Revista Brasileira de Direito Aeroespacial
IS IT TIME TO DEVELOP A UNIVERSAL COMPREHENSIVE
45 years ago on October 4th, 1957 the first man-made object - the Soviet Sputnik - was launched into outer space. A new era of mankinds history the era of space exploration had begun.
Such great technological advancement had a tremendous impact on almost every - either socio-political or economic - sphere of human activities, including the international law system.
Undoubtedly UN had a crucial role in the appropriate and effective development of basic rules and principles governing mankinds activities in outer space. At first, the UN General Assembly adopted Resolutions 1348 of December 1958, 1472 of December 1959 and 1721 of December 1961. These documents established the UN Committee on the Peaceful Uses of Outer Space (COPUOS) and granted it mandate "to study and report on the legal problems which may arise from the exploration and use of outer space".
During the upcoming years of the space era, the Committee drafted and the UN General Assembly adopted five treaties of universal character 1 and five sets of principles containing recommendations. 2
However the ongoing social, political and technological progress of the human civilization has led to the situation when the space activities had overgrown the existing legal frames.
While in the first decades of the space exploration hardly a dozen of States exercised space activities of their own, today "the Space Club" unites dozens of States carrying out either independent or cooperative space programs, which impact all the spheres of life and almost every State. Such situation raises the issue of universal acceptance of the existing Space Treaties by all the countries either involved in these activities or enjoying their benefits. Meanwhile, the five core UN Space Treaties have been adhered to by a limited number of States. 3
The issue of universality of the five core Space Treaties has been coupled with the problem of the legal status of the five above-mentioned sets of principles. These documents have the character of recommendations approved by the United Nations General Assembly and as such are regarded by the modern international law system as legally non-binding. Meanwhile, some of these principles address quite sensitive issues, e.g. remote sensing of the Earth or the use of nuclear power sources in space. In the opinion of some States, such principles deserve to be "upgraded" to the level of legally binding instruments.
One of the most significant trends in recent years is the vast and rapid increase of the subjects participating in space activities. Alongside with the States, private companies and non-governmental entities have become serious actors in that field. These developments also require adequate reflection in the international space law system established under differing circumstances derived from the concept of "STATE" under which a State both enjoys all the rights and bear the burden of all obligations resulting from space activities.
Recently the world has been witnessing a real technological revolution in the spheres of economy linked to space activities. This phenomenon urges as well a profound adaptation of the system of the modern international space law. There have appeared new technologies, which reduced significantly the cost of space equipment, thus making it available to a larger number of consumers. At the same time, these technological novelties bring into life new types of spacecraft and space systems which have transformed drastically the ways and methods of space activities and applications. New launching systems, aerospace objects, micro-satellites are just a few worth mentioning.
The realities of the space era require to draw the attention of the international lawyers to some issues either not covered or deliberately omitted in the core Space Treaties: delimitation and definition of outer space, control over space sollution and mitigation of space debris, space traffic management, definition of the term "space activities", protection of intellectual property resulting from space activities, legal rules governing scientific research and private commercial activities in space. It is evident that such legal lacunae should not exist.
Some other reasons instigating the ideas of modification of certain provisions of the existing basic Space Treaties should be mentioned as well. For many years, some members of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) have been suggesting that the existing procedure of the settlement of disputes relating to the compensation for damage caused by a space object should be modified.
For the past three years, the Legal Subcommittee of the COPUOS has been discussing the issue of reviewing the concept of "launching State". Some experts express the view that the participation of private entities in outer space activities requires interpretation of certain legal rules to increase the effectiveness of their application. The best illustration of such a case are the recent developments related to the preliminary draft Protocol on Space Equipment 4, where serious problems of compatibility with the existing basic Space Treaties have emerged.
It is evident that such a "knot" of legal problems existing in international space law can only be solved in one way by developing a single comprehensive legal instrument of universal character a United Nations Convention on the Law of Outer Space.
Some arguments in favor of drafting such a document, complementing above-given considerations of a more general character, are offered below.
All juridical regulation aspects of international relations in the use of outer space are intimately interrelated. The Outer Space Treaty of 1967 covers practically every aspect arising in this sphere - the legal regime of outer space and celestial bodies, legal status of astronauts, international responsibility and liability, registration of space objects, etc.
The other four international treaties have been drafted based on the principles of the Outer Space Treaty. This method of developing of international space law allowed avoiding contradictions between the provisions of the Outer Space Treaty itself and the other four treaties.
If the modernization of the existing Outer Space Treaties is undertaken separately (by piece-meal method), collisions between their provisions will become inevitable.
Let us turn once again to the recent discussions on reviewing the term "launching State" in the Legal Subcommittee. Once the definition of the term "launching State" in the Convention on Registration of Objects Launched into Outer Space is modified (in a draft form) by State-members of the COPUOS, any State Party to the said Convention may formally propose such amendment. The amendment shall enter into force upon its acceptance by the majority of State Parties to the Convention (Article IX of the Convention). Procedurally, it may be done at a conference of State Parties or, alternatively, through letters of acceptance submitted to the Depository (the Secretary-General of the United Nations). Since there are 44 State Parties to the Convention, the amendment will become effective upon its acceptance by 23 States.
One can imagine that the COPUOS will recommend the consequential amendment to Article I of the Convention on International Liability for Damage Caused by Space Objects. Again, the initiative of proposing the amendment must originate from one or more State Parties to the Convention. They must communicate the proposal to the three Depository Governments, i.e. the United Kingdom, the USSR (since 1991 - the Russian Federation) and the USA. Then the Depository Governments will inform all the 82 State Parties to the Convention accordingly. To enter into force, the amendment must have 42 acceptances.
However, there are only 43 States who are State Parties to both the Registration and the Liability Conventions.
It may then happen that the amendment to the Liability convention shall not receive the required 42 acceptances. As the consequence, a situation might emerge when 21 State Parties to the Registration Convention will be bound by the "old" definition of the "launching State", 23 State Parties - by the modified definition of the "launching State", and 82 State Parties to the Liability Convention will remain bound by the "old" definition.
Let us take another example concerning the four sets of principles relating to outer space activities, which have been adopted by the UN General Assembly. They can hardly be converted into legally binding instruments if the five basic treaties on outer space are not revisited. For instance, para.3 of Principle 9 of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space stipulates that compensation for damage shall include reimbursement of the duly substantiated expenses for search, recovery and clean-up operations, including expenses for assistance received from third parties. In case this provision becomes a legally binding norm, it will contradict to the definition of the term "damage" given in Article I (a) of the Liability Convention.
The same story relates to information on launching space objects (compare Principle 5 of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space and Article IV of the Registration Convention).
The similar situation may arise whatever issue (from the list of yet unsolved problems mentioned above) is touched upon. There is no doubt, any attempt to develop a legally binding instrument relating to the problem of "space debris" will require consequential amendments into all five core Space Treaties with the same result as in the case of the concept of "launching State".
Thus the only feasible and reasonable solution remains - to develop a universal comprehensive Convention on the Law of the Outer Space, which might both codify the rules already existing in this sphere, adjust them - whereas it is necessary - to the modern realities, as well as to further develop the international space law.
Being guided by these considerations, the Russian Federation at the 39th session of the Legal Subcommittee (March-April, 2000) put forward the initiative to discuss the question of development of a United Nations comprehensive convention on the Law of Outer Space, by analogy with the UN Convention on the Law of the Sea of 1982. 5
This proposal was further developed by the Russian Federation in the working document presented to the 43rd session of the COPUOS (June, 2000) 6 . A number of other delegations representing almost every major regional group - Bulgaria, China, Colombia, Greece and the Islamic Republic of Iran joined the initiative. These States considered that a new item should be included in the agenda of the Legal Subcommittee entitled " The discussion of the appropriateness and desirability of drafting a universal comprehensive convention on international space law" 7 .
The discussion at the plenary meetings of the 43rd session of the COPUOS revealed a great interest of an absolute majority of the delegations to the issue. Most of them fully shared the ideas that the current forms and methods of space activities require an adequate reflection in the existing system of the law of outer space. It was also emphasized that the COPUOS with its Legal Subcommittee is the only international forum, which is mandated to fulfil the task of such scale and significance.
To further promote the initiative and make it clearer for other State-members, China, Colombia and the Russian Federation presented at the 40th session of the Legal Subcommittee (April, 2001) a new working paper on that issue with a request to convene during the session an ad-hoc informal open-ended Working Group to examine the initiative in details 8 .
Unfortunately, the COPUOS did not manage to reach a consensus on these points at that time despite the fact that most of the delegations supported the proposals and, what is more important, no well-grounded objection to the initiative was offered.
Most probably the restrained attitude towards the initiative to develop a new "Space Bible" is caused by fears of some States that this process might lead to the revision of the basic principles that have proved their viability.
There are of course certain safeguards to avoid such situation. First of all, it can be ensured by the principle of consensus, which will remain the cornerstone of the future negotiation process. Secondly, a "package-based" procedure may be widely applied to the negotiation process.
These two approaches can ensure the most acceptable and equitable method to harmonize the interests of State-members of the future Convention without infringing their sovereign rights as well as their own priorities in space activities. Such modalities can guarantee an integrated and thorough examination of every single aspect of space exploration and uses, thus resulting in production of a well-balanced text of the Convention. Only through such process the whole set of legal rules governing the space activities will become more appealing for all States. To achieve this goal, the international community must involve into the treaty-making process as many States as possible thus ensuring its universal character.
The development of an international legal instrument of such a nature and scope will undoubtedly require substantial efforts from the world community. However the benefits promised by the creation of a reliable, universally recognized and stable legal framework for the ever evolving activities in the domain of outer space are well worth whatever efforts prove necessary.
* Professor of International Law, Moscow Institute of International Relations (University)
** Diplomat, Ministry of Foreign Affairs of Russian Federation (Volta)
1 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967; Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968; Convention on International Liability for Damage Caused by Space Objects, 1972; Convention on Registration of Objects Launched into Outer Space, 1975; Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 1979 (See: UN Doc. A/AC.105/572/Rev.2). (Volta)
2 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, 1963; Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, 1982; Principles Relating to Remote Sensing of the Earth from Outer Space, 1986; Principles Relevant to the use of Nuclear Power Sources in Outer Space, 1992; 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, 1996 (See: UN Doc. A/AC.105/572/Rev.2) (Volta)
3 97 States joined the Treaty on Outer Space of 1967; the Rescue Agreement of 1968 has 88 members; the Liability Convention of 1972 has 82 participants; 44 States are Parties to the Registration Convention of 1975; the Agreement on the Moon of 1979 keeps the lowest number of 10 State Parties (as of April 1, 2002, see: UN Doc. A/AC.105/722/Amend.1). (Volta)
4 This Protocol is intended to become part of the Convention on International Interests in Mobile Equipment signed at Cape Town on the 16th of November, 2001 (See the text of the Convention in the UN Doc. A/AC.105/C.2/2002/CRP.3) (Volta)
5 A/AC.105/C.2/L.220 (Volta)
6 A/AC.105/L.225 and Corr.1 (Volta)
7 A/AC.105/L.228 with Adds.1 and 2 (Volta)
8 A/AC.105/C.2/L.226 (Volta)
(Volta ao Sumário)
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