helpful in this endeavour.26 3. General principles of law The ‘general principles of law recognised by civilised nations’ are the third source of public international law according to Art. 38 para 1 (c) of the ICJ-Statute. They are ‘relevant rules of international law applicable in the relationship between the parties’ which shall, in accordance with Art. 31 para. 3 Vienna Convention on the Law of Treaties, be taken into account in order to interpret a treaty.27 The exact definition of and the methodology to determine general principles of law have, however, been controversial.28 Some see it as a source incapable to add anything new to international law as expressed by treaties and customary international law, unless respective consent of States is expressed, and reiterating only the fundamental precepts of international law.29 Others underline that they represent ‘general principles of municipal jurisprudence, in particular of private law, in so far as they are applicable to relations of States.’30 According to this majority view, elements of legal reasoning and private law analogies can be employed in order to make the law of nations a viable system for applications in a judicial process.31

26 27

28 29 30 31

Law International, The Hague/London/New York 2002) ; Pierre Widmer (ed.) Unification of Tort Law : Fault (Kluwer Law International, The Hague/London/New York 2005). See Christol, supra fn 9, 399. See Art. 31 para. 3 of the Vienna Convention on the Law of Treaties : ‘There shall be taken into account, together with the context : […] (c) any relevant rules of international law applicable in the relations between the parties.’ For the difficulties to define General Principles of Law see in general Shaw, supra fn 10, 98 et seq.; Ian Brownlie, International Law (7th ed., Oxford University Press, Oxford 2008) 16 et seq. Grigory I. Tunkin, Theory of International Law (Harvard University Press, Cambridge, MA 1974) Chapter 7, 190 et seq.; for further references see Shaw, supra fn 10, 99f. Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s, International Law, Vol I (9th ed., Longman, Essex 1992) 29. Brownlie, supra fn 28, 16.

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Usually, international courts and tribunals perform a comparative analysis of law in order to identify general principles of law. This method shall also be applied here with a view to interpret the term ‘fault’ in the Liability Convention. A short overview over some important legal systems shall help to identify what the notion of ‘fault’ encompasses in private law as regards liability for damage and what kind of criteria are employed to define more concretely the situation under which someone is considered to be ‘at fault’. 3.1 France The French Code Civile, enacted in 1804, is one of the oldest codes on private law.32 It has influenced not only many other European legal systems but, during the time of colonisation, has also been spread over many countries in Africa, America and Asia. Many of them kept the French legal heritage also after their independence in the 20th century. It is therefore of utmost interest for a comparative law analysis to see how the French Code Civile and pertinent jurisprudence define and apply the concept of ‘fault’. At the time of the enactment of the Code Civile, the subjective fault of the tortfeasor played a predominant role in the law of torts.33 Art. 1382 and 1383 CC provided for a very broad fault-based liability, which was thought to have strong moral value. Art. 1382 CC Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it. Art. 1383 CC Everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence. Fault was more than a ground for tortious liability, it constituted its very foundation.34 The era of industrialisation, mechanisation, and of the increase of accidents, brought about new developments at the end of the 19th century. In 1896, the Cour de cassation interpreted Art. 1384 subs. 1 CC — read until then as a

32 Earlier codes were the Codex Maximilianeus bavaricus civilis (Bavaria, 1756), the Allgemeines Landrecht (Prussia, 1794) and the West Galician Code (Galicia, then part of Austria, 1797). 33 Suzanne Galand-Carval, Fault under French Law, in : Widmer, supra fn 25, 89. 34 Ibid.

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mere introductory sentence — a new and autonomous ground for tortious liability.35 Art. 1384 CC A person is liable not only for the damages he causes by his own act, but also for that which is caused by the acts of persons for whom he is responsible, or by things which are in his custody.

This liability ‘for damages caused by things’ was quickly defined as general, encompassing all things, whether dangerous or not, driven by human hands or not.36 It is not based on a presumption of fault but consists in a ‘presumption of liability’, i.e. a liability which is prima facie established by the fact that a thing caused damage and which can only be avoided by proof of an act of force majeure. This new reading of Art. 1384 CC has been followed by numerous interventions of the French parliament which has passed several prominent acts establishing strict liability principles in areas such as industrial accidents and road accidents.37 The general standard of conduct required is generally that of a ‘bon père de famille’.38 The French courts have developed this concept and identified many variations of the duty of carefulness, diligence, skilfulness, fairness and so on, according to the circumstances.39 In order to assess if someone has acted as a reasonable person, judges have regard to a wide range of elements, such as the foreseeability of the harm caused, the nature and dangerousness of the activity undertaken, and the practicability of the measures that could have been taken to avoid the damage.40 The judges also pay great attention to the existence and contents of nonmandatory rules, such as customs, professional practices, technical rules, private regulations, and professional codes of ethics.41 Breach of these rules is very often 35 36 37 38

Cour de cassation, chambre civil, 16 June 1896 [1897] Dalloz-Périodique 1, 433. Galand-Carval, supra fn 33, 89. See, in particular, Law of 9 April 1898 and Law of 5 July 1985. Galand-Carval, supra fn 33, 90 ; Jean Limpens, Robert M. Kruithof and Anne MeinertzhagenLimpens, Liability for one’s own act, in : André Tunc (ed.), International Encyclopedia of Comparative Law, Vol. XI (Torts), Part I (J.C.B. Mohr, Tübingen and Martinus Nijhoff Publishers, The Hague-London-Boston 1983) 2.25, 2.113. 39 Galand-Carval, supra fn 33, 92. 40 Ibid.; Jean Limpens, Robert M. Kruithof and Anne Meinertzhagen-Limpens, supra fn 38, 2.25. 41 Galand-Carval, supra fn 33, 94.

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regarded as amounting to fault but exceptions may be admitted, for example, a breach of a professional code of ethics is not necessarily a civil fault. Conversely, compliance with those rules does not preclude proof of fault, since it is still open to the courts to consider that a professional rule or practice does not itself meet the legal standard of care. The French legislature and the courts have increasingly extended the definition of fault in recent years, which can be regarded partly as a reaction to the growth of the insurance industry which has increasingly alleviated the financial impact of an award of damages of the tortfeasor.42 This means that, on the one hand, the wrongfulness (illicéité) of the defendant’s conduct is rather easily established. Already slight deviations from the required standard of conduct, la conduite du bon père de famille, as mentioned above, are regarded as fault. On the other hand, the subjective component of fault, l’imputabilité, has been progressively abandoned. For example, mentally disordered persons and very young children who were traditionally regarded as not possessing the necessary ability to be guilty of fault may now also be made liable for tort.43 This obviously aims at protecting the interests of the victims. Furthermore, it shows that the concept of fault has transformed to an objective concept and has been deprived of its moral value. The objective concept of fault is also known as ‘faute sociale’44. It has developed also as an important factor for the liability of States for damages by unlawful acts. It is not necessary that the negligent behaviour of a particular State’s agent has caused the damage. The mere malfunctioning of the administration makes the State liable.45 To conclude, the French system, as one of the most important and influential legal systems in the world, contains a system of liability for tort which provides the victim with a high level of protection. The notion of fault has increasingly been extended. Already a slight deviation of the required standard of conduct is regarded as fault whereas the subjective situation of the tortfeasor is not relevant. This is generally known as ‘faute objective’ or ‘faute sociale’. One consideration behind this development in France is that the burdensome position of the tortfeasor has increasingly been alleviated by appropriate insurance mechanisms. 42 43 44 45

Ibid. 90. Ibid. Galand-Carval, supra fn 33, 90. See Irmgard Marboe, State Responsibility and Comparative State Liability for Administrative and Legislative Harm to Economic Interests, in : Stephan W. Schill (ed.), International Investment Law and Comparative Public Law (Oxford University Press, Oxford 2010) 377, 383.

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3.2 Germany Another example of an influential civil law system is the German Civil Code of 1900 which was and still is almost exclusively based on the assumption that liability for damage presupposes fault on the part of the tortfeasor.46 By the end of the 19th century, the prevailing opinion was that the author of damage to others should be held liable only if he had made some individual mistake, especially if he had neglected the standard of care the observation of which could be expected of him.47 Later, the creation and realisation of an extraordinary, statutorily regulated risk has become the second basis of liability. There exist a number of special statutes which provide for liability without fault in cases where someone controls dangerous machines or activities, such as cars, railways or energy facilities.48 As regards fault liability, the most important legal basis under German law is Section 823 on ‘liability in damages’ of the German Civil Code. In its first paragraph, it provides that ‘A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.’49

There is no statutory definition of ‘fault’ in German law. However, the abovementioned provision clearly establishes that liability may arise both in cases of intent and in cases of negligence. The German Civil Code contains a definition of ‘negligence’ in its Section 276, paragraph 2. It establishes that ‘[a] person acts negligently if he fails to exercise reasonable care.’ 50 A person acts negligently, if he or she disregards ‘due care’ implying reasoning and precautions which would be undertaken in the same situation by a careful person of average abilities in order to avoid an unreasonable risk of harming others.51 The standard for establishing negligence is objective. For determining the 46 47 48 49

Ulrich Magnus and Gerhard Seher, Fault under German Law, in : Widmer, supra fn 25, 101. Ibid. Ibid., 102. Civil Code in the version promulgated on 2 January 2002 ; official translation by the German Ministry of Justice at http ://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb. html#p3312 (31/10/2011). 50 Ibid. 51 Hein Kötz and Gerhard Wagner, Deliktsrecht (9th ed., Luchterhand Verlag, Neuwied 2001), no. 106 ; Magnus and Seher, supra fn 46, 109.

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required standard of care, the courts select a relevant group of people to which the author belongs. In the selection of the relevant group, courts take into consideration special knowledge or capacities. They then assess if the damage was foreseeable, which conduct could have avoided the damage and which precautions the actor should have undertaken to avoid it.52 Generally, the observance of technical norms or administrative prescriptions indicates that due care was observed. However, the courts assess every individual situation and may find that a special duty exceeding the general standards existed in the specific case. On the other hand, non-compliance with technical norms or administrative prescription usually indicates negligence. There are only limited exceptions to this rule, namely when that norms were recently changed, the tortfeasor could not know about this change or had not enough time to adjust his or her conduct or installation to the new technical standard.53 German law thus explicitly defines ‘negligence’ which — in addition to ‘intent’ — is one of the bases for liability for damage caused to third persons. The non-observance of technical standards is usually regarded as negligence which triggers liability for damage. It follows that, under German law, non-binding norms may turn out to be very important for the establishment of liability for damages caused to others. 3.3 United Kingdom Under English Law, the considerations of the ‘standard of care’ are also existing, namely in the law of torts, in particular in the context of the tort of ‘negligence’ which is the most important tort in terms of cases coming before courts.54 A successful claim for damages in negligence requires four main elements : a duty of care owed by the defendant to the plaintiff, a breach of that duty, a causal connection between the defendant’s careless conduct and the damage, and the occurrence of a foreseeable and recoverable damage which was caused by the breach of that duty.55 52 Kötz and Wagner, ibid., no. 109 ; Magnus and Seher, ibid., 109. 53 J. Hager in : J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen (13th ed. 1999) § 823 BGB no. E 34.; Magnus und Seher, supra fn 46, 105. 54 Horton Rogers, Fault under English Law, in : Widmer supra fn 25, 67. 55 Clerk & Lindsell, On Torts (19th ed. Sweet and Maxwell, London 2006) 383 ; Ralph Surma, A Comparative Study of the English and German Judicial Approach to the Liability of Public

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The concept of the ‘duty of care’ is complex and has been specified in various court decisions. According to the ‘Caparo’-test, there must be sufficient proximity between the parties, it must be reasonably foreseeable that the conduct will cause damage, and it must be fair, just, and reasonable to impose a duty of care.56 The criterion of ‘sufficient proximity’ to avoid overly expanded liability is, however, merely important when pure economic loss is concerned. 57 In cases of physical injury or property damage, foreseeability alone is usually sufficient to satisfy the element of proximity.58 The elements of ‘just, fair, and reasonable’ describe a variety of factors which allow the courts to include policy arguments. They can involve social, political, and economic factors and consider all relevant circumstances including the relationship between the parties, the proportionality of the burden of liability in relation to the nature of the tortious conduct, and the framework of the legal system.59 In applying this concept, courts also consider who should be the more appropriate bearer of the loss.60 The general standard of care is objective. The judges have to decide what the ‘reasonable man’ would have had in contemplation.61 The most frequently cited judicial formulation of negligence is that of Alderson B in Blyth v. Birmingham Waterworks Co.: ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do ; or doing something which a prudent and reasonable man would not do.’62

Where some specialist skill is involved, reasonable man should be understood as meaning a reasonably competent person practicing that trade or holding that position.63 Following the normal custom and practice in the matter will commonly

56 57 58 59 60 61 62 63

Bodies in Negligence, 8 Oxford University Comparative Law Forum (2000) at http ://ouclf. iuscomp.org/articles/surma.shtml (31/10/2011), text after note 28. Caparo Industries plc. v. Dickman, (1990) 2 Appeal Cases 605 (HL) 617–618. See the criticism on the much debated case Anns v. Merton LBC (1978) Appeals Cases 728 (HL), in Surma, supra fn 53, after note 43. Caparo Industries plc. v. Dickman, ibid., 632 ; Mobil Oil Hong Kong Ltd. v. Hong Kong Untitled Dockyards Ltd. (1991) 1 Lloyd’s Reports 309 (PC) 368 ; see Surma, supra fn 53, after note 60. See Clerk & Lindsell, supra fn 55, 392 et seq. Surma, supra fn 55, after note 63. Glasgow Corporation v. Muir (1943) Appeal Cases 448, 457. Blyth v. Birmingham Waterworks Co. (1856) Exchequer Reports 781, 784. Horton Rogers, supra fn 54, 70.

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mean that the person is not negligent.64 The failure to follow normal practice may be evidence of negligence and may require the defendant to justify his action, for example with regard to Statements of Standard Accounting Practice.65 The considerations above show that also in English law, an objective and reasonable standard of care is required from operators of hazardous activities. They have to apply their special skills and knowledge in order to avoid that third persons and property of others are damaged. However, courts enjoy a certain margin of discretion in deciding on the appropriate bearer of the relevant loss on the basis of policy considerations. The compliance or not with international guidelines is most likely also to be taken into account in this regard. 3.4 United States Under US tort law, fault is the primary, though not exclusive, criterion for liability in tort.66 A defendant’s conduct is deemed faulty when he or she acts with the intention of causing harm or when there is some negligence in the defendant’s conduct. Negligent conduct is deemed faulty as such.67 The required standard of conduct is that of a reasonable person under like circumstances. The US Restatement of Torts provides : ‘Section 283 Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.’68

More concrete definitions of fault and negligence can be found in judicial opinions rather than in statutes.69 Breach is usually established by showing that the defendant failed to exercise reasonable care. Some courts use the terms ‘ordinary care’ or ‘prudent care’. Conduct is typically considered to be unreasonable when the disadvantages outweigh the advantages. Judge Learned Hand famously reduced this to algebraic form in United States v. Carroll Towing Co.:70 64 Ibid., 75. 65 Lloyd Cheyham v. Littlejohn (1987), Butterworths Company Law Cases 303 (example taken from Horton Rogers, supra fn 54, 75). 66 Gary T. Schwartz and Michale D. Green, Fault under US Law, in : Widmer, supra fn 25, 301. 67 Ibid. 68 American Law Institute, Restatement of Torts, Second (1977). 69 Schwartz and Green, supra fn 66, 304. 70 United States v. Carroll Towing Co., 159 F.2d 169 (2d. Cir. 1947).

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B < PL This means that if the Burden of exercising more care is less than the Probability of Loss (damage, harm, etc.), and a person fails to undertake the burden, he is not exercising reasonable care and is thus breaching his duty to do so. The application of the test of reasonable care under like circumstances may involve a large range of circumstances. If the actor has complied with a relevant custom, this has to be taken into account but does not necessarily lead to the conclusion that there is a lack of negligence. Conversely, if the actor has departed from a relevant safety custom, this does not automatically lead to a finding of negligence.71 As regards the foreseeability of the harm, the past record of harm has to be considered. However, even if harm has never occurred before, the possibility of harm still may be somewhat foreseeable.72 If the actor is faced with a sudden emergency, this is taken into account in determining whether the actor has behaved as a reasonably prudent person. Also in this situation, the standard is objective but takes into account the specific competence of the actor. Professionals who cause harm in the course of their professional activities are held to a professional standard of care.73 It follows that, also in the US, negligence in the observation of professional standards or custom may trigger tort liability. The finding will not be automatic but it will represent an important factor in the assessment of the exercise of ‘reasonable care under like circumstances.’ 3.5 Principles of European Tort Law On the basis of a thorough, multiannual study of comparative law with the involvement of many scholars from numerous jurisdictions including both European and non-European countries,74 the European Centre of Tort and Insurance Law has developed and published ‘Principles of European Tort Law’75 which aim at creating the foundation for discussing a future harmonisation of the law of 71 72 73 74

Schwartz and Green, supra fn 66, 305. Ibid. Ibid. The scholars not only came from European countries but also from the United States, Israel and South Africa, see http ://www.egtl.org/ (04/10/2011). 75 European Group on Tort Law, Principles of European tort law : text and commentary (Springer, Wien et al. 2005).

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tort in the European Union.76 According to these ‘Principles of European Tort Law’, liability based on fault would be the following : ‘Chapter 4 : Liability based on fault Art. 4 :101. Fault A person is liable on the basis of fault for intentional or negligent violation of the required standard of conduct’.

This provision establishes liability for damage caused to others when the person whose actions have caused the damage has not acted in conformity with the required standard of conduct. The Principles even go a step further and define the required standard of care in a relatively specific way : ‘Art. 4 :102 : Required standard of conduct (1) The required standard of conduct is that of the reasonable person in the circumstances, and depends, in particular, on the nature and value of the protected interest involved, the dangerousness of the activity, the expertise to be expected of a person carrying it on, the foreseeability of the damage, the relationship of proximity or special reliance between those involved, as well as the availability and the costs of precautionary or alternative measures.’

This definition contains a number of criteria which have to be considered for the determination of the required standard of conduct. It is more specific than most of the existing national legal systems and also includes criteria which have been developed by courts in the different countries. Even though the countries and legal systems under consideration are very diverse and include both civil law and common law jurisdictions, the comparative survey apparently has shown that there are determinative factors for the establishment of the required standard of care. The establishment of negligence and thus fault seems to be based on relatively well-established principles and criteria. The observance of technical norms or professional codes of conduct is, however, not explicitly included in the list of criteria. The general formula contained in the first part of the first sentence provides, however, an important gateway 76 See the preparatory work done by the European Centre of Tort and Insurance Law and its intentions for the project ; http ://ectil.org/ectil//Introduction.aspx#3._Research_Activities (10/ 10/2011).

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for such codes to be considered. The formula ‘reasonable person in the circumstances’ is taken from US law according to which professional activities are held to a professional standard of care.77 It is also similar to the German approach which identifies the respective ‘group of people’.78 The reference, ‘in particular’, to ‘the nature and value of the protected interest involved, the dangerousness of the activity, the expertise to be expected of a person carrying it on’, are another important indicator that professional guidelines, in particular those designed to prevent harm from third persons and property have to be taken into consideration when the required standard of care of the actor has to be assessed. 3.6 Preliminary conclusion It can be concluded from the above that there is a common understanding on what represents ‘fault’ in various jurisdictions. It is a violation of the required standard of behaviour of a reasonable person in the circumstances. It is not necessary that he or she breaches a mandatory legal rule. If this is the case, a finding of negligence will in most cases be almost automatic. Instead, the required standard for a reasonable person in the circumstances will be identified on a case by case analysis. In order to assess if the standard of care has been violated, a number of factors have to be taken into consideration. These include the expertise to be expected of a person carrying on the activity — which can be assessed on the basis of technical and professional standards, such as the ‘state of the art’ of the respective industry79 —, the foreseeability of the damage, as well as the availability and the costs of precautionary or alternative measures. Non-binding norms, such as professional practices as well as safety standards might be of particular relevance in this context as they provide on objective insight of what is considered ‘reasonable’ by the profession, the industry, the community etc. This standard of care is above all important in relation to the liability of private persons, including private space operators, as it is a concept developed under national laws regulating tort or (delictual) liability. However, as a ‘general principle of law’ it has also to be taken into account when interpreting the term ‘fault’ in the Liability Convention which establishes the conditions of the liability of States. 77 See supra, fn 68. 78 See supra, fn 52. 79 See Bohlmann, supra fn 1, 2.

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In addition, according to Art. 31/3/c Vienna Convention on the Law of Treaties there are also other norms of international law applicable between the parties which should be taken into consideration in order to interpret a treaty term such as ‘fault’ in Art. III of the Liability Convention. These other norms include treaty norms and customary international law norms which shall briefly be addressed in the following. 4. Treaty norms In the law of outer space, the Outer Space Treaty of 1967 is of particular importance. As it contains ‘Principles Governing the Activities in the Exploration and Use of Outer Space’, as its full title indicates, it might also help in identifying what kind of ‘duty of care’ is demanded from States carrying out space activities. Some provisions point to the duty of paying due regard to the interests of other countries. For example, Art. I of the Outer Space Treaty provides that ‘[t]he exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.’

The notion of ‘in the interests of all countries’ is part of the ‘common benefit clause’ in Art. I and is generally understood as a limitation of the freedoms of outer space.80 Its precise meaning is not very clear and its primary purpose seems to be to highlight that also non-space-faring nations should benefit from the results of space activities.81 Whether it has some concrete and binding character may be cast into doubt because of its vagueness. In that sense, it may be regarded as a ‘soft treaty norm’82 which despite of its formally legally binding character can not be directly enforced. Art. IX of the Outer Space Treaty reiterates the ‘interests of others’-formula and provides that

80 Stephan Hobe, Article 1, in : Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl supra fn 8, 25, 36. 81 Ibid., 38. 82 See in this regard Frans von der Dunk, Contradictio in terminis or Realpolitik, supra 31–56.

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‘[i]n the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination (emphasis added).’

This can be interpreted as a duty of States to take appropriate measures to prevent other States from significant harm or at least minimise the risk.83 This duty is a reflection and consequence of the principle that outer space is not subject to national sovereignty and has to be shared with the whole international community.84 A ‘reasonable’ government may therefore not use outer space only for its own benefit but it must pay due regard of the interests of other countries, in particular not cause harm to them or their citizens. It must engage in reasonable efforts to avoid such harm. A violation of that duty may give raise to a claim based on fault liability. Guidelines developed at the international level — above all at UNCOPUOS — may provide an indicator what is considered to be reasonable efforts. 5. ‘Due diligence’ as an obligation under customary international law Customary international law also contains rules of a required standard of care which could be relevant for States engaged in space activities. Indeed, public international law knows the so-called standard of ‘due diligence’. This concept has been developed in the area of the treatment of ‘aliens’ where States are required to protect aliens in the same way as they protect their own citizens. 85 The State has to take the same measures — as appropriate under the circumstances — to prevent that foreign nationals are harmed.

83 Stephan Hobe and Jan Helge Mey, UN Space Debris Mitigation Guidelines, 58 Zeitschrift für Luft- und Weltraumrecht (2009) 388, 398. 84 Ibid. 85 See on this topic for instance Shaw, supra fn 10, 824 et seq.

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In addition, the State has the duty to take measures to prevent that activities taking place under its jurisdiction cause damage outside its territory. This principle has gained importance in particular in the ambit of environmental protection.86 The ‘no-harm principle’ as contained in Principle 2 of the Rio Declaration means that States have to take appropriate measures to prevent that other States and areas beyond their national jurisdiction are harmed. At least, they have to engage in minimising the risk.87 The Draft Articles of the ILC on the ‘Prevention of Transboundary Harm from Hazardous Activities’ of 200188 have developed and explained the concept of ‘due diligence’ to some detail. ‘Transboundary harm’ in this context means ‘harm caused in the territory of or in other places under the jurisdiction or control of a State other than the State of origin, whether or not the States concerned share a common border.’89 According to the Draft Articles, States have a duty to prevent transboundary harm. Art. 3 on ‘Prevention’ establishes that ‘[t]he State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof.’

The Commentary makes clear that the required standard is compared to what a ‘reasonable’ or ‘good’ government would do.90 The standard of due diligence is that which is generally considered appropriate and proportionate to the degree of risk.91 Due diligence does not require similar measures from all States, as lack of economic and technological capacity may mitigate the attendant obligations for developing countries. The Commentary points out the dynamic character of due diligence : 86 Bohlmann, supra fn 1. 87 Hobe, supra fn 80, 398. 88 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with Commentaries, Yearbook of the International Law Commission, 2001, vol. II, Part Two, 149 et seq., available at http ://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_7_2001.pdf (05/11/2011). 89 Art. 2(c) Draft Articles on Prevention. 90 Commentary to Art. 3, para. 17, Draft Articles on Prevention ; in general see, for instance, Johan G. Lammers, Prevention of transboundary harm from hazardous activities — The ILC draft articles, 14 Hague Yearbook of International Law (2001) 3. 91 Timo Koivurova, Due Diligence, in : Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, last updated in August 2007, available at http ://www.mpepil.com/home (17/10/2011), para. 17.

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‘What would be considered a reasonable standard of care or due diligence may change with time ; what might be considered an appropriate and reasonable procedure, standard or rule at one point in time may not be considered as such at some point in the future. Hence, due diligence in ensuring safety requires a State to keep abreast of technological changes and scientific developments.’92

This standard of care or due diligence, what a ‘reasonable’ or ‘good’ government would do, can be laid down in various international documents, including nonbinding guidelines and codes. The United Nations Space Debris Mitigation Guidelines represent an example of such an international document. Their possible legal effect with regard to liability will briefly be discussed in the following.

IV. Example : Space Debris Mitigation Guidelines For the international community, the issue of space debris has so far merely appeared as a ‘technical’ concern. A number of national space agencies and ESA engaged in developing technically feasible and practical ways and means of avoiding or mitigating space debris.93 These efforts to reduce and limit space debris has been merely driven by the self- interest of the actors in space — in order to ensure safe operations for the future to come. The Inter-Agency Debris Mitigation Committee (IADC) was established in 1993 and worked on the formulation of Space Debris Mitigation Guidelines which in its latest version of 200294 have received considerable international attention.95 By contrast, as regards the legal aspects of space debris, States have been rather reluctant to deal with them so far. In UNCOPUOS, space debris has been dealt with primarily in the Scientific and Technical Subcommittee until today. In 1994, the matter was included as an item on the agenda. A multi-year workplan between 92 Draft Articles on Prevention, Commentary to Art. 3, para. 11. 93 See the article by Setsuko Aoki in this book, supra 57–58. 94 See http ://www.iadc-online.org/Documents/Docu/IADC_Mitigation_Guidelines_Rev1_Sep 07.pdf (04/10/2011). 95 They have served as an important basis for other initiatives on space debris mitigation on the international, regional and national levels, including the ‘Requirements on Space Debris Mitigation for ESA Projects’ of 2008 [ESA/ADMIN/IPOL(2008)2, Annex 1] and the UNCOPUOS Space Debris Mitigation Guidelines which will be discussed in more detail in the following.

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1996 and 1998 led to the adoption of a ‘Technical Report on Space Debris’ in 1999.96 After the publication of the IADC Space Debris Mitigation Guidelines, the Scientific and Technical Subcommittee took up the issue again and decided about two further multi-year workplans between 2002 and 2005 and between 2005 and 200797 which eventually led to the adoption of the ‘Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space’.98 Legal aspects have been addressed in a study by the European Space Policy Institute (ESPI) in 2002 which reported it to the Legal Subcommittee.99 A cautious attempt to approach the legal aspects of the issues in UNCOPUOS is the agenda item on ‘General exchange of views on national mechanisms for the mitigation of space debris’ which was introduced as a new agenda item of the Legal Subcommittee in 2008.100 The scope of this agenda item so far has been limited to the ‘exchange of information’ and results in presentations by member States and observers about the practice of their respective ways and means to raise the consciousness of operators about the problem and to ensure a certain level of avoidance of space debris.101 The exchange of information has shown that the 96 Report adopted by the Scientific and Technical Subcommittee in 1999, UN Doc. A/AC.105/ 720, available at http ://www.oosa.unvienna.org/pdf/reports/ac105/AC105_720E.pdf (04/ 10/2011). 97 Report of the Scientific and Technical Subcommittee of its 38th Session from 12 to 23 February 2001, UN Doc. A./AC.105/761, paras. 128 et seq., Report of the Scientific and Technical Subcommittee of its 42nd Session from 21 February to 4 March 2005, UN Doc. A./ AC.105/848, para. 95 and annex II ; see further Hobe, supra fn 81 391 et seq. 98 Annex to UN Doc. A/AC.105/C./L.260 ; see also Report of the Committee on the Peaceful Uses of Outer Space of its 62nd Session from 6 to 15 June 2007 ; the Guidelines are available in a pdfversion at http ://www.oosa.unvienna.org/pdf/publications/st_space_49E.pdf (04/ 10/2011). 99 Analysis of Legal Aspects of Space Debris of 27 March 2002, UN Doc.A/AC.105/C.2/2002/ CRP.5 of 27 March 2002, in : Karl-Heinz Böckstiegel, Marietta Benkö and Stephan Hobe (eds.), Space Law : Basic Legal Documents, Vol 2, B.III.14. 100 Report of the Legal Subcommittee of its 47th Session from 31 March to 11 April 2008, UN Doc. A/AC.105/917, para 150. 101 See for instance Report of the Scientific and Technical Subcommittee on its forty-eighth session, held in Vienna from 7 to 18 February 2011, A/AC.105/987, paras. 76 et seq.; Report of the Scientific and Technical Subcommittee on its forty-seventh session, held in Vienna from 8 to 19 February 2010, A/AC.105/958, paras. 67 et seq.; Report of the Scientific and Technical Subcommittee on its forty-sixth session, held in Vienna from 9 to 20 February 2009, A/ AC.105/933, paras. 64 et seq.; Report of the Scientific and Technical Subcommittee on its forty-fifth session, held in Vienna from 11 to 22 February 2008, A/AC.105/911, paras. 84 et seq. Some of the presentations are available at the OOSA Homepage. http ://www.oosa. unvienna.org/oosa/en/COPUOS/stsc/past.html (10/10/2011).

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requirements are rather diverse and vague and leave much room for a case by case evaluation. This reluctance to address legal and regulatory aspects of space debris overlooks that even if the IADC and the UNCOPUOS Guidelines are merely ‘technical’ guidelines they (1) can develop into a professional standard if they are widely accepted and respected by the relevant industry, (2) can be considered as safety standards, and (3) contain elements that may influence the assessment of the above-mentioned ‘duties of care’ and ‘diligence’ in liability cases against States and space operators. Guideline 1 gives a clear message, namely that it is necessary to limit debris released during normal operations. The explanatory paragraph of this guideline sets out that space systems should be designed not to release debris during normal operations and that, if this was not feasible, the effect of any release of debris on the outer space environment should be minimised. It points out that the release of mission-related objects into Earth orbit, including sensor covers, separation mechanisms and deployment article, was permitted in the early decades of the space age. However, the ‘recognition of the threat posed by such objects’ promoted design efforts which have proved effective in reducing this source of space debris. The ‘recognition’102 of the threat may be regarded as an important element when the actions of a space actor or an authorising State are to be assessed. Guideline 2 which asks to minimise the potential for break-ups during operational phases refers to some break-ups in the past caused by system malfunctions, such as failures of propulsion and power systems. These catastrophic events should be avoided by incorporating potential break-up scenarios. The fact that such catastrophic events already took place in the past has an influence on the evaluation of the standard of care which has to be exercised in the evaluation of applications for new space operations. It relates to the ‘foreseeability’103 of the damage. Guideline 3 points out that the probability of accidental collisions in orbit should be limited. This guideline is based on numerous studies that indicate that the primary source of new space debris is likely to be from collisions. The fact that some member States and international organisations have already adopted procedures for collision avoidance, as the Guidelines indicate, is not without consequence for the required standard of care of other States as they might repre102 See supra, the Preliminary conclusions, 135. 103 Ibid.

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sent the relevant ‘group’104 whose behaviour is a yardstick for other actors in the same field. It could also be regarded as a ‘professional expertise’105 to be expected of a person carrying on the activity. Guideline 4 refers to intentional destruction and other harmful activities as a threat to space operations. It does not ban intentional break-ups totally but makes clear that, if they are necessary, they should be conducted at sufficiently low attitudes to limit the orbital lifetime of resulting fragments. As the threat to space operations caused in particular by long-lived debris is recognised, an action in contravention of the Guideline in this respect could hardly be regarded as being compatible with the required standard of care. Guideline 5 gives rather detailed instructions on how to proceed with stored energy at the end of the mission. It explains the unnecessary threats caused by unintentional post-mission break-ups and makes a clear case for the passivation of space objects at the end of their mission. The removal of all forms of stored energy, including residual propellants and compressed fluids and the discharge of electrical storage devices, can represent the required ‘state of the art’, if not yet at present so perhaps in the future. Guideline 6 deals with space objects in the low-Earth orbit (LEO) after the end of their mission. It provides that they should be removed from orbit in a controlled fashion. If this is not possible, they should be disposed of in orbits that avoid their long-term presence in the LEO region. This guideline which is important for many missions and space applications can be regarded as a new and original approach. It relates to the solution proposed by the IADC Guidelines in 2002.106 The UNCOPUOS Guidelines are, however, less specific as the former and do not introduce the 25-year limit for non-maneuverable space objects. This Guideline can not easily be regarded as an established state of the art. Liability for damage caused to another spacecraft in violation of this Guideline would, therefore, not be automatic but must be assessed by a combination of other factors relating to the due standard of care, such as collision avoidance procedures. With regard to the geosynchronous Earth orbit (GEO) region, Guideline 7 provides for a removal of the space objects from that orbit to other orbits to avoid long-term interference with the GEO region. Similarly to Guideline 6, 104 The reference to a ‘group’ of comparable actors is particularly relevant under German law. See supra fn 50. 105 This criterion is present in civil law and common law jurisdictions as well as in the Principles of European Tort Law ; see supra fn 75. 106 See Guideline 5.3.2. (‘Objects Passing Through the LEO Region’) of the IADC Guidelines.

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this provision is a new and original solution developed by the IADC in order to avoid that the valuable orbital slots in the GEO regions are not wasted. This Guideline could be regarded as an implementation of the obligation of international cooperation and paying due regard to the interest of other State in Art. I and IX auf the Outer Space Treaty and, in particular, of the non-appropriation principle in Art. II. The removal of GEO satellites has become more and more common in recent years, not least for economic reasons. 107 It might gradually develop into general practice and become a recognised state of the art. As has been shown, a number of elements of the required standard of care necessary for the establishment of fault liability are contained in the UNCOPUOS Space Debris Mitigation Guidelines. The guidelines, together with the general principles of law on fault liability, might eventually lead to the responsibility of space actors to take appropriate measures to limit space debris. The distinction from binding ‘hard law’ provisions would be that the non-binding guidelines only play a role when damage has actually been caused to third persons or property and — in the litigation or negotiation procedure — the liability for that damage has to be established. While the violation of a binding norm leads to State responsibility irrespective of the occurrence of any damage, with respect to soft-law norms the following is true : no damage, no liability.

V. Remaining problems There are still numerous remaining problems as regards liability of States for damage caused by space objects. One of them relates to the focus of the United Nations space treaties on the ‘launching State’. The Liability Convention only provides for the liability of the ‘launching State’ and does not refer to the liability of another State who might be at fault.108 In that case, the Liability Convention cannot be used. The victim must rely on other liability rules, either international or domestic.109 107 Currently, about 1/3 of inactive satellites are removed from the GEO to a disposal orbit at least 250 km above the GEO, 1/3 to a lower orbit, still presenting a danger for future interferences with functional Geo satellites, and 1/3 are just left in the GEO. The removal of GEO satellites has not yet become a standardised practice, see Lotta Viikari, The environmental element in space law : assessing the present and charting the future (Martinus Nijhoff Publishers, Leiden et al. 2008) 115 with further references. 108 Kerrest, supra fn 8, 102. 109 Ibid., 109 et seq.

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Another issue is related to the liability of non-State operators. As subjects of private law they may be liable under national tort (delictual) law and not under international law. In the case of damage caused by a space object the issue arises which national law is applicable and which forum is appropriate. Some principles of private international law and conflict of law are not applicable in cases of damage caused by space objects. For example, for outer space, there is no lex loci delicti commissi which is generally the most important rule applied in both common and civil law countries.110 As an alternative, States could uniformly decide to apply the law of the State of registry.111 The principle of nationality, domicile, or permanent residence of the victim would be an advantage for the victim but would lead to very diverse solutions depending on the coincidence of who was the victim.112 Other solutions could be centred around the tortfeasor or the law of the forum. 113 A possibility could be to find a unified approach either on a substantive level or as regards the choice of law rules to be applicable. Both approaches would require considerable efforts in international fora, such as UNCOPUOS or UNIDROIT.114 Until now, however, there is no transparent and foreseeable solution to this problem.

VI. Conclusion As has been shown, non-binding norms may play an important role in order to determine if ‘negligent’ behaviour has taken place and if, in case of a damage caused, liability for fault can be established. This is not only important for establishing liability of the launching States, but also for the liability of private actors for damage caused by space objects in outer space. The careful avoidance of giving any legally binding force to some of the guidelines and standards on the conduct of outer space activities, in particular to space debris mitigation guidelines, can not prevent this important legal consequence.

110 DeSaussure and Haanappel, supra fn 9, 143. 111 Ibid., 139. 112 Ibid., 142. 113 Ibid., 140 et seq. 114 Ibid., 141 et seq.

Karin Traunmüller

The ‘Declaration of Legal Principles Governing the Activities of States in the Exploration of Outer Space’ : The Starting Point for the United Nations’ Law of Outer Space

I. Introduction The 1963 ‘Declaration of Legal Principles Governing the Activities of States in the Exploration of Outer Space’1 (in the following : ‘Declaration of legal principles’) will soon celebrate its 50th anniversary. Its adoption half a century ago marked the beginning of the era of space law. It is the first significant document formulating legal principles for the conduct of outer space activities and is often referred to as ‘the first chapter in the book of space law’.2 Scholars underlined its role for the development of the law of outer space to date.3 The Declaration consists of a preamble and nine operative principles, which can be divided into two groups : the first four principles establish the purposes of the exploration and use of outer space, characterise the legal status of outer space and celestial bodies and declare them free for exploration and use by all States on a basis of equality ; in contrast, Principles 5 to 9 provide initial rules for the handling of different problems arising from space activities. They address the international responsibility for national activities (Principle 5), cooperation and mutual assistance of States (Principle 6), jurisdiction and control over space objects and personnel by the State of registry as well as continuity of ownership (Principle 7), international liability of the launching State (Principle 8) and the principle of assistance to astronauts in

1 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res 1962 (XVIII) of 13 December 1963. 2 Bin Cheng, United Nations Resolutions on Outer Space : ‘Instant’ International Customary Law ?, 5 Indian Journal of International Law (1965) 23. 3 See, for instance, Vladimir Kopal, United Nations and the Progressive Development of International Space Law, 7 The Finish Yearbook of International Law (1996) 1, 7. Kopal emphasises that the 1963 Declaration was a ‘remarkable achievement’.

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distress (Principle 9).4 These principles, contained in the Declaration, were the basis for further negotiations that lead to the adoption of the 1967 Outer Space Treaty four years later.5 However, the ‘Declaration of legal principles’ is more than the first important document laying down the principles that form the fundament of today’s law of outer space. It stands on the top of a long list of so-called ‘soft law’ instruments, elaborated within the framework of the United Nations since the establishment of the Ad Hoc Committee on the Peaceful Uses of Outer Space in 1958 and of the Committee on the Peaceful Uses of Outer Space (UNCOPUOS) one year later.6 In the past 50 years, UNCOPUOS became the most authoritative body to evolve space law7 and adopted numerous resolutions concerning outer space, including declarations of principles.8 Although the ‘Declaration of legal principles’ is usually referred to as the first relevant document in the law of outer space, it has to be pointed out that as of the day of its adoption on December 13, 1963, a total of six other resolutions dealing with issues concerning outer space had already received the approval of the General Assembly :9 Res 1348 (XIII) of 13 December 1958 ‘Questions of the Peaceful Use of Outer Space’, Res 1721 (XVI) of 20 December 1961 ‘International Cooperation in the Peaceful Uses of Outer Space’, Res 1802 (XVII) of 14 December 1962 ‘International Cooperation in the Peaceful Uses of Outer Space’, Res 1884 (XVIII) of 17 October 1963 ‘Questions of General and Complete Disarmament’. Res 1963 (XVIII) ‘International Co-operation in the Peaceful Uses of Outer Space’, was adopted on 24 December 1963, together with the 4 Ibid., 6–7. 5 Stephan Hobe, Historical Background, in : Stephan Hobe, Bernhard Schmidt-Tedd and KaiUwe Schrogl (eds.), Cologne Commentary on Space Law, Volume I — Outer Space Treaty (Carl Heymanns Verlag, Köln 2009) 19, 20 et seq. 6 See in general Bin Cheng, The United Nations and Outer Space, 14 Current Legal Problems (1961) 247, 259 et seq. 7 Ogunsola O. Ogunbanwo, International Law and Outer Space Activities (The Hague 1975) 11. 8 Andrei D. Terekhov, UN General Assembly Resolutions and Outer Space Law, Proceedings of the 40th Colloquium on the Law of Outer Space (1997) 97 ; G.K. Dmitrieva and I.I. Lukashuk, The Role of the UN General Assembly Resolutions in the International Norm-Making, 28 Indian Journal of International Law (1988) 236, 237. 9 Carl Q. Christol, The United Nations and the Development of International Law — Unanimous Resolutions of the General Assembly Dealing with Outer Space, 23 Proceedings of the Institute of World Affairs (1965) 213–219, reprinted in : Carl Q. Christol, Space Law : Past, Present, and Future (Deventer-Boston 1991) 312.

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‘Declaration of legal principles’. Significant is the fact that with the exception of Res 1348 (XIII), all resolutions received unanimous approval.10 United Nations General Assembly resolutions have remained important in the area of space law until today. In view of the importance of these ‘soft’ documents, it seems suitable to have a look at the intentions the then actors had when they elaborated and adopted the ‘Declaration of legal principles’ during the years 1962 and 1963, as well as on the respective opinions that had been expressed as regards its legal character in the doctrine.

II. The elaboration of the ‘Declaration of legal principles’ The very first proposal for a draft declaration of legal principles was introduced by the Soviet Union at the first session of the Legal Subcommittee in May/June 1962.11 However, no fruitful discussions on this draft were possible as four of its points were opposed by the United States due to their controversial political nature. The controversial issues concerned, above all, the prohibition of reconnaissance satellites and the intended right of the space powers to veto each other’s space activities.12 Furthermore, different perceptions existed as regards the order of priority : the United States considered the question of assistance and return more urgent, whereas the Soviet Union attached greater importance to the elaboration of general principles and insisted on the adoption of a respective declaration first. Those disagreements between the two space powers led to a deadlock in the Subcommittee and, finally, to the termination of its session without significant achievements.13 The standstill could not be overcome during 10 Ibid. 11 At this session, two proposals had been introduced by each the United States and the Soviet Union. The US proposals dealt with the assistance of astronauts in distress and liability for accidents to space vehicles ; see Draft Declaration on Assistance and Return of Space Vehicles and Personnel, A/AC.105/C.2/L.3 and Proposal on liability for space-vehicle accidents, A/AC.105/ C.2/L.4. The two drafts submitted by the Soviet Union dealt with general principles and the rescue of astronauts ; see Draft Declaration of the Basic Principles governing the Activities of States pertaining to the Exploration and Use of Outer Space, A/AC.105/C.2/L.1 and Draft Agreement on the Rescue of Astronauts and Spaceships making Emergency Landings, A/AC.105/C.2/L.2. 12 See Cheng supra fn 2, 27. 13 Paul G. Dembling and Daniel M. Arons, Space Law and the United Nations : The Work of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space, 32 Journal of Air Law and Commerce (1966) 329, 331 et seq.

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the Subcommittee’s next session in autumn, as both powers did not change their attitude and only re-introduced their former proposals.14 Still, new proposals for a declaration of principles were submitted by the United Kingdom,15 as well as by the United States.16 Apart from differences concerning questions of substance, divergent opinions between the United States and the Soviet Union emerged as to the form in which the principles should be set out. The latter, generally reluctant to customary international law, sought formal expression of space law principles and rules, and wanted a treaty or a declaration of the United Nations that should have been followed by signatures as in the case of a convention.17 The United States, on the other hand, saw no need for the elaboration of a treaty and favoured a General Assembly resolution.18 This issue could be resolved during the spring session of 1963 : it was agreed that the principles would be adopted as a declaration of the General Assembly.19 However, it was the signature of the Moscow Test Ban Treaty, prohibiting the testing of nuclear weapons, inter alia, in outer space, on August 5, and the adoption of Res 1884 (XVIII) in the General Assembly on October 17, 1963,20 that created a favourable precondition for further steps and made a compromise on the substance of the declaration finally possible.21 A new draft declaration of legal principles in form of a working paper was introduced by the chairman of the Legal Subcommittee, Manfred Lachs. The former contentious issues between the United States and the Soviet Union could be resolved in a manner that was acceptable for both sides : the discrepancy concerning the prohibition of war and similar propaganda, proposed by the Soviet Union and opposed by the United 14 Report of the Committee on the Peaceful Uses of Outer Space, A/5181. 15 Draft Declaration of Basic Principles Governing the Activities of States Pertaining to the Exploration and Use of Outer Space, A/C.1/879. 16 Draft Declaration of Principles Relating to the Exploration and Use of Outer Space, A/C.1/881. 17 Christol, supra fn 9, 320. 18 Cheng, supra fn 2, 27. 19 Karl Zemanek, The United Nations and the Law of Outer Space, 19 The Year Book of World Affairs (1965) 199, 205. 20 Res 1884 (XVIII) of 17 October 1963. The resolution calls upon all States ‘to refrain from placing in orbit round the Earth any objects carrying nuclear weapons or any other weapons of mass destruction, installing such weapons on celestial bodies, or stationing such weapons in outer space in any other manner’. 21 F.B. Schick, Problems of a Space Law in the United Nations, 13 The International and Comparative Law Quarterly (1964) 969, 970 ; Cheng, supra fn 2, 28 ; Zemanek, supra fn 19, 206.

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States, could be resolved by the inclusion of a statement in the preamble to recall Resolution 110 (II) of November 3, 1947, condemning propaganda designed or likely to provoke or encourage any threat to peace, breach of peace, or act of aggression, and to declare this resolution applicable to outer space. The question concerning activities not carried out by States, a possibility that the Soviet Union strictly rejected, was resolved by stating the State’s responsibility for national activities in outer space, be they carried out by governmental agencies or non-governmental entities (Principle 5). The intended veto against each other’s outer space activities was resolved in Principle 6 that provides that a State having reason to believe that an outer space activity or experiment planned by it or its nationals would cause potentially harmful interference with the activities of other States shall undertake international consultations before proceeding with any such activity or experiment.22 The Legal Subcommittee discussed the draft declaration ‘[i]n a hastily convened meeting of the Outer Space Committee’, where a new Draft Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space was introduced in a working paper.23 The Committee then decided unanimously to submit the draft to the General Assembly as a proposal of the whole Committee.24 The text was incorporated in Resolution 1962 (XVIII) and approved unanimously by the General Assembly on December 13, 1963. Soon, the question as to the legal authority of the declaration arose, that F. B. Schick formulated as follows : ‘Is the space jurist justified in considering the latest resolution on outer space as the first chapter in the book of a nascent space law or does this “Declaration of legal principles” passed by the General Assembly constitute hardly more than the political and moral introduction to a book on aerospace law yet to be written ?’25

22 James Simsarian, Outer Space Cooperation in the United Nations in 1963, 58 American Journal of International Law (1964) 717, 719–720. 23 Zemanek, supra fn 19, 206. 24 Ibid. 25 Schick, supra fn 21, 969.

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III. The question as regards the legal nature of the ‘Declaration of legal principles’ 1. The legal nature of General Assembly resolutions — general remarks A lot has been written about General Assembly resolution’s legal nature in a general, as well as in the specific context of outer space. As a matter of principle, it is recognised that resolutions are mere recommendations that lack a legally binding force.26 Even the fact that a resolution has been adopted unanimously does not change its non-binding character.27 A special place amongst resolutions had been attributed to resolutions named ‘declarations’, as the memorandum of the Department of Legal Affairs of the United Nations Secretariat stated : ‘A “declaration” or a “recommendation” is adopted by a resolution of a United Nations organ. As such it cannot be made binding upon Member States, in the sense that a treaty or a convention is binding upon parties to it, purely by the device of terming it a ‘declaration’ rather than a “recommendation” […] However, in view of the greater solemnity and significance of the word ‘declaration’ it may be considered to import, on behalf of the organ adopting it, a strong expectation that Members of the international community will abide by it. Consequently […] a declaration may by custom become recognized as laying down rules binding upon States.’28

The same Department, however, pointed out that ‘there is legally no distinction between a declaration and a recommendation which is less formal’.29 Nevertheless, it has been emphasised that ‘the fact that a resolution of the United Nations has not the same effect of a Treaty does not mean that the prin26 Malcolm N. Shaw, International Law (6th ed., Cambridge University Press, Cambridge 2008) 114, 1212 ; Dmitrieva and Lukashuk, supra fn 8, 239 ; Terekhov, supra fn 8, 98 ; Christian Tomuschat, Die Charta der wirtschaftlichen Rechte und Pflichten der Staaten — Zur Gestaltungskraft von Deklarationen der UN-Generalversammlung, 36 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1976) 444–490, 465 ; see also Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 71. 27 See for instance Cheng, supra fn 2, 34 : ‘Legally and constitutionally, no special virtue attaches to an unanimous vote’. 28 Memorandum of the United Nations Office of Legal Affairs on the Use of the Terms ‘Declaration and Recommendation’, E/CN.4/L.610 (02.04.1962) 1 et seq. 29 United Nations Yearbook 1981, 149.

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ciples laid down in such a resolution are therefore not legally binding’.30 Rather, a resolution that ‘purports to be declaratory of law […] carries great weight’, 31 which is especially true if it was adopted unanimously. Thus, when analysing the legal value of a concrete resolution, several factors have to be taken into account. The voting behaviour and the intentions of the involved actors may be a strong indicator for the legal nature attributed to the principal provisions contained in the resolution. The formulation of the norms is of utmost importance, e.g. whether they are formulated in general terms or in a specific, treaty-related manner, as well as whether they confirm already existing practice or establish new norms of behaviour or stipulate only the States’ willingness for cooperation.32 2. Res 1721 — The first ‘step’ for the establishment of a legal regime for outer space The question as regards the legal character of resolutions was already raised in connection with the declaration’s resolution-predecessor, Res 1721 (XVI).33 This is of some importance given the fact that its Section A was further elaborated in part 1 of the ‘Declaration of legal principles’.34 In Res 1721, two fundamental principles of the law of outer space were laid down : the applicability of international law and the principle of non-appropriation of outer space. Furthermore, it invited UNCOPUOS to study possible legal problems arising in the context of space exploration, and provided guidelines for the development of international cooperation.35 During the discussions on the draft proposal of the resolution, the delegates considered the impact of a declaration of legal principles upon the whole regime of outer space.36 The outcome of these discussions was the wish to establish the legal regime for outer space ‘step by step’.37 Whereas a comprehensive code of 30 Ogunbanwo, supra fn 7, 11. 31 Philip C. Jessup and Howard J. Taubenfeld, Control for Outer Space and the Antarctic analogy (Columbia University Press, New York 1959) 275. 32 Vladimir Kopal, The Role of United Nations Declarations of Principles in the Progressive Development of Space Law, 16 Journal of Space Law (1988) 5, 20. 33 GA Res 1721 (XVI) of 20 December 1961. 34 Simsarian, supra fn 22, 719. 35 Kopal, supra fn 3, 1. 36 Christol, supra fn 9, 315. 37 Kopal, supra fn 3, 6 : ‘[…] the idea of a single international convention on outer space […] was

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law for outer space seemed ‘not yet practicable or desirable’ at that moment, it was acknowledged that ‘certain broad legal principles could be laid down and should be regarded as injunctions of great weight and as useful steps toward such a legal regime’.38 Correspondingly, Res 1721 (XVI) only ‘commends to States for their guidance’, and thus doesn’t seem to have any ‘pretension of being binding’.39 However, as Cheng pointed out, the States’ perception was far from uniform : whereas some States referred to Res 1721 as a recommendation or abstained from any pronouncement concerning its legal status, namely the United States and the Soviet Union treated the resolution as binding, because of its unanimous adoption by the General Assembly, and because they considered parts of it to be declaratory of international law.40 Latter opinion was supported by several delegates that stated that the principles set forth in the proposed draft resolution had already been generally accepted by the States.41 As Christol pointed out, by September 1962 the delegates had recognised that Res 1721 ‘had set forth legal principles’ and appreciated them as ‘additional and clarifying principles’.42 When the ‘Declaration of legal principles’ was discussed and finally adopted, the question as to its legal value was raised again. The opinions expressed by State representatives and writers in this regard diverged from the very beginning, as will be outlined in the following.

38 39 40 41

42

replaced by attempting at a progressive development of the law of outer space through a number of legal instruments dealing with the most urgent problems of space activities’ ; see also the discussion’s summing up by Sir Patrick Dean of the United Kingdom, UN Doc. A/6.1/ SR/1210, 249. Ibid. Cheng, supra fn 2, 25. Ibid. So the Australian delegate UN. Doc/ A/C.1/SR.1211, 252 ; the Italian delegate Ibid 253 ; the Peruvian delegate Ibid 254, the Polish delegate Ibid 255 ; the Swedish delegate UN Doc. A/C.1/SR. 1212, 259. The Spanish delegate noted that the second paragraph of part A of the draft reflected existing law in that no country had objected to the orbiting of space vehicles over its territory, see UN Doc.A/C.1/SR.1213, 264 ; the same remark was made by the Iranian delegate who also emphasised that no State had objected to the free orbiting of satellites, and stated that the failure of any state to protest seemed to be a tacit acknowledgment that ‘territorial sovereignty did not extend beyond air space’. Christol, supra fn 9, 220.

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3. Legal value of the ‘Declaration of legal principles’ 3.1 State representatives’ opinions during the sessions of the Legal Subcommittee During the discussions surrounding the adoption of the ‘Declaration of legal principles’, a number of delegates pointed out the advantages of resolutions over formal agreements arguing that the stage of development in space law did not yet facilitate the adoption of a convention.43 The adoption of a resolution enshrining general principles was seen as an important step towards the further codification of space law. The practical use of resolutions was noted by the representative of the United Kingdom at the meeting of the Legal Subcommittee on 17 April 1963, where she pointed out that a unanimous resolution of the General Assembly ‘would be the most authoritative and would have some advantages over an agreement in view of the possibility that all States might not accede to an agreement or that delays in ratification or failure to ratify might considerably reduce its scope’.44 From the delegates’ statements it can be deduced that they regarded the ‘Declaration of legal principles’ as more than a mere General Assembly resolution and wanted to endow it with a certain authority from the very beginning. Delegates from several States expressed the view that a solemn declaration by the General Assembly would possess greater authority than an ‘ordinary’ resolution : for instance, the delegate of the Soviet Union asserted that ‘if Governments really intended to observe certain principles of conduct in outer space, they would want to see those principles laid down in a declaration having the full force of an international treaty’.45 The delegate of Lebanon urged in April 1963, that there was the need of a space declaration having the same authority as the Universal Declaration of Human Rights, the acceptance of which would lead to a convention or covenant containing basic principles.46 And the Indian delegate even remarked that ‘[a] declaration had a great moral force and, when adopted unanimously, was generally accepted as part of international law’.47 A similar statement was made by the Australian delegate, who recognised that ‘a declaration universally adopted and adhered to in practice may be valuable evidence of international custom, and hence a most important source of law’.48 43 44 45 46 47 48

For examples see ibid., 222. UN Doc. A/AC.105/PV.2, 33–35. UN Doc. A/AC.105/C.2/SR. 17,4. UN Doc. A/AC.105/C.2/SR.21, 10. UN Doc. A/AC.105/C.2/SR 22, 10. UN Doc. A/C.1/PV.1298, 12–13.

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US ambassador Stevenson, too, made a statement concerning the character and status of legal principles, where he emphasised that the legal principles ‘reflected international law as it is accepted by the Members of the United Nations’, assured that the United States intended to respect them and expressed his hope that ‘the conduct which the resolution commends to nations in the exploration of outer space will become the practice of all nations’.49 Stating that ‘[i]nternational agreements were not […] the only source of law’, he underlined that ‘[w]hen a General Assembly resolution proclaimed principles of international law — as resolution 1721 (XVI) had done — and was adopted unanimously, it represented the law as generally accepted in the international community’.50 As Christol emphasises, many other official assessments have been made as to the legal status of United Nations General Assembly resolutions applicable to space law. All of them support the view that such resolutions constitute authoritative prescriptions of a legal regime for outer space.51 Resolution 1962 (XVIII) finally was labelled ‘Declaration’, which is a strong indicator that the intention of the involved actors was to accord it with a special value and regard it as more than a mere General Assembly resolution. They wanted to attribute to the ‘Declaration of legal principles’ an authority that went beyond the value usually accorded to resolutions of the General Assembly and to observe the rules contained in the Declaration.52 In view of the weight generally attributed to ‘Declarations’, as well as the delegates’ statements prior to the adoption of this important document, one tends to agree with Manfred Lachs, the then chairman of the Legal Subcommittee, who at the time of the adoption of the Declaration concluded that ‘it is difficult to regard the 1963 Declaration as a mere recommendation : it was an instrument which has been accepted as law’.53 One year later, he wrote that almost all members of the United Nations attached to the Declaration ‘an importance, similar to that resulting from a legally binding instrument assimilating it, as it were, to the latter’.54 49 50 51 52 53

A/C.1/PV.1342, 12. UN Doc. A/AC.105/C.2/SR. 20,11. Christol, supra fn 9, 317. Ogunbanwo, supra fn 7, 20. Manfred Lachs, The Law of Outer Space. An Experience in Contemporary Law-Making (Sijthoff, Leiden 1972) 138. 54 Manfred Lachs, The International Law of Outer Space, 113 Recueil de Cours (1964-III), 1, 98.

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3.2 Scholarly views In the doctrine, some writers acknowledged a special authority of the ‘Declaration of legal principles’, whereas others rejected such an authority. For instance, the statements of the United States delegation and the statement of other government representatives, that the Declaration reflected international law as it is accepted by the members of the United Nations were criticised by F.B. Schick, who argued that members of the United Nations could not be bound by the Declaration more than by any other General Assembly resolution.55 For Schick, the Declaration was not more than a ‘medium providing a political framework of general principles and specific issues which will have to be elaborated […]’.56 Bin Cheng came to the same result and emphasised that to the extent to which the Resolution 1962 was not restating existing rules of international law it merely expressed ‘non binding standards of international law governing the activities of States in the exploration of outer space’.57 However, the opinions strongly rejecting any binding authority of the Declaration and the principles contained therein were counterbalanced by other writers, who attributed a certain legal value to Resolution 1962 and its content. Some authors expressed the view that only some of the principles contained in the ‘Declaration’ could be regarded as legally binding. Goedhius, for instance, pointed out that the ‘benefit of all mankind’ principle, contained in para. 1, as well as the principles of freedom of exploration and use by all States and of nonappropriation by claim of sovereignty, enshrined in paras. 2 and 3, formed part of positive international law : ‘[…] as regards the two basic principles laid down in the Declaration […], it cannot be said that only the Space Powers are in agreement as to the binding character of these principles. The common interest of all States in the free exploration and use of outer space and celestial bodies had become so widely self-evident that, as has been said, no State contradicted the need for this freedom by any inconsistent practice or any other manifestations of “opinio juris” […] the vast majority

55 Schick, supra fn 21, 972. 56 Ibid. 973. 57 Cheng, supra fn 2, 40. The author leaves it unanswered whether some of the principles were restating recognised international law.

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consider the two basic principles of Declaration 1962 as forming part of positive international law […]’.58

To support his opinion, Goedhius referred to the resolution of the ‘Institut de Droit International’ on the Legal Regime of Outer Space59 adopted before the ‘Declaration of legal principles’ in September 1963 that had acknowledged the validity of the non-appropriation principle and the principle of free exploration for peaceful purposes and therefore implied the recognition of the principle of freedom as a rule of positive law by the members.60 However, Goedhius rejected the existence of a consensus on the binding character of all the other principles, referring to the general cautious attitude of the States.61 The legal authority of the Declaration as regards some of the principles contained was further recognised by Jasentuliyana who emphasised that the Declaration did reflect a certain international understanding of the principles which ought to govern the exploration and use of outer space and celestial bodies and provided evidence of the customary international law in that regard.62 He showed that general consensus had been obtained among the nations involved in space exploration that outer space and celestial bodies should be governed by the principles of international law and should be free for peaceful exploration and use without being subject to claims of national sovereignty.63 Apart from the writers mentioned who acknowledged some principles as forming already part of international law, but rejected the binding force of others, there have been voices emphasising the legal value of the declaration as a whole.64 Zemanek, in his article ‘The United Nations and the Law of Outer Space’, 65 argued that the general rule that declarations may only pass recommendations 58 Daniel Goedhius, Reflections on the Evolution of Space Law, 13 Netherlands International Law Review (1966) 109, 115–116. 59 Resolution on the Legal Regime of Outer Space, adopted unanimously on September 11th 1963, English translation in : C.Wilfried Jenks, Space Law (Stevens & Sons, London 1965) 416. 60 Goedhius, supra fn 58, 114. 61 Ibid. 118 et seq. 62 Nandasiri Jasentulyiana and Roy S.K. Lee, Manual in Space Law, Vol I (Oceana Publications, Sijthoff &. Noordhoff, New York et al. 1979) 5f. 63 Ibid. 6. 64 Goedhius, supra fn 58, 120 with further reference. 65 Zemanek, supra fn 19, 199–222.

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lacking any binding force might be questioned as regards the ‘Declaration of legal principles’.66 He pointed out that although the language used in the two resolutions 1721 (XVI) and 1962 (XVIII) did not express legal obligations, this did not allow States to ignore the principles contained. In his opinion, the legal force of the principles did not emanate from their form (i.e. resolution of the General Assembly), but rather from the fact that they could be regarded as general principles of law according to Art 38 (1) lit c ICJ Statute,67 recognised by the international society at large.68 Zemanek admitted that in view of the State’s restricted choice either to accept or reject the resolutions as a whole, it was possible that the unanimous adoption as such did not necessarily prove that all States had endorsed all the principles.69 He conceded that ‘principles of law’ could only be a source of international law when they are an expression of the universal legal conscience. This legal conscience could be shaken by subsequent protests, habitual non-observance, different stipulations in subsequent conventions, or a divergent evolution of customary rules of international law. Nevertheless, as long as such acts were not forthcoming, the unanimous adoption created a strong legal presumption that such an universal conscience existed. Zemanek tended to support the opinion that the principles set out in Resolutions 1721 (XVI) and 1962 (XVIII) should be treated as general principles of law recognised by civilised nations, and concluded that States were not free to ignore them.70 The opinion that the principles should be treated as binding was shared by Ogunbanwo, who concluded ‘that when a General Assembly resolution proclaimed the principles of international law as resolution 1962 (XVIII) has done — and was adopted unanimously, it represented the law as generally accepted in the International Community’,71 as well as by Schachter, to whom it seemed that declarations adopted with general approval by the United Nations General Assembly which purported to set in terms of legal authority standards of conduct 66 Ibid. 208. 67 Art 38 (1) lit c : ‘The Court […] shall apply […] the general principles of law recognized by civilized nations’. 68 Zemanek, supra fn 19, 208 ; Zemanek admits that Art 38 (1) lit c ICJ Statute had been interpreted in the sense that it refers only to principles of municipial law present in the major legal systems of the world but sees no reason for interpreting the norm in this narrow way. 69 In fact, a significant number of delegations wanted reservations to be added to one or another principle. It was then decided to make the record of the relevant proceedings an integral part of the report ; see A/5549/Add.1, Annex. 70 Zemanek, supra fn 19, 210. 71 Ogunbanwo, supra fn 7, 18.

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for States, could be regarded as expression of ‘law’. Although he admitted the need to link general principles to a procedure for their further specification and implementation in order to specify the obligations, he recognised the ‘law’ as authoritative for governments and peoples throughout the world.72 Sauveplanne too submitted that the principles laid down in the Declaration were ‘to a large extent existing principles of law’.73 More recently, Andrei Terekhov came to the same result, basing his argumentation on the Declaration’s unanimous adoption, the intention and strong expectation of the General Assembly that members of the international community would abide by it, the subsequent confirmation of all of its substantive provisions in the Outer Space Treaty, as well as the practice of States that acted in accordance with it.74 According to Terekhov, those circumstances provided evidence that most of the principles contained in the Declaration were acquiring or already had acquired the character of customary international law.75 Kopal accorded General Assembly resolutions concerning questions of space activities a special place : due to the fact that they declared general rules of conduct, addressing all States, they had political meaning and moral weight, and represented important tools in the process of evolving international law.76 He underlined that the resolutions ‘express a legal conviction of all members of the world organization, or an overwhelming majority thereof ’.77

IV. Conclusions The analysis of the opinions expressed by delegates during the sessions of the Legal Subcommittee as well as by writers addressing this issue shows that the adoption of the ‘Declaration of Legal Principles Governing the Activities of States in the Exploration of Outer Space’ was largely accompanied by the conviction that it should be 72 Oscar Schachter, The Prospects for a Regime in Outer Space and International Organization, in : Maxwell Cohen (ed.), Law and Politics in Space : specific and urgent problems in the law of outer space (McGill University Press, Montreal 1964) 95, 98–99. 73 Jean Georges Sauveplanne, Freedom and Sovereignty in Air- and Outer Space, 12 Netherlands International Law Review (1965) 228, 234. 74 Terekhov, supra fn 8, 99. 75 Ibid. 76 Kopal, supra fn 32, 19. 77 Ibid.

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more than a mere recommendation in form of a non-legally binding General Assembly resolution. The Declaration rather reflected a general understanding which principles ought to govern the exploration and use of outer space and celestial bodies on the basis of a general consensus among the nations involved.78 The majority of the actors wanted to attribute the Declaration a certain legal authority and expressed the intention ‘to respect the principles’ contained.79 Writers recognised — although to different extent — that the Declaration was authoritative and could be relied upon as the basis of legal rights and duties.80 The fact that the States urged the further elaboration of a binding treaty is not an argument against the legal validity of the Declaration. As Zemanek pointed out, the principles enshrined are not directly applicable, but are abstractions that had to be implemented by norms of contractual or customary international law.81 They traced the lines along which the law of outer space, be it through elaboration of formal conventions or through customary international law, was to develop. According to Zemanek, their real importance was paving the way for the future development of space law.82 Today, the question regarding the legal value of the ‘Declaration of legal principles’ seems to have lost much of its relevance due to the adoption of the Outer Space Treaty in 196783 that had transformed the principles of the 1963 Declaration into a formal treaty. Nevertheless, the Declaration still remains relevant with regard to those States that did not become parties to the treaty.84 Even if all essential principles of a resolution are incorporated into a treaty concluded, there still remains some place for the resolution, especially in relation to non-parties to the treaty. Non-compliance with a principle contained in the ‘Declaration of legal principles’ would, in such case, be seen as a violation of universally recognised international law.85 78 In this sense Paul G. Dembling and Daniel M. Arons, The Evolution of the Outer Space Treaty, 33 Journal of Air Law and Commerce (1967) 419, 425. 79 John Cobb Cooper, Aerospace Law : Progress in the U.N., 2 Astronautics and Aeronautics (1964) 44. 80 See for many Christol, supra fn 9, 220. 81 Zemanek, supra fn 19, 210. 82 Ibid. 83 Ogunbanwo, supra fn 7, 21. 84 As of 5th August 2011, 100 States are Parties to the Outer Space Treaty, 26 have signed but not yet completed the ratification process, and 60 are not Parties. Related to these States, the ‘Declaration of Principles’ still could be relevant. 85 Kopal, supra fn 32, 19 et seq ; Terekhov, supra fn 8, 99.

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Finally, the ‘Declaration of legal principles’ serves as an excellent example of how a United Nations General Assembly resolution can be the starting point for the elaboration of formal agreements and promote the evolution of international law. The input resolution 1962 (XVIII) had on the subsequent development that lead to the adoption of the United Nations space law treaties is still noticeable today. This could serve as an encouragement for using General Assembly resolutions for addressing urgent contemporary issues in need of regulation.

Franz Koppensteiner

The 1982 UN Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting I. Introduction The article gives a brief historic overview of the attempts to regulate direct broadcasting by satellites (Part I), examines the content and legal nature of UN Resolution 37/92 (Part II) and discusses merits and shortcomings of the principles contained in it (Part III). The author concludes that UN Resolution 37/92 seems to underestimate the concept of free flow of information, while it overemphasises the role of the State in the control of broadcasting signals on its territory. Existing principles will therefore need a reformulation in the future, preferably in the direction of favouring the freedom of broadcasting to better meet the requirements of today’s globalised world, on the one hand, and a specification of the limitations, on the other hand. On 4 October 1957 the first artificial earth satellite Sputnik was launched into space. For more than 20 days Sputnik sent a continuous beep signal across the globe, which was observed by many amateur radio operators. 1 This was without any doubt a historic moment, which is recognised all around the globe since it initiated the space race. 25 years later i.e. in 1982 — this corresponds to the year of the adoption of the UN Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (hereinafter : UN Resolution 37/92)2 — the launch of Sputnik would have provoked many legal issues : Is the emission of a continuous beep signal comparable to a radio or TV broadcast ? Is the beep signal a hidden form of propaganda ? Does the beep signal endanger the sovereignty of other States ? Is there a need for a prior-consent requirement ? 1 Sharon L. Fjordbak, The International Direct Broadcast Satellite Controversy, 55 Journal of Air Law and Commerce (1989–1990) 903, 903. 2 GA Res 37/92 of 10 December 1982.

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These and similar questions, revolving around UN Resolution 37/92, will be answered in this article. It first gives a brief historic overview of the attempts to regulate direct broadcasting by satellites. It will then examine the main principles and the legal nature of UN Resolution 37/92. Finally, merits and shortcomings of UN Resolution 37/92 will be discussed.

II. Historical overview As early as in 1961, President Kennedy noted the need for a common regulation in the field of direct broadcasting by satellites : ‘We shall propose finally, a global system of communications satellites linking the whole world in telegraph and telephone and radio and television’.3 Only ten years later, the first technical regulatory framework was set up at the World Administrative Radio Conference (hereinafter : WARC 1971).4 Subsequently, a Declaration on the Use of Satellite Broadcasting was adopted at the Seventeenth General Conference of UNESCO in Paris.5 In parallel, a few States — such as the USSR, the USA, Sweden and Canada — drafted conventions, which were intended to provide basic guidelines in respect of the use of direct television broadcasting.6 These regulations, declarations and drafts might be seen as small but important steps towards the adoption of UN Resolution 37/92. 1. Technical restrictions of International Direct Television Broadcasting (Radio Regulation 428A) At the WARC 1971, two main objectives were pursued : on the one hand, the minimisation of the spillover problem7 and, on the other, the coordination of 3 Eilene Galloway, Direct Broadcast Satellites and Space Law, 3 Journal of Space Law (1975) 3, 6 (emphasis added). 4 Joel R. Paul, Images From Abroad : Making Direct Broadcasting by Satellites Safe for Sovereignty, 9 Hastings International and Comparative Law Review (1985) 329, 352. 5 United Nations Educational, Scientific and Cultural Organization´s Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange of 15 November 1972, available at http :// unesdoc,unesco.org/images./0000/000021/002136eb.pdf (05/08/2011). 6 For more information on these drafts see Peter Malanczuk, Das Satellitendirektfernsehen und die Vereinten Nationen, 44 ZaöRV (1984) 257, 263 et seq. 7 Fjordbak, supra fn 1, 912 : ‘Spillover occurs when a country cannot physically radiate to its

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(radio) frequencies through registration.8 Among the technical rules set up at this conference, Radio Regulation 428A9 deserves special attention. The regulation provides that : ‘In devising the characteristics of a space station in the broadcasting-satellite service, all technical means available shall be used to reduce, to the maximum extent practicable, the radiation over the territory of other countries unless an agreement has been previously reached with such countries.’10

In other words, Radio Regulation 428A is designed to minimise spillover, unless an agreement is established with the receiving State. At first glance, the wording of the regulation seems to be rather clear. It looks as if direct satellite broadcast across the border is only permissible under special circumstances. However, put into practice the regulation raises many questions. As a matter of fact, it is not clear whether broadcasting across the border without any agreement is explicitly prohibited. Furthermore, one may wonder what happens if no agreement is reached. Indeed, in the case of the violation of the priorconsent requirement, there is no apparent sanction against the broadcaster.11 Also the nature of the agreement which shall be reached among the countries is ambiguous : as a practical matter, it is unclear whether the receiving country has additional rights to object once an arrangement has been made.12 For example, it is easily conceivable that the receiving country attaches conditions to its consent which would allow an indirect participation in programming. In this case, Regulation 428A could no longer be seen as a mere technical guideline, since it would influence the content of the programme. Further questions arise in respect of spillover effects. Regulation 428A stipulates that ‘all technical means available shall be used’ to reduce radiation over foreign States. However, there is no specification of the word ‘available’. Does the term refer to the level of techni-

8 9

10 11 12

own territory without broadcasting into a neighbouring country. The beam of a (Direct Broadcast Satellite) is conical in shape with a gradual fall-off from the core point of maximum strength.’ Paul, supra fn 4, 338. Final Acts of the World Administrative Radio Conference for Space Telecommunications, International Telecommunication Union, Radio Regulations No. 428A (1971), available at http ://www.itu.int/dms_pub/itu-s/oth/02/01/S020100394002PDFE.pdf (06/08/11). Reprinted in Paul, supra fn 4, 353. Paul, supra fn 4, 359. Fjordbak, supra fn 1, 920.

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cal development or to the affordability of technical means ? In summary, despite the clear wording of Regulation 428a many issues linked with it still have not been resolved. 2. The UNESCO Declaration on the Use of Satellite Broadcasting Shortly after the WARC 1971, the UNESCO Declaration on the Use of Satellite Broadcasting (hereinafter : the Declaration) was adopted in Paris in 1972.13 The main goal of the Declaration was to set up non-binding principles on the use of satellite broadcasting, which should be used as a basis for further negotiations. According to Art. IX of the Declaration ‘it is necessary that States taking into account the principle of freedom of information reach or promote prior agreements concerning direct satellite broadcasting to the population of countries other than the country of origin of the transmission.’ Art. IX implies a priorconsent requirement which is — similar to Radio Regulation 428A — extremely ambiguous. First of all, the provision does not specify with which country the broadcaster has to reach an agreement : this could be either the country affected by satellite radiation or any other country that raises objections to the broadcast material in general.14 Second, Art. IX does not specify whether the broadcaster has a right to broadcast without an agreement being reached. Nor does it say anything about the time when consultations must occur.15 Third, Art. IX para. 2 stipulates that ‘[w]ith respect to commercial advertising, its transmission shall be subject to specific agreement between the originating and receiving countries’.16 By argumentum a contrario one may conclude, that with respect to non-commercial material no agreement ought to be reached. In contrast to Art. IX, other provisions of the Declaration seem to neglect the prior-consent requirement. Art. V provides, e.g., that the ‘objective of satellite broadcasting for the free flow of information is to ensure the widest possible dissemination […] of news of all countries […]. Satellite broadcasting […] requires that every effort be made to ensure the factual accuracy of the information reaching the public.’ It is noteworthy that the provision does not mention at any point a right (of the receiving country) to control content. Art. VI goes in a 13 14 15 16

UNESCO Declaration, supra fn 5. Fjordbak, supra fn 1, 921. Paul, supra fn 4, 359. Ibid., 360.

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similar direction since it affirms that ‘greater contact and mutual understanding between peoples’ should be fostered ‘by permitting audiences to enjoy, on an unprecedented scale, programmes on each other’s social and cultural life including artistic performances and sporting and other events.’ The omission of a right to control content leaves the impression that the prior-consent requirement provided in Art. IX does not go as far as to give the receiving country a possibility to participate in programming decisions.17 From the above one may conclude that in the Declaration an attempt has been made to reconcile two opposing views — i.e. the prior-consent requirement and the concept of free flow of information — in a single political declaration, while accepting resulting discrepancies. 3. Background of General Assembly Resolution 37/92 (pre-drafts) At UN level, there have been numerous attempts to set up guidelines for direct broadcasting by satellites. The USSR was one of the first States to submit a draft convention on the use of artificial earth satellites for direct television broadcasting in 1972.18 The main principles of the proposal can be resumed as follows. First, cross-border broadcasts by satellite shall be carried out only with the express consent of the receiving State. Secondly, radio and television broadcasts by satellite that include ‘propaganda in favor of war, militarism, Nazism, national and racial hatred’19 shall be deemed as illegal. Finally, every State ‘shall bear international responsibility for all national activities connected with the use of artificial earth satellites for the purposes of direct television broadcasting.’20 In other words, the 1972 Soviet draft convention stipulates a prior-consent requirement, it enables States to control the content of programming and it emphasises the responsibility of the broadcasting State for any broadcasting activity regardless of whether a governmental or an independent private body carries it out. The Soviet draft even goes to such lengths as to permit any State ‘to employ the means at its disposal to counteract illegal television broadcasting of which it is the object, not only in its own territory but also in outer space and other 17 Ibid. 18 Draft International Convention proposed by the Soviet Union on Principles Governing the Use by States of Artificial Earth Satellites for Direct Television Broadcasting, UN Doc. A/8771 (1972), reprinted in UN Doc. A/AC.105/117, Annex III, available at http ://www.jstor.org/ pss/20691013 (06/08/11). 19 Ibid., Art. V. 20 Ibid., Art. VII.

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areas beyond the limits of the national jurisdiction of any State.’ 21 Taken literally, this provision would legitimise ‘jamming’ by the receiving State or even justify the destruction of ‘offending’ satellites. 22 In short, the Soviet proposal grants full State control over satellite broadcasting, leaving little room for free flow of information. This being said it is rather surprising that the UN General Assembly adopted the Soviet draft in the form of a resolution with only minor amendments.23 In opposition to the Soviet proposal for a convention, the United States elaborated a set of ‘Draft Principles on Direct Broadcast Satellites’, which focuses on the concept of free flow of information.24 According to the first of the eleven US draft principles, ‘international direct television broadcasting by satellites should be conducted in accordance with international law, the United Nations Charter, the Treaty on Outer Space, the Universal Declaration of Human Rights and the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States’. The fourth and the fifth principle of the draft provide encouragement for the ‘free and open exchange of ideas and information’, and that, generally, ‘every State is entitled to send and receive broadcasts and to share in benefits’. If a disagreement arises between the broadcasting and the receiving State, both States should seek to settle the dispute ‘through consultation and established procedures’. Notably, the US Draft gives no mention to a prior-consent requirement.25 The United States definitely rejects the priorconsent concept, since it sees in it a modern form of governmental censorship that impedes the free flow of information.26 In order to reconcile these two antagonistic views — i.e. the concepts of prior consent and free flow of information — Sweden and Canada developed a separate proposal :27 indeed, the Swedish-Canadian proposal of 1979 represents a middle position by combining elements of the Soviet and the US drafts.28 Its main purpose was to show ways out of the dead end. Consequently, the Swedish21 22 23 24 25 26 27 28

Ibid., Art. IX. Malanczuk, supra fn 6, 265. Paul, supra fn 4, 355 ; see also Part II. United States of America : Draft Principles on Direct Broadcast Satellites, UN Doc. A/AC.105/ WG.3(V) CRP.2 (1974). Paul, supra fn 4, 363. Galloway, supra fn 3, 11. UN Doc. A/AC.105/240, Annex IV (1979). Howard C. Anawalt, Direct Television Broadcasting and the Quest for Communication Equality, 5 Michigan Yearbook of International Legal Studies (1984) 361, 364.

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Canadian proposal underlines the existence of (State) responsibility for television broadcasting — this reflected a Soviet position — whereas it emphasises the importance of free flow of information. Furthermore, the proposal provides for a prior-consent requirement ; however, at the same time it obliges both the broadcasting and the receiving State to reach an agreement ‘in order to facilitate the freer and wider dissemination of information of all kinds and to encourage cooperation in the field of information and the exchange of information with other countries.’29 In short, the Swedish-Canadian proposal formed a constructive basis for further negotiations.

III. Content and legal nature of General Assembly Resolution 37/92 In 1981, Canada and Brazil conceived a draft composed of ten principles and a preamble.30 The preamble underlined the ‘unique characteristics’ of direct television broadcasting by satellite, ‘which necessitate besides relevant technical regulations also principles solely applicable in this field’. Herewith the draft intended to ensure that its adoption would have no negative prejudice on any other form of international telecommunication.31 Moreover, the preamble emphasises the importance of the concept of free flow of information. Only one year later, UN Resolution 37/92 was adopted. It is striking that the wording of its principles is almost identical to the Canadian/Brazilian draft. Yet, the resolution does not contain a preamble. The dropping of the preamble already evidences the basic strategy followed by the resolution, to emphasise the State-control of direct broadcasting by satellites to the detriment of the free flow of information. 1. Main principles UN Resolution 37/92 raised basically four items of dispute :32 The first issue concerned consultations and agreements between States. According to para. 13 of the resolution any 29 30 31 32

Ibid. UN Doc. A/AC.105/C.2/L.131 (1981). Malanczuk, supra fn 6, 274. Fjordbak, supra fn 1, 922.

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‘State which intends to establish or authorize the establishment of an international direct television broadcasting satellite service shall without delay notify the proposed receiving State or States of such intention and shall promptly enter into consultation with any of those States which so requests’.

During the negotiation of the text it was controversial whether the broadcasting State should merely be advised or rather obliged to notify its broadcasting activities before starting consultations with the receiving State. In the end, the resolution adopted a mandatory language by using the word ‘shall’ instead of ‘should’. However, many questions still remain unresolved. As a matter of fact, no mention is made about how consultations should proceed. Similarly, it is unclear whose consent the broadcasting State must obtain, since the wording of the provision is ‘so broad that virtually any affected country could request consultation at any time on any aspect of DBS (direct broadcasting by satellite).’33 Very closely linked to the first issue is the second item of dispute, the priorconsent principle. Since according to para. 1 of the resolution ‘[a]ctivities in the field of international direct television broadcasting by satellite should be carried out in a manner compatible with the sovereign rights of States, including the principle of non-intervention’, virtually no room is left to the concept of free flow of information. This has been heavily criticised by the United States and a few other developed States.34 The pertinent insistence on State sovereignty falls in line with the prior-consent principle, which is expressly formulated in para. 14 of the resolution. According to para. 14, ‘an international direct television broadcasting satellite service shall only be established’ after a notification and consultation took place and ‘on the basis of agreements and/or arrangements in conformity with the relevant instruments of the International Telecommunication Union and in accordance with these principles.’ The third issue concerned the question of State responsibility. Pursuant to para. 8 of the resolution, ‘States should bear international responsibility for activities in the field of international direct television broadcasting by satellite carried out by them or under their jurisdiction and for the conformity of any such activities with the principles set forth in this document.’ 33 Paul, supra fn 4, 362. 34 Galloway, supra fn 3, 12.

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In contrast to para. 13, a non-mandatory language — reflected by employing the word ‘should’ instead of ‘shall’ — is used in para. 8. Anyway, coupled with the prior-consent principle, para. 8 achieves a very high degree of State control, which could even be ‘interpreted as implying a responsibility on the part of Governments for the content of programmes.’35 Thus some developed States — particularly Canada and Sweden — feared that State responsibility would replace free flow of information by governmental censorship. The last point of dispute concerned the relationship between the resolution and international law. Contrary to many other countries, the United States advocated the application of international law to direct broadcasting by satellite (hereinafter : DBS) regulations.36 The reason was that, according to the US position, ‘DBS was already sufficiently regulated by general international law.’37 Thus a provision as, e.g., Art. VI of the Outer Space Treaty, which stipulates international responsibility for national activities in outer space should be sufficient and could easily replace para. 8 of the resolution. The same is true for the prior-consent principle which could be substituted by international radio regulations such as, e.g., Radio Regulation 428A. Despite the strong opposition of other States, a provision following the US position was incorporated in para. 4 of the resolution : ‘Activities in the field of international direct television broadcasting by satellite should be conducted in accordance with international law, including the Charter of the United Nations, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, of 27 January 1967, the relevant provisions of the International Telecommunication Convention and its Radio Regulations and of international instruments relating to friendly relations and co-operation among States and to human rights.’

As the language of the provision is rather broad, it is difficult to draw out of it any concrete conclusions. Out of the four items of dispute one may derive the main principles of UN Resolution 37/92 : In short these are the prior-consent principle (with a special 35 Anawalt, supra fn 28, 367. 36 Ibid. 37 Fjordbak, supra fn 1, 924.

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focus on consultations and agreements between States) and the principle of State responsibility. These principles go in the direction of an effective State control over satellite broadcasting, while leaving little room to the concept of free flow of information.38 2. The legal nature of General Assembly Resolution 37/92 Because of the conflicting interests — especially between the United States and the USSR — no consensus could be achieved during the negotiation of Resolution 37/92.39 Socialist and developing States favoured the resolution whereas Western States, among them the United States, the United Kingdom and Germany, rejected it.40 Resolution 37/92 was finally approved on 10 December 1982 with 107 against 13 votes and 13 abstentions. This circumstance was severely criticised by scholars and governmental officials :41 some States (as e.g. Austria, Canada, Finland, Greece, Ireland and New Zealand) feared that ‘without the achievement of consensus there might be no meaningful international legal resolution’.42 Thus, the resolution was contested both because of its content and its genesis. From a legal point of view, Resolution 37/92, as a resolution adopted by the General Assembly is not binding. Nevertheless, it is noteworthy that among non binding instruments different graduations seem to exist. E.g., the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (hereinafter : 1963 Declaration), is, like Resolution 37/92, 38 The concept of free flow of information is mentioned only a few times in UN Resolution 37/92. According to para. 1 ‘Activities in the field of international direct television broadcasting by satellite should be carried out in a manner compatible […] with the right of everyone to seek, receive and impart information and ideas as enshrined in the relevant United Nations instruments (emphasis added)’ and pursuant to para. 2 ‘Such activities should promote the free dissemination and mutual exchange of information (emphasis added) and knowledge in cultural and scientific fields, assist in educational, social and economic development, particularly in the developing countries, enhance the qualities of life of all peoples and provide recreation with due respect to the political and cultural integrity of States.’ 39 Malanczuk, supra fn 6, 281. 40 A main reason for rejection was that the prior-consent principle might lead to governmental censorship and interfere with the free flow of information ; see also Part III.1.b.). 41 Vladimir Kopal, The Role of United Nations Declarations of Principles in the Progressive Development of Space Law, 16 Journal of Space Law (1988) 5, 18. 42 Anawalt, supra fn 28, 368.

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a mere resolution of the General Assembly. However, contrary to Resolution 37/92, the 1963 Declaration has been adopted as a ‘declaration’ and its principles have been declared to be ‘legal’. Furthermore, all member States supported the 1963 Declaration, whereas in the case of Resolution 37/92 no consensus was achieved. A last substantial difference arises out of the fact that the 1963 Declaration was very soon after its adoption followed by further negotiations which helped to put its principles into a legally binding instrument, the 1967 Outer Space Treaty. Hence, the 1963 Declaration has had an important legal significance. In contrast, Resolution 37/92 nearly 30 years after its adoption has not been taken up further. Possible reasons for these divergent developments will be analysed in Part III. In summary, Resolution 37/92 remains to be a non-binding instrument. It is a recommendation with no legal power, but merely political and moral weight. As such, every State that does not follow the resolution can only be held accountable on this basis. The resolution was a backlash with regard to the international free flow of information. Since it has not been supported by a significant number of countries– which is still valid today 43– one may assume that also in the future it will not become international customary law.

IV. Critical review of the principles Resolution 37/92 has often been criticised for being problematic and anachronistic. Therefore, it is necessary to make a thorough review of its merits and shortcomings. 1. Soft law because it is ‘bad’ law ? 1.1 State sovereignty The most fundamental argument used to justify the principles of prior consent and State responsibility is related to the concept of State sovereignty. States are sovereign under international law. In other words, States have the right ‘to function within a certain territory, unimpeded by any interference from the

43 Monroe E. Price, Satellite Transponders and Free Expression, 27 Cardozo Arts & Entertainment Law Journal (2009–2010) 1, 10.

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outside’.44 From this, most of the Socialist States concluded that non-regulated direct television broadcasting has a strong potential to interfere with domestic affairs. Since every sovereign State has the right to regulate the use of its airspace, it should also be able to regulate the use of airwaves and other radio signals, which operate therein.45 No State should carry out direct television broadcasting in the territory of another State, without the explicit consent of the latter.46 On closer inspection, however, this argument may easily be challenged. Airwaves and/or radio signals are not comparable to physical objects, which operate in the airspace of a specific country. It is very difficult to exactly determine the diffusion of a broadcast signal. As commentators rightfully point out, ‘radio frequencies […] cannot be […] directed to avoid the penetration of national boundaries.’47 Finally, the problem arises, if the doctrine of sovereignty would also include the right of States to jam any foreign broadcast which enters their territory. This would lead to chaos because, ‘like the original transmission itself, the jamming signal cannot be confined within a national boundary’.48 One may therefore conclude that the principle of territorial sovereignty is not easily applicable to radio or television signals. Another justification for the prior-consent principle — closely linked to the concept of State sovereignty — resulted from the fear that the cultural identity of developing countries might be eroded through Western television. The technological advances of the West concerned many developing States. They feared that the unidirectional flow of information would be detrimental to their development.49 ‘The consequences […] an increased consumerism leading to waste, reduced savings, and heightened economic dualism’50 were seen as new forms of cultural imperialism. The arguments put forward by Ecuador go in this direction : Ecuador noted that the free flow of information ‘cannot be understood as a right to saturate a captive subjacent population whose only choice would be to 44 Christine M. Schenone, Jamming the Stations : Is there an International Free Flow of Information ?, 14 California Western International Law Journal (1984) 501, 509. 45 Jamie Frederic Metzl, Rwandan Genocide and the International Law of Radio Jamming, 91 American Journal of International Law (1997) 628, 642. 46 Walter E. Spiegel, Prior Consent and the United Nations Human Rights Instrument, 5 Michigan Yearbook of International Legal Studies (1984) 379. 47 Schenone, supra fn 44, 510. 48 Ibid. 49 Lizbeth Hasse, Finding a Basis for International Communications Law : The Satellite Broadcast Example, 22 Case Western Reserve Journal of International Law (1990) 97, 108. 50 Paul, supra fn 4, 343.

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turn off the television set. Out of respect for the sovereignty of the communications media in each country a system of equitable principles has to be the response of an international community based on principles of law’.51 Nowadays, this critique seems to have decreased. One factor apparently is the fact that technological barriers have diminished. Compared to the 1980s, it is today much easier and cheaper to run a satellite television channel. Additionally, many developing States use this development also for their own benefit : as a matter of fact, satellite television channels help many migrants who have settled in Western States to keep in touch with their countries of origin. Thus, also the second argument supporting the prior consent principle — i.e. the danger of an upcoming cultural imperialism — has become less important over the last few years. 1.2 Free flow critique Since the flow of information between the developed and the developing countries is still predominantly unidirectional, the prior-consent requirement could help to rebalance it by simply reducing the flow of information from developed to less-developed countries. However, the creation of a balanced flow of information could also be achieved by an encouragement of a ‘free dissemination of information and ideas and a broader exchange of views’.52 Therefore, one might wonder if the prior-consent principle and the concept of State sovereignty are appropriate means to the concerns caused by direct satellite broadcasting with regard to the cultural integrity of developing States. Indeed, it is far from evident that the government of a receiving (developing) State is best ‘suited to decide what broadcasting poses a threat to local culture’.53 One could argue that a nonregulation of exchange of information would rather be the best warrant for the preservation and the further development of plurality in the media in all parts of the world. In addition, one should not forget that the prior-consent principle implies an indirect form of governmental censorship. This could contradict Art. 19 of the Universal Declaration of Human Rights (hereinafter : UDHR),54 according to which ‘[e]veryone has the right to freedom of opinion and expression ; this right 51 52 53 54

UN Doc. A/37/PV.100 reprinted in Malanczuk, supra fn 6, 270 (emphasis added). Spiegel, supra fn 46, 384. Ibid. GA Res 217 (III) of 10 December 1948, available at http ://www.un.org/en/documents/udhr/ (06/08/2011).

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includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’ The United States based its opposition to the prior-consent requirement primarily on this Article, as, according to its view, the prior-consent principle would violate both ‘the right of the broadcaster to impart and the right of the audience to receive information.’55 Against this view, one might argue that the UDHR is only a General Assembly resolution, and thus legally not binding. Yet, the Preamble to the UDHR declares it to be ‘a common standard of achievement for all peoples and all nations’ and its provisions have been reaffirmed in many other international agreements. The UDHR has been recognised by many States as an authoritative interpretation of human rights and sometimes it is even considered to be a codification of customary international law.56 However, Art. 19 of the UDHR does not grant an absolute right to freedom of opinion and expression. It must be read in conjunction with Art. 29 para. 2 of the UDHR, which states : ‘In the exercise of his rights and freedom, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’

A similar limitation on the right to receive information can be found in Art. 19 para. 3 of the International Covenant on Civil and Political Rights (hereinafter : ICCPR) :57 ‘3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary : 55 Spiegel, supra fn 46, 381. 56 Schenone, supra fn 44, 512. 57 GA Res 2200 (XXI) of 16 December 1966, available at http ://www2.ohchr.org/english/law/ ccpr.htm (06/05/2011) ; Art. 19 para. 1 and 2 ICCPR reads as follows : ‘1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression ; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’

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(a) For respect of the rights or reputations of others ; (b) For the protection of national security or of public order (ordre public), or of public health or morals.’58

Consequently, also in the ambit of direct television broadcasting it is necessary to keep in mind that the right to seek, to receive and to impart information is not absolute.59 Unfortunately, the wording of the limitations is very broad. This leaves States a wide margin of discretion in respect of the interpretation of the limitations. Anyway despite this margin a State is not allowed to enact legislation aimed at the destruction of any human right. This can be deduced from Art. 5 ICCPR60 and Art. 30 of the Universal Declaration, which reads as follows : ‘Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.’ In other words, a State should do everything possible to grant the respect of a human right and abstain from any interference, which causes its destruction. Interference is only acceptable, if it is provided by law, serves one of the listed purposes — as e.g. the respect of the rights or reputations of others, the protection of national security or of public order or of public health or morals — and is necessary for attaining this purpose. ‘The requirement of necessity implies that the restriction must be proportional in severity and intensity to the purpose being sought and may not become the rule.’61 As the prior-consent principle goes hand in hand with an indirect form of governmental censorship, the danger of the destruction of the freedom of opinion becomes immanent. 58 Art. 20 ICCPR provides furthermore : ‘1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’ 59 Only the prohibition of torture and slavery may be considered as being absolute human rights ; Manfred Novak, Einführung in das internationale Menschenrechtssystem (Wien-Graz 2002) 71. 60 Art. 5 ICCPR : ‘1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognised herein or at their limitation to a greater extent than is provided for in the present Covenant. 2. There shall be no restriction upon or derogation from any of the fundamental human rights recognised or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognise such rights or that it recognises them to a lesser extent.’ 61 Manfred Nowak, UN Covenant on Civil and Political Rights : CCPR Commentary — Article 19 CCPR (1993) 351.

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Apart from the international human rights regime, national constitutional law also speaks in favour of the free flow of information : as a matter of fact, in many States62 the freedom of expression, which includes the freedom to hold opinions, and to receive and impart information and ideas, is enshrined in national constitutional law.63 Here again a balance must be achieved between the core values of the freedom and possible restrictions as, e.g., ‘obscenity prohibition, restrictions on ownership of multiple organs of communication, copyright restrictions on performance and duplication, restrictions in the name of national security on the access to information, privacy, libel and defamation limitations’.64 In spite of the large number of possible restrictions an a priori State control of the media in the form of the prior-consent principle seems difficult to be reconcilable with the freedom of expression. Finally, strong support for the free flow approach can also be found in the Helsinki Accords of 1975.65 Indeed, in the Accords, which are, however, a political rather than a legal document, States agreed to ‘facilitate the freer and wide dissemination of information of all kinds, to encourage cooperation in the field of information and the exchange of information with other countries […] to promote the improvement of the dissemination of filmed and broadcast information.’66 One can infer that the Helsinki Accords encourage international broadcasting as a means to disseminate information, which implies that any obstacle to exchange of information — such as, e.g., the prior-consent requirement — should be avoided. The awareness of the importance of international broadcasting is related to the fear that State control over the exchange of information might hinder the development of new technologies. This concern was expressed by many Western States in connection with Resolution 37/92. According to their view, the prior-consent principle would severely impede development of DBS technology.67 62 E.g. in the United States, the freedom of speech is enshrined in the first amendment of the Constitution ; in Austria the freedom of expression can be derived from Art. 10 of the European Convention on Human Rights. 63 Schenone, supra fn 44, 517. 64 Hasse, supra fn 49, 99. 65 The Final Act of the Conference on Security and Cooperation in Europe of 1 August 1975 available at http ://www1.umn.edu/humanrts/osce/basics/finact75.htm (06/08/2011). 66 Rochelle B. Price, Jamming and the Law of International Communications, 5 Michigan Yearbook of International Legal Studies (1984) 391, 397. 67 Stephen Gorove, International Direct Television Broadcasting by Satellite : “Prior Consent”

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A critical review of the arguments speaking for and against Resolution 37/92 shows that the free flow of information approach is more persuasive than the concern about State sovereignty. Perhaps this is the reason why Resolution 37/92 — with its focus on State sovereignty, i.e. the prior-consent principle — has in contrast to other space law resolutions not been adopted by consensus and has not made a contribution to the creation of customary international law. Neither have there been incentives to transform it into a treaty. The UN had tried to set up a convention on the freedom of information already before. Yet, the Convention on Freedom of Information was never adopted. It remained as a draft on the UN agenda from 1962 till 1973 and was finally dropped.68 Anyway, as one commentator put it, the world is still not ready for an unconditional freedom of information.69 In other words, the freedom of information is subject to a wide range of limitations. Consequently the main task for the future will be to concretise the scope of the freedom of information as applied to direct broadcasting by satellites and to determine the nature of acceptable limitations. This could be done under the legal framework of the UN human rights instruments, in particular with regard to the application of Art. 19 ICCPR, or by special rules and principles particularly applicable to direct satellite broadcasting. The existing DBS principles, however, will probably have a rather insignificant role in this debate. 2. Soft law because it is ‘unnecessary’ law ? Taking into account the above mentioned controversies about the DBS principles, one might wonder if Resolution 37/92 is really necessary. It is striking that after the adoption of Radio Regulation 428A in 1971 and at the end of WARC 1977, the United Kingdom proposed to abandon every further attempt to regulate international DBS.70 According to the British view, the existing technical regulations were enough ; there was no need for further guidelines in the field of satellite broadcasting. Indeed, Regulation 428A already provides for a minimisation of spillover, unless an agreement has been reached with the receiving Revisted, 24 Columbia Journal for Transnational Law (1985–1986) 1, 7 ; for a statement of the US delegate indicating US concerns see UN Doc. A/SPC/37/SR.34 (1982). 68 Price, supra fn 66, 396. 69 Ram S. Jakhu, Direct Broadcasting via Satellite and a New Information Order, 8 Syracuse Journal of International Law and Commerce (1980–1981) 375, 388. 70 Carl Q. Christol, The Modern International Law of Outer Space (New York 1982) 674 et seq.

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State. Hence, the existing technical restrictions made it virtually impossible to direct satellite radiations over foreign States without having their consent.71 This implies that there has never been ever an immanent need to set up binding international rules governing the use of satellites for direct television broadcasting. It is all the more surprising that Resolution 37/92 has been adopted. With regard to the closely related field of international (terrestrial) radio and television broadcasting, no regulation similar to Resolution 37/92 has been adopted. A main reason for this is that the freedom of broadcasting via terrestrial radio and television has been generally accepted under customary international law. However, three important exceptions, which limit the freedom of broadcasting, exist.72 First, there are various technical radio regulations issued by the International Telecommunication Union (hereinafter : ITU), which have to be taken into account. Among the more prominent examples, Art. 35 of the International Telecommunication Convention (hereinafter : ITC) deserves special attention. According to Art. 35 ITC ‘[a]ll stations, whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communication of other Members or of recognized private operating agencies, or of other duly authorized operating agencies which carry on radio service, and which operate in accordance with the provisions of the Radio Regulations.’

This means ‘all [licensed] radio stations are obligated to transmit their broadcasting on frequencies which are not already in use’.73 The proper assignment of frequencies is done by the International Frequency Registration Boards (hereinafter : IFRB), which runs the Master Frequency Register. However, the IFRB has no enforcement power to settle harmful interference disputes, which arise from the multiple use of a frequency. Anyway, there seems to be no doubt that every ITU member would have the legal obligation to comply with the ITC provisions. Secondly, there is a prohibition of ‘pirate’ radio stations, which has been imposed by the European Agreement for the Prevention of Broadcasts Transmitted 71 Malanczuk, supra fn 6, 262. 72 Jakhu, supra fn 69, 385. 73 Schenone, supra fn 44, 521.

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from Stations Outside National Territories74 and Radio Regulation No. 725.75 The latter reads as follows : ‘[N]o transmitting station may be established or operated by a private person or by any enterprise without a license issued in an appropriate form and in conformity with the provisions of these regulations by the government of the country to which the station in question is subject.’ Thirdly, it has been accepted over time that there is a strong need to overcome the danger of hostile propaganda and hate speech. A first attempt to regulate cross-border propaganda was already made in 1936 with the League of Nations International Convention Concerning the Use of Broadcasting in the Cause of Peace of 1936.76 As this convention was ignored during World War II,77 the issue of defining incitement became more and more important after the war. Since the Nuremberg Trials it was clear that incitement to murder and extermination could under specific conditions78 go as far as to constitute a crime against humanity.79 As a result, a UN General Assembly resolution condemning ‘all forms of propaganda, in whatsoever country conducted, which is either designed or likely to provoke or encourage any threat to the peace, breach of the peace, or act of aggression’80 was adopted in 1947. Three years later, another resolution spe74 European Agreement for the Prevention of Broadcasts Transmitted from Stations Outside National Territories from January 20, 1965, available at http ://www.conventions.coe.int/Treaty/ en/Treaties/Word/053.doc (11/04/2011). 75 Reprinted in Jakhu, supra fn 69, 385. 76 International Convention Concerning the Use of Broadcasting in the Cause of Peace, 186 LNTS 301 (1936). The Convention provided that : ‘The High Contracting Parties mutually undertake to prohibit and, if occasion arises, to stop without delay the broadcasting within their respective territories of any transmission which to the detriment of good international understanding is of such a character as to incite the population of any territory to acts incompatible with the internal order or the security of a territory of a High Contracting Party.’ 77 Metzl, supra fn 45, 638. 78 Ibid., 637 : ‘[…] to be actionable, incitement required specificity and a direct link to the actions for which it called.’ 79 The Nuremberg Tribunal sentenced the publicist Julius Streicher to death. According to the Tribunal ‘Streicher´s incitement to murder and extermination (…) clearly constitutes persecution on political and racial grounds in connection with War Crimes, as defined by the Charter, and constitutes a Crime against Humanity.’ See Trial of the Major War Criminals before the International Military Tribunal Nuremberg (1947) 549 available at http ://www.loc.gov/ rr/frd/Military_Law/NT_major-war-criminals.html (06/08/2011). A more recent example, where radio transmissions were identified as an important component of the implementation of genocide, took place in Rwanda. 80 Measures to be taken against propaganda and the inciters of a new war, GA Res 110 (II) of 3 November 1947.

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cially dedicated to radio broadcasting was approved ; it invited ‘all governments to refrain from radio broadcasts that would mean unfair attacks or slanders against other peoples anywhere and in so doing to conform strictly to an ethical conduct in the interest of world peace by reporting facts truly and objectively’.81 It follows from the above that international (terrestrial) radio and television broadcasting is primarily based on the principle of freedom of broadcasting. This freedom ‘was accepted and is followed by States mainly because of their reciprocal transmitting capability.’82 Meanwhile, the transmitting capability has also improved in the field of DBS, since technological barriers have decreased and more and more States are able to afford international DBS technology. Contrary to DBS, only a few rules exist in the field of terrestrial radio and television broadcasting and there is no regulation comparable to Resolution 37/92. Therefore, it is even more surprising that in respect of DBS the attempt has been made to set up universal guidelines which entail a limitation of the freedom of broadcasting, i.e. the prior-consent requirement. Anyway, it would probably go too far reaching to consider Resolution 37/92 as being completely unnecessary. One has to recognise that the resolution was a first attempt to set up principles governing the use of satellites for international direct television broadcasting. The need for such principles can be evidenced by numerous examples, such as the recent case of Al Zawraa which shows how important it would be to agree on common guidelines for DBS. Al Zawraa was a satellite television channel transmitted by the Egyptian-owned Nilesat83 which broadcasted ‘a blend of […] propaganda, video clips of attacks on Coalition forces and call[ed] for violence against […] the Iraqi government.’84 Because of the lack of common international rules, it took a long time before an agreement was reached to pull the plug on the channel.85 These developments show that the idea to set up common guidelines in the field of DBS is reasonable in principle ; however, the content of such guidelines needs to be reconsidered. 81 Freedom of Information : Interference with Radio Signals, GA Res 424 (V) of 14 December 1950. 82 Jakhu, supra fn 69, 386. 83 Later on it was also transmitted via Saudi-owned Arabsat and France-based Eutelsat. For further information see also Price, supra fn 43, 20 et seq. 84 Feuilherade, Egypt Row Brews over Iraqi Sunni Channel Al-Zawraa in Nilesat, BBV Monitoring Worldwide Media, January 9, 2007. 85 Also arguments founded on the freedom of opinion and the free flow of information were brought forward to justify the continuation of the broadcasting.

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V. Conclusion UN Resolution 37/92 seems to have taken the wrong path, as it underestimates the concept of free flow of information and its importance and dynamics in the modern world. It has overemphasised the role of the State in the control of broadcasting signals on its territory. The lack of success of this soft law instrument is evidenced by the lack of consensus at its adoption in the UN General Assembly and by later State practice which has not complied with the principles. Future work will have to concentrate on a reformulation of the existing principles if there is agreement that such principles are necessary on the international level. One possible way to amend the principles would be to follow the example of international (terrestrial) radio and television broadcasting, i.e. on the one hand, a clear statement in favour of the freedom of broadcasting (and free flow on information) and, on the other, a specification of the limitations to this freedom. At least the emphasis on the free flow of information — taking into account specific limitations — in contrast to the approach followed by Resolution 37/92 with its emphasis on State sovereignty and prior consent — would clearly better meet the requirements of today’s globalised world.

Joanne Irene Gabrynowicz

The UN Principles Relating to Remote Sensing of the Earth from Outer Space and Soft Law I. Introduction Soft law to some is, at best, experimental theory. To others, it is a developing area of international law that has the potential to guide the behaviour of States that could lead to customary international law. Therefore, this chapter begins with some important caveats. It also addresses the development pattern of the Principles Relating to Remote Sensing of the Earth from Outer Space1 and includes some of the criteria identified by some commentators regarding how to determine whether an instrument can be considered to be soft law. These include common intent ; respect for the intent ; agreed legitimacy ; validity of conduct that respects soft law ; and, use of soft law principles to elaborate on hard law. Reference to the Principles in bilateral and multilateral agreements and how they elaborate on existing hard law is discussed. The principle of nondiscriminatory access is singled out as the ‘hardest’ part of remote sensing soft law. The Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disasters2 is considered as an important post-Principles activity and its possible implications for the Principles will be discussed. The chapter concludes with some thoughts that invite consideration of the evolution of international law into the long-term future. 1. Caveats This chapter contains a very narrow discussion. It does not address the concept of soft law as a whole. It addresses only a single substantive subject : the Principles Relating to Remote Sensing of the Earth from Outer Space (hereinafter re1 Principles Relating to Remote Sensing of the Earth from Outer Space, GA Res 41/65 of 3 December 1986. 2 Charter On Cooperation To Achieve The Coordinated Use Of Space Facilities In The Event Of Natural Or Technological Disasters Rev. 3 (25/4/2000), http ://www.disasterscharter.org/web/ charter/charter (07/11/2011).

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ferred to as Principles). It also only addresses one particular kind of instrument, a United Nations General Assembly Declaration of Principles. Therefore it must be noted that the United Nations Charter states : ‘The General Assembly may discuss any questions or any matters within the scope of the present Charter or […] may make recommendations […]’.3 The Charter does not say the General Assembly can make law of any kind. It must also be noted that there is considerable respected jurisprudence on the scope and application of General Assembly declarations as part of customary international law, soft or otherwise.4 However, this part of the discussion is beyond the scope of this chapter. The focus here is the set of Principles themselves and how they may be analysed within the larger subject of soft law. 2. Considering the travaux préparatoires of the Principles Relating to Remote Sensing of the Earth from Outer Space5 There are different views as to the relevance and weight that should be afforded to travaux préparatoires in considering international agreements. The Vienna Convention on the Law of Treaties allows for recourse to preparatory work.6 At least one universally recognised space law authority is of the view that preparatory work is more important for space agreements than is typical for other public international law agreements because they contain original proposals and compromises.7 Therefore, it is appropriate to consider the travaux préparatoires for the purposes of this chapter. When the travaux préparatoires are analysed, they reveal the development pattern of the Principles and the subjects that were of the most interest to the 3 Art. 10. 4 See, for example, Hiram E. Chodosh, Neither Treaty nor Custom : The Emergence of Declarative International Law, 26 Texas International Law Journal (1991) 87. 5 Some of the material regarding travaux préparatoires is also being developed by the author for another study on the Principles to be contained in the Cologne Commentary on Space Law. The author would like to thank and acknowledge the research of Mr. Eric McAdamis on this subject. Mr. McAdamis served as the author’s research assistant and was a third year law student at the time of this project. 6 Art. 32 of the Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331. 7 Prof. Vladimír Kopal, Professor of International Law West Bohemian University Pilsen, Czech Republic ; Chairman, Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space. Prof. Kopal expressed this view at the Second Authors’ Workshop of the Cologne Commentary on Space Law (CoCoSL) in Bonn, 18–20 June 2009.

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national delegations in the UNCOPUOS Legal Subcommittee. Some of the earliest primary documents date back to the early 1970s when the United States launched the first Landsat satellite in 1972. Landsat was undeniably the catalyst for the discussion of the legal aspects of remote sensing in the United Nations and for the eventual evolution of the Principles. From there, the documents reveal a ‘bell curve’ shape in the delegations’ discussions. Interest begins in the late 1970s, reaches a high point in the mid–1980s, and then takes a downturn, tapering off in the early 1990s. There is a precipitous drop in interest after 1994 and there are no documents generated after 2005. By far, the most documents were generated from 1983 to 1987. The pattern clearly follows the launch, privatisation, and attempted commercialisation of Landsat. The overwhelming amount of energy went into the individual Principles that address the generation of, and access to, data.8 Therefore, it could be said that whatever the status of the Principles are as a matter of soft law, the national delegations that participated in their formulation were most concerned with the generation of, and access to, data. It could be further said that they intended to clarify the rights and obligations regarding generation of and access to data as much as possible.9 3. Soft law exists in the middle of a spectrum based on degree of consent to be bound10 The term ‘soft law’ can be traced back to Lord McNair who referred to the dichotomy between lex lata and lex ferenda.11 It reemerged in the 20th Century and focuses on a wide variety of instruments that are different in form, language, subjects, etc. In general, soft law is understood to mean something that

8 Principles II, IV, and XII. 9 Principle I addresses ‘primary data’, ‘processed data’, and ‘analysed information.’ There are important ongoing debates about what, if any, differences there are among these categories and what, if any, implications these differences have as regards to rights and obligations. For the purposes of this chapter, only the term ‘data’ will be used. There is no intention to further clarify any differences or similarities among the categories. 10 The author would like to thank and acknowledge the research of Ms. Whitney Warrington on this subject. Ms. Warrington served as the author’s research assistant and was a third year law student at the time of this project. Her research brief was a major contribution to this work. 11 Jean d’Aspremont, Softness in International Law : A Self-Serving Quest for New Legal Materials, 19 European Journal of International Law (2008) 1075, 1081.

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is less than formal, binding treaty commitments.12 Soft law exists somewhere in the middle of a spectrum between an instrument that is not legally binding at one end and an instrument that contains expressed agreed law at the other end. Where on that spectrum any given instrument lies would be determined, in part, on the degree of consent to be bound manifested by the parties to the instrument. The Principles themselves fall somewhere along this spectrum. Therefore, it is useful to consider some of the criteria developed by some scholars to determine where on the spectrum a particular soft law instrument may lie and apply them to the Principles. 4. Commentators’ criteria There are many scholars who have offered systems of logic and criteria to be applied to an instrument in order to determine its status as soft law. To address what soft law might be, at least one scholar has identified four minimum characteristics that can be used as criteria that can be applied to any given instrument. They are common intent, respect for the intent, the legitimacy of the instrument must be agreed upon, and conduct that respects soft law cannot be regarded as invalid.13 This is a defensible set of criteria as they speak to the most important aspect of a mutual agreement : the intent of the actors. When applied to the Principles, these combined characteristics reveal a reasonable degree of corroboration that they are soft law. According to the criterion of common intent, a common intent must be implicit in the soft law as it is being formulated. As applied to the Principles this criterion yields a mixed result. The intent was to promulgate a set of non-binding principles that, if political will existed, had the potential to become binding over time. Therefore, at the time the Principles were adopted their status was still evolving. One authoritative retrospective look back at that time identifies it as an era of principles’ making rather than a treaty-making era.14 Whether the 12 Margaret Chon, Global Intellectual Property Governance, 12 Theoretical Inquiries in Law (2011) 349, 350–51. 13 Friedrich V. Kratochwil, Rules, Norms, and Decisions : On the Conditions of Practical and Legal Reasoning In International Relations and Domestic Affairs (Cambridge University Press, Cambridge 1989) 201. 14 Sergio Marchisio, The Evolutionary Stages of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), 31 Journal of Space Law (2005) 219.

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delegations at the time were conducting their work based on this distinction is not known. At the same time, the Principles were contained in the first instrument to be adopted by consensus after two significant events. First, they were in the first adopted instrument since the last adopted resolution that had resulted in a space treaty. Second, the Principles were also the first space principles instrument to be adopted without a vote since 1982. In 1982, the controversial Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting became the only major space principles instrument adopted by a vote.15 The 1982 vote gave rise to substantial uncertainty about what it portended for similar instruments in the future. Some observers construed the adoption of the Principles by consensus to be a return to the manifestation of a common intent that had existed during the era in which the space treaty regime was established. This is a reasonable assessment. Regarding the next two criteria, determining whether the common intent is respected and whether the legitimacy of the soft law, as formulated, was agreed upon, is somewhat clearer when applied to the Principles. The history of the Principles is a long one. Since negotiations first began in the early 1970s to the time of this writing, no nation has ever formally objected to them. The interpretation of their terms and the weight of an obligation to apply them continue to be the subjects of much legal scholarship. However, in the absence of formal rejection, the continued debate only serves to reinforce respect for the Principles and their legitimacy as soft law. The fourth criterion is that conduct that respects soft law cannot be regarded as invalid. This criterion, when applied to the Principles, produces the clearest result of all four criteria. Since the adoption of the Principles, remote sensing nations routinely declare that the Principles apply to their own activities. These statements can be found in national laws and policies as well as unilateral, bilateral, and multilateral agreements.16 These are voluntary authoritative sover15 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, GA Res 37/92 of 10 December 1982 ; vote : 107 for ; 13 against ; 13 abstentions. UN Office of Outer Space Affairs, http ://www.unoosa.org/oosa/en/SpaceLaw/ gares/index.html (07/11/2011). There have been approximately 72 space related resolutions since 1958. Only five instruments include principles. 16 A brief and far from complete list would include the national laws of Canada, France, Germany, Japan, and the United States ; the national policies of India, Israel, and Thailand ; and the Agreement Between the Government of the Italian Republic and the Government of the

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eign expressions about inherently legal activities. They are, by their very nature, valid. Two other commentators have opined that actors use soft law provisions to elaborate upon existing hard law.17 This is a particularly useful analytical tool when comparing some provisions of unquestionably accepted ‘hard law’ with some of the provisions of the Principles. The most relevant, and direct example of this occurs when Art. I of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty) is compared with Principle II of the Principles. The core of Principle II and the core of Art. I are verbatim with the addition of a single crucial word, ‘technological’ and the replacement of ‘exploration and use’ with ‘remote sensing’. Thus the core idea of the Outer Space Treaty, that the exploration and use of outer space ‘shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development’18 becomes the elaborated idea of the Principles that ‘[r]emote sensing activities shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic, social or scientific and technological development’.19 A further examination of the Principles reveal a number of specific elaborations of existing hard law : ‘[r]emote sensing activities shall be conducted in accordance with international law, including […] [the UN Charter], […] [the Outer Space Treaty] […] and the relevant instruments of the [International Telecommunications Union]’20 ; ‘[r]emote sensing activities shall be conducted in accordance with the principles contained in article I of [the Outer Space Treaty]’21 ;

17 18

19 20 21

French Republic on Cooperation In the Field of Earth Observation (the so-called Turin Agreement) of 29 January 2001 ; the Framework Agreement between the Government of the People’s Republic of China and the Government of the Federative Republic of Brazil on Cooperation in the Peaceful Applications of Outer Space Science and Technology on the Cooperation for the CBERS Application System of 12 November 2004 ; the Cooperation Agreement Concerning the Vegetation SPOT 4 Program ; the ERS/Envisat Agreement ; the Radarsat Agreement. Gregory C. Shaffer and Mark. A. Pollack, Hard vs. Soft Law : Alternatives, Complements, and Antagonists in International Governance, 94 Minnesota Law Review (2010) 706, 708 et seq. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature January 27, 1967, 18 UST 2410, 610 UNTS 205, Art. I. Principle II. (emphasis added). Principle III. Principle IV.

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[ ] ‘[i]n accordance with article IV of the Convention on Registration […] and article XI of the [Outer Space Treaty] […]’22 ; and, ‘[i]n compliance with article VI of the […] [Outer Space Treaty] […] States operating remote sensing satellites shall bear international responsibility for their activities […]’.23 5. The ‘hardest’ part of remote sensing soft law : nondiscriminatory access Whatever the status of the Principles is as a complete instrument, one of its provisions is clearly stronger and more accepted than many of the other provisions contained therein. It is the nondiscriminatory access policy. As stated above, the Principles themselves are routinely incorporated by reference in a plethora of national policies, laws, and agreements. However, it is only the nondiscriminatory access policy that is specifically identified and often defined in these instruments. Collectively, this constitutes a considerable State practice that can reasonably be construed as attempts to clarify a norm. These attempts include making distinctions as well as identifying similarities. Increasingly there are different standards set for systems that operate with high, medium, and low spatial resolution.24 For medium and low resolution systems, the trend has been to liberally define nondiscriminatory access, making data available to all who request it. As regards cost, the trend is to make medium and low resolution data available at as low cost as possible and, in some substantial cases, free of cost.25 At the same time, for high resolution26 systems, the trend is to define nondiscriminatory access in an increasingly restrictive manner and to make access distinctions based on the applications for which the data is intended 22 Principle IX. 23 Principle XIV. 24 For a fuller discussion of this subject see Joanne I. Gabrynowicz, The Land Remote Sensing Laws and Policies of National Governments : A Global Survey, available at http ://www. spacelaw.olemiss.edu/resources/pdfs/noaa.pdf (07/11/2011). 25 Landsat and CBERS, for example. 26 There is no uniform, legally binding definition of ‘high resolution.’ What constitutes high resolution is generally a matter of technological change and the capability that any given data provider can make available. Suffice it to say that for the purpose of this discussion, ‘high spatial resolution’ means 5 meters to 1 meter or less. This discussion does not address other types of resolution, for example spectral or temporal. Nor does it specifically address advanced nonoptical systems. These are important characteristics that are taken into consideration for policy and legal purposes. However, the overwhelming focus regarding standards for data access has historically been on spatial resolution.

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to be used, national security, environment etc.27 This trend manifests in considering a data request in terms of the entire transaction : who wants it and why ; rather than only what kind of data is being requested. Despite the differences in these two trends, they both have a common element : a baseline presumption of openness. That is, data denial requires a justification. It is generally the data provider’s burden to establish why the data ought to be denied rather than the requestor’s burden to establish why the data ought to be provided. 6. New contemporary significance ? Moving from the consideration of a single component of the Principles, nondiscriminatory access, to the instrument as a whole, another question arises : looking toward the future, does it still have relevance ? The Principles do not clearly and specifically address some remote sensing issues and activities that did not exist at the time of the adoption of the Principles. Examples of these include global systems and long-term Earth monitoring. However, another general characteristic of soft law noted by some scholars is its tolerance for the gap between current reality and future ideals.28 As to this characteristic, Principle X and Principle XI become relevant. They both state that ‘[r]emote sensing shall promote’, in the case of the former, ‘protection of the Earth’s natural environment’ ; and in the case of the latter, ‘protection of mankind from natural disasters’. During negotiations of the Principles, these received attention but the final versions were not among what were considered to be the most momentous results of the talks. What eventually became Principles X and XI began as discussions regarding the scope of remote sensing activities. This discussion included whether or not data distribution to third parties required a sensed State’s permission ;29 whether or not data on natural disasters should be an exception to requiring permission ; and, whether or not it was adequate to refer to remote sensing only in terms of ‘natural resources’ or whether the reference should be expanded to the ‘natural 27 Digital Globe, Geoeye, Imagesat International, Pleiades, Radarsat, TerraSAR-X, etc. 28 Chon, supra fn 12, 366. 29 Draft Principles Governing the Activities of States in the Field of Remote Sensing of Earth Resources by Means of Space Technology, France and USSR Working Paper A/AC.105/C.2/L.99 27 May 1974.

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environment of the earth.’30 During the years of debate, the bulk of these issues made its way into other numbered principles and the issues were captured elsewhere in the final instrument. What remained of Principles X and XI were the core ideas that remote sensing shall promote humankind and the Earth’s environment from natural disasters. As such, these two principles serve to provide a bridge for the gap between the current reality of remote sensing and future ideals of what it can provide. One side of the bridge rests on Principles X and XI and the other side of the bridge is set on another soft law instrument : the Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in The Event of Natural or Technological Disasters (International Charter).31 7. Post-Principles activities : Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disasters The International Charter ‘aims at providing a unified system of space data acquisition and delivery to those affected by natural or man-made disasters through Authorized Users.’32 Its aim echoes Principles X and XI. The International Charter is an ‘international multilateral instrument […] containing non-binding principles’ and is one of a growing number of multilateral agreements generated by voluntary intergovernmental organisations.33 These agreements are used to define cooperative efforts in a variety of space activities.34 The International Charter has been continuously operational since 2001 ; activated hundreds of times ; and, most importantly, renewed by Charter Participants multiple times.35 Its evolving status will depend on the frequency and 30 Statement on the Legal Implications of Remote sensing of the Environment of the Earth from Outer Space by Ronald F. Stowe, US Representative to the Legal Subcommittee of UNCOPUOS, A/AC.105/C.2/SR.233, Feb. 27, 1975. 31 Charter On Cooperation To Achieve The Coordinated Use of Space Facilities in the Event of Natural or Technological Disasters Rev.3 (25/4/2000). Available at http ://www.disasterscharter.org/web/charter/charter (Formerly called the Disasters Charter). 32 http ://www.disasterscharter.org/web/charter/home (07/11/2011). 33 Marco Ferranzani, Alternative Approaches to International Space Cooperation, ESA Bulletin, No. 110, European Space Agency, Frascati, Italy, May, 2002. 34 Examples include example, the Group on Earth Observations, the Committee on Earth Observations Satellites, the Interagency Debris Coordination Committee as well as the Disasters Charter. 35 http ://www.disasterscharter.org/web/charter/home (07/11/2011).

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number of activations and responses ; the quality and effectiveness of activations and responses ; standards, if any, of behaviour established by voluntary actions ; and, addition or withdrawal, if any, of its Parties, Associated Bodies, and Cooperating Bodies. The Charter could become potentially binding over time if proved both by State practice and opinio juris. In the meantime, however, ‘[a]s long as [it lasts as a] nonbinding agreement […] [it] can be authoritative and controlling for the parties. There is no a priori reason to assume that the undertakings are illusory […]’36 ‘[P]olitical texts which express commitments and positions of one kind or another are governed by the general principle of good faith. Moreover, since good faith is an accepted general principle of international law, it is appropriate and even necessary to apply it in its legal sense.’37

The good faith execution of the International Charter, its growth and intentional renewals are, arguably, the current manifestation of an ideal that, at the time the Principles were adopted, was only in the future.

II. Conclusion The Principles might be soft law. A definitive determination of this requires submitting the question to a much more in-depth analysis. This would include examining the many other scholarly opinions and criteria set forth in the rather large body of writings on the subject of soft law. This is a large task well beyond the scope of a single book chapter. One particularly significant variable that will have to be considered in such an analysis is the continued development of international environmental law. Soft law is a prevalent feature of this body of law. The more that remote sensing law relates to environmental matters, the more likely it is that it will be recognised as soft law. If the Principles were determined to, indeed, be soft law, it is too early to know if such a determination is a positive result. There is a decidedly negative 36 Oscar Schachter, The Twilight Existence of Nonbinding International Agreements, 71 American Journal of International Law (1977) 296, 304. 37 Oscar Schachter, International law in theory and practice, (Martinus Nijhoff Publishers, Dordrecht/Boston/London 1991) 130.

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aspect to soft law. Recognizing soft law could result in diluted authority and weakened due process, among others. When does ‘soft’ gives way to ‘squishy’ that is, anarchy ? The fundamental purpose of law is to provide stability and predictability in human and governmental affairs. These qualities are the ones that give law its moral and practical authority and that induce States to seek and, perhaps, abide by the law. Even if it is assumed for the sake of discussion that soft law has the potential to guide States’ behaviour that can, in turn, lead to customary international law, the standard of validity remains. If, ultimately, soft law becomes an expression of ‘any law is better than no law’, validity is compromised and stability and predictability can give way to anarchy. Another important question is, at what point will ‘alternative’ mechanisms for reaching agreements, including soft law instruments, ripen into new norms ? The most significant aspect about the soft law discussion is that it signals a change from the law of the post-World War II era to the law of the globalisation era. It is clear in the current geopolitical landscape that the political will to engage in formal treaty making is waning. Nonetheless complex economic, political, and social forces of the globalisation era ensure that States must continue to seek agreements between and among themselves is some form. A plethora of agreement forms are emerging to fill the void left by the decline in treaty making : charters, codes of conduct, declarations, etc. On a larger, more historically oriented scale, the decline of treaty making and the rise — and uncertainty of — alternative forms of agreements is, in the opinion of this author, a manifestation of fundamental changes occurring in the international system. These changes are analogous to those that occurred in the 1400s — 1600s which also gave rise to the law of nations and the modern State centered system. It will be awhile before it is evident where the current changes will lead. It is now when they have to be addressed.

Kai-Uwe Schrogl

The Launching State and the Registration Practice Resolutions as ‘Kick Off’ for a New Phase in Space (Soft) Law Development I. Introduction The adoption of the United Nations General Assembly Resolution Application of the Concept of the ‘launching State’ (GA Res 59/115 of 10 December 2004 ; in the following : Launching State Resolution) marked a new phase in the space law making efforts of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS). It was prepared under new working methods, established in 1999, and it presented a new format of output further to the treaties of the first and the sets of principles of the second phase of space law making. The Launching State Resolution can be regarded as a ‘kick off’ because it was soon followed by the adoption of the United Nations General Assembly Resolution Recommendations on Enhancing the Practice of States and International Intergovernmental Organizations in Registering Space Objects (GA Res 62/101 of 17 December 2007 ; in the following : Registration Practice Resolution). And since at present, in mid–2011, the third topic dealt with in the same format and heading for a comparable output — the discussion on national space legislation (NSL)1 — is close to its finalisation, the ‘kick off’ seems to have gained a certain continuity. This article describes the context for the new phase of space (soft) law development in UNCOPUOS which started with the Launching State Resolution. It then sheds a condensed look on its content and the Registration Practice Resolution before it discusses the perspectives created by this new phase. It ends by asking the question, whether this current format of space (soft) law making is adequate to the expectations the stakeholders have in the further development of space law and whether it 1 In 2007, the Legal Subcommittee agreed to put a new item on the agenda entitled ‘General exchange of information on national legislation relevant for the peaceful exploration and use of outer space’ which included the establishment of a working group and a multiyear work plan from 2008 to 2011 ; see Report of the Legal Subcommittee on its forty-sixth session, held in Vienna from 26 March to 5 April 2007, UN Doc. A/AC./105/891, para. 136.

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is enough to maintain UNCOPUOS in the role of the central body for space law making. 1. The context for establishing the new phase of space (soft) law making If one regards the ‘Space Benefits Declaration’ of 19962 as a rather ‘political’ document, which was not really advancing space law as such, the prior ‘true’ regulatory instrument were the Principles on the Use of Nuclear Power Sources (NPS) of 1992.3 So, after that not very much happened in the Legal Subcommittee until the adoption of the Launching State Resolution in 2004. By the end of the 1990s, a kind of despair took hold of the Legal Subcommittee of UNCOPUOS (in the following : LSC) because almost no substantive legal work had been conducted for a number of years. The turning point came with the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE III), held in 1999, which — what is less known — was in the centre of a web of linkages. The first linkage was the adoption, in 1996, of the Space Benefits Declaration together with the acceptance to hold UNISPACE III. The North-South conflict was addressed with the Declaration but the developing countries succeeded with their proposal to organise a large international conference which should deal with all relevant topics of the use of outer space including space law issues and which would gather delegates from 99 States from 19 to 30 July 1999 in Vienna.4 The second linkage was that, in the sessions prior to the UNISPACE III conference, delegations agreed on a comprehensive reform of the agenda structure and working methods for the two Subcommittees of UNCOPUOS.5 Multiyear workplans with associated working groups and one year ‘single issue items’ 2 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, GA Res 51/122 of 13 December 1996. 3 Principles Relevant to the Use of Nuclear Power Sources in Outer Space, GA Res 47/68 of 14 December 1992. 4 See the Final Report of UNISPACE III as contained in UN Doc. A/CONF.184/6. 5 For the STSC see the working paper presented by Germany on behalf of Austria, Canada, China, the Czech Republic, France, Greece, Hungary, Italy, Japan, Morocco, Romania, the Russian Federation, Spain, Sweden, Turkey, the United Kingdom and the United States, UN Doc. A/AC.105/C.1/L.227 of 25 February 1999. For the LSC see the working paper presented by Germany on behalf of Austria, Canada, France, Greece, India, the Netherlands, Sweden and the United States, UN Doc. A/AC.105/C.2/L.217 and Corr.1 of 3 March 1999.

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should be added to the frozen agenda which contained some dinosaur items in which almost no progress had been achieved in the past years but nevertheless were impossible to get rid of. The third linkage was to immediately establish, from 2000 onwards, such a new type of agenda item : the issue of the launching State.6 This was the ‘kick off’ for the new phase in space (soft) law development covered in this contribution. 2. The content of the two resolutions The drafting history and the detailed interpretation have been presented already in previous articles on the Launching State Resolution7 and the Registration Practice Resolution.8 For the present contribution, a few spotlights on the content might suffice. The Launching State Resolution basically contains the identification of a problem : the private use of outer space with the issue of responsibility and liability under the question of how to identify unambiguously at least one ‘launching State’ (LS). The Sea Launch venture, which triggered the debate,9 was a private launch provider, at that time headquartered on the Cayman Islands and composed of companies from various countries, operating from a platform on the high sea. At first glance, none of the definitional elements of a LS applied ; later, licenses were obtained in the US and the UK. However, at the time of the first debates in 1997, there was a severe uncertainty among experts and governments, whether the LS definition as laid down in the Liability Convention and the Registration Convention was still appropriate and complete. So the Launching State Resolution was in the first instance the sign for the acceptance 6 The new agenda item ‘Review of the concept of the “launching State”’ and its related workplan was established during the 1999 session of UNCOPUOS, see the Report of UNCOPUOS 1999, UN Doc. A/54/20, para. 114. 7 See Kai-Uwe Schrogl and Charles Davies, A New Look at the Concept of the ‘Launching State’ — The Results of the UNCOPUOS Legal Subcommittee Working Group 2000–2002, 51 Zeitschrift für Luft- und Weltraumrecht (2002) 359 and Marietta Benkö and Kai-Uwe Schrogl, The UN Committee on the Peaceful Uses of Outer Space : Adoption of a Resolution on Application of the Concept of the ‘Launching State’ and Other Recent Developments, 54 Zeitschrift für Luft- und Weltraumrecht (2005) 57. 8 See Kai-Uwe Schrogl and Niklas Hedman, The U.N. General Assembly Resolution 62/101 of 17 December 2007 on ‘Recommendations on Enhancing the Practice of States and International Organizations in Registering Space Objects’, 34 Journal of Space Law (2008) 141. 9 First raised in 1997 by Armel Kerrest : Launching spacecraft from the sea and the Outer Space Treaty : The SeaLaunch project, IISL–97-IISL.3.15.

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by the States that there is a problem with the application of the legal concept of the LS. This is not a trivial matter in the context of UNCOPUOS, where States typically are very reluctant with regard to the formal acceptance that something is in disorder because it implicitly pushes the States to act and remedy the situation. The establishment of new working mechanisms and agenda setting in the two Subcommittees in 1999 was quite beneficial for providing the delegations with the confidence to take the step outlined : to accept that there existed a legal problem and to accept the need for at least formal consultations on it. The long inactivity of the LSC was at the same time a hindrance and a motivation for action : it had raised the fear of delegations that they might be drawn into something uncontrollable to almost irrational levels and it made them understand at the same time that if they continued like that, the LSC would become completely irrelevant. The new format of a multiyear workplan with an associated working group provided the opportunity to act but also to control this activity to a maximum extent. It required considerable diplomatic efforts not to stop with the preparation of conclusions but to reach consensus on drafting recommendations, which then were turned into a UN General Assembly resolution. In fact, the joint acceptance of the problem regarding the application of the legal concept of the LS led to the joint identification of a possible tool to manage this problem : the enactment of national space legislation. The recommendations and then the General Assembly resolution have this as their centrepiece — while being a non-binding call for action,10 this was still a very substantive result. On top of this, the need for a harmonised approach in this matter was pointed out in the fourth recommendation responding to the threat of ‘flags of convenience’ in space. In addition, in its third recommendation, the resolution also addresses for the first time in space law the transfer of ownership of space objects in orbit. While the Launching State Resolution clearly had the character to open a completely new issue area for international space law making — i.e. dealing with the legal consequences of private space activities — the Registration Practice Resolution was more concrete and practical. It also starts with the identifica10 The Launching State Resolution, in its operative para. 1, ‘[r]ecommends that States conducting space activities, in fulfilling their international obligations under the United Nations treaties on outer space […], as well as other relevant international agreements, consider enacting and implementing national laws authorizing and providing for continuing supervision of the activities in outer space of non-governmental entities under their jurisdiction’.

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tion of a problem. This time it was the need to enhance the practise of registration based on the Registration Convention. States as well as international intergovernmental organisations (IGOs) had neglected proper registrations to a large extend. The topic was taken up in the same format as the LS topic, establishing a three year workplan with an associated working group.11 Building on the positive experience under the LS topic, the new agenda item was smoothly dealt with and reached the result in form of a General Assembly resolution already in the framework of these three years (the Launching State Resolution was only completed on the basis of the working group recommendations two years after the completion of the workplan). The Registration Practice Resolution is rather long and detailed and introduces additional elements of information to be transmitted for inclusion in the UN registry of space objects.12 This should increase awareness and further transparency. The resolution also includes proposals — and this is comparable to the way the Launching State Resolution is handling national space legislation or the transfer of ownership — for launches by IGOs through backup solutions, for unclear situations to determine the LS and for cases of joint launches. It also takes up the issue of change of supervision over a space object while in orbit and sets out in its para. 4 some elements of information to be furnished to the Secretary General as the date of change in supervision and the identification of the new owner or operator. 3. Perspectives created by the new phase The two resolutions provide no ‘solutions’ to the problems they are dealing with but they at least led to the formal agreement amongst the States that specific issues or problems existed. This may characterise the current period of just identifying and ‘filing’ problems for future binding provisions (others might be the delimitation of airspace and outer space or the definition of ‘space object’, where in both cases extensive discussions have taken place and a joint understanding is emerging but no formal decision has so far been taken). 11 The new agenda item ‘Practice of States and international organizations in registering space objects’ and its related workplan was established during the 2003 session of UNCOPUOS, see the Report of UNCOPUOS 2003, UN Doc. A/58/20, para. 199. 12 The Register of Objects Launched into Outer Space is maintained by the United Nations Office for Outer Space Affairs ; for the Online Index of Objects Launched into Outer Space see http ://www.oosa.unvienna.org/oosa/osoindex.html (01/08/2011).

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Regarding the standing of the UNCOPUOS LSC, it might rightly be stated that the two resolutions ‘rescued’ the Subcommittee from the actual and further looming complete inactivity and injected new impetus and confidence to its work. Through this, the format of workplans with associated working groups became well accepted. The substantive work of these working groups was of high quality as the respective documentations (in particular presentations and written inputs by delegations and observers) evidence. The Secretariat, provided by UNOOSA, became a highly trusted and indispensable partner in this process. It prepared important objective and substantive analyses which represented an indispensible support for the negotiations in the conduct of the workplans. The continuation of the working concept with the elements workplan/working group/secretariat in the current agenda item on national space legislation shows the benefits and the acceptance of this approach. But what are the next topics to extend this further ? Space debris mitigation might be a good candidate. But in 2011, delegations were not yet ready to venture decidedly into this issue but they agreed at least to conduct a general exchange of information on national mechanisms relating to space debris mitigation measures in the following year.13 Maybe they simply wait for the national space legislation issue to be completed, as it is foreseen for 2012. But can States solve the ‘real’ problems with this working method ? Will issues like the weaponisation of outer space, the regulation of the global aspects of space economy, sustainable use of outer space, space exploration or private human spaceflight be tackled effectively in such a setting ? It is appropriate to ask the question whether such ‘weak’ soft law outputs are enough and whether we do not actually need binding instruments. It is not enough to build mutual understanding and trust and aim at better implementation (without binding interpretation) of existing law through such resolutions.14 A malicious assessment 13 See the Report of the Legal Subcommittee on its 50th session held in Vienna from 28 March to 8 April 2011, UN Doc. A/AC.105/990 of 20 April 2011, para. 159. 14 It was an issue of discussion at the conference at the Vienna Law Faculty on 2 April 2011 about ‘Soft Law in Outer Space — The Function of Non-Binding Norms in International Space Law’ whether the establishment of binding provisions would necessarily lead to a better implementation of such treaties compared with non-binding formats. Indeed, the options for sanctions, especially in the political and economic fields, are present also with regard to violations of soft law. For space law, however, the future basic provisions about the status of outer space and the rights and obligations of its use, should be the content of a formal traditional treaty, not the least because it deals with a realm outside the sovereignty of the States and the agreement has extremely far-reaching effects.

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could be that the LSC has simply established a work therapy without reaching the core of the issues. But what are the alternatives and what would that mean for UNCOPUOS ? 4. The future of UNCOPUOS as the central body for space law making The assessment of the way space law is developed with the present format poses the question of how UNCOPUOS can maintain its position and function as the central body for space law making.15 The role of UNCOPUOS as the central body for space law making might be challenged by cases like the ITU’s decision on the status of outer space : Art. 44 (2) of its Constitution establishes in its new version16 that all orbits are limited resources (before it was only the GSO), with the following consequences : ‘2. In using frequency bands for radio services, Member States shall bear in mind that radio frequencies and any associated orbits, including the geostationarysatellite orbit, are limited natural resources and that they must be used rationally, efficiently and economically, in conformity with the provisions of the Radio Regulations, so that countries or groups of countries may have equitable access to those orbits and frequencies, taking into account the special needs of the developing countries and the geographical situation of particular countries.’

While UNCOPUOS LSC is sleepwalking through decades of inconclusive discussions on the delimitation of airspace and outer space, the 192 member States of ITU17 rather easily create binding provisions about the status of outer space and set political and legal consequences for it — without even making UNCOPUOS aware of this. To put it even more bluntly : what are UNCOPUOS’ arguments that it should remain the central body for space law making ? Why should it be pre15 For the following cf. Kai-Uwe Schrogl, Is UNCOPUOS Fit for the Future ? Reflections at the Occasion of the 50th Session of Its Legal Subcommittee 2011, 60 Zeitschrift für Luft- und Weltraumrecht (2011) 93–102. 16 Following changes made by the ITU Plenipotentiary Conference of 1992. Text in Space Law. Basic Legal Documents, C.IV, 1.1. 17 As of August 1, 2011, 192 States are members in the ITU ; for a list of member States as well as other relevant information see http ://www.itu.int/members/mbstates2/positions.html (01/08/2011).

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ferred to such approaches like the Hague Code of Conduct against Ballistic Missile Proliferation (HCoC)18 or the Draft Code of Conduct for Outer Space Activities tabled by the European Union.19 UNCOPUOS’ output is not more binding, but the HCoC might soon be adhered to by twice as many States that have ratified the Registration Convention.20 Another issue is the involvement of the private sector in the work and the decision-making process of UNCOPUOS in addition to the fact that some member States have private sector advisers in their delegations. Again, the ITU is far ahead in this respect, as has shown for example the World Summit on the Information Society (WSIS 2003/2005), with a formalised strong and influential participation of industry and civil society.21 Three potential functions for UNCOPUOS can be foreseen in the future : a supervisory function for space applications in the UN system, a lead regulatory function and a function as a platform for exchange of information involving governments and private actors. In place of the two Subcommittees, integrated working groups could deal with specific topics from the technical as well as the legal perspectives, presenting draft instruments to the UNCOPUOS main committee for adoption. The abolishment of the Subcommittees and the establishment of such ad hoc working groups would considerably vitalise the work. The good experience with multiyear workplans and working groups in the two Subcommittees so far would be a good basis for this next step in providing better guidance and focus for the substantive work. Outdated agenda items could be dropped, new issues could be more efficiently and comprehensively discussed and the Committee could become a truly decision-making body. In the long-term perspective this might, however, not be enough. With more responsive and therefore more numerous space activities, the issue of Space Traffic Management (STM)22 will arise as a completely new and different systemic approach to deal with and to regulate space activities. This might require the establishment of a United Nations Conference on the Law of the Sea (UNCLOS) type of negotiation process, leading to a new comprehensive space law instru18 For further information see : http ://www.hcoc.at/. 19 See Wolfgang Rathgeber, Nina-Louisa Remuß and Kai-Uwe Schrogl, Space security and the European Code of Conduct for Outer Space Activities, in : UNIDIR disarmament forum. ‘A safer space environment ?’ No. 4 (2009) 33–41. 20 133 States adhere to the HCoC, while 54 States have ratified the Registration Convention. 21 For further information see : http ://www.itu.int/wsis/index.html (10/08/2011). 22 A study on Space Traffic Management was released by the IAA in 2006. The study is available at http ://iaaweb.org/iaa/Studies/spacetraffic.pdf (01/08/2011).

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ment and different governance. The International Civil Aviation Organization (ICAO) can not only be regarded as a model for this but might actually extend its mandate and cover space as well.23 Soft law, as it is currently produced in UNCOPUOS, ‘kicked off’ by the Launching State Resolution and continued with the Registration Practice Resolution and a potential NSL Resolution will then actually only have been an interim phase of around two decades. It will at least have had the benefit of providing the States the opportunity to identify the most important issues and problems and in some cases achieve preliminary joint understanding of instruments to tackle them.

23 See International Association for the Advancement of Space Safety : An ICAO for Space, Draft 29 May 2007, download at http ://www.iaass.org/files/pdf/ICAO%20for%20Space%20-%20 White%20Paper%20-%20draft%2029%20May%202007.pdf (10/08/2011).

Daniel A. Porras

The United Nations Principles Relevant to the Use of Nuclear Power Sources in Outer Space : the Significance of a Soft Law Instrument after nearly 20 Years in Force I. Introduction As mankind seeks to expand his understanding of the universe, he turns to increasingly innovative means of exploring outer space. Satellite technology has, for example, evolved to the point that scientists are able to explore the outer reaches of our solar system and beyond with probes that physically travel across the dark expanses of space. A crucial element of the technology that has made all this possible is, without a doubt, nuclear power. Nuclear power sources (NPS) are sometimes used in satellites for those missions where the particular demands for energy preclude the use of ‘non-nuclear power sources’, such as solar panels and traditional batteries,1 for such purposes as the supplying of power to sensors and transmitters — in this article, as with the relevant instrument addressed in this article, discussions will be focused on the use of NPS for non-propulsion energy. This is certainly the case with interplanetary missions on which probes must journey so far from the Earth that normal batteries do not have sufficient life to complete the journey and solar energy is not an option. One example is the Cassini probe, sent to study Saturn in 1997 and expected to continue transmitting data until the year 2017.2 However, not all satellites carrying NPS are flung out to the farthest reaches of space. Some satellites orbiting the Earth also carry NPS and have, in the past, returned to Earth unexpectedly. In 1992, following a series of mishaps that threatened to turn into catastrophes, discussions within the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) culminated in the adoption of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space (hereinafter re1 Francis Lyall and Paul B. Larsen, Space Law : A Treatise (Ashgate, Surrey 2009) 293. 2 For more information on the Cassini-Huygens mission and its findings, please visit : http :// www.esa.int/esaMI/Cassini-Huygens/ (10/08/2011).

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ferred to as the Principles), jointly prepared by UNCOPUOS, in particular its Subcommittees and their working groups and in close co-operation with the United Nations International Atomic Energy Agency (IAEA). These Principles were intended to promote the safe and efficient use of NPS technology without putting the Earth’s biosphere at undue risk. The Principles are a guide for national purposes, otherwise known as ‘soft law’, and are, therefore, not legally binding under international law. Unlike other hard-law instruments of space law, such as the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereinafter referred to as the Outer Space Treaty) or the Convention on International Liability for Damage Caused by Space Objects (hereinafter referred to as the Liability Convention), there are no legal obligations under the Principles. Many wonder what the value of such an instrument could possibly be. In honor of the 50th anniversary of the first NPS in outer space — the American Transit 4A, launched on 29 June 1961 — and after nearly 20 years since adoption, it is worth examining the United Nations Principles and their effectiveness today as a body of soft law.3 Such a task might be even more relevant as public opinion has once again turned against nuclear power in the wake of the Fukushima disaster, a tragedy which has renewed anxieties over NPS.4 However, as shall be seen, voluntary adherance to the Principles can address two significant concerns : first, States can be sure that they are in compliance with other hard law instruments dealing with outer space exploration and the use of NPS and, 3 See National Space Science Data Center (NASA), Transit 4A, available at http ://nssdc.gsfc. nasa.gov/nmc/spacecraftDisplay.do ?id=1961-015A (10/08/2011) ; cf. also National Space Science Data Center (NASA), Nuclear Power Source Test, available at http ://nssdc.gsfc.nasa. gov/nmc/experimentDisplay.do ?id=1961-015A-02 (10/08/2011) ; see also Leonard David, Marking a 50-year-old nuclear blast from the past, Space.com, 30 June 2011, available from CBS News at http ://www.cbsnews.com/stories/2011/06/30/scitech/main20075735.shtml (10/08/2011). 4 http ://www.ipsos-mori.com/researchpublications/researcharchive/2817/Strong-global-oppo sition-towards-nuclear-power.aspx. (10/08/2011) ; see also The Fallout, the Economist, 19 March 2011, p. 13, in which it is stated that ‘[the Fukushima] accident will have a huge impact on the nuclear industry, both inside and outside Japan … America’s faltering steps towards new reactors look sure to be set back, not least because new concerns will mean greater costs’ ; see also Kenji Hall and John M. Glionna, Women’s World Cup was more than a game for Japan, Los Angeles Times, 18 June 2011, noting ‘that a country devastated four months ago by a killer earthquake, tsunami and nuclear catastrophe still possessed the heart and soul of a fierce competitor’.

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secondly, States can assure the public that NPS is being used in a responsible way. The beauty of the Principles is that it achieves these ends with a light touch so as not to inhibit innovation and creativity in NPS technology. Given that there is an extensive body of literature that discusses the content of the Principles penned by minds who participated in their negotiation, such an analysis will not, therefore, be repeated here.5 Rather, the intention of this analysis is to see how the Principles evolved through negotiations as a body of soft law and what their relevance is today.

II. The Principles 1. United Nations instruments of soft law The value of soft outer space law, or rather non-binding outer space legal instruments, is somewhat nebulous, particularly at such an early stage in the development of codified outer space law, a body that has only existed for roughly 50 years. And yet much of the legal body that is considered outer space law is, in fact, ‘soft’ in nature. Apart from the five legally-binding United Nations space law treaties (though many would argue about the strength of the fifth and youngest brother in this family), the next level down in descending order of legal importance would be the five United Nations Declarations and Legal Principles.6 The first of these, the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, is widely considered to be the foundation of the Outer Space Treaty.7 In fact, much of the wording in the Outer Space Treaty is exactly the same as it is in those principles. But what is 5 See Vladimir Kopal, The use of nuclear power sources in outer space : a new set of United Nations principles ?, 19 Journal of Space Law 103 (1991) 103–122 ; see also Nandasiri Jasentuliyana, Multilateral Negotiations on the Use of Nuclear Power Sources in Outer Space, XIV Annals of Air and Space Law (1989) 297–337 ; see also Lyall and Larsen, supra fn 1 ; also Steven A. Mirmina and David J. Den Herder, Nuclear Power Sources and Future Space Exploration, 6 Chicago Journal of International Law (2005) 149–175. 6 See United Nations Treaties and Principles on Outer Space : Text of treaties and principles governing the activities of States in the exploration and use of outer space and related resolutions adopted by the General Assembly, published by the United Nations, New York (2008). 7 See Vladimir Kopal, The Role of the United Nations Declarations of Principles in the progressive development of space law, 16 Journal of Space Law (1988) 5–20 ; see also Manfred Lachs, The Law of Outer Space : An experience in contemporary law-making (Martinus Nijhoff Publishers, Leiden 1972) 127–128 ; see also Lyall and Larsen, supra fn 1, 48.

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the precise legal value of such instruments without concrete treaties and conventions to bind States ? First, one must note that man’s activities in outer space have, by definition, always been governed by international law. Even at the earliest stages of development within the United Nations — a body which ‘has, indeed, become a focal point for international cooperation in outer space and for the formulation of necessary international rules’ — 8 it was expressly stated that ‘[t]he activities of States in exploration and use of outer space shall be carried on in accordance with international law’.9 An analysis of these laws must, logically, be done in terms of international law. The five United Nations Declarations and Legal Principles, of which the Principles is a part, have been adopted by the United Nations General Assembly by way of resolution. Such resolutions do not, in and of themselves, necessarily constitute international law. In fact, many resolutions are regularly breached or ignored without consequence. However, these resolutions do provide some level of legal guidance where necessary and, over time, such resolutions, if sufficiently adhered to, may come to embody sources of international law such as customary law or opinio juris.10 But this requires a very high level of uniform adherence over many years. Of the many types of resolutions that exist, those that adopt Declarations and Legal Principles are considered to be of the highest level since, as in the case of the five Declarations and Legal Principles on outer space, all were adopted unanimously with the exception of one, the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting. This act of unanimity is a signal by the adopting parties that they are acting as a unified voice, making their collective intentions known to bind themselves to the principles embodied in the relevant instrument. Soft law instruments, such as the Principles, can also be considered interim devices employed while stronger regulations are negotiated. Development of a 8 See United Nations Treaties and Principles on Outer Space : Text of treaties and principles governing the activities of States in the exploration and use of outer space and related resolutions adopted by the General Assembly, published by the United Nations, New York (2008), Foreword. 9 See Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res 1962 (XVIII) of 13 December 1963, para. 4 ; see also the Outer Space Treaty, Art. III ; see also Lachs, supra fn 7, 125 ; see also Ribbelink, Olivier, Article III, in : Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.), Cologne Commentary on Space Law, Volume I — Outer Space Treaty (Carl Heymanns Verlag, Köln 2009) 64–69. 10 See Kopal, supra fn 7, 20.

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treaty or convention can often take many years, during which time the risk seeking to be avoided might be realised. Because soft law instruments such as principles are not legally binding, they are expressed in general terms which are flexible and can be easily adapted to different needs, encouraging States to adhere to the notions embodied within without making States feel coerced. This is, in a manner of speaking, a way of easing States into new regulatory waters. The next step can, like the case of the Outer Space Treaty, be a more drastic plunge. 2. Purpose of the Principles The aim of the Principles is to provide a ‘set of principles containing goals and guidelines to ensure the safe use of NPS in outer space.’11 In other words, because the responsibility is on States to ‘conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to [the Outer Space Treaty]’12 — a responsibility which many would argue applies to all States now that the Outer Space Treaty has, for all intents and purposes, passed into the realm of customary law — 13 the Principles are intended to give guidance and goals to States on how those duties can be met as States develop their own NPS programmes without attempting to incorporate a rigid framework to be applied to every application. After all, the needs of a satellite bound for the farthest limits of the solar system are quite distinct from those needed for an Earth-observation satellite. 3. Sphere of application There were two types of NPS in use at the time of the drafting of the Principles the likes of which were intended to be covered by the Principles. ‘Radio-isotopic generators’ use radio-isotopes that decay spontaneously and produce the heat that ultimately powers the space vehicle’s non-propulsion power cells ; NPS used in satellites employing this type of energy can usually survive the return to Earth provided the NPS is properly contained.14 ‘Nuclear reactors’ use the controlled 11 12 13 14

See The Principles, Preamble. See Art. IX of the Outer Space Treaty ; see also Lachs, supra fn 7, 125–130. See Lyall and Larsen, supra fn 1, 77–80. See UN Document A/AC.105/238, Annex II, para. 8 ; see also Steven Aftergood, Background on Space Nuclear Power, 1 Science & Global Security (1989) 93, 94.

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fission of Uranium-235 to produce the heat that ultimately powers the relevant space vehicle ; these satellites can also return safely provided that their re-entry is delayed by putting the satellite into a higher orbit until the enriched Uranium decays to safe levels.15 As will be seen below, technology has not changed so much since the adoption of the Principles and the latter has not, therefore, been revised. It is important to note what the Principles are intended to cover and, conversely, not cover. First and foremost, the Principles are intended to restrict the use of NPS to those missions where such technology is ‘particularly suited or even essential’. And for those missions where that is the case, the Principles only apply to those missions where NPS is ‘devoted to the generation of electrical power […] for non-propulsive purposes’. The sphere of application of the Principles was carefully restricted so as not to inhibit the development of innovative technology, especially in the category of propulsion, an area of technology that is still not fully understood. Even so, the Principles included a mechanism for review and revision so that they could be kept relevant in the light of evolving technology and customary practices. In this way, the Principles can evolve with time, maintain relevance and increase the likelihood that they will be applied for many years, thereby also increasing its chances of someday achieving a normative character.

III. The journey of NPS through UNCOPUOS In January 1978, the Soviet satellite COSMOS–954 crashed into northern Canadian territory, scattering debris over 124,000 square kilometers, some of which was found to be radioactive.16 It was fortunate that this accident occurred far from civilisation, but the environmental implications were still quite grave. This caused particular concern in UNCOPUOS and, over the course of many years, has resulted in significant discussion on how this international legislative body could best promote the safe and efficient use of NPS technology without putting the global public at undue risk. It was COSMOS–954 that sparked a particular sense of urgency for dealing with the threat of NPS crash-landing on Earth but it was by no means the 15 See UN Document A/AC.105/238, Annex II, para. 8 ; see also Aftergood, ibid., 94. 16 See Soviet nuclear satellite crashes in Canada, the Canadian Broadcasting Corporation Digital Archives Website, available at http ://archives.cbc.ca/on_this_day/01/24/ (10/08/2011).

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first satellite carrying NPS to have done this. The first satellite containing NPS to have experienced an accident was the American navigational satellite Transit 5BN–3 which, on 21 April 1964, failed to reach orbit, its nuclear core disintegrating without incident over the Indian Ocean.17 Over the next 14 years, there were a number of incidents involving the release of radioactive materials from NPS from both American and Soviet spacecraft.18 But the result of these accidents, including an American meteorological satellite recovered off the coast of California and two Soviet lunar missions that released radioactive material into the atmosphere, was never quite so menacing that the United Nations delegates were forced to put this particular issue very high on their list of priorities. However, after COSMOS–954, the United Nations, and in particular UNCOPUOS, seeing that there was no law against the use of NPS in outer space, decided that if NPS were going to be used, it would be important to establish some rules to protect life within the Earth’s biosphere from radiation. 1. COSMOS–954 and the establishment of the Working Groups 1.1 (1978) Following the crash of COSMOS–954 on Earth, the Government of Canada, in accordance with Art. 5(1) of the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (hereinafter referred to as the Rescue Agreement), notified the Secretary-General of the United Nations and the Government of the Union of Soviet Socialist Republics of its discovery.19 The Government of Canada further requested that this document be circulated to member States of UNCOPUOS. As a result, the Scientific and Technical Subcommittee of UNCOPUOS (STSC) recommended the establishing of a working group to examine technical aspects of NPS in order to ensure its safe and responsible use, notably in the light of the concern expressed by developing countries that their Authorities would not have the resources to deal with NPS crashing on their soil.20 In addition, it was recommended that UNCOPUOS take this issue up on its own 17 See Space and Defense Power Systems : Missions, Office of Nuclear Energy, United States Department of Energy, available at http ://www.ne.doe.gov/space/neSpace2c.html (10/08/2011) ; see also Mirmina and Den Herder, supra fn 5, 153 ; Jasentuliyana supra fn 5, 298. 18 See Mirmina and Den Herder, supra fn 5, 150–159 ; see also Jasentuliyana supra fn 5, 298–299. 19 See UN Document A/AC.105/214. 20 See UN Document A/AC.105/216, para. 132.

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Agenda. In parallel, at the seventeenth session of the Legal Subcommittee of UNCOPUOS (LSC), it was recommended that the LSC should also review the use of NPS in outer space in order to recommend any legal measures that might be necessary, focusing the review on safety measures, notification and emergency assistance.21 In the light of all the potential issues at stake with NPS and the ever-growing importance of outer space exploration and exploitation, it is not surprising that UNCOPUOS agreed that NPS should be added to its Agenda.22 It is also not surprising that it endorsed the establishment of a working group to be open to experts from all member States to deal with this issue.23 The General Assembly (GA) approved both these decisions.24 1.2 (1979) The Working Group to consider ‘Questions Relating to the Use of Nuclear Power Sources in Outer Space’ (WG1), opened to all members of the STSC, was established at the latter’s meeting in 1979, and it was here that the proposal was first made to look to using safety standards derived from the International Commission on Radiological Protection (ICRP) and, in particular, the IAEA’s Emergency Assistance Plan for guidance to help member States develop response plans for accidents involving NPS.25 This marked the beginning of a long partnership between UNCOPUOS and the IAEA that would continually address issues surrounding NPS for many years to come. And it was one particular conclusion from that first meeting of WG1 that would set the tone for the work ahead : that [n]uclear power sources could be used safely in outer space if all necessary safety requirements were met.26 WG1, in accordance with Resolution 33/16 of the General Assembly and, in the light of the fact that existing standards were found to contain no provisions regarding notification regarding NPS, called on States to provide early notification of the unplanned re-entry of NPS to Earth’s atmosphere.27 21 22 23 24 25 26 27

See UN Document A/AC.105/218, Annex IV. See UN Document A/33/20, para. 49. See UN Document A/33/20, para. 76. See GA Resolution 33/16, para. 8. See UN Document A/AC.105/238, Annex II, para. 30. See UN Document A/AC.105/238, Annex II, paras. 13–15. See UN Document A/AC.105/238, Annex II, para. 17 ; see also Kopal, supra fn 5, 104.

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At the LSC’s eighteenth session that same year, under agenda item 6 ‘Other Matters’, there was discussion as to whether an agenda item entitled ‘Legal aspects of the use of NPS in outer space’ should be established.28 There was a strong view that such efforts might complicate the on-going work of the STSC and so the issue was ultimately left to be decided by UNCOPUOS which, at its thirty-fourth session, recommended that the LSC should undertake an agenda item entitled ‘Review of existing international law relevant to outer space activities with a view to determining the appropriateness of supplementing such laws with provisions relating to the use of nuclear power sources in outer space’.29 1.3 (1980) WG1 continued its work the following year, taking particular note of the ICRP recommendations submitted to it on the issue of NPS and, in particular, that : 1. no practice shall be adopted unless its introduction produces a net benefit ; 2. all exposures [of nuclear material] shall be kept as low as reasonably achievable, economic and social factors being taken into account ; and 3. the dose equivalent to individuals shall not exceed the limits recommended for the appropriate circumstances by the Commission.30 In regards to dose limits, WG1 agreed that appropriate assessments should be made prior to each launch and that, in accordance with ICRP Document 26, radiation doses should be kept to a minimum.31 In accordance with the decision of the General Assembly taken the previous year, the LSC took up the agenda item ‘Review of existing international law relevant to outer space activities with a view to determining the appropriateness of supplementing such law with provisions relating to the use of outer space’.32 The Subcommittee had before it a Working Paper by Canada regarding proposed areas of NPS that needed to be addressed.33 In accordance with this paper, the view was expressed that there were four principal areas of international rules relating to the use of NPS in outer space that were lacking : 28 29 30 31 32 33

See UN Document A/AC.105/240, para. 52. See UN Document A/34/20, para. 51. See UN Document A/AC.105/267, Annex II, para. 11. See UN Document A/AC.105/267, Annex II, para. 12. See UN Document A/AC.105/271, para. 44. See UN Document A/AC.105/271, para. 47.

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information concerning the use of nuclear power sources ; notification prior to re-entry ; assistance to States in emergency situations ; and radiation exposure levels.34

Other delegates expressed the viewpoint that existing norms were already adequate, citing the 1967 Outer Space Treaty, the Registration Convention and the Liability Convention.35 The title of this agenda item was changed that very year by the General Assembly to ‘Consideration of the possibility of supplementing the norms of international law relevant to the nuclear power sources in outer space’, and added that the LSC should, at its forthcoming twentieth session, establish its own Working Group (WG2) to address this new agenda item.36 This change in the title of the agenda item was a clear signal that work on this item was stepping away from being a mere study and moving into a more advanced stage of preparation. It is worth noting here that, up to this point, it was still unclear what legal weight the envisaged ‘supplements’ would carry and whether or not the work of these Groups should impose obligations on States. 2. The early foundations of the Principles 2.1 (1981) The STSC and WG1 continued working and submitted a full report which inter alia included an elaboration of the safety requirements it had referred to in 1979. These safety requirements were : 1. that any safety standards for protection from radiation during the life of the spacecraft be derived from the standards of the International Commission on Radiological Protection (ICRP), particularly ICRP Document No. 26 ; 2. that safety and containment systems be able to withstand abnormal conditions, including crashing on Earth ; 3. that ageing satellites with NPS be taken to sufficiently high orbits to permit the decay of radioactive materials to a safe level.37 34 35 36 37

See UN Document A/AC.105/271, para. 49. See UN Document A/AC.105/271, para. 50. See GA Resolution 35/14, para. 6. See UN Document A/AC.105/287, Annex II, para. 38 ; see also He Qizhi, Towards a new legal regime for the use of nuclear power sources in outer space, 14 Journal of Space Law (1986), 95, 98–99.

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These recommendations signalled an important stride in the development of substantive guidelines for the safe use of NPS in outer space. Additionally, WG1 agreed upon guidelines for the notification of re-entry of a vehicle with NPS on board, noting in particular that early notification was essential to the preparatory work of Authorities who might have to take emergency measures.38 The information to be provided by States operating spacecraft with NPS closely resembled the information required by Art. IV of the Registration Convention, adding information pertaining to NPS to the list.39 WG1 also took note of the fact that it was difficult to predict the precise moment of re-entry of a spacecraft that was no longer under the operator’s control and that while General Assembly Resolution 33/16 (1978) called on States conducting activities with NPS to notify States put at risk by its possible re-entry, WG1 would need to conduct further studies.40 However, this work would be postponed within the LSC due to the continued disagreement as to whether new norms were truly needed.41 UNCOPUOS addressed the work of the Subcommittees and their Working Groups during its thirty-sixth session, endorsing WG1’s recommendation to suspend the Working Group in order to give the findings of that Group time to be considered by the STSC and the LSC.42 The work of both Subcommittees was noted by the General Assembly and both were encouraged to continue their work under the appropriate agenda items concerning NPS.43 2.2 (1982) The following year, the STSC did not reconvene WG1 but only considered internationally agreed safety regulations.44 WG2 was reconvened by the LSC and there was discussion concerning the issue of assistance to States affected by the accidental re-entry of a spacecraft with NPS.45 Some delegates were of the view that the Canadian working paper submitted the previous year would provide 38 39 40 41 42 43 44 45

See UN Document A/AC.105/287, Annex II, paras. 17–18. See UN Document A/AC.105/287, Annex II. See UN Document A/AC.105/287, Annex II, para. 17. See Kopal, supra, fn 5, 105. See UN Document A/36/20, para. 42. See GA Resolution 36/35, paras. 5–10. See UN Document A/AC.105/304, para. 47. See UN Document A/AC.105/305, Annex II, para. 6.

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a solid basis for developing supplements to international norms of assistance, namely section C which proposed that once a State had informed the SecretaryGeneral that a space object with NPS would re-enter the Earth’s atmosphere, all States with monitoring facilities should assist in tracking the object’s orbit, that those States should act promptly and that States should be prepared to assist those on who’s territory the object had disintegrated or crashed.46 However, some delegations expressed the view that this framework was still inadequate and that they wished to consider other working papers as well.47 On a particularly interesting note, discussions also turned to the question of what legal significance the provisions being discussed were intended to have, with some parties naturally taking the view that the provisions should be legally binding whilst others just as naturally preferred that the provisions take on the form of non-obligatory guidelines.48 UNCOPUOS noted the work carried out by both Subcommittees and their Working Groups.49 The view was expressed that the title of the LSC agenda item should be changed to ‘Consideration of supplementing the norms of international law relevant to the use of nuclear power sources in outer space with the view to elaborating additional rules through its working group’.50 Once again, this was a signal that work on this agenda item was advancing towards the actual elaboration of principles. The General Assembly noted the work of UNCOPUOS and endorsed the recommendation that both Subcommittees continue their work.51 3. COSMOS–1402 and the renewed efforts of the Working Groups 3.1 (1983) Up to this point, the work on the NPS agenda item had been measured and was finally bearing fruit. Such momentum would need to be maintained if any definited instrument were to emerge. That momentum would be delivered from on high but not in the form that any of the representatives working on this issue could have wished : on 7 February 1983, the energy core of the Soviet satel46 47 48 49 50 51

See UN Document A/AC.105/C.2/L.129, Section C. See UN Document A/AC.105/305, Annex II, para. 9. See UN Document A/AC.105/305, Annex II, para. 15. See UN Document A/37/20. See UN Document A/37/20, para. 47. See GA Res 37/89 of 10 December 1982, paras. 5–7.

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lite COSMOS–1402 re-entered the atmosphere as the whole world anxiously watched it harmlessly disintegrate above the Atlantic Ocean.52 Once again, actual radioactive material dispersed far from civilisation but it had become abundantly clear that NPS was becoming an immediate problem that needed to be addressed in a defined manner. In the light of this latest unplanned re-entry of NPS to the Earth’s biosphere, the STSC proposed that WG1 be reconvened to produce actual technical criteria for the safe use of NPS in outer space.53 Not to be left out of the action, the LSC reconvened WG2 and discussed the issue of notification, divided into two parts : format and content.54 Since format had already been determined by WG1,55 it was agreed that, in addition to that format, two principles would be added, first, that ‘any State launching a space object with nuclear power sources on board should timely inform States concerned in the event this space object is malfunctioning with a risk of re-entry of radioactive materials to the earth’ and, secondly, that States should also inform the Secretary-General of the United Nations.56 UNCOPUOS endorsed the work accomplished by WG257 as did the General Assembly which also endorsed a recommendation to reconvene WG1.58 3.2 (1984) WG1 was reconvened at the STSC’s twenty-first session and it considered, among other things, the text of ICRP Publication 26.59 They also recommended that the Secretary-General invite member States to submit views on subjects relating to NPS for consideration at the next STSC meeting. Later, WG2 reconvened during the LSC’s twenty-third session and heard a proposal from the IAEA to formulate guidelines that would offer assistance to States unable to cope with a NPS crashing onto its territory in the form of technical assistance and arranging for a third State to offer actual assistance.60 52 See UN Document ST/SG/SER.E/72/Add.4 ; see also Jerry Hannifin and Frederic Golden, Space : Cosmos 1402 Is Out of Control, TIME Magazine, 17 January 1983. 53 See UN Document A/AC.105/318, para. 74. 54 See UN Document A/AC.105/320, Annex II, para. 5. 55 See supra, fn 38. 56 See UN Document A/AC.105/320, Annex II, para. 6. 57 See UN Document A/38/20, para. 71. 58 See GA Res 38/80 of 15 December 1983, para. 8. 59 See UN Document A/AC.105/336, Annex II, para. 17. 60 See UN Document A/AC.105/337, Annex II, para. 7.

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The work of the two Subcommittees was noted by UNCOPUOS where it was proposed that the LSC be given a clear mandate to draft a set of principles governing NPS in outer space, and so the agenda item was renamed ‘Elaboration of draft principles governing the use of nuclear power sources in outer space’. 61 There was no longer any question what the objective was under this agenda item : the future Principles were now a goal rather than a consideration. The General Assembly accordingly endorsed the UNCOPUOS recommendation to continue its work in both its Subcommittees.62 The decision to draft a set of principles in particular marks a defining moment for the work of the LSC and WG2 as they were now charged specifically with elaborating a soft law instrument and nothing else. The legal force of this instrument would continue to be adjusted throughout the preparation of the Principles at the most detailed level, but the upper most limit of the instrument’s power had now been set in stone. 3.3 (1985) At the STSC’s twenty-second session, while there were no concrete conclusions to emerge, two very interesting discussions took place within WG1. First, some delegates expressed the view that notification of re-entry should be given two weeks prior to re-entry whilst others felt that notification should only be given when there was ‘real danger’ of re-entry of NPS to the Earth’s biosphere.63 Secondly, there was a debate on whether the decision to use NPS in a scientific research project should be undertaken on a multinational basis, a restriction that was seen as unacceptable by others.64 Based on this work, the LSC reconvened WG2 which took up the matter of notification to States of re-entry of a space object and decided that there should be notification of States with increasing frequency as the time of re-entry approaches with particular responsibility falling on the launching State.65 UNCOPUOS once again endorsed the work of both Groups66 as did the General Assembly.67 61 62 63 64 65 66 67

See UN Document A/39/20, para. 70. See GA Res 39/96 of 14 December 1984, paras. 4–6. See UN Document A/AC.105/351, Annex II, paras. 19 and 20. See UN Document A/AC.105/351, Annex II, para. 27. See UN Document A/AC.105/352, Annex II, para. 7. See UN Document A/40/20, para. 59. See GA Res 40/162 of 16 December 1985, paras. 4–6.

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4. Drafting the Principles 4.1 (1986) WG1 did not reconvene the following year, but WG2 would make significant progress in its work. The Government of Canada submitted a working paper that presented five draft principles relevant to the use of NPS in outer space : 1. 2. 3. 4. 5.

safety assessments and notification ; guidelines and criteria for safe use ; notification of re-etry ; assistance to States ; and responsibility and liability of States.68

Of these principles, the LSC was able to agree on the text of two of the five principles, namely notification of re-entry (Principle 5), which had already been discussed at length, and assistance to States (Principle 7).69 The principle of assistance signalled the duty of all States with space monitoring and tracking facilities to communicate all relevant information on a spacecraft carrying NPS once it became available to the United Nations Secretary-General, the State responsible for the craft and all States that might be affected by the craft’s re-entry into the Earth’s biosphere ; in addition, the State that launched the craft has a duty to promptly offer and provide any assistance needed to eliminate any harmful effects of NPS and that all States with the technological capabilities to deal with NPS should also provide assistance where needed, taking into account the special needs of developing countries.70 UNCOPUOS, pleased with the accomplishments of WG2, adopted the draft principles established by WG2.71 4.2 (1987) Once again, WG1 did not reconvene but the STSC did address some important issues at its twenty-fourth session, including, first, the idea that reactors should not be activated until a space object had reached outer space72 and, sec68 69 70 71 72

See UN Document A/AC.105/369, Section IV. See UN Document A/AC.105/370, Annex II. See UN Document A/AC.105/C.2/L.154. See UN Document A/41/20, para. 64. See UN Document A/AC.105/383, para. 57.

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ondly, that the question of using enriched uranium over plutonium should be addressed.73 To help supplement the work of the STSC, the suggestion was made that UNCOPUOS should invite the IAEA to prepare a document containing advice to States on preplanning, area-monitoring and countermeasures for protection of the population and the environment in case of an accident involving the NPS of a space object.74 There was also debate over whether it was necessary to reconvene WG1 in order to conclude the work of the Subcommittee.75 In addition, the Government of Canada once again submitted a working paper in which it defined a ‘nuclear-safe’ orbit as being one that would ensure that NPS would remain in outer space for at least 300 years, plus or minus 40 years in the case of a reactor and ten times the half-life of a radioactive isotope system placed at an orbit of at least 800 km in altitude.76 Some States, however, were opposed to the use of actual numeric criteria within the principles for nuclearsafe orbits as the data was considered to be inaccurate, though the notion of a nuclear-safe orbit was, in principle, acceptable.77 Meanwhile, the LSC and, in particular, WG2, considered the three outstanding principles put forth by the Canadian Government the previous year with the addition of another principle on the observance of international law.78 The view was also presented that the adopted principles on ‘Notification’ and ‘Assistance to States’ should be brought in line with the relevant IAEA instruments.79 The General Assembly noted the work of the Subcommittees in Resolution 42/68 and decided that WG1 should be reconvened at the STSC’s twenty-fifth session.80 4.3 (1988) The notion of a nuclear-safe orbit had, up to this point, been considered in respect of the life of the radioactive materials contained within the NPS. However, during the STSC’s twenty-fifth session, the Government of Germany raised the 73 74 75 76 77 78 79 80

See UN Document A/AC.105/383, para. 58. See UN Document A/AC.105/383, para. 64. See UN Document A/AC.105/383, para. 66. See UN Document A/AC.105/C.2/L.154/Rev.1. See Jasentuliyana, supra fn 5, 313. See UN Document A/AC.105/385, Annex I, para. 45. See UN Document A/AC.105/385, Annex I, para. 6. See GA Res 42/68 of 2 December 1987, para. 11.

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concern that satellites in nuclear-safe orbits were, in fact, increasingly at risk of collision with space debris.81 Such a collision would result in the dispersal of radioactive material which would then re-enter the Earth’s atmosphere in an even more unpredictable way. This concern would give a renewed sense of urgency to the work on NPS. WG1 was reconvened and considered the possibility of materials burning up in the atmosphere, the possibility of satellites colliding and the feasibility of a satellite’s NPS surviving a crash or collision without leaking radioactive material.82 WG2 was reconvened by the LSC, wherein that Group reached consensus on a new principle on the applicability of international law (Principle 1).83 This principle would reiterate what was stated above, namely that activities in outer space, including those involving NPS, were subject to international law and must, therefore, be carried out in accordance with existing international rules. It is worth noting that there was a question within the text regarding the use of the word ‘should’ or ‘shall’ in the sentence ‘[a]ctivities involving the use of NPS in outer space [shall/should] be carried out in accordance with international law […]’.84 This issue was left open to be decided upon at a later time, once again illustrating how, even at this stage, there was still a lingering concern over the legal weight that this instrument would carry. 4.4 (1989) During the twenty-sixth session of the STSC, WG1 continued its discussions on the technical considerations of NPS.85 These discussions were marked by a balancing between, on the one hand, improved safety standards and practical considerations for the use and application of NPS technology, on the other. That same year, another milestone was achieved as WG2 was able to reach consensus on the text of two more principles, namely a draft principle on consultations (Principle 6) and a draft principle on the settlement of disputes (Principle 10).86

81 82 83 84 85 86

See UN Document A/AC.105/C.1/WG.5/1988/WP.1. See UN Document A/AC.105/409, Annex III, paras. 7–11. See UN Document A/AC.105/411, Annex I, paras. 5–8. See UN Document A/AC.105/411, Annex I, para. 9. See UN Document A/AC.105/429, Annex III, para. 10. See UN Document A/AC.105/430, Annex I, paras. 42–53.

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The number of principles agreed upon by WG2 was now five, namely : Principle 1 : applicability of international law, Principle 5 : notification of re-entry, Principle 6 : consultations, Principle 7 : assistance to States, and Principle 10 : settlement of disputes. UNCOPUOS once again welcomed the consensus reached by WG2 on another draft principle and urged both the committees to continue their work on the matter of NPS.87 This recommendation was also endorsed by the General Assembly which also called for the continuation of national research on the issue of space debris which would later be linked to NPS.88 4.5 (1990) At the twenty-seventh meeting of the STSC, WG1 marked yet another milestone when, based on a working paper submitted by Canada, France and the Federal Republic of Germany,89 it completed the elaboration of scientific and technical criteria for the safe use of NPS in outer space (Principle 3).90 The criteria consisted mostly of fairly general terms used to delineate its intentions without setting rigid rules on the technology employed by NPS : for example, it was observed that there ‘was not an urgent need to seek quantitative limitations to the amount of radioactive material […] as long as the number of space missions employing NPS was small and the nuclear devices had a radioactivity content similar to that currently used.’91 These guidelines hoped to curb the risk of contamination by radioactive material by limiting the use of NPS to those situations where it was absolutely necessary. WG2 was later able to reduce this criteria into a legal text which was then accepted as a new principle on guidelines and criteria for the safe use of NPS.92

87 88 89 90 91 92

See UN Document A/44/20, paras. 63–87. See UN Document GA Res 44/64 of 8 December 1989, para. 23. See UN Document A/AC.105/C.2/L.178. See UN Document A/AC.105/456, Annex III, para. 15. See UN Document A/AC.105/456, Annex III, para. 12. See UN Document A/AC.105/457, Annex I, para. 12.

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In addition to that important task, discussions within WG2 and the LSC also continued in relation to the ‘legal force and nature of the document containing the draft principles’.93 This discussion came up particularly in respect of the draft principle on relations with international treaties and agreements (Principle 11), stipulating that ‘the application of these principles shall not prejudice the rights and obligations of States and international organizations under international treaties and agreements’. The work done on Principle 3 was noted with great satisfaction by UNCOPUOS,94 although not without some dissent ; some delegates noted that while they supported the principle in general, they maintained different views on a number of points that might be reconsidered in future. 95 It was further noted by UNCOPUOS that several informal consultations had been carried out regarding draft principles concerning responsibility (Principle 8) and future reviews and revisions (Principle 12) as well as discussion over the draft principles relating to safety assessments being made publicly available (Principle 4).96 This was particularly sensitive since some States were hesitant about making it obligatory for a State to disclose the launching site of sensitive nuclear technology.97 4.6 (1991) The following year it was asked that Principle 3 be re-examined so as to achieve the highest level of technical accuracy (these concerns were also submitted to the LSC).98 Among the suggested modifications was the deletion of the preamble which restricted the use of NPS to those missions which cannot be operated by non-nuclear energy in a reasonable way, a proposal that would leave open the possibility of a more expansive use of NPS. However, it was agreed that this was not the time to reopen discussions on this principle. This issue was pressed no further, particularly in the light of the fact that one of the principles being considered left open the possibility of revising the principles on NPS in future.99

93 94 95 96 97 98 99

See UN Document A/AC.105/457, Annex III(A)(1), para. 25. See UN Document A/45/20, para. 60. See UN Document A/45/20, para. 102. See UN Document A/45/20, paras. 106–107. See UN Document A/AC.105/457, Annex I, para. 17. See UN Document A/AC.105/C.1/L.176. See UN Document A/AC.105/483, para. 60.

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That same year, WG2 continued its work on the principles concerning responsibility, liability and compensation. The principle on responsibility stated clearly that States would retain responsibility for their activities in outer space and that they be conducted in accordance with the Outer Space Treaty and the recommendations contained in the Principles.100 There was some concern over the legal implications of the inclusion of the phrase ‘the recommendation contained in these principles’, it being recalled that the idea that the principles, ‘while constituting strong recommendations to reach certain goals, nevertheless did not have the binding nature of treaties or other international agreements.’101 Some wondered whether the words in question were necessary at all whilst others suggested replacing the word ‘recommendations’ with ‘provisions’, a slightly more normative term. As in WG1, it was proposed in WG2 that Principle 3 be reopened for discussion, notably to address the proposal to change the term ‘shall’ with ‘should’ which was considered to be more in line with the ‘non-binding recommendatory nature’ of the project.102 However, discussions were not reopened. The only thing that was definitively accomplished that year by WG2 was that draft Principle 11, the draft principle on relations with international treaties and agreements, was deleted by consensus.103 The unfinished work was completed at that year’s session of UNCOPUOS where informal consultations were able to find a way around the various impasses.104 Agreement to accept some of the proposed provisions unchanged hinged on the understanding that agreement at that session did not mean that the issue of terms (such as ‘should’ versus ‘shall’) could not be revisited later. Once again, the debate had, at its heart, the legal force of the Principles at stake. 4.7 (1992) The following year, WG1 noted that a working paper had been submitted which contained a draft text for a preamble to the Principles105 and it was agreed that this document could provide a sound basis for the finalisation of 100 See Kopal, supra fn 5, 113. 101 See UN Document A/AC.105/484, Annex I, para. 18. 102 See UN Document A/AC.105/C.2/L.185. 103 See UN Document A/AC.105/484, Annex I, para. 25. 104 See UN Document A/46/20, paras. 105–107. 105 See UN Document A/AC.105/513, Annex III, para. 7.

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the Principles in the LSC.106 In addition, the STSC called for further studies on possible collisions with space debris to be carried out.107 WG2 was reconvened and was presented with ‘working non-papers’108 relating to the preamble and the remaining principles to be agreed upon, namely principles on the use of terms, safety assessment and review.109 It was agreed that these ‘working nonpapers’ would be considered by UNCOPUOS at its next meeting for finalising the draft Principles.110 And it was at the session of UNCOPUOS that year that the draft Principles finally emerged as a cohesive body of law. UNCOPUOS took the work of the Subcommittees and held informal consultations on the draft text of the Principles111 and after much work, the Principles relevant to the use of nuclear power sources in outer space were adopted by consensus.112 They consisted of a preamble and 11 principles, presented as : Principle 1 : Applicability of international law ; Principle 2 : Use of terms ; Principle 3 : Guidelines and criteria for safe use ; Principle 4 : Safety assessment ; Principle 5 : Notification of re-entry ; Principle 6 : Consultations ; Principle 7 : Assistance to States ; Principle 8 : Responsibility ; Principle 9 : Liability and compensation ; Principle 10 : Settlement of disputes ; and Principle 11 : Review and revision. It was recommended that the General Assembly adopt them at its forty-seventh session113 and that the LSC consider an early review of these Principles.114 106 See UN Document A/AC.105/513, Annex III, para. 7. 107 See UN Document A/AC.105/483, para. 63. 108 See UN Document A/AC.105/C.2/L.154/Rev.11. 109 See UN Document A/AC.105/514, Annex I. 110 See UN Document A/AC.105/514, para. 28. 111 See UN Document A/47/20, para. 108. 112 See UN Document A/47/20, para. 110. 113 See UN Document A/47/20, para. 111. 114 See UN Document A/47/20, para. 112.

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The General Assembly noted this achievement with satisfaction in Resolution 47/67 and recommended that the two Subcommittees continue their work on NPS for future revisions. The Principles themselves were adopted without a vote by the General Assembly in Resolution 47/68. 5. Compliance with the Principles It is difficult to determine exactly what the level of compliance has been with the Principles. There has, thankfully, been only one further incident of a device with radioactive material to have crashed back on Earth : in November 1996, the Russian Mars 96 probe failed to reach its trajectory, the NPS on-board is believed to have survived the impact, with conflicting reports signalling that the NPS crashed either into the Pacific Ocean or, according to eye-witness accounts, somewhere between Chile or Bolivia.115 There were no serious efforts to recover this NPS. However, despite any complications that arose during the re-entry of Mars 96 (it was thought that the satellite was due to crash near Australia, but this turned out not to be the case), neither the STSC or the LSC felt that it was necessary to revise the Principles at that time. Since the adoption of the Principles, there have only been three filings of notifications in accordance with Principle 4 with the United Nations, namely those concerning the Russian Mars 96 re-entry, the American Cassini probe flyby and, later, the New Horizons probe, though, admittedly, there have been few programmes with nuclear capabilities in recent years.116 In this sense, the Principles have not exactly proven themselves yet. Every year, the General Assembly asks States to submit information on the safety of space objects carrying NPS, something that has now been consistently complied with for nearly twenty years by a diverse cross-section of States, ranging from developing countries to the most active in outer space.117 This information is submitted to the STSC, which can then be used to determine whether updates to the Principles, under Principle 11, are necessary. However, to date, the Principles have not been updated. This may be due to the lack of growth in

115 See Oberg, James, ‘The Probe that fell to Earth’, New Scientist, 6 March 1999. 116 See UN Document A/AC.105/677 and UN Document A/AC.105/864. 117 Documents of this research submitted to the United Nations can be found at : http ://www. oosa.unvienna.org/oosa/en/natact/sdnps/sd_nps_docsidx.html (10/08/2011).

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this sector, but however one looks at it, there is little activity directly connected with the Principles.

IV. The Principles as a soft law instrument It is evident from its decision to make this instrument a set of ‘principles’ that UNCOPUOS intended to offer advice rather than to overtly regulate the use of NPS by employing a soft law instrument. This likely has to do with concerns that any amount of regulation of such a new application of technology might likely result in the inhibition of development and innovation and seeking to compromise between all the competing interests involved would most likely result in a lengthy negotiation process. But how much strength do the Principles have ? And after 20 years of being in force, has that strength changed at all ? 1. The Preamble The Preamble to the Principles serves to recognise that NPS is, in fact, a necessary risk for the future of space exploration. It takes into account all the technical considerations listed above and sets out ‘principles containing goals and guidelines to ensure the safe use of [NPS] in outer space’. This language, while being very noble in its gesture, is fairly passive. Interestingly, unlike hard law treaties which, at the end of their Preambles, use the term ‘have agreed’, the Principles uses the term ‘Adopts’, as do all five of the United Nations Declarations and Legal Principles, signalling that something less than ‘agreement’ was achieved. Looking at the history of the Principles, we see that all parties supported the Principles in general, but there was disagreement as to some of the provisions right up to the very end. This weakens the force of the Principles which, as noted above, is supposed to represent a unified voice. 2. Principle 1. Applicability of international law Principle 1 states that activities involving NPS in outer space ‘shall’ be carried out in accordance with international law, the Charter of the United Nations and the Outer Space Treaty. This is not as strong of a statement as one might expect, considering that all signatories to the Principles will already be compelled to act in accordance with those rules. The word ‘shall’, in this context, does not really

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add anything to the instrument other than a reaffirmation that such conduct is most desirable. 3. Principle 2. Use of terms This provision provided plenty of division on many fronts. This provision points out that the term ‘launching State’ is actually used differently throughout the Principles : in all but Principle 9, the term is used as it is used in Art. VIII of the Outer Space Treaty (the State exercising jurisdiction or control) whereas in Principle 9 it refers to ‘launching State’ as is defined in Art. VII of the Outer Space Treaty (the State that launches or procures the launching of an object or from whose territory or facility that object is launched). Ensuring that ‘launching State’ refers to the State specified in Art. VIII of the Outer Space Treaty ensures that some of the basic objectives of the Principles will be complied with, such as the preservation of ownership and the ultimate return of objects that have crashed on Earth. By referring to ‘launching State’ in Art. VII of the Outer Space Treaty, the Principles signal that it is desirable that States retain responsibility for the objects they have launched or procured to have launched (a closing of loopholes, if you will). However, these ends would still be achieved with or without the Principles through other existing legal instruments. 4. Principle 3. Guidelines and criteria for safe use These guidelines form the core of the Principles : the technical criteria for minimising the quantity of radioactive material in space and the risks involved with NPS. As discussed earlier, it was held by some that the preamble should be deleted because of the introduction of an obligation to operate NPS in a ‘reasonable way’. This introduces a new term that is not present in the Preamble and can, therefore, be taken to mean that it is a standard that should be complied with in addition to those that are already present in the Preamble. The precise language would have to, therefore, be taken to mean what it means under international law. But since the Principles are not legally binding, and because there was still some reservation up to the last minute, it cannot be said that this Principle contains provisions agreed to by all. However, it can be said that such a reservation, coming principally from one country, is still near enough to consensus to achieve the full legal strength of those provisions that did achieve consensus. Then again,

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it should also be noted that the State with reservations, being the only State affected up to now by this provision, is also the only State that has voluntarily complied with Principle 3, even if compliance was also carried out in accordance with other hard-law instruments of outer space law. Furthermore, there was ample discussion that the word ‘shall’, which appears 22 times throughout the provision, should have been replaced with the word ‘should’ to reflect the recommendatory nature of the Principles. This approach was not adopted, signalling that there was still some desire to make this Principle as strong as possible within the context of a soft law instrument. And while the reservations voiced served to weaken this provision to some extent, it does not change the fact that all parties, in the end, agreed to adopt this provision. Considering the implications of such criteria for the cost and feasibility of constructing spacecraft for exploration and exploitation of outer space, it is no wonder that full consensus was difficult to achieve on all issues. However, due to the flexible nature of soft law instruments, technical disagreements were willingly side-stepped so as to permit the continuation of work without all parties having to dig in their heels for each and every discussion. This flexibility can, therefore, be given a significant portion of the credit for achieving what ‘was generally considered as a breakthrough which removed what had been regarded as the main stumbling block on the way to the final goal.’118 5. Principle 4. Safety assessment This Principle requires that safety assessments be carried out in conformity with Principle 3 and that those assessments be made available to the public as soon as possible prior to launch. This was, as mentioned earlier, a tremendous cause for concern in respect of technological security. However, despite some reservations about particular parts of this Principle, the party that was least in favor has also been the only party to have voluntarily complied with this provision to date. 6. Principle 5. Notification of re-entry There have only been two cases of notification of re-entry, that of the Russian Mars–96 and the de-orbitting of the MIR Space Station.119 Both of these noti118 See Kopal, supra fn 5, 111. 119 See UN Document A/AC.105/759 and A/AC.105/647.

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fications were issued under the Registration Convention and not the Principles. However, compliance was, nevertheless, carried out, providing proof that, at the very least, Principle 5 is in compliance with existing practices and asks no more of signatories than what is already being done. 7. Principle 6. Consultations This Principle requires that States reasonably respond to requests for further information sought by other States in respect of NPS. There is no indication that information has not been forthcoming within certain limitations. This provision has not yet been tested. 8. Principle 7. Assistance to States This is yet another example of a Principle which has not yet been tested. And while most States seemed to be in agreement over assistance to be provided, particularly to developing States, there is no telling what might be expected of this provision once an accident does occur, though it would be hoped that all States capable of providing assistance would do so without legal obligations coercing them. 9. Principle 8. Responsibility Here, the Principles are linked with Art. VI of the Outer Space Treaty which ensures that all States retain responsibility for assuring that its activities, or those that it authorises, are carried out in conformity with that Treaty. The value here is that States are effectively reaffirming their willingness to accept that responsibility in respect of activitites involving NPS. One argument to be made is that this Principle could have some influence in a legal decision involving NPS in that a court could, in the absence of stronger hard-laws on this matter, reasonably look to the Principles for guidance, notably in respect of compliance with other provisions of that Treaty. This position is reinforced by the fact that it was the same body that adopted both instruments. However, it would be quickly pointed out by opponents of that view that the Principles themselves are not obligatory and could not, therefore, be dispositive. Nevertheless, without an incident to test voluntary compliance with this Principle, its true strength cannot yet be gauged.

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10. Principle 9. Liability and compensation This provision is similar to the previous Principle, only in reference to Art. VII of the Outer Space Treaty on the same topic. This is a useful provision in that it refers the issue of liability back to hard law and does little more than reaffirm what is already provided for in international law. However, it does usefully describe what some of the expenses that might be compensated are, such as duly substantiated expenses for search, recovery and clean-up operations. Such a provision might also be usefully looked at by a legal body needing to make a decision on what the reasonable amount of compensation could be in the event of a tort claim under the Outer Space Treaty. One could say that this Principle provides clarity without disturbing existing waters. 11.Principle 10. Settlement of disputes Asking the parties to agree to resolving their differences by peaceful means in accordance with the United Nations Treaty is somewhat obvious but, as with many contracts, it is always helpful to be clear. In this particular instance, the signatories of the Principles are simply reaffirming their comittment to peaceful negotiations in this particular context. 12. Principle 11 : Review and revision This Principle may have played the most important role in the entire development of the Principles because it gave parties with reservations about the work assurances that, in the event that something did not work in the Principles, the issue could be revisited later on. This can be applied to both technical and legal questions that might arise in future. However, this provision has never been used, despite UNCOPUOS asking itself annually if the time is ripe for the revision of these Principles.

V. Conclusions As has been shown, the Principles are, essentially, a soft law instrument drafted in such a way as to be as vague and general as possible so no-one would see any reason not to comply with the provisions contained therein. The Principles

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have never been tested and they have seldom seen their provisions invoked for any reason. All the Principles are elaborations of principles contained in other, stronger instruments of international law. This instrument arguably has even less strength than even the most fringe members of the five hard law outer space treaties. By all accounts, at this stage, the Principles should be shelved and left for dead. And yet, the exercise of developing these Principles was not a waste. The Principles are the work of many of the finest experts in space law and nuclear technology, all of whom came together to make a general statement about their views and recommendations for what, in their expert opinion, is the bare minimum of acceptable safety standards in the use of NPS. Their views were made known at the highest level of international co-operation in outer space by means of one of the strongest recommendations available. Despite some reservations on complex legal terms, the overall effort was endorsed by every member of UNCOPUOS and the General Assembly. Such a statement cannot count for nothing. The Principles are, as of yet, not a part of customary law. Many legal experts would agree that they are not yet even remotely part of opinio juris. The Principles have not had the opportunity to be showcased in a real-world setting. However, many would agree that the overall ideas are sound and that compliance would be prudent. As mentioned earlier, voluntary compliance with the Principles can assure States that they are in compliance with their legal obligations when carrying out activities in space involving NPS and, at the same time, assure the people at large that such use is being done responsibly. In the years to come, these Principles might even form the basis for stronger laws. But for now, the drafters of the Principles can rest easy knowing that their efforts are strong seeds for the future.

Leopold Summerer ∙ Ulrike M. Bohlmann*

The STSC/IAEA Safety Framework for Space Nuclear Power Source Applications — Influence of Non-binding Recommendations I. Introduction Together with solar energy, nuclear energy is one of the two main options to power spacecraft for longer-duration space missions. While nuclear power sources have no longer been used in Earth orbit since over two decades, they remain mission enabling for e.g. outer solar system exploration missions. Accidents and events involving space nuclear power sources have led to a gradual adaptation of the safety measures applied by the US and the Soviet Union, for long the only two States developing such devices, as well as to the adoption in 1992 of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space as United Nations General Assembly resolution1. With increasing maturation of the safety processes and additional States having announced plans to use nuclear power sources in outer space, an international Safety Framework for nuclear power source applications in outer space has been developed by a joint expert group of the IAEA and the Scientific and Technical Subcommittee of UNCOPUOS. The main objective of the safety framework, to ‘protect people and the environment in Earth’s biosphere from potential hazards associated with relevant launch, operation and end-of-service phases of space nuclear power source applications’ is deliberately high level. Taking into account the different potential of national and international contexts in which safety processes for the use space nuclear power sources might be implemented, the document is written as a model framework. In this chapter we shortly introduce the subject matter and then analyse the characteristics of the safety framework, which lead to the conclusion that it can be considered as an interesting example of what has been The views expressed are purely personal and do not necessarily reflect the view of any entities with which one of the authors may be affiliated. The authors are very grateful to Teresa Kokaislová for her extremely valuable contribution in the editing process. 1 See Daniel Porras, supra 205–233. ∗

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labelled ‘soft law’, 2 falling outside the categories of the traditional system of the sources of international law, while serving its main purpose. From the earliest days of space activities, nuclear energy has been identified alongside solar energy as one of the two principal options to power spacecraft for longer than the short durations enabled by batteries. It is therefore not surprising that the space sector not only developed the first niche market for the still very expensive and experimental photovoltaic cells, but provided also in parallel the funds and the application for the development of small nuclear power sources.3 1. Types of Space Nuclear Power Sources While the term ‘nuclear power sources’ includes in principle all devices that make use of any form of energy (usually heat) generated via nuclear reactions, the more common categorisation distinguishes two classes of nuclear power sources : 1. radioisotope power sources and 2. nuclear reactors. The first type uses the heat generated during the decay of unstable isotopes. The second relies on the heat generated during a controlled and sustained nuclear fission reaction similar to the one used in terrestrial and naval reactors. Only these two types of nuclear power sources have so far been developed and used in space. Other nuclear processes that may be used to generate power, are all still at a conceptual or experimental stage. The heat generated during the nuclear processes can be used directly either as thermal energy to keep temperature-sensitive parts of spacecraft warm (e.g. radioisotope heater units) or to heat up a gas that is then expelled through a nozzle in the case of nuclear thermal propulsion concepts. As an alternative, the nuclear generated heat can also be converted into electric energy through either static or dynamic energy conversion processes. Examples are radioisotope thermo-electric generators for on-board power needs, nuclear electric propulsion concepts or nuclear surface reactors for the exploration of solar system bodies.4 2 See Steven Freeland, The Role of ‘Soft Law’ in Public International Law and its Relevance to the International Legal Regulation of Outer Space, supra 9–30. 3 For an interesting description of the early, space driven technology trajectory of photovoltaic technologies see e.g. Henry Kelly, Photovoltaic Power Systems : A Tour Through the Alternatives, 199 Science (1978), no. 4329, 634–43 ; John Perlin, From Space to Earth : The Story of Solar Electricity (Aatec Publications, Ann Arbor 1999). 4 See e.g. Gary L. Bennett, Space nuclear power : Opening the final frontier, 4th International Energy Conversion Engineering Conference and Exhibit (San Diego 2006) ; S. K. Borowski,

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The energy provided by space nuclear power sources ranges over roughly nine orders of magnitude, from a few thermal watt, or conceivably even much less, to several giga watt for nuclear thermal propulsion concepts. Figure 1 shows the power range of different types of space nuclear power sources.

 

Figure 1 : Power level comparison between space and terrestrial nuclear power systems.

2. Uses of Space Nuclear Power Sources Space nuclear power sources have been initially developed mainly due to the uncertainty of the reliability of the early photovoltaic systems, which had relatively poor power to mass and surface ratios, required larger surfaces possibly with deployment mechanisms, sun-pointing requirements for attitude control, a D. R. McCurdy, and T. W. Packard, Nuclear Thermal Propulsion for Human Exploration, ASEE Joint Propulsion Conference & Exhibit, 2008 ; Richard R. Furlong and Earl J. Wahlquist, U.S. Space missions using radioisotope power systems, Nuclear News (April 1999) ; Leopold Summerer and Keith Stephenson. Nuclear power sources : a key enabling technology for planetary exploration, Proceedings of the Institution of Mechanical Engineers, Part G, 225 Journal of Aerospace Engineering (2011) 129–143. doi : 10.1243/09544100JAERO766.

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  Figure 2 : Launches of space nuclear power sources (space reactors in dark grey, radioisotope power sources in light grey) from 1961 to 2011. The data point for 2011 assumes the launches as scheduled at time of writing of the US MSL and the Russian Fobos-Grunt missions.

relatively complex thermal management in case of eclipses, life-time uncertainties and some vulnerabilities (including to radiation damage, meteorite impacts). While there have been some development programmes for space nuclear power sources in Europe during the 1960s and 70s, only the two cold-war superpowers developed space qualified systems. The Soviet Union concentrated their efforts on the development of space nuclear reactors, of which over 30 have been used in low Earth orbit. The United States tested only one nuclear reactor in orbit but concentrated resources on the development of radioisotope power systems, which powered also well over 30 missions.5 5 See e.g. Marietta Benkö and Willem de Graaff, The use of nuclear power sources in outer space, in : Marietta Benkö, Willem de Graaff and Gijsbertha C.M. Reijnen, Space law and the United Nations (Martinus Nijhoff Publishers, Dordrecht 1985) 49 et seq.; Richard P. Furlong and Earl J. Wahlquist, U.S. Space missions using radioisotope power systems, Nuclear News, April 1999, 24–36 ; J. Hesse and E. F. Schmidt, Zur Entwicklung thermo-electrischer Radionuklidbatterien, Kerntechnik bei Satelliten und Raketen, in : Horst Löb (ed.), Kerntechnik bei Satelliten und Raketen : Nuclear engineering for satellites and rockets (Thiemig, München

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  Figure 3 : Semi-logarithmic plot of the decrease of solar irradiance with increasing distance to the sun.

With improving reliabilities and increasing efficiencies of photovoltaic systems, the use of radioisotope power sources in Earth orbits has become more and more impractical due to safety and cost considerations. In the first decades of space activities, radioisotope systems were used on navigational, meteorological and communication satellites in Earth orbit. The last Earth-orbiting RTG-powered spacecraft was launched in 1976.6 All other radioisotope-powered missions went beyond Earth orbits. They were used e.g. for sensing seismic activity and on missions conducting science experiments on the Moon and Mars, including the human lunar missions within the Apollo programme. Most interplanetary missions to Mars and beyond have relied on radioisotope power sources, which are still the only practical option for outer solar system missions due to the low intensity of solar radiation at these distances. (Figure 3) 1970) ; Alexey Pustovalov, Radioisotope Power Sources, ESA-Report (CJSC RIE BIAPOS, 2005), 2005. 6 See e.g. Jr. Sarles et al., The Lincoln Experimental Satellites LES–8 and –9, in EASCON–77 ; Electronics and Aerospace Systems Convention — Imaginative Engineering thru Education and Experience, 1977, Arlington, Va., 26–28 September, p. 21–1A to 21–1U.

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Space nuclear reactors have been used in space solely for technology demonstration and defence missions so far. Bouk and Topaz type reactors provided the relatively high power required and small atmospheric drag cross section designs for the low-orbiting Soviet radar-based Earth and Ocean observation spacecraft. The last of these was launched in 1987.7 Since the early 1990s, only radioisotope power sources have been used in space and all of them on-board of interplanetary spacecraft leaving closed Earth orbits.8 (Figure 2) All of the spectacular images and scientific data from the outer solar system, from Jupiter, Saturn, Uranus, Neptune and Pluto have been enabled by the power provided by radioisotope power sources. Thanks to the power provided by its RTGs, man-made spacecraft have been even leaving the solar system, heading further outwards at already more than 17 Billion kilometres distance.9 3. Specific Safety Regime for Space Nuclear Power Sources Space nuclear power sources rely on the same physical principles as terrestrial nuclear power sources, and their terrestrial development, production and testing is entirely covered by standard nuclear safety regulations. However, their application regime during launch and in outer space is fundamentally different from terrestrial and naval applications, thus requiring also specific safety provisions.

7 See e.g. N. N. Ponomarev-Stepnoi, V. M. Talyzin and V. A. Usov, Russian space nuclear power and nuclear thermal propulsion systems, 43 Nuclear News, no. 13 (2000) 33–46. 8 See e.g. Alexey Pustovalov, Mini RTG on plutonium–238 : development and application, Proceedings 18th International Conference on Thermoelectrics (ICT–99) (Baltimore, USA, 1999) ; Alexey Pustovalov, Victor Polyakov and Valery Nikulichev, Certification of plutonium–238 radionuclide power sources for Mars–96 international mission, 2 Space Bulletin, no. 4 (1995) 8–9 ; Leopold Summerer and Keith Stephenson, ‘Nuclear power sources : a key enabling technology for planetary exploration’ ; Office of Nuclear Energy US Department of Energy, ‘Radioisotope Power Systems’, 2009, http ://www.ne.doe.gov/space/neSpace2d.html (10/08/2011). 9 See e.g. Ellen R. Stofan and William Anders, Priorities in Space Science Enabled by Nuclear Power and Propulsion (US National Research Council, National Academy of Sciences, 2005), http ://books.nap.edu/catalog/11432.html (10/08/2011) ; Joseph A. Burns, The four hundred years of planetary science since Galileo and Kepler, 466 Nature, no. 7306 (July 2010) 575– 584 ; Geoff Brumfiel, Voyager at the edge, Nature (June 2011), available at http ://www.nature. com/news/2011/110615/full/news.2011.370.html (25/10/2011) ; Stamatios M. Krimigis et al., Zero outward flow velocity for plasma in a heliosheath transition layer, 474 Nature, no. 7351 (June 2011) 359–361.

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The particularities in the design of space nuclear power sources with respect to terrestrial devices are related to the following aspects : – Mass restrictions : Since all space missions need to be mass optimised, due to the direct link between mass and mission costs, simply adding extra mass is not available as a simple solution to design problems as it is on Earth. This point is especially critical for reactor designs (e.g. shielding and heat rejection systems). – Launch and Space Environments : the environments, both operational and accidental, that space NPS need to be designed for are radically different from those for most terrestrial devices : these include dynamic loads (e.g. during launch and accidents), high vacuums, high temperature gradients and fast temperature changes in the environment, a relatively high natural radiation dose from the space environment as well as threats related to micrometeorites and eventually space debris at extremely high relative velocities. Furthermore, space systems also have other requirements, which are related to the pristinity of outer space and implemented as ‘planetary protection’ measures. These are related to the avoidance of biological cross contamination. Planetary protection requirements result in actions to reduce the bio-burden on spacecraft and are thus dealt with via cleanliness and surface treatments of space hardware, e.g. temperature treatment, chemical treatments, irradiation treatments. – Heat rejection systems : as all power sources, space nuclear power systems also generate substantial amounts of waste heat due to conversion inefficiencies. In most space environments, the only suitable means to reject this excess heat is radiation, while terrestrially, convection and conduction are primarily used. Radiative heat rejection is however only efficient at high temperatures, thus driving the design of operating temperatures of e.g. reactor cores. Heat rejection systems tend to dominate overall mass and size for nuclear electric systems for power or propulsion. – Autonomy : while terrestrial devices are usually designed to be regularly serviced and maintained, space systems need to function with a much higher degree of autonomy, since even remote controlled systems are most of the time impractical or unfeasible due to communication time delays. Round trip communication times make real time monitored control impossible, which is especially important for systems requiring active control such as reactors. – Nuclear system as single point failures : some missions are designed with the nuclear power source as key enabling elements and due to its overall mass,

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subsystem-level redundancy would not be an option. Therefore, failures of the nuclear system, even if not related to nuclear safety, are likely to threaten mission success and in case of human missions pose substantial, non-nuclear safety threats. – End of Life requirements : for space NPS, there might be end of life requirements related to planetary protection, e.g. creation of life favourable conditions via temperature increases, which are entirely absent for terrestrial devices. While the shut-down at surfaces might otherwise be relatively unproblematic, the end of life of nuclear power sources in Earth orbits which are not stable over the very long term pose certain difficulties, e.g. space debris collisions or uncontrollability.

II. Scope The international safety framework defines a space nuclear power source as ‘a device that uses radioisotopes or a nuclear reactor for electrical power generation, heating or propulsion in a space application’.10 By not making any reference to current designs nor type of uses, this definition substantially enlarges the scope of the framework with respect to the scope of the Safety Principles from 1992, which included only known applications for electricity generation by specifying in the preamble ‘that this set of Principles applies to nuclear power sources in outer space devoted to the generation of electric power on board space objects for non-propulsive purposes, which have characteristics generally comparable to those of systems used and missions performed at the time of the adoption of the Principles’.11 The scope of the framework is however limited in two main aspects. The main objective of the framework, ‘to protect people and the environment in Earth’s biosphere from potential hazards associated with relevant launch, operation and end-of-service phases of space nuclear power source applications’ limits its scope by not including first, the protection of extra-terrestrial environments and second, the protection of humans in space, which are both specifically excluded.12 10 See Safety Framework for Nuclear Power Source Applications in Outer Space, A/AC.105/934 (United Nations Committee on the Peaceful Uses of Outer Space and IAEA, 2009) 8. 11 See Principles Relevant to the Use of Nuclear Power Sources in Outer Space, GA Res 47/68 of 14 December 14 1992, 1. 12 See Safety Framework for Nuclear Power Source Applications in Outer Space, 8 ; on the pro-

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Both are excluded by referring to the scope of the framework as well as to the uncertainties related to the still limited scientific understanding of these aspects, stating that these are still areas of ongoing research.13 The later argument might be interpreted as leaving the door open to inclusion of this aspect in any potential future revision of the framework since the formulation in the text ‘scientific data do not yet exist’ specifically indicates that such data might be available in a foreseeable future, which would then ‘provide a technically sound basis’ for their inclusion.14 The scope of the framework is reflecting the experience base, which has been used to develop its provisions. The process of establishing the objectives, scope and attributes of the framework, which has been one of the objectives of the workplan of the concerned UNCOPUOS subcommittee for the period 2003– 2006, relied mainly on the experience and expertise from both the United States of America and the Russian Federation. In both countries, space nuclear power sources have been used exclusively by government agencies, mainly in purely national settings. Therefore, even though the framework is fully applicable to missions conducted by ‘governmental agencies or by non-governmental entities’,15 the provisions of the framework reflect the existing best practices and expertise, which have been developed for governmental missions. While based on current best knowledge, these should also be well suited for e.g. eventual commercial missions, only a return on experience of the application of the framework for such mission could confirm this assumption.

III. Development of the Safety Framework This chapter describes the processes and activities between the adoption of the NPS Principles in 1992 and the adoption of the Safety Framework in 2009.

tection of the extra-terrestrial environment, see Ulrike Bohlmann, Planetary Protection in Public International Law, Proceedings of the 46th Colloquium on the Law of Outer Space (2003) 18. 13 See Safety Framework for Nuclear Power Source Applications in Outer Space, 8. 14 See ibid., section 1.3, 2. 15 See ibid., section 3.1, 3.

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1. From the adoption of the 1992 NPS Principles to the re-establishment of the NPS Working Group When the NPS principles were adopted in 1992, it was already clear that the compromise found for its adoption after more than a decade of discussions and negotiations would need to be updated. The introductory preamble recognised ‘that this set of Principles will require future revision in view of emerging nuclear power applications and of evolving international recommendations on radiological protection’, an understanding that entered the text since its Principle 11 specifies that ‘these Principles shall be reopened for revision by the Committee on the Peaceful Uses of Outer Space no later than two years after their adoption’. Like all international agreements related to space activities, the Principles have also been the result of superpower rivalry between the United States and the Soviet Union. The disintegration of the latter therefore substantially changed the motivations of both for further agreements during the 1990s. The Russian Federation was no longer launching space nuclear reactors, there were no other countries than the US engaged in any substantial space nuclear power source development and any re-opening of the discussions on the principles would de facto have had the US as sole addressee. As a consequence, practically no real progress towards a revision as agreed upon in Principle 11 was made during the 1990s, a decade which witnessed the accident of the Russian Mars’96 spacecraft, re-entering with its radioisotope power sources off the south American west coast and the highly publicised launch in October 1997 of the CassiniHuygens spacecraft, which triggered some controversy and an in-depth nuclear safety scrutiny due to it’s Earth flyby.16 16 See for the Mars’96 accident e.g. Tony Reichhardt, Carl Levitin and Ehsan Masood, Lost Mars mission thrusts Russian space science further into crisis, 384 Nature, no. 6606 (November 1996) 199 ; for a first evaluation and Pustovalov, Polyakov, and Nikulichev, supra fn 8 ; for a first hand and technical account on the safety aspects of the embarked RPS see Yu. K. Zavalishin et al., Technological capabilities to manufacture heat sources based on plutonium–238, 12 International Scientific Journal for Alternative Energy and Ecology (2004) 42–45 ; for the Russian RPS fabrication and certification process for and after the Mars’96 mission RPS ; see for an analysis of the Cassini re-entry risk evaluation e.g. M. V Frank, Probabilistic analysis of the inadvertent reentry of the Cassini spacecraft’s radioisotope thermoelectric generators, 20 Risk Analysis (2000) 251–260 ; for the details of the method for the propagation of uncertainty for the Cassini risk analysis Frank J. Kampas and Stephen Loughin, Deconvolution of variability and uncertainty in the Cassini safety analysis, AIP Conference Proceedings (presented at the Space technology and applications international forum — 1998, Albuquerque,

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The topic of nuclear safety was however not entirely absent from the discussion within the Scientific and Technical Subcommittee (STSC) of UNCOPUOS since it was dealt with in quite some detail under the agenda items on space debris. These deliberations within the STSC included several presentations of results from national research programmes on the safety of nuclear-powered satellites and problems of collisions of nuclear-powered sources with space debris. These were of course mainly focussing on still orbiting Soviet nuclear reactors and debris they were releasing.17 The Legal Subcommittee continued over the years to refrain from addressing the issue directly but noted the discussions in the STSC. 2. 1998–2002 : Gathering information and evaluating options In the year of the Cassini launch, the STSC decided to re-establish the Working Group on the Use of Nuclear Power Sources in Outer Space, which re-convened for the first time in February 1998 with the relatively limited mandate ‘to identify and study the current international technical standards pertinent to the use of nuclear power sources’. The mandate resulted in a multi-year work plan for ‘developing a framework for safety assurance processes and standards for nuclear power sources in outer space’. At the same session in 1998, the Subcommittee agreed — contrary to Principle 11 of the resolution 47/68 — that ‘the revision of the Principles was not warranted’.18 At the same time, the STSC agreed that it was inappropriate to pass on the topic to the Legal Subcommittee ‘until a firm scientific and technical consensus would have been reached’. 19 The multi-year work plan provided for ample time to gather and analyse all types of potentially relevant information on ‘terrestrial processes and technical standards that may be New Mexico/USA 1998), 1263–1268 ; as well as M. Frank, Treatment of uncertainties in space nuclear risk assessment with examples from Cassini mission applications, 66 Reliability Engineering & System Safety (December 1999) 203–221 ; A. D. Rossin, Plutonium–238 and Cassini, 308 Science, no. 5727 (June 2005) 1412a. 17 See e.g. addenda 1–4 of Committee on the Peaceful Uses of Outer Space, National research on space debris, safety of nuclear-powered satellites and problems of collisions of nuclearpowered sources with space debris, A/AC.105/593/, 1995 Add.1–Add.4 containing reports from France, the Russian Federation, Germany and the UK. 18 See Working Group on the Use of Nuclear Power Sources in Outer Space, A review of international documents and national processes potentially relevant to the peaceful uses of nuclear power sources in outer space, A/AC.105/781, 2002, 3, para. 3. 19 Ibid.

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relevant to nuclear power sources’, as well as a review of ‘national and international processes, proposals and standards’.20 The resulting review not only included various conventions, standards, recommendations and other technical documents of potential relevance to space nuclear power sources that could be useful in facilitating any future discussions on safety processes and standards, but it also included a useful section on the ‘processes used to develop and obtain consensus on international technical documents in related areas.’21 Even though it was not included explicitly in the original work plan from 1998, this information would later prove useful concerning the joint STSC-IAEA development process of the safety framework. 3. 2003–2007 : Agreement on the objectives, scopes and attributes of a new international space nuclear safety document Following the discussion on the report containing the review of international documents and national processes in 2002, a new work plan was adopted in 2003 for the period of 2003–2006 with the aim to prepare the development of a new text in form of a ‘framework’. There were intense discussions on the type of document that could be developed. The smallest common denominator has been the use of the term ‘framework’, instead of ‘standard’. Formally, the main aim of the new work plan was to ‘establish the objectives, scope and attributes’ of an ‘international, technically based framework of goals and recommendations for the safety of nuclear power source (NPS) applications in outer space’. The first analysis of the benefits of including the IAEA in the process being positive, the working group was specifically tasked to investigate the possibility of developing the framework through a flexible partnership with the International Atomic Energy Agency (IAEA) with a view to benefiting from that organisation’s relevant expertise and well-established procedures for developing safety standards.22 The work plan was amended in 2005 to include a joint workshop between the STSC and the IAEA in February 2006 and to delay the delivery of the final report by one year to 2007. 20 See ibid., 3, para. 4. 21 Ibid., 11, para. 52. 22 The workplan was adopted as appendix III of Committee on the Peaceful Uses of Outer Space, Report of the Scientific and Technical Subcommittee on its fortieth session, held in Vienna from 17 to 28 February 2003, A/AC.105/804, 2003, 46–47, appendix III.

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During the sessions in February and June 2006, intense discussions on the option of a full partnership with the IAEA took place. Such a partnership to develop space law texts had no precedence within UNCOPUOS and there were several open questions essentially related to the different approval and working processes between UNCOPUOS and the IAEA.23 The discussions focused on essentially three main, non-exclusive options developed together with the IAEA : The first option consisted of a joint programme of work with IAEA using IAEA’s safety standard development process with involvement of experts from the STSC. The second option was the organisation of a joint workshop during which the IAEA expertise could be brought in to the process. The third option was the organisationally simplest one, namely essentially to ‘promote work by interested members of the Working Group […] to develop common standards on a multilateral basis, for consideration by the STSC’ and a peer review by the IAEA of the draft standards.24 Tendentially, the participating European delegations, especially France, were leaning towards a strong integration of the IAEA, while the US delegation was hesitating. The Russian delegation and most of the other participants did not express strong preferences. The joint workshop in February 2006 addressed only some of these points, others were clarified in an exchange of letters with the IAEA during 2006. There were also some uncertainties within the IAEA about such a new document, especially since the IAEA was about to publish its Safety Fundamentals25 document, which would for the first time combine previously separated high-level documents and which was intended to serve as a foundation for all IAEA safety standards. Already the draft versions of this document however made it clear that it would not be applicable also to space nuclear power source applications.26 Nevertheless, by the inter-ses23 The actual partnership was then between the STSC and the IAEA, mainly to keep the discussions on a technical level only. A partnership between the UNCOPUOS main committee and the IAEA would probably have aroused discussions on the involvement and role also of its Legal Subcommittee. 24 See Scientific and Technical Subcommittee of the UN Committee on the Peaceful Uses of Outer Space, Possible organizational plans for potential co-sponsorship of an effort to develop an international space nuclear power source technical safety standard and potential advice of the International Atomic Energy Agency to the Scientific and Technical Subcommittee in the preparation of such a standard, A/AC.105/C.1/L.268, 2003. 25 IAEA, Fundamental Safety Principles, IAEA Safety Standard Series SF–1 (Vienna, Austria : IAEA, 2006) available at http ://www.iaea.org/Publications/Booklets/Safety/safetyframework 1009.pdf (25/10/2011). 26 An analysis of one of the draft documents further raised some discussions on its development

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sional meeting of the NPS Working Group in June 2006, a principal consensus was reached in favour of a partnership with the IAEA. In addition to clarifying some aspects related to the IAEA processes and cooperation options, the Workshop provided a forum for sharing views and information between national and regional agencies, participating member States and IAEA. Presentations were made on the topics of ongoing, planned and currently foreseeable space NPS applications ; information on NPS in relation to space debris and information on the scope, attributes and objectives of a space NPS safety framework, most notably the minimum essential elements of such a framework from the perspective of both radioisotope and reactor applications. Along with the United States, the Russian Federation and France, ESA made two presentations on ongoing, planned and currently foreseeable NPS applications in space as well as on minimum essential elements of an international safety framework for the use of radioisotope power sources. By end of 2006, the key characteristics of the safety framework had already been agreed upon : they should be general and qualitative in nature, technically valid and relatively independent of evolving technology and be in the form of guidelines, which reflect broad international consensus.27 4. 2007–2009 : Drafting of the Safety Framework The actual development and drafting of the framework started in 2007, when the Working Group agreed on the implementation option of the framework, which essentially consisted of a partnership with the IAEA and the creation of a ‘Joint Experts Group’ that would carry out the actual work and would be allowed to work to a large extent outside the standard constraints (e.g. work in English only and also outside of UNCOPUOS sessions). The new multi-year work plan foresaw four years to draft, agree and publish the framework. The US delegation initiated the drafting process with a ‘strawman’ paper on the proposed outline of the framework document at the first meeting of the newly established Joint Experts process and the role of the IAEA secretariat since there appeared to be textual changes (e.g. a reference to space nuclear power sources in a footnote) which were added and deleted in a process that included fewer oversight by member States than this were possible for a document developed by UNCOPUOS. 27 See Scientific and Technical Subcommittee of the UN Committee on the Peaceful Uses of Outer Space, Report of the Scientific and Technical Subcommittee on its forty-third session held in Vienna from 20 February to 3 March 2006, A/AC.105/869, 2006, 40–47, Annex III.

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Group in June 2007.28 Thanks to the extensive preparation period between 2003 and 2007, which allowed harmonising the respective expectations, the Joint Experts Group29 agreed already after two working meetings on a first draft of the safety framework, which was distributed end of 2007 to STSC member States.30 The remaining open points within the Joint Experts Group after the first iterations were essentially related to the use of IAEA terminology (e.g. use of ‘prime responsibility’), to the uncertainty regarding implementation options of different provisions to missions conducted by international, intergovernmental organisations such as ESA (e.g. differentiation between governmental, managerial and technical guidelines). The main concerns and questions raised during the review of the first draft by IAEA and UNCOPUOS Member States were related to the non-binding nature of the document, the potential of the use of NPS in Earth orbits, the use of IAEA terminology (e.g. ‘as low as reasonably achievable’) and the relationship between the framework and the NPS Principles. Most of these points were however already agreed upon within the document agreed upon in 2007 by UNCOPUOS and IAEA member States accepting the work plan.31 The IAEA review process, which included not only the IAEA Commission on Safety Standards, but also all four of its specialised committees,32 resulted in fewer comments than initially anticipated,33 leading to only minor textual changes in the first draft introduced during revisions in 2008. 28 As an indication of the relative independence of the work procedures of the Joint Experts Group, its first meeting took place not at the premises of the United Nations in Vienna but at the premises of the European Space Policy Institute (ESPI) in Vienna. 29 As during the preparation phases, the NPS working group and the Joint Experts Group was led by Dr. Sam Harbison from the UK delegation. While there were small fluctuations in the participating delegates to the NPS Working Group, a core group of delegates from the US, Russia, France, UK, Germany and ESA remained essentially unchanged, participated to all meetings and provided most of the content during the drafting phase. 30 See Working Group on the Use of Nuclear Power Sources in Outer Space, Draft Safety Framework for Nuclear Power Source Applications in Outer Space, A/AC.105/C.1/L.292, 2007. 31 As part of the Document Preparation Profile, annex II to Scientific and Technical Subcommittee of the UN Committee on the Peaceful Uses of Outer Space, Development of an international technically based framework of goals and recommendations for the safety of planned and currently foreseeable nuclear power source applications in outer space, A/AC.105/C.1/L.289/ Rev.1, 2007, 14. 32 The IAEA committees having reviewed the document have been Nuclear Safety Standards Committee, the Radiation Safety Standards Committee, the Transport Safety Standards Committee and the Waste Safety Standards Committee. 33 Comments were received only from the United States of America and Venezuela.

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The final draft could therefore be agreed upon by the Joint Experts Group,34 the NPS working group and the STSC already one year ahead of schedule in February 2009. The framework then received the formal approval by the IAEA Commission on Safety Standards in April 2009, and the endorsement by the UNCOPUOS Main Committee in June 2009. It was published as a joint document by the IAEA after it had been ‘welcomed with satisfaction’ by the United Nations General Assembly.35

IV. Application of the Safety Framework The main objective of the safety framework is very high level, reflecting the general approach of the document to function as an over-arching, umbrella document laying a basis similar to the Safety Fundamentals within the IAEA Safety Standard Series.36 In section 2 of the framework, it is stated that ‘The fundamental safety objective is to protect people and the environment in Earth’s biosphere from potential hazards associated with relevant launch, operation and end-ofservice phases of space nuclear power source applications.’ Section 2 then further specifies that for achieving this objective, all type of organisational entities, not only governments, involved in space NPS applications are required to ‘take measures to ensure that people (individually and collectively) and the environment are protected’. The very same phrase however also includes the acknowledgement that space activities cannot be done without taking risks, as it concludes ‘without unduly limiting the use of space NPS applications’. A ‘space NPS application’ is defined in the frame of the safety framework as ‘the overall system (space nuclear power source, spacecraft, launch system, mission design, flight rules etc.) involved in conducting a space mission involving a space nuclear power source’. While not explicitly stated, the discussions within the Joint Experts Group demonstrate that depending on each mission, and thus very likely on a case by case basis, a trade-off needs to be made, a balance needs to be found between the requirement for protection 34 The final text has been agreed upon by the Joint Experts Group at its 6th meeting in February 2009. 35 See United Nations General Assembly, International cooperation in the peaceful uses of outer space — Report of the Special Political and Decolonization Committee (Fourth Committee), A/64/404, 2009, 5. 36 See IAEA, Safety Fundamentals.

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against the ‘potential for harm to people and the environment in Earth’s biosphere due to an accident’ (the residual risk) and the expected benefits of the space NPS application. The framework does not make recommendations on how this benefit should be measured and what types of benefits are included or excluded. It only specifies that such an analysis needs to be done and who has the responsibility to do so : Paragraph 3.2 recommends that governmental entities need to make this judgment : Due to the potential risk introduced by space NPS applications, ‘governments and relevant international intergovernmental organisations that authorise, approve or conduct space NPS missions should ensure that the rationale for each space NPS application considers alternatives and is appropriately justified.’ The text speaks about the rationale for the space NPS application, thus highlighting the analysis to be made on the overall system, though the inclusion of ‘considers alternatives’ clearly includes both components : alternatives to nuclear power sources and alternatives to achieve the goals of the mission in entirely different ways. In practical terms, most technical effort is likely to be made for the analysis of alternatives to the use of space nuclear power sources onboard of missions. Without mentioning the word the last phrase of para. 3.2 nevertheless implies a ‘trade-off’ between the benefits and the risks : ‘The process should consider benefits and risks to people and the environment related to relevant launch, operation and end-of-service phases of the space NPS application.’ The framework then further differentiates the resulting recommendations between those for governments, for management and general, high-level technical recommendations. In the following paragraphs, each of these will be analysed with respect to their implications on space missions. 1. Guidance for governments The chapter about guidance for governments is divided into four areas, which can all be related to the responsibilities of launching States without being limited to these. In the spirit of the Outer Space Treaty, 37 and the Liability Convention,38 the recommendations in the safety framework specify special re37 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, GA Res 2222 (XXI) of 10 October 1967. 610 UNTS 205. 38 Convention on the International Liability for Damage Caused by Space Objects, vol. 2777, 1972 ; 961 UNTS 187.

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sponsibilities for safety of involved governments due to the potentially global risk associated with space nuclear power source applications. Three of the recommendations for governments deal with regulatory aspects, namely the establishment of and ensuring compliance with safety policies, requirements and processes, the verification of the justification and the establishment of a dedicated, supplementary nuclear launch authorisation process, while the fourth recommendation involves also direct governmental activities, namely the preparation for emergency preparedness and response. While Art. II of the Liability Convention stipulates the absolute liability39 of Launching States for damage caused by a space object on the surface of the Earth or to aircraft in flight, with the intention to also incite Launching States to make special efforts to reduce residual risks related to launches, the safety framework recommends to governments and international intergovernmental organisations concrete methods and means how to best reduce the residual risk of harm and protect people and the environment in Earth’s biosphere from potential hazards associated with relevant launch, operation and end-of-service phases of space nuclear power source applications by relying on best practices.40 In doing so, the implicit assumption has been made that the experience and expertise gained by both the US and the Soviet Union/Russia during the last 50 years of using space nuclear power sources is valuable and transposable to other countries and organisational setups. The guidance in this chapter of the Safety Framework is addressed to ‘governments and relevant international intergovernmental organisations’ — the only relevant international intergovernmental organisation in this context at the moment being the European Space Agency (ESA) — except for the recommendations related to the mission launch authorisation process for space nuclear power source applications, that is addressed only to the government that oversees and authorises the launch operations for space NPS missions. Since this process needs to ‘supplement the [governmental] authorisation processes covering non-nuclear and terrestrial aspects of launch safety’, it has made sense to keep it within that same organisational setup. 39 Ibid., Art. 2 : ‘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 in flight’. 40 See Safety Framework for Nuclear Power Source Applications in Outer Space, 2, chapter 2 ; see as well Scientific and Technical Subcommittee of the UN Committee on the Peaceful Uses of Outer Space, Development of an international technically based framework of goals and recommendations for the safety of planned and currently foreseeable nuclear power source applications in outer space, p. 3, chapter III, section A.

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Applying this recommendation to the case of an international intergovernmental organisation, such as ESA, implies that the regular launch authorisation process, which is ideally taken care of by one State for any given launch, would need to be complemented by a dedicated ‘mission launch authorization process focused on nuclear safety aspects’ organised by the relevant government, e.g. France in the case of a launch from the European Space Port the Guiana Space Centre CSG, Kourou, in French Guiana. The international intergovernmental organisation could then be considered as one of the ‘participating organisations’, from which ‘all relevant information and considerations’ need to be evaluated by the government in question. The article related to the authorisation process further recommends the establishment of ‘an independent safety evaluation’ as ‘an integral part of the authorisation process’. The framework also specifies what is meant by ‘independent’, by giving the example of ‘a review, independent of the management organisation conducting the mission’. At first reading, the application of this recommendation for ESA missions involving space nuclear power sources leads to the question how much ESA, which is clearly the ‘management organisation conducting mission’ could also be conducting the ‘independent safety evaluation’ and how much organisations such as national agencies which are substantially involved in ESA (e.g. for the choices and decisions related to the goals, scope and sometimes even technical choices made for ESA missions) could be considered as independent of the organisation conducting the mission. This recommendation is derived from the approach adopted in the US where the launch approval requirements and process for the launch of space NPS applications is regulated via 1. the National Environmental Policy Act (NEPA)41 and 2. the Presidential Directive/National Security Council Memorandum No. 25 entitled ‘Scientific or Technological Experiments with Possible Large-Scale Adverse Environmental Effects and Launch of Nuclear Systems into Space’42 (PD/ NSC-25).43 While the NEPA process aims at ensuring the serious consideration 41 National Environmental Policy Act, 42 U.S.C. 4321–4347, 1969. 42 With change dated May 8, 1996. 43 The presidential directive is not in the public domain and its content is therefore only inferred to via and its application and secondary publications. See e.g. Bryan O’Connor, Coordinate Nuclear Launch Safety Approval (NASA, January 17, 2006) ; Reed E. Wilcox, Safety in the Design and Development of United States Space NPS Applications (presented at the UNCOPUOS STSC Workshop on the use of nuclear power sources in outer space, United Nations,

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of potential environmental impacts of such launches and reasonable alternatives, the PD/NSC-25 directive aims at ensuring informed decision-making at the presidential level before launching NPS and is thus usually completed only relatively shortly before the launch. The PD/NSC-25 process involves, in addition to the agency conducting the mission, e.g. NASA, the Department of Energy (DoE), which leads most of the activities concerning the estimation of the radiological risk in a Safety Analysis Report, which is then evaluated in form of a Safety Evaluation Report by an independent Ad Hoc Interagency Nuclear Safety Review Panel (INSRP), which in turn includes all key governmental stakeholders before nuclear safety launch approval is requested by the Director of the President’s Office of Science and Technology Policy, based on these reports and the comments / support from the DoE and the Environmental Protection Agency. It is then this highest level within the US administration which takes the political decision, usually based on additional adhoc advice from external independent experts, whether the calculated residual overall mission risk, quantified via accident scenario probabilities risk and associated error is worth the expected usually science-related benefits. This nuclear safety approval is then an input to the regular range of the safety launch approval process. The recommended qualification of the review as being ‘independent of the management organisation conducting the mission’ thus is interpreted at the US national level as an administrative independence of involved organisations, even though these are of course part of the same executive branch of government, funded via the same federal budget and ultimately reporting to the US President. Independence therefore could be interpreted as contingent on the hierarchical level at which interactions occur. For the case of international intergovernmental organisations and specifically ESA, one could argue that national agencies, despite their involvement in ESA would in this sense be independent enough from ESA, as the organisation conducting the mission, to qualify for conducting such a review since the hierarchical level of independence between the two organisations is sufficiently high not to influence the impartiality of the safety review process. Based on the same argument, one could even go one step further and assess to what degree the internal structure of ESA, and specifically its independent safety office might qualify as being sufficiently independent of the internal organisational unit conducting the mission. Vienna, Austria, February 2011).

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These first questions on the most appropriate way to interpret the application of the recommendation in the international safety framework related to the conduct of an independent review panel demonstrate that not all recommendations, even those which are clearly for national setups, are straight-forward to apply in the case of organisations such as ESA. It is therefore important to highlight that the framework intends to provide guidelines and guidance, which needs to be adapted to different national or international situations to suit best the overall safety objective of protecting people and the environment. Whatever the conclusion will be on the status and organisation of the independent safety review, it is clear that the implementation of the recommendation requires an additional approval and decision process, in parallel to the regular launch safety approval process. In order to elaborate further on the question of independence, it is useful to consider how governments and their national space agencies are involved in missions conducted by international intergovernmental organisations. In the case of ESA missions, governments will be involved in two, possibly three ways : 1. Via their membership in the organisation and thus via their funding of the general budget of the agency and its strategic decision making ; 2. Via their participation in the specific mission, which includes being involved in all major decisions of the development and conduct of the mission on a regular basis, e.g. objectives, scope, partners, cooperation, industrial implementation, duration ; most notably, this also includes the approval of all major industrial contracts before they are issued for tender and 3. Via their possible role as launching state(s) ; in the case of ESA missions from CSG, France obviously falls into this category, but other scenarios can also be envisaged, e.g. in the case of a partnership with other national agencies. The safety framework recommends to all ‘governments and relevant international intergovernmental organisations that authorise or approve space NPS missions, whether such missions are conducted by governmental agencies or by non-governmental entities, to establish and ensure compliance with their respective safety policies, requirements and processes to satisfy the fundamental safety objective and fulfil their safety requirements.’ The formulation echoes the idea and parts of the wording of the first sentence of Art. VI Outer Space Treaty,

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‘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’

which in turn is almost in its entirety reproduced in the first sentence of Principle 8 of the UN Principles Relevant to the Use of Nuclear Power Sources in Outer Space.44 ‘States shall bear international responsibility for national activities involving the use of nuclear power sources in outer space, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that such national activities are carried out in conformity with that Treaty and the recommendations contained in these Principles.’

The terms ‘authorisation’ and ‘approval’ are defined in the global IAEA Safety Glossary,45 to which reference is made in the specific glossary of the Safety Framework. Both terms mean the granting of consent by a regulatory body with ‘approval’ standing for a more formal process usually implying a written permission for an operator to perform specified activities. Both definitions give room for large interpretations, which is also in line with the intention of the Safety Framework. The possibility that a multilateral approval might be required for a specific activity is already anticipated in the IAEA Safety Glossary. Consequently, more than one State or international organisation may be considered as approving or authorising a space NPS mission. Such a space NPS mission could therefore be submitted to a number of conflicting jurisdictions and consequently to multiple procedures of technical scrutiny. For these cases as well as for the case of 44 GA Resolution 47/68 of 14 December 1992. The first sentence of Principle 8 reads : ‘States shall bear international responsibility for national activities involving the use of nuclear power sources in outer space, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that such national activities are carried out in conformity with that Treaty and the recommendations contained in these Principles’ ; (emphasis added). 45 IAEA Safety Glossary : Terminology Used in Nuclear Safety and Radiation Protection, 2007 Edition, available at http ://www-pub.iaea.org/MTCD/publications/PDF/Pub1290_web.pdf (10/08/2011).

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a space NPS mission carried out by an international intergovernmental organisation, that in most cases certainly will necessitate an additional authorisation or approval from the launching State in question, it would be preferable to develop common, integrated, joint safety policies, requirements and processes or at least strive for a further harmonisation of existing ones. Concerning the organisations involved in conducting the ‘independent safety assessment’, the technical work could be done by an ad-hoc panel composed of experts from all those governmental entities involved in the authorisation or approval of the space NPS application. Technical Nuclear Safety Organisations seem to be natural candidates for this task. In the case of France and Germany these would likely be the French Institut de Radioprotection et de Sûreté Nucléaire (IRSN), and the German Gesellschaft für Reaktorsicherheit (GRS), both of which have already been involved in preliminary studies related to options for organising a European space nuclear safety framework.46 The details will strongly depend on the decision which entity will play the equivalent role of the US President’s Office of Science and Technology Policy in a European approval process. One could imagine that the international intergovernmental organisation might delegate this task to one member State, or, according to its internal structure, one of the organisation’s organs would be an option, either the chief executive officer or the assembly of parties. A preliminary study on the options for a European space nuclear safety framework has pointed in the direction to provide the independent French Nuclear Safety Authority (ASN) with a prominent role in cases of launches from the Guiana Space Centre (CSG), contrary to the only secondary role its US equivalent, the Nuclear Regulatory Commission (NRC) is playing in the US safety approval process.47 2. Guidance This section of the framework contains suggestions for the management of space NPS applications, and is thus most relevant for the organisations ‘involved in space NPS applications’. The scope is deliberately again very large and encompassing, ensuring that the formulations include all those entities actually 46 See e.g. M. Sogalla, F. Sentuc, and G. Pretzsch, Safety of radioisotope power sources for space missions, Eurosafe Forum 2008 (Paris, 2008) ; Leopold Summerer, ENSaF-Steps towards a European Space Nuclear Safety Framework, TRISMAC (presented at the TRISMAC — Trilateral Safety and Mission Assurance Conference, Noordwijk, Netherlands : ESA, 2008). 47 See Summerer, ibid.

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involved. Concerning its applicability to international missions and missions conducted by international intergovernmental organisations, especially the provision concerning the ‘prime responsibility’ has led to substantial discussions during the development phases of the framework. ‘Prime responsibility’ is central to the organisation of nuclear safety as recommended by the IAEA for terrestrial nuclear activities. The first principle of the IAEA Safety Fundamentals specifies that ‘The person or organisation responsible for any facility or activity that gives rise to radiation risks or for carrying out a programme of actions to reduce radiation exposure has the prime responsibility for safety.’48 This principle is fundamental to avoiding ambiguity. The notion of ‘prime responsibility for safety’ in the Safety Framework needs to be understood as aiming at an internal distribution of tasks among the relevant participants and at avoiding any bickering over competences in the pursuit of optimised safety levels in the preparation and the conduct of the mission. It is not to be confounded with the ‘international responsibility’ as mentioned in Principle 8 of the 1992 Principles and Art. VI of the Outer Space Treaty which address the question of legal responsibility vis-à-vis third parties, which could possibly give rise to a liability following an attributable wrongful act. 49 The last sentence of Art. VI of the Outer Space Treaty and of Principle 8 broadens the international responsibility for the compliance of activities carried on by an international intergovernmental organisation with the Outer Space Treaty and the recommendations of the Principles to both the international organisation and the States participating in it, which can be explained by the victim-oriented approach of the international space-law codifications.50 While the section of the safety framework deals with all organisations involved in space NPS applications (the larger definition), section 4.1 specifically 48 See chapter 3, para. 3.3. IAEA, Safety Fundamentals, 6. 49 See Michael Gerhard, Article VI, in : Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.), Cologne Commentary on Space Law, Volume I — Outer Space Treaty (Carl Heymanns Verlag, Köln 2009) 103, 116. 50 This victim-oriented approach is particularly strongly reflected also in Article VII Outer Space Treaty, which is echoed in Principle 9 of the 1992 Principles and in the Liability Convention, see Armel Kerrest and Lesley-Jane Smith, Article VII in : Stephan Hobe, Bernhard SchmidtTedd and Kai-Uwe Schrogl (eds.), Cologne Commentary on Space Law, Volume I — Outer Space Treaty (Carl Heymanns Verlag, Köln 2009) 126 and Armel Kerrest, Sergio Marchisio and Lesley-Jane Smith on the Liability Convention in Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl (eds.), Cologne Commentary on Space Law, Volume II (Carl-Heymanns Verlag, Köln, upcoming).

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addresses only one organisation and only the space NPS mission. It recommends that ‘the organisation that conducts the space NPS mission has the prime responsibility for safety.’ The glossary of the safety framework does not include a dedicated definition for the ‘organisation that conducts the space NPS mission’, nor can the IAEA Safety Glossary help in clarifying the details of how to define when an organisation conducts a mission.51 Neither are the terms of the Outer Space Treaty or the Liability Convention of help to answer this question, since these are focussed on the actions, responsibilities and liabilities of States. Some clues about the spirit behind the provision concerning the organisation that conducts the mission can be found in the text of the safety framework as well as in the organisational setup within the US, against which many provisions of the framework have been mirrored. In section 4.1, the safety framework specifies the type of relationship such an organisation needs to have : ‘That organization should include, or have formal arrangements with, all relevant participants in the mission (spacecraft provider, launch vehicle provider, NPS provider, launch site provider etc.) for satisfying the safety requirements established for the space NPS application.’

This clarification points to the required central role of such an organisation. The analysis of standard missions conducted by international intergovernmental organisations might provide some further insight and narrow down the options. In the case of typical exploration and science missions, which are those types of missions that are most likely to use space nuclear power sources,52 the inter51 See IAEA, IAEA Safety Glossary : Terminology Used in Nuclear Safety and Radiation Protection, 2007 Edition, Safety Standards Series (Vienna, Austria : IAEA, 2007). 52 See e.g. Robert D. Abelson et al., Expanding Frontiers with Standard Radioisotope Power Systems (NASA Science Mission Directorate, 2005) ; M. D. Campbell, J. D. King, H. M. Wise, B. Handley and M. David, The Role of Nuclear Power in Space Exploration and the Associated Environmental Issues : An Overview (adapted from Committee Report). The Energy Minerals Division. Search and Discovery Article #80053, Denver, Colorado, 2009 ; Furlong and Wahlquist, supra fn 4 ; Alexey Pustovalov, Role and Prospects of Application of RTG on Base of Plutonium–238 for Planetary Exploration, in : 5th European Conference on Thermoelectrics (Odessa/Ukraine 2007) ; George Schmidt, Robert Wiley, and Richard Furlong, Radioisotope Power Systems (RPS) for New Frontier Applications, 2003 ; Leopold Summerer, Elvina Finzi, and Piero Messina, Nuclear Power Sources for Space Exploration : Status and Prospective in Europe, Proceedings of the 10th ISU Symposium on Space Exploration (Strasbourg, France : ISU, 2005) ; Summerer and Stephenson, supra fn 4.

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national intergovernmental organisation has a launch contract with the launch service provider and a multi-phased development contract with the prime contractor, which usually also develops and integrates the spacecraft. In many cases, the prime contractor also has a formal relation with the launch system provider. While at first sight the evident choice for the organisation conducting the mission would be the international intergovernmental organisation, in principle all three entities could eventually qualify. Especially when considering missions that include a nuclear safety relevant part after launch (such as e.g. Earth flybys), the launch service provider is usually not involved in such operations. The prime contractor tends to be still involved also in the operational phase of missions, though e.g. for standard ESA science missions, the operations are mainly done by ESA. Concerning the formal arrangements with the provider of the space nuclear power source, in principle, all three main entities, the launch service provider, the prime contractor as well as the international intergovernmental organisation could have formal development or purchase contracts. In practice, especially in relation to the required interface management, the technically most straightforward approach to integrate space nuclear power sources into the spacecraft would be handled in the same way as other subsystems and therefore in the frame of subcontracts between the prime contractor and the NPS provider. Given the nature of contracts between the international intergovernmental organisation and the prime contractors, which includes not only visibility but also some decision power down to subcontractor levels, one could argue that even in such a case, there would be formal relations not only between the prime contractor and the NPS provider but also between the international intergovernmental organisation and the NPS provider. The purpose of the central role of the organisation required to assume the prime responsibility and its formal relations with all other relevant entities involved is to be able to enforce during the entire development and operation phases of the mission all necessary safety-relevant provisions and changes. Since nuclear safety needs to be addressed holistically, it is important that the organisation assuming prime responsibility is involved from the very early design phases of missions. Launch service provider contracts are however rarely signed at early phases of missions. This is why out of the three potential organisations, the launch service provider appears to be the least suitable regarding the spirit in which the safety framework has been drafted.

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3. Technical Guidance (Section 5) The third main part of the safety framework contains guidance on technical aspects of activities involving space NPS applications. It is subdivided into four areas : the establishment and maintenance of the appropriate competence in nuclear safety design, test and analysis capability, the application of that competence in the design, qualification and mission launch authorisation processes, the assessment of the radiation risks from potential accidents and the actions to manage the consequences of potential accidents. Most of the provisions are relatively straight-forward in their application also to missions conducted by international intergovernmental organisations. However, in detail some open questions remain, which are of the same type as the ones addressed in section 5.2. Concerning the establishment and maintenance of adequate technical competence, the safety framework recommends organisations to ‘establish, consistent with their responsibilities, nuclear safety design, test and analysis capabilities, including qualified individuals and facilities, as appropriate’. It is clear that establishing and maintaining such a competence, especially when needed only for one mission per decade requires substantial funds and therefore needs to be optimised between the different organisations. Analysing the type of tasks at one further level of detail is not going to provide much help in deciding which organisation should be required to establish and maintain what type of competence since all the four, non-exhaustive elements provided by the framework are likely requiring competences from more than one organisation involved : the definition of accident scenarios, their estimated probabilities, the characteristics of the physical conditions to which the space NPS and its components could be exposed in normal operations, as well as potential accident conditions, all require the launch service provider as well as the manufacturing industries for the launch system and potentially of the spacecraft as well as eventually mission operations expertise ; the assessment of potential consequences to people and the environment from accidents requires the providers of the NPS, the developer(s) of the main elements of the space NPS as well as launch safety authorities ; finally the competence related to the identification and assessment of inherent and engineered safety features to reduce the risk of potential accidents requires, in addition to the prime contractor, the launch service provider, and the provider of the NPS. The application of this competence to satisfy the safety objective and therefore to ‘reduce the risks from normal operations and potential accidents to as

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low a level as is reasonably achievable’ also involves essentially the same entities, however with varying respective tasks. The establishment of a ‘comprehensive design and development processes’ that integrates nuclear safety considerations in the context of the entire space NPS application (i.e. space NPS, spacecraft, launch system, mission design and flight rules) from the earliest stages of design and development throughout all mission phases is clearly a task that needs to involve at least the only entity that certainly is involved from the first to the last mission phase, which in the case of missions conducted by international intergovernmental organisations would be this organisation. In the case of cooperative missions, each organisation would need to implement in its requirements to prime contractors and subcontractors such appropriate safety measures and include their verification at mission milestones throughout the entire project. The recommendation regarding the incorporation of lessons learned from prior experience is clearly addressed to all organisations involved, as well as the recommendation to use risk analysis for the assessment of the effectiveness of design features and controls and to provide feedback to the design process. The mission launch authorisation process relies on specific competence regarding the evaluation of radiation risks to people and the environment from potential accidents. The choice of the organisation required to establish and maintain the core competence in this area depends strongly on the organisation, which authorises the mission launch and needs to rely on this input for its decisions. In the case of ESA missions, this would therefore depend on answers found to the questions raised in section 5.2. The choice of the organisations required to establish and maintain the necessary competence to mitigate the consequences of accidents with the potential to release radioactive material into Earth’s environment is mainly location driven (the location of the launch site and secondarily potential accidental reentry locations along the launch path). In the case of ESA missions from French Guiana, the local French authorities therefore would likely play a central role for accident mitigation competence at and near the launch site. For accident mitigation competence further down the launcher trajectory, the situation still requires further analysis. Concerning the preparation of relevant information regarding the accident for dissemination to the appropriate governments, international organisations and non-governmental entities and to the general public, the best suited organisation to set up and maintain the competence to perform these tasks efficiently would also need to be established between ESA and French

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authorities, including a clear and prior understanding on which organisation would be leading this activity for which type of accident and at what locations. The different communication and diplomatic means of States and international intergovernmental organisations would probably need to be taken into account in this assessment.

V. Legal status of the Safety Framework The Safety Framework represents a technical consensus of the two bodies that developed it jointly, the Scientific and Technical Subcommittee of the UNCOPUOS on the one hand and the International Atomic Energy Agency on the other hand. It contains the international consensus on an appropriate level of technical safety in various phases of the space NPS application life cycle. It has been developed without the involvement of the Legal Subcommittee of the UNCOPUOS, which has regularly been informed on its advancement and which has regularly congratulated the two actors on that advancement, but did not take any initiative to appropriate the subject within the legal sphere at this stage. In the preface to the Safety Framework, it is explicitly stated that it is not legally binding under international law. The drafters of the Safety Framework paid close attention to deliberately choosing terminology, that is not overly charged with a legal background and that could have given rise to misinterpretations. For example, the use of ‘Safety Principles’ instead of ‘Safety Framework’ might have approximated the instrument to the 1992 UN Principles Relevant to the Use of Nuclear Power Sources in Outer Space. The avoidance of the word ‘Principles’ contributed to the concentration on the merely technical cooperation in the elaboration of the instrument. It is also explicitly stated in the preface of the Safety Framework that it is not a publication in the IAEA Safety Standards Series, i.e. the means used by the IAEA to establish safety standards and measures that are legally binding in the case of the IAEA’s own operations or activities and in case of operations making use of materials, services, equipment, facilities, and information made available by the IAEA or under its control or supervision.53 In case a State wishes to receive 53 According to Art. III.A.6. of its Statute, the IAEA is authorised to establish or adopt, in consultation and, where appropriate, in collaboration with the competent organs of the United Nations and with the specialised agencies concerned, standards of safety for protec-

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technical assistance from IAEA, it is required to sign an agreement with IAEA in which it undertakes to apply to the assisted operations IAEA’s Safety Standards and measures specified in that Agreement.54 The stated intention of the Safety Framework is to complement the Safety Standards with appropriate guidance concerning the particular aspects resulting from the specific characteristics of space NPS applications in comparison to NPS applications on Earth. For the avoidance of doubt, the drafters judged it useful to also explicitly affirm that it does not supplement, alter or interpret any other relevant principles or treaties. The framework provides a mirror image of what has consensually been considered as the state of the art in the use of NPS applications in outer space, drawing on the existing experience, and transposes this state of the art into guidance for the actors concerned. The term guidance again reflects very well the nature of the instrument, which provides suggestions that may be taken onboard by the authorities in charge but need not be. This guidance remains high-level, whereas guidelines or recommendations in contrast would go more into the concrete details, with recommendation additionally implying some specific, often legal, authority on the issuing entity’s part. IAEA Guidelines have a history of serving as a basis for the adoption of subsequent hard treaty law : for example, the 1986 Convention on Early Notification of a Nuclear Accident is derived from the corresponding IAEA Guidelines.

tion of health and minimisation of danger to life and property (including such standards for labour conditions), and to provide for the application of these standards to its own operations as well as to the operations making use of materials, services, equipment, facilities, and information made available by the Agency or at its request or under its control or supervision ; and to provide for the application of these standards, at the request of the parties, to operations under any bilateral or multilateral arrangements, or, at the request of a State, to any of that State’s activities in the field of atomic energy ; see Hans Blix, The role of the IAEA in the Development of International Law, 58 Nordic Journal of International Law (1989) 231. 54 See M. Elbaradei, E. Nwogugu and J. Rames, International law and nuclear energy : overview of the legal framework, IAEA Bulletin (1995) 16, available at http ://ecolu-info.unige. ch/colloques/Chernobyl/pages/Opelz.html (10/08/2011) ; in their general overview of international law application to nuclear energy the authors also sketch the picture of a mix of legally binding rules and agreements on the one hand and advisory standards and regulations on the other hand and describe the evolution of non-binding standards to binding commitments.

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The framework, thus, provides the technical foundation for the development of standards and policies that may be implemented and made applicable nationally or in the framework of a relevant international intergovernmental organisation. Given the variety of conceivable organisational set-ups in which space NPS missions can be carried out, the guidance inevitably has to remain high-level in order to allow national and international programmes the necessary flexibility in adapting it to specific NPS applications and implementing it subsequently. Since for the time being and the foreseeable future, space NPS missions remain governmental missions, the implementation of the Safety Framework in national or international policies and standards can most easily be achieved via internal policies and regulations, be it e.g. as a dedicated policy and requirements document or via incorporation into general regulations, such as procurement or contract regulations and specifications in the relevant ITTs and contracts. The implementation and application of the guidance provided by the Safety Framework is entirely voluntary. It is completely left to the discretion of the actors involved in the space NPS application to what extent and how they choose to turn them into legally binding reality. The technical experience and respectability of the two parent bodies of the Safety Framework, as well as the fact that the text has been elaborated by a group composed of international experts in this specific domain, should, however, contribute to the willingness of States and international intergovernmental organisations to take it as a basis for the development of their own policy and standards and thereby to manifest their unilateral commitment to comply with the technical requirements as spelt out in the Safety Framework. Should such a self-regulation be undertaken by a significant number of relevant actors, the moral force of the norms — even though still legally non-binding — contained in the Safety Framework would gradually increase. Even though a parallel co-regulation by several States or international organisations does not in itself give rise to a new norm that would be binding under international law, it might nonetheless lead to a uniform State practice, which may at some point contain the nucleus for the transformation of the principles contained in the Safety Framework into a hard law rule of customary international law if the additional condition of opinio iuris is met as well.55 One could also imagine that external circumstances could 55 See Steven Freeland, The Role of ‘Soft Law’ in Public International Law and its Relevance to the International Legal Regulation of Outer Space, supra 9–30.

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suddenly increase the pressure on the relevant actors for the creation of binding international law on the issue. In such a case, the Safety Framework could also form the basis for the creation of future treaty law.56

VI. Conclusions In this chapter we have attempted to show that the Safety Framework is a prime example of what has been labelled ‘soft law’.57 It obviously falls outside the categories of the traditional system of the sources of international law. But it does serve its purpose of providing technical guidance to the relevant actors on the international plane should these actors seek such guidance, by universalising and abstracting the experience gained by the USA and Russia in their own national set-ups. It furthermore serves the purpose of protecting people and the environment in Earth’s biosphere from potential hazards associated with space nuclear power source applications by providing a public ‘benchmark’ for such activities. Especially for activities which are already highly visible to the global public, such as space activities involving nuclear power sources, and which are therefore by nature affecting the image and public reputation of its main actors — currently mainly States —, the psychological pressure to follow internationally agreed guidelines and recommendations and the associated need to very well justify any deviations might well turn out to be de facto as effective as legally binding norms. In the case of an accident involving a space nuclear power source, the global public as well as the media would likely make little difference whether the safety guidance the main actors had not followed was contained in a binding docu56 See László Blutman, In the trap of the legal metaphor : international soft law, 59 The International and Comparative Law Quarterly (2010) 605, with numerous examples of treaty law drawing on earlier soft law texts and mentioning specifically in the field of international nuclear law the Convention on Early Notification of a Nuclear Accident, adopted 26 September 1986, entered into force 27 October 1986, 1439 UNTS 275, and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, adopted 26 September 1986, entered into force 26 February 1987, 1437 UNTS 133 ; the content of which are based on the IAEA ‘Guidelines for mutual emergency assistance arrangements in connection with a nuclear accident or radiological emergency’ IAEA Doc INFCIRC/310 (1984), and ‘Guidelines on reportable events, integrated planning and information exchange in a transboundary release of radioactive materials’ IAEA Doc INFCIRC/321 (1985). 57 See Steven Freeland, The Role of ‘Soft Law’ in Public International Law and its Relevance to the International Legal Regulation of Outer Space, supra 9–30.

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ment or in an internationally agreed, though non-binding safety framework. In addition, it might well turn out that the legally non-binding technical provisions, as contained in the Safety Framework, could under certain conditions gain legal significance and force by either evolving into customary international law, should it be possible to establish the required State practice and opinio iuris, or by the ultimate creation of explicit treaty law based on the Safety Framework.

Gerhard Hafner1

The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States I. Introduction When the first artificial satellite, Sputnik 1, was sent by the USSR into the Earth’s orbit in 1957 on the occasion of the International Geophysical Year 1957 — 1958,2 most States were interested in a regulation of the space beyond the airspace in order to avoid leaving this area largely unregulated or at least subject to a much disputed legal regime. Such a situation, on the one hand, would have led to an unregulated competition between the States conducting such activities with the high probability of conflicts. On the other hand, only few States would have benefitted from the exploration and use of outer space in military and economic terms to the detriment of all other States which have the vast majority. The first major achievement of the attempts to regulate the exploration and use of outer space was the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, adopted by the General Assembly in its resolution 1962 (XVIII) of 13 December 1963. 3 Although worked out under the conditions of the Cold War, it nevertheless clarified the main legal features of the regime governing the first and the foreseeable space activities. As to the distribution of benefits from outer space activities, the declaration significantly reduced the exclusive role of the spacefaring States insofar as it already established that ‘the exploration and use of outer space should be carried on for the benefit and in the interests of all mankind’.4 It further recognised that 1 The author is very grateful to Mr. Gregor Novak, research assistant, for his extremely valuable assistance in the elaboration of this paper. 2 See Leonard E. Schwartz, International Organizations and Space Cooperation (Duke 1962) 15– 23 ; Manfred Lachs, The International Law of Outer Space, 113 Recueil des Cours (1964-III) 1–115, 27 et seq., notes 1 and 2. 3 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res 1962 (XVIII) of 13 December 1963. 4 Ibid., Principle 1.

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outer space and celestial bodies were ‘free for exploration and use by all States on a basis of equality and in accordance with international law’.5 The subsequently adopted Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 1966 (‘Outer Space Treaty’)6 maintained these principles almost unaltered and provided them with legal force. Art. I of the Outer Space Treaty provides in its first paragraph that the ‘exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.’ The second paragraph of this article guarantees the free exploration and use of this area ‘by all States without discrimination of any kind, on a basis of equality and in accordance with international law’, as well as ‘free access to all areas of celestial bodies’. Moreover, the third paragraph ensures ‘freedom of scientific investigation in outer space’, and obliges States to ‘facilitate and encourage international cooperation in such investigation’. However, despite these legal achievements, the construction of these principles remained uncertain since neither the terms ‘benefit of all peoples’,7 ‘benefit’ and ‘interest of all countries’,8 ‘province of all mankind’9 nor that of the ‘common interest of all mankind’10 offered a clear guidance for the distribution of the benefits among States or even non-State actors.11 The Outer Space Treaty restricted the legal obligation of cooperation to investigation and did not apply it to use and exploitation. Different interpretations were provided in particular by the industrialised States on the one hand and the developing States on the other : whereas the former did not recognise any specific conditions of cooperation resulting from this article,12 the latter derived therefrom an obligation incumbent on States performing space activities to guarantee that other States would benefit 5 Ibid., Principle 2. 6 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (‘Outer Space Treaty’) : London/Moscow/Washington 27 January 1967, in force 10 October 1967 ; 610 UNTS 205. 7 Ibid., Third Recital. 8 Ibid., Art. I. 9 Ibid. 10 Ibid., Second Recital. 11 Fabio Tronchetti, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies : A Proposal for a Legal Regime (Martinus Nijhoff Publishers, Leiden-Boston 2009) 63. 12 Ibid. 63 et seq.

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from such activities.13 This lack of clarity was deemed to be the more regrettable as receiving benefits from space activities remained in the hands of only few and mostly industrialised States. It was therefore not surprising that at the height of the North-South debate, when the G–77 raised the claim for a New International Economic Order14 in the United Nations, which sought to replace a free market approach that was deemed to aggravate the economic disparities15 by an equitable distribution, developing States also demanded a substantial part of the benefits from space activities that they could not obtain on their own.

II. History of elaboration The history of the elaboration of the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries16 has been extensively analysed by Tronchetti.17 According to this author, the declaration is not only an important contribution to the progressive development of international space law, but also ‘provides an authoritative interpretation of the cooperation principle contained in Art. I of the Outer Space Treaty’.18 Such an interpretation was felt to be necessary at the moment when space activities reached the level of commercialisation, first of all through remote sensing. When UNCOPUOS drew up the resolution on remote sensing in 1986,19 developing States emphasised the need to deal with the distribution of benefits.20 The G–77 submitted a proposal21 for access to benefits of the exploration and use of outer 13 Ibid., 64. 14 See generally e.g. Brigitte Stern, Un nouvel ordre économique international ? (Paris Economica 1983). 15 Tronchetti, supra fn 11, 70. 16 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries (Annex to GA Res 51/122 of 13 December 1996, UN Doc. A/RES/51/122) (subsequently cited as ‘Declaration on Space Benefits’). 17 Tronchetti, supra fn 11, 61 et seq. 18 Ibid., 62. 19 Principles Relating to the Remote Sensing of the Earth from Outer, GA Res. 41/65 of 3 December 1986. 20 Tronchetti, supra fn 11, 65. 21 Ibid., 65 et seq.

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space at the 1986 session of the Legal Subcommittee of UNCOPUOS, taking into account also the results of the 1982 UNISPACE II conference.22 This proposal was to ensure access to the benefits as well as mechanisms for the equitable distribution of the benefits. It cannot be excluded that the developing States were influenced by UNCLOS III which in 1982 had adopted the United Nations Convention on the Law of the Sea (‘LOSC’).23 The negotiations at this conference that went from 1973 to 1982, at the moment when the LOSC was adopted, had also been focused on the equitable distribution of benefits derived from the uses of the oceans, either in the Exclusive Economic Zone (EEZ) or in the International Seabed Area (Area).24 Already the preceding resolution regarding the peaceful uses of the seabed and the ocean floor (GA Res. 2749 [XXV])25 had provided for the common heritage of mankind concept for this area, whereas the precise definition of this concept had been intensively debated at UNCLOS III.26 Respective proposals reached from a very centralised one by Tanzania based on the New International Economic Order to the more liberal ones proposed by industrialised States.27 Despite attempts in the course of more than ten years (the Seabed Committee had started its work in 1968), no solution could be found, which was likely to be adopted by consensus. The Convention finally had to be adopted by a vote.28 Although an overwhelming majority voted in favour, the subsequent years proved that the legal regime regarding the Area was not sufficiently adequate to the economic conditions of the 1980ies to guarantee the necessary number of ratifications. It was precisely during this decade that the economic 22 Ibid. 23 United Nations Convention on the Law of the Sea (concluded 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 24 Cf. Tommy T. B. Koh and Shanmugam Jayakumar, The Negotiating Process of the Third United Nations Conference on the Law of the Sea, in : Myron H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982 : A Commentary, Volume I (Martinus Nijhoff Publishers, Dordrecht et al. 1985) 31–36. 25 Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the limits of National Jurisdiction, GA Res 2749 (XXV) of 17 December 1970. 26 Kemal Baslar, The Concept of the Common Heritage of Mankind in International Law (Martinus Nijhoff Publishers, The Hague et al. 1998) 228. 27 On the initial proposals by States or groups of States in the Sea-Bed Committee see e.g. Yuwen Li, Transfer of technology for deep sea-bed mining : the 1982 Law of the Sea Convention and Beyond (Martinus Nijhoff Publishers, Dordrecht et al. 1994) 62–65. 28 Koh and Jayakumar supra fn 24, 132–134.

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situation changed worldwide in the direction of deregulation, privatisation, liberalisation and larger involvement of non-State actors.29 Only in 1990 did the United Nations Secretary General Perez de Cuellar take the initiative to overcome the impasse and to work on a new regime regarding the Area.30 It took four years before a generally acceptable text31 could be elaborated. It focused inter alia on the decision-making in the Council,32 the financial terms of the contracts,33 production policy34 and transfer of technology,35 i.e. issues that were also relevant in the field of space activities. The 1986 proposal of the developing States for an instrument regarding cooperation for the utilisation of outer space met with resistance from the side of industrialised States. A working paper that referred to the New International Economic Order was submitted by the developing States again in 1991.36 This working paper stressed the responsibility of industrialised States and required obligatory cooperation, the automatic transfer of financial and technological resources from the North to the South and obligatory access to relevant knowledge and information.37 In contrast, the industrialised States emphasised the right to decide freely on the conditions of cooperation as reflected in a French-German proposal.38 Although there was a general understanding that the emphasis should be put on cooperation, no agreement on the text was in reach. Only in 1995, developing States made further concessions in the direction of the FrenchGerman proposal so that, in 1996, a text could be finalised and adopted by the General Assembly as resolution A/RES/51/122. It consists of the text of a resolution to which the ‘Declaration on International Cooperation in the Exploration 29 Cf. Robin R. Churchill and Alan V. Lowe, The Law of the Sea (3rd ed. Manchester et al. 1999) 417. 30 Report of the Secretary-General : Consultations of the Secretary-General on outstanding issues related to the deep seabed mining provisions of the United Nations Conception on the Law of the Sea, UN Doc. A/48/950, 9 June 1994, 2. 31 Ibid. Annex. 32 Ibid. Section 3. 33 Ibid. Section 8. 34 Ibid. Section 6. 35 Ibid. Section 5. 36 UNCOPUOS, Principles regarding international cooperation in the exploration and utilization of outer space for peaceful purposes, UN Doc. A/AC.105/C.2/L.182 (1991). 37 Tronchetti supra fn 11, 70. 38 UNCOPUOS, Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of all States, Taking into Particular Account the Needs of Developing Countries, UN Doc. A/AC.105/C.2/L.197 (1996).

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and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries’ is annexed.

III. The content of the Declaration 1. The duty of cooperation Already during the process of elaboration the subject-matter shifted from equitable distribution as originally required by the developing countries to cooperation as supported by the industrialised States. This shift implied that activities were no longer required only from the side of the supplier of knowledge and technology, namely the spacefaring States, but also from the side of the beneficiaries. As can be derived from the discussions on different regimes of the commons, an obligation incumbent only on one side would not lead to an effective regime but must be combined with obligations or restrictions of sovereignty on the other side as well.39 Consequently, the spacefaring States are no longer the only ones obliged to contribute to the ‘benefit of all countries’ as required by Art. I of the Outer Space Treaty, but all States are under a duty of positive action if they want to benefit from such activities, even if the latter are carried out by other States. The duty of cooperation is not a novelty in international relations as it is already enshrined in the famous Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations of 1970.40 It embodies the duty of cooperation according to which ‘States have the duty to co-operate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations, in order to maintain international peace and security and to promote international economic stability and progress, the general welfare of nations and international co-operation free from discrimination based on such differences’.41 However, a closer look to 39 Cf. Gerhard Hafner, The Myth of the Commons : Divide or Perish, in : H. Hestermeyer, N. Matz-Lück, A. Seibert-Fohr and S. Vöneky (eds.), Law of the Sea in Dialogue (Springer, Heidelberg et al. 2011) 91, 110 et seq. 40 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV) of 24 October 1970, GAOR 25th Session Supp 28, 121. 41 Ibid.

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this principle shows a significant difference insofar as the duty to cooperate for the maintenance of international peace and security or the protection of human rights is formulated in terms of an obligatory nature (‘shall’), whereas the cooperation in economic, social and cultural fields as well as in the field of science and technology and for the promotion of international cultural and educational progress is only of recommendatory nature (‘should’). Accordingly, no obligatory effect can be derived from this principle, irrespective of the non-binding nature of this resolution. In contrast, the Charter on Economic Rights and Duties of States,42 adopted in the framework of the New International Economic Order, makes an attempt in Art. 9 to impose an obligation on States insofar as it establishes the ‘responsibility’ of all States ‘to co-operate in the economic, social, cultural, scientific and technological fields for the promotion of economic and social progress throughout the world, especially that of the developing countries’. However, subsequent provisions are less stringent since they only recommend (‘should’) cooperation in favor of developing States (Art. 17). It is noteworthy that even the LOSC does not provide general provisions regarding cooperation ; it only focuses on the issues of transfer of knowledge and technology,43 although some of its provisions, such as Art. 254 regarding the right of land-locked or geographically disadvantaged States on their right to participate in scientific research, amount to a duty of cooperation.44 Even in this perspective, there is not a duty on the coastal States to conduct scientific research in which the other States are entitled to participate, but only the right of the latter once the coastal States has decided to become active. In conformity with these non-mandatory concepts of cooperation neither the Outer Space Treaty nor the Declaration under discussion establish an autonomous duty of cooperation ; both only single out the conditions of such cooperation once the States have started to become active. This approach corresponds to the original intentions of the industrialised States that the decision on the performance of activities and, consequently, the opportunity of cooperation must remain the free choice of the States. Accordingly, para. 2 of the Declaration emphasises the freedom of participation in cooperation, subject, however, to certain 42 GA Res 3281 (XXIX) of 12 December 1974, GAOR 29th Session Supp 31 vol. 1, 50. 43 Gerhard Hafner, Meeresumwelt, Meeresforschung und Technologietransfer, in : Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (Beck, München 2006) 453–459. 44 Gerhard Hafner, Die seerechtliche Verteilung von Nutzungsrechten (Springer, Wien-New York 1987) 387 et seq.

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limitations.45 The obligations derived from this Declaration are restricted to the contribution to promoting and fostering international cooperation. 1.1 Object of cooperation The subject-matter of the Declaration is the cooperation in the exploration and use of outer space. Both terms are to be constructed very broadly ; although some States distinguish between exploration and scientific research in the maritime context,46 the outer space related notion of exploration must be understood as encompassing also scientific research as is warranted by the reference to research institutions in para. 6 of the Declaration.47 In this sense, scientific research encompasses both fundamental research and applied research, including resourceoriented exploration that is of direct significance for the exploration and exploitation of natural resources. Reference can be made to the Frascati Manual, according to which ‘Research and experimental development’ (R&D) comprises creative work undertaken on a systematic basis in order to increase the stock of knowledge and covers three activities : basic research, applied research, and experimental development.48 The use of outer space relates to all kinds of activities that have an impact on the resources of outer space, including their exploitation, transport, and processing, depending on the type of resources. It includes all varieties of space applications including remote sensing and the use of means for the transmission of information. This broad construction is necessary in order to include possible future uses as even presently mankind is not yet aware of all possibilities of the use of the space. 45 Para. 2 of the Space Benefits Declaration reads as follows  : ‘States are free to determine all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis. Contractual terms in such cooperative ventures should be fair and reasonable and they should be in full compliance with the legitimate rights and interests of the parties concerned, as, for example, with intellectual property rights.’ 46 Hafner, supra fn 43, 426–28. 47 Para. 6 of the Space Benefits Declaration reads as follows : ‘National and international agencies, research institutions, organizations for development aid, and developed and developing countries alike should consider the appropriate use of space applications and the potential of international cooperation for reaching their development goals.’ 48 Cf. Main Definitions and Conventions for the Measurement of Research and Experimental Development : A summery of the Frascati Manual 1993 (1994), OECD Doc. OCDE/GD (94) 84, 7.

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The Declaration only refers to outer space. This area must be understood in the sense of the Outer Space Treaty, which clarifies that this area includes also the Moon and other celestial bodies. The absence of this specific reference cannot be interpreted as limiting the geographical scope of outer space activities since the Declaration itself requires, in para. 1, that cooperation be conducted in accordance with the Outer Space Treaty. 1.2 Addressees of cooperation The Declaration is addressed to States and tends to govern the exploration and use of the outer space by them so that a State-oriented approach regarding these activities seems to underlie this text. This approach prevailed also when the Outer Space Treaty was formulated and is comprehensible taking into account that at the time of its formulation space activities were exclusively carried out by States or agencies attributable to States. In the meantime the situation has changed since non-State actors are presently undertaking research activities as well as other uses in outer space ; the emerging neo-liberalism entailed a large privatisation of such activities. For example, even international organisations like INMARSAT were converted into private, non-governmental international companies such as Inmarsat Ltd. 49 Their activities can no longer be attributed to States nor do they enjoy the status of subjects of international law. Accordingly, since cooperation activities are performed no longer only through acts attributable to States, but increasingly by private activities, States do not bear responsibility for these activities under general international law in contrast to Art. VI of the Outer Space Treaty where they have to assume responsibility even for non-governmental activities. As non-State actors lack the nature of subjects of international law, international instruments cannot directly regulate their activities, but can do so only through the means of States and their legislative mechanism. It could be that precisely for this reason the Declaration is relatively unspecific concerning the addressees and the authors of the cooperation. In its first paragraph it only speaks of international cooperation that should be conducted in a specific manner without identifying who performs this activity. Para. 3 explicitly refers to 49 Cf. on the privatisation of INMARSAT e.g. Joseph N. Pelton, Robert J. Oslund and Peter P. Marshall (eds.), Communications Satellites : Global Change Agents (Lawrence Erlbaum Associates Inc., Mahwah/New Jersey 2004) 139–141.

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cooperation on all levels, including the private one as it addresses also cooperation on a commercial basis ; according to Benkö and Schrogl it is the first time that private activities are placed on the same level as State activities, irrespective of the provision within the Outer Space Treaty on responsibility for all ‘national activities’.50 Similarly, para. 6 that deals with the use of space applications and cooperation, addresses not only national and international agencies and States, but also research institutions. Obviously, the drafters of this resolution had to make concessions to the growing involvement of private activities in outer space. These different levels of addressees create problems concerning the implementation of the resolution. The United Nations had already at former occasions faced such problems when it wanted to govern activities not only of States but also of non-State actors such as multinational or transnational companies. This was the case of the UN Code of Conduct on Transnational Corporations (TNC)51 that never went beyond the status of a draft because of the divergence of views on whether it should become a binding treaty or a non-binding resolution.52 A major obstacle to becoming a treaty was that it should address not only States but should directly impose obligations on the TNC’s themselves, what, however, could not easily be achieved by means of an international treaty. The only alternative would be to establish certain guidelines in a non-committal instrument.53 Since non-compliance with such an instrument would not entail sanctions like in the case of the breach of a treaty, it could also address non-State actors. 1.3 The conditions of such cooperation The cooperation envisaged by the Declaration is not unlimited, but subject to different conditions, cutting in both ways, in favour of the industrialised as well 50 Marietta Benkö and Kai-Uwe Schrogl, History and impact of the 1996 UN Declaration on ‘Space Benefits’, 13 Space Policy (1997) 139–143, 142. 51 UN Code of Conduct on Transnational Corporations, 23 ILM 626 (1984). 52 Seymour J. Rubin, Transnational Corporations and International Codes of Conduct : A Study of the Relationship between International Legal Cooperation and Economic Development, American University Journal of International Law and Policy 10 (1995) 1275, 1284. 53 As to the effect of such guidelines see infra in this contribution, Chapter IV. For the case of TNC’s see the Guiding Principles on Business and Human Rights : Implementing the United Nations ‘Protect, Respect and Remedy’ Framework (Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, John Ruggie), UN Doc. A/HRC/17/31, 21 March 2011.

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as of the developing States. Para. 2 addresses the concerns of the industrialised States, whereas para. 3 of the Declaration works in the interests of the recipient States, mostly developing States. Generally, such cooperation must abide by the applicable rules of international law including the Charter of the United Nations and the Outer Space Treaty. On the one side, this condition indicates that the Declaration does not intend to create new obligations ; on the other, it encounters certain problems if the addressees are not only States. Non-State actors are not bound by these instruments so that their participation in the cooperation is theoretically not limited by these international instruments. Irrespective of the reference to non-State actors, the Declaration still proceeds from a certain State-centered nature of outer space activities according to which any such activity is subject to State legislation that sets the necessary legal framework for the activities. However, as far as research is concerned, such an approach is not in conformity with the principle of freedom of scientific research,54 to which States are bound according to Art. 1 of the Outer Space Treaty and, more generally, Art. 15 para. 4 of the International Covenant on Economic, Social and Cultural Rights of 1966.55 This problem signals the difficulties a conventional nature of this instrument would have encountered. The cooperation envisaged in the Declaration should achieve the general objective to promote the development of space science and technology and exchange of expertise and technology.56 It is more likely that this can be achieved through the cooperation of spacefaring States rather than in a mere transfer of technology to developing States. Where the Declaration makes reference to the transferal of skills and knowledge to other States, including through capacitybuilding, the recipients are not developing countries as such, but interested States that could include developing as well as industrialised States in need of such transferal. Although the introductory phrase emphasises the necessity to take into particular account the needs of the developing countries, the specific objectives of such cooperation obviously do not identify only these States as beneficiaries. This corresponds to para. 1 requiring that cooperation ‘shall be carried out for the benefit and in the interest of all States, irrespective of their degree of economic, social or scientific and technological development’. Similarly, para. 3, 54 Hafner, supra fn 43, 424. 55 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3. 56 Cf. Paragraph 5 (a) of the Declaration on Space Benefits.

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which explicitly refers to the benefits and interests of developing States, nevertheless includes also ‘countries with incipient space programmes stemming from such international cooperation conducted with countries with more advanced space capabilities’. As not all industrialised States are already performing space activities, these States can also be included in the group of beneficiaries. Both groups of States, developing as well as industrialised countries, are addressed by the provision that cooperation must be on an ‘equitable and mutually acceptable basis’ as this condition is embodied in paras. 2 and 3. This term is obviously taken from the Resolution on the Principles Relating to Remote Sensing of the Earth from Outer Space,57 which requires that participation in such activities ‘shall be based in each case on equitable and mutually acceptable terms’. Whereas the term ‘acceptable basis’ does not seem to raise interpretative difficulties as the agreement of both sides is necessary for cooperation, the term ‘equitable basis’ causes more difficulties. The construction of ‘equitable’ is subject to the most divergent views58 as it is used in the most different contexts, mostly in the context of distributive norms such as in the case of State succession into property and debts,59 the sharing of water resources60 or maritime delimitation61 issues. This term found its way into space law only at a later stage since the Outer Space Treaty does not yet contain a reference to this term, whereas only the Convention on International Liability for Damage Caused by Space Objects of 197262 refers to ‘full and equitable measure of compensation to victims’ in its preamble. In contrast, the Convention on Registration of Objects Launched into Outer Space refers to ‘assistance under equitable and reasonable conditions in the identification of the object’.63 The Agreement Governing the Activities of States on the 57 Principles Relating to the Remote Sensing of the Earth from Outer, UN GA Res. 41/65 of 3 December 1986. 58 Hafner, supra fn 44, 212–242 et seq. 59 See Arts. 17, 18, 28, 31, 37, 40 and 41 of the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts (done 8 April 1983, not yet in force) United Nations Conference on Succession of States in Respect of State Property, Archives and Debts Official Records vol 2, 141. For a detailed discussion and further references cf. Hafner supra fn 44, 207–212. 60 Ibid. 61 Ibid. 62 Convention on International Liability for Damage Caused by Space Objects (signed 29 March 1972, entered into force 1 September 1972) 961 UNTS 187. 63 Art. VI of the Convention on Registration of Objects Launched into Outer Space (opened for signature 14 January 1975, entered into force 15 September 1976) 1023 UNTS 15.

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Moon and Other Celestial Bodies64 already uses this criterion for distribution as it requires an ‘equitable sharing by all States Parties in the benefits derived from those resources’.65 The use of this epitheton in both paragraphs of the Declaration prompts an interpretation that strikes a balance of the interests of both sides of the cooperation. It entails a substantive as well as a procedural criterion. As to the substantive criterion, it signals that the legitimate interests of both sides have to be respected, i.e. interests that are either singled out in this instrument or can be derived from mutual acknowledgement. On the side of the spacefaring States and entities such criteria are constituted inter alia by past activities, expenses for such activities, acquired rights, whereas on the side of the developing and other States their financial and technological capabilities or their needs should be considered. However, these criteria cannot be imposed unilaterally, but must be acknowledged by the other side so that a certain mutual understanding be established. The appropriate procedure, the procedural side of the equitable basis, should ensure a certain balance of burdens and benefits in such cooperation. 1.4 The interest of developing States Nevertheless, despite the definition of the objectives, favouring not only developing States, the Declaration includes also certain conditions of cooperation likely to produce profits only for the developing States. Para. 3 is mainly focused on the interests of the developing States.66 In this sense, the equitable basis on which cooperation is to be based should give attention ‘to the benefit and the interests’ as well as to the needs of developing States so that these States must gain a net benefit from such cooperation. This benefit can consist of the most different kinds of profits, increase of knowledge, training or even resources ; the context, however, excludes that profit can be gained without own activity. Paying attention to the needs of these countries as provided for by para. 1 requires that the industrialised States design the cooperation programmes according to the particular needs of these States, implying that they must respect also the lack of knowledge and therefore paying attention to the importance of capacity building in the context of cooperation. 64 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (adopted 5 December 1979, entered into force 11 July 1984) 1363 UNTS 3 (‘Moon Agreement’). 65 Ibid., Art. 11 para. 7 (a). 66 See also Benkö and Schrogl supra fn 50, 142.

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1.5 The interests of industrialised States As the negotiation process illustrates, the industrialised States had, right from the beginning, problems with unilateral privileges of the developing States.67 Already the Charter of Economic Rights and Duties of States made international scientific and technological co-operation and the transfer of technology contingent on the respect for ‘the rights and duties of holders, suppliers and recipients of technology’.68 In the law of the sea negotiations, industrialised States asked for the possibility to protect their rights and in any case not to be obliged to transfer knowledge without payment. Accordingly, Part IX of the LOSC 1982 governing the activities on the international seabed and ocean floor was made subject to the Agreement relating to the Implementation of Part XI which required that technology could be acquired only on ‘fair and reasonable commercial terms and conditions, consistent with the effective protection of intellectual property rights’.69 The Declaration likewise requires that cooperation ventures be fair and reasonable and respect the rights of the industrialised States or the non-State actors involved in space activities with particular emphasis on intellectual property rights. Since presently space activities are increasingly carried out by non-State actors, it must be taken into account that no State can force such an entity to renounce its rights connected with such activities.70 Such a condition works also in the interest of the recipient countries since without such protection of the rights of the donor countries, the latter would hardly initiate cooperation and transfer activities as this decision remains within their discretion. This Declaration no longer provides for a duty of cooperation and a mere distribution of benefits thereof, but sets the framework for cooperation reflecting the on-going changes in economic conditions with their re-emergence of ideas of liberalism in the 1980ies and first half of the 1990ies.

67 Tronchetti, supra fn 11, 67 et seq., especially 71. 68 Art. 13 para. 2 of GA Res 3281 (XXIX) of 12 December 1974, GAOR 29th Session Supp 31 vol. 1, 50. 69 Section 5 of the Annex to the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (done 28 July 1994, entered into force 28 July 1996) UN Doc A/RES/48/263 Annex. 70 As to similar situations in the law of the sea context, see Hafner, supra fn 43.

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2. Other elements of the Declaration In addition to the main objective, namely cooperation, the Declaration refers also to the use of Space applications that should be carried out in an appropriate manner for reaching development goals. The United Nations Programme on Space Applications71 is one example for such forms of cooperation. But even here, no clear obligation is placed on States as they should only be encouraged to contribute to this Programme, limited also by their capabilities. This Programme, established after UNISPACE II in 1982, created four Regional Centers for Space Science and Technology Education, affiliated with the United Nations. UNISPACE III in 1999 led to the establishment of the United Nations Platform for Space-based Information for Disaster Management and Emergency Response (UN-SPIDER) for space-based disaster management and the International Committee on Global Navigation Satellite Systems (ICG), a forum of providers and user communities of Global Navigation Satellite Systems (GNSS).72 Besides basic space sciences and technologies it deals with the GNSS, satellite-aided search and rescue, natural resources management and environmental monitoring, space applications for mountain areas, climate change and health issues.73 The Declaration also emphasises and supports the role of UNCOPUOS as a transmission belt of information on space activities. This reference reflects the ongoing practice of UNCOPUOS to include in its agenda regular information on space activities conducted in its member States.74 However, as the membership in UNCOPUOS is currently only 70 States, it does not necessarily reflect activities of the non-member States. However, irrespective of this limitation, the large number of members and the possibility for other States and entities to participate as observers certainly ensures a steady exchange of information about various space activities. 71 United Nations, Office for Outer Space Affairs, United Nations Programme on Space Applications, UN Doc. ST/SPACE/52 (February 2010). 72 Ibid. 73 Ibid. 74 See, for instance, the agenda of the session in 2010 where a number of points on the agenda related to activities of the member States. Report of the Committee on the Peaceful Uses of Outer Space, Fifty-third session (9–18 June 2010), Official Records, Sixty-fifth Session, Supplement No. 20, 1.According to the explanation by UNCOPUOS ‘every year the Committee on the Peaceful Uses of Outer Space (UNCOPUOS) invites member States to submit reports on their space activities including information on national and international programmes’.

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IV. The nature of the Declaration Although during the negotiation process voices were raised to elaborate a convention, the result was a non-binding instrument that may be qualified as ‘soft law’. Since the middle of the 20th century, a long discussion on the definition of soft law in contrast to hard law or ‘black letter law’ has emerged and has never ended.75 It would be easy to end the discussion on this issue rashly by denying the existence of any soft law at all : either something is law or not ; soft law is a contradictio in adiecto so that it would be impossible to speak about it. Although this sounds quite logical, international practice did not follow this logic but uses the term of ‘soft law’ with increasing intensity so that it can no longer be ignored in the realm of international relations. It is increasingly considered as an appropriate instrument to shape international relations in general. In international practice, one faces the broadest spectrum of international instruments that are considered to fall within this group ; they may be • • • • • •

resolutions of international organisations, resolutions or declarations of international conferences, declarations of summit meetings of high political personalities, conclusions in the framework of the OSCE, even conclusions of the presidency of the European Union, results of meetings of bilateral nature,76 such as the Memorandum of Moscow,77 • even unilateral statements,

75 Cf. Gerhard Hafner, The Effect of Soft Law on International Economic Relations, in : S. Griller (ed.), International Economic Governance and Non-Economic Concerns : New Challenges for the International Legal Order (Springer, Wien et al. 2003) 149–167 ; see also e.g. Dinah Shelton, Soft Law, in : David Armstrong (ed.), Routledge Handbook of International Law (Routledge, Abingdon 2011) 68–80. 76 Frequently, disputes arise regarding the legal nature of such instruments, see Anthony Aust, Modern Treaty Law and Practice (Cambridge 2000) 29. 77 The Memorandum of Moscow of 13 March 1955, which was agreed upon by the delegations of Austria and the Soviet Union opened the way to the Austrian State Treaty 1955. It is seen as constituting not a treaty, but a commitment of the both delegations (See Hanspeter Neuhold, Waldemar Hummer and Christoph Schreuer (eds.), Österreichisches Handbuch des Völkerrechts, Band 1 : Textteil (4th ed., Manz, Wien 2004) 105 et seq.

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• or recommendations in the framework of the WTO Dispute Settlement procedure.78 Despite their variety, these instruments have two elements in common, which distinguish them from acts qualifying as hard law or from other acts : • They are performed by State officials in their capacity as such so that they are attributable to the States, and • they do not constitute hard law in the sense that they do not have that legally binding effect which is accorded to hard law. Hard law entails the legal effect pursuant to which non-compliance materialises in State responsibility79 and triggers off consequences such as the duty of restoration, compensation, satisfaction, etc.80 The injured State can take countermeasures and invoke the violation before an international dispute settlement mechanism entailing binding decisions.81 From an economic perspective, these consequences of non-compliance can be seen as some sort of costs 82 which a State has to consider when it assesses the consequences of its decisions. The State must include into its foreign policy analysis these consequences which present themselves as external effects or costs that it has to internalise. These costs also include the possibility that the other State will resort to an international dispute settlement procedure in case of alleged non-compliance, which undoubtedly also entails substantial costs. Accordingly, these possible consequences gener78 Cf. Art. 19 (1) WTO Dispute Settlement Understanding : ‘Panel and Appellate Body Recommendations’ : ‘Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement. In addition to its recommendations, the panel or Appellate Body may suggest ways in which the Member concerned could implement the recommendations. 2. In accordance with paragraph 2 of Art. 3, in their findings and recommendations, the panel and Appellate Body cannot add to or diminish the rights and obligations provided in the covered agreements’. 79 See the UN ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), GAOR 56th Session Supp 10, 43 ; these articles were taken note of by the General Assembly, see Resolution A/RES/56/83. 80 Ibid., Art. 28. 81 Ibid., Art. 49. 82 Hanspeter Neuhold, The Foreign-Policy ‘Cost-Benefit-Analysis’ Revisited, 42 German Yearbook of International Law (1999) 84, 91 et seq.

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ate a preventive effect since States, because of these expected consequences, will rather abstain from breaching such rules and the other States will tend to rely on this position. Legal instruments are therefore the most effective means (in legal terms) to ensure a certain predictability of the conduct of States, which is required for any stable and smooth development of international relations. The problem is only that no State can be obliged to sign or ratify such a treaty. Soft law instruments like the Declaration lack such an enforcement mechanism. They also differ from international treaties insofar as they are elaborated and adopted without the involvement of democratic instances as is usually required in a ratification process so that they can even be blamed of increasing the democratic deficit in foreign policy. They remain exclusively within the competencies of the executive power. Whereas treaties which even do not need parliamentary approval must remain within the parameters of the legislation, the non-legal instruments are not restricted in this way and they could and do exceed such limits.83 Despite these deficiencies in comparison to hard law, instruments such as the Declaration can entail certain effects in international relations and possess certain advantages which also apply to the present Declaration. These advantages consist in reduced transaction costs since their elaboration and adoption entails fewer costs than the elaboration and conclusion of treaties. The elaboration of a treaty on cooperation in space activities would have required much more time and, consequently, generated higher costs. In addition, soft law instruments can produce a certain confidence and thereby narrow the spectrum of actions and reduce the complexities of international relations.84 The Declaration, on the one hand, establishes a certain framework that governs cooperation activities and confirms, on the other, the freedom of carrying out such activities ; according to Benkö and Schrogl, it provides higher incentives even to developing States to enter into cooperation arrangements.85 Furthermore, such instruments are characterised by a high degree of flexibility. Their formulation is very often full of constructive ambiguities in order to leave a certain degree of discretion to States in the concrete implementation. 83 See Hartmut Hillgenberg, A Fresh Look at Soft Law, 10 European Journal of International Law (1999) 499, 503 et seq., considering the German Basic Law. 84 Niklas Luhmann, Vertrauen — ein Mechanismus der Reduktion sozialer Komplexität (Enke, Stuttgart 1973) 36. 85 Benkö and Schrogl supra fn 50,143.

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Even though the wording of the Declaration undoubtedly leaves room for different interpretations of individual terms, such as ‘equitable’, it nevertheless offers a sufficient basis for the concrete construction of these terms. Moreover, the less stringent wording of soft law instruments makes them better accessible to adaption to concrete or changing circumstances. Thus, the Declaration leaves it to the participants in cooperation activities to adjust these activities to the specific needs and circumstances of the individual cases. Finally, these instruments regularly abstain from direct regulation. According to the neo-liberal approach, States presently make efforts to abstain from direct regulation of economic matters by hard law.86 It could be stated that international law would be reduced to that what can be called a limited regularity.87 This feature is particularly significant for the Declaration that addresses not only States but also non-State actors. Soft law instruments therefore have an undeniable effect on international relations :88 Benkö and Schrogl go even further by qualifying the Declaration as an authoritative interpretation of the cooperative principle of Art. I of the Outer Space Treaty, which ought to ‘prevent further confrontation on the political level’.89 Such a method of interpretation is addressed by Art. 31 VCLT as constituting the context of the treaty so that the Declaration could constitute either ‘any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’ or ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’.90 As the subsequent ‘agreement’ in Art. 31 VCLT does not necessarily amount to a treaty, the Declaration can be seen as such an agreement which is to be taken into account, in addition to other elements of the context, for interpreting Art. I of the Outer Space Treaty. Since the ILC identified such agreements as means of an authentic interpretation,91 the Declaration 86 See on the significance of private regulatory activities in economic policy Tim Büthe and Walter Mattli, The New Global Rulers : The Privatization of Regulation in the World Economy (Princeton University Press, Princeton 2011). 87 F. A. Hayek, The Constitution of Liberty (University of Chicago Press, Chicago 1960) 161. 88 As to the possible purpose or effect of soft law instruments see in particular : D. L. Shelton, Soft Law, Public Law and Legal Theory Working Paper No. 322 ; Legal Studies Research Paper No. 322 (2008) 7. 89 Benkö and Schrogl, supra fn 50, 143. 90 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. 91 ILC Yearbook 1966, Vol. II, p. 221, para. 14 (‘[A]n agreement as to the interpretation of a

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generates such an effect as it was adopted by all members of the United Nations, which included all parties to the Outer Space Treaty.92 Nevertheless, even this qualification does not necessarily lead to a binding interpretation since according to Art. 31 VCLT these elements of interpretation only ‘shall be taken into account, together with the context’ so that they concur with the other elements of interpretation. An even more far-reaching conclusion on the effect of instruments like the Declaration was made by the ILA resolution on customary international law. 93 In point 32 the ILA declared : ‘Resolutions accepted unanimously or almost unanimously, and which evince a clear intention on the part of their supporters to lay down a rule of international law, are capable, very exceptionally, of creating general customary law by the mere fact of their adoption. In the event of a lack of unanimity, (i) a failure to include all representative groups of States will prevent the creation of a general rule of customary international law (see Section 14) ; and (ii) even if all representative groups are included, individual dissenting States enjoy the benefit of the persistent objector rule (see Section 15).’

This conclusion comes very close to the theory by Bin Cheng on instant customary international law, which he developed for the case of outer space resolutions.94 Hence, it could be discussed whether the Declaration that was adopted without a vote95 could amount to a rule of customary international law. This conclusion has to be rejected : point 32 referred to above was intensively debated at the ILA meeting in London and adopted only by a majority of members coming from developing States that considered this possibility as a device to effectuate a rapid change of customary international law. In the light of this discussion, the conclusions drawn in point 32 must be seen with great care and, in any case,

92 93 94 95

provision reached after the conclusion of the treaty represents an authentic interpretation by the parties which must be read into the treaty for purposes of its interpretation.’). Cf. on the status of the Outer Space Treaty : http ://www.oosa.unvienna.org/oosa/en/Space Law/treatystatus/index.html (retrieved in August 2011). International Law Association Committee on Formation of Customary (General) International Law, Final Report of the Committee, London Conference (2000), 61. Bin Cheng, United Nations Resolutions on Outer Space : ‘Instant’ International Customary Law ?, 5 Indian Journal of International Law (1965) 23–48. Cf. http ://www.un.org/depts/dhl/resguide/r51.htm (retrieved in August 2011), see also Benkö/ Schrogl supra fn 50, 139.

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are hardly acceptable. For these reasons, the Declaration cannot serve as a means of creating a rule of customary international law. It is also unlikely that the Declaration would be used as a confirmation of opinio iuris or a pre-normative instrument and become the germ for the creation of binding rules through treaty law as the formulations are still hardly specific enough to serve as a basis for legal formulations. This conclusion does not leave the Space Benefits Declaration without any effect. The effect of the Declaration consists in the formation of one of the means for the interpretation of the Outer Space Treaty. A further effect is that it facilitates cooperation as it draws the attention of States to such possibilities and establishes conditions so that States become aware of how such cooperation should be designed. The conditions indicate also which conduct is to be seen as licit and having the fumus iuris or the presumption of legality on its side.96 Anybody who would contest the legality of cooperation undertaken in accordance with the Declaration would have the onus to prove its wrongfulness. Hence, it cannot be stated that the Declaration by belonging to the vast field of soft law has no effect on international relations. It can undoubtedly steer the activities addressed by it in a certain direction that is considered desirable by all States.

96 Gerhard Hafner, Codification and progressive development, in : Franz Cede and Lilly Sucharipa-Behrmann, The United Nations, Law and Practice (Kluwer Law International, The Hague et al. 2001) 143, 145.

Brian D. Lepard

The Legal Status of the 1996 Declaration on Space Benefits : Are Its Norms Now Part of Customary International Law ? I. Introduction On 13 December 1996, the United Nations General Assembly adopted Resolution 51/122, the ‘Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries’ 1 — a declaration whose original goals were as ambitious as its title. For ease of reference, I will refer to the declaration as the ‘1996 Declaration,’ although it is also known as the ‘Declaration on Space Benefits.’2 The 1996 Declaration was adopted without a vote.3 The 1996 Declaration was drafted upon the initiative of the so-called ‘Group of 77’ developing countries. In the mid–1980-ies, these countries expressed concern that the space powers were not living up to their obligations under Art. I of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (‘Outer Space Treaty’) to share the benefits of their space exploration activities. Art. I of that foundational treaty affirms in relevant part that ‘the exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.’4 These developing countries pressed for the drafting of a new legal document that would elaborate binding legal duties to share space-related technology and 1 GA Res 51/122 of 13 December 1996. 2 See, e.g., Fabio Tronchetti, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies : A Proposal for a Legal Regime (Martinus Nijhoff Publishers, Leiden-Boston 2009) 61–81. 3 See http ://www.unoosa.org/oosa/SpaceLaw/gares/gavotes.html (10/10/2011). 4 GA Res 2222 (XXI) of 19 December 1966, Annex (‘Outer Space Treaty’), Art. 1 (emphasis added). On the history of the 1996 Declaration, see, e.g., Tronchetti, supra fn 2, 61–81.

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information. Space-faring nations, on the other hand, objected to recognition of a broad-based legal obligation to share space benefits, and instead emphasised the principle, also manifest in Art. I of the Outer Space Treaty, of freedom of scientific investigation in outer space. They maintained that any sharing of technology or information should be voluntary and not compelled. In the end, the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (‘UNCOPUOS’) spent many years drafting the 1996 Declaration, which attempted to accommodate these competing perspectives.5 Since the adoption of the 1967 Outer Space Treaty, activities in space among many nations have proliferated. Governments have exploited the scientific potential of space, launching (or contracting with other States or private companies to launch) remote sensing satellites that gather data from the Earth’s surface and can be used for many scientific and peaceful purposes, such as weather forecasting, geo-mapping, and the prevention of natural disasters. Perhaps more importantly, outer space has become increasingly commercialised. Many telecommunications companies have launched telecommunications satellites that facilitate global communications via voice and electronic data networks and also provide geo-positioning services. Some companies are now contracting to offer individual ‘tourists’ the unique thrill of flying in space. More and more nations and private companies are thus entering the field of outer space exploitation. At the same time, they are entering into collaborative arrangements to undertake these outer space activities. A notable example of inter-state cooperation, of course, is the International Space Station.6 These developments had already occurred before the adoption of the 1996 Declaration, and have since accelerated. They raise important questions about the impact of that declaration. One question, from a policy standpoint, is to what extent have the political and ethical objectives of the 1996 Declaration been achieved ? Yet another, the one on which I focus here, is what legal status do the 1996 Declaration and its norms have ? Formally, it is a resolution of the United Nations General Assembly, and thus is a ‘mere’ recommendation to United Nations member States.7 It is clearly not a legally binding treaty (such as 5 See generally Tronchetti, supra fn 2, 65–77. 6 On the International Space Station, see generally Frans von der Dunk and Marcellinus M.T.A. Brus (eds.), The International Space Station : Commercial Utilisation from a European Legal Perspective (Martinus Nijhoff Publishers, Leiden-Boston 2006). 7 See United Nations Charter, Art. 13, para. 1 (conferring on the General Assembly the power to ‘make recommendations’).

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the United Nations Charter itself ). However, could the norms it proclaims now be part of another generally recognised source of international law, customary international law ? According to traditional doctrine, customary legal norms bind all States (except a State that has persistently objected to a norm since the time of its emergence) and arise when two circumstances converge. First, there must be a (relatively) uniform practice among all States, or a relevant subset of States, in the international system (the ‘consistent State practice requirement’). And second, States must engage in this practice out of a belief that it is legally mandated, and not out of mere convenience or courtesy (the ‘opinio juris’ requirement).8 Have both of these requirements for customary law been fulfilled with respect to the 1996 Declaration, thus making all or some of the norms in the Declaration part of customary international law ? Furthermore, are these requirements actually appropriate to apply, or is another test for customary international law more appropriate in the contemporary world ? These are the questions I seek to investigate in this chapter. In general, I propose a new definition of customary international law, consistent with arguments I have developed at greater length in a book.9 I then apply this new definition to evaluate the customary law status of the norms in the 1996 Declaration.

II. The uncertain customary law status of norms of the law of outer space according to traditional customary law theory Have United Nations declarations and principles relating to outer space achieved some kind of legal status ? In particular, is it possible for the norms contained in a United Nations General Assembly resolution like the 1996 Declaration to be transformed into customary international law binding upon all States ? If so, how ? The traditional definition of customary international law, requiring both consistent State practice and opinio juris, poses many problems for answering these types of questions. The consistent State practice requirement demands, according to the conventional doctrine, some regularity of general practice of States over 8 See generally Brian D. Lepard, Customary International Law : A New Theory with Practical Applications (Cambridge University Press, Cambridge 2010) 6. 9 See generally ibid.

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a period of time.10 However, how can such a general practice exist when so few States have actually launched objects into outer space ? And if space exploration has existed for a mere half century, how can the traditional requirement of the necessary period of practice be fulfilled ? Some scholars have argued, in fact, that in the case of norms regulating a revolutionary new field, such as outer space, the standard requirement for longstanding State practice should be relaxed, even permitting the formation of ‘instant’ custom based on opinio juris alone.11 Similar problems exist concerning the opinio juris test. According to traditional theory, States must act in a certain way (for example, refraining from deploying weapons in outer space) because they believe they are legally obligated to do so. However, before a new legal norm comes into existence already, such a belief would be mistaken. This leads to a so-called ‘paradox’ of opinio juris that could prevent the formation of ‘new’ customary law.12 Moreover, the traditional theory leaves unspecified the precise nature of legal obligation. Does a customary norm always establish a binding legal obligation ? Or could it establish what might be called a ‘persuasive legal obligation,’ having persuasive legal authority — a legal obligation to give great weight to certain principles or to the achievement of a particular outcome (such as equitable sharing of space resources) ? Much of space law takes the form of United Nations declarations of ‘principles’ and thus lies at the murky edge of binding legal obligations in a realm that might be described as ‘soft law’ — the very focus of this volume.13 Yet, the traditional theory of opinio juris and customary law does not allow for such fine distinctions among different legal obligations to be drawn, but rather insists in binary fashion that a norm is either ‘law’ or ‘not law.’ Furthermore, the traditional definition fails to clarify the relevance and legal effect of United Nations resolutions, such as the 1996 Declaration. Can a United Nations resolution be treated as a form of State practice, or must State practice exist apart from rhetorical documents like the 1996 Declaration ? Can 10 See, e.g., ibid., 6. 11 See, e.g., Bin Cheng, United Nations Resolutions on Outer Space : ‘Instant’ International Customary Law ?, in : Bin Cheng (ed.), International Law : Teaching and Practice (Stevens & Sons Ltd., London 1982) 237, 252 (‘There is no reason why an opinio juris communis may not grow up in a very short period of time among all or simply some Members of the United Nations with the result that a new rule of international customary law comes into being among them.’). 12 See Lepard supra fn 8, 22–23. 13 On soft law, see generally Dinah Shelton, Introduction : Law, Non-Law and the Problem of ‘Soft Law’, in : Dinah Shelton (ed.), Commitment and Compliance : The Role of Non-Binding Norms in the International Legal System (Oxford University Press, Oxford 2000) 1–18.

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such a document serve as evidence of opinio juris, or again, must evidence of opinio juris be found in other behaviors or diplomatic utterances of States ?

III. Determining the customary law status of norms of the law of outer space in light of a new theory In my book entitled Customary International Law I have developed a comprehensive new theory of customary international law.14 According to that theory, we should ethically view States as participants in a global community of States and individuals as members of a global human family. In both communities, a certain level of diversity of opinions, attitudes, characteristics, and beliefs ought to be valued and respected. I therefore argue that customary international law ought to be determined in light of a background ethical system anchored in a preeminent principle of ‘unity in diversity,’15 which is found in contemporary international legal documents, including the United Nations Charter and the Universal Declaration of Human Rights. This ethical system comprises various ethical norms that (1) also find expression in international law today, and (2) are logically related to the principle of unity in diversity. I refer to these principles as ‘fundamental ethical principles.’ Fundamental ethical principles include human dignity and human rights, such as a right to a basic level of subsistence ; a trust theory of government that limits State sovereignty but also recognises a significant zone of State autonomy ; and recognition of a global community of States that in turn should promote peace, non-violence, and unity among its members, and a fair sharing of economic resources.16 My theory posits that States, working as part of a community, have developed various modes of law-making that respect fundamental State autonomy while also seeking to promote the interests of that community and of the members of the world-spanning human family. Treaties represent a formal mode of community law-making. Customary law, on the other hand, is best conceptualised as an informal mode of law-making dependent on the explicit or implicit views of States about what legal norms ought to be created. In many situations their views are best evidenced by their actual behavior — i.e., State ‘practice.’ It is for 14 See generally Lepard, supra fn 8. 15 See ibid., 78–81. 16 See generally ibid., 81–92.

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this reason that, naturally, customary law has been identified with customary ‘behavior’ and consistent State practice. Nevertheless, this is not the essential component of customary law. That essential component, instead, is a belief by States that a particular norm ought to be recognised as a legal one. This amounts to a modified version of ‘opinio juris.’ In brief, according to the theory I propose, a new customary norm arises when States generally believe that it is desirable now or in the near future to have an authoritative legal principle or rule prescribing, permitting, or prohibiting certain conduct.17 In making this evaluation, State practice may be evidence of such a belief but is not a necessary component of customary international law. Moreover, where State views are not clear, we should presume that States intend to promote fundamental ethical principles. Notably, too, this reformulation of the opinio juris test avoids the paradox associated with the conventional definition. Importantly, States may well believe that the institution of a legal norm to govern particular activities is not desirable now or in the near future. For example, they may reasonably perceive that States are playing a ‘harmony’ game, in which a desirable result is achieved just by States following their own interests with no legal rules governing their behavior.18 Or they may simply believe that it is better to rely on persuasion or the force of moral arguments to coax States to achieve certain goals. They may perceive that States need assurances that other States are likely to behave in a certain way, which can be provided through political or moral norms that fall short of legal ones.19 Or they may see the need only for a coordination norm, with which, once established, all States have an incentive to comply voluntarily without a legal rule.20

IV. Evaluating the customary law status of the norms in the 1996 Declaration How, then, can the norms in the 1996 Declaration be evaluated according to this new theory ? The key question is whether States generally believe that it is desirable, now or in the near future, to recognise any or all of the norms in 17 18 19 20

See generally ibid., 8. On ‘harmony games,’ see ibid., 60–62. On ‘assurance games,’ see ibid., 62–64. On coordination problems, see ibid., 67–71.

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the Declaration regarding international cooperation in the exploration and use of outer space as legally authoritative. In assessing State views, we should give weight to the overall legal context of the 1996 Declaration, its language, the views of States expressed during its drafting, and the views and actual behavior of States following its adoption. We begin with the concept that any resolution of the United Nations General Assembly is, according to the text of the United Nations Charter, a ‘recommendation’ rather than a legally binding document as such.21 Nevertheless, parties to the United Nations Charter are legally bound to observe it, and the fact that they have conferred on the General Assembly powers of recommendation means, at the least, that legally they must give any General Assembly recommendations some weight in their decision-making and cannot deliberately flout these recommendations — what I referred to above as ‘persuasive legal authority.’22 Moreover, the fact that States have styled a resolution as a ‘declaration’ — a much weightier pronouncement — may be evidence that they believe that the norms in it ought to have persuasive legal authority for all States. At the same time, whether or not particular norms in a resolution have persuasive legal authority and the degree of this authority will depend on various other factors, including its wording,23 the extent of support it enjoys, and its consistency with fundamental ethical principles. I turn, then, to a more focused examination of the legislative history (the travaux préparatoires) and text of the 1996 Declaration in light of these concepts. It is instructive to note that the Declaration was a product of deliberations on an agenda item originally entitled ‘Consideration of the legal aspects related to the application of the principle that the exploration and utilisation of outer space should be carried out for the benefit and in the interests of all States, taking into particular account the needs of developing countries.’24 Members of the Legal Subcommittee of UNCOPUOS had first proposed considering this item at UNCOPUOS’s 1987 session.25 The Legal Subcommittee by consensus decided

21 22 23 24

See UN Charter, Art. 13, para. 1. See Lepard, supra fn 8, 209–211. See ibid., 212–13. See, e.g., Report of the Committee on the Peaceful Uses of Outer Space, GAOR 51st Session, Supp. No. 20, UN Doc. A/51/20 (1996), 23 (emphasis added). 25 See Report of the Committee on the Peaceful Uses of Outer Space, GAOR 42nd Session, Supp. No. 20, UN Doc. A/42/20 (1987), 15–16.

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to adopt this new subject at its 1988 session.26 UNCOPUOS agreed that the United Nations Secretary-General should invite member States to submit views about the priority of specific subjects and to ‘provide information on their national legal frameworks, if any, relating to the development of the application of the principle contained in article 1’ of the 1967 Outer Space Treaty.27 The Group of 77, representing developing countries, proposed the formation of a working group to consider the new item.28 At the 1989 session of UNCOPUOS, some delegations, presumably from developing countries, ‘expressed the view that technological differences among States had brought about inequalities in the benefits derived from activities pertaining to the exploration and utilisation of outer space. They felt that the working group [to be established by the Legal Subcommittee] should seek to elaborate a set of legal principles with a view to institutionalizing international co-operation.’29 Various developing countries, including Brazil, presented a working paper at the 1991 session of UNCOPUOS reflecting their concerns (the ‘Brazil et al. Working Paper’).30 Developing States again argued for ‘the widest possible diffusion of the benefits of space activities among the peoples of the world.’31 Some developing countries emphasised that the goal of the discussion was ‘to establish a new international legal framework.’ However, many space-faring nations rejected this view.32 Contending perspectives again flared up at the 1994 session of UNCOPUOS. Some delegations, presumably from the West, challenged the need for new legal principles because ‘there was sufficient international cooperation in the peaceful uses of outer space and such principles would limit the sovereign right of a State to choose with whom, and in what form, it could conduct cooperative activities, and would also limit the extent of ongoing cooperation.’33 26 See Report of the Committee on the Peaceful Uses of Outer Space, GAOR 43d Session, Supp. No. 20, UN Doc. A/43/20 (1988), 16. 27 See ibid., para. 90 (emphasis added). 28 See ibid.,16, para. 91 ; ibid. 35, Annex V. 29 Report of the Committee on the Peaceful Uses of Outer Space, GAOR 44th Session, Supp. No. 20, UN Doc. A/44/20 (1989), 17, para. 106. 30 See UN Doc. A/AC.105/C.2/L.182 (1991). 31 Report of the Committee on the Peaceful Uses of Outer Space, GAOR 46th Session, Supp. No. 20, UN Doc. A/46/20 (1991), 23, para. 132. 32 Ibid., para. 133. 33 Report of the Committee on the Peaceful Uses of Outer Space, GAOR 49th Session, Supp. No. 20, UN Doc. A/49/20 (1994), 21, para. 128.

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Other delegations defended the draft principles proposed by developing countries as consistent with sovereignty and said they were intended only to provide ‘guidelines’ for cooperation.34 There was also disagreement about whether the concept of the ‘common heritage of mankind’ as developed in the Law of the Sea negotiations was relevant to outer space benefits.35 Technologically advanced States again emphasised that ‘States should be free to determine all aspects of their cooperation on equitable and mutually agreeable terms and the most effective and appropriate modes of cooperation should be chosen on an ad hoc basis.’36 Greater progress was made at the 1995 session of UNCOPUOS. The developing countries modified their draft a second time, and Germany and France submitted a draft set of legal principles of their own (the ‘Germany and France Working Paper’).37 The chairman of the working group had produced his own informal paper that attempted to synthesise and consolidate the views of the two competing drafts, while also adding some new language.38 In UNCOPUOS the ‘view was expressed that there was a possibility of reaching a compromise between, on the one hand, the justified interests and needs of the developing countries together with their aspirations to obtain access to modern space technologies and, on the other hand, freedom of States to determine all aspects of their cooperation.’39 Success resulted at the 1996 session of UNCOPUOS after extensive informal consultations among the chairman and the sponsors of the two competing drafts, which had been revised. The chairman submitted a draft text of the declaration, on which UNCOPUOS reached consensus.40 This then became the text finally approved later that year by the full General Assembly. Turning to the text of the 1996 Declaration as adopted, the title of the 1996 Declaration omits any reference to the ‘legal aspects’ of sharing of space benefits, 34 35 36 37 38

Ibid., para. 129. See ibid. 21–22, para. 131. Ibid., 22, para. 132. See UN Doc. A/AC.105/C.2/L.197 (1995). See UN Doc. A/AC.105/C.2/1995/CRP.5, as amended (1995) ; see also UN Doc. A/AC.105/ C.2/L.202 (1996), reproduced as Annex III(D) in : Report of the Legal Subcommittee on the Work of Its Thirty-Fifth Session (18–28 March 1996), Committee on the Peaceful Uses of Outer Space, UN Doc. A/AC.105/639 (1996) [hereinafter 1996 Legal Subcommittee Report]. 39 UN Doc. A/50/20 (1995), 24, para. 137. 40 See generally Report of the Committee on the Peaceful Uses of Outer Space, GAOR 51st Session, Supp. No 20, UN Doc. A/51/20 (1996), 24, paras. 139–43.

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and instead only refers to international ‘cooperation.’ This change was made at the 1996 session of the Legal Subcommittee and it corresponded with the title used in the Germany and France Working Paper.41 This was clearly a victory for the developed States and tends to cast some doubt on the intention of the drafters to establish new legally binding rules. At the same time, however, the drafters agreed to describe the document as a ‘declaration’ rather than just a set of ‘principles’ — the term previously used in the Brazil et al. Working Paper — presumably to underscore its importance.42 The preamble of the 1996 Declaration generally recalls all of the General Assembly’s resolutions related to outer space, as well as the Outer Space Treaty. It recognises ‘the growing scope and significance of international cooperation among States and between States and international organisations in the exploration and use of outer space for peaceful purposes.’ It particularly refers to ‘experiences gained in international cooperative ventures,’ and says that the General Assembly is ‘convinced of the necessity and the significance of further strengthening international cooperation in order to reach broad and efficient collaboration in this field for the mutual benefit and in the interest of all parties involved.’43 The latter language had appeared in the Germany and France Working Paper.44 Moreover, the preamble expresses the General Assembly’s desire to facilitate ‘the application of the principle that the exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.’45 This provision was drawn from the Brazil et al. Working Paper,46 and it intentionally borrowed language from Art. I of the Outer Space Treaty.47

41 See 1996 Legal Subcommittee Report 20, para. 11 ; see generally Working Paper : Germany and France, UN Doc. A/AC.105/C.2/L.197/Rev. 1 (1996), Preamble, reproduced as Annex III (B) in ibid. [hereinafter Germany and France Working Paper]. 42 See 1996 Legal Subcommittee Report, 21, para. 20. 43 1996 Declaration, Preamble. 44 See Germany and France Working Paper, Preamble. 45 1996 Declaration, Preamble. 46 See Working Paper : Brazil, Chile, Colombia, Cuba, Egypt, Iraq, Mexico, Nigeria, Pakistan, Philippines, Uruguay and Venezuela, UN Doc. A/AC.105/C.2/L.182/Rev. 3 (1996), reproduced as Annex III (C) in 1996 Legal Subcommittee Report [hereinafter Brazil et al. Working Paper]. 47 See 1996 Legal Subcommittee Report, 21, para. 19.

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It is noteworthy that the preamble appears to endorse voluntary cooperation among two or more States in various space-related ventures that ‘mutually’ benefit the participants and their self-interests. This reflects an evident perception that many space exploration and exploitation activities reflect a ‘harmony’ game : States already have a desire to collaborate in the use of space based on their self-interests and the General Assembly wishes to encourage this ‘natural’ collaboration. At the same time, the General Assembly reaffirms a relevant ethical principle that permeates the law of outer space, as manifested by its prominent announcement in Art. I of the Outer Space Treaty : that the exploration and use of outer space should be carried out ‘for the benefit and in the interest of all countries,’ and that space ‘shall be the province of all mankind.’48 Where States reasonably perceive a harmony situation, in which States can achieve mutually beneficial goals without authoritative norms, we should be reluctant to conclude that they believe legal norms are necessary to institute and therefore that they believe that a customary legal norm should arise. On the other hand, States’ reasonable perception of strong ethical principles relevant to an issue area (such as space exploration) may be a reason to presume they also believe that a customary legal norm, whether persuasive or binding, should help reinforce those principles. However, there was much apparent disagreement in the UNCOPUOS meetings about whether ethical principles concerning the just distribution of space benefits were sufficiently strong to justify establishment of a binding legal obligation. The operative articles of the 1996 Declaration provide further evidence of States’ views. Art. 1 states in part that international cooperation in the peaceful exploration and use of outer space ‘shall be conducted in accordance with the provisions of international law,’ including the United Nations Charter and the Outer Space Treaty.49 Similar language was proposed in the final versions of both the Germany and France Working Paper and the Brazil et al. Working Paper, demonstrating some convergence of opinion on this principle among developed and developing States.50 It is significant that this statement refers to two treaties, which normally bind only their parties (although the Charter, of course, binds the vast majority of in48 1996 Declaration, Preamble (emphasis added). 49 Ibid., Art. 1. 50 Compare Germany and France Working Paper, Annex, sec. I, para. 1, with Brazil et al. Working Paper, Annex, para. 2.

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dependent States in the world). This statement could be taken either as an affirmation that these treaties bind their parties (which they already do), or it could be read as expressing the view that the fundamental norms in these treaties ought to bind all States, even non-parties. The latter view would be evidence of opinio juris. The use of the word ‘shall,’ as opposed to the word ‘should,’ suggests that the former view is more plausible : this is a reaffirmation of the treaty commitments that States have undertaken as well as the customary norms that already bind all States in the area of space exploration and use. We should be cautious about inferring a more far-reaching view about the applicability of these norms without further evidence of States’ attitudes. On the other hand, Art. 1 also asserts that international cooperation ‘shall be carried out for the benefit and in the interest of all States, irrespective of their degree of economic, social or scientific and technological development, and shall be the province of all mankind. Particular account should be taken of the needs of developing countries.’51 The provision’s use of the word ‘shall’ could imply a view among General Assembly members that it would be desirable to have a universal legal rule requiring cooperative activities to be undertaken in a way that benefits all States, and not only the participating States. On the other hand, how, realistically, could the cooperative activities of any two or more States directly benefit every State in the world ? This, then, appears to be a collective obligation that must be ethical in character rather than legal, in the same way that society collectively has an ethical obligation to feed the poor, but no one individual can legally be held to account for not giving money to a particular poor person. The statement that particular account ‘should’ be taken of the needs of developing States is even more ambiguous ; the word ‘should’ could imply a moral obligation rather than a legal one. Indeed, during the discussion of this provision in the Legal Subcommittee of UNCOPUOS, delegations disagreed about whether to use the word ‘should’ or ‘shall.’52 This disagreement casts doubt on whether States intended to create a binding, or even persuasive, legal obligation to take the interests of developing States into account. It is unclear how even a persuasive legal obligation could be fulfilled, given the ambiguity in the concept of taking the needs of developing countries into account.

51 1996 Declaration, Art. 1 (emphasis added). 52 See 1996 Legal Subcommittee Report, 26, para. 61.

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Art. 2 represents a change of perspective. It announces that ‘States are free to determine all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis. Contractual terms in such cooperative ventures should be fair and reasonable and they should be in full compliance with the legitimate rights and interests of the parties concerned as, for example, with intellectual property rights.’53 The first sentence appeared in the final Brazil et al. Working Paper54 as well as the Germany and France Working Paper.55 The second sentence was drawn from the Germany and France Working Paper and reflected concerns of developed countries about the protection of intellectual property rights.56 This article returns to an emphasis on the ideal of State cooperation in the use of outer space as a harmony game, in which States may choose to cooperate on a ‘mutually acceptable basis.’ It underscores the freedom of individual States to determine how they will cooperate with one another. It does not affirm either a persuasive or binding legal obligation to cooperate on a particular space-related venture. It instead upholds a foundational norm of State autonomy. It also refers to ‘mutually acceptable’ cooperation, envisioning bilateral, individually negotiated arrangements between States, but not excluding multilateral arrangements. ‘Mutually acceptable’ means participating States must individually consent to each such arrangement. On the other hand, the article says that cooperating States must cooperate on an ‘equitable’ basis. This appears to incorporate a ‘check’ on the terms of cooperative space agreements. It is not clear, however, what principles ought to govern the determination of what is ‘equitable.’ According to the theory I have elaborated, fundamental ethical principles should play a role in interpreting the term ‘equitable.’ One of these principles is that of trusteeship : if indeed space is the ‘province of all mankind,’ then those States that control it or benefit from it in any way should ensure that they share benefits with other States which are also, in effect, beneficial owners of space and its resources. At a minimum, they should not consciously seek to appropriate all space benefits for themselves and deprive all other States and peoples of those benefits. 53 54 55 56

1996 Declaration, Art. 2 (emphasis added). See Brazil et al. Working Paper, Annex, para. 4. See Germany and France Working Paper, Annex, sec. I, para. 3. See ibid.

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Similarly, Art. 2 says that contractual terms should be ‘fair and reasonable.’ Once again, use of the term ‘should’ could either imply that States believe this is merely an ethical obligation, or it could express a view that there is a persuasive legal obligation to ensure that contractual terms are fair and reasonable. Because States did not define these terms, we should presume, according to my theory, that fairness and reasonableness ought to be measured by reference to fundamental ethical principles, and most importantly, those principles recognizing a global community of States and a global community of humankind. The very concept of ‘community’ implies that among both States and peoples gross extremes of resource distribution — whether excessive or minimal — ought to be regarded as unfair and unreasonable. Art. 2 also says the terms of any cooperative agreements ‘should’ be in full compliance with the rights and interests of concerned parties, including intellectual property rights. This language had been changed from ‘shall,’ as explained by the sponsors at the Legal Subcommittee’s 1996 session.57 This could again be the language of ethics or aspiration. On the other hand, ‘legitimate rights’ is a legal concept, as is the example given of intellectual property rights. So this may in fact express a view of the General Assembly that it is desirable to have a rule that legally requires contractual terms to guarantee preexisting legal rights of States parties as well as property rights of private parties. At a minimum, it could be evidence that UN member States believe there ought to be a persuasive legal obligation to draft space agreements so as to honor these rights. On the other hand, it is more difficult to ‘comply’ with unspecified ‘interests’ of parties ; this may reflect more of an ethical obligation. Art. 3 affirms that ‘all States, particularly those with relevant space capabilities and with programmes for the exploration and use of outer space, should contribute to promoting and fostering international cooperation on an equitable and mutually acceptable basis. In this context, particular attention should be given to the benefit and the interests of developing countries and countries with incipient space programmes stemming from such international cooperation conducted with countries with more advanced space capabilities.’58 These provisions combined elements of different articles in the Brazil et al. Working Paper.59 Notably, the sponsors of that working paper explained that earlier wording relating to the 57 See 1996 Legal Subcommittee Report, 24, para. 46. 58 1996 Declaration, Art. 3. 59 See Brazil et al., Working Paper, Annex, paras. 3, 6.

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second sentence ‘that could imply an interference with the sovereign right of States to enter into cooperative ventures had been removed.’60 Here we find the same ambiguity that exists in Art. 1 : is the statement that advanced States ‘should’ help promote international cooperation a declaration of merely an ethical or political aspiration, or does it convey a belief by States that there should be some form of legal obligation, whether persuasive or binding, to do so ? It may be relevant to this determination that the object of the obligation to ‘contribute to promoting and fostering international cooperation’ is not clearly defined and is very amorphous ; this lends credibility to an inference that only an ethical obligation is intended. So also does the fact that the preceding article implies that States are free to cooperate or not as they choose on particular space ventures. Indeed, the article similarly specifies that cooperation must be ‘mutually acceptable.’ On the other hand, the language introduces a measure of limitation on acceptable cooperation — that it be on an ‘equitable’ basis. This could be an ethical obligation, but it could also be a persuasive legal one. The article’s statement that particular attention ‘should be given to the benefit and the interests of developing countries and countries with incipient space programmes’ again is susceptible of these different interpretations, either as an ethical norm only or as a persuasive legal obligation. However, limitation to an ethical norm is implied by the drafting history, and in particular the emphasis of the sponsors on the sovereign rights of States to choose their cooperative ventures. Art. 4 of the Declaration returns to an emphasis on voluntary cooperation by pairs or groups of States, declaring that ‘international cooperation should be conducted in the modes that are considered most effective and appropriate by the countries concerned, including, inter alia, governmental and non-governmental ; commercial and non-commercial ; global, multilateral, regional or bilateral ; and international cooperation among countries in all levels of development.’ 61 The essential ideas in this article appeared both in the Germany and France Working Paper62 and in the Brazil et al. Working Paper.63 Again, the sponsors of the Brazil et al. Working Paper clarified that the relevant language would not interfere with the ‘sovereign right of States to enter into cooperative ventures.’ 64 60 61 62 63 64

1996 Legal Subcommittee Report, 22, para. 27. 1996 Declaration, Art. 4 (emphasis added). See Germany and France Working Paper, Annex, sec. II, para. 1. See Brazil et al. Working Paper, Annex, para. 6. 1996 Legal Subcommittee Report, 22, para. 27.

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By referring to the views of the countries concerned and giving them discretion to determine what modes of cooperation are most effective and appropriate, the article emphasises State autonomy and appears, at best, to establish some form of ethical obligation. It again thus suggests a view that States should have a significant zone of freedom of action rather than a legal obligation to cooperate in a certain way — an interpretation supported by the minimal guidance that can be gleaned from the history of discussion of the provision. Art. 5 specifies at least three goals of international space cooperation, namely, ‘promoting the development of space science and technology and of its applications,’ ‘fostering the development of relevant and appropriate space capabilities in interested States,’ and ‘facilitating the exchange of expertise and technology among States on a mutually acceptable basis.’ It also says again that international cooperation should take ‘into particular account the needs of developing countries,’ including ‘their need for technical assistance and rational and efficient allocation of financial and technical resources.’ 65 This article consolidated elements of the Germany and France Working Paper66 and the Brazil et al. Working Paper,67 in general more closely following the latter. The sponsors of the former working paper emphasised the importance of this provision because it aimed at the ‘efficient allocation of scarce resources.’68 There was also some debate on whether the text properly used the term ‘should’ as opposed to ‘shall’ concerning the goals of international cooperation.69 Similar debate occurred on language in the Germany and France Working Paper providing that States ‘should choose the most effective and appropriate mode of cooperation among these alternatives with the aim of an efficient allocation of financial and technical resources.’70 According to the Legal Subcommittee’s report, some States were opposed to changing ‘should’ to ‘shall’ because this ‘would hinder free choice in selecting modes of cooperation.’71 In light of the language of Art. 5 and this drafting history, the goals of space cooperation identified in the article again appear to be ethical aspirations rather 65 66 67 68 69

1996 Declaration, Art. 5. See Germany and France Working Paper, Annex, sec. I, para. 2 ; sec. II, para. 2. See Brazil et al. Working Paper, Annex, para. 5. 1996 Legal Subcommittee Report, 24, para. 43. On the relevant language, see Germany and France Working Paper, Annex, sec. I, para. 2 ; see generally 1996 Legal Subcommittee Report, 24, para. 44. 70 Germany and France Working Paper, Annex, sec. II, para. 2 (emphasis added). 71 1996 Legal Subcommittee Report, 24, para. 48.

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than objectives of persuasive or binding legal obligations. The Declaration’s reference once again to a ‘mutually acceptable basis’ suggests that States are fundamentally free to determine how to pursue these goals. Moreover, the goals concerned are to ‘promote,’ ‘foster,’ and ‘facilitate’ rather than to achieve any concrete end. So also the reference to taking into account the needs of developing countries could be viewed as laying down an ethically desirable goal rather than advocating a legal obligation. Art. 6 affirms that ‘national and international agencies, research institutions, organisations for development aid, and developed and developing countries alike should consider the appropriate use of space applications and the potential of international cooperation for reaching their development goals.’72 This article was based on language that appeared both in the Germany and France Working Paper73 and in the Brazil et al. Working Paper.74 This language is not addressed to States, but rather to agencies, institutions, and organisations. It appears to express a policy objective that should be sought by these organisations, rather than to articulate a persuasive or binding obligation on the part of States. Art. 7 says that UNCOPUOS ‘should be strengthened in its role, among others, as a forum for the exchange of information on national and international activities in the field of international cooperation in the exploration and use of outer space.’75 Identical or virtually identical provisions appeared in both the Germany and France Working Paper and the Brazil et al. Working Paper.76 Again, this is a policy statement, and it seems to promote coordination of State policies by referring to UNCOPUOS as a forum for the exchange of information, thereby promoting persuasion and voluntary cooperation. The article does not empower UNCOPUOS to perform any adjudicative function relating to the norms in the 1996 Declaration, which suggests that States do not desire that these norms have binding legal force. The final article of the 1996 Declaration, Art. 8, says that ‘all States should be encouraged to contribute to the United Nations Programme on Space Applications and to other initiatives in the field of international cooperation in accordance with their space capabilities and their participation in the exploration and 72 73 74 75 76

1996 Declaration, Art. 6 (emphasis added). See Germany and France Working Paper, Annex, sec. III, para. 2. See Brazil et al. Working Paper, Annex, para. 8. 1996 Declaration, Art. 7 (emphasis added). See Germany and France Working Paper, Annex, sec. III, para. 3 ; Brazil et al. Working Paper, Annex, para. 9.

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use of outer space.’77 This article is a modification of a provision in the Brazil et al. Working Paper.78 By explicitly referring to ‘encouragement’ of States to make contributions, rather than requiring them to do so, this article expresses a policy or ethical objective and does not appear to indicate the desirability of instituting either persuasive or binding obligations to make contributions to space-related cooperative programs. Looking at the text of the Declaration as a whole, in light of its drafting history, a few conclusions appear justifiable. First, the majority of States that approved of the Declaration in general saw space exploration for peaceful purposes as a harmonious activity or at least as one requiring only good faith cooperation among voluntarily participating States. They envisioned multiple States coming together to implement cooperative ventures not only for their own mutual benefit, but also for the benefit of all States, and indeed, ‘all mankind.’ They ultimately rejected attempts by less developed States to lay down binding rules, other than those already applying under existing international law. Even the delegate of Brazil, which had proposed the Brazil et al. Working Paper, reassured developed States, several years into the negotiations, that the working paper was not, in the words of one commentator, ‘an attempt to impose legal links and obligations for cooperation in space activities.’79 Rather, the Brazilian delegate explained that ‘the sponsors of the working paper were trying to design a set of principles that would ‘guide States once they had exercised their sovereign prerogative of entering into an international cooperative exercise.’ The principles, the delegate noted, would not impose mandatory conditions on international cooperation.’80 On the other hand, quite a few States participating in the negotiations, both from the developed and developing nation blocs, did appear to recognise the ethical imperative of promoting more equitable cooperation in the sharing of space benefits. Indeed, one way to view the 1996 Declaration is as an authoritative statement of these ethical aspirations. There is no doubt, for example, from the language of Art. 1, that States believed that cooperation is desirable because of the existence of parallel global communities of States and mankind, and that these dual communities should enjoy some degree of equitable sharing of space benefits. The drafters seemed to believe that at a minimum equitable sharing 77 1996 Declaration, Art. 8 (emphasis added). 78 See Brazil et al. Working Paper, Annex, para. 10. 79 Nandasiri Jasentuliyana, Ensuring Equal Access to the Benefits of Space Technologies for All Countries, 10 Space Policy (1994) 7, 12. 80 Ibid.

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means that extremes of space benefits or the lack thereof should be avoided, so that all States have at least minimal access to benefits from the use or exploration of outer space. An open question is whether States believed these ethical goals were sufficiently compelling to establish at least a persuasive legal obligation to pursue them — which would require States legally to carry them out in good faith and not seek to undermine them. Here, the textual evidence is mixed. Some language implies such a legal obligation, while other language appears to confine any obligations to the ethical realm. Turning to Art. 1, even though the article asserts that cooperation ‘shall’ be undertaken for the benefit of all States, and all mankind, which implies some form of obligation, Arts. 2 and 4 cast serious doubt on the legal character of any obligation by affirming that States are free to determine how to cooperate. Moreover, if Art. 1 imposes any obligation, it must logically be a collective one on the part of the international community as a whole, not an obligation of any particular State or group of States. For it would not be reasonable to require that every cooperative venture entered into by a State benefit ‘all States’ — except, perhaps, indirectly. Nor would it be reasonable to require that every space-faring State enter into a cooperative arrangement with every other State in the world. There is no evidence that the drafters of the 1996 Declaration intended any such sweeping obligation. Similar conclusions follow regarding the purposes of cooperation mentioned in Art. 5. It simply is not plausible that the drafters believed that every agreement entered into by every space-faring State must have all of the purposes mentioned there. Rather, these purposes are to be achieved in the aggregate, by the combined cooperative endeavors of all space-faring States. At the same time, there are modes of cooperation that are more likely to benefit a large cross-section of mankind and the global community of States, and others that are virtually certain not to do so. For example, a bilateral venture might be with a less developed country and provide for the free sharing of scientific information with other countries. At the other extreme, a space-faring State might deliberately limit its cooperative ventures to other space-faring States and might insist on contractual provisions for these ventures that prohibit any sharing of information gleaned from them with other States or organisations. The latter policies and practices would make it very difficult, if not impossible, for the cooperative ventures of that State to benefit all States, and especially less developed countries. They could never achieve the purpose set out in Art. 5 of

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‘facilitating the exchange of expertise and technology’ among States in a way that takes particular account of the needs of developing countries. Of course, Arts. 2 and 4 suggest that States were unwilling to obligate any space-faring State to enter into ventures with any particular State, and wished to allow States to retain full freedom of action regarding choice of space partners. But Art. 2 does clearly concern itself with the content of any agreements. Indeed, in Art. 2 States sought to map out general guidelines for how cooperative agreements should be structured. These include that terms of agreements should be ‘equitable,’ ‘fair,’ and ‘reasonable,’ and should respect intellectual property rights and other legitimate State rights and interests. It is very possible that the drafters believed that States should have persuasive legal obligations to ensure that any agreement they chose to enter into met these tests. Indeed, I have suggested that fundamental ethical principles are relevant in making presumptions about State beliefs where States themselves believe them to be relevant. Here, the principles of respect for the interests of the global community of States and respect for the interests of the global human family together suggest that States believed recognition of a persuasive legal obligation to make the terms of legal contracts equitable, fair, and reasonable was desirable. At the same time, they rejected making these obligations legally binding. Rather, the drafters consciously sought to persuade States voluntarily to incorporate these types of terms and did not empower UNCOPUOS formally to determine whether States were implementing them. Meanwhile, the evidence seems clear from the text and the history of the 1996 Declaration’s drafting that States saw the provisions of Arts 6, 7, and 8 as setting out ethical or policy objectives. There is no evidence that States believed that achievement of these objectives should be either a binding or persuasive legal obligation. Moving beyond the text and indications of States’ views derived from the travaux préparatoires, we can examine other evidence relevant in determining opinio juris. As I explain at greater length in my book, we should give more weight to General Assembly resolutions as evidence of opinio juris to the extent that they are the product of wide-ranging and open-minded consultation, itself a fundamental ethical principle.81 Here, the 1996 Declaration was the result of nearly a decade of serious discussions. Furthermore, States representing many different political and social systems participated in these discussions, including 81 See Lepard supra fn 8, 211–12.

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States incorporating democratic principles, so that the views expressed in the UNCOPUOS negotiations are more likely to reflect the views of their citizens — a factor, I argue, that should strengthen inferences about opinio juris.82 The ultimate compromise text contained elements of the views of the participating developed and developing States.83 Indeed, the final text was adopted by consensus, without a recorded vote. The evidentiary weight of a General Assembly resolution regarding opinio juris should be increased to the extent that States drafting it reasonably believed that it supports fundamental ethical principles as I have defined them above.84 Here, it seems clear that the developed and developing States that produced competing working papers also endorsed competing ethical principles that, indeed, are fundamental ethical principles — State autonomy, on the one hand, and an equitable sharing of space benefits consistent with ‘unity in diversity’ and the elimination of extremes of resource distribution among both States and individuals, on the other. A principle of State autonomy generally favors a presumption that States do not believe in legal regulation of space benefits ; a principle of equity consistent with unity in diversity could support either an ethical approach, recognition of persuasive legal obligations, or even recognition of binding legal obligations. If States’ views were clearly in favor of one ethical principle over the other, and believed it to be morally compelling or essential to embody in law, this would be better evidence that States believed a persuasive or binding legal rule reflecting the principle was desirable to implement. But the history of the drafting of the 1996 Declaration does not reveal such a coalescence of views. So we must rely on other evidence. This evidence includes subsequent references to the Declaration as well as expressions of State views, including through their practice. The 1996 Declaration has been referred to in subsequent treaties, resolutions, and other international documents a number of times. These references, however, tend to confirm it as a statement either of ethical aspirations or of persuasive rather than binding legal obligations. For example, the States participating in the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE III), held in Vienna from 19 to 30 July 82 See ibid., 151–61, 212. 83 See, e.g., Jasentuliyana, supra fn 79, 15 (asserting that ‘there has been a distinct willingness of both sides in this debate to compromise’). 84 See generally Lepard, supra fn 8, 216–17.

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1999 adopted a resolution that reaffirmed the 1996 Declaration. 85 They also encouraged all States and international organisations to facilitate ‘programmes and activities between ‘space-faring’ and ‘non-spacefaring’ countries, as well as among developing countries, and involving civil society, including industry.’86 This language speaks of ‘encouragement’ and the ‘facilitation’ of cooperation between space-faring and non-spacefaring countries. The resolution adopted at UNISPACE III furthermore recognised that ‘the promotion of bilateral, regional and international cooperation in the field of outer space must be guided by’ the 1996 Declaration.87 This language, too, is consistent with a view that the 1996 Declaration articulates relevant ethical aspirations but also some persuasive legal obligations, as implied by the language ‘must be guided by.’88 Moreover, since the 1996 Declaration’s adoption the number of cooperative space ventures has mushroomed, strongly supported by governments. A myriad of new ventures have been launched, including public-private space partnerships. In general, a ‘free market’ in the use and exploration of outer space has opened up. States have shown little inclination heavily to regulate this free market, other than to reinforce and reiterate the principles in the 1996 Declaration. They have definitely endorsed a policy promoting international cooperation in the exploration and use of outer space. For example, the US Congress has declared that it is ‘national policy that the United States should […] continue to seek opportunities for international cooperation in space and fully support international cooperative agreements.’89 And the government of China has affirmed that ‘international space cooperation should adhere to the fundamental principles stated in the’ 1996 Declaration and that ‘international space exchanges and cooperation should be strengthened on the basis of equality and mutual benefit, peaceful utilisation and common development.’90 On the other hand, it seems clear that States do not view cooperative ventures in outer space as ethically neutral regardless of their terms. There is a clear trend towards the sharing of technology and the benefits of space exploration and a de85 See The Space Millennium : Vienna Declaration on Space and Human Development, Preamble. 86 Ibid., see Sec. I, para. 1(f )(iv). 87 Ibid.,para. 5. 88 Ibid. (emphasis added). 89 P.L. 101–611, Title I, §102(12), 104 Stat. 3188 (1990). 90 Government of China’s statement in its white paper entitled ‘China’s Space Activities in 2006,’ available at http ://en.cmse.gov.cn/list.php ?catid=37 (14/11/2011).

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sire to include more nations in space ventures. This lends weight to recognition of persuasive legal obligations on the part of parties to cooperative ventures to ensure that the terms are not unreasonably one-sided and do not unreasonably restrict dissemination of information and benefits obtained from the ventures to non-participating States, especially developing ones. Where there are ambiguities in State views, fundamental ethical principles can help create presumptions about these views. Where certain putative norms directly promote fundamental ethical principles, we should presume that States believe that it is desirable to recognise at least a persuasive legal obligation to follow them, absent contrary evidence of States’ views. Here, we have seen that fundamental ethical principles pull in different directions. Moreover, States did indeed indicate their reluctance to establish certain obligations as legal ones, including an obligation to enter into a partnership with any particular State.

V. Conclusion Taken together, on balance, the following conclusions appear justified. First, Art. 1’s affirmation that international space cooperation ‘shall’ be conducted in accordance with relevant treaties and international law does not express a new opinio juris. It is a policy or ethical reaffirmation that States’ are bound by their existing obligations under international law, including existing customary international law. Second, the same article’s statement that international space cooperation shall be carried out for the benefit of ‘all States’ does not evidence a view that any particular nation’s cooperative space activities must benefit all States. Rather, this is a collective obligation of the entire community of States, and an ethical one — albeit a very important ethical one. This view is confirmed by Art. 2’s and Art. 4’s reassurance that each State is free to determine all aspects of its cooperation with other States, including how it will cooperate. Third, Art. 1’s statement that States should take ‘particular account’ of the needs of developing countries also is best viewed as an ethical goal that should inform each space-faring State’s policies about how to choose partners for space activities. Fourth, Art. 2’s assertion that participation in international cooperation should be on an ‘equitable’ basis and that contractual terms should be ‘fair,’ ‘reasonable,’ and ‘in full compliance with’ the parties’ rights, is evidence that

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States believe there should be a persuasive legal obligation of States to ensure their agreements have these qualities. Contracts are legal in character and courts around the world routinely assess whether their terms are fair and reasonable. For example, the U.S. Uniform Commercial Code (U.C.C.) provides in §1–304 that ‘every contract or duty within [the Uniform Commercial Code] imposes an obligation of good faith in its performance and enforcement.’91 For this purpose, ‘good faith’ means ‘honesty in fact and the observance of reasonable commercial standards of fair dealing.’92 Section 242 of the German Civil Code similarly provides that ‘an obligor has a duty to perform according to the requirements of good faith, taking customary practice into consideration.’93 In short, thanks in part to the 1996 Declaration, there should be recognised a norm of customary international law requiring States to make good faith efforts to ensure that space-related agreements are fair and reasonable and respect existing legal rights of the parties, including intellectual property rights. Fundamental ethical principles indicate that ‘fairness’ and ‘reasonableness’ for this purpose mean that (1) a contract cannot explicitly prevent third States, especially developing States, from deriving some benefits from it, so these benefits are potentially universal ; and (2) a contract must not grossly advantage one party over another regarding the distribution of benefits from it. In this sense, its provisions cannot be contrary to public policy, i.e., contra bonos mores.94 Fifth, Article 3 is best understood as establishing ethical obligations. Similarly, the goals of international cooperation described in Art. 5 are ethical goals, and there is no evidence States believe that any particular State has either a persuasive or binding legal obligation to pursue these goals. Finally, the provisions of Arts 6, 7, and 8 lay down general policy and ethical objectives, and are not evidence that States believe that the norms they express ought to be recognised as legal norms, and hence as customary international law.

91 Uniform Commercial Code, §1–304. 92 Ibid., §1–201(20) ; see also ibid., §2–302(1) (relating to unconscionable terms of a contract). 93 German Civil Code, §242, available at http ://www.gesetze-im-internet.de/englisch_bgb/ (09/ 11/2011). 94 This concept is recognised in many civil codes, for example, that of Germany, which provides that ‘a legal transaction which is contrary to public policy is void.’ The German Civil Code states in particular that a legal transaction that exploits the weakness of one party and grants the other ‘clearly disproportionate’ ‘pecuniary advantages’ is void. See German Civil Code, §138, available at http ://www.gesetze-im-internet.de/englisch_bgb/ (09/11/2011).

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Most of my conclusions agree with those of Prof. Hafner in his excellent chapter in this volume. That is, I have concluded that most of the norms of the 1996 Declaration are not supported by opinio juris as I have defined it and have not yet entered the elevated sphere of customary international law. Prof. Hafner says in this connection that the 1996 Declaration by itself did not create an ‘instant’ rule of customary international law, a point with which I agree.95 And he goes on to state that it is ‘unlikely that the Declaration would be used as a confirmation of opinio iuris or a pre-normative instrument and become the germ for the creation of binding rules through treaty law as the formulation[s] are still hardly specific enough to serve as a basis for legal formulations.’96 Here, of course, I would argue that there is much greater evidence, confirmed by reference to fundamental ethical principles, and in particular the principle of a global community of States, that States believe there should now be a rule requiring States to take steps to ensure that the terms of legal space agreements are fair and reasonable and respect legal rights of States, including intellectual property rights. This means that they cannot exclude all third party benefits and cannot disproportionally distribute benefits to one party or another. The 1996 Declaration provides significant evidence of this belief, which, if it exists, should be sufficient to establish a new norm of customary international law. Recognition of such a limited rule, which is consistent with the overarching principle of State autonomy in the selection of space venture partners, would serve the larger ethical goals of the 1996 Declaration, including its primary goal of promoting international cooperation for the benefit of all States and all humankind.

95 Gerhard Hafner, The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, supra 286, et seq. 96 Ibid.

Carsten Wiedemann*

Space Debris Mitigation I. Introduction In the discussion whether soft law is sufficient to meet the requirements of an effective mitigation of space debris, awareness must exist for the different risks of debris on various orbits. It is important to know not only what the probability of a collision is on a certain orbit, but also what the probability for a particular collision energy is. Furthermore, the consequences of these risks concerning the future use of the orbits concerned are important. This knowledge can then be used to define the areas in which a need exists to regulate the mitigation of space debris and to recommend the types of regulations which are necessary. A major part of the larger orbital objects is catalogued. The orbits of about 16,300 objects1 with sizes ranging from a few centimetres to several meters are tracked continuously. The data of these orbits are published and made available for analysis purposes. Depending on the accuracy of the orbital data it is possible, in principle, to give a close encounter warning. However, these large objects make up only a small proportion of the actual space debris population. Collisions between catalogued objects are still relatively rare. In the past two decades, they have occurred at a rate of approximately one every five years.2 If such an event occurs, this is a catastrophic collision in which the collision part* The author wishes to thank Marek Möckel, Sven Flegel, Johannes Gelhaus, Vitali Braun and Peter Vörsmann of the Institute of Aerospace Systems, Technische Universität Braunschweig (Hermann-Blenk-Str. 23, 38108 Braunschweig, Germany) and Manuel Metz of DLR, Space Administration (Königswinterer Str. 522–524, 53227 Bonn, Germany) for their cooperation. The results presented in this paper were achieved in the research projects ‘Analyse zur Deutschen Position zur Wirtschaftlichkeit und Nachhaltigkeit von “Space Debris”-Vermeidungsmaßnahmen’ (50JR0783) and ‘Wirtschaftlichkeit der Stabilisierung der “Space Debris”Population auf niedrigen Erdumlaufbahnen’ (50RM1005) of the German Federal Ministry of Economics and Technology, on behalf of the German Aerospace Centre (DLR). All responsibilities for the contents of this publication reside with the author. 1 Satellite Situation Report, www.space-track.org (12/07/2011). 2 S. Flegel, J.Gelhaus and C. Wiedemann, Maintenance of the ESA-MASTER Model — Final Report, June 7, 2011.

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ners are fragmented. A risk can also arise from objects that are too small to be catalogued. The existence of such objects is known from sporadic measurement campaigns. However, their orbits can not be tracked continuously. The number of small objects and their distribution can only be described by models. The number of small objects is high. Objects in a particularly risky size regime are non-catalogued particles between one and ten centimetres in diameter. A collision with such objects can not be predicted. But the collision energy is sufficient to put a satellite out of service. This size range and the population of very small particles have to be described by a model. The model must have the ability to reproduce the sporadically obtained measurement data. Especially in the millimetre and centimetre range, however, there are large uncertainties due to the lack of measurement data.

II. Modelling the space debris environment To describe the population of non-catalogued objects, models have been developed and validated with measurement data. The present analysis is based on the debris population of the MASTER–2005 model (Meteoroid and Space Debris Terrestrial Environment Reference). This model considers the dynamics in the distribution of space debris particles up to a minimum size of one micrometre. MASTER–2005 is a statistical model that is based on the simulation of fragmentation events as well as numerous other sources of debris creation.3 The model considers a realistic distribution of the orbital parameters of the resulting debris. The modelling capabilities are the basis for subsequent long-term simulations. The space debris environment is modelled by simulating the generation and distribution of debris objects. This includes the propagation of the orbits of the simulated objects, considering all relevant orbital perturbations. The simulation results show that about 600,000 objects which are larger than one centimetre exist on all Earth orbits (in the year 2005). Most of these are on low Earth orbits at an altitude near 900 km. It is hardly possible to protect satellites against impacts of objects of this size. A collision with a centimetre size object leads to the loss of the satellite mission. 3 M. Oswald, S. Stabroth, C. Wiedemann, P. Wegener, C. Martin and H. Klinkrad, Upgrade of the MASTER Model — Final Report, ESA Contract Number 18014/03/D/HK(SC), April 26, 2006.

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If an object which is larger than one millimetre impacts a satellite at velocities typical for low Earth orbits,4 it has the ability to penetrate a conventional satellite wall. The number of these objects is estimated to be about 150 million. The highest spatial density exists at 900 km which is the same altitude as for objects larger than one centimetre. The size regime below one millimetre is dominated by dust particles from solid rocket motors and by particles that are generated continuously such as ejecta and paint flakes. The number of particles in the micron range is in the order of several trillions. Impacts of these tiny particles can be found on virtually all surfaces of spacecraft which were returned for analysis to Earth. Such small particle impacts usually do not result in mission failures.

III. Mitigation measures In the past years, there has been increasing awareness of the risk that arises from the generation of orbital debris. Workshops and conferences are being held with the sole purpose of discussing possible methods for active debris removal. Recommendations are available for the introduction of mitigation measures. Examples of such guidelines are the IADC’s (Inter-Agency Space Debris Coordination Committee) Space Debris Mitigation Guidelines.5 The goal of such recommendations is to keep the space environment in a state that allows the use of all the important orbits in the future. The IADC guidelines in particular recognise that there are certain orbit regimes which are more important than others and which should therefore be protected. The two so called ‘protected regions’ which have been introduced are the low Earth orbit (LEO) region which spans from the Earth’s surface up to an altitude of 2000 km and encompasses all declinations, and the geostationary (GEO) region which is defined as the geosynchronous altitude ±200 km and a declination band between –15 and +15 degrees from the equator. One option for mitigating space debris is by reducing the number of objects which are produced during or after a mission. The other possibility is to remove objects from the protected orbit regions either by performing end-of-life ma4 Typical collision velocities in these regions range from seven to fifteen kilometres per second, depending on the angle in which the objects collide. 5 http ://www.iadc-online.org/index.cgi ?item=docs_pub (12/07/2011).

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noeuvres or by other measures. Options which belong to the first category are prevention of mission related objects (MRO), prevention of solid rocket motor slag or passivation. Measures which belong to the second category are the reduction of the orbital lifetime, insertion into disposal orbits or active removal. It is important to note also that not all approaches are applicable to all objects. All of them have their own warrant. The applicable ranges and the effectiveness are briefly outlined in the following. 1. Reduction of the orbital lifetime The goal is to remove large objects with high orbital lifetimes from orbit and cause them to re-enter the Earth’s atmosphere, so that they cannot serve as collision partners in the future. While a direct re-entry trajectory is desirable from a debris mitigation standpoint, it is often not feasible for various reasons. On the one hand, it requires a large amount of fuel and is therefore costly. On the other, special conditions must be met in conducting controlled re-entries which are complex as well as costly. Reducing the orbital lifetime may also mean that an object is manoeuvred into an orbit which will cause it to re-enter within a defined time frame. The IADC Space Debris Mitigation Guidelines for instance propose a 25-year time frame. Both cases are only applicable to satellites on low Earth orbits. Using this method for higher orbits would cause high costs related to the significant re-entry burn and also temporarily increase the collision risk between the objects on re-entry paths with operational satellites on lower orbits. 2. Disposal orbits Satellites in geostationary orbits are transferred to an elevated disposal orbit, where they remain. This option is also possible in the LEO region and has been used for certain mission types such as the Russian RORSAT (Radar Ocean Reconnaissance Satellites). A significant part of GEO satellites have performed such end-of-life manoeuvres in the past decade.6

6 Tim Flohrer et al., Classification of geosynchronous objects — Issue 13, ESA/ESOC, February 2011.

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3. Mission Related Objects (MRO) prevention Satellites should avoid releasing objects during their mission. Examples of such objects are instrument covers or explosive bolts. Many of these objects are relatively large and can trigger catastrophic collisions. 4. Slag prevention Solid rocket motors typically use aluminum to enhance the effectiveness of an engine. This aluminum oxidises during the burn and may remain in orbit for significant amounts of time as slag particles reaching diameters of several centimetres or as sub-millimetre sized dust particles. The release of slag particles can be prevented, if motors with solid fuel are replaced by liquid engines. This reduces the number of objects in the centimetre range and lower size regimes. Although these objects do not seem to cause catastrophic collisions, mitigation measure makes sense, because the slag particles are the second largest contributor to the object population in the centimetre range. 5. Passivation Object generation due to unintentional fragmentations of spacecraft or upper stages is the main contributor to space debris. The causes are on-board energy sources. Most of the fragmentations involve an explosion of the propulsion systems. By removing the residual energy it is possible to reduce the number of such fragmentation events. This can be done, for example, by releasing residual fuel and oxidiser through a valve into space. The fragmentation of satellites due to battery explosions almost never occurs today, has in the past however been an important contribution. Also the rate of fragmentation events which can be traced specifically to remaining propellants has decreased noticeably.7 In spite of measures obviously being taken to passivate spacecraft, accidents still occur as was seen in February 2007, when a malfunctioning Briz-M upper stage exploded on a highly elliptic orbit with almost its entire propellant still on board.

7 Alexander Bernhardt, Explosionswahrscheinlichkeit von Satelliten und Raketenoberstufen auf Erdumlaufbahnen, Research Project, Technische Universität Braunschweig, Institute of Aerospace Systems, October 2010.

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6. Active removal Currently, a further measure is discussed. It is the active removal of larger objects with high orbital lifetimes and which reside in orbits with very high spatial object density. The background will be outlined further below. The importance of the problem lies in the imminent onset of the collision chain reaction effect, especially on sun-synchronous orbits. These orbits are used by many Earth observation satellites. The measures involve the removal of objects that are already in orbit. A recovery vehicle would dock with such objects and manoeuvre them into a re-entry trajectory.

IV. High risk orbits It is important to identify the main risk factors for the most important orbits. For these orbits it is useful to make regulations on the prevention of space debris. The highest spatial object density for space debris exists at altitudes near 900 km. Only in the micrometre size range, the highest density is found near 1000 km. This can be shown through simulations. Below 900 km, the orbital lifetime of objects decreases due to the atmospheric drag leading to a reduction in spatial object density towards lower altitudes. Above 900 km altitude, space activities decrease so that fewer man made debris is produced here. Generally speaking, the collision risk increases with the spatial object density so that one can say that the orbits for which the highest risk of collision with debris objects exists are polar orbits and sun-synchronous orbits near 900 km altitude. In polar or near polar orbits the probability for head on collisions is very high. In this case the collision velocity equals two times the orbital velocity resulting in extremely high kinetic energies.

V. Instability of the LEO population Among all natural and man-made particles larger than 1 cm, the fragments of over 200 known explosion and collision events have the highest risk of colliding with satellites in orbits with altitudes near 900 km. It is conceivable that with the increasing number of active and passive objects in the most popular orbit regions, these objects could one day begin colliding with one another. Cata-

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strophic collisions in which large objects are destroyed would significantly increase the number of dangerous fragments until such a region would become too polluted to be economically useable. Theories exist which describe the stability of certain orbital regions. Most notably, Donald Kessler has made significant contributions to this field since the 1970s. 1991, Kessler published a paper titled ‘Collisional cascading : The limits of population growth in low earth orbit’8 which outlined the results of a self sustained growth of orbital debris. He postulated that the growth would be instigated by catastrophic collisions between intact objects and later sustained by collisions between collision fragments. These latter collisions are known as ‘feedback’ collisions. This effect later became known as the ‘Kessler Syndrome’. In previous publications he had postulated that collision fragments could become a major issue by creating a debris belt around the Earth.9 Current simulations show that unintentional catastrophic collisions will continue to occur in the future, even if no new objects were added.10 Over the next 200 years, these collisions could result in a steady increase in the number of objects larger than 10 cm, with no noticeable slowing in their creation rate. This could be an indication that the most critical orbit region may already have become destabilised. Further simulations have shown that immediate, rigorous removal of large objects with long orbital lifetimes may be essential to dampen or inhibit the growing collision risk.11

VI. Locations of catastrophic collisions Within the altitude region with the highest spatial object density, certain orbit types and locations are most likely to be subject to catastrophic collisions. The Longterm Utility for Collision Analysis (LUCA) software is being developed at 8 Donald J. Kessler, Collisional cascading : The limits of population growth in low earth orbit, 11 Advances in Space Research (1991) 63–66. 9 Donald J. Kessler, Burton G. Cour-Palais, Collision Frequency of Artificial Satellites : The Creation of a Debris Belt, 83 Journal of Geophysical Research (1978) 2637–2646. 10 J.C. Liou and N. Johnson, Instability of the current LEO satellite populations, 41 Advances in Space Research (2008) 1046–1053. 11 S. Flegel, C. Wiedemann, S. Stabroth, D. Alwes, J. Bendisch, and P. Vörsmann, Future Satellite Failure Risk Due To Hypervelocity Impacts, 59th International Astronautical Congress 2008 — Glasgow, Scotland, paper IAC-08-A6.2.10.

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the Institute of Aerospace Systems in Braunschweig (Germany). It is a statistical model with the purpose of predicting the future evolution of catastrophic collisions. The predictions are created based on a starting debris population. Objects are added annually according to defined launch rates, explosions and solid-rocket motor firings. A propagator simulates the changing orbital parameters over time of each object due to the major long-term perturbing forces. The starting population from Europe’s space debris reference model MASTER is used. In order to obtain statistically valid results, up to 18 Monte-Carlo runs12 are typically performed. A future launch behaviour which is often used as baseline is a business-asusual scenario. Using this scenario, the most probable locations and orbits for future catastrophic collisions can be pinpointed. Figure 4 is the result of eight Monte-Carlo runs created for a simulated timeframe between the years 2005 and 2100.

  Figure 4 : Location of catastrophic collisions from eight Monte-Carlo runs in future businessas-usual scenario ; collision orbit altitude and inclination.

12 This refers to the ‘Monte Carlo method’ in which an experiment is repeated several times with different random input values to achieve a realistic average. More Monte Carlo runs yield better results at the cost of increased computation time.

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In the plot, the orbits of the target objects are given at the time of their catastrophic collision. Almost all collisions will take place between the altitudes of 500 and 1000 km or at around 1400 km. These are the regions where the highest spatial object density was shown to exist. The orbit inclinations which are most severely affected are those of sun-synchronous objects with inclinations above 90 degrees. These objects have a high risk of colliding with objects which have orbit inclinations between 80 and 90 degrees and are travelling in the opposite direction. These are typical for satellites or spent rocket bodies of Russian origin. Another jeopardised group of objects are retired RORSAT which were powered by a nuclear reactor. After mission completion these satellites with orbit inclinations around 64 degrees were re-orbited to altitudes of roughly 900 km and the reactor core was jettisoned. The collision between the operating US communications satellite Iridium–33 and the inactive Russian communications satellite COSMOS–2251 in February 2009 occurred at an altitude of ~786 km. The orbit inclinations were 74 degrees and 86 degrees respectively and the objects collided approximately at a 90 degrees angle. In July 2011, the total number of catalogued fragments in the US’ satellite situation report13 from this collision was 2000. This event occurred exactly in the region in which simulations predict the highest collision rate to occur in the future. Care must be taken in viewing this event as the beginning or being part of a cascading effect as no singular event can be used as any kind of validation for simulation methods. Simulations do however indicate that the likelihood for similar catastrophic collisions will increase if no intervention occurs. For these regions it is important to make preparations with respect to all technical and legal aspects which aim at mitigating the risks of a potential escalation of collisions.

VII. Conclusions The orbital regions of particular interest with respect to the space debris risk are the sun-synchronous orbits close to 900 km orbital altitude. In this orbital altitude there is a high spatial density of debris. Furthermore, the highest possible collision velocities occur in the case of a frontal collision. Collisions on near polar orbits are thus very energetic. This means that the probability of a 13 Satellite Situation Report, www.space-track.org (12/07/2011).

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catastrophic collision is particularly high in sun-synchronous orbits. If the collisional cascading effect (Kessler Syndrome) begins, this will most likely take place on sun-synchronous orbits. To suppress this effect, two mitigation measures are advisable. One is the active removal of existing upper stages and satellites. The other is the de-orbiting of future satellites at the end of their operational life (EOL). This would require that future spacecraft be equipped with brake engines. For active removal, the technical and scientific challenges may include the following steps. Long-lived risk objects which are potential collision partners have to be identified. Then, these objects have to be prioritised according to their risk. Then removal vehicles for docking and de-orbiting should be developed. Compared to active removal, de-orbiting at EOL is easier to implement, because the propulsion technologies are available. The legal question to clarify is whether and how the withdrawal of spent spacecraft on certain low-earth orbit must be regulated.

Werner Balogh* 1

The role of binding and non-binding norms in the implementation of small satellite programmes I. Introduction In recent years a vibrant community of small satellite developers in governmental and non-governmental organisations all around the World has been very active in bringing ever more ingenious technical capabilities to small satellite platforms. Small satellites can provide access to applications that hitherto had exclusively been the domain of larger and more costly satellites. The standardisation of small satellite platforms, cost-reducing design and development philosophies such as the use of commercial off-the-shelf components and affordable secondary payload launch opportunities motivate a growing number of organisations, including universities and private entities, to engage in small satellite development programmes and to contribute to the exploration and the peaceful uses of outer space. In doing so these space activity participants not only have to overcome financial, managerial and technical hurdles but also have to adhere to and consider various binding and non-binding legal and regulatory norms. Compliance with these norms by State and non-State actors alike is essential for ensuring the long-term sustainability of outer space activities. They include international treaties and principles and national space laws dealing with the conduct of space activities, regulations and rules concerning the use of the limited frequency spectrum and guidelines for space debris mitigation, demonstrating how soft and hard law are impacting space programmes. Since the 1990s we observe a strongly growing interest within governmental and non-governmental research and development organisations and universities to establish basic space technology development capacities through the implementation of small satellite programmes. Various motives are fuelling this trend. * United Nations documents quoted in this paper are available from the website of the Office for Outer Space Affairs at www.unoosa.org and from the Official Document System of the United Nations at documents.un.org. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.

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After more than five decades of space activities, space applications, in fields such as telecommunications, Earth observations and geopositioning, have become fully operational and are now readily available to users and consumers globally. Today practically all countries are using space applications in one way or another. According to the Organization for Economic Co-operation and Development (OECD), there has been a radical change in the space activities landscape during the last two decades. More and more countries are setting aside budget resources for space activities and as of early 2011 more than 50 countries have launched satellites into orbit.1 An increasingly better understanding and appreciation of space benefits is encouraging countries to enter the space sector and to establish, at least at a basic level, indigenous space technology development capabilities. Traditionally the development of space technology, such as sizeable satellites, has been costly, requiring not only considerable human resources, but also the infrastructure necessary for testing and developing space qualified components. In addition, with only a few launch service providers available worldwide, the procurement of a dedicated launch opportunity was another cost item that had to be considered. Thus a long-term vision was necessary for a country willing to invest in a space technology development programme to safeguard the sustainability of activities, maintain the infrastructure and retain and further develop a skilled workforce. Consequently, for a long time, this option was limited to primarily governmental organisations in only a few countries that were ready to make the required commitments and set aside the necessary resources. This situation changed with the debut of more capable small satellites. There is no universally adopted definition of what constitutes a small satellite, but a typical method is to categorise them by way of their mass.2 Some of the larger space agencies consider all satellites with a mass below 1000 kg to fall under the small satellite class. Satellite mass is an important cost factor, as launch cost typically increases with the mass of the payload. However, launch cost is not the sole determining factor for the cost of a satellite mission. Another important factor is the design philosophy that is employed to allow a satellite to be developed with a limited number of people and infrastructure, so that this task also fits an organisation with limited funds and capabilities. It is the application of such 1 OECD, ‘The Space Economy at a Glance 2011’, OECD Publishing, http ://dx.doi.org/10. 1787/9789264111790-en, 2011. 2 See, for example, Rainer Sandau, International study on cost-effective Earth observation missions, available at http ://www.isprs.org/proceedings/XXXVI/part1/Papers/T04–15.pdf (13/ 11/2011) : pico satellites